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7 NOVICE MOOT COURT COMPETITION
7TH NOVICE MOOT COURT COMPETITION
2019
BEFORE
BEFORE
THE HON’BLE COURT OF VISAKHAPATNAM
THE HON’BLE COURT OF VISAKHAPATNAM

MEMORIAL FOR RESPONDENT


MEMORIAL FOR RESPONDENT

FILED UNDER SECTION 9 OF CIVIL PROCEDURE CODE , 1908


FILED UNDER SECTION 9 OF THE CIVIL PROCEDURE CODE 1908

VINAYA AND ORS


VINAYA
………………… PETITIONER

VINAYA ANDVORS

JOHN ……………………….…(Petitioner)

V ………………… RESPONDENT

JOHN

……………………………………….(Respondent)

MEMORANDOM ON BEHALF OF RESPONDENTS


MEMORANDUM ON BEHALF OF THE RESPONDENTS

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b. Table of contents

1. LIST OF ABBREVIATIONS .............................................................................................................. 3

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

3. STATEMENT OF JURISDICTION ..................................................................................................... 5

4. STATEMENT OF FACTS ................................................................................................................... 6

5. ISSUES RAISED .................................................................................................................................. 7

6. SUMMARY OF ARGUMENTS .......................................................................................................... 8

7. ARGUMENTS ADVANCED..........................................................................................................9-14

1. Whether John is liable to pay compensation to Vinaya ............................................ 9- 10

1.1 Whether john acted negligently while taking Vinaya to hospital .................................... 10

2. Whether John was liable to pay compensation to other car owner… .......................... 11-12

2.1 Whether the action for damages by other car driver is maintainable in civil court….13-14

8. PRAYER 15

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1. List of abbreviations

Cal. Calcutta

AIR All India Reporter

Sec. Section Cal

V. Versus

Ors. Others

Co. Company

Bom Bombay

J&K Jammu and Kashmir

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2. Index of Authorities

Table of cases cited

1. Dwarkanath v.Rivers Steam Co., (1917) 20 Bom LR 735, (PC)… ............................... 9


2. Clark v. Maclennan, (1983) 1 AIR ER 416 : QBD ........................................................ 9
3. Indian Airlines v. Madhuri Chowdhuri, AIR 1965 Cal 252… ..................................... 10
4. Davies v. Mann: (1842) 10 M & W 546: 62 RR 698....................................................11
5. Boy Andrews v. St. Roguvald, (1947) 2 All ER 350: (1948) AC 140 HL .................... 11
6. Hammack v. White, (1862) 11 CBNS 588:31 LJCP 129… ........................................... 11
7. Richards v. Lothiam, (1913) AC 263: 108LT 225:29 TLR 281 (PC)… ........................ 12
8. I.T.C v. Phurba Lama, AIR 1992 Sikkim 34… ............................................................... 13
9. Kamal Kusha v. Kirpal, AIR 1988 J&K 11… ................................................................. 14

Statutes

The Motor Vehicles Act, 1988

Books Cited

Black’s Law Dictionary 9th edition.

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3. Statement of Jurisdiction-

“9. Courts to try all civil suits unless barred:

Courts shall have the Jurisdiction to try all suits of a civil nature expecting suits of which their

cognizance is either expressly or impliedly barred.

Section 9 of court enables the civil court to try all suits of a civil nature expecting suits of

Which their cognizance is barred either expressly or impliedly.”

Jurisdiction- Barred by special Tribunal. – Where a dispute relates to the enforcement of a right

Created by an enactment and that enactment also provides for an adequate remedy for it’s

Enforcement and also lays down that all questions about the right shall be determined by the

tribunals so constituted, the jurisdiction of civil shall be barred.

The claim for damages in the civil court by other car driver is not maintainable in civil court.

By Section 9 of civil procedure act the claim for damages by Vinaya lies under this provision

and is maintainable

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4. Statement of Facts

1. John is a professional photographer working in a leading Company which sells apparel for

expecting mothers. He has three sisters, his second sister is a doctor who works in one of the

leading hospitals which is a far away from his place.

2. He bought a brand new car called ‘Venue’ which was bright blue in colour and looked

attractive.

3. On his way to office he needs to cross four signals, near the fourth signal there is a super

speciality hospital.

4. One day on his way to office, after he crossed the first signal immediately in front of him, he

saw an accident, there was a lady who was the victim of the accident. He identified that the lady

was Vinaya who was one of the patients of her sister.

5. Vinaya was 43year old lady, she conceived after the IVF treatment undergone by her under the

supervision of John’s sister. Her case was discussed between John and her sister as it is tough

one, but John don’t know the intricate details of her condition.

6. On discovering her in the accident situation he tried to take her to hospital in his car.

7. On the way to hospital while crossing the third signal, another car with the intention of

skipping the red light when there is yellow light he rushed through the signal and dashed into the

rear of John’s car.

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5. Issues Raised

1. Whether John is liable to pay damages to Vinaya

1.1 Whether John acted negligently while taking Vinaya to hospital?

2. Whether John is liable to pay damages to other car owner?

2.1 Whether the other vehicle owner can file a suit in civil court for damages?

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6. Summary of Arguments

Whether John is liable to pay damages to pay damages to Vinaya?

John is not liable to pay damages to Vinaya as the act done by John was without negligence

He knew the condition of the woman through her sister, the nature of her case is complicated

and he while exercising his duty in taking vinaya to the hospital not acted in a negligent manner.

When Vinaya was under unconscious, John under a sudden emergency, knowing about the

Circumstances he should not to be held guilty of negligence. So John is not liable to pay

Damages to Vinaya.

Whether John is liable to pay damages to other car owner?

John is not liable to pay any damages to other car owner as the other car owner with the

Intention of skipping the red light drove the car, an accident and on doing that he himself

Jammed into the rear of the john’s car. By viewing all the facts the plaintiff i.e the other car

is the wrongdoer. John can take the defense

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7. Arguments Advanced

Issue 1- Whether John is liable to pay damages to Vinaya?

1. Here John knowing the condition of Vinaya through her sister acted in a prudent manner

by trying to take her to hospital. The intention of John to take her to super specialty hospital is

due to the complicated nature of the case. Even though government hospital is available near the

second signal he wanted to join her to a super specialty hospital as she would be able to get

better treatment.

In the case of “Dwarkanath v Rivers Steam Co” it was stated that “ If in a sudden emergency

man does something which he might, as he knew the circumstances, reasonably think proper, he

is not be held guilty of negligence, because upon review of the facts, it can be seen that the

course he had adopted was not in fact the best.”1

By this judgement it can be held that John could not be held guilty of negligence for the fact

that he tried to join Vinaya to a super specialty hospital by not preferring the government

hospital which is located in the opposite side of the road near the second traffic signal.

2. In the case of Clark v Maclenman it was held that “Conformity with the general and approved

Practice will generally lead to the inference in favour of defendant”2. It can be seen that John

acted according to general and approved practice by first trying to call to her sister and so

confirming that she was unavailable he decided to take Vinaya to a multispecialty hospital

that was present in the way to his office. By knowing that Vinaya’s case was tough through

1
Dwarkanath v. Rivers Steam Co., (1917)
2
Clark v. Maclennan, [1983] 1
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her sister. He decided not to take her to the government hospital but to the super specialty

hospital by conformity to the general and approved practice.

1.1 Whether John acted negligently in taking Vinaya to hospital?

3.John in this present case exercised standard of care while taking her to hospital. John knowing

the nature of risk of the risk involved in the case of Vinaya when he got to know that she lost

consciousness at the second signal he rushed towards the third signal but not trying to admit her

in the government hospital so that the treatment given to her in the super specialty hospital

would be more preferable than the treatment given to her in this intricate situation.

In Indian Airlines v Madhuri chowdhuri it was held that

“If a man is confronted with a dangerous situation not of his own making and he is required to

and there are several courses open to him and he is required to make a quick judgement would

not itself constitute negligence”3

So it can be said that John was not liable to pay damages and he did not act negligently in

admitting vinaya to hospital.

3
Indian Airline v. Madhuri Chowdhuri, AIR 1965 Cal 252.
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Issue 2 Whether John is liable to pay compensation to other car owner

1. Contributory Negligence- In some situations of death or injury caused by negligence, courts

may encounter with a different situation where both the parties are some extent negligent.

courts devised the rule of last opportunity where if a person is able to show that the last

opportunity to avoid the accident is on the other person the that person can be held liable.

In our present case the other car owner who hit the rear of john has the last opportunity to avoid

The accident. This can be seen in “Davies v Mann”.4 In the present case John rushed through the

Yellow traffic light to skip the red light. The other car owner also with the intention of skipping

the red light rushed and jammed into john’s car. He has the last opportunity to avoid accident.

2. The other car owner jammed the rear of the john’s car it can be seen that the other car owner’s

cause led to the accident.

In “Boy Andrews v St Roguvald” it was said that “The questions as in all questions of liability

for a tortious act, is not who had the last opportunity of avoiding the mischief, but whose act has

caused wrong”5

In the present case of john it can be seen that the act of other car owner has caused the wrong, the

Liability for the accident lies on other car owner.

3. As a general rule burden of proof lies on the plaintiff. He must show that he was injured by an

act or omission where the defendant is in law responsible6. It must be shown that negligence is

the proximate cause of the damage where the proximate cause is malicious act of a third person,

4
Davies v. Mann, [1842]
5
Boy Andrews v. St Roguvald, [1947] 2
6
Hammack v. White, [1862]

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the defendant is not liable in the absence of a finding either that he is the person who instigated

it or he ought to have foreseen and provided against it7. This was held in the case

“Rickets v Lothian”.

In the present case of John there can be no foreseeability that other car driver would jam into

the rear of his car for the act of rushing through the third signal when there is a yellow light.

It was evident that the nature of caused by the other car owner John has no foreseeability of the

accident and could not have provided against it.

By the rule laid in “Hammack v White” the other car owner is liable for the accident caused

and it cannot be held that the injury caused to him is the sole act of the defendant. The

complete onus of negligence for the accident caused cannot be proved on the part of the

defendant where the plaintiff also have the intention of skipping the red light and on a rush

he jammed into the rear of john’s car.

There is also general rule in contributory negligence that “There will be no difficulty in holding

That the plaintiff will fail if his negligence was solely responsible for the death or injury, as the

Case may be even if the defendant was in some respects negligent”. From the above arguments it

can be inferred that the defendant is not liable to pay damages to

the other car owner.

7
Rickards v. Lothian [1913]

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2.1 Whether other vehicle owner can file a suit in civil court for damages?

Jurisdiction of Civil Courts

Jurisdiction means authority to decide. Black’s Law Dictionary8 defines jurisdiction in the

following manner:

1. A Court’s power to decree a case or issue decree.


2. A geographical area within which political or judicial authority may be exercised.

Section 9 of the Civil Procedure code, 1908 deals with the jurisdiction of the Civil courts

9. Courts to try all civil suits unless barred- The courts shall have jurisdiction to try all suits of a

civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Jurisdiction- Barred by special Tribunal. – Where a dispute relates to the enforcement of a right

Created by an enactment and that enactment also provides for an adequate remedy for it’s

Enforcement and also lays down that all questions about the right shall be determined by the

tribunals so constituted, the jurisdiction of civil shall be barred.9

The Motor Vehicles Act, 1988

165. Claims Tribunals- (1) A state government may, by notification in the Official Gazette,

Constitute one or more Motor Accidents Claims Tribunals (hereafter in this chapter referred to as

Claims Tribunals) for such area as may be specified in the notification for the purpose of

adjudicating upon claims for compensation in respect of accidents involving the death of, or

bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a

8
Black’s, Law Dictionary 927 (Brayan A Garner 9th ed.,)
9
I.T.C. Ltd. v. Phurba Lama, AIR 1992 Sikkim 34
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third party so arising, or both.

Subject matter of claim- The compensation for damages arising out of injury to a property can

Be claimed under the provisions of Section 110, Motor Vehicles Act (Section 165 of new Act)

The application of this section can be seen in, Kamal Kusha v. Kirpal Singh10

Section 110(F) of The Motor Vehicles Act places a ban on jurisdiction of Civil Courts Claiming

Compensation or entertain any question relating to any claim for compensation that is to be

adjudicated upon by tribunal. So any damage to property, that is to be brought before the

Tribunal unless it is covered by provion added to Section 110(1) of the Motor Vehicle Act.

This judgement was given in Kamal Kusha v Kirpal Singh.

So if there is a claim for damages before civil court by the other car owner, it is not maintainable.

10
Kamal Kusha v. Kirpal Singh, AIR 1988 J&K 11.
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8. Prayer

It is therefore most humbly prayed before this Hon’ble court of Vishakapatanam to kindly dismiss the suit by the
and may be pleased to adjudge and declare that,
The proceedings shall be subjected to final hearing in the High court. And / or pass such other order in light of
justice and equity, which this Hon’ble court may feel fit and proper in the circumstances of the case.
The entire above contentions are most humbly & respectfully submitted to the bench.

Counsels for Respondents/-

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