7th NOVICE MOOT COURT COMPETITION, 2019 19LLB110

THE 7th NOVICE MOOT COURT COMPETITION, 2019

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

VISAKHAPATNAM

BEFORE THE DISTRICT COURT OF VISAKHAPATNAM

Vinaya And other …………………………………………………..……..(Petitioner)

v.

John……………………………………………………….…………..…..(Respondent)

Memorial for the Petitioner

(Counsel on behalf of petitioner)

 7th NOVICE MOOT COURT COMPETITION, 2019 19LLB110

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS…………………………………………….…………III

 INDEX OF AUTHORITIES…………………………………………………...……IV

Books…………………………………………………………………………………….IV

Websites……………..…………………………………………………………..….……IV

Table of Cases…………….…………………………………………………..……….IV
Statues..…………………………………………………………………………….…….IV

 STATEMENT OF JURISDICTION…………………………………………………V

 STATEMENT OF FACTS……………………………………………………...……VI

 STATEMENT OF ISSUES…………………………………………………….…VII

 SUMMARY OF ARGUMENTS……………………………………………VIII

 ARGUMENTS ADVANCED…………………………………………………..……01-04

 PRAYER……………………………………………………………………………..IX

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LIST OF ABBREVIATIONS

1. Asso………………………………………………………………..……….Association
2. &…………………………………………………………………….……………..And
3. Hon’ble…………………………………………………..………………..…Honorable
4. V………………………………………………………..……………………..…Versus
5. RY.………………………………………………………………….Railway
6. AIR………………………………………………………………......All India Reporter
7. Art…………………………………………………………………………...…...Article
8. Co……………………………………………………………………………..Company

9. Cop. …………………………………………………………………….Corporation

10. Pvt………………………………………………………………………..Private

11. Ltd……………………………………………………………………..Limited

12. SC……………………………………………………………………Supreme Court

13. HC………………………………………………………………….High Court

14. Ors……………………………………………………………..Others

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INDEX OF AUTHORITIES

BOOKS REFERRED

1. Tort by Winfield & Jolowicz

2. THE LAW OF TORTS, R&D, 24TH Edition
3. TAXMANN’S Law of Torts by Dr. Shivani Verma
4. CIVIL PROCEDURE with Limitation Act, 1963 by C.K. Takwani, Eighth edition.

WEBSITES

1. Westlaw
2. Manupatra
3. Legalservicesindia
4. Indiankanoon

TABLE OF CASES
1. Blyth v. Birmingham Waterworks Co. [1856] IIEX 781
2. Donoghue v. Stevenson 1932 AC 562 (HL)
3. Bourhill v. Young, (1943) A.C. 92, at 104
4. Glasgow Cop. V. Muir (1943) A.C. 448, at 457
5. Mysore State Road Transport Corporation v. Albert Disa AIR 1973 Mysore 240, at242
6. Municipal Cop. Of Delhi v. Subhagwanti, AIR 1966 SC 1750.
7. Smt. Mamta Devi and ors. V. BSES and ors. 2006 APJ 1257.
8. Hammack v. White. (1862) 11 CBNS 588: 31 LJCP 129.
9. Manzoni v. Douglas, (1880) 6QBD 145.
10. Kali Krishna Narain v. The Municipal Board Lucknow, (1942) QBD 773.
11. Heaven v. Pender, (1883) 11 QBD 503.
12. Pickford v. Imperial Chemical Industries, (1998) 3 AII ER 463 (HL), p. 472
13. Watt v. Thomas, (1947) AC 484 p. 487
14. Save Life Foundation V. Union of India.
15. Swan v. North British Australasian Co., (1862) 7 H&N 603.
16. Swami Nayudu v. Subramania, (1864) 2 MHC 158.
17. Poonam Sharma v. Union of India, AIR 2003 Delhi 50.
18. United India Insurance Co. Ltd. v. Union of India (2011) 4 ALD 465.

STATUTES

 The Code of Civil Procedure, 1908



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STATEMENT OF JURISDICTION

The counsel on behalf of plaintiffs has approached the Hon’ble Civil Judge Court under
Section 9 r/w Order 1 Rule 1 of Code of Civil Procedure, 1908.

Section 9 of the Code reads as under:

“The court shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.”
Order 1 Rule 1:
Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as
plaintiffs if the following condition satisfied:
“The right to relief alleged to exist in each plaintiff arises out of the same act or transaction.”

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STATEMENT OF FACTS

1.John a professional photographer working in leading Company. One of his three sisters is
doctor. He frequently visits the hospital where his sister works. Recently John purchased a new
car.
2. He had four traffic signals on commute to office every day. There is a Govt. hospital at
second signal, third signal is very busy and a super speciality hospital at fourth signal.
3.John was going to his office he crossed the first signal and saw an accident of a lady Vinaya.
4.John got out to see if the lady was injured. When he saw the lady, he realised that she is
pregnant and is also patient of her sister. He rushed to her side and took her in his car to take
her to hospital. The lady was conscious at that time. He had tried to call her sister.
5.John knows that her case is very critical because her case was frequently discussed at home.
6.John immediately proceeded towards the super speciality hospital. At the second signal, he
realised that Vinaya had lost consciousness; however, he stopped as the signal was red but he
didn`t go to govt. hospital which was on the opposite side of the road. 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. At the hospital, it was pronounced that Vinaya had given birth to still born
child.

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STATEMENT OF ISSUES

Issue1: Whether John`s act amounts to negligence?

1.1.There was existing duty of care.

1.2.The harm was foreseeable.
1.3.There was breach of duty.
1.4.He can not claim himself to be good Samaritan.

Issue 2: Whether there was damages?

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Summary of Arguments

1: That John’s act amounts to negligence.

John was negligent to take Vinaya hospital. He knows that her case is critical but he wasted
time negligently and not go to govt. hospital where he stopped on signal and saw that Vinaya
is going to unconscious, he was calling her sister while driving and driving negligently, jumped
red light. All these acts amount negligence towards Vinaya. While he was driving negligently
and rashly he tried to jump signal this act of John was negligent for car driver.

1.1: That there was existing duty of care.

Negligence is possible only if respondent owes a duty of care for plaintiff in this case John
owed a duty of care for both the parties. When he took Vinaya in her car he was neighbour of
Vinaya and owed duty of care to take her hospital without any negligence and while driving he
owes duty of care towards all the commuters so it is clear by facts that there exist duty of care
on part of John.
1.2: That the harm was foreseeable.
John heard about the case of Vinaya at his home and knows very well critical condition of her
so by his negligence the harm was foreseeable easily by common sense and he used to drive
car daily so he knows the consequences of rash driving. Negligent driving and jumping the red
signal. It is clear by facts that the harm suffered by Vinaya and other car driver was foreseeable
by common prudence.
1.3: That there was breach of duty.
While calling his sister consequently with driving he breached duty of care. When he stopped
second signal he didn’t go to govt. hospital he acted negligently and when he was driving
rashly, negligently and tried to jump red light caused accident and injury to Vinaya and other
car driver it means there was breach of duty by John.
1.4: That he can not claim himself Good Samaritan.
According to guidelines of supreme court for good samaritan you have to take injured person
to nearest hospital which John didn’t follow and he was rushing towards super speciality
hospital not due to criticality of road accident but he knows about the critical situation of her
pregnancy so he was not helping her as Good Samaritan. If any other person was there he would
have gone to govt. hospital.
2: That there was damages.
Due to John’s negligent act Vinaya lost her only child for which she wasted a lot of money in
IVF treatment. She faced physical damages and also mental damages which are direct
consequence of john’s act. The car driver suffered damages by negligent, rash driving and jump
red light. Damages are clear in this case.

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Argument advance

Issue1: That John`s act amounts to negligence?

“Negligence is the breach of duty caused by omission to do something which a reasonable

man guide by those consideration which ordinarily regulate the conduct of human affairs
would do or doing something which a reasonable man not do.”1 In this case john breached
duty of care to take Vinaya nearest hospital without any delay which a reasonable man do at
that time and by negligent and rash driving he breach duty of care towards another car driver
which a reasonable man not do. Actionable negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes the duty of observing
ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or
property. 2 John neglects duty of care or skill towards Vinaya and car driver and by his
negligent both suffered damages it means John’s act amounts to negligence. “In strict legal
analysis, negligence means more than heedless or careless conduct, whether in omission or
commission; it properly connotes the complex concept of duty, breach, and damage thereby
suffered by the person to whom the duty was owing.”3

1.1: There was existing duty of care.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer
seems to be, persons who are closely and directly affected by my act that I ought reasonably
to have them in contemplations as being so affected when I am directing my mind to the acts
or omissions which are called in question.” 4 In this case Vinaya and other car driver both
were John`s neighbour because his act and omission closely and directly affected Vinaya and
car driver both. Due to his act and omission Vinaya lost her child and car driver suffered
damages. In present case John was neighbour of both the parties it means there was existing
duty of care and john breached that duty by driving negligently and rashly and by not going
to nearest hospital. The existence of a duty situation or a duty to take care is thus essential
before a person can be held liable in negligence.5

1.2: The harm was foreseeable.

If at the time of the act or omission, the defendant could reasonably foresee injury to the
plaintiff, he owes the duty to prevent that injury and failure to do that makes him liable “Duty
to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do
which may have its reasonable and probable consequence injury to other and the duty is owed
to those to whom injury may reasonably and probably be anticipated if he duty is not
observed.”6 In present case John knows very well about critical condition of Vinaya`s case that

1
Blyth v. Birmingham Waterworks Co. [1856] IIEX 781.
2
Heaven v. Pender, (1883) 11 QBD 503; Swan v. North British Australasian Co., (1862) 7 H&N 603; Swami
Nayudu v. Subramania, (1864) 2 MHC 158 ; Nazir Abbas v. Raja Ajam Shah, 1947 ILRNag 955; D & F Estates
Ltd. v. Church Commissioners, (1988) 2 All ER 992 (HL) approving the dissenting opinion of LORD
BRANDON in Junior Books Ltd. v. Veitchi Co. Ltd., (1982) 3 All ER 201, pp. 216 to 218 : (1983) AC 520.
3
PER LORD WRIGHT in Lochgelly Iron and Coal Co. v. M. Mullan, (1934) AC 1, p. 25 : 149 LT 526 : 49
TLR 566; Poonam Sharma v. Union of India, AIR 2003 Delhi 50.
4
Donoghue v. Stevenson 1932 AC 562 (HL).
5
United India Insurance Co. Ltd. v. Union of India (2011) 4 ALD 465.
6
Bourhill v. Young, (1943) A.C.92, at 104, Per Lord Macmillan

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she had been child less or about seven years and finally after IVF treatment she was able to
conceive. Being reasonable and prudent he has to take her the nearest hospital and he had not
to drive negligently and rashly. Because in that situation it was foreseeable that if he would
waste time or any accident takes place then she would die or her child will face consequences.
He knows very well his any mistake or negligence will be harmful for Vinaya and her child by
his negligence Vinaya will suffer damages physically and mentally. While he was driving
negligently and rashly and tried to jump red lite harm was foreseeable by every reasonable and
prudent man. When at the second signal he saw that Vinaya is going to unconscious he had to
take her immediately to nearest govt. hospital which was other side of the road. Explaining the
standard of foresight of the reasonable man, Lord Macmillan observed, in Glasgow
Corporation v. Muir7. “The standard of foresight of reasonable man is, in one sense, an
impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of
the particular person whose conduct is in question. Some persons are by nature unduly
timorous and imagine every path beset with lions. Others, of more robust temperament, fail to
foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is
presumed to be free both from over apprehension and from overconfidence, but there is a sense
in which standard of care of the reasonable man involves in its application of subjective element
it is still left to the judge to decide what, in the circumstances of the particular case, the
reasonable man would have had in contemplation, and what, accordingly, the party sought to
be made liable ought to have foreseen. Here, there is room for diversity of views…..What to
one judge seem far fetched may seem to another both natural and probable.” John has
reasonable foresight and a prudent man to know the consequences of his act I can say it based
on facts that he is a professional photographer working in leading company and he had recently
received for his performance at the company. So if we apply all the facts on situation it is
crystal clear that John was able to foresee the consequences of his negligent and rash driving
and need of the time that Vinaya needed treatment as easily as possible because he knows the
criticality of Vinaya`s case. It is clear that he used to go to office daily from same route by his
car so he knew very well about traffic and all other difficulties which he faces on the way and
being a regular driver of car he has to know the consequences of negligent driving, rash driving
and jumping of red light.

1.3: There was breach of duty.

In first sub issue it was proved that John owed a duty of care for both the parties Vinaya and
other car driver. Another essential condition for the liability in Negligence is that the plaintiff
must prove that the defendant committed a breach of duty to take care or he failed to perform
that duty. “There is case in which a clock tower in the heart of Chandni Chowk, Delhi collapsed
causing death of a number of persons. The structure was 80 years old whereas its normal life
was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed
to take care and was liable.”8 In this case John has a duty to take Vinaya nearest hospital but
he didn`t do so he breached his duty and second he knows the criticality of her case so he had
to drive carefully but on second signal he tried to jump red light by which he jammed into
another car again breach of duty by John. So he is liable for breach of duty to take care Vinaya.
While he was driving on road he has a duty to drive slowly with care and not to jump red light
but he violate his duty. The kind of risk involved determines the precautions which the

7
(1943) A.C. 448, at 457
8
Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750.

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defendant is expected to take. The position in this regard was explained by Venkataramiah, J.
in Mysore State Road Transport Corporation v. Albert Disa as under9:
“Negligence is failure in the duty to take due care. The expression ‘due’ connotes that degree
of care which reasonable man ought to take in a given set of circumstances. What may amount
to ‘negligent’ act in a particular place and occasion may not be a negligent act in another place
or occasion. In deciding what care was called for by a particular situation, one useful test is to
enquire how obvious the risk must have been to an ordinary prudent man. The question in each
case, therefore, depends upon its own facts.” In this case it is clear that John owed a duty of
care and he knows his duty very well. In this case his duty is to take Vinaya nearest hospital
without any negligent act but he failed to do it and he also has duty to drive carefully and he
also failed in his duty so it is clear that there is breach of duty on John’s part.

1.4: He can not claim himself good Samaritan.

The important guidelines by SC in Save life foundation judgement, to be followed by hospitals,

police and all other authorities for protection of the Good Samaritan by:
Not holding the person liable for any civil and criminal liability; allowing the person (including
the eyewitness), who took the injured person to the nearest hospital, to immediately leave
(except after furnishing address by the eyewitness only), with no further question are to be
asked. So to be a good Samaritan John had to take Vinaya to the nearest hospital which he
missed due to his negligence. Buy these guidelines it is clear by the facts of this case that John
cannot claim himself good Samaritan because he didn`t follow the guidelines of supreme court.
And the second point he was not acting as a good Samaritan because if any other was there
instead of John he took the Vinaya to the govt. hospital first what John did he was driving
negligently and going towards super speciality hospital which was on fourth signal and he
knows very well that third signal is very busy and stopped on second signal where was a govt.
hospital but he didn`t go there because he knows something which he had no to know so he
was not a Good Samaritan.

Issue 2: Whether there was damages?

As a rule, the onus of proving negligence is on the plaintiff. He must show that he was injured
by an act or omission for which the defendant is in law responsible.10 Being a plaintiff I proved
before that there was duty of care which John owed and he breached his duty by omitting and
doing negligent act by his breach of duty Vinaya suffered damages mentally and physically
and other car driver also suffered. Vinaya who is going to give birth her only child at the age
of 43 after IVF treatment which is very costly and suffered mental trauma due to all these
damages which are direct consequences of John's negligent act. By his intention to jump the
red light and negligent driving he damaged plaintiff`s car badly and he suffered loss due to
John`s negligent act.
There must be proof of sum duty owed by the defendant to the plaintiff, some breach of that
duty and an injury to the plaintiff. 11 When John took Vinaya in his after her accident with auto
he owed a duty of care towards her. If anyone is driving a car on road he owes a duty of care
towards all the commuters so he owed a duty of care for that car driver. The question of burden

9
A.I.R 1973 Mysore 240, at 242.
10
Hammack v. White. (1862) 11 CBNS 588: 31 LJCP 129; Manzoni v. Douglas, (1880) 6QBD 145;
McKenzie v. Chilliwack Cop; (1812) AC 888; Kali Krishna Narain v. The Municipal Board Lucknow, (1942)
QBD 773.
11
Heaven v. Pender, (1883) 11 QBD 503 : 49 LT 357 ; Toomey v. London, Brighton and South Coast RY. Co.,
(1857) 3 CB NS 146.

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of proof as a determining factor does not arise at the end of the case except in so far as the court
is unable to come to a definite conclusion and the question arises as to which party has to suffer
from this.12

Smt. Mamta Devi and ors V. BSES and ors.13

Facts: The petitioners, mother, wife and children of late Harishchandra Jha filed a case of
negligence against the responded is BSES Rajdhani Power Limited, and the site in-charge at
the substation, 33 KVA. The deceased was an employee of Delhi Vidyut board when at the
time of installation of an electric panel, the unfortunate incident took place in which Harish
Chandra Jha died. The respondence were booked under negligence.
Held: The compensation was awarded by the court.
As in the above case respondent were booked under negligence because damages caused to
plaintiff due to respondent`s negligent act in this case the damages which Vinaya and car
driver is suffering caused by negligent act of John.

12
Watt v. Thomas, (1947) AC 484 p. 487; Pickford v. Imperial Chemical Industries, (1998) 3 AII ER 463 (HL),
p. 472
13
2006 APJ 1257.

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PRAYER

Wherefore, in the light of issues raised, submissions made and authorities cited, may this
Hon’ble Court be pleased to pass the following orders:

1. Damages of 20 lakh to Vinaya,

2. Damages of 5 lakh to other car driver,

And/or request the Court to pass any order it may deem fit, in the interest of Justice,
Equity and Good Conscience.
All of which is most humbly and respectfully submitted.

Counsel for the Petitioner