1|Page

BEFORE THE JUDICIAL MAGISTRATE AT DISTRICT AND SESSION COURT

CHANDIGARH

CRIMINAL COMPLAINT NO. …………/2019

BETWEEN:

JEEVAN RAM………………………………………………………......COMPLAINANT

VERSUS

DR. RAMESH KUMAR……………………………………………......DEFENDANT NO 1

P.G.I HOSPITAL………………………………………………….....…DEFENDANT NO 2

VED BHUSHAN……………………………………………………..…DEFENDANT NO 3

MOST RESPECTFULLY SUBMITTED IN THE COURT OF SESSION, CHANDIGARH

2|Page

MEMORIAL ON BEHALF OF COMPLAINANT

DRAWN AND FILED BY THE COUNSEL FOR THE COMPLAINANT

INDEX

S. NO PARTICULARS PAGE
NO.
1. LIST OF ABBREVIATION 4
2. INDEX OF AUTHORITIES 5
3. STATEMENT OF JURISDICTION 7
4. STATEMENT OF FACTS 8
5. STATEMENT OF ISSUES

1. WHETHER THE DOCTORS ARE LIABLE FOR

MEDICAL NEGLIGENCE UNDER SECTION 304A I.PC?
1.1 That the Doctors are negligent in performing their duty.
1.2 Gross negligence on the part of doctors.

2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

FOR THE ACT OF DOCTORS.

3. WHETHER THE DRIVER IS LIABLE FOR RASH AND

NEGLIGENT DRIVING UNDER SECTION 304A AND
SECTION 279?
3|Page

7. ARGUMENTS ADVANCED 11
8. PRAYER 18

LIST OF ABBREVIATION
4|Page

AIR All India Reporter

Anr. Another
Cr.LJ Criminal Law Journal
Hon’ble Honourable
Ltd. Limited
NCT National Capital Territory
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
UN United Nations
UP Uttar Pradesh
v. Versus
5|Page

INDEX OF AUTHORITIES

TABLE OF CASES

1. Dr. Laxman Balakrishna Joshi vs. Dr. Trimbark Babu Godbole

2. A.S Mittal .v. State of U.P
3. Aparna Dutt .V. Apollo Hospital Enterprises Ltd
4. Paschim Bengal Khet Mazdoor Samity and Ors. v. State of Bengal
5. Mr. M Ramesh Reddy .V. State of Andra Pradesh
6. Pravat Kumar Mukherjee Vs. Ruby General Hospital and ors
7. Kunal Saha Vs AMRI (Advanced Medical Research institute )
8. Kusum Sharma & Ors vs. Batra Hospital and Medical Research
9. Jacob Mathew .V. State of Punjab
10. State of Karnataka v. Satish

STATUTES REFERRED
➢ THE INDIAN EVIDENCE ACT, 1872
➢ THE CODE OF CRIMINAL PROCEDURE , 1973
➢ THE INDIAN PENAL CODE, 1860

BOOKS AND COMMENTARIES REFERED

➢ BATUK LAW, THE LAW OF EVIDENCE (22nd ed. 2018).
➢ M MONIR, TEXTBOOK ON THE LAW OF EVIDENCE (11th ed. 2018).
➢ DR. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (22 nd ed. 2016).
➢ K.D GAUR PRINICIPLES OF CRIMINAL LAW (11TH ed 2016)
➢ P.S.A PILLAI CRIMINAL LAW (LATEST EDITION)
6|Page

WEBSITES REFERRED

➢ Manupatra Online Resources, http://www.manupatra.com.

➢ Lexis Nexis Academica, http://www.lexisnexis.com/academica.
➢ Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
➢ SCC Online, http://www.scconline.co.in.
➢ Oxford Dictionary, http://www.oxforddictionaries.com
7|Page

STATEMENT OF JURISDICTION

It is humbly submitted before this court the complainant has filed a complaint before this court
under section 304A I.P.C against the respondent no. 1 and respondent no. 2.

Therefore it is humbly submitted before this honble court to take cognizance and justice should be
done with victim.

“304-A. Causing death by negligence.—Whoever causes the death of any person by

doing any rash or negligent act not amounting to culpable homicide shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.”
8|Page

STATEMENT OF FACTS

ABOUT ACCIDENT

Sunita a student of government model school, sector 14 Chandigarh used to commute in CTU bus
from her home to school.

On 14/12/2018, she was waiting for the bus outside her school when a Chandigarh Transport
undertaking bus negligently driven by the driver Ved Bhushan crushed her foot.

NEGLIGENCE OF THE HOSPITAL

She was immediately rushed to the Hospital P.G.I for Treatment. Five days after the accident
gangrene developed in her leg.

Doctors on duty advised amputation of the affected leg and Dr. Ramesh Kumar assigned duty to
operate upon her leg immediately.

DEATH OF VICTIM

The doctor kept postponing the surgery on the ground of heavy rush of the Patients involved in
accidents and their treatment.

Due to heavy blood loss and gangrene Sunita died on 22/12/2018.

9|Page

STATEMENT OF ISSUES

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE

UNDER SECTION 304A I.PC?

1.1 That the Doctors are negligent in performing their duty.

1.2 Gross negligence on the part of doctors.

2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE FOR THE ACT OF

DOCTORS.

3. WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A AND SECTION 279?
10 | P a g e

SUMMARY OF ISSUES

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE

UNDER SECTION 304A I.PC?

IT IS HUMBLY SUBMITTED BEFORE THIS HONBLE COURT THAT DOCTORS ARE

GROSSLY NEGLIGENT IN PERFORMING THEIR DUTIES AND HOSPITAL IS
VICARIOUS LIABLE FOR THE ACT OF THE DOCTORS.

AS DOCTORS BY NEGIGENTLY DOES NOT PEFORM THE LIVE SAVING

SURGERY WITHIN GOLDEN PERIOD.

2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE FOR THE ACT OF

DOCTORS.

THAT THE HOSPITAL IS VICARIOUSLY LIABLE FOR THE ACT OF DOCTORS.

3. WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A AND SECTION 279?

THAT THE DRIVER IS LIABLE UNDER SECTION 304 A I.P.C FOR RASH AND
NEGLIGENT DRIVING.

DRIVING OF C.T.U DRIVER IS VERY HARSH AND THEREBY LEAD TO DEATH

OF VICTIM.
11 | P a g e

ARGUMENT ADVANCED

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE UNDER

SECTION 304A I.PC?

Medical Profession is one of the oldest professions and most humanitarian one. Doctors in India
are treated as second life savers after God. The standard of care from doctors and hospital authority
is expected to be more in comparison with other cases of negligence.

So proper care must be taken by the authorities and the doctors side to avoid medical negligence.

DEFINITION OF NEGLIGNECE

The Black law dictionary definition of negligence “conduct, whether of action or omission, which
may be declared and treated as negligence without any argument or proof as to the particular
surrounding circumstances, either because it is in violation of statue or valid municipal ordinance
or because it is so palpably opposed to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been guilty of it. As a general rule, the
violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.

The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c)Cause in
fact (d)Proximate Cause and (e) Damage. These are the basic elements of negligence, to prove
the case of negligence all these criteria must be satisfied and in cases of medical negligence in
India, the ambit of duty of care and proximate cause increases, as there are life involve in this
situation.

When there is civil wrong (right in rem) against a contractual obligation (right in persona), with a
breach of duty which invites the intervention of judges to grant certain remedy for the damages
then the tortious liability arises but the standard of care is more in medical cases as compared to
general cases.

Principle of Standard of care was laid down by Supreme Court in the case of Dr. Laxman
Balakrishna Joshi vs. Dr. Trimbark Babu Godbole1 and A.S Mittal .v. State of U.P2,. In these

1 AIR 1969,SC 128

2 AIR 1989 SC 1570
12 | P a g e

cases, different kinds of negligence were introduced which were further question of qualification
for application in other cases.

There is an exception for medical negligence that if a doctor does not charge fees for his act then
he cannot be sued for medical negligence under Tort as per the definition of service which is
mentioned in sec 2(1) of Consumer protection Act 1986.

2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE FOR THE ACT OF

DOCTORS.
13 | P a g e

The principle of vicarious liability is based on a latin maxim “qui facit per alium facit per se”
which describes that the one who acts through another act in his or her own interest. The patient
only requires diligent and proper care, if any of the staff of the hospital is negligent in the
performance of their prescribed work, the hospital will be held liable on the negligent conduct of
even borrowed doctors for specific performance of certain operations. This principle was
established in the case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd 3.

Hospitals have been also held liable for not providing adequate medical facility as it was held
in Paschim Bengal Khet Mazdoor Samity and Ors. v. State of Bengal4.

Hospitals are also held vicariously held liable if they are not able to provide proper sanitation
facility, as it happened in Mr. M Ramesh Reddy .V. State of Andra Pradesh5.

Medical negligence cases and ethics

In some cases of medical negligence, the compensation to the victim has given looking on the
ethical values related to humanitarian basis as we can infer with the case of Pravat Kumar
Mukherjee Vs. Ruby General Hospital and ors6.

In this case National Commission of India delivered a land mark judgment for treating of accident
victim, what happened in this case the complainant were the parents of deceased boy named
Samanate Mukherjee a 2nd year B.tech boy who studied in Netaji Subhas Chandra Bose
Engineering College , the complaint was filed in National Commission of India.

The boy was hit by a Calcutta transport bus and rushed to the hospital which was 1 km from the
accident spot. The boy was conscious when he was taken to hospital and he showed his medical
insurance card, which clearly says that the boy will be given Rs.65,000 by the Insurance company
in case of accident, relying on it hospital started treating boy but after giving some initial treatment
hospital demanded Rs15,000 and on the non- payment of the demanded money hospital

3 (2002 ACJ 954 (Mad. HC).

4 1996(4)SC260
5 [2003 (1) CLD 81 (APSCDRC).
6 2005 CPJ 35 (NC).
14 | P a g e

discontinued treatment of the boy and the boy was rushed to another hospital in the way the boy
died.

This was the case and in this case the National Commission held Ruby hospital liable and provided
Rs. 10 lakhs as compensation to the parents. So, in this case the court looked on humanitarian
basis and compensation was awarded to the complainant.

Landmark Judgment on Medical Negligence

In medical negligence cases the first judgment that comes into our mind is one of the high profile
and most talked case with the highest amount of compensation granted till date.

Kunal Saha Vs AMRI (Advanced Medical Research institute ) famously known as Anuradha
Saha Case, this case was filed in 1998 with the allegation of medical negligence on Kolkata based
AMRI Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr.
Balram Prasad. In simple layman term, the wife was suffering from drug allergy and the doctors
were negligent in prescribing medicine which further aggravated the condition of patient and
finally led to death. In brief this was the facts and circumstances of the case, in this case the final
verdict was given by the Supreme court on 24th October 2013 and a compensation of around 6.08
crore for the death of his wife.

Defense of Medical Profession

In defense of medical profession Supreme court in Kusum Sharma & Ors vs. Batra Hospital and
Medical Research case held that the law of negligence has to be applied according to facts and
circumstances of individual case. No one can ignore that medicine is an evolving science, and
there is no precise outcome of effect for every person. The operations involve certain calculated
risk which cannot be denied because of complication in the operation if some risk is done, the
doctors cannot be held liable for negligence as the patient himself has consented to the risk
involved in the operation.

In another case of Jacob Mathew .V. State of Punjab, the Supreme court held that in some cases
of medical profession the doctors are equipped in certain situation where they have to make choices
between a devil and the deep sea. Sometimes in certain situation there must be greater risk in the
15 | P a g e

operation but higher chances of success and in another move there would be lesser risk but higher
chances of failure. So the decision, that which course would be follow will depend on facts and
circumstances of case.

Conclusion

On the scrutiny of leading medical negligence cases of India, certain principles should be taken
into consideration while pronouncing the judgment in medical negligence cases.

1. Negligence should be guided upon the principle of reasonableness of common man

prudence and negligence must be established in order to give the compensation in certain
cases.

2. Medical profession requires certain degree of skill and knowledge, so the standard of
care in cases of medical professional is generally high and should also be taken into
account while giving the judgment.

3. A medical professional can be only held liable, when the standard of care is reasonably
is less than the reasonable care that should be taken from a competent practitioner in that
field.

4. When a choice has to be made between certain circumstance when there is higher risk
involved and greater success is involved and lesser risk with higher chances of failure,
the facts and circumstances of the individual case should be taken into the consideration.

5. No negligence will apply on medical professional, when he performs his duty with the
utmost care that should be taken, and he had taken all the precaution.

IT IS HUMBLY SUBMITTED BEFORE THIS HONBLE COURT THAT DOCTORS

ARE GROSSLY NEGLIGENT IN PERFORMING THEIR DUTIES AND
HOSPITAL IS VICARIOUS LIABLE FOR THE ACT OF THE DOCTORS.
16 | P a g e

3. WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A AND SECTION 279?
Under Sections 279, 304-A, 337 and 338 of the Indian Penal Code require a rash or negligent act
as an ingredient. These sections are reproduced below, and I have highlighted the rash or
negligent words (or their cognate words):

“279. Rash driving or riding on a public way.—Whoever drives any vehicle, or rides,
on any public way in a manner so rash or negligent as to endanger human life, or to be
likely to cause hurt or injury to any other person, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.”

“304-A. Causing death by negligence.—Whoever causes the death of any person by

doing any rash or negligent act not amounting to culpable homicide shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.”

“337. Causing hurt by act endangering life or personal safety of others.—Whoever

causes hurt to any person by doing any act so rashly or negligently as to endanger human
life, or the personal safety of others, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to
five hundred rupees, or with both.”

“338. Causing grievous hurt by act endangering life or personal safety of others.—
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine
which may extend to one thousand rupees, or with both.”

The Supreme Court judgment in the case of State of Karnataka v. Satish, (1998) 8 SCC 493, may
perhaps be applicable to the facts of your case (though I am not aware of full facts of your case),
wherein the Supreme Court held as under:
17 | P a g e

“Merely because the truck was being driven at a “high speed” does not bespeak of either
“negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could
give any indication, even approximately, as to what they meant by “high speed”. “High speed” is
a relative term. It was for the prosecution to bring on record material to establish as to what it
meant by “high speed” in the facts and circumstances of the case.

In a criminal trial, the burden of providing everything essential to the establishment of the charge
against an accused always rests on the prosecution and there is a presumption of innocence in
favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of
course to some statutory exceptions. There is no such statutory exception pleaded in the present
case. In the absence of any material on the record, no presumption of “rashness” or “negligence”
could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that
immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether
the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who
inspected the vehicle had submitted his report. That report is not forthcoming from the record and
the Inspector was not examined for reasons best known to the prosecution. This is a serious
infirmity and lacuna in the prosecution case.”

“There being no evidence on the record to establish “negligence” or “rashness” in driving the truck
on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting
the respondent is a perverse view. …”.In view of the above, mere proof of “high speed” may not
be sufficient.

PRAYER
18 | P a g e

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENT ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED THIS HONORABLE FORUM MAY BE
PLEASED TO:-

TO HOLD

1. THAT THE DOCTORS ARE GROSSLY NEGLIGENT IN PERFORMING THEIR

DUTIES.
2. THAT THE HOSPITAL IS VICARIOUSLY HELD LIABLE FOR THE ACT OF
DOCTORS.
3. THAT THE DRIVER IS LIABLE UNDER SECTION 304 A I.P.C FOR RASH AND
NEGLIGENT DRIVING.