ALL INDIA MOOT COURT COMPETITION,2024 AICCML-22

BEFORE
THE HON’BLE APEX COURT OF VENGADAM

WRIT PETITION BY WAY ARTICLE 32 OF THE CONSTITUTION

&
TRANSFER PETITION BY WAY OF ARTICLE 139A OF THE CONSTITUTION

IN THE MATTER OF:

Bio-Med Care Co. & Others...................................................................................Appellants

Versus

Mrs. Lisa & Another..........................................................................................Respondents

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…..............................................................................3

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

STATEMENT OF JURISDICTION…....................................................................6

STATEMENT OF FACTS......................................................................................7-8

POINT OF ARGUMENT….....................................................................................9

SUMMARY OF ARGUMENTS.............................................................................10

ARGUMENTS ADVANCED..................................................................................11-22

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the........Consumer
Protection Act, 2019, and hence eligible to claim remedy from Bio-Med Care
Co.?..............................................................................................................................11-12

2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital soas to be
liable to compensate Mrs. Lisa?..................................................................................13-16

3. Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid?...........17-19

4. Whether the provisions that empower the Central Consumer Protection Authority toimpose
penalties on endorsers is Constitutionally valid?.......................................................20-22

PRAYER…................................................................................................................23

2
 LIST OF ABBREVIATIONS

1. AIR - All India Report

2. Consti- Constitution
3. &. - And
4. Anr. - Another
5. Art. - Article
6. Ors. - Orthers
7. Sec. - Section
8. SC - Supreme Court
9. SCC - Supreme Court Cases
10. SCR - Supreme Court Report
11. i.e - That is
12. u/s - Under Section
13. v. - Versus
14. Etc. – Etcetera
15. SOGA – Sale of Goods and Services Act,1930
16. ADR – Alternative Dispute Redressal Mechanism
17. NCDRD – National Consumer Disputes Redressal Commission
18. SCDRD- State Consumer Disputes Redressal Commission
19. CPA – Consumer Protection Act, 2019

3
 INDEX OF AUTHORITIES

Indian Cases:

1. Jayanta Dasgupta v. Binata Debnath and Another

2. Eastern Mining Contractors (P) Ltd. V. Premier Automobiles Ltd
3. G. McKenzie & Co. (1919) Ltd. v. Nagendra Nath Mahalanabish
4. Eternit Everest Ltd. V. C.G. Abraham
5. Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole
6. Jacob Mathew v. State of Punjab 2005 6 SCC 1
7. Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651
8. Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
9. Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)
10. Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S
Ahluwalia And Another
11. Mathai Alias Joby v. George And Another
12. V. Vasanthakumar vs H.C. Bhatia And Ors
13. Tata Press case (Yellow pages, SC AIR 1995 SC 2438)
14. Maneka Gandhi v. Union of India

4
Statutes Referred:
1. Consumer Protection Act,2019
2. Sale of Goods and Services Act,1930
3. Constitution of India, 1949
4. Mediation Act, 2023
5. The Constitution of India, 1950

Other authorities:
www.scconline.com
www.manupatrafast.com
www.casemine.com

5
 STATEMENT OF JURISDICTION

THE APPELLANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE

HON’BLE SUPREME COURT OF VENGADAM AS A TRANSFER PETITION
UNDER ARTICLE 139A1 OF THE CONSTITUTION AND WRIT PETITION UNDER
ARTICLE 322.

1
Constitution of Vengadam, Article 139A
2
Constitution of Vengadam Article 32
6
 STATEMENT OF FACTS

1. The Union of Vengadam, a South Asian country, is a union of 28 states. It has a

written Constitution and a federal democratic pattern of government. The total
population of Vengadam is more than 1.4 billion as per the recent statistics. The
country has a glorious tradition of public health, and there exists a Ministry of
Health Care at the Centre from 1947 onwards.

2. As per the Constitution of Vengadam, health is a ‘State’ subject, and hence, the
different state governments have taken several measures to ensure basic
healthcare facilities in their states. Moreover, since ancient times, there has been
an active involvement of private players in the healthcare sector. Together with
the initiatives of the Central Government, State Governments and private
players, the health sector in Vengadam has made enormous strides over the past
decades. As a result, the life expectancy of individuals in the country has crossed
70 years,

3. Over the years, Medical Tourism has flourished in the Union of Vengadam and
is rapidly developing as a ‘Healing Center of the world. It is estimated that every
year, approximately 3 million patients visit Vengadam from about 100 countries
in the world. As a result, Vengadam stands at number 5 in the Global Medical
Tourism Index.

4. The Union of Vengadam actively participates in almost all international

discussions and conferences relating to the protection of human rights, including
the rights of consumers. It was one of the first countries in the world to enact a
specific legislation for the protection of consumers, i.e., the Consumer Protection
Act, 1986, immediately after the adoption of Guidelines for the Protection of
Consumers by the United Nations in 1985.

The Consumer protection Act, 1986 has undergone several amendments, and
finally, it was replaced with the Consumer Protection Act, 2019 in order to
create a comprehensive framework for the protection of consumers in the
country. Though the provisions of the Act do not specifically include health
services under the purview of consumer service, the Hon’ble judiciary, through
7
interpretations, settled that a patient is a consumer and health services are
consumer services for the

8
 purpose of consumer protection laws.

5. In May 2022, Mr. Steve and Mrs. Lisa, an Irish couple, visited Union of
Vengadam. While travelling in the State, they have seen several big hoardings of
hospitals on the roadside as well as in popular tourist destinations. Mr. Steve and
Mrs. Lisa were attracted to the hoardings of Pillai’s Wellness Hospital as they
displayed the details of Liposuction surgery.

6. The hoardings of Mr. Tilak Varma portray that Pillai’s Wellness Hospital is the
best hospital in the country to carry out Liposuction surgery. Mrs. Lisa was
facing the problem of over fat in her hands and was suffering pain and
discomfort due to the same for the last two years.

7. Mr. Steve and Mrs. Lisa consulted Dr. Shivaraj, a cosmetic surgeon at Pillai’s
Wellness Hospital, to overcome the problem of over fat in Lisa’s arms. Dr.
Shivaraj suggested Liposuction surgery for the removal of over fat, and
accordingly, Mrs. Lisa was admitted to the hospital. On June 4 th, 2022, the said
surgery was completed. On 6th June, 2022, she started to have pain in her right
hand, and a color change was also noticed. On 8th June, 2022, it was identified
that the cause of pain in the right hand was ‘Necrosis’.

8. The Management of Pillai’s Wellness Hospital, constituted a medical team to

investigate about the unfortunate incident of Mrs. Lisa. The Medical team
identified that, the Dr. Shivaraj and his team performed the surgical procedure
with utmost care and caution and the surgical instruments used for the procedure
were of high quality. In Pillai’s Wellness Hospital, the sterilization of surgical
instruments was done with the help of various equipment supplied by Bio-Med
Care Co.

9. The technicians found that the equipment used for the sterilization of
instruments used for Liposuction surgery contained a manufacturing defect.

10. The pain in Mrs. Lisa’s hand was increasing day by day and they requested free
treatment from Pillai’s Wellness Hospital. However, the Hospital denied the
request for free treatment. Mr. Steve shifted Mrs. Lisa to another well-known
hospital in the same city. About a period of 6 months of treatment and suffering,
Mrs. Lisa’s condition was improved and she got discharged from the Hospital.

7
 POINT OF ARGUMENT

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med
Care Co.?

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital so
as to be liable to compensate Mrs. Lisa?

3. Whether the provisions conferring the right to appeal against an order issued by
the Commission based on the settlement in Mediation is Constitutionally valid?

4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers is Constitutionally valid?

9
 SUMMARY OF ARGUMENTS

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-
Med Care Co.?

It is humbly submitted before this Hon’ble Apex Court that Mrs. Lisa can be considered as
a Consumer under the purview of the Consumer Protection Act,2019 though she is a
foreign Citizen. But Mrs. Lisa is not eligible to claim remedy from Bio-Med Care as there
is an absence of privity of contract between the parties.

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital
so as to be liable to compensate Mrs. Lisa?

It is humbly submitted before this Hon’ble Apex Court that there is no deficiency in the
service on part of the Pillai’s Wellness Hospital as a well expertise medical practitioners performed
the surgery and it was completed and successful. Medical practitioners are liable to the extent of the
service provided. Hence, there contention is that there was no deficiency in service and Pillai’s
Wellness Hospital is not liable to compensate Mrs. Lisa.

3. Whether the provisions conferring the right to appeal against an order issued by
the Commission based on the settlement in Mediation is Constitutionally valid?

It is humbly submitted before this Hon’ble Court that Section 41 rwt Section 80 & 81 of th
CPA, 2019 prevents appeal against any order passed by DCDRD pursuant to a settlement
reached via mediation. The orders passed by the DCDRD, SCDRC and NCDRC goes
against the statute

4. Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers is Constitutionally valid?

It is humbly submitted before this Hon’ble Court that Mr. Tilak contends that the provisions
empowering the Central Consumer Protection Authority to impose penalties on endorsers are
unconstitutional.

10
 ARGUMENTS ADVANCED

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions

of the Consumer Protection Act, 2019, and hence eligible to claim remedy
from Bio-Med Care Co.?

It is humbly submitted before this Hon’ble Supreme Court of Vengadam that, Mrs.
Lisa canbe considered as a Consumerunderthepurviewofthe Consumer Protection Act, 2019
irrespective of her foreign nationality.

1.1 Interpretation of the term consumer

The term "CONSUMER" in reference to goods in specific under the Consumer
Protection Act, 2019
“means ‘any person’ who buys any goods 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 user of such
goods other than the person who buys such goods for consideration
paid or promised or partly paid or partly promised or under any
system of deferred payment when such use is made with the approval
of such person, but does not include a person who obtains such goods
for resale or for any commercial purpose.”

The above definition of ‘Consumer’ under the CPA,2019 states that ‘any person’ that
includes an Indian citizen or a Foreign citizen come under the purview of ‘Consumer’
under the act.
S. 2 (5) (I) provides that “complainant means a consumer” and the Chapeau of S. 2 (7) states
that “consumer means any person.”3 A conjoint reading of both these provisions entails that
a complainant could be any person that in terms of S. 2 (7) buys, hires or avails of any
services or goods for a consideration. The only bar in these provisions is that such hiring or
buying or availing of goods or services must not be for commercial purposes. It is also
important to understand that S. 2 (7) uses the term “any person” that may include both
natural as well as juristic persons such as companies or firms. 4 No express bar or distinction
in this regard has been made in the Act.

3
The Consumer Protection Act, 2019 s. 2 (7)
11
4
The Consumer Protection Act, 2019 s. 2 (5)

12
In order to fortify this observation, the case of Jayanta Dasgupta v. Binata Debnath and
Another5, would be opposite for perusal. In this case, the Complainant was a British Citizen
and despite existence of this fact, the National Consumer Disputes Redressal Commission
i.e., the Apex Body for deciding consumer disputes, entertained the Consumer Complaint
and awarded in favour of the Complainant who was a British Citizen. Though this case-law
does not deal with the locus of a foreigner to institute consumer complaints in express terms,
yet the very fact that such Complaint was allowed to be entertained goes on to show that the
National Consumer Disputes Redressal Commission did not think it necessary to have gone
into such question.
1.2 Privity of contract
The contention here us that there is an absence of privity of contract between the Mrs. Lisa
and Bio-Med Care Co. There is no direct relationship established between the parties.
In Eastern Mining Contractors (P) Ltd. V. Premier Automobiles Ltd. 6, the defective car has
been purchased through reliance on the judgment and skill of the dealer, and hence action
lay against him under Section 16(1) of the SOGA. Further, there was a breach of implied
condition of merchantability that grounded another cause of action under Section 16(2).
However, the manufacturer was not held to be strictly liable since the dealer was not found
to be his agent. No privity of contract existed between the customer and the manufacturer,
and he could not be implicated through the warranty approach. G. McKenzie & Co. (1919)
Ltd. v. Nagendra Nath Mahalanabish7, had also highlighted how two independent causes of
action for a customer who has suffered damages: one in tort against the product
manufacturer, and the other in contract against the seller. The reliance on contractual
dealings is further evinced when one views Eternit Everest Ltd. v. C.G. Abraham 8. Here, the
manufacturers of defective asbestos sheet were held liable under Section 16 of the SOGA
because the seller was held to be agent of manufacturers, thus establishing a clear
contractual linkage between manufacturer and consumer. Hence, Mrs. Lisa is considered a
consumer but the absence of privity of contract between the parties won’t hold the manufacturer
liable under the Consumer Protection Act, 2019.

5
2009 SCC OnLine NCDRC 55
6
Eastern Mining Contractors (P) Ltd. V. Premier Automobiles Ltd
7
G. McKenzie & Co. (1919) Ltd. v. Nagendra Nath Mahalanabish, 1945 50 C.W.N 213
8
Eternit Everest Ltd. v. C.G. Abraham AIR2003KER273, 2003(2)KLT907
13
2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital so
as to be liable to compensate Mrs. Lisa?

It is humbly submitted before this Hon’ble Court that there is no deficiency in the service
on part of the Pillai’s Wellness Hospital as a well expertise medical practitioners
performed the surgery and it was completed successful. Medical practitioners are liable to
the extent of the service provided.

2.1 Exercise of reasonable degree of skill and care

In the case of Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole9, reported in
AIR 1969 SC 12, the Hon’ble Supreme Court had held that:

The duties which a doctor owes to his patient are clear. A person who holds himself out
ready to give medical advice and treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person when consulted by a patient owes him
certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care
in deciding what treatment to give or a duty of care in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence to the patient. 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 requires10 (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17). The
doctor no doubt has a discretion in choosing treatment which he proposes to give to the
patient and such discretion is relatively ampler in cases of emergency.”
This Court in a landmark judgment in Jacob Mathew v. State of Punjab 2005 6 SCC 111
while dealing with the case of negligence by professionals also gave illustration of legal
profession. The Court observed as under: (SCC p. 18, para 18)
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others
are included in the category of persons professing some special skill or skilled persons
generally. Any task which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person possesses the requisite skill
for

9
AIR 1969 SC 12
10
Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17
14
11
Jacob Mathew v. State of Punjab 2005 6 SCC 1

15
 performing that task.
Any reasonable man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures the person dealing
with him that the skill which he professes to possess shall be exercised [and exercised]
with reasonable degree of care and caution.”
Reading the decisions of the courts of justice in line with the facts of the case it can be
clearly observed that team of medical personnel carried out the surgery with utmost care
and caution and the surgical instruments used for the procedure were of high quality12.
In the case of Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651 13, the
Court held that medical practitioners and hospitals/nursing homes are not immune from a
claim for damages on the ground of negligence and, therefore, they are not outside the
purview of the provisions of the Act. The Court also held that the composition of the
Consumer Disputes Redressal Agencies is suitable for adjudicating on issues arising in a
complaint regarding deficiency in service rendered by a medical practitioner.

In the case of Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004 14,
The Hon'ble Supreme Court held the respondent guilty of assault and battery amounting to
deficiency in service, and awarded Rs 25,000 as compensation for the unauthorized surgery
to the appellant and exempted the respondent from receiving any fee for the surgery.

In India, Bolam test has broadly been accepted as the general rule. Referring to Section 2(1)
(g) of the Consumer Protection Act, 2019, which defines 'deficiency' as any fault,
imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance of
a service. Bio med deficiency of service.

In case of Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012) 15 a consumer
complaint was filed by Sapient Corporation Employees Provident Fund Trust against HDFC
bank Ltd. The complainant claimed that OP-Bank has committed deficiency of services by
debiting the account of the Complainant. The court in this case held that there was no
deficiency of service on the part of OP-bank and the arguments contented by the complainant
are baseless.

12
Moot Proposition Paragraph 8
13
Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651

16
14
Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
15
Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)

17
A behaviour that conforms to the direction of regulatory authority cannot be said to
be negligence or service deficiency.

In general terms, Negligence is simply the failure to exercise due care. The three ingredients of
negligence are as follows:16
 The defendant owes a duty of care to the plaintiff.
 The defendant has breached this duty of care.
 The plaintiff has suffered an injury due to this breach.
Medical negligence is no different. It is only that in a medical negligence case, most often,
the doctor is the defendant. Failure of an operation and side effects are not negligence. The
term negligence is defined as the absence or lack of care that a reasonable person should
have taken in the circumstances of the case. 17 In the allegation of negligence in a case of
wrist drop, the following observations were made. Nothing has been mentioned in the
complaint or in the grounds of appeal about the type of care desired from the doctor in which
he failed. It is not said anywhere what type of negligence was done during the course of the
operation. Nerves may be cut down at the time of operation and mere cutting of a nerve does
not amount to negligence. It is not said that it has been deliberately done. To the contrary it
is also not said that the nerves were cut in the operation and it was not cut at the time of the
accident. No expert evidence whatsoever has been produced.
There is a medical negligence during the surgery part of it being the deficiency in service in
providing the treatment for the infection that arose out of the surgery.

2.2 When hospitals may not be held liable

Hospitals may not be held liable for medical negligence if the patient's condition
deteriorates despite the doctor performing their duties to the best of their ability and
with due care and caution.
Hospitals may not be held liable for medical negligence if the doctor has performed
their duties with due care, skill, and diligence and has followed the acceptable
standards of medical practice.
In Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And

16
supra 25
17
supra 25

18
Another18 The Supreme Court observed that “The true position is that an error of judgement
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 it is 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.” It thus includes persons who hire services as
well as beneficiaries of services.
Bureau of Indian Standards (BIS) Category 12 Entry 1 IS 10150:1981 guides for sterilization 19
also sets standards for sterilizing equipment and their maintenance which needs to be strictly
adhered to. Pillai Hospital has strictly adhered to.
Hence, Pillai’s Wellness Hospital won’t be considered liable as there was no deficiency in
service to compensate Mrs. Lis

18
Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And Another (1998
SCC 4 39, Supreme Court Of India, 1998
19
The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967 Sterilizer Category 12 Entry 1 IS
10150:1981 guides for sterilization

19
 3. Whether the provisions conferring the right to appeal against an order issued by
the Commission based on the settlement in Mediation is Constitutionally
valid?

It is humbly submitted before this Hon’ble Court that Section 41 r.w.t Section 80 & 81 of the
CPA, 2019 prevents appeal against any order passed by DCDRD pursuant to a settlement
reached via mediation. The orders passed by the DCDRD, SCDRC and NCDRC goes against
the statute.

The right to appeal against an order issued by the Commission based on the settlement in
Mediation raises a constitutional question in the Union of Vengadam. In the case of Pillai's
Wellness Hospital where a settlement was reached through mediation and an order was issued
by the District Commission Mrs. Lisa subsequently filed an appeal before the State
Commission challenging the order. The State Commission held the Hospital liable for
deficiency in service and ordered compensation which was reaffirmed by the National
Commission. Now Pillai's Wellness Hospital is appealing this decision to the Hon'ble Supreme
Court questioning the constitutionality of the provisions conferring the right to appeal in such
cases.

The issue at hand is whether the provisions allowing for an appeal against an order based on a
settlement in mediation are constitutionally valid. It is essential to analyze the legal framework
and precedents in the Union of Vengadam to determine the constitutionality of such provisions.

In the context of consumer protection laws and dispute resolution mechanisms the right to
appeal is a fundamental aspect of procedural fairness. However, the specific question of
whether an order based on a settlement in mediation can be subject to appeal raises complex
legal considerations. The principle of finality in settlement agreements is crucial for promoting
the efficiency of mediation processes and ensuring the enforceability of mediated settlements.

Therefore, the constitutional validity of the right to appeal against orders arising from
mediation settlements must be carefully evaluated in light of the overarching principles of
justice fairness and efficiency in dispute resolution mechanisms. The Hon'ble Supreme Court
of Vengadam will play a pivotal role in clarifying the legal standing of such provisions and
their compatibility with the constitutional framework of the country.

20
Undermines the purpose of mediation: As per the latest statistics available on the National Judicial

21
Data Grid20, impending cases before the District & Taluka Courts stand at over 40 million, the
backlog waiting to be heard at various High Courts is close to 5.9 million, and the pending case
inventory before the Hon’ble Supreme Court of India totals approximately 71,000.21

Such backlog of cases, and the emergent need to unburden the judicial system, are central
reasons for the Government and Courts to popularize Alternate Dispute Resolution
Mechanisms (“ADR”) in India. Among the other available methods employed under ADR, one
mechanism that stands out in terms of active participation of parties, in a non-adversarial
backdrop, is Mediation.

Mathai Alias Joby v. George And Another22

The Supreme Court had strayed from its original character as a Constitutional Court and
gradually converted itself into a mere court of appeal to correct every error it found in the
decisions of the 24 High Courts and numerous Tribunals subordinate to it.

Mediation is intended to provide a quicker and less adversarial alternative to litigation.23

Allowing appeals against mediated settlements defeats the purpose of mediation by
reintroducing elements of formal legal proceedings and prolonging the resolution process.
Allowing appeals from mediated settlements places an additional burden on the already
overburdened judicial system. This goes against the principles of judicial efficiency and
effective case management.

Chapter VI, Section 27 of the Mediation Act, 202324 further provides that the Agreement shall
be final and binding on the parties and enforceable in the same manner as if it were a judgment
or decree passed by a court and is open to challenge on the grounds of fraud, corruption,
impersonation or where the mediation was conducted in respect of disputes or matters unfit for
mediation.

The Constitution of Vengadam upholds the right to access justice and fair trial as fundamental
rights, with reference to Article 2125. Allowing appeals against mediated settlements
undermines these rights by potentially prolonging the resolution process and denying parties
the finality they seek through mediation. These are also principles of natural justice.

20
National Judicial Data Grid
21
https://main.sci.gov.in/statistics
22
Mathai Alias Joby v. George And Another, 2010 SCC 4 358; See also V. Vasanthakumar vs H.C. Bhatia
And Ors, AIRONLINE 2016 SC 328
22
23
Supra 14
24
Mediation Act, 2023, s. 27
25
The Constitution of India, 1950, Art 21

23
Mediated settlements are often reached with the understanding that they will be final and
binding. Allowing appeals against such settlements undermines public confidence in the
mediation process and discourages parties from engaging in good faith negotiations. The
settlement had already been reached and based on that the order by District Commission had
been passed.

Vengadam actively participates in international discussions on human rights and dispute

resolution mechanisms. Allowing appeals against mediated settlements may be inconsistent
with international best practices, which often promote the finality of mediated agreements.
India has signed the United Nations Convention on International Settlement Agreements
(UNISA)26 or Singapore Convention27.

24
26
United Nations Convention on International Settlement Agreements (UNISA)
27
Singapore Convention

25
4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers is Constitutionally valid?

It is humbly submitted before this Hon’ble Court that Mr. Tilak contends that the
provisions empowering the Central Consumer Protection Authority to impose penalties on
endorsers are unconstitutional.

We humbly submit that such provisions which puts restrictions on endorsements infringe
upon the freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution.28

Endorsing a product or service is a form of expression protected by the Constitution, and

penalizing endorsers for false or misleading claims violates their rights.

Pillai's Wellness Hospital further argues that the penalties imposed by the Central
Consumer Protection Authority are disproportionate and excessive, violating the principle
of proportionality under Article 14 of the Constitution.29

And it is contended that the authority should not have the power to impose penalties
without due process or the opportunity for a fair hearing.

The Hospital also raises concerns about the potential chilling effect on endorsers, who may
be discouraged from expressing their opinions or making claims about products or services
due to the fear of penalties.
The freedom of speech and expression protects opinion, although wholly irrelevant,
unpopular and unorthodox. It ensures to the minority and non-conformist an unimpaired
right to dissent and uninterruptedly to debate, discuss and discourse; and give his ideas a
free play. The state is not the guardian of the public mind; neither can it stifle opinion,
speech and writing. It must allow unrestricted flow of ideas and ideologies. It is none of its
duty to go out its way in affording protection to the minority opinion against any idea,
ideology or doctrine, even if it might be false and dangerous. The people must be given the
permission to differ, and to dissent. They should be left to find the truth themselves30.
It must permit citizen to express his thought or feeling through any medium of his choice

28
The Constitution of India, 1950, Art 19 (1)(a)
29
The Constitution of India, 1950, Art 14
30
Hamadard Dawakhana v.Union of India AIR 1960 SC 554
26
 by words of mouth, written words, visuals, device, a newspaper column, a film, or a
photograph. The media of expression include advertisement which is extra commercial
demonstration.31

This ruling by the Apex Court of the country goes to signify that people can express
their opinion which Mr. Tilak Varma has done while exercising due diligence. The
provision of imposition of penalties on endorsers goes against this decision of the Apex
Court which has safeguarded the constitutional freedom of speech and expression.

It is contended that this could have a detrimental impact on the advertising industry and
the economy as a whole. In the case of Tata Press case (Yellow pages, SC AIR 1995 SC
2438)32 The Hon’ble Supreme Court held that advertisement which comes under
commercial speech forms a component of the freedom of speech and expression which
is given under Article 19(1)(a)33 of the Constitution of India and it is subject to the
reasonable restrictions mentioned in clause (2) of Article 19. Article 19(2) 34 mentions
that for the interest of sovereignty and integrity of the nation, its security, its friendly
relations with other states, for maintaining public order, decency, morality, defamation,
incitement of offence Article 19 of the citizens are often restrained.

The endorsement has not violated any of the exceptions mentioned under Article 19 (2)
yet restrictions have been put on the endorsement and which violated the freedom of
speech and expression.

Bennett Coleman and Co. v. Union of India 35, the Supreme Court reaffirmed that
advertisements are essential for circulation of any newspapers and any restraint on
advertisements would affect the fundamental rights of propagation, publication and
circulation under Article 19 (1) (a).

4.2 Violation of Article 19 (1) (g)36 of the Constitution

In the case of Excel Wear v. Union of India (1978), the Supreme Court of India declared
Section 25-O of the Industrial Disputes Act, 1947, as unconstitutional and invalid because
it

31
Hamadard Dawakhana v.Union of India AIR 1960 SC 554
32
Tata Press case SC AIR 1995 SC 2438
33
The Constitution of India, 1950, Art 19 (1)(a)
34
The Constitution of India, 1950, Art 19 (2)
35
Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788: AIR 1973 SC 106
36
The Constitution of India, 1950, Art 19 (1)(g)
27
violated Article 19(1)(g) of the Constitution.
In the case of Maneka Gandhi v. Union of India37 the court established the “golden
triangle” or “trinity” principle, emphasizing the interrelationship of Articles 14, 19, and 21,
which should be read together to achieve the principles of natural justice.

It is pertinent to mention that in majority of the cases the endorsers are held liable and
penalised, which gives ride to a concern as to whether the of due diligence aspect of the
provision is taken into consideration or not. The provision currently in effect hampers the
freedom to trade and profession of the endorsers wherein the principle of strict liability
had been imposed and the endorsers are harassed by way of suits even in the absence of
fault.

A separate provision may be drafted in order to replace the current provision which is
strictly enforced against the endorsers which put a limited liability on the endorsers as well
as protect the rights of the endorsers against frivolous litigation.

28
37
Maneka Gandhi v. Union of India, 1978 AIR 597

29
 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsel on behalf of the Appellants humbly prays before this
Hon’ble Court that itmay be pleased to adjudge and declare that:

1. Mrs. Lisa is not eligible to claim remedy of ₹15 lakhs from Bio-Med Care Co.

2. There is no deficiency in service and hence Pillai’s Wellness Hospital so as

to be not liable to compensate Mrs. Lisa by paying her ₹5 lakhs.

3. The provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is not constitutionally
valid.

4. The provisions that empower the Central Consumer Protection Authority

to impose penalties on endorsers is not constitutionally valid.

and/or
Pass any other order, direction or relief that it may deem fit in the interest of justice,
equity,fairness and good conscience.

For this act of kindness, the Appellants shall duty bound forever pray.

S/d- COUNSELS for the APPELLANTS

30
31 24