7TH NOVICE MOOT COURT COMPETITION, 2019

19LLB027

IN THE HON’BLE DISTRICT COURT OF VISAKHAPATNAM

(O.S. No._ / 2019)

FILED UNDER SECTION 9 OF CIVIL PROCEDURE CODE OF 1908

BETWEEN:

VINAYA

…………………….PETITIONER(1)

CAR OWNER

……………………..PETITIONER(2)

AND:

JOHN

.……………………RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

ABBREVIATIONS………………………………………………………………………..3

INDEX OF AUTHORITIES……………………………………………………………...4

STATEMENT OF JURISDICTION…………………………………………………….5.

STATEMENT OF FACTS………………………………………………………………..6

ISSUES RAISED…………………………………………………………………………..7

SUMMARY OF ARGUMENTS………………………………………............................8

ARGUMENTS ADVANCED……………………………………………………………..9-11

1. WHETHER JOHN IS LIABLE TO PAY COMPENSATION OR NOT?................9

1.1 THE ACT OF DEFENDANT DOES NOT AMOUNT TO NEGLIGENCE

1.2 THE DEFENDANT WAS NOT LIABLE FOR BIRTH OF PRE BORN CHILD

2. WHETHER DEFENDANT IS LIABLE TO PAY COMPENSATION TO CAR

OWNER OR NOT?...............................................................................................................10
2.1 THE DEFENDANT CAN TAKE THE DEFENCE OF CONTRIBUTORY NEGLIGENCE

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ABBREVIATIONS

ABBREVIATIONS FULL FORMS

Ars Another

Art. Article

CPC civil procedure code

Govt. Government

Ker kerala

Ors others

SC supreme court

SS super speciality

UOI Union of india

v. versus

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LIST OF CASE LAWS:

1.. National Insurance Company Ltd. V Kusuma and Ors.,2011 SC 0972

2. Haynes v. Harwood, 1935

3. SaveLIFE Foundation & Anr. vs. Union of India & Anr., 2012

4. Municipal Corpn. of Greater Bombay v. Laxman Iyer, A.I.R. 2003 SC 4182

5. Subhakar v. Mysore State Road Transport Corporation A.I.R. Ker 73

BOOKS REFERRED:

RK BHANGIA – LAW OF TORTS

CK TAKWANI – CODE OF CIVIL PROCEDURE, 1908

RATANLAL & DIRAJLAL – TORT LAW TEXT BOOK

ONLINE RESOURCES:

1. HEINONLINE

2. WESTLAW

3. MANUPATRA

4. LEXISNEXIS

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STATEMENT OF JURISDICTION

The Respondent humbly submits before the Hon’ble District of Visakhapatnam, the
memorandum for the Respondent in an appeal filed by Petitioner under Section 9 of CPC.
However, the Respondent seeks permission of this Hon’ble court to content the maintainability
of this suit. The present memorandum sets forth the facts, contentions and arguments in the
present case.

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STATEMENT OF FACTS

John is a very devoted uncle and a professional photographer working in a leading Company
which sells apparel for expecting mothers. He has three sisters and his second sister is a doctor
and she is working at one of the leading hospitals which is far away from his place. John had
recently received a raise for his performance at the company. He had purchased a brand new car
and he wanted to take his car to his office to show off to his colleagues after the purchase.

John had four signals on his commute to office every day. On his first signal, he passes by a
petrol bunk. On his second signal, he passes by a Govt hospital on the opposite side of the road.
The third signal is an extremely busy signal as there is a school and college near the same. Near
the fourth signal, there is a SS hospital on the same side of the road.He crossed the first signal
and immediately in front of him, he saw an accident, wherein the lady passenger of an auto was
thrown out on the road. The auto fled as soon as crowd started to gather.

John parked the car and got out to see if the lady was injured. He realized that the lady was
pregnant and was also his sister’s patient. He recognized her from one of his visits. He
immediately rushed to her side, picked her up and took her in his car to take her to the hospital.
He had tried calling his sister but her phone was unavailable. The lady was conscious at that
time.

The lady was Vinaya. After the IVF treatment performed by his sister, she was able to conceive.
Vinaya’s age is 43 so doctor advised to take bed rest as it her pregnancy to be a tough one. In
Fact, John had observed that vinaya had a sweet disposition. Meanwhile, john in a rush of panic
proceeded towards SS hospital. After that, he rushed through the 3rd signal as light was yellow
and another car with same intention of skipping the red light rushed and jammed into rear of
john’s car. He recovered soon and took the lady to the hospital. It was pronounced that vinaya
had given birth to a still born child.

At last, he informed his sister about the incident. She stated that he had done all what was there
to and she would inform him about vinaya’s condition. After few days,he received two notices
that two suits have been filed against him, one by lady and another by car owner for payment of
damages.

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ISSUES RAISED

ISSUE 1: WHETHER JOHN IS LIABLE TO PAY DAMAGES TO VINAYA OR

NOT?
ISSUE 2: WHETHER SUIT FILED BY CAR OWNER IS MAINTAINABLE OR
NOT?

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SUMMARY OF ARGUMENTS

1. JOHN IS NOT LIABLE TO PAY DAMAGES TO VINAYA

The defendant is not liable to pay damages to the vinaya because he has no legal duty to save
the pregnant lady even though the lady is known to him. But in a good faith he picked her up
and took her to the SS hospital as her condition is known to his sister and the hospital. John did it
with moral and he has taken due care towards her.

2. THE SUIT FILED BY THE CAR OWNER IS NOT MAINTAINABLE

The suit filed by the car owner in not maintainable because there is negligent act on part of
petitioner and he jammed into the rear side of the car. There is negligence on both the parties by
jumping the signals intentionally. So, the contributory negligence will be used to reduce the
damages

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“ARGUMENTS ADVANCED”

1. JOHN IS NOT LIABLE TO PAY DAMAGES TO VINAYA

The defendant is not liable to pay damages to the vinaya because he has no legal duty to save
the pregnant lady even though the lady is known to him. But in a good faith he picked her up
and took her to the SS hospital as her condition is known to his sister and the hospital. John did it
with moral obligation and he has taken due care towards her.

1.1 THE DEFENDANT ACT DOES NOT AMOUNT TO NEGLIGENCE

There is no negligence on the part of defendant. In order to prove the negligence there should
be a negligent act committed by the defendant. The duty of care which was actually followed by
the respondent. There is no breach of duty on the part of defendant. As advised, she has to take
bed rest in the later stages of her pregnancy Because her pregnancy was going to be a tough one.
So, the Damage was actually caused to the lady when she was thrown out of the auto. Even
the auto driver did not took her to the hospital and he ran away as soon as crowd started to
gather. The Defendant know that lady had lost consciousness. So, he is in a rush of panic and
proceeded towards SS hospital. In a process to save the pregnant lady his car got damaged and
incurred all the expenses. Instead, the lady has to pay the costs incurred by the defendant. Based
on the above lines, we clearly can say that the defendant act does not amount to the negligence.
In a case “National Insurance Company Ltd. V Kusuma and Ors1” Mrs. Kusuma,
Respondent No. 1 in this appeal, aged about 36 years, was travelling from Sullia to Puttur
collided with a Bus owned by Karnataka State Road Transport Corporation, Respondent No. 2
herein. Due to the impact of the accident, the claimant and Ors. sustained injuries. The claimant,
who was 30 weeks pregnant, suffered a fatal blow on the stomach. At the hospital, she gave

1. National Insurance Company Ltd. V Kusuma and Ors.,2011 SC 0972

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delivery to a still born baby. She filed a petition making a claim of ' 2,00,000/- with cost and
interest at 12%, towards the expenses incurred on medical treatment, mental shock, pain and loss
of child.

1.2 THE DEFENDANT IS NOT LIABLE FOR THE BIRTH OF PRE BORN CHILD

The defendant is not liable because even though he did not have a legal duty he performed his
duty well. After the accident, no one took the responsibility to take her to the hospital. But he
took the responsibility to save the pregnant lady and rushed towards the SS hospital. In the case
of “Haynes v. Harwood2” It is stated that “The right of the rescuer is an independent right and
is not derived from that of the victim”. It is not necessary that rescuer should be called for help or
the person in danger wants to be rescued.

In the another case “SaveLIFE Foundation & Anr. vs. Union of India & Anr., 20123”. It is
directed the Central Government to issue the Guidelines to protect Good Samaritans. In a
landmark move on 30th March 2016, the Supreme Court of India via Article 141 of the Indian
Constitution provided the ‘force of law’ to the said Guidelines issued by the Central Government
by making it legally binding on all States and Union Territories in India in effect, instituting a
Good Samaritan Law for India.

The defendant acted as a good Samaritan and saved the life of the lady and should not liable for
the act. If he would be held liable then there is no one in the world who cares about the accident
victims and no one involves in the duty of ors.

2. THE SUIT FILED BY THE CAR OWNER IS NOT MAINTAINABLE.

The suit filed by the car owner is not maintainable because there is negligence on the part of the
car driver. In the case of “Municipal Corpn. of Greater Bombay v. Laxman Iyer4” the
concept of contributory negligence was explained. It was stated that “ When an accident is due to

2
Haynes v. Harwood,1935
3
SaveLIFE Foundation & Anr. vs. Union of India & Anr., 2012
4
Municipal Corpn. of Greater Bombay v. Laxman Iyer, A.I.R. 2003 SC 4182

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the negligence of both, substantially there would be 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 exercise of reasonable care, have avoided the consequence
of other’s negligence.

2.1 THE DEFENDANT CAN TAKE THE DEFENCE OF CONTRIBUTORY

NEGLIGENCE

This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable
care of his own safety and that was a contributing fact to the harm suffered by the plaintiff.

It is mentioned in the facts that both the parties aware of the next signal i.e. red signal. The
defendant rushed through the third signal as the light was yellow. The petitioner with the same
intention of skipping the red light, rushed and jammed into rear side of defendant’s car. So, the
petitioner act led to the damage of both the cars. There is a negligent act on the part of petitioner
and The defendant cannot be held liable for the negligent act of the petitioner.

In the case of “Subhakar v. Mysore State Road Transport Corporation5”. In this case, the
court reduced the compensation payable to the extent the claimant was himself at fault. It is
related to the facts that petitioner was also done a negligent act and the damages payable to the
petitioner got reduced.

5
Subhakar v. Mysore State Road Transport Corporation A.I.R. Ker 73

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PRAYER

It is, therefore, most humbly prayed before this Hon’ble court to kindly dismiss this vexations
suit filed by petitioner along with costs & expenses and may be pleased to adjudge and declare
that:

1.This suit is not maintainable under the law

2. Respondent’s actions are Valid & Justifiable under the law.
3. These conditions raised by petitioner are misconceived and farfetched contentions which are
Bereft of any merit.

And/or pass such other order in light of justice, equity and good conscience which this Hon’ble
Court mat feel fit and proper in the circumstances of the case.

ALL OF WHICH ARE MOST HUMBLY PRAYED

S/d-
Counsel for respondent

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