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7th NOVICE MOOT COMPETATION 2019

ROLL NO-19LLB063

7th Novice moot court competition

2019

Before

The honourable court of Visakhapatnam

Memorial for respondent

In the matters of

Vinaya………………………………………………… Petitioner 1

Versus

John…………………………………………………….Respondent

&

Car owner…………………………………………….Petitioner 2

Versus

John………………………………………………….Respondent

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

Table of contents

1. List of abbreviations………………………………………………………….…….3
2. Index of authorities……………………………………………………………..….4-5
3. Statement of jurisdiction…………………………………………………..............6
4. Statement of facts…………………………………………………………….….7-8
5. Issues raised……………………………………………………………………..9
6. Summary of arguments……………………………………………………10-11
7. Arguments advanced…………………………………………………12-17
8. Prayer………………………………………………………………..18

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

1.List of abbreviations

Ker Kerala

MV act Motor vehicle act

Sec section

Air All India reporter

Art. Article

Ors Others

v. Versus

CPC Civil procedure code

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

2.Index of Authorities

Cases cited

C.K.TAKWANI,CIVIL PROCEDURE WITH LIMITATIONS ACT (8th ed.,EBC,


ed.,2018),p.49.

1. Davies v Mann: (1842) 10 M&W 546: 62 RR 698

2. Dwarakanath v. Rivers steam Co, Bom LR 1917 Bom 735

3. MORGAN v. Sim, (1857) 11 Moo EC 307,

4. K.C.Kumaran v. Vallabhadas, AIR 1969 Ker 9.

5. Scott v Shepherd [1773] 96 Eng. Rep. 525

6.Kamal Kusha v S Kirpal singh, AIR 1988 JK 11

7.Sushma Mitra v Madhya Pradesh 1974 ACJ 87

8Municipal CORPORATION of greater Bombay v laxman Iyer, (2003)8 SCC 731:AIR


2003 SC4182

9. Richardson v. Stephenson Clarke Ltd., (1969) 1 WLR 1695

STATUTES
Civil procedure code
Motor vehicle act
BOOKS
Ratanlal & Dhirajlal

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

Online sources
SCC online
West law
Lexis India
Hein online

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7th NOVICE MOOT COMPETATION 2019

Statement of jurisdiction

The petitioner vinaya has approached The Honorable Court of Vishakhapatnam under sec 9 of
civil procedure code. The respondents humbly submit to the jurisdiction of this high court

The petitioner car owner humbly submitted that The Honorable Court of Visakhapatnam has
jurisdiction to hear the matter under section 9 of civil procedure code which reads as

“The courts shall have jurisdiction to try all suits of civil nature excepting suits of which their
cognizance is either expressly or impliedly barred”

Here the matter is damages of the accident which was expressly barred from the cognizance of a
civil court

The respondents sincerely submit that this honorable court lacks jurisdiction or is incompetent to
deal with this matter

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

4.Statement of facts

Background

John has three sisters and the second sister is a doctor and has two kids. John is a very devoted
brother and frequently visits the hospital where his sister works. His sister works at one of the
leading hospitals which is far away from his place. He had purchased a brand new car which was
bright blue in colour and looked attractive. He had four traffic signals on his commute to his
office every day. On his first signal, he passes by a petrol bunk. On his second signal, he passes
by a government hospital on the opposite side of the road. The third signal is extremely busy
signal. Near the fourth signal, there is super speciality hospital on the same side of the road

Rescuing of the lady

John wanted to take his car to his office. He crossed the first signal and immediately in front of
him, he saw an accident in which a lady was thrown out on the road. The auto momentarily
stopped, fled as soon as crowd to gather. John parked the car and went to see the lady who was
injured. He realized that the lady was pregnant and was also his sister’s patient. He immediately
took her in his car to take her to the hospital. The lady was Vinaya. She had been childless for
about 7 years and finally after John’s sister performed an IVF treatment, she was able to
conceive. She was also asked to take bed rest as she was aged 43 and the pregnancy was going
to be a tough one. Though john did not know the intricate details of Vinaya’s case, he knew that
his sister had mentioned a few times that Vinaya’s case, he knew that his sister had mentioned a
few times that Vinaya’s case was a tough one.

The accident

John in rush of panic, immediately proceeded towards the super speciality hospital. He stopped
at the second signal as it was red and he rushed through the third signal as the signal was red. He
rushed through the third signal as the light was yellow. Another car with the same intention of
skipping the red light , rushed through and jammed into the rear of john’s car. He recovered soon
and took the lady to the hospital. It was pronounced that Vinaya gave birth to a still born child

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

The litigation

After coming home, he called his sister and narrated incident to her. She also stated that she
would inform him if Vinaya came back to her further treatment. After a few days, he receives
two notices that two suits have been filed against him, one by the lady and the other car owner
for payment of damages

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7th NOVICE MOOT COMPETATION 2019

Issues raised

1. Whether john was liable for payment of damages?


Regarding-
1.1. The birth of still born baby
1.2. Taking her to super specialty hospital instead of nearby government hospital
2. Whether the suit is maintainable?
The following issues can be raised if the jurisdiction changes to tribunal,
2.1 Can John take the defence of contributory negligence?
2.2 Can the john liable to pay the damages to the car owner?

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

Summary of Arguments

1. John was not liable for negligence regarding the birth of still born baby and taking her to
super specialty hospital instead of nearby government hospital

To make the john liable for the negligence, the damage for the Vinaya should be caused by
the John’s actions i.e. the reason for the birth of the still born baby should be john’s breach of
duty. Vinaya was thrown out of the moving auto which has the higher impact on her pregnancy
and this ejection from the auto is the proximate cause (which produces injury without which
result would not have occurred) and taking her to the super specialty hospital in spite of the
government hospital is the remote as this would be less impact on her pregnancy than throwing
out from the auto. Defendant would be liable for proximate cause but not for the remote cause.
Here the proximate cause was not done by John so he is not liable for the birth of the still born
baby

If the defendant does not take the reasonable care then he would be liable but the exception is
that in an emergency situation the reasonable care can be limited and the courts also cannot
expect the same presence of mind in an emergency situation compared to normal situation. so the
defendant would not be liable if the reasonable care is not taken during the emergency .Taking
the pregnant lady to the super specialty hospital in spite of the nearer government hospital says
that he has not exercised reasonable care but this is the emergency situation where he cannot
exercise reasonable care because of nervousness so he would not be liable for not taking her to
the government hospital

2. The suit is not maintainable

According to section 9 of CPC some matters are expressly barred from cognizance of a civil
court. These expressly barred matters will be dealt by special tribunals and the matter related
to the road accident claims were also barred from cognizance of civil court. So the suit is not
maintainable in civil court

If the jurisdiction changes to tribunal john can take the defence of contributory
negligence. From the facts it is known that the yellow light came after the green light so

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

the people should move slowly but john rushed quickly so John will be the liable for
negligence. From the facts it is clearly known that the car owner rushed through and
jammed in to rear of john’s car which was in front of him. As the car owner has the last
opportunity to avoid the accident he will be liable for the contributory negligence. Here
the car owner fault was so great as his conduct was the reason for the damage he would
not get any damages from John

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

Arguments advanced

Issue-1

1.1 John was not liable for negligence regarding the birth of still born baby-

To establish the negligence, the defendant breach of duty must cause damage
to plaintiff. The plaintiff has also to show that the damage thus caused is not too remote
to a consequence of the defendant’s negligence.

The party seeking to recover damages must make out that the party against whom he
complains was in the wrong. He must show that the loss is to be attributed to the
negligence of the opposite party.1

In K.C.Kumaran v. vallabhadas vasanji and others it is alleged by the plaintiff that the
accident was caused due to the negligence of the driver but the court held that the
defendants was not liable because the plaintiff has not satisfactorily proved that the
accident was caused as a result of negligence of the defendant.2

In the present case plaintiff stated that the still born baby was due to the negligence of the
john but it was clearly mentioned in the facts that Vinaya was thrown out of the moving
auto to the road. We can say that she was thrown out of the “moving auto” because the
auto momentarily stopped after she was thrown out suggesting that the auto was running
when she was thrown out of the road.
When we assume that auto was running with minimum speed and the force acted or
applied on her was also minimum the speed she was moving towards the ground will not
be less because the speed of the auto and the force applied on her contributes the speed
she was moving towards the ground. According to survey conducted by National
highway traffic administration (NHTSA) the main injury caused by the ejection from
vehicle is broken bones.

1
MORGAN v. Sim, (1857) 11 Moo EC 307,
2
K.C.Kumaran v. Vallabhadas, AIR 1969 Ker 9.

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7th NOVICE MOOT COMPETATION 2019

As she was a pregnant women and she was also ejected from the auto which can cause an
injury to her womb which results in still born child
Proximate cause is a cause which produces injury without which the result would not
have occurred. The act of the defendant not taking her to the government hospital is not
the proximate cause but it’s the remote cause because it can be clearly get from the above
statements that the reason for the still born baby was ejection from vehicle but not the
delay in taking her to the hospital.

The event which is immediately connected to consequence may not be a proximate but it
can be remote too.3

In the present cause the lady thrown from the auto was the cause which produces injury
without which the result of still born baby not occurs throwing out of the auto was the proximate
cause and not taking to the government hospital is the immediate reason connected to
consequence but not the proximate cause. The court stated that the proximate cause for an injury
makes the defendant liable but not the remote cause. So from the above case john was not liable
for still born baby

1.2 John was not liable for taking her to super specialty hospital instead of nearby government
hospital

To make liable for negligence the defendant owed duty of care to the
plaintiff and he/she should breach that duty. Breach of duty is failure to take proper care
which is required in particular situation. The standard of care is the care taken by the
reasonable man. If the defendant does not take the care that a reasonable man would take
then the defendant would be liable

But the exception mentioned is good sense and policy of the law impose some limit upon
the amount of care, skill and nerve which are required of a person in a position of duty,
who has to encounter a sudden emergency. In a moment of peril and difficulty the court
should not expect perfect presence of mind, accurate judgment and promptitude. If a man
is suddenly put in an extremely difficult position it ought not in the circumstances to be
attributed to him as a thing done with such want of nerve and skill to amount to
negligence. If in a sudden emergency a man does something, as he knew the

3
Scott v Shepherd [1773] 96 Eng. Rep. 525

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

circumstances, reasonably think proper, he is not to be held guilty of negligence, because


upon review of facts. It can be seen that the course he had adopted was not in fact the
best.4

In the present case the facts are clearly saying that the John in a rush of “panic” immediately
moved towards the super specialty hospital instead of government hospital. As he was
encountering a sudden emergency some limit can be imposed in amount of care taken by him.
The court should not expect perfect presence of mind because taking the lady during a pregnancy
was a difficult situation. So John was not liable for taking her to super specialty hospital instead
of government hospital, which was nearer than super specialty hospital, as it was an emergency
situation which leads to lack of presence of mind

In an extremely difficult position it should not be attributed to want of nerve and skills as to
amount negligence. If a man does what he under the circumstances reasonably thinks is proper
he is not be held guilty of negligence.5

This statement clearly suits for the present case to prove that john was not liable for negligence

in taking her to super specialty hospital

As John is not liable for birth of still born child and taking her to super specialty hospital, he is
not liable to pay the damages

4
Ratanlal ET AL., The law of torts 499 (26th ed. 2010).
5
Dwarakanath v. Rivers steam Co, Bom LR 1917 Bom 735

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7th NOVICE MOOT COMPETATION 2019

Issue 2

Suit is not maintainable because according to CPC, a suit can be filed in a civil court

Section 9 of CPC states that the courts shall have the jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance either expressly or impliedly barred.6

Cognizance not barred means the litigant have the right to institute a civil suit and expressly
barred by any legislation for the time being in force. Matters concerned with motor accident
claims are expressly barred from the cognizance of a civil court so the suit cannot be filed

A ‘suit’ is a proceedings by one party against other party in the civil court of law. In facts it is
clearly mentioned that the owner of the car has filed a suit which means initiating the
proceedings in a civil court of law but CPC bars these accident claims in civil court of law. So
the suit filed by the car owner is not maintainable

Sec 110(F) of the MV act places a total bar on the jurisdiction of the civil courts for claiming
compensation or entertain any question relating to any claim for compensation which is to be
adjudicated upon by the tribunal. So any damage caused by use of motor vehicle whether it will
be bodily injury, death or damage to property, that is to be brought before the tribunal7

So the car owner can file under motor accident claims tribunal. If he files under Motor vehicle
accident claims tribunal the defence of contributory negligence is taken

When the plaintiff contributes the damage caused by the negligence of the defendant, the
plaintiff is considered to be the guilty of contributory negligence

For contributory negligence , the plaintiff should not behave like a prudent man, if he/she
behaves like a reasonable man in that situation then contributory negligence won’t be
available .

6
C.K.TAKWANI,CIVIL PROCEDURE WITH LIMITATIONS ACT (8th ed.,EBC, ed.,2018),p.49.
7
Kamal Kusha v S Kirpal singh, AIR 1988 JK 11

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7th NOVICE MOOT COMPETATION 2019

The acts like the reasonable man doesn’t give rise to contributory negligence.8

But in our case the car owners act does not come under the reasonable act of the man as
he rushed towards the john’s car which the reasonable and prudent man would not do. So
the defendant can take the defence of contributory negligence

When an accident is due to the negligence of both the parties there would be the
contributory negligence and both would be blamed. In a case of contributory negligence,
the crucial question on which liability depends would be whether either party could by
exercise of reasonable care, have avoided the consequence of other’s negligence.
Whichever party could have avoided the consequence of others negligence would be
liable for accident.9

In the present case as the yellow light was after the green light they should slow down the
vehicles as there will be the red light next, but in the present case john rushed through the
signal and the car owner did the same. This shows that there was the negligence of both
the parties and from the facts it was clearly known that the car owner rushed through and
jammed in to rear of john’s car which was in front of him. As john’s car was in front of
him, the car owner can exercise reasonable care and can avoid that accident. As he can
avoid that accident with reasonable, the car owner was liable for the accident

One of the persons between defendant and plaintiff who has the last opportunity to avoid
the accident, he/she would be liable. If the defendant is negligent and plaintiff has the
chance to avoid the consequences of the defendant’s negligence ant the defendant cannot
be made liable and vice versa.10

In our case the car owner has the last opportunity to stop the collision with john but he
didn’t follow it and the defendant cannot be made liable for that last opportunity

8.
Sushma Mitra v Madhya Pradesh 1974 ACJ 87
9
Municipal CORPORATION of greater Bombay v laxman Iyer, (2003)8 SCC 731:AIR 2003 SC4182
10
Davies v Mann:(1842) 10 M&W 546: 62 RR 698

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7th NOVICE MOOT COMPETATION 2019

If the blame of the plaintiff is slight, it may not be just and equitable to reduce the
damages against the defendant and if the plaintiff’s fault was so great that he should not
get any damages though the defendant’s contribution to the damage cannot be denied11

Since the fault of the car owner was so great as it causes the damage to him, so there
won’t be any damages from the defendant

11
Richardson v. Stephenson Clarke Ltd., (1969) 1 WLR 1695

MEMORANDUM ON BEHALF OF RESPONDENTS


7th NOVICE MOOT COMPETATION 2019

Prayer

In the light of issues raised, arguments advanced and authorities cited, it is humbly prayed that
this honourable court may be pleased adjudge and declare that

1. Suit of the petitioner 2 is not maintainable in this court


2. Respondent was not liable to pay damages to petitioners

And pass such order in the light of justice and equity, which this honourable court may
feel fit and proper in the circumstances of the case

The entire above contentions are most humbly and respectfully submitted to the bench

Counsels for respondents

MEMORANDUM ON BEHALF OF RESPONDENTS