Final Memo Submitted Print

CNLU FRESHER’S MOOT COURT COMPETITION, 2017
TEAM CODE
TEAM – P15
CODE –P15
1 FRESHERS’ MOOT COURT COMPETITION -2017
IN THE HON’BLE DISTRICT CONSUMER FORUM OF PATLIPUTRA
AT VIHAR
COMPLAINT NO. ****/2017
FOR EXERCISING PLAINT UNDER SEC. 11 OF CONSUMER PROTECTION ACT 1986
IN CASE CONCERNING
MR. VIKASH KAPOOR …………………….……………….………………PLAINTIFF
V.
DR. ANAND RASTOGI………………………………………………....DEFENDANT
MEMORIAL ON BEHALF OF PLAINTIFF
1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .......................................................................................................... II
LIST OF AUTHORITIES .............................................................................................................. III
STATEMENT OF JURISDICTION ............................................................................................... V
STATEMENTS OF FACTS ........................................................................................................... VI
ISSUES RAISED .......................................................................................................................... VIII
SUMMARY OF ARGUMENTS .................................................................................................... IX
ARGUMENTS ADVANCE ............................................................................................................... 1
1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE IN

CONSUMER COURT. ...................................................................................................................... 1
1.1 DISTRICT CONSUMER FORUM HAS THE JURISDICTION .......................................... 1

1.1.1 DISTRICT CONSUMER FORUM HAS THE PECUNIARY JURISDICTION. ............... 2
1.1.2. DISTRICT CONSUMER FORUM HAS THE TERRITORIAL JURISDICTION ........... 2
1.2 MR. VIKASH KAPOOR WAS A CONSUMER....................................................................... 2
1.3 DR. ANAND PROVIDED SERVICE TO MR. VIKASH. ........................................................ 3
2. DR. ANAND WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES. ........................ 5
2.1 BOLAM’S TEST IS APPLICABLE. ......................................................................................... 5

2.1.1 THE HEALTHCARE PROFESSIONAL OWED A DUTY OF CARE ........................... 5
2.1.2 THE HEALTHCARE PROFESSIONAL FAILED THAT DUTY................................... 5
2.1.3 THE RESULTING OF HARM WAS CAUSED BY THAT BREACH ............................ 6
2.1.4 THE PATIENT SUFFERED DAMAGE THAT WAS FORESEEABLE BY THE
HEALTHCARE PROFESSIONAL. ............................................................................................ 6
2.2 THE CONSENT GIVEN WAS NOT A PROPER CONSENT.................................................. 6
2.3 THERE WAS DEFICIENCY IN SERVICE BY DR. ANAND. ................................................. 7
2.4 CASE OF RES IPSA LOQUITOR ............................................................................................ 8
2.5 DR. ANAND IS VICARIOUSLY LIABLE. ......................................................................... 8
PRAYER ............................................................................................................................................. 9
i
LIST OF ABBREVIATIONS
COPRA Consumer Protection Act
AIR All India Reporter
Sec. Section
Oths. Others
Ano. Another
Hon’ble Honourable
SC Supreme Court
SCC Supreme Court Cases
v. Versus
ER English Reporter
www. World Wide Web
Q.B. Queen’s Bench
Ed. Edition
NC National Commission
HC High Court
AP Andhra Pradesh
SCW Supreme Court Weekly
WLR Weekly Law Report
Mad. Madras
ii
LIST OF AUTHORITIES
BOOKS REFEREED
Consumer Protection Act by Dr. Shrikant R. Komawar. AIR, Nagpur
Gurbax Singh, Digest of Consumer Protection Cases,(1st ed.).
Jonathan Herring, Medical Law, and Ethics, (4th ed., 2012)
M.N. Shukla, The Law of Torts and Consumer Protection Act, (18th ed., 2013).
Ratanlal and Dhirajlal, The Law of Torts, (26th ed. 2010).
R.K. Bangia, The Law of Torts,(23rd ed.,2013).
Sweet and Maxwell, Medical Negligence, (4th ed. 2008).
The Law of Torts 10th Edition, By A Lakshminath
Y. Venkateshwara Rao, Commentary on Consumer Protection Act, 1986, (2nd ed., 2009).
Cases
Subramanyam and Anr. v. Dr. B. Krishna Rao and Anr II, 1996 CPJ 233 NC ................................... 1
A.S mittal v. state of U.P. AIR 1989 SC 1570 ...................................................................................... 7
Achutrai haribhau khodwa v. state of maharastra AIR 1996 SC 2377................................................ 8
Allan v new mount sinai hospital (1980) 109 D.L.R. 3(d) ................................................................... 7
Aparna Dutt .V. Apollo Hospital Enterprises Ltd. (2002 ACJ 954 (Mad. HC). ................................ 8
Basant Seth V Regency Hospital O P No.99 of 1994 ........................................................................... 8
Bolam v friern hospital management committee (1957) 1 WLR 582 ................................................... 6
C.H. Padma v.sudha nursing home (2002) 1 CPJ 53 (AP .................................................................. 6
Cassidy v.ministry of health[1951] K.B. 343 at 362-365 .................................................................... 8
Chatterton v. gerson (1981) Q.B .......................................................................................................... 3
Cosmopolitan hospital v. vasantha p. nair 1992 (2) CPJ 302 (NCC) ................................................. 3
Dr. Subramanyam and Anr. vs. Dr. B. Krishna Rao and Anr II (1996) CPJ 233 (NC ........................ 1
Dr.kunal saha v.dr. Sukumar mukherjee (2006) 3 CPJ 142 (NCC) .................................................... 7
Gupta v. Bombay Hospital Trust and Another (2003) 2 CPJ 160) ...................................................... 8
Haigato v. london health association (1982) 36 Q.R. ......................................................................... 7
iii
In Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4 SCC 39] ............................................... 8
Indian medical asdociation v VP shantha & ors AIR 1996 SC 550. ............................................... 1, 3
Indian Medical Assoociation v VP Shantha & ors ,AIR 1996 SC 550................................................. 1
Jacob mathew v. state of punjab AIR 2005 SC 3180:2005AIR SCW 3685 :(2005) 6 SCC ................. 5
K Vishnu v national consumer dispute redressal commission & anor AIR 2000 AP 518. .................. 1
K Vishnu v National Consumer Dispute Redressal Commission & anor, AIR 2000 AP 518. ............. 1
Laxman Balkrishna Joshi v. Trimbak Bapu Godbole (AIR 1969 SC 128) ........................................... 6
Malaya kumar ganguly v.sukumar AIR 2010 SC 1162; 2010 AIR SCW 769 .................................. 5, 6
Roe v. ministry of health [1954] 2 Q.B. 66 at 82 ................................................................................. 8
Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC) ......................................... 7
Savita Garg v. Director, National Heart Institute, AIR 2004 SC 5088: 2004A AIR SCW 5820 ......... 5
iv
STATEMENT OF JURISDICTION
It is humbly submitted that the petitioners have approached the Hon’ble District consumer forum of
Patliputra invoking its jurisdiction under Sec. 11 of the Consumer Protection Act, 1986.
The present memorial sets forth the facts, contentions and Arguments in the present case.
v
STATEMENTS OF FACTS
I. BACKGROUND
Mr. Vikash Kapoor is a known person in village Patligram, who owns vast plots of land. He lives
with his wife, Sindhu Kapoor who is 62 years old. Dr. Anand was a renowned Doctor holding a
MBBS degree from DIIMS, the rank one medical college in the country and runs a nursing home
which has a panel of doctors who visits the nursing home on calls. Mrs. Sindhu once complained of
mild abdominal pain was taken to the nursing home of Dr. Anand Rastogi by her husband.
II. SERVICES PROVIDED BY DR. ANAND
Dr. Anand examined her and advised some tests which did not show any abnormality. After ten
days, she again complained of abdominal pain, Dr. Anand advised some tests which showed severe
acidity. On 21.06.2017, she complained about the pain, Dr. Anand after examining her called Dr.
Suman, a gynaecologist who performed (P/V) examination and found her cervix to be hard and
uterus to be retroverted and bulky and advised hysterectomy. Next day, Mr. Vikash signed the risk
bond and the operation was performed. On 29.06.2017, she was discharged and was advised post-
operative care. While getting discharged, she again complained of mild abdominal pain but was
discharged.
III. SECOND OPINION AND COMPLICATIONS
Dissatisfied with Dr. Anand, Mr. Vikash went to Dr. Malik who referred Sindhu to Dr. Chatterjee, a
laparoscopic surgeon at DIIMS, who after examining advised open surgery. On 01.07.2017, while
doing the surgery he found one-litre pus inside the abdominal cavity which was drained and also
found the intestine adhered to each other which could not be separated. Her condition worsened and
she was again operated on 05.07.2017. She was discharged on 15.07.2017. On 28.07.2017, she
complained of extreme abdominal pain and died even before she was taken to the hospital.
IV. FILING OF SUIT.
On 02.09.2017, Vikash Kapoor filed a complaint through his counsel in district consumer forum of
Patliputra alleging negligence and deficiency in services on part of Dr. Anand and sought Rs. 15
lakh for the same and Rs. 50000 as legal expense. An advance notice was sent to Dr. Anand and he
was asked to appear before the court. The complaint was listed before consumer court on
vi
10.09.2017 where Dr. Anand and prayed for dismissal of the complaint, however, forum admitted
the complaint and fixed 15.09.2017 for final hearing.
vii
ISSUES RAISED
I.
WHETHER THE COMPLAINT AGAINST DR. ANAND RASTOGI IS

MAINTAINABLE.
II.
WHETHER DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL

SERVICES.
viii
SUMMARY OF ARGUMENTS
1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE.
The complaint against Dr. Anand Rastogi is valid and maintainable in Consumer Forum as the
matter comes within the ambit of the same. The District Consumer Forum has the jurisdiction to
entertain the complaints where the value of goods and services and compensation, if any, claimed
does not exceed Rs. 20 lakh. Secondly the Nursing Home was located in the district of Patlipurtra
therefore the case is maintainable in the district consumer forum of Patliputra. Mr. Vikash availed
the services hence he will be considered as a consumer and the services rendered by the hospital
will be termed as services and will come under the ambit of COPRA, 1986. Services rendered by
Private medical professionals, Hospitals and nursing homes comes within the ambit of COPRA and
hence the case is maintainable in the Consumer Forum.
2. DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES.
Dr. Anand was negligent in providing medical services. According to the Bolam’s test there are 4
elements to claim damages in cases of negligence which are satisfied. Since the professional owed a
duty of care and failed to perform that duty which resulted in the harm and patient suffered damages
which were foreseeable. Dr. Anand being the owner of the Nursing Home is vicariously liable for
all the visiting doctor since the hospital authorities are responsible for whole of their staff no matter
whether they are permanent or temporary, residing or visiting, whole time or part time. The consent
given by Mr. Vikash was not a proper consent as the patient (his wife) was in a conscious state of
mind to sign the risk bond and even then the risk bond was signed by Mr. Vikash which made it
invalid. Failure to perform professional skills in the diagnosis of the patient results into negligence
and Dr. Anand did not examine Sindhu in the correct manner which led to her worsening situation.
Any complexity occurring after the operation of the patient after a reasonable time, the hospital
would be held liable.
ix
ARGUMENTS ADVANCE
1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE IN

CONSUMER COURT.
The counsel on behalf of Mr. Vikash Kapoor (hereinafter plaintiff) most humbly submits that the
panel action imposed on Dr. Anand is valid and maintainable. This matter comes within the ambit
of the District consumer forum of Patliputra. The definition of service under Sec. 2(1)(o)(d) of
COPRA 1986 cannot be read down to exclude legal practitioner from the purview of COPRA.
There is no quantitative difference between a medical practitioner and an advocate in this regard,
from his status, duties or regulatory control by a statutory body.1
All medical practitioners governed by Indian Medical Counsel Act and the Code of Conduct laid
down by medical counsel of India must still be deemed to be rendering service consideration, 2 there
is no reason why the medical practitioner should be excluded from the purview of the COPRA.3
The complaint against Dr. Anand is valid and maintainable as firstly, it comes under the jurisdiction
of District Consumer Forum(1) secondly, as per definition of consumer in COPRA, 1986 Mr.
Vikash was a consumer of Dr. Anand(2) and thirdly the medical were services provided by Dr.
Anand comes under the ambit of COPRA, 1986(3).
1.1 DISTRICT CONSUMER FORUM HAS THE JURISDICTION.

The counsel on behalf of plaintiff most humbly states that this matter comes within the ambit of
the District consumer forum of Patliputra. “District Forum” means a Consumer Disputes
Redressal Forum established under clause (a) of section 9 of Consumer Protection.
1
Indian Medical Assoociation v VP Shantha & ors ,AIR 1996 SC 550.
2
Dr. Subramanyam and Anr. v. Dr. B. Krishna Rao and Anr II, 1996 CPJ 233 NC.
3
K Vishnu v National Consumer Dispute Redressal Commission & anor, AIR 2000 AP 518.
1
1.1.1 DISTRICT CONSUMER FORUM HAS THE PECUNIARY JURISDICTION.
As per the provision of COPRA, the district forum shall have jurisdiction to entertain
complaints where the value of the goods or services and the compensation. If any,
claimed does not exceed rupees twenty lakhs.4
Mr. Vikash sought Rs. 15 lakh as compensation and Rs. 50,000 as legal expenses, which
comes within the jurisdiction of District Consumer Forum and is maintainable in forum.5
1.1.2. DISTRICT CONSUMER FORUM HAS THE TERRITORIAL JURISDICTION.
The jurisdiction of District Consumer Forum comes under Sec. 11 of COPRA, 1986. A
complaint shall be instituted in a District Forum within the local limits of whose
jurisdiction, at the time of the institution of the complaint, actually and voluntarily
resides, or carries on business or has a branch office personally works for gain.6
Since the nursing home of Dr. Anand was located in the district of Patliputra it definitely
comes under the ambit of district consumer forum and the case is maintainable in District
consumer forum of Patliputra.7
1.2 MR. VIKASH KAPOOR WAS A CONSUMER.
Sec. 2(1)(d) of COPRA defines “consumer” as any person who hires any services for a
consideration which has been paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any beneficiary of such services other than the person
who [hires or avails of] the services for consideration paid or promised, or partly paid and
partly promised, or under any system of deferred payment, when such services are availed of
with the approval of the first mentioned person. 8
The services rendered by the respondent hospital would fall within the ambit of “service” under
Sec. 2(1)(o) irrespective of the fact that the “service” is rendered free of charge to a person who
4
Sec.9(a) ,COPRA 1986.
5
Moot Problem Para 1, Page 1.
6
Sec. 11, COPRA 1986.
7
8
Sec.2(1)(d), COPRA 1986.
2
does not pay for such services. Free services would also be “service” and the recipient a
“consumer” under the act.9
It is humbly submitted that,Mr. Vikash was a consumer of Dr. Anand as he availed the services
from Dr. Anand also Dr. Anand only provided free services to poor people.10
1.3 DR. ANAND PROVIDED SERVICE TO MR. VIKASH.
Sec. 2(1)(o) of COPRA “service” means service of any description which is made available to
potential [users and includes, but not limited to, the provision of] facilities in connection with
banking, financing insurance, transport, processing, supply of electrical or other energy, board
or lodging or both, [housing construction,] entertainment, amusement or the purveying of news
or other information, "spurious goods and services" mean such goods and services which are
claimed to be genuine but they are actually not so.11
Services rendered by the private medical professionals, hospitals and nursing homes comes
within the ambit of COPRA and ruled that it will be totally wrong to exclude the services
rendered by a medical doctor to his patents, a personal service, coming within the exempted
category of service mentioned in Sec. 2(1)(o) COPRA.12 ‘Services’ includes the rendering of
consultation, diagnosis, and treatment both medical and surgical.13
In the landmark case of Indian Medical Association v V.P Shantha & Ors, judgement given by
Hon’ble Supreme Court of India stated that Services rendered at a government hospital, health
centre or dispensary where services are rendered on payment of charges, and also rendered free
of charge to other persons availing such services, falls within the purview of this act. Rendering
of free service also by such institutions to persons who do not pay is no more a ground for
seeking immunity from the scope of the act, and even the person availed the service can
maintain an action against such institution.14
Service rendered art a non Govt. Hospital/Nursing home where charges are required to be paid
by persons who are in a position to pay and persons who cannot afford to pay are rendered
service free of charge would fall within the ambit of the expression “service” as defined in Sec.
2(1)(o) of the act irrespective of the fact that the service is rendered free of charge to persons
9
COPRA 1986 pg 159.
10
11
Sec.2(1)(o), COPRA, 1986
12
Cosmopolitan hospital v. Vasantha P. Nair, 1992 (2) CPJ 302 (NCC).
13
Indian Medical Association v VP Shantha & ors, AIR 1996 SC 550.
14
Ibid
3
who are not in a position to pay for such services. Free services would also be service and the
recipients a “consumer” under the act.15
It is humbly submitted Dr. Anand also provides free services only to poor . Hence the nursing
home of Dr. Anand comes under the ambit of service as defined above and the case can be
successfully filed in consumer court.
15
Supra note 1.
4
2. DR. ANAND WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES.
The counsel on behalf of plaintiff most humbly submits that Dr. Anand was totally negligent in
rendering his service. It is humbly submitted, this is clear case of medical negligence and Dr. Anand
is liable to compensate Mr.Vikash.
To prove the negligence of a healthcare professional Bolam’s test emerged in the UK in

195716.Secondly, Consent , if not taken correctly will amount to negligence on the part of hospital
or nursing home. 17Thirdly, deficiency in medical services is nedligence from the hospital per
se.18Lastly, Hospital as the controlling authority is responsible for both torts- Negligence and
Medical negligence.19
2.1 BOLAM’S TEST IS APPLICABLE.
According to the test, there are 4 elements to claim damages in cases of negligence These are:
2.1.1 THE HEALTHCARE PROFESSIONAL OWED A DUTY OF CARE
‘The standard of duty of care in medical services may also be inferred after factoring in
position and stature of doctors concerned as an also hospital. The premium stature of
services available to patient certainly raises a legitimate expectation.20
It is humbly submitted that people living in the state trust Dr. Anand as he has completed
his MBBS from DIIMS, the rank one medical college in the state hence his duty of care
automatically increases.21
2.1.2 THE HEALTHCARE PROFESSIONAL FAILED THAT DUTY
‘The standard of duty of care in medical services may also be inferred after factoring in
position and stature of doctors concerned as an also hospital. The premium stature of
services available to patient certainly raises a legitimate expectation.22
16
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180:200 AIR SCW 3685 :2005 6 SCC 1.
17
Samira Kohli vs. Dr. Prabha Manchanda and Ors. I, 2008 CPJ 56 SC.
18
Bhagwati Devi v. J.M.G. Sonography Center and Anr., (2007) 2 CPJ 63 (NCC).
19
Savita Garg v. Director, National Heart Institute, AIR 2004 SC 5088: 2004A AIR SCW 5820
20
Malaya Kumar Ganguly v.Sukumar, AIR 2010 SC 1162; 2010 AIR SCW 769.
21
5
‘If care is required to be taken by a medical practitioner during surgery of a patient no
less of it is required during the postoperative period until the patient regains
normally.23Postoperative care must be done by a qualified doctor in the field’24
It is humbly submitted that Dr. Anand was negligent while prescribing the tests which
made the condition of Sindhu more worse and also, the post operative care was nt fully
given to her which was again a loophole in the service provided by Dr. Anand.25
2.1.3 THE RESULTING OF HARM WAS CAUSED BY THAT BREACH
After ten days of operations by Dr. Anand, one litre pus accumulated inside the
abdominal cavity of Sindhu and the intestine adhered to each other. It is clear that it was
due to the negligence in the operation and the post-operative care.26
2.1.4 THE PATIENT SUFFERED DAMAGE THAT WAS FORESEEABLE BY THE

HEALTHCARE PROFESSIONAL.27
Dr. Anand being an MBBS degree holder from DIIMS, the rank one college should have
known about the consequences of hysterotomy and also, while discharging Mrs. Sindhu,
when she complained of abdominal pain, Dr. Anand being an experienced doctor should
have admitted her back instead of discharging Mrs. Sindhu. Dr. Suman should have taken
the post operative care of Mrs. Sindhu, as a gyenocologist she posseses greater
knowledge and a greater degree of care would have taken by her.28
2.2 THE CONSENT GIVEN WAS NOT A PROPER CONSENT.
‘The consent should only be taken by the person who is been operated if he is in the position to
give consent and is in a conscious state of 1mind.29
It is humbly submitted that Sindhu was in a conscious state of mind to sign the risk bond but
the consent form was signed by Vikash Kapoor, her husband which makes the consent form
invalid and thus not being considered as a proper consent.30
22
Malaya Kumar Ganguly v.Sukumar, AIR 2010 SC 1162; 2010 AIR SCW 769.
23
Laxman Balkrishna Joshi v. Trimbak Bapu Godbole, AIR 1969 SC 128.
24
C.H. Padma v.Sudha Nursing Home, 2002 1 CPJ 53 AP.
25
Moot Problem Para 2,3 & 4, Page 1 & 2.
26
27
Bolam v Friern Hospital Management Committee, 1957 1 WLR 582.
28
29
Allan v New Mount Sinai Hospital, 1980 109 D.L.R. 3(d).
6
“Getting the patient to sign a pro forma expressing consent to undergo the operation ‘the effect
and nature of which has been explained and consented31 would be considered no defense to an
action based on trespass to the person if no explanation thereof has been given. 32 The consent
should be expressed in form only, nor in reality”.33
It is humbly submitted , Mr. Anand only signed the Risk Bound and no such explaination was
given about the operation and related complexities and hence defence can not be taken by Dr.
Anand.
2.3 THERE WAS DEFICIENCY IN SERVICE BY DR. ANAND.
The counsel on behalf of plaintiff most humbly submits that there was a deficiency in service
from Dr. Anand.
Dr. Anand did not examine Sindhu in the correct manner which led to her worsening situation.
According to the facts, Mrs. Sindhu complained of abdominal pain on 01-05-2017 and was
diagnosed incorrectly.34
No doubt, failure to use professional skills in the diagnosis of the patient results into
negligence. 35 Any complexity occurring after a reasonable time after the operation of the
36
patient, the hospital would be liable for negligence. It is the duty of the hospital to take
effective post-operative care of the patient and if it fails to do so, the hospital will be held
liable.37
It is humbly submitted that just after two days of discharge, one-litre pus was found in the
abdominal cavity of Sindhu and also her intestine adhered to each other which could not have
been separated. Hence, it was due to the negligent services provided by Dr. Anand that
Sindhu’s condition worsened.38
30
31
Haigato v. London Health Association, 1982 36 Q.R.1
32
Chatterton v. Gerson 1981 Q.B.
33
Samira Kohli vs. Dr. Prabha Manchanda and Ors. I, 2008 CPJ 56 SC.
34
Moot Problem Para 2,3 & 4, Page 1 & 2.
35
Dr. Kunal Saha v Sukumar mukherjee 2006, 3 CPJ 142 NCC.
36
A.S mittal v. state of U.P., AIR 1989 SC 1570.
37
Achutrai haribhau khodwa v. State of mahaAIR 1996 SC 2377.
38
Moot Problem Para 6 &7, Page 2 & 3.
7
2.4 CASE OF RES IPSA LOQUITOR
‘If some complexities arises just after the operation and it can be clearly stated from the
proposition that the operation was the cause of such injuries and damage, 39 then the hospital is
res ipsa loquitur liable for the injuries caused’.40
It is humbly submitted that Dr. Anand and his fellow doctors were negligent in performing the
operation. Only after 10 days of operation one litre pus was found inside the abdominal cavity
of Sindhu and also found the intestine adhered to each other, when entire circumstance of case
is taken into account it is clearly says that Dr. Anand and his Team were Negligent Prima
facie.41
It is humbly submitted that, Dr. Anand’s counsel prayed for his dismissal in limine for the
reason that the Plaintiff failed to pay Dr. Anand a single penny. It is no where pleaded by them
that there is no negligence on their behalf. 42
2.5 DR. ANAND IS VICARIOUSLY LIABLE.
The hospital authorities are responsible for the whole of their staff, not only nurses and doctors
but also for the anesthetists and the surgeons.43 It does not matter whether they are permanent
or temporary, residing or visiting, whole time or part-time. 44 The hospital authorities are
responsible for all of them. 45 The reason is that, even if they are not servants, they are the
agents of the hospital who have to give the right treatment. 46 The only exception is when the
panel of consultants or anesthetists selected are employed by the patient himself.47
It is humbly submitted that Dr. Anand had a panel of doctors, who visited the nursing home on
call, whenever needed, and hence comes within the ambit of the definition of vicarious liability
which makes Dr. Anand prima facie vicariously liable.48
39
Dr. G. Vivekananda Varma v. Chinta Bharamaramba & Ors., (2006) 3 CPJ 104 (106) (NCC).
40
Spring Meadows Hospital v. Harjol Ahluwalia, 1998 4 SCC 39.
41
Moot Problem, Para 7, Page 2&3.
42
Moot Problem, Para 11, Page 3.
43
Roe v. Ministry oFHealth 1954 Q.B. .
44
Basant Seth V Regency Hospital, O P No.99 of 1994 .
45
Cassidy v.Mnistry of Health, 1951 H.B.
46
Aparna Dutt .V. Apollo Hospital Enterprises Ltd., 2002 ACJ 954 Mad. HC.
47
Rekha Gupta v. Bombay Hospital Trust and Another, 2003 2 CPJ 160.
48
Moot Problem, Para1, Page1.
8
PRAYER
Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed and implored before the Hon’ble District Consumer Forum to adjudge
and declare –
 That the case is maintainable under Section 2 of COPRA 1986.

 That there were negligence and deficiency of service on the part of Dr. Anand.
And pass any other order or direction as the Hon’ble court deems fit in the interest of equity,
justice, and good conscience.
All of which is most humbly and respectfully submitted.
COUNSEL FOR THE PLAINTIFF
9

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CNLU FRESHER’S MOOT COURT COMPETITION, 2017

1 FRESHERS’ MOOT COURT COMPETITION -2017

IN THE HON’BLE DISTRICT CONSUMER FORUM OF PATLIPUTRA

COMPLAINT NO. ****/2017

FOR EXERCISING PLAINT UNDER SEC. 11 OF CONSUMER PROTECTION ACT 1986

MR. VIKASH KAPOOR …………………….……………….………………PLAINTIFF

DR. ANAND RASTOGI………………………………………………....DEFENDANT

MEMORIAL ON BEHALF OF PLAINTIFF

LIST OF ABBREVIATIONS .......................................................................................................... II

LIST OF AUTHORITIES .............................................................................................................. III

STATEMENT OF JURISDICTION ............................................................................................... V

STATEMENTS OF FACTS ........................................................................................................... VI

ISSUES RAISED .......................................................................................................................... VIII

SUMMARY OF ARGUMENTS .................................................................................................... IX

ARGUMENTS ADVANCE ............................................................................................................... 1

1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE IN

1.1 DISTRICT CONSUMER FORUM HAS THE JURISDICTION .......................................... 1

2. DR. ANAND WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES. ........................ 5

2.1 BOLAM’S TEST IS APPLICABLE. ......................................................................................... 5

COPRA Consumer Protection Act

AIR All India Reporter

SCC Supreme Court Cases

www. World Wide Web

Q.B. Queen’s Bench

SCW Supreme Court Weekly

WLR Weekly Law Report

Consumer Protection Act by Dr. Shrikant R. Komawar. AIR, Nagpur

Gurbax Singh, Digest of Consumer Protection Cases,(1st ed.).

Jonathan Herring, Medical Law, and Ethics, (4th ed., 2012)

Ratanlal and Dhirajlal, The Law of Torts, (26th ed. 2010).

R.K. Bangia, The Law of Torts,(23rd ed.,2013).

Sweet and Maxwell, Medical Negligence, (4th ed. 2008).

The Law of Torts 10th Edition, By A Lakshminath

II. SERVICES PROVIDED BY DR. ANAND

III. SECOND OPINION AND COMPLICATIONS

IV. FILING OF SUIT.

WHETHER THE COMPLAINT AGAINST DR. ANAND RASTOGI IS

WHETHER DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL

1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE.

2. DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES.

1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE IN

1.1 DISTRICT CONSUMER FORUM HAS THE JURISDICTION.

1.1.1 DISTRICT CONSUMER FORUM HAS THE PECUNIARY JURISDICTION.

1.1.2. DISTRICT CONSUMER FORUM HAS THE TERRITORIAL JURISDICTION.

1.2 MR. VIKASH KAPOOR WAS A CONSUMER.

1.3 DR. ANAND PROVIDED SERVICE TO MR. VIKASH.

2. DR. ANAND WAS NEGLIGENT IN PROVIDING MEDICAL SERVICES.

To prove the negligence of a healthcare professional Bolam’s test emerged in the UK in

2.1 BOLAM’S TEST IS APPLICABLE.

2.1.1 THE HEALTHCARE PROFESSIONAL OWED A DUTY OF CARE

2.1.2 THE HEALTHCARE PROFESSIONAL FAILED THAT DUTY

2.1.3 THE RESULTING OF HARM WAS CAUSED BY THAT BREACH

2.1.4 THE PATIENT SUFFERED DAMAGE THAT WAS FORESEEABLE BY THE

2.2 THE CONSENT GIVEN WAS NOT A PROPER CONSENT.

2.3 THERE WAS DEFICIENCY IN SERVICE BY DR. ANAND.

2.4 CASE OF RES IPSA LOQUITOR

2.5 DR. ANAND IS VICARIOUSLY LIABLE.

 That the case is maintainable under Section 2 of COPRA 1986.

All of which is most humbly and respectfully submitted.