Moot'17 Respndent

Team Code: J234
5th INTRA CLASS MOOT COURT

COMPETITION 2017
____________________________________________________________________________________________________________________________________________________________________________
BEFORE THE HONORABLE

SUPREME COURT OF INDIA
_____________________________________________________________________________ _______________________________________________________________________________________________
S.C. Civil Appeal No.____ of 2016
IN THE MATTER OF
SANDEEP PATIL ...APPELLANT
v.
Dr. PRADIP KUMAR CHAKRABORTY ... RESPONDENT 1
BREACH CANDY HOSPITAL …RESPONDENT 2
______________________________________________________
MEMORANDUM ON BEHALF OF THE RESPONDENT
5th INTRA CLASS MOOT COURT COMPETITION 2017
TABLE OF CONTENTS
List of Abbreviations
Index of Authorities
 Table of Cases
 Books
 Websites
 Statutes
Statement of Jurisdiction
Statement of Facts
Summary of Arguments
Arguments Advanced
ISSUE-1
That the act of the hospital was done in good faith and with reasonable
care.
ISSUE-2
That The Patient Was Himself Negligent And Dwindling In Nature
ISSUE- 3
That The Hospital Has No Liability To Pay For The Enhanced
Compensation
Prayer
LIST OF ABBREVIATIONS
2
AIR All India Reporter

SC Supreme Court
SCC Supreme Court Cases
Sec. Section
v. Versus
ESR Erythrocyte Sedimentation Rate
COPRA Consumer Protection Act, 1986
Hon’ble Honorable
u/s Under Section
INDEX OF AUTHORITIES
TABLE OF CASES
S.no List of Cases Citation

1. Dr.Suresh Gupta v. Govt. Of NCT Delhi and Anr Appeal (crl.) 778 of
2004
2. Andrews v. Director of Public Prosecutions [1937] A.C. 576
3. Syad Akbar v. State of Karnataka 1980 1 SCC 30
4. Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423
5. Reg v. Idu Beg (1881) 3 All. 776
6. Jacob Mathew v. State of Punjab Appeal (crl.) 144-145

of 2004
7. Michael Hyde and Associates v. J.D. Williams & Co. [2001] P.N.L.R. 233,
Ltd CA
3
8. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582,

586
9. Eckersley v. Binnie [1988] 18 Con.L.R. 1,
79
10. Indian Medical Association v. V.P. Shantha 1996 AIR 550, 1995
SCC (6) 651
12. P.B. Desai v. State of Maharashtra [2013] 11 S.C.R. 863
13. Kusum Sharma and Ors. v. Batra Hospital and CIVIL

Medical Research Centre and Ors APPEAL NO.1385 OF
2001
14. Spring Meadows Hospital and Anr. v. Harjol CIVIL APPEAL NO.
Ahluwalia 7858 OF 1997
15. Bandhua Mukti Morcha v Union of India 1984 AIR 802, 1984
SCR (2) 67
16. Francis Coralie Mullin v Union of India 1981 AIR 746, 1981
SCR (2) 516
17. Sunil Batra v. Delhi Administration 1980 AIR 1579, 1980
SCR (2) 557
18. I.R.Coelho v. State of Tamil Nadu AIR 2007 SC 861
19. Balram Prasad v. Kunal Saha & Ors. (2014) 1 SCC 384
BOOKS
 B.M. Gandhi, Law of Torts, Eastern Book Company

 D.P. Wadhwa, Law of Consumer Protections, LexisNexis
WEBSITES
 http://www.manupatra.co.in/AdvancedLegalSearch.aspx
 https://indiankanoon.org/
4
STATUTES
 Consumer Protection Act, 1986
 Indian Medical Council Act, 1956
 Code of Medical Ethics Regulations, 2002
 The Constitution of India
STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the appeal filed before
this Hon’ble Court. The appeal invokes its jurisdiction under Sec. 23 of the COPRA Act.
It sets forth the facts and the laws on which the claims are based
5
STATEMENT OF FACTS
I. In March 2014, the appellant who was suffering from chronic renal failure was
referred by the Director, Health Services to the Breach Candy Hospital (respondent
no. 2), Mumbai for the purpose of a kidney transplant.
II. On May 20, 2014, Mr. Patil approached the doctor (respondent no.1), a senior
consultant at Breach Candy Hospital, with high fever. However, Mr. Patil refused
hospitalization despite the advice of the doctor. On May 29 2014, the appellant who
still had high fever agreed to get admitted into the hospital due to serious condition.
III. On May 30 2014, the respondent was investigated for ESR, which was high in
view of renal failure with anaemic infection. Urine analysis was also carried out
which showed the presence of bacteria.
IV. On June 3, 2014, the reports of urine culture and sensitivity showed a severe urinary
tract infection due to Klebsiella species (1 lac/ml) responsive only to Amakacin and
Methenamine Mandellate. The Mathemine Mandellate cannot be used in patients
suffering from renal failure. Hence, Amakacin was prescribed to the appellant for 3
days i.e. from June 5, 2014 to June 7, 2014. due to the treatment the temperature of
the appellant subsided.
V. On June 11, 2014, the appellant complained of having a slight tinnitus in the ear
while at the haemodialysis unit. The respondent no. 1 told the appellant to stop
taking the Amakacin and augmentin and also made corresponding changes in the
discharge card. The appellant continues with the medicine until June 17, 2014. Till
this date, the appellant received haemodialysis at Breach Candy Hospital (June 14,
6
18, and 20, 2014) did not complained of any deafness that might have developed
during those periods.
VI. On June 25, 2014, the appellant on his own accord, got admitted to Kothari
Hospital, discharging himself from Breach Candy Hospital. Evidence showed that
the appellant did not complained of any deafness during this period and conversed
with everyone normally.
VII. On July 20, 2014, the appellant was operated upon for a transplant and on August
13, 2014, he was discharged from the Kothari Hospital.
VIII. On September 15, 2014, a complaint was filed in State Commission of Mumbai
against Respondent no. 1 and 2 claiming compensation of an amount of Rs.
50,00,000/- on grounds of medical negligence, irreparable hearing loss and mental
agony. The State Commission ordered compensation of Rs. 20,00,000 to the
appellant on 3rd August, 2015.
IX. Aggrieved by the lesser amount the appellant then went to the National
Commission where an expert opinion was also considered. Tanmay Ghosh, a doctor
at AIIMS as well as the Commission decided the matter in the appellant’s favor but
awarded lesser compensation to him i.e. Rs. 40,00,000.
7
STATEMENT OF ISSUES
ISSUE- I
WHETHER THE ACT OF THE HOSPITAL WAS DONE IN GOOD FAITH
AND WITH REASONABLE CARE OR NOT?
ISSUE-II
WHETHER THE PATIENT WAS HIMSELF NEGLIGENT AND DWINDLING IN
NATURE OR NOT?
ISSUE- III
WHETHER THE HOSPITAL IS LIABLE TO PAY THE ENHANCED
COMPENSATION OR NOT?
8
SUMMARY OF ARGUMENTS
I. THAT THE ACT OF THE HOSPITAL WAS DONE IN GOOD FAITH AND
WITH REASONABLE CARE
It is most humbly submitted before this Hon’ble Supreme Court of India that the doctor
of breach candy hospital had acted in a reasonable manner and without any mala- fide
intention. The respondent is not liable to pay compensation nor is he liable for medical
negligence, since;
1. There was no breach of duty to care.
2. Being a senior doctor, he acted in a professional manner.
3. Giving Amakicin was a life saving measure and not a mere medical experiment.
4. The respondent was faced with a situation where not only was there kidney
failure of the appellant (patient), but also urinary tract infection and blood
infection. In this grave situation, which threatened the life of the patient, the
respondent had to take drastic steps. Even if he prescribed Amikacin for a
longer period than is normally done, he obviously did it to save the life of the
appellant.
II. THAT THE PATIENT WAS HISMSELF NEGLIGENT AND DWINDLING IN

NATURE.
9
It is most humbly submitted before this Hon’ble Supreme Court of India that the
appellant himself was careless about his health condition. It is rightly proven below in
two instances for that matter.
1. When the appellant approached the respondent on May 20 2014, the respondent
advised him for hospitalization since he was having a high fever, but the appellant
refused for the same, due to the reasons best known to him. Howsoever, when his
condition became worse, the he opted for hospitalization, but it would have been
better if the appellant would have agreed this to earlier to save the worse
condition.
2. When the doctor was told that his patient is having a slight tinnitus to his ears he
understood that the medicine is showing his side effects and immediately
scratched out the medicine from his prescription and discharge papers and also
told the patient not to continue with the medicine. But despite of this the patient
continued the medicine for the next 7 days. The council on the above stated facts
will argue that from where is he being liable for paying the compensation to the
patient when the patient himself didn’t cooperated with his doctor.
III. THAT THE RESPODENT IS NOT LIABLE TO PAY THE ENHANCED

COMPENSATION
It is humbly submitted to the Hon’ble Supreme Court of India that the appellant should
not be granted the enhanced compensation and the respondents should not be made liable
for the same since:
1. Firstly, it will be proved that it wasn’t the hospital’s or the doctor’s fault in the
condition of the appellant.
2. Secondly, the impairment happened due to the negligence of the appellant and
not of the doctor.
10
ARGUMENTS ADVANCED
I. THAT THE ACT OF THE RESPONDENT WAS DONE IN GOOD FAITH

AND WITH REASONABLE CARE.
“Good faith” is a general notion that applies to many legal and judicial acts. However,
there is no agreement, among those countries that recognize it, as to what exactly
constitutes its core principle. Good faith is said to require more than just honesty or
reasonableness; as it also requires affirmative acts and fair dealing. Some may consider it
as a moral requirement to not harm others.
Thus in the present case act done by the respondent was done with a good faith and to
cure his patient. No sensible professional would intentionally commit an act or omission
which would result in harm or injury to the patient since the professional reputation of the
professional would be at stake. A single failure may cost him dear in his lapse.
Mere error of judgment occurs when a doctor makes a decision that turns out to be
wrong. It is situation in which only in retrospect can we say there was an error. At the
time when the decision was made, it did not seem wrong. If, however, due consideration
of all the factors was not taken, then it would amount to an error of judgment due to
negligence.
11
Indian Medical Association vs. V.P. Shantha (Supra),1 should not be understood to mean
that doctors should be harassed merely because their treatment was unsuccessful or
caused some mishap which was not necessarily due to negligence. In fact in the aforesaid
decision it has been observed:-
"In the matter of professional liability professions differ from other occupations for the
reason that professions operate in spheres where success cannot be achieved in every
case and very often success or failure depends upon factors beyond the professional
man's control."
The situation was aggravated by the non-cooperation of the appellant who seems to be of
an assertive nature as deposed by the witnesses. Extraordinary situations require
extraordinary remedies. Even assuming that such a high dose of Amikacin would
ordinarily lead to hearing impairment, the respondent was faced with a situation between
the devil and the deep sea. If he chose to save the life of the patient rather than his
hearing surely he cannot be faulted.
As regards the impairment of hearing of the appellant it may be mentioned that there is
no known antibiotic drug which has no side effect. Hence, merely because there was
impairment in the hearing of the appellant that does not mean that the respondent was
negligent. He was desperately trying to save the life of the appellant, which he succeeded
in doing. Life is surely more important than side effects.
Bolam Test Rule
The test of medical negligence under law of tort is therefore fixed to the standard of care
and skill which a ‘reasonable man’ of the same profession would be expected to take.
This has been termed as the ‘Bolam Test’ evolved in case of Bolam v. Friern Hospital
Management Committee,2 where words by McNair, L.J. are relevant to be observed, “A
doctor is negligent, if he is acting in accordance with a practice accepted as proper by a
reasonable body of medical men skilled in that particular art, merely because there is a
body of such opinion that takes a contrary view.”
1
1996 AIR 550, 1995 SCC (6) 651
2
[1957] 1 WLR 582
12
The principles laid down under the Bolam’s Test were as follows:-
1. That there was a duty to care between the doctor and the patient.
First and foremost, a physician must owe a duty of care to patients before his or her
competency in performing that duty can be judged. In Indian jurisprudence, a person has
no affirmative duty to assist injured individuals in the absence of a special relationship
with them (such as doctor-patient, attorney-client, guardian-ward, etc.). A doctor dining
in a restaurant has no duty to come forward and assist a fellow customer who is suffering
a heart attack. If the doctor merely continues with his meal and does nothing to help, the
ailing person would not have an action for malpractice against him, not-withstanding
their harm. However, once a doctor voluntarily decides to assist others or come to their
aid, he or she becomes liable for any injury that results from any negligence during that
assistance. Once the requisite doctor-patient relationship is established, the doctor owes
to the patient the duty of care and treatment with that degree of skill, care, and diligence
as possessed by or expected of a reasonably competent physician under the same or
similar circumstances.
In order to prove that a doctor owed a legal duty of care to a patient, the patient must first
be able to demonstrate that a doctor-patient relationship existed at the time the alleged
medical malpractice occurred.
The relationship between a doctor and a patient is one that is voluntary and usually
entered into by agreement. Some things that can be used to support a finding that a
doctor-patient relationship existed at the time of the alleged malpractice are evidence (i.e.
documents and testimony) showing that:
a) the patient chose to be treated by this particular doctor
b) the patient submitted to examinations for the purpose of treatment of a certain

health problem or condition, and
c) treatment by the doctor was ongoing.
However, in the present case, the appellant has failed to prove that there was any lacuna
on the part of the doctor as none of the above stated ingredients are being complied with.
13
The respondents certainly agree that there was a duty to care from the doctor towards the
patient and he has been inevitably doing his job without any excuses or snags. But, in
Indian jurisprudence, a person has no affirmative duty to assist injured individuals in the
absence of a special relationship with them (such as doctor-patient, attorney-client,
guardian-ward, etc.). A doctor dining in a restaurant has no duty to come forward and
assist a fellow customer who is suffering a heart attack. If the doctor merely continues
with his meal and does nothing to help, the ailing person would not have an action for
malpractice against him, not-withstanding their harm.3 In the case at hand, the patient
was expressly directed not to take any dosage of Amikacin by the doctor, who turned a
deaf ear to the directions of the doctor and was having the same medication for 3 days.
Hence, in such a case, no liability of the doctor must arise as the patient was working on
his own sweet will and under the umbrella of the maxim, “VOLENTI NON FIT
INJURIA”.
2. That the act or omission of the doctor did not breached the duty of care
clause
In treating a patient, a doctor or other care provider must use the degree of care and skill
of the average health care provider who practices the provider’s specialty, taking into
account the medical knowledge that is available to the physician. Another way to describe
the standard of care is to say that it is based on the customary practices of the average
physician, i.e., what the average physician would customarily or typically do in similar
circumstances .A doctor whose conduct falls below this standard of care can be said to
have committed medical negligence. Doctors have the duty to communicate adequate
information to patients, that is, to disclose a diagnosis or provide warnings to the patient
in a timely manner. A doctor has a duty to inform a patient of the dangers associated with
drugs prescribed to the patient, and of the reasonable risks of any procedure or course of
treatment.
3
Supra, pg-11
14
The council strongly advocates that to establish Medical Negligence, both the clauses of
the Bolam’s Test must be complied with,4 which is totally contrary in the present case.
The act of the doctor was in utter good faith and without any mala-fide intention. All that
the respondent wanted was speedy recovery of the appellant without any problem that he
may face. Prescribing the appellant with the medicine was only to get rid of the bacteria
found in his urinary tracts and not to make him suffer more. The doctor has been an
excellent physician with all of his other patients, which proves the fact that he fulfils his
duty with utmost care and competence. In addition to the above stated fact, there is a
slight ambiguity as to from which doctor the medical negligence was caused. The patient
had moved to Kothari Hospital in middle of the treatment and had complained about the
tinnitus to the doctors of breach candy hospital only once, hence, there is a possibility
that the doctors from the Kothari Hospital may have prescribed a course of medication
which affected the patient and exaggerated the tinnitus that was being healing.
In P.B. Desai v. State of Maharashtra,5 SC citing Kusum Sharma and Ors. v. Batra
Hospital and Medical Research Centre and Ors.6, accepted the difference of opinion
among the doctors possessing the same skill. The Court accepted the test of negligence
given in ‘Halsbury Laws’ of England and the ‘Bolam Test’.
The discussion in Halsbury laws of England is as follows: “The practitioner must bring to
his task a reasonable degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low degree of care and competence.
Judged in the light of the particular circumstances of each case, is what the law requires,
and a person of not liable in negligence because someone else of greater skill and
knowledge would have prescribed different treatment or operated in a different way; nor
is he guilty of negligence if he has acted in accordance with a practice accepted as proper
by a responsible body of medical men skilled in that particular art, even though a body of
4
Jacob Mathew’s Case
5
[2013] 11 S.C.R. 863
6
CIVIL APPEAL NO.1385 OF 2001
15
adverse opinion also existed among medical men. Deviation from normal practice is not
necessarily evidence of negligence. To establish liability on that basis it must be shown
(1) that there is a usual and normal practice; (2) that defendant has not adopted it; and (3)
that the course in fact adopted is one no professional man of ordinary skill would have
taken had he been acting with ordinary care.”
The court in addition explained that the standard of care when assessing the practice as
adopted, is judged in the light of knowledge available at the time of the incident and not
at the date of trial. When the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was not generally available
at that point of time on which it is suggested as should have been used.
Spring Meadows Hospital and Anr. v. Harjol Ahluwalia 7 , the SC citing Whitehouse
Case observed that an error of judgment is not necessarily negligence, “The true position
is that an error of judgment may, or may not, be negligent, it depends on the nature of the
error. If it is one that would not have been made by a reasonably competent professional
man professing to have the standard and type of skill that the defendant holds himself out
as having, and acting with ordinary care, then its negligence. If, on the other hand, it is an
error that such a man, acting with ordinary care, might have made, then it is not
negligence.
Secondly, as held in the case of Dr, Suresh Gupta v. Govt. Of NCT Delhi and Anr.8 , the
bench expressed that “for the act of negligence the doctor maybe liable in tort, his
carelessness or want of due attention and skill cannot be described to be so reckless or
grossly negligent as to make him criminally liable”.
The council advocates that there is a difference for making a man liable in Civil and
Criminal law for negligence. Lord Atkin in his speech in Andrews v. Director of Public
Prosecutions,9, stated, "Simple lack of care such as will constitute civil liability is not
7
(1998) SCC 39
8
Appeal (crl.) 778 of 2004
9
[1937] A.C. 576
16
enough; for purposes of the criminal law there are degrees of negligence; and a very
high degree of negligence is required to be proved before the felony is established." Thus,
a clear distinction exists between "simple lack of care" incurring civil liability and "very
high degree of negligence" which is required in criminal cases. Lord Porter said in his
speech in the same case "A higher degree of negligence has always been demanded in
order to establish a criminal offence than is sufficient to create civil liability. The fore-
quoted statement of law in Andrews has been noted with approval by this Court in Syad
Akbar v. State of Karnataka.10
The SC has dealt with and pointed out with reasons the distinction between negligence in
civil law and in criminal law. Their Lordships have opined that there is a marked
difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In
civil proceedings, a mere preponderance of probability is sufficient, and the defendant is
not necessarily entitled to the benefit of every reasonable doubt; but in criminal
proceedings, the persuasion of guilt must amount to such a moral certainty as convinces
the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where
negligence is an essential ingredient of the offence, the negligence to be established by
the prosecution must be culpable or gross and not the negligence merely based upon an
error of judgment.
Law laid down by Straight, J. in the case Reg v. Idu Beg,11 has been held good in cases
and noticed in Bhalchandra Waman Pathe v. State of Maharashtra,12 a three-Judge
Bench decision of this Court. It has been held that while negligence is an omission to do
something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do; criminal negligence is the gross and culpable neglect or
failure to exercise that reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which having regard to all
10
1980) 1 SCC 30
11
(1881) 3 All. 776
12
1968 Mh.L.J. 423
17
the circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted.
Judged by this standard, a professional may be held liable for negligence on one of two
findings: either he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given case, the skill
which he did possess. The standard to be applied for judging, whether the person charged
has been negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary for every professional to possess the
highest level of expertise in that branch which he practices. In Michael Hyde and
Associates v. J.D. Williams & Co. Ltd., 13 Sedley L.J. said that where a profession
embraces a range of views as to what is an acceptable standard of conduct, the
competence of the defendant is to be judged by the lowest standard that would be
regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03) Oft'quoted passage
defining negligence by professionals, generally and not necessarily confined to doctors, is
to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management
Committee,14 in the following words: "Where you get a situation which involves the use
of some special skill or competence, then the test as to whether there has been negligence
or not is not the test of the man on the top of a Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill . . . A man need not possess the highest expert skill; it
is well established law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02)
The water of Bolam test has ever since flown and passed under several bridges, having
been cited and dealt with in several judicial pronouncements, one after the other and has
continued to be well received by every shore it has touched as neat, clean and well-
condensed one. After a review of various authorities Bingham L.J. in his speech in
Eckersley v. Binnie,15 summarised the Bolam test in the following words:- "From these
13
[2001] P.N.L.R. 233, CA,
14
[1957] 1 W.L.R. 582, 586
15
[1988] 18 Con.L.R. 1, 79
18
general statements it follows that a professional man should command the corpus of
knowledge which forms part of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinary assiduous and intelligent members of
his profession in knowledge of new advances, discoveries and developments in his field.
He should have such an awareness as an ordinarily competent practitioner would have of
the deficiencies in his knowledge and the limitations on his skill. He should be alert to the
hazards and risks in any professional task he undertakes to the extent that other ordinarily
competent members of the profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other ordinarily competent
members of his profession would bring, but need bring no more. The standard is that of
the reasonable average. “THE LAW DOES NOT REQUIRE OF A PROFESSIONAL
MAN THAT HE BE A PARAGON COMBINING THE QUALITIES OF
POLYMATH AND PROPHET."
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither the very highest nor a very low degree
of care and competence, judged in the light of the particular circumstances of each case,
is what the law requires, and a person is not liable in negligence because someone else of
greater skill and knowledge would have prescribed different treatment or operated in a
different way; nor is he guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular art,
even though a body of adverse opinion also existed among medical men.
II. THE PATIENT WAS HIMSELF NEGLIGENT AND DWINDLING IN

NATURE
It is contended that the patient was himself careless, in conscious and remiss about his
treatment. As the maxim goes Ex Turpi Cause Non Oritur Actio, i.e. one who seeks
justice (equity) must come with clean hands. In the present case the petitioner himself
was negligent and had a dwindling nature about his medication. On many instances, he
had refused to accept the instructions of the doctor in its purest form. On May 20, 2014,
19
the petitioner approached the respondents, with high fever; however, he refused to
hospitalization despite regular advice of respondents. After 9 days on May 29 2014, the
petitioner finally agreed to get admitted into the hospital due to his serious condition. It is
evidently clear from the fact that the petitioner used to resist the medication prescribed to
him by a medical practitioner and used to go forward by his own sweet will. It is a
universal fact that a person who has attained professional knowledge is more experienced
and well-informed about the profession he is into. In the present case the petitioner fails
to acknowledge the fact that the doctor working in Breach Candy Hospital was a
legitimate doctor who had requisite skills and hence he could prescribe the right
treatment. The petitioner acted contrary to the above stated statements and had started
treating himself on his own. Another action that shows that he never trusted the doctor in
its first place was one he continued consuming the medicine Amakacin even after
expressed concern from the doctor. It is apparent from the fact that after the incident of
June 11, 2014, petitioner complained to the Haemodialysis unit that he has slight tinnitus
in his ear. The respondent immediately directed the petitioner to stop taking Amakacin
and Augmentin and so scored out the treatment on discharge card. However, despite
getting expressed instructions from the respondent, the petitioner continued taking
Amakacin until June 17, 2014, that is a sum total of 7 days. In addition to this on June 25
2014, petitioner on his own accord got admitted to Kothari Hospital, discharging himself
from Breach Candy Hospital. Ironically, he had never complained of any deafness and
conversed with doctors normally. Applying the doctrine of man of ordinary prudence the
respondents cannot be held liable for the treatment of any other hospital, as it is clear
from the evidence that he was further treated by another hospital.
1. Also no doctor is god there is No Assurance of success in skill based

profession
In Jacob Mathew v. State of Punjab 16 the Court explained that any professional while
entering in a contract with his client agrees impliedly to apply his skill with reasonable
skill. No other assurance of success can be given in a professional contract requiring
16
Appeal (crl.) 144-145 of 2004
20
some special competence. On this basis, the professional can be held liable for negligence
under two circumstances:
(1) when he was not possessed of the requisite skill which he professed to have
possessed or
(2) he did not exercise, with reasonable competence in the given case, the skill which he
did possess.
This standard to be applied has to be that taken for an ordinary competent person
exercising ordinary skill in that profession because every professional cannot be expected
to possess the highest level of expertise in that branch which he practices.
2. That the respondent on his behalf was careful in treating the petitioner
When there is duty to treat there would be a corresponding, duty to take care upon the
doctor qua his patient. Whenever the principle to duty to take care is founded on
contractual relationship, it acquires a legal character. The Halsbury Laws of England had
said a medical practitioner holding himself ready to give medical advice owes his patient
a duty of care in deciding whether to undertake the case; a duty of care in deciding what
treatment to give; and a duty of care in his administration of that treatment. In the instant
matter, the respondent took charge of the patient under personal care was even monitored
before the operation procedure. Further, after being satisfied about the manageable
condition then only the petitioner was discharged from the hospital and during that period
or even during his treatment in the other hospital he never complained of deaf-ness
proved from the evidence which implies such act done in reasonable manner.
Hence, it is contended that the appellant was himself responsible for his condition. It is
also contended that where there is duty of the doctor, the duty of a patient also arises. A
doctor- patient relationship is two sided. If there’s a duty of the doctor to show a
reasonable care, there also exist a duty of cooperation and obedience on the side of a
patient to listen to his doctor and act in a diligent manner. A doctor cannot improve the
21
condition of his patient by his own and needs full cooperation of his patient, which was
not shown by the appellant (patient) in the present case.
III. THE RESPONDENT IS NOT LIABLE TO PAY THE ENHANCED
COMPENSATION
It is contended that the appellant’s appeal for an enhanced compensation should not be
allowed on the following grounds:-
1. That the Medical Negligence has not been proved
The Counsel contends that the appellant were not able to prove that whether the
respondents were actually the one because of which such disability arose. There is
still doubt as to who must be held liable for the act. It is pertinent to mention that the
appellant had failed to mention about his tinnitus to the doctors at breach candy and
even if he did, it was only for one time.
Secondly, the fact that the patient himself, without any intimidation got shifted to Kothari
hospital and there is still a chance, that the medicine prescribed by the Kothari hospital
was the one which had caused/aggregated the effect, hence the respondents must not be
held liable.
2. The respondents are not in a position to pay such an extravagant amount.
It is advocated that both the respondents are not in a position to pay the amount of the
enhanced compensation at the fault of the appellants in the first place. It is contended
that the respondent no 1. , i.e. the doctor is himself an employee and he has exhausted
a fortune to prove that he is innocent and now he is only having that much of an
22
amount to survive with. Hence, the enhanced Compensation that has been demanded
by the appellants cannot be paid by the respondent no. 1.
Same is the case with Respondent No. 2 that he is also not in a position to pay the
said amount because of the above stated reasons. Additionally, the respondents have
huge expenses over the maintenance and staff salaries that it is not possible for it to
pay the said amount.
In the celebrated judgements of SC Bandhua Mukti Morcha v Union of India,

17
Francis Coralie Mullin v Union of India,18 Sunil Batra,19 I.R Coheilo case20 it has
been extensive held that the life of a person should not connote merely physical or
animal existence. The meaning of life is subjected to dignity and hence each and
every person must have right to live with dignity.
In the case at hand, the respondents would be deprived from their basic fundamental
rights because of the reasons stated above.
Additionally in the case of, the main issue was that the Balram Prasad vs Kunal
Saha & Ors21 appellant-doctors are aggrieved by the quantum of compensation
awarded by the National Commission and the liability fastened upon them for the
negligence on their part and have prayed to set aside the same by allowing their
appeals. In so far as the appellant-AMRI Hospital is concerned, it has also questioned
the quantum of compensation awarded and has prayed to reduce the same by
awarding just and reasonable compensation by modifying the judgment allowing its
appeal.
17
1984 AIR 802, 1984 SCR (2) 67
18
1981 AIR 746, 1981 SCR (2) 516
19
Sunil Batra v.Delhi Administration; 1980 AIR 1579, 1980 SCR (2) 557
20
I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861
21
(2014) 1 SCC 384
23
PRAYER
In the light of issues raised, arguments advanced and authorities cited, the council for the
respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
1. The respondents were not negligent on there part and paid reasonable care
towards the patient.
2. The respondents are not liable to pay the enhanced compensation to the appellant.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity, and Good
Conscience.
All of which is mostly humbly and respectfully submitted
Place: Delhi S/d_____________________

Date : 5th April 2017 COUNCIL for RESPONDENT
24

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Team Code: J234

5th INTRA CLASS MOOT COURT

BEFORE THE HONORABLE

S.C. Civil Appeal No.____ of 2016

SANDEEP PATIL ...APPELLANT

Dr. PRADIP KUMAR CHAKRABORTY ... RESPONDENT 1

BREACH CANDY HOSPITAL …RESPONDENT 2

AIR All India Reporter

S.no List of Cases Citation

3. Syad Akbar v. State of Karnataka 1980 1 SCC 30

4. Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423

5. Reg v. Idu Beg (1881) 3 All. 776

6. Jacob Mathew v. State of Punjab Appeal (crl.) 144-145

8. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582,

13. Kusum Sharma and Ors. v. Batra Hospital and CIVIL

 B.M. Gandhi, Law of Torts, Eastern Book Company

II. THAT THE PATIENT WAS HISMSELF NEGLIGENT AND DWINDLING IN

III. THAT THE RESPODENT IS NOT LIABLE TO PAY THE ENHANCED

I. THAT THE ACT OF THE RESPONDENT WAS DONE IN GOOD FAITH

Bolam Test Rule

a) the patient chose to be treated by this particular doctor

b) the patient submitted to examinations for the purpose of treatment of a certain

c) treatment by the doctor was ongoing.

II. THE PATIENT WAS HIMSELF NEGLIGENT AND DWINDLING IN

1. Also no doctor is god there is No Assurance of success in skill based

III. THE RESPONDENT IS NOT LIABLE TO PAY THE ENHANCED

1. That the Medical Negligence has not been proved

2. The respondents are not in a position to pay such an extravagant amount.

In the celebrated judgements of SC Bandhua Mukti Morcha v Union of India,

All of which is mostly humbly and respectfully submitted

Place: Delhi S/d_____________________

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