Memorial For The Opposite Party

Team Code- A13
UILS INTRA DEPARTMENT MOOT COURT

COMPETITION, 2016
BEFORE THE HONORABLE NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION, NEW DELHI
MIKE SPECTER (COMPLAINANT)
V.
DR. RAHUL MALHOTRA & ORS. (OPPOSITE PARTY)
COMPLAINT RECEIVED UNDER SECTION 21 OF THE
CONSUMER PROTECTION ACT, 1986, CONCERNING
THE DEFECIENCY OF SERVICES UNDER SECTION
2(1)(g) OF THE ACT
WRITTEN SUBMISSION ON BEHALF OF THE
OPPOSITE PARTY
MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

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UILS INTRA DEPARTMENT MOOT COURT COMPETITION, 2016
TABLE OF CONTENTS
TABLE OF CONTENTS __________________________________________________________________ I
LIST OF ABBREVIATIONS ______________________________________________________________ II
INDEX OF AUTHORITIES ______________________________________________________________ III
STATEMENT OF FACTS________________________________________________________________ VI
STATEMENT OF JURISDICTION_______________________________________________________ VII
ISSUES _____________________________________________________________________________ VIII
SUMMARY OF ARGUMENTS ___________________________________________________________ IX
ARGUMENTS ADVANCED ______________________________________________________________ 1

I. THE OPPOSITE PARTIES DID NOT PROVIDE DEFICIENT SERVICES WHILE CARRYING
OUT THE TREATMENT OF MRS. RACHEL SPECTER. ___________________________________ 1
A. THE OPPOSITE PARTIES HAD EXERCISED ORDINARY SKILL AND CARE. __________ 1
B. THE OPPOSITE PARTIES HAD FOLLOWED THE ACCEPTED NORMS OF MEDICAL
PRACTICE. ________________________________________________________________________ 4
C. THE DAMAGES CAUSED ARE NOT A DIRECT CONSEQUENCE OF THE ACT OF THE
OPPOSITE PARTIES. _______________________________________________________________ 6
II. THE OPPOSITE PARTIES ARE EXEMPTED FROM ANY LIABILITY RESULTING FROM
NEGLIGENCE AS A RESULT OF THE PATIENT UNDERTAKING CUM GUIDELINE
DOCUMENT. _________________________________________________________________________ 8
A. THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT IS A STANDARD FORM
CONTRACT ENFORCEABLE BY LAW. _______________________________________________ 8
B. THE STANDARD FORM CONTRACT IS NOT AGAINST THE PUBLIC POLICY. ________ 9
C. THE CONTRACT DOES NOT ATTRACT THE PROVISIONS OF SECTION 16 OF THE
INDIAN CONTRACT ACT 1872. ________________________________________________________ 9
III. THE COMPLAINANT SHOWED COMPLETE NEGLIGENCE ON HIS PART ____________ 11
A. COMPLAINANT FAILED TO TAKE REASONABLE CARE OF HIS WIFE’S SAFETY. ___ 11
B. THE COMPLAINANT IS LIABLE FOR NOT TAKING A REASONABLE COURSE OF
ACTION EVEN IF A DANGEROUS SITUATION WAS CREATED BY THE OPPOSITE
PARTIES, ASSUMING ARGUENDO. _________________________________________________ 11
IV. THAT THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE HEADS OF
DAMAGES. _________________________________________________________________________ 12
A. THE PROPER LAW OF THE DISPUTE IS THE SUBSTANTIVE LAWS OF INDIA. ______ 12
B. ASCERTAINING THE HEADS OF DAMAGES IS A SUBSTANTIVE ISSUE. _____________ 12
C. ASSUMING ARGUENDO, IF THE HEADS OF DAMAGES IS A PROCEDURAL ISSUE, LEX
FORI APPLIES.____________________________________________________________________ 13
D. ENGLISH COURTS WOULD HAVE ALSO APPLIED THE HEADS OF DAMAGES AS
PROVIDED UNDER THE SUBSTANTIVE LAW OF INDIA. _____________________________ 13
V. THAT THE COMPLAINANTS CANNOT SUE THE OPPOSITE PARTIES IN ANOTHER
JURISDICTION, WHILE A LEGAL REMEDY IS SOUGHT IN THE INDIAN COURTS ALSO. _ 14
A. SUIT FILED DURING THE PENDENCY OF THE PRESENT PROCEEDINGS. __________ 14
B. SUIT IS FILED AFTER THE CONCLUSION OF THE PRESENT PROCEEDINGS. _______ 15
PRAYER ______________________________________________________________________________ 18

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LIST OF ABBREVIATIONS

Dr. – Doctor
ORS. – Others
Mrs. – Mistress
Mr. – Mister
TEN – Toxic Epidermal Necrolysis
UK – United Kingdom
Hon’ble – Honorable
Anr. – Another
AIR – All India Reporter
US – United States
LJ- Lord Justice
Id. – Ibid
et. al. – et alia (and others)
SC – Supreme Court
Ltd. – Limited
SCC – Select Cases in Chancery

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INDEX OF AUTHORITIES

Statutes
 Consumer Protection Act,1986
 Consumer Protection Rules, 1987
 Indian Contract Act, 1872
 UNIDROIT Principles of Transnational Civil Procedure
Books
 C. GOVINDARAJ, THE CONFLICT OF LAWS IN INDIA: INTER-
TERRITORIAL AND INTER-PERSONAL CONFLICT 222 (1st ed. 2011)
 ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005)
 ATULSETALVAD, CONFLICT OF LAWS 27 (1stedn. 2008)
 AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF 4 (10th ed. 2008)
 DAN LONGO et al., 1 HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 307
(18th ed. 2010)
 DICEY ET AL., THE CONFLICT OF LAWS 177 (Lawrence Collins ed.,14th ed.
2000)
 G.C CHESHIRE ET AL., CHESHIRE AND NORTH’S PRIVATE
INSTITUTIONAL LAW 67-8 (James Facwett ed., 13th ed. 1999)
 LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN
GENERAL MEDICINE 645 (8th ed. 2012)
 N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKS’S
TEXTBOOK OF
 DERMATOLOGY 5.2 (Tony Burns et al. eds., 2010
 PDR STAFF, PHYSICIAN'S DESK REFERENCE 2246-7 (47th ed. 1993)
 PRINCIPLES AND PRACTICES OF DERMATOLOGY 998 (W. Mitchell Sams, Jr.
& Peter J. Lynch eds., 1996)
 RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th
ed. 2013)
 SPENCER BOWER & TURNER, RES JUDICATA 9 (Sir Alexander Turner ed., 2nd
ed.1969)

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Websites
 http://www.judiciary.gov.uk
 http://www.judis.nic.in
 http://indiankanoon.org
 http://www.manupatra.com
 http://en.wikipedia.org
 http://www.drugs.com
Articles
 Ailes, Substance and Procedure in the Conflict of Laws, 39 MICHIGAN LAW
REVIEW 392 (1941)
 Civil Justice in England and Wales, (Jan. 18, 2016, 4:45 PM)
 Dirk K. Greineder, Generalist vs specialist medical care, 284 (22) THE JOURNAL
OF
 AMERICAN MEDICAL ASSOCIATION 2869, 2873 (2000)
 DjillaliAnnane et al., Corticosteroid for severe sepsis and septic shock, a systematic
review and meta-analysis, 329 BRITISH MEDICAL JOURNAL 480, 483 (2004)
 J.S. Pasricha, Management of toxic epidermal necrolysis, 56 (6) IND. J.
DERMATOLOGY
 VENEREOLOGY AND LEPROLOGY 458, 460 (1990)
 Leonard H. Calabrese & John D. Clough, Hypersensitivity vasculitis group (HVG): A
caseoriented review of a continuing clinical spectrum, 49 (1) CLEVELAND CLINIC
QUARTERLY 17, 19-20 (1982)
 Nadia Ali Asfar et al., Role of systemic steroids in the outcome of Stevens-Johnson
syndrome and toxic epidermal Necrolysis, 20 JOURNAL OF PAKISTAN
ASSOCIATION OF DERMATOLOGISTS 158, 160 (2010)
 Sandipan Dhar, Systemic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J.
 DERMATOLOGY VENEREOLOGY AND LEPROLOGY210, 220 (1996)
 What is Vasculitis?,(Oct. 20, 2014, 5:45 PM), http://www.vasculitis.org.uk/about-
vasculitis/what-is-vasculitis
 WW Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J.
333, 334 (1933)

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Table of Cases
A.S. Mittal v. State, A.I.R. 1989 S.C. 1570 _______________________________________ 1
Barber v. Lamb (1860) 8 C.B. (N.S.) 95_________________________________________ 16
Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955) _________________________ 9
Black v. Yates [1992] Q.B. 526 _______________________________________________ 16
Bolam v. Friern Hospital Management Committee(1957) 2 All E.R. 118 __________ 1, 2, 3, 5
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. (H.L.) 853 __________ 16
Dr. Balram Prasad v. Dr. Kunal Saha and Ors.,(2014) 1 S.C.C. 384 ___________________ 13
Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128 _________________________________ 1
Edmunds v. Simmonds, [2001] 1 W.L.R. 1003 ___________________________________ 12
First National Bank of South Africa v. Rosenblum, 2001 (4) S.A. 189 __________________ 9
Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781 ______________________________ 9
Hansen v. Dixon (1906) 23 T.L.R. 56 __________________________________________ 13
Henderson v. Stevenson, L. R. 2 H. L. (Scot.) 470__________________________________ 8
Huber v. Steiner, (1835) 2 Bing. N.C. 202 _______________________________________ 12
Hunter v. Hanley, 1955 S.L.T. 213 ______________________________________________ 2
INS Malhotra v. Dr. A. Kriplani,(2009) 4 S.C.C. 705 _______________________________ 1
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 ________________________________ 1
Lewis v. Great Western Rly, (1877) 3 Q.B.D. 195 __________________________________ 8
M.K. Usman Koya v. C.S Santha, A.I.R. 2003 Ker. 191 _____________________________ 9
M/s Prakash Road Lines (P) Ltd v. HMT Bearing Ltd, A.I.R. 1999 A.P. 106 _____________ 8
Malay Kumar Ganguly v. Abani Roychowdhury and Anr. and Sukumar Mukherjee and Ors.,
(2004) L.R. 1 Cal. 332_____________________________________________ 2,3,4,5,7,11
Maynard v. Midlands Regional Health Argument, (1985) 1 All E.R. (H.L.) 635 __________ 2
Mitchell v. Homfray, (1881) 8 Q.B.D. 587 ______________________________________ 10
Modi Entertainment Network and Anr. v. W.S.G. Cricket P.T.E. Ltd., A.I.R. 2003 S.C. 1177
____________________________________________________________________ 14,15
Oil and Natural Gas Commission v. Western Co. of North America, A.I.R. 1987 S.C. 674 _ 14
Robinson v. The Post Office, (1974) 2 All E.R. (C.A.) 737 ___________________________ 7
Satyadhyan Ghosal v. Smt. Deorajin Debi, [1960] 3 S.C.R. 590 ______________________ 16
Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. (H.L.) 460 ____________________ 15
Suresh v. State of Tamil Nadu, A.I.R. 1997 S.C. 1889 ______________________________ 2
T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748 __________________________________ 1

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STATEMENT OF FACTS
Mrs. Rachel Specter (Orthopaedic Surgeon) and Mr. Mike Specter (Attorney), a UK based
couple had visited Chandigarh in October, 2015 for a period of two months. Thereafter, Mrs.
Rachel Specter started to experience acute pain, fever and rashes on her body.
Initial Treatment Given To Mrs. Rachel Specter
They approached Dr. Rahul Malhotra, a Chandigarh based General Practitioner on 15th
Oct., 2015 who administered her 80 mg dose of a steroid ‘Depomedrol’ and prescribed two
injections daily for the next three days.
Treatment Given to Mrs. Rachel Specter at AGI Hospital
With no improvement, she was admitted to AGI Hospital, Chandigarh on 19th Oct. where
Mr. Mike was made to sign a standard ‘Patient Undertaking cum Guideline Document’
which provided details of the essential clinical procedures undertaken by AGI Hospital. This
document regulates all the doctors and staff, and the terms state that the patient takes
responsibility for risks associated with the medical procedure. Dr. Rahul Malhotra, who had
to leave for Australia on a pre-arranged visit to the University of Western Australia for
delivering a lecture, left Ms. Rachel in the care of Dr. Yusuf Khan, a dermatologist at the
AGI Hospital.
Treatment Given by Dr. Yusuf Khan and Subsequent Death of Mrs. Rachel Specter
In pursuance of the above undertaking, a tapering dose of another steroid, namely,
‘Prednisolone’ was administered, continuing the treatment for allergic vasculitis (an extreme
reaction to a drug leading to inflammation of blood vessels of the skin). On 20th Oct., Ms.
Rachel was diagnosed by Dr. Yusuf Khan to be suffering from Toxic Epidermal Necrolysis
(TEN), a rare skin condition caused by a reaction to drugs. However, He didn’t make any
drastic change in the treatment of the patient after this diagnosis. With no improvements,
Ms. Rachel was admitted to AMS Hospital, New Delhi where she died on 5th Nov. 2015.
Complaint by Mr. Mike Specter in National Consumer Disputes Redressal Commission
Mr. Mike Specter has filed a complaint against Dr. Rahul Malhotra, Dr. Yusuf Khan and AGI
Hospital for medical negligence in the National Consumer Disputes Redressal Commission,
New Delhi. He further intends to sue the respondents before County Court, Birmingham, UK.
The opposite party has refuted the claims made by the complainant and state that, they had
adopted the requisite standard of care in handling the patient and administration of the
treatment in terms of the ‘Patient Undertaking cum Guideline Document’.

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STATEMENT OF JURISDICTION
The Complainant, Mr. Mike Specter has filed a complaint before the Hon’ble National
Consumer Disputes Redressal Commission, New Delhi under Section 211 of The Consumer
Protection Act, 1986. The Complainant approached the commission on account of deficiency
in services provided by Dr. Rahul Malhotra, Dr. Yusuf Khan and AGI Hospital, Chandigarh
under Section 2(1)(g)2 of The Consumer Protection Act, 1986.
The opposite party humbly submits to the Jurisdiction of this Hon’ble Commission and shall
accept any judgement of this Commission as final and binding and shall execute them in
entirety and in good faith.
Note: The necessary fee of ₹ 5000 as mandated by the Section 9A of the Consumer
Protection Rules, 1987 in the form of crossed Demand Draft drawn on the State Bank of
India in favor of the Registrar of the National Commission payable at New Delhi has been
submitted.

1
Subject to the other provisions of this Act, the National Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one
crore
2
"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service

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ISSUES
I. Was there deficiency in services on the part of the opposite parties?

II. Are the opposite parties liable for any act or negligence under the Patient Undertaking
cum Guideline Document?
III. Was there negligence on part of the Complainant?
IV. Can Complainant claim damages under various heads mentioned by him?
V. Can the Complainant file a complaint in UK?

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SUMMARY OF ARGUMENTS
1. THE OPPOSITE PARTIES DID NOT PROVIDE DEFICIENT SERVICES

WHILE CARRYING OUT THE TREATMENT OF MRS. RACHEL SPECTER.
The opposite parties did not provide deficient services and were not compositely
negligent in carrying out the treatment of Mrs. Rachel. To establish this, the opposite
parties have submitted a two-fold argument:
A) That the opposite parties did exercise ordinary skill and care as their diagnosis was
based on sound medical prudence and the medication prescribed by them was in
consonance with the established medical practice,
B) that the opposite parties followed the accepted norms of the medical profession as
there was no obligation on them to make a referral to a specialist and they were not
supposed to give supportive treatment in lieu of the diagnosis carried out by them, and
C) that the damage caused was not a direct consequence of the act of the opposite
parties as the damages were not foreseeable and the chain of causation was broken by
the intervening act of the complainant.
2. THE OPPOSITE PARTIES ARE EXEMPTED FROM ANY LIABILITY
RESULTING FROM NEGLIGENCE AS A RESULT OF THE PATIENT
UNDERTAKING CUM GUIDELINE DOCUMENT.
The opposite parties are exempted from any liability resulting from negligence. To
establish this, the opposite parties submit a two-fold argument:
A) that the Patient Undertaking cum Guideline Document is a standard form contract
enforceable by law owing to the disclosure of all the risks and reasonable notice
contemporaneous with the contract by the opposite parties, and
B) that the Patient Undertaking cum Guideline Document is not against public policy
as it is not a harsh contract and has been willingly assented to by the parties.
C) the provisions of section 16 of the Indian Contract Act do not get attracted as the
influence of the opposite parties over the patients was not abused and betrayed and a
full disclosure of all material information to the contract was made.
3. THE COMPLAINANT SHOWED COMPLETE NEGLIGENCE ON HIS PART
There was complete negligence on part of the opposite parties as:
A) that the complainant did not take appropriate care of his wife, and
B) the complainant did not take a reasonable course of action even if a dangerous
situation was created by the opposite parties. All these stand true as the movement of

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the complainant’s wife was highly risky as there were huge chances of infection due
to lack of immunity owing to the fact that the deceased was suffering from TEN.
4. THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE
HEADS OF DAMAGES.
The complainants can only seek damages under as provided under the Indian law. For
this, the opposite parties submit a four-fold argument:
A) that the Indian conflict of law rules mandate that the proper law would govern the
substantive issues of the case,
B) the computation of damages and the heads of damages is a substantive issue,
C) that, assuming arguendo, even if the heads of damages is a procedural issue, the
Indian Courts being the lex fori would still apply its procedure to the heads of
damages, and
D) that the English Courts would have also applied the substantive law of India, in
case the present matter was filed in its Courts.
5. COMPLAINANTS CANNOT SUE THE OPPOSITE PARTIES IN ANOTHER
JURISDICTION, WHILE A LEGAL REMEDY IS SOUGHT IN THE INDIAN
COURTS ALSO.
The complainants cannot sue the opposite parties in another jurisdiction. For this, the
opposite parties have given a two-fold argument:
A) that if the suit is filed during the pendency of the present proceedings, the filing of
the suit would be against the ends of just and the principle of forum non-conveniens
would be attracted, and
B) if a suit is filed after the conclusion of the present proceedings, then the doctrines
of Res Judicata and issue estoppel would be attracted, the judgment of the Indian
Court would lead to a merger of cause of action, and there is an obligation on United
Kingdom to recognize and enforce the Indian judgment under international principles.

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ARGUMENTS ADVANCED

I. THE OPPOSITE PARTIES DID NOT PROVIDE DEFICIENT SERVICES WHILE

CARRYING OUT THE TREATMENT OF MRS. RACHEL SPECTER.
1. Where a person is injured as a result of negligence of two or more persons, it is said that
the person was injured on account of the composite negligence of these wrongdoers3.
2. It is submitted that the opposite parties are not liable for negligence in the treatment of the
complainant’s wife as they had [A] exercised ordinary skill and care, and [B] followed the
accepted norms of the medical profession. Moreover, [C] the damages caused were not a
direct consequence of the acts of the opposite parties.
A. THE OPPOSITE PARTIES HAD EXERCISED ORDINARY SKILL AND CARE.

3. The test to determine the negligence of a medical professional has been established in the
case of Bolam v. Friern Hospital Management Committee4 as requiring the standard of an
ordinary skilled man exercising and professing to have the skills of a medical professional.
Negligence would mean failure to act in accordance with the standards of a reasonably
competent medical man at that time5.
4. A reasonable degree of care and caution needs to be maintained by the doctor while
carrying out the treatment. Neither the highest nor the lowest degree of care is stipulated in
the test. Moreover, the care and competence would be judged in light of the facts and
circumstances of each case6.
5. It is submitted that the opposite parties exercised ordinary skill and care as the diagnosis
carried out by them was based on sound medical prudence and the medication prescribed was
in consonance with the established medical practice.
i. The diagnosis carried out by the opposite party was based on sound medical
prudence.
6. A doctor when consulted by a patient owes the patient a duty of care in deciding the kind
of treatment that need to be given to the patient7. The standard of the duty of care required to
be carried out should be that of an ordinary skilled medical professional. The treatment
adopted should be such that a responsible body of medical opinion would have accepted it as

3
T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748
4
(1957) 2 All E.R. 118 [hereinafter ‘Bolam’]
5
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 [hereinafter ‘Jacob’]; INS Malhotra v. Dr. A.
Kriplani,(2009) 4 S.C.C. 705
6
Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128 (cited in A.S. Mittal v. State, A.I.R. 1989 S.C. 1570)
7
Id

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proper8. Therefore, a medical practitioner would not be negligent simply because a better
alternative course of action or method of treatment was available or that a more skilled doctor
would not have chosen to follow or resort to that practice or procedure which the accused
medical practitioner had followed9.
7. It is submitted that in the realm of treatment and diagnosis, there is scope for genuine
difference of opinion and one doctor is clearly not negligent because his opinion differs from
that of the other doctor10. Mere error of judgment would not bring the act of the doctor within
the ambit of negligence. The diagnosis of the disease lies within the scope of the expertise of
the doctor and the doctor could exercise discretion in such cases11. Moreover, the guidelines
for treatment are only meant for assisting the medical professionals. They cannot be used to
mandate, authorize or outlaw treatment options. The only requirement is that the professional
opinion relied upon by a doctor in cases of diagnosis and treatment must be reasonable and
responsible.
8. Diagnosis of skin diseases is a cumbersome and complicated process. There may be many
overlapping symptoms where symptoms of two or more diseases could be visible and
consequently it may become extremely difficult to diagnose the disease accurately12. Huge
complexities arise in cases of diseases involving rashes, as in such it becomes difficult to
ascertain the exact cause of rashes13, thereby posing a substantial chance of misdiagnosing14.
9. Toxic Epidermal Necrolysis (TEN) is not a very common disease and it occurs in the rarest
of rare cases in India15. Initial symptoms can be unspecified and would generally include
fever, stinging eyes etc. Typically, these symptoms precede by a few days any cutaneous
manifestation, i.e. rashes. These are quite similar to the symptoms of allergic vasculitis,
whereby there is pain rash, fever etc.16 Allergic vasculitis can be quite extensive involving
bullae formation, necrosis involving the skin, and mucous membrane. Moreover, these
symptoms are also quite similar to Steven Johnson Syndrome and Erythema Multiforme

8
Maynard v. Midlands Regional Health Argument, (1985) 1 All E.R. (H.L.) 635 (appeal taken from Eng.)
9
See Bolam, (1957) 2 All E.R. 118, supra note 4.
10
Hunter v. Hanley, 1955 S.L.T. 213
11
Suresh v. State of Tamil Nadu, A.I.R. 1997 S.C. 1889
12
N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKS’S TEXTBOOK OF
DERMATOLOGY 5.2 (Tony Burns et al. eds., 2010).
13
ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005).
14
Malay Kumar Ganguly v. Abani Roychowdhury and Anr. and Sukumar Mukherjee and Ors., (2004) I.L.R. 1
Cal. 332 [hereinafter ‘Malay Kumar Ganguly’]
15
Malay Kumar Ganguly, supra note 14
16
What is Vasculitis?,(Oct. 20, 2014, 5:45 PM), http://www.vasculitis.org.uk/about-vasculitis/what-isvasculitis.

P a g e | 3
Major17.
10. Therefore, it is submitted that there could be genuine differences of opinion regarding the
diagnosis of a patient showing symptoms such as acute pain, fever and rashes. A drug allergy
gives rise to all varieties of skin rash in isolations or in various combinations, along with
varied symptoms such as fever, joint pains etc.18 Further, the onset of TEN can be sudden and
acute19.
11. Hence, the diagnosis of complainant’s wife’s disease as allergic vasculitis was based on
sound medical prudence by application of ordinary skill and care, thereby not constituting a
negligent act.
ii. The medication prescribed by the opposite party was in consonance with the
established medical practice.
12. It is submitted that the treatment carried out by a doctor needs to conform to the standard
of an ordinary competent medical professional. Generally, there may be one or more
perfectly proper standards, and if the medical professional chooses to conform to any of these
proper standards, such act of the medical professional would not fall within the domain of
negligence.20
13. Corticosteroids have been accepted as a treatment option for TEN as they suppress the
necrolytic process in the skin as well as internal organs. Systematic steroids have been part of
the standard treatment in the early 1990’s. Further, Glucocorticoid properties of
Corticosteroids are used to suppress the clinical manifestation of disease in a wide range of
disorders considered to have inflammatory and immunological components.21
14. The complainant’s wife was prescribed Depomedrol on 15th Oct. and she was prescribed
Prednisolone, in a tapering dose, in continuation of her treatment for allergic vasculitis. Dr.
Yusuf Khan continued the same treatment on his diagnosis of the disease of the
complainant’s wife as TEN.
15. Both Depomedrol and Prednisolone are considered to be a having Glucocorticoid
properties that could be used to tackle inflammatory problems. These drugs are usually

17
Crispian Scully & Jose Bagan, Oral mucosal diseases: erythema multiforme, 46 (2) BR. J. ORAL
MAXILLOFAC SURG. 90, 94 (2008)
18
19
1 DAN LONGO et al., 1 HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 307 (18th ed. 2010);
LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN GENERAL MEDICINE 645 (8th
ed. 2012).
20
Bolam, supra note 4
21
WILLIAM MARTINDALE, MARTINDALE: THE EXTRA PHARMACOPOEIA1021 (James E.F.
Reynolds et al. eds., 31st ed. 1996).

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prescribed for various acute diseases like Stevens Johnson’s syndrome, pemphigus, and
allergic vasculitis22.
16. The selection of the dose of corticosteroid is generally arbitrary and depends on the
severity of the disease23. Moreover, steroids instituted in high doses early in the diseases are
opined to be highly helpful in preventing further tissue damage by the ongoing process of
TEN24. Thus, the overall prognosis is much better in patients who are put on high dose
systematic steroids within 7 days of the development of TEN25.
17. It is submitted that there is no universally accepted protocol for the treatment of TEN. No
specific drug could be mentioned that can be used at all stages in all the cases of TEN. Thus,
there is a grey area in medical science with respect to the treatment of TEN26.
18. Since, the opposite parties had initially diagnosed the disease to be allergic vasculitis and
considered it to be at an aggravated stage, it was reasonably prudent of them to administer
Depomedrol and prednisolone. Thus, their conduct would fall outside the purview of
negligence.
B. THE OPPOSITE PARTIES HAD FOLLOWED THE ACCEPTED NORMS OF

MEDICAL PRACTICE.
19. It is submitted that a medical professional is supposed to carry out the treatment as per the
standards that have been recognized by reasonably competent medical men. A fair,
reasonable and competent degree of skill needs to be used in consonance with these
standards. As long as the doctor acts in a manner that is acceptable to the medical profession,
his actions would not attract tortious liability27.
20. It is submitted that the opposite parties followed the established and accepted norms of
medical practice as Dr. Rahul Malhotra was under no obligation to make a referral to a
specialist at the outset of the treatment and the opposite parties were not supposed to give
supportive treatment in lieu of the diagnosis carried out by them through application of
ordinary care and skill.
i. The 1st opposite party was under no obligation to make a referral to a specialist.
21. It is submitted that general practitioners play a major role in preventive health care, both

22
PDR STAFF, PHYSICIAN'S DESK REFERENCE 2246-7 (47th ed. 1993)
23
24
Sandipan Dhar, Systemic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J. DERMATOLOGY
VENEREOLOGY AND LEPROLOGY 210, 220 (1996)
25
J.S. Pasricha, Management of toxic epidermal necrolysis, 56 (6) IND. J. DERMATOLOGY
VENEREOLOGY AND LEPROLOGY 458, 460 (1990)
26
27
Bolam, supra note 4

P a g e | 5
in setting the terms as well as putting them into practice28. These medical professionals cover
a broad ambit of medical field, thereby covering most of the common health problems, along
with complicated internal medicine matters. In general, diagnosing a purported
dermatological ailment does not require any high- technology clinical practice.
22. Specialists on the other hand deal with specific types of illnesses and problems that affect
specific tissues or organ systems in the body. With growing sophistication of technology, the
super-specialists have become increasingly dependent on technology/instruments to make a
diagnosis, consequently increasing the cost associated with the diagnosis and the subsequent
treatment. Also, no amount of technological sophistication can replace information derived
from history and physical examination29.
23. In the present case, rashes, fever and acute pain were diagnosed to be indicative of
allergic vasculitis by the 1st opposite party. The said disorder is an allergic and inflammatory
condition of the blood vessels in the body that can affect not only the blood vessels of the
skin but also any internal vital organs, which might consequently even lead to the death of a
patient at any point of time30. Thus it is not strictly a dermatological disorder31, and would
fall within the ambit of the functioning of the general practitioners.
24. It is submitted that the assessment of the condition of the patient is well covered by the
domain of discretion of the medical professional. Therefore, deviations from specific
guidelines, such as those of referral, may be possible owing to specific and compelling
reasons.
25. Therefore, it is submitted that the 1st opposite party was functioning well within the
accepted norm of medical practice in so far he carried out the treatment of the complainant’s
wife. In fact, when the patient was observed to be not recovering, she was admitted to another
hospital, where the 1st opposite party himself left the patient under the care of the 2nd
opposite party, a dermatologist. Thus, the negligence with respect to non-referral of the
patient to a specialist cannot be imputed on him.
ii. The opposite parties were not supposed to give supportive treatment in lieu of the
diagnosis carried out by them.
26. The complainant’s wife visited the 1st opposite party on 15th Oct. complaining acute pain,

28
The Role of General Practitioners in preventing disease and promoting health in the Nordic countries, (Jan
20,2016 , 6:30 PM),www.nfgp.org/flx/nfgp/policy
29
Dirk K. Greineder, Generalist vs specialist medical care, 284 (22) THE JOURNAL OF AMERICAN
MEDICAL
ASSOCIATION 2869, 2873 (2000)
30
31
Id

P a g e | 6
fever and rashes. The common symptoms of allergic vasculitis are fever, rashes, joint pains,
itching etc.32 On the exercise of ordinary skill and care as required from a medical
practitioner, the 1st opposite party had diagnosed the disease to be allergic vasculitis. It is
submitted that the treatment related to allergic vasculitis does not entail supportive care as an
essential component. Therefore, supportive care did not have to be specifically included in
the treatment.
27. Further, even TEN does not have a specific treatment33, as there is no fixed regime
applicable at all stages of TEN. In light of the prevalence of a grey area in matters of
treatment of TEN, even the 2nd opposite party could not be held to be liable for not providing
supportive therapy.
C. THE DAMAGES CAUSED ARE NOT A DIRECT CONSEQUENCE OF THE ACT OF

THE OPPOSITE PARTIES.
28. It is submitted that the damages caused are not a direct consequence of the act of the
opposite parties as the damages were not foreseeable and the chain of causation was broken
by the intervening act of the complainant.
i. The damages were not foreseeable.

29. A person is responsible only for the consequences that are not remote. The principle of
remoteness would be attracted if the damages are far-fetched and could not have been
foreseen.
30. It is submitted that since the treatment of the complainant’s wife was carried out by
exercise of ordinary care and skill and in accordance with the accepted principles of medical
profession, the death of the complainant’s wife was clearly not foreseeable, thereby bringing
the act of the opposite parties outside the purview of the medical negligence.
ii. The intervening act of the complainant broke the chain of causation.
31. It is submitted that the damages resulting to the complainant after the chain of causation
set in motion by the opposite parties’ wrongful act is snapped if it be too remote and
consequently the complainant would not be qualified for the award of damages against the
opposite parties34. The snapping of the chain of causation may be caused by either a human
action or a natural event35. Thus, an unreasonable act done by the complainant resulting in
further damage breaks the chain of causation.

32
Glossary of Drugs and Side Effects?,(Oct. 20, 2014, 5:55 PM), http://www.vasculitis.org.uk/aboutvasculitis/
glossary-of-drugs
33
2 LOWELL A. GOLDSMITH et al.,supra note 19, at 651
34
Robinson v. The Post Office, (1974) 2 All E.R. (C.A.) 737
35
RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th ed. 2013)

P a g e | 7
32. The shifting of the complainant’s wife from AGI Hospital, Chandigarh to AMS Hospital,
New Delhi where she died on the 5th Nov. posed huge risks of developing infections, such as
sepsis, during the transfer due to exposure36. The chances of any infection developing in case
of TEN are quite high due the lack of immunity37. Thus, the injury caused by the
complainant’s unreasonable conduct cannot be attributed to the opposite parties’ wrongful
act, as the chain of causation was broken due to the wrongful act of the complainant. Hence,
the opposite parties would not be liable for negligence, leading to the death of the
complainant’s wife.

36
37
Djillali Annane et al., Corticosteroid for severe sepsis and septic shock, a systematic review and
metaanalysis, 329 BRITISH MEDICAL JOURNAL 480, 483 (2004)

P a g e | 8
II. THE OPPOSITE PARTIES ARE EXEMPTED FROM ANY LIABILITY
RESULTING FROM NEGLIGENCE AS A RESULT OF THE PATIENT
UNDERTAKING CUM GUIDELINE DOCUMENT.
33. It submitted that the opposite parties are exempted from any liability resulting from
negligence as [A] the Patient Undertaking cum Guideline Document is a standard form
contract enforceable by law, and [B] it is not against the public policy.
A. THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT IS A STANDARD

FORM CONTRACT ENFORCEABLE BY LAW.
34. Standard form contracts are a common feature of commercial relationships, and are
legally binding agreement between two parties. Thus, through the standard form contract, an
enterprise chooses to use a single form contract for multiple transactions38. Fundamentally,
the standardization of contracts is a standardization of the package offered to customers, in
much the same way, as is standardization of a product.
35. It is submitted that a person who signs a contract must know that he/she signs it for some
purpose, and the rights of the person would be regulated as per the terms of the standard form
contract39. Thus, unless the signature is shown to be obtained by fraud or misrepresentation,
the contract cannot be set aside. The terms of the contract cannot be aside solely on the basis
of the non-mindfulness of the complainant. Thus, the terms of all such agreements would be
binding if they are made by the free consent of the parties competent to contract, for a lawful
consideration and with a lawful object, and are not expressly declared to be void.
36. The determination of the validity of contracts exempting a party from liability for
negligence is closely allied to the basic theory of mutual assent40. An exemption clause can
be validly put in the contract if a reasonable notice is given for the exemption clause to the
complainant41. Moreover such reasonable notice should be contemporaneous with the
contract.
37. In fact, no contract can be set-aside solely in the basis of the presence of an exemption
clause42. Moreover, the intention of the parties to the contract can override even a
fundamental breach of contract.
38. The Patient Undertaking cum Guideline Document was a standard form contract whereby

38
H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW 318, 323 (1953)
39
Lewis v. Great Western Rly, (1877) 3 Q.B.D. 195
40
Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA LAW
REVIEW 121, 128 (1956)
41
Henderson v. Stevenson, L. R. 2 H. L. (Scot.) 470; M/s Prakash Road Lines (P) Ltd v. HMT Bearing Ltd,
A.I.R. 1999 A.P. 106
42
Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955)

P a g e | 9
it had been clearly mentioned that all the risks associated with the treatment and operation
would ultimately rest with the concerned patient. Thus, a reasonable notice contemporaneous
with the contract has been provided. Moreover the contract was made with free consent,
lawful consideration and a lawful object. Therefore, the Patient Undertaking cum Guideline
Document in a valid standard form contract and thus its terms cannot be deviated from.
B. THE STANDARD FORM CONTRACT IS NOT AGAINST THE PUBLIC POLICY.

39. It is submitted that public policy in an ‘untrustworthy guide’. The primary duty of the
court is to enforce a promise that the parties have made and to uphold the sanctity of contract.
Public policy is only against harsh contracts that are brought forth, thereby, aiding an
individual who has not willingly assented to the contract.43
40. An agreement to give up one’s legal right would not be hit by Section 23 for contravening
the public policy44. Thus, the doctrine of public policy would not ipso facto be attracted if an
express provision of exemption were present in the contract.
41. A contractual indemnity is sufficient to transfer liability from the tort-feasor to the
indemnifier. Thus, the language of the clause and the agreement as a whole is to be seen to
ascertain whether the exemption clause is valid or not.45
42. The ‘Patient Undertaking cum Guideline Document’ was a valid agreement through
which medical services were to be given to the patient. The patients could evaluate the
clinical procedures as well as the self-management techniques. The exemption clause was
part of the valid agreement that stipulates that the risk of treatment would lie with the
patients. Thus, it is not a harsh contract and has been willingly assented to and the presence
of an exemption clause would not ipso facto attract the provisions of the doctrine of public
policy.
C. THE CONTRACT DOES NOT ATTRACT THE PROVISIONS OF SECTION 16

OF THE INDIAN CONTRACT ACT 1872.
43. It is submitted that there could be certain kinds of agreements where the parties are so
related to each other that one party can dominate the will of the other party. The person who
occupies the superior position may prevail upon the other to obtain his consent to the
agreement. Thus, the provisions of Indian Contract Act dealing with undue influence would
be attracted if the party has not made full disclosure of all the material facts to the contract, as
the confidence is reposed and betrayed. A doctor has a fiduciary relationship with a patient as

43
Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781
44
M.K. Usman Koya v. C.S Santha, A.I.R. 2003 Ker. 191
45
First National Bank of South Africa v. Rosenblum, 2001 (4) S.A. 189 (Appeal)

P a g e | 10
it is built upon trust and confidence46. In the present case, the influence of the opposite parties
over the patient was not abused and the confidence was not betrayed, insofar as full
disclosure of all material information to the contract was made through the Patient
Undertaking cum Guideline Document. Therefore, the actions of the opposite parties are
protected from the provisions of Section 16 of the Indian Contract Act.

46
Mitchell v. Homfray, (1881) 8 Q.B.D. 587

P a g e | 11
III. THE COMPLAINANT SHOWED COMPLETE NEGLIGENCE ON HIS PART
44. It is submitted that even if the opposite parties are held to be liable for negligence, their
liability would get reduced owing to the presence of contributory negligence on part of the
complainant as [A] he had failed to take reasonable care of his wife’s safety, and [B]he did
not take the safest course of action, even if a dangerous situation was created by the opposite
parties.
A. COMPLAINANT FAILED TO TAKE REASONABLE CARE OF HIS WIFE’S

SAFETY.
45. If the complainant fails to take reasonable care of the safety of the deceased, then, that
becomes a factor for the death or injury. The complainant, first of all did not try to understand
the problem she was suffering from and then he committed the act of shifting her from
Chandigarh to New Delhi which was the main factor contributing to the increase in problem
and leading to the death of his wife as there were huge chances of infection due the lack of
immunity in cases of TEN47.
B. THE COMPLAINANT IS LIABLE FOR NOT TAKING A REASONABLE COURSE

OF ACTION EVEN IF A DANGEROUS SITUATION WAS CREATED BY THE
OPPOSITE PARTIES, ASSUMING ARGUENDO.
46. If a dangerous situation is ascribable to the negligent act of the opposite party, the injured
person needs to take a course of action that would have been taken by a person of ordinary
prudence under the same trying conditions. If such a course of action were not taken, then
the injured person would be considered liable of contributory negligence.48
47. It is submitted that in the present case, the movement of the complainant’s wife was
highly risky as there are huge chances of infection due the lack of immunity in cases of
TEN.49 These infections that develop after the onset of TEN majorly contribute to the death
of the person in cases of TEN. Thus the act of the complainant in moving Mrs. Specter from
Chandigarh to New Delhi contributed substantially to the negligence, insofar it exposed her
to insurmountable risks.
48. Thus, the action of the complainant would fall within the domain of negligence, thereby
necessitating the dismissal of the complaint.

47
Djillali Annane et al., supra note 37, at 484
48
RATANLAL AND DHIRAJLAL, supra note 3, at 595
49

P a g e | 12
IV. THAT THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE
HEADS OF DAMAGES.
49. Before any proceeding begins in a conflict of laws case, it is the task of the forum to
characterize an issue as substantive or procedural50. While substance is broadly a matter of
right, procedure is broadly a matter of remedy in a conflict of laws case51. Characterization of
an issue on the basis of Indian conflict of rules is crucial for the forum deciding the case so as
to ascertain the governing law52.
50. It is submitted that the complainants can only seek damages as provided under the Indian
law because in a suit filed before an Indian Court containing a foreign element, [A] the Indian
conflict of law rules mandate that the proper law would govern the substantive issues of the
case, [B] the computation of damages and the heads of damages is a substantive issue, [C]
arguendo even if the heads of damages is a procedural issue, the Indian Courts being the lex
fori would still apply its procedure to the heads of damages; and [D] the English Courts
would have also applied the substantive law of India, in case the present matter was filed in
its Courts.
A. THE PROPER LAW OF THE DISPUTE IS THE SUBSTANTIVE LAWS OF INDIA.

51. Generally, all matters of substance are governed by the lex causae, which is the law
governing the cause of action.
52. In India, in the conflict of laws cases involving torts, the substantive law of the lex loci
delicti i.e. the place where the tort was committed, is the lex causae (law of the dispute)53.
B. ASCERTAINING THE HEADS OF DAMAGES IS A SUBSTANTIVE ISSUE.

53. The English common law characterizes the question of classification of heads of damages
recoverable as a substantive issue54, though computation of damages under those heads has
been classified as a procedural issue55.
54. At common law, no damages, for instance, have been awarded on the ground of
bereavement. The purpose of damages for bereavement made recoverable is regarded as
constituting compensation for all non- pecuniary loss suffered by the surviving relatives

50
In Re Fuld’s Estate (No. 3), [1966] 2 W.L.R. 717 at 695 (Eng.); Janeen M. Carruthers, Substance and
Procedure in The Conflict of Laws: A Continuing Debate in Relation to Damages, 53 (3) THE
INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 691, 692 (2004)
51
WW Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 334 (1933)
52
Huber v. Steiner, (1835) 2 Bing. N.C. 202(cited in 1 DICEY ET AL., THE CONFLICT OF LAWS 177
(Lawrence Collins ed.,14th ed. 2000)
53
ATUL SETALVAD, CONFLICT OF LAWS 27 (1stedn. 2008).
54
Edmunds v. Simmonds, [2001] 1 W.L.R. 1003
55
See Harding, [2006] UKHL 32

P a g e | 13
including “grief” or “mental suffering”56. Therefore, the common law position that is not
based on any statute, when applied to India, does not lead any award of damages on the
ground of bereavement.
55. The Supreme Court of India has also not awarded damages under the head of ‘emotional
distress, pain and suffering of the complainant’ in a similar case where the death of the
complainant’s wife was caused due to negligence of the doctors treating her, on the ground
that such a claim bears no direct link with the negligence caused by the opposite party
doctors.57
C. ASSUMING ARGUENDO, IF THE HEADS OF DAMAGES IS A PROCEDURAL

ISSUE, LEX FORI APPLIES.
56. It is a universally admitted and generally applied principle that the procedure is governed
by the lex fori58. The position of common law is followed and consequently if a foreign party
files an action in India, the lex fori will apply to the ‘procedural’ matters in India.
57. Therefore, if the classification of heads of damages were a procedural issue, then, India
being the lex fori, would apply its own procedure to such issues.
D. ENGLISH COURTS WOULD HAVE ALSO APPLIED THE HEADS OF DAMAGES

AS PROVIDED UNDER THE SUBSTANTIVE LAW OF INDIA.
58. The Rome II Regulation binding on the UK mandates that the law applicable to a non-
contractual obligation arising out of such issue as in this case shall be the law of the country
in which the damage occurred.59
59. Since the issue of classification of heads of damages recoverable is a substantive issue,
the necessary consequence would be that the UK Courts would apply the substantive law of
the place where the damage occurred.
60. In the present case, the complainant’s case is that the direct damage of the death of the
Mrs. Rachel occurred in India. Therefore, even if a suit were instituted in UK, still the UK
court would have applied the Indian substantive law to ascertain the recoverable heads of the
damages.

56
Law Commission of UK, Report on Personal Injury Litigation - Assessment of Damages, at 30- 3(1973)
57
Dr. Balram Prasad v. Dr. Kunal Saha and Ors.,(2014) 1 S.C.C. 384
58
Hansen v. Dixon (1906) 23 T.L.R. 56 (cited in De Gortari v. Smithwick, [2000] 1 I.L.R.M. 463 (Ireland))
59
Regulation (EC) No 864/2007, 2007 O.J. (L 199/40) art. 4.

P a g e | 14
V. THAT THE COMPLAINANTS CANNOT SUE THE OPPOSITE PARTIES IN
ANOTHER JURISDICTION, WHILE A LEGAL REMEDY IS SOUGHT IN THE
INDIAN COURTS ALSO.
61. The civil justice system in United Kingdom is mainly dealt by the County Courts.
Therefore, if the complainant initiates another action in the UK County Court against the
opposite parties, he would undertake such action at either of the two timings: [A] during the
pendency of the present proceedings or [B] after the conclusion of the present suit.
A. SUIT FILED DURING THE PENDENCY OF THE PRESENT PROCEEDINGS.

62. When a Court restrains a party to a suit/proceeding before it from instituting or
prosecuting a case in another court including a foreign court, it does so by granting an anti-
suit injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure restraining the
complainant from claiming any damages from the opposite parties in any Court except the
Courts in India. Since, Indian Courts are Courts of both law and equity, they possess the
power to grant such an equitable relief60.
63. The Hon’ble Supreme Court of India has categorically stated that such a relief can be
granted in regard to the proceedings which are oppressive or vexations or are sought to be
undertaken in a forum non- conveniens61.
64. It is submitted that if the complainant files another civil suit in UK during the pendency
of the present case, such proceedings would be against the ends of justice and/or in a forum
non- conveniens.
i. A civil suit in UK would be against the vexatious and oppressive.
65. In order to secure an injunction, the present opposite parties need to show as to how the
interests of justice will be served in the best way. If foreign proceedings may result in
extreme inconvenience, or multiplicity of actions, such cases can be classified as vexatious or
oppressive.62
66. Therefore, if the complainants initiate another civil action in the English Courts, such
course of action would be oppressive and vexatious as it would unnecessarily lead to
multiplicity of proceedings, especially in light of the factors that the alleged wrong has
occurred in Indian territory, the opposite parties carry on their profession in India and the lex
causae would be the substantive law of India.

60
Oil and Natural Gas Commission v. Western Co. of North America, A.I.R. 1987 S.C. 674
61
Modi Entertainment Network and Anr. v. W.S.G. Cricket P.T.E. Ltd., A.I.R. 2003 S.C. 1177
62
1 DICEY ET AL., supra note 52, at pp. 504-5

P a g e | 15
67. Even the Courts in England would have to be take into account the UNIDROIT principles
of Transnational Civil Procedure that suggest that a Court should decline jurisdiction or
suspend the proceeding, when the dispute is previously pending in another court competent to
exercise jurisdiction.63
ii. A civil proceeding in UK would be in a forum non-conveniens.
68. Generally, the Courts grant stay on the ground of forum non conveniens, if it is satisfied
that there is some other available forum, having competent jurisdiction and appropriate for
trial of the action, encompassing the interests of all parties and the ends of justice.64
69. The criteria to determine a more appropriate forum, for the purpose of ordering stay of the
suit, as laid down by the Supreme Court of India, would be to look for that forum that had the
most real and substantial connection in terms of convenience or expense with the action in
dispute; availability of witnesses; the law governing the relevant transaction and the places
where the parties resided or carried on business.65
70. It is submitted that the English Court is a forum non-conveniens as the opposite parties
would have to take all the witnesses, documentary evidence, receipts, hospital records to UK,
which would cause great inconvenience and economic loss, especially in light of the fact that
the cause of action in dispute is alleged and unless the court would grant an anti-suit
injunction against the respondent, it would result in disastrous consequences to the opposite
parties.
B. SUIT IS FILED AFTER THE CONCLUSION OF THE PRESENT PROCEEDINGS.

71. The complainants have filed a complaint in Indian Judicial system claiming damages on
the grounds of deficiency of services of the doctors. The Court therefore, would conclusively
decide the rights and liabilities of the parties by applying the law and give whatever remedy,
it may deem fit.
72. It is submitted that if a judgment is rendered by the Indian Court on merits of the present
case, then it would necessarily lead to invocation of the doctrines of res judicata and issue
estoppel, merger of cause of action with the Indian judgment and also making it obligatory
for the contracting states to recognize and enforce the judgment under various International
Private law principles and conventions.
i. Application of the doctrines of Res Judicata and issue estoppel.

63
UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE, art. 2.6 (2004)[hereinafter
‘UNIDROIT’]
64
Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. (H.L.) 460 (appeal taken from Eng.)
65
Id. (cited in See Modi Entertainment Network and Anr., A.I.R. 2003 S.C. 1177)

P a g e | 16
73. The principles of res judicata and issue estoppel is applicable in cases where a question of
fact or a question of law has been conclusively decided between the two parties in one suit or
proceeding66. The English common law has made it clear that a foreign judgment can give
rise to a plea of issue estoppel67.
74. The civil justice system in the United Kingdom is mainly dealt by the County Courts.
Therefore, if the complainant in the present complaint secures a judgment on the merits of the
case from the present Court, still proceeds to initiate another civil action against the
respondents, then, the issues on which the Indian Courts would have given a conclusive
decision, the complainant would be estopped from contesting those issues before the English
Court.
ii. Judgment of the present court will lead to merger of cause of action.
75. The statutory law in the United Kingdom would not allow the present complainant, if he
succeeds in the present suit, to bring another suit on the same cause of action against the
present opposite parties in the United Kingdom.
76. It is a settled law in England that if a complainant has brought proceedings in a foreign
court against an opposite party for damages in respect of a cause of action and obtains a
judgment, and that judgment is satisfied, he cannot proceed in respect of the same debt or of
damages based on the same cause of action against the same opposite party in the courts of
England68.
77. A similar question arose in the case of Black v. Yates69, where the plaintiff widow sought
to secure damages from an English Court after securing damages in the Spanish Court on the
same cause of action of death of her husband in Spain due to the negligence of the defendant.
The Court held that due to section 34 of the Civil Jurisdiction and Judgments Act, 1982 there
is a merger of the cause of action with the judgment given by the foreign Court70.
78. Therefore, once the Spanish Court had decided the cause of action and given a judgment
on that cause of action, the same cause of action cannot be invoked to seek damages in
England, as the Spanish judgment has subsumed the cause of action71.
79. Therefore, even on the basis of English statutory law, the complainant would not be able
to bring a civil action in UK County Court as such a civil suit would not be entertained.

66
Satyadhyan Ghosal v. Smt. Deorajin Debi, [1960] 3 S.C.R. 590
67
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. (H.L.) 853
68
Barber v. Lamb (1860) 8 C.B. (N.S.) 95
69
[1992] Q.B. 526
70
Id. at 542
71
Id. at 543

P a g e | 17
iii. Obligation on the United Kingdom to recognize and enforce the Indian judgment
under International Principles.
80. The Principles formulated by International Institute for the Unification of Private Law
bind both the states of India and United Kingdom, providing that a final judgment awarded in
another forum in a proceeding substantially compatible with its principles must be recognized
and enforced, unless substantive public policy requires otherwise72.
81. Therefore, it is submitted that the judgment of the National Consumer Disputes Redressal
Commission on the merits of the dispute would, subsequently govern the rights and liabilities
of the parties concerned and will be recognized in both UK and Indian jurisdictions.

72
UNIDROIT, supra note 63,art. 30

P a g e | 18
PRAYER

In light of the facts of the case, issues raised and arguments advanced, Counsels for the
Opposite parties respectfully prays before this Hon’ble Court to:
1. HOLD that there has been no deficiency in services of the opposite parties;
2. DISMISS the complaint;
3. GRANT injunction against the complainant from initiating any legal proceeding in
any other forum;
4. PASS any other order, which this Hon’ble court may be pleased to grant in the
interests of justice, equity and good conscience.
All of which is respectfully affirmed and submitted
Sd/-
Counsels for Opposite Parties

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Team Code- A13

UILS INTRA DEPARTMENT MOOT COURT

MIKE SPECTER (COMPLAINANT)

DR. RAHUL MALHOTRA & ORS. (OPPOSITE PARTY)

COMPLAINT RECEIVED UNDER SECTION 21 OF THE

CONSUMER PROTECTION ACT, 1986, CONCERNING

THE DEFECIENCY OF SERVICES UNDER SECTION

2(1)(g) OF THE ACT

WRITTEN SUBMISSION ON BEHALF OF THE

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

TABLE OF CONTENTS __________________________________________________________________ I

LIST OF ABBREVIATIONS ______________________________________________________________ II

INDEX OF AUTHORITIES ______________________________________________________________ III

STATEMENT OF JURISDICTION_______________________________________________________ VII

ISSUES _____________________________________________________________________________ VIII

SUMMARY OF ARGUMENTS ___________________________________________________________ IX

ARGUMENTS ADVANCED ______________________________________________________________ 1

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

TEN – Toxic Epidermal Necrolysis

AIR – All India Reporter

LJ- Lord Justice

et. al. – et alia (and others)

SCC – Select Cases in Chancery

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

I. Was there deficiency in services on the part of the opposite parties?

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

1. THE OPPOSITE PARTIES DID NOT PROVIDE DEFICIENT SERVICES

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

I. THE OPPOSITE PARTIES DID NOT PROVIDE DEFICIENT SERVICES WHILE

A. THE OPPOSITE PARTIES HAD EXERCISED ORDINARY SKILL AND CARE.

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

B. THE OPPOSITE PARTIES HAD FOLLOWED THE ACCEPTED NORMS OF

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

C. THE DAMAGES CAUSED ARE NOT A DIRECT CONSEQUENCE OF THE ACT OF

i. The damages were not foreseeable.

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

A. THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT IS A STANDARD

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

B. THE STANDARD FORM CONTRACT IS NOT AGAINST THE PUBLIC POLICY.

C. THE CONTRACT DOES NOT ATTRACT THE PROVISIONS OF SECTION 16

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

A. COMPLAINANT FAILED TO TAKE REASONABLE CARE OF HIS WIFE’S

B. THE COMPLAINANT IS LIABLE FOR NOT TAKING A REASONABLE COURSE

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

A. THE PROPER LAW OF THE DISPUTE IS THE SUBSTANTIVE LAWS OF INDIA.

B. ASCERTAINING THE HEADS OF DAMAGES IS A SUBSTANTIVE ISSUE.

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

C. ASSUMING ARGUENDO, IF THE HEADS OF DAMAGES IS A PROCEDURAL

D. ENGLISH COURTS WOULD HAVE ALSO APPLIED THE HEADS OF DAMAGES

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

A. SUIT FILED DURING THE PENDENCY OF THE PRESENT PROCEEDINGS.

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY