TEAM CODE- BG 51

34TH BCI TRUST INTER UNIVERSITY MOOT COURT COMPETITION, 2017

IN THE HONOURABLE SUPREME COURT OF ZINDIA

SPECIAL LEAVE PETITION

UNDER ARTICLE 136 OF THE CONSTITUTION OF ZINDIA

SLP (CIVIL) No. _____ OF 2017

IN THE MATTER OF

Mr. OKUR SEN............................................................................................................APPELLANT

VERSUS

STATE OF TUJARAT...................................................................................RESPONDENT NO. 1

SPICE GALLORE HOSPITAL……………......……………………..........RESPONDENT NO. 2

UPON SUBMISSION TO THE HON'BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES IN THE SUPREME COURT OF ZINDIA

WRITTEN SUBMISSION OF BEHALF OF THE APPELLANT

 34TH BCI TRUST ALL INDIA INTER UNIVERSITY MOOT COURT COMPETITION

TABLE OF CONTENTS

Table Of Contents ............................................................................................................................... II

Index Of Authorities ........................................................................................................................... V

Statement Of Jurisdiction ...................................................................................................................IX

Statement Of Facts .............................................................................................................................. X

Issues Raised ......................................................................................................................................XI

Summary Of Arguments .................................................................................................................. XII

Arguments Advanced ........................................................................................................................... 1

1. THE APPEAL IS MAINTAINABLE IN THE SUPREME COURT OF ZINDIA. ............. 1

1.1 The Special Leave jurisdiction can always be exercised by Supreme Court against any
order of lower Court or Tribunal. ................................................................................................. 1

1.2 The matter is of general public importance. ........................................................................... 1

II. THE HOSPITAL AND THE STATE IS RESPONSIBLE FOR THE DAMAGES
CAUSED TO THE WIFE OF THE APPELLANT .................................................................... 2

2.1 There has been an occurrence of Breach of Contact u/s 73 of Indian Contract Act,1872 ...... 2

2.2 Doctor acted in a Negligent Manner ....................................................................................... 2

2.3 State is also held vicariously liable for the negligence caused by the Respondent no. 2 ....... 3

III. THE RESPONDENT NO.1 AND 2 ARE LIABLE TO PAY COMPENSATION TO

THE APPELLANT. ....................................................................................................................... 4

3.1 The respondents are liable to pay compensation for the breach of contract. .......................... 4

3.2 Compensation should be paid for the physical inconvenience and mental agony caused to
the Appellant and his wife due to the callous and negligent acts of the hospital. ........................ 4

3.3 Compensation for bringing up of disable child ...................................................................... 5

Prayer ................................................................................................................................................... 1

II

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TABLE OF ABBREVIATIONS

List of abbreviations Explanations

& And
§ Hieroglyph
¶ Paragraph
¶¶ Paragraphs
AC Appeal Cases (England)
ACJ Administrative Civil Judge
AIHW All India High Court
AIR All India Review
ALL ER All England Reports
Anr Another
Art. Article
Bom Bombay
Bom LR Bombay Law Review
Co. Company
Edn. Edition
Ex Exempli gratia
HC High Court
Ibid Ibidem
JT Judgment Today
LPA Letter Patents Appeal
Ltd. Limited
LW Law Review
Mad. Madras
Mfg. Manufacturer
NCT National Capital Territory
No. Number
Ors Others

III

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QB Queen's Bench
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Review
Sec. Section
Secy. Secretary
UK United Kingdom
v. Versus
Vol. Volume
Vs. Versus
WLR Weekly Law Reports

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INDEX OF AUTHORITIES
JUDGEMENTS OF HON’BLE SUPREME COURT OF ZINDIA

S. NAME OF THE CASE CITATION PARAGRAPH PAGE

NO. NO.
Achutrao Haribhau Khodwa & amp;
1. (1996) SCC 2 634. ¶ 10 3
Ors. v. State of Maharashtra
Balakrishna v. Rmaswami
2. AIR 1965 SC 195 ¶4 2

3. C.C.E v. Standard Motor Products AIR 1989 SC 1298 ¶3 1

Cholan Roadways Ltd. v. G.
4. AIR 2005 SC 570 ¶5 2
Thirugnana sambandam
Ganga Kumar Srivastava v. State of
5. (2005) 6 SCC 211 ¶5 2
Bihar
Haryana State Industrial Corpn. v.
6. (2007) 8 SCC 359 ¶3 1
Cork Mfg. Co.
7.. Jagdish v. Natthu AIR 1992 SC 1604 ¶ 12 4
Janshed Hormusji Wadia v. Board
8.. (2004) 3 SCC 214 ¶3 1
of Trustees, Port of Mumbai
9. Keith Allenby v. H. (2013) 2 SCC 1 ¶ 14 4
Kunhayammed v. State of Orissa (2000) 6 SCC 359.
10. ¶2 1
Laxman Balkrishna Joshi v. Trimbak
11. AIR 1969 SC 128 ¶8 3
Bapu Godbole And Anr.
Narendra Rao & amp; co. v. State of
12. AIR 1994 SC 2663 ¶ 13 3
Andhra Pradesh
Narpat Singh v. Jaipur Development
13. AIR 2002 SC 2036 ¶2 1
Authority
Paschim Bangal Khet Mazdoor
14. (1995) 6 SCC 213 ¶4 2
Samity v. State of West Bengal
15. Pawan Kumar v. State of Haryana (2003) 11 SCC 241 ¶3 1
16. Pritam Singh v. State AIR 1950 SC169 ¶3 2
17. State of Haryana v. Santra (2000) 5 SCC 182 ¶ 10 3
State of Maharashtra & ors v.
18. Kanchanmala Vijay Singh Shrike & JT 1995 SC 155 ¶ 10 3
ors.
19. State of Punjab v. Rafiq Masih (2014) 8 SCC 883 ¶2 1
State of Punjab v. Shiv Ram
20. (2005) 7 SCC 1 ¶6 2
State of Rajasthan v. Mst. Vidhyawati
21. AIR 1962 SC 933. ¶7 3
and Anr.
Zahira Habibullah Sheikh v. State of
22. AIR 2004 SC 3467 ¶8 1
Gujarat

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HIGH COURT JUDGMENTS

S. NAME OF THE CASE CITATION PARAGRAPH PAGE

NO. NO.
1 Fulladevi v. state of Haryana and Ors (2004) 136 PLR
¶ 12 4
391
2 Kanagavalli v. Secy of Government AIR 2009
¶2 4
department of Health Madras 1259
3 Lal Bahadur Shastri Hospital v. Smt LPA 72/2012
¶ 12 4
Daya & Anr.
4 Philips India Ltd. v. Kunju Punnu and AIR 1975 Bom 306
¶8 3
anr.
5. Pillamma v. P. Rangaraju 1996 Kar, 140 ¶ 16 4
6. Shobha and Kailash Chand v. Govt. of 2004 ACJ 1479
¶ 14 5
NCT of Delhi and anr.
7. State of Kerala v P.G. Kumari AIHC (2010) Ker,
¶ 21 4
242
8. Sumathi v. Dr.Suganthi (2014) 8 MLJ 728 ¶ 12 4

FOREIGN JUDGMENTS

S L. NAME OF THE CASE CITATION PARAGRAPH PAGE

NO. NO.
1. Allan v. Greater Glasglow Health (1993) 1998 SLT
¶2, 13 1, 5
Board 580
2. Allen v. Bloomsbury Health Authority [1993] 1 All ER 651 ¶ 16 5
3. Angela Parkinson v. St James And (2002) QB 266
¶6 2, 4
Seacroft University Hospital NHS Trust
4. Crouchman v. Burke (1997) 40 BMLR
¶ 10 3
163
5. Grant v. Australian Knitting Mills Ltd (1936) AC 85 (103) ¶ 10 2
6. Love lace Medical Centre v. Mendez , (1991) 805 P 2d
¶ 13 4
1084
7. Natal v. Edouard 1990 (3) SA 581 ¶ 16 5
8. Parkinson v. St. James and Seacroft [2002] QB 266
¶ 13 5
Hospital, NMS trust
9. Robinson v. [1992] 3 Med LR
¶9 3
Salford Health Authority 270, Administrator
10. Thake v. Morris (1986) 1 All ER 497
¶ 10 2
(CA)
11. Udale v. Bloomsbery Area Health [1983]2 All ER 522
¶ 14 5
Authority

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BOOKS REFERRED

SL NO. TITLE

1 D.D Basu, Commentary on the Constitution of India (9th ed.,

2014).
2 P.Senguttuvam, Supreme Court on words and Phrases (2nd ed., 2008).

3 Samaraditya Pal, India's constitution, origin and evolution (vol.

6,2016).
4 Arindam Mitra, Law of Specific Relief (2nd ed, 2010).

5 Jagadish Swaroop, constitution of India (2nd ed, vol. 2, 2007).

6 Pollock and Mulla, The Indian Contract and Specific relief acts (14th
ed., vol. 1& 2, 2013).
7 Lord Hailsham, Halsbury's Laws of England, (4th ed., vol. 12, 1989).

8 Shaw, v. Padubidri& N. Daftar, Textbook of Gynaecology edited by

V. Padubidri& N. Daftar (11th ed. 2010).

NEWSPAPER

NAME PARAGRAPH PAGE

NO.
Clare Dyer, £1.3m damages for sterilization that failed, The ¶16, 17 5
Guardian (26/11/1999)

TABLE OF STATUTES

Constitution of Zindia, 1950

Specific Relief Act, 1963
Zindian Contract Act, 1872
Medical Termination of Pregnancy Act, 1971

WEB SOURCES

www.jstor.org (Jstor)
www.scconline.com (SCC Online)
www.manupatrafast.com (manupatra)

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VIII

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STATEMENT OF JURISDICTION

The Appellant humbly submits this Special Leave Petition before the Hon'ble Supreme Court of
Zindia under article 136 of the constitution of Zindia.

Article 136 reads hereunder-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

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STATEMENT OF FACTS

Background

1. In 2012 the Government of Zindia launched a National Population Policy to control the population
explosion by reducing the birth rate. Under the Policy one of the measures taken by the Government
was to designate a government hospital in each district for encouraging and promoting the people to
undergo vasectomy and tubectomy.

Incident of Jurat

2. In the city of Jurat in State of Tujarat, Spice Galore Hospital was designated for the said purpose.

3. Mr.OkurSen and his wife, Mehant was not interested in having another child after one son and
the later agreed to tubectomy operation in the above mentioned hospital on 8th February 2013

4. The couple entered into a contract with the hospital in which few terms were as follows- That
100 % success was assured in the sterilization operation and the hospital would be liable for damages
for any injury caused to the mother during the operation.

5. Soon Mehant has become pregnant and later gave birth to a disabled girl child on 20th January
2014.

6. On 03rd February 2014, Mr.OkurSen filed a civil suit in the District Court seeking damages for
the unwanted pregnancy, mental pain and the cost of upbringing the disabled child till her puberty
and later her marriage.

7. The lower court rejected his claims and ruled in the favour of the hospital. On appeal the High
Court of Tujarat upheld the decision of the lower court.

Epilogue

8. Aggrieved by the decision of the High Court, the claimant approached the Supreme Court under
Article 136 of the Constitution of Zindia where a 3-Judge bench granted leave to appeal and initially
heard the matter but it was felt that the matter raises questions of public importance and therefore it
was posted to be heard by a 5 Judge Bench on September 07, 2014.

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ISSUES RAISED

ISSUE 1:

WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE

HON'BLE SUPREME COURT OF ZINDIA?

ISSUE 2:

WHETHER THE STATE AND THE HOSPITAL IS RESPONSIBLE FOR THE MENTAL
AGONY AND DAMAGES CAUSED TO THE APPELLANT AND HIS WIFE?

ISSUE 3:

WHETHER THE STATE OF TUJARAT AND THE SPICE GALLORE HOSPITAL ARE
LIABLE TO PAY DAMAGES TO THE APPELLANT?

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SUMMARY OF ARGUMENTS

I. THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE

HON'BLE SUPREME COURT OF INDIA

It is humbly sheweth in the Hon’ble Supreme Court that the present appeal filed by way of a special
leave petition by the Appellant against the impugned order/judgment of the Hon'ble High Court of
Tujarat is maintainable before in the Hon’ble Supreme Court of Zindia under Article 136 of the
Constitution. Firstly, under SLP jurisdiction SC can take appeal against any order, judgement, decree,
determination. Secondly, a substantial question of law of general public importance has been raised
through the institution of this present appeal.

II THE RESPONDENT NO.1 AND 2 ARE RESPONSIBLE FOR THE MENTAL AGONY
AND DAMAGE CAUSED TO THE APPELLANT AND HIS WIFE.

It is humbly sheweth before the Hon'ble Supreme Court that the State and the Hospital is liable for
the damages caused to the Appellant. Firstly, the hospital has breached the contract entered by and
between the Appellant and the Respondent no 2. under sec.73 of the Indian Contract Act,1872.
Secondly, the hospital has been negligent towards the Appellant. Thirdly, the state is held to be
vicariously liable for the negligence.

III. THE RESPONDENT NO.1 AND 2 ARE LIABLE TO PAY DAMAGES TO THE
APPELLANT.

It is humbly sheweth before the Hon'ble Supreme court of India that the State of Tujarat and the
hospital is liable to pay compensation to the appellant. Firstly, they are liable under section 21 of the
Specific Relief Act. Secondly, there has been a breach of duty on the part of the hospital. Thirdly,
damages should be paid to the Appellant for breach of contract and the mental pain caused to the
Appellant and wife due to the breach of the contract and/or the acts of respondent no.2 which resulted
into pregnancy of wife of the Appellant, the delivery of a disabled child and the cost of bringing up
the disabled child.

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ARGUMENTS ADVANCED
1. THE APPEAL IS MAINTAINABLE IN THE SUPREME COURT OF ZINDIA.
¶1. It is humbly sheweth that this Special Leave Petition is maintainable before the Hon'ble Supreme
Court of Zindia.
1.1 The Special Leave jurisdiction can always be exercised by Supreme Court against any
order of lower Court or Tribunal.
¶2. It is the established law by the constitution as well as the Hon’ble Apex Court that the special
leave can be granted against any order of the high court or any other tribunal. It is a sweeping power,
exercisable outside the purview of ordinary law to meet the pressing demands of justice 1 . The
Supreme Court has characterised its power under Art. 136 as “an untrammelled reservoir of power
incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court
being subjected to only one limitation, that is, the wisdom and good sense of justice of the Judges” 2.
It only confers a discretionary power of widest amplitude on this Court to be exercised for satisfying
the demands of justice. The abovementioned view has been taken by the court in the number of cases3.
The Hon’ble Court in the case of State of Punjab v. Rafiq Masih4 has clearly stated that Art. 136 vests
a plenary jurisdiction in the Supreme Court in the matter of entertaining and hearing of appeals by
granting special leave against any judgement or order appeals by granting special leave against any
judgement or order made by a court or tribunal in any cause or matter.
1.2 The matter is of general public importance.
¶3. It is humbly sheweth before the Hon'ble Court that the jurisdiction conferred under Art. 136 on
the Supreme Court are corrective one and not a restrictive one5 as a 'substantial' question of law is
involved6 where duty is enjoined upon the Supreme Court to exercise its power by setting right the
illegality in the judgments7 failure of which would amount to allowing the illegality to be perpetuated8
and the jurisdiction of SC can always be invoked by filing special leave petition.9
¶4. In the case at hand, sterilisation was done in government hospital under the policy containing
public importance which proved to be a failure within less than 3 months, and resulted in the birth of
disabled child which was well within reasonable foreseeability. Hence, the matter concerned is of

1
M.P Jain, Indian Constitutional Law (6 ed. Lexis Nexis, Gurgaon 2014) p 315.
th

2
Kunhayammed v. State of Orissa, (2000) 6 SCC 359.
3
Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666.
4
(2014) 8 SCC 883.
5
Haryana State Industrial Corpn. v. Cork Mfg. Co. (2007) 8 SCC 359.
6
ibid.
7
Janshed Hormus ji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.
8
Pawan Kumar v State of Haryana (2003)11 SCC 241; see also H.M. Seervai, Constitutional Law of India (4th edn. Vol
1 2010); see also Halsbury’s Laws of India (Vol. 35 2007).
9
C.C.E v Standard Motor Products AIR 1989 SC 1298, see also H.M. Seervai, Constitutional Law of India (4th edn.
Vol 2 2010).
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great public importance and the same is reiterated by the divisional bench of the Supreme Court.10 In
the case of Paschim Bangal Khet Mazdoor Samity v. State of West Bengal11 the SC has held that
failure by a government hospital to provide proper medical treatment to needy person violates his
right to life guaranteed under art. 21.
¶5. In arguendo even if it is assumed that the case doesn’t involve ‘substantial’ question of law, SC
in the exercise of its power conferred under art.136 which uses the wording ‘in any cause or matter’.
This gives widest power to this court to deal with any cause or matter, even if it involves question of
fact12 and can be the subject matter of judicial review.13 Apart from that it is also to be note that there
doesn’t comes the question on maintainability as 3 judges bench has already granted the leave and
referred the matter for further hearing to 5 judges bench.
II. THE HOSPITAL AND THE STATE IS RESPONSIBLE FOR THE DAMAGES CAUSED
TO THE WIFE OF THE APPELLANT
2.1 There has been an occurrence of Breach of Contact u/s 73 of Indian Contract Act,1872
¶6. It is humbly sheweth before the Hon’ble Court that the acts of the Respondent No. 2 have resulted
into breach of the Contract which was entered by and between the Respondent No. 2 and the Appellant
before the Appellant and his wife was being admitted and operated by the Respondent No. 2. Sec.
3714 of Zindian Contract act provide obligation to perform some act to the parties to the contract,
which the hospital could not provide. In Thake v. Morris15 it is mentioned that if the surgeon had
assured 100 % exclusion of pregnancy after the surgery and only on the basis of such assurance the
plaintiff was persuaded to undergo surgery, the surgeon can be held liable in contract which is exactly
what happened in the instant situation when on 8th February 2013 Mehant underwent sterilization
operation after getting 100% assurance from the hospital. Thus, the mere fact of becoming pregnant
which is against the sole moto of the operation and also denies the assurance proves the fact of breach
of contract16 and is liable thereof.
2.2 Doctor acted in a Negligent Manner
¶7. In M/s Spring Meadows Hospital anr. v. Harjol Ahluwalia17, it was observed that the relationship
between the doctor and the patient is poised between trust in the learning of doctor and the general
distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of

10
Balakrishna v Rmaswami (1965) AIR 195.
11
(1995) 6 SCC 213.
12
Ganga Kumar Srivastava v State of Bihar (2005) 6 SCC 211.
13
Cholan Roadways Ltd. v G. Thiru gnanasambandam AIR 2005 SC 570.
14
S. 37- Obligations of parties to contract.
15
Thake v Morris, [1986] QB 644, see also State of Punjab v. Shiv Ram (2005) 7 SCC 1
16
Indian Contact Act, 1872§ sec 73.
17
M/s Spring Meadows Hospital Anr. vs. HarjolAhluwalia JT 1998(2) SC 620.
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inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor
is not abused in any manner. The need for existence of due care which is necessary as a step to
establish the tort of actionable negligence is illustrated by Lord Wright in well-known judgment
Grant v. Australian Knitting Mills Ltd18.
¶8. Lochgelly Iron and Conal Co. v. M'Mullan19, it is observed that in strict legal analysis, negligence
means more than heedless or careless conduct, whether in omission or commission: it properly
connotes the complex concent of duty, breach and damage thereby suffered by the person to whom
the duty was owing". In the instant case, it is the duty of the respondents to ensure that operation is
successful which they omitted.20 Mehant, wife of OkurSen underwent sterilization operation in Spice
Galore Hospital despite that she conceived and delivered a disabled girl child to it (20th January
2014)21 is clearly a case of something amiss while performing an operation and one can hopefully
deduce that standard of reasonable care expected of the doctor was not taken.
¶9. Applying the aforementioned principle in the instant case it is to be noted that the hospital has not
followed any of the standards set by the government. According to the Standards for Female and Male
Sterilization services22 according to Paragraph No. 1.5.2 a certificate of sterilisation should be issued
after one month of surgery or after the first menstrual period by the Medical Officer of the facility. It
means that on completion of one month, the success of the sterilization operation must be checked
and for that the hospital has to follow the patient. But, the hospital didn’t do that thereby showcasing
the major negligence of grave intensity on its part.
2.3 State is also held vicariously liable for the negligence caused by the Respondent no. 2
¶10. It is humbly sheweth before the learned court that in the instant case the respondent hospital was
designated to perform sterilization operation under the National Population Policy initiated by
Government of Zindia where the wife of the Appellant underwent Tubectomy operation. However,
Pursuant to such operation, the wife of the Appellant conceived thereafter and delivered a disabled
child. If any employee does any authorized act in an unauthorized or negligent but not in a prohibited
manner, within the course of his employment then the employer will be held vicariously liable for
it.23Thus the State of Tujarat will be held vicariously liable for the negligent act of the doctor of the
respondent government hospital.

18
Grant v. Australian Knitting Mills Ltd. reported in (1936) AC 85 (103).
19
Lochgelly Iron and Conal Co. v. M'Mullan, (1934) AC 1, 25
20
Philips India Ltd. v. Kunju Punnu And Anr, AIR 1975 Bom 306, (1975) 77 BOM LR 337; Laxman Balkrishna Joshi v.
Trimbak Bapu Godbole And Anr, 1969 AIR 128, 1969 SCR (1) 206.
21
Moot proposition, 34th BCI Inter University Moot Court Competition, 2017
22
Standards for Female and Male Sterilisation Services, Published by Ministry of Health and Family Welfare in 2006
available at http://dhs.kerala.gov.in/docs/pdf/fwiec2.pdf accessed on 18th July 2017.
23
State of Maharashtra & Ors v. Kanchanmala Vijay Singh Shrike & Ors, JT 1995 SC 155; State of Rajasthan v. Mst.
Vidhyawati and Anr. (AIR 1962 SC 933), Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra (1996) SCC 2 634
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III. THE RESPONDENT NO.1 AND 2 ARE LIABLE TO PAY COMPENSATION TO THE
APPELLANT.
¶11. It is humbly sheweth before the Hon'ble Supreme court of India that the State and the hospital is
liable to pay compensation to the appellant.
3.1 The respondents are liable to pay compensation for the breach of contract.
¶12. It is humbly sheweth before the Hon'ble Supreme Court that It is evident in the case that there is
breach of contract on the part of hospital. Therefore, the petitioner is entitled to compensation under
Sec. 7324 read with Sec. 7425 of the Indian Contract Act. Furthermore respondent can also be brought
up under Sec. 21 (1) and (2) of the Specific Relief act, 1963 the respondents are liable to pay
compensation to the appellant and the court has the full discretion to do so.26 There was a contract
formed between the Hospital and the Appellant and that contract has been breached in respect to Sec.
73 of the Indian Contract Act, 1872.27 It is stated in sub-Sec. 2 of Sec. 21 that if the court decides
that specific performance ought not to be granted but a contract had been formed which has been
breached by the defendant, then the plaintiff is entitled to get the compensation for that breach 28 and
failed sterilization.29
3.2 Compensation should be paid for the physical inconvenience and mental agony caused to
the Appellant and his wife due to the callous and negligent acts of the hospital.
¶13. It is humbly sheweth before the Hon'ble Supreme Court that in State of Haryana v. Santra30 the
Hon’ble Supreme Court held that birth of a child in spite of tubectomy operation was a negligent act
on the part of the Doctors and ultimately, the State Government was responsible for the negligence31.
“Where any pregnancy occurs as a result of failure of any device or method used by any married
woman or her husband for the purpose of limiting the number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the
pregnant woman."32
¶14. The purpose of the medical sterilization is to prevent pregnancy from occurring and by reason
of medical error that purpose is not achieved, and results in the development of the foetus following
impregnation, just as in the case of the undetected tumour.33 It causes significant physical changes to

24
S.73 The Indian Contract Act, 1872.
25
S.74 The Indian Contract Act, 1872.
26
ArindamMitra, Law of Specific Relief (2nd Edn, 2010)
27
Pillamma v. P. Rangaraju 1996 Kar, 140
28
Jagdish v. Natthu, AIR 1992 SC 1604
29
Love lace Medical Centre v Mendez, (1991) 805 P 2d 1084
30
State of Haryana v. Santra30 (2000) 5 SCC 182,2001-2-LW 58
31
Shobha and Kailash Chand v. Govt. of NCT of Delhi and Anr, 2004 ACJ 1479
32
Medical Termination of Pregnancy act, 1871 §Sec 3 (2) Explanation II.
33
Keith Allenby v. H .(2013) 2 SCC 1
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the woman’s anatomy 34 , which of course occur naturally but still cause discomfort and, at least
ultimately, pain and suffering and has to be compensated35 for the suffering.36 In the present case, a
contract was formed between Spice Galore hospital and the appellant, gave 100% assurance37 to the
appellant which is breached. Thus the hospital is liable to pay compensation to the appellant for
38
wrongful conception, negligence and wrongful birth and cannot go back on his words
retrospectively 39 as there has been substandard surgical care that amounts to actual medical
negligence40, thus putting physical and mental pressure upon the appellant41.
3.3 Compensation for bringing up of disable child
¶15. It is humbly sheweth before the learned court that in the case of Parkinson v. St. James and
Seacroft Hospital,42 and Gail Taylor v. Shropshire Health Authority,43 it was decided that in case a
severely disabled child is born due to failure of sterilization, the court upheld payment of expenses
for bringing up the child so far as they followed from disability.
¶16. In the instant case appellant underwent sterilization but despite that gave birth to a child which
put a lot of mental and physical pressure44 on them and moreover the child was disable who needs a
constant special care throughout his life and that the birth of disabled child was a foreseeable
consequence of the negligent sterilization as the purpose of the operation was to prevent the appellant
conceiving further children including those with the congenital abnormalities45. So, the claim for
compensation 46 despite public policy considerations 47 which included the cost of bringing up her
child the pain and the suffering of the birth and the cost of future care48 was on justified ground.

34
Halsbury's Laws of England, Fourth Edition (Re- issue) Vol. 12(1), ¶ 896
35
Sumathi v. Dr.Suganthi, AIR 2014 Mad 683
36
Udale v. Bloomsbery Area Health Authority [1983]2 All ER 522
37
LalBahadur Shastri Hospital v. Smt. Daya& Anr, 2012, LPA 72/2012; Kanagavalli v. Secy of government department
of health, AIR 2009 Madras 1259
38
Failed sterilization: evidence-based review and medico-legal ramifications, Rajesh Varma,Janesh K. Gupta,
International Journal of Obstetrics and gynecology, 13 September 2004, Volume 111, Issue 12 December 2004
Pages 1322–1332
39
Ms. Anita v. Principal Secretary, 177/09
40
Fulladevi v. state of Haryana and Ors., 2005 ACJ 51.
41
Halsbury's Laws of England, Fourth Edition (Re- issue) Vol. 12(1),¶ 896
42
Parkinson v. St. James and Seacroft Hospital, NMS trust, ([2002] QB 266)
43
£1.3m damages for sterilisation that failed, The Guardian, UK News, Clare Dyer, November,1999
44
State of Kerala v P.G. Kumari, AIHC (2010) Ker, 240
45
Supra note 42
46
Allan v Greater Glasglow Health Board, (1993) 1998 SLT 580; Crouchman v. Burke (1997) 40 BMLR 163 and
Robinson v. Salford Health Authority [1992] 3 Med LR 270, Administrator, Natal v. Edouard 1990 (3) SA 581
47
Allan v. Greater Glasgow Health Board (1993) 1998 SLT 580
48
Allen v. Bloomsbury Health Authority [1993] 1 All ER 651
5

MEMORANDUM ON BEHALF OF THE APPELLANT

 34TH BCI TRUST ALL INDIA INTER UNIVERSITY MOOT COURT COMPETITION

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon'ble
Court be pleased to declare and hold that:

1. That the Special Leave Petition should be allowed on contest.

2. That the operating doctor and the Spice Gallore hospital is responsible for negligence causing
unwanted pregnancy to the wife of the appellant.

3. That the Spice Gallore Hospital and State is responsible for the mental pain, agony and physical
inconvenience of the wife of the appellant arising out of such unwanted pregnancy and the delivery
of the disabled child.

4.That the respondent 1 and 2 must be directed to pay exemplary damages for causing such unwanted
pregnancy, mental pain, agony and physical inconvenience.

5. That the respondent no.1 and 2 must be directed to pay a sum of Rs 6,00,000 befitting for
upbringing of the disable child till her puberty and later her marriage.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience

For this act of kindness your petitioner as in duty bound shall ever pray.

DATE:

Place:

Sd/-

COUNSEL FOR THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT