Roll No.

19LLB086

7th NOVICE MOOT COURT COMPETITION, 2019-20,

BEFORE THE HON’BLE CIVIL COURT

In the Matter of

Vinaya……………………………………………………………………………………(Plaintiff)
v.
John…………………………………………………………………………………….(Defendant)

Along with

The Car Owner………………………………………………………………………..….(Plaintiff)

MEMORIAL FOR THE PLAINTIFF

COUNSEL APPEARING ON BEHALF OF THE PLAINTIFF

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...............................................................................................................ii

INDEX OF AUTHORITIES................................................................................................................iii

STATEMENT OF JURISDICTION......................................................................................................iv

STATEMENT OF FACTS...................................................................................................................v

ISSUES RAISED...............................................................................................................................vi

SUMMARY OF ARGUMENTS..........................................................................................................vii

ARGUMENT ADVANCED..................................................................................................................1

I. THAT THE NEGLIGENT ACT OF JOHN CAUSED THE LOSS OF CHILD TO

II. THAT THE JOHN WAS NEGLIGENT IN THE CAR ACCIDENT..............................2

PRAYER........................................................................................................................................viii

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LIST OF ABBREVIATIONS

S.No. Abbreviations Word

1. & And

2. ¶ Paragraph

3. ACJ Accidents Claims Journal

4. AIR All India Reporter

5. Anr. Another

6. Co. Company

7. Ed. Editor

8. Edn/Ed. Edition

9. Ex Ch Exchequer Chamber

10. Hon’ble Honourable

11. IVF In Vitro Fertilisation

12. Ors. Other

13. SCC Supreme Court Cases

14. UKHL United Kingdom House of Lords

15. v Versus

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INDEX OF AUTHORITIES

BOOKS REFERRED

1. J Goudkamp & D Nolan, Winfield and Jolowicz on Tort (18th ed., Sweet & Maxwell
2010).
2. Ratanlal & Dhirajlal, The Law of Torts (G.P. Singh ed., 27th edn., LexisNexis 2018).

WEBSITES

1. Manupatra (https://www.manupatrafast.com)
2. SCC Online (https://www.scconline.com)
3. LexisNexis & Universal Law Publishing (https://lexisnexis.in)

TABLE OF CASES

1. Prakash & Ors. v. Arun Kumar Saini & Anr., 2010 ACJ 2184.
2. Donoghue v. Stevenson., [1932] UKHL 100.
3. Blyth v. Birmingham Waterworks Co., [1856] 11 Ex Ch 781.
4. Savelife Foundation and Ors. v. Union of India and Ors., (2016) 7 SCC 194.
5. The Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation
v. Vidya Shinde, (2005) ACJ 69.
6. Veeran v. Krishnamoorthy, AIR 1966 Kerala 172.
7. Jang Bahadur Singh v. Sunder Lal Mandal And Ors., AIR 1962 Pat 258.

STATUES

 Code of Civil Procedure, 1908.

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STATEMENT OF JURISDICTION

The Plaintiff has approached this Hon’ble Court under Section 9 r/w Order 1 Rule 1 of Code of
Civil Procedure,1908.
Section 9 – The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature expecting suits of which their cognizance is either expressly or
impliedly barred.
Order 1 Rule 1- All persons may be joined in one suit as plaintiffs where--
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist in such persons, whether jointly, severally or in the
alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.

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STATEMENT OF FACTS

1. John is professional photographer, his second sister is a doctor and John frequently visits
the hospital where his sister works. John had recently purchased a brand-new car called ‘Venue’.

2. John was taking his car to his office. When he crossed the first signal, he saw an accident,
wherein the lady passenger of an auto was thrown out on the road.

3. John see that the lady was pregnant and was also his sister’s patient. He picked her up
and took her in his car to take her to the hospital. The lady was conscious at that time.

4. The lady was Vinaya. She had been childless for about 7 years and finally after John’s
sister performed an IVF treatment, she was able to conceive. Vinaya was aged 43 and the
pregnancy was going to be tough one.

5. John in a rush of panic, immediately proceeded towards the super specialty hospital. At
the second signal, he realized that Vinaya had lost consciousness; then also he stopped at the red
signal. He rushed through the third signal as the light was yellow. Another car with the same
intention of skipping the red light, rushed through and jammed into the rear of John’s car. At the
hospital, it was pronounced that Vinaya had given birth to a still born child.

6. After the few days of the incident, he receives two notices that two suits have been filed
against him, one by the lady and the other by the car owner for payment of damages.

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ISSUES RAISED

ISSUE 1

WHETHER THE NEGLIGENT ACT OF JOHN CAUSED THE LOSS OF CHILD TO

ISSUE 2

WHETHER JOHN WAS NEGLIGENT IN THE CAR ACCIDENT?

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SUMMARY OF ARGUMENTS

1. THAT THE NEGLIGENT ACT OF JOHN CAUSED THE LOSS OF CHILD TO

The acts of John of taking Vinaya to the super specialty hospital, which was far away from the
place where the accident was committed and not taking proper care even after knowing that she
lost her consciousness, he rushed to the signal acting in negligent manner. So in this case the
defendant should be held liable for his negligent behavior towards the plaintiff and caused her
the loss of her child.Here indeed the Counsel pleads to the Hon’ble court that it is clear from the
facts that the defendant was negligent while taking Vinaya to the hospital and in furtherance of
his acts the defendant had lost her child and hence entitled for the compensation.

2. THAT THE JOHN WAS NEGLIGENT IN THE CAR ACCIDENT.

The Act of John in rushing to the third signal when the signal was yellow and passing it even
after knowing that there is a school and college near the same amounts to negligence which
ultimately resulted in the accident of the two cars.Here indeed the Counsel pleads to the Hon’ble
court that it is clear from the facts that the defendant was negligent while driving and his acts
lead to the car accident and the plaintiff is entitled to the recovery of damages.

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ARGUMENT ADVANCED

I. THAT THE NEGLIGENT ACT OF JOHN CAUSED THE LOSS OF CHILD TO

2. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property. The definition involves three
constituents of negligence:

i. A legal duty to exercise due care on the part of the party complained of towards the
party complaining the former’s conduct within the scope of the duty2;
ii. Breach of the said duty3; and
iii. Consequential damages.

3. In the current situation John, the defendant owes the duty of care towards Vinaya, the
plaintiff when he took her into his car. He then in that situation was expected to have acted as a
reasonable person. But the defendant breached his duty while not acting as a reasonable person
and taking Vinaya to the super specialty hospital which was far away from the place of accident,
it’s a fact which was very well known to the defendant as he frequently visits the hospital4.

4. The defendant acted negligently at the second signal, when he realized that Vinaya had
lost her consciousness and then also he stopped at the red signal. While a Good Samaritan who
takes an accident victim to a hospital will not be asked any questions and can leave immediately.

1
Ratanlal & Dhirajlal, The Law of Torts 457-458 (G.P. Singh ed., 27th edn., LexisNexis 2018).
2
Donoghue v. Stevenson., [1932] UKHL 100.
3
Blyth v. Birmingham Waterworks Co., [1856] 11 Ex Ch 781
4
Moot Proposition, ¶1

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He/she cannot be forced to stay unless they are an eyewitness in which case only their address
can be noted5.

5. While, if someone contends good Samaritan defence the first point of the notification
says he should be taken to the nearest hospital. But in the case of Vinaya, she was not taken to
the nearest hospital by the defendant even when he was knowing that there is Government
hospital on the opposite side of the road. John did not take proper care as he already discovered
on the second signal that Vinaya had lost her consciousness, if she would have taken to the
Government hospital her child could have been saved. But John wanted to take Vinaya to the
super specialty hospital where his sister works and performed an IVF treatment on Vinaya. He
already knew that Vinaya was on later stages of her pregnancy and her case was going on to be
the tough one and no risk could be handled at that point of time, then also he took her to the
hospital which was far away from the place and also driving the car rushly which also would
have impacted on the child which was in the mothers’ womb.

6. As per the doctor’s evidence, if the foetus has completed 37 weeks, for all purposes even
the still-born child has to be considered as child. In the instant case, in the accident the child had
also received injuries which compelled the mother to undergo a surgery. The baby died due to
the injuries sustained by him in the accident while in the womb though there is not direct impact
between the vehicle and the baby, since the baby had received injuries while in the womb; this
court has to hold that there is a nexus between the accident and the cause of death of the child.6

7. Here indeed the Counsel pleads to the Hon’ble court that it is now clear from the above
facts that the defendant was negligent while taking Vinaya to the hospital and in furtherance of
his acts the defendant had lost her child and hence entitled for the compensation.

II. THAT THE JOHN WAS NEGLIGENT IN THE CAR ACCIDENT.

8. Negligence has been as the breach of a duty caused by the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and a reasonable man would not
do.

5
Savelife Foundation and Ors. v. Union of India and Ors., (2016) 7 SCC 194.
6
The Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation v. Vidya Shinde, (2005)
ACJ 69

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9. The Counsel humbly pleads to the Hon’ble Court there has been negligence on the part of
the defendant while driving the car and not obeying the traffic rules and hence involving in the
car accident at the third signal with the plaintiff i.e., the car owner.

10. The defendant was well aware of the fact the third signal was extremely busy signal as
there is a school and college near the same but then also he did not obey the traffic rules and
broke the signal leading to endanger the lives of his neighbours which include the lady i.e.,
Vinaya, the children of the school and the college, the car owner and other neighbours who could
have been affected by his negligent driving.

11. As where the creation of a dangerous situation is ascribable to the negligent act of the
defendant, he is not to be excused from liability for consequent harm by reason of the fact that
the person endangered loses self-possession and in the confusion his reaction to the danger takes
a course which turns out not to be the safest one. In such circumstances contributory negligence
on the part of the person injured is not made out unless he is shown to have acted with less
caution than any person of ordinary prudence would have shown under the same trying
conditions.7

12. Even if, however, the pedestrians are likely to cross the road, special care must be taken
and if the pedestrians assembled on the side of the road for crossing are school boys of young
age, a much greater care is needed.8

13. It is indeed clear that the defendant didn’t took proper care while crossing the third signal
and resulted in the car accident with the car owner.

14. According to the doctrine of the “last opportunity”, therefore, the true test is the existence
of the last opportunity of avoiding the accident that when the accident happens through the
combined negligence of plaintiff and defendant, the defendant is liable, but only if he had a later
opportunity than the plaintiff of avoiding it by reasonable care. In other words although, both
plaintiff and defendant may have been guilty of negligence in causing the accident yet if at some
point of time before the accident the plaintiff has ceased to have any power to prevent it--the
issue having passed beyond his control--and nevertheless the defendant still retains the power of
preventing it by due care, the whole responsibility passes to the defendant. Since he alone has
7
Ratanlal & Dhirajlal, supra note 1, at 577.
8
Veeran v. Krishnamoorthy, AIR 1966 Kerala 172.

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now the power, he alone has the duty of preventing the accident, and the prior negligence of the
plaintiff becomes irrelevant and immaterial.9

15. The fact, however, the last opportunity was with the defendant as envisaged that he was
at the Yellow light of the traffic signal and the rule of Yellow light as given in Motor Vehicles
(Driving) Regulations, 2017 is that “You can enter the interjection if you are so close that
sudden braking might cause a crash.”

16. Here at the point in order to take the car out of the intersection point, the plaintiff came
with high speed because he had no other option left in that case as of to cross the signal and thus
the defendant had the last opportunity to take the decision of moving the car forward in order to
avoid the accident. But here the defendant acted negligently by not moving the car and which
resulted into the collision of the two cars.

17. So here it is clear from the above facts that the defendant had the last opportunity to
avoid the accident and failing in the same resulted in the collision of both the cars, which make
the defendant solely responsible for the cause of accident.

18. Here indeed the Counsel pleads to the Hon’ble court that it is clear from the above facts
that the defendant was negligent while driving and his acts lead to the car accident and the
plaintiff is entitled to the recovery of damages.

9
Jang Bahadur Singh v. Sunder Lal Mandal And Ors., AIR 1962 Pat 258

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PRAYER

WHEREFORE, in the lights of, issues raised, arguments advanced and authorities cited, it is
most humbly and respectfully prayed that this Hon’ble court may be pleased to adjudge and
declare that:
1. To grant the compensation of Rs. 6,11,000/- to Vinaya for the loss of her child,
2. To grant the compensation of Rs. 20,000/- to the car owner for the damages suffered by
him.
The court may also be please to pass any other order, which the Hon’ble court may deem fit in
the light of justice, equity and good conscience.

All of which is most humbly prayed.

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