TEAM CODE: T-10

7TH FRESHERS MOOT COURT 2024

BEFORE
THE HON’BLE NATIONAL CONSUMER DISPUTE REDRESSAL
COMMISIION OF ARYAVARTA

ORIGINAL JURISDICTION

IN THE MATTER BETWEEN

MR. ROHIT CHATURVEDI…….………………………………………………PETITONER

V.

PMRI HOSPITAL AND IT’S STAFF ............................................................... RESPONDENT

UPON SUBMISSION TO THE HON’BLE NATIONAL CONSUMER

DISPUTE REDRESSAL COMMISIION OF ARYAVARTA

MEMORANDUM ON BEHALF OF RESPONDENT

 MEMORANDUM ON BEHALFOF RESPONDENT

TABLE OF CONTENTS

SL. NO. PARTICULARS PAGE NO.

1. TABLE OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 6

4. STATEMENT OF FACTS 7

5. ISSUES RAISED 10

6. SUMMARY OF ARGUMENTS 11

7. ARGUMENTS ADVANCED 12

8. PRAYER 19

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TABLE OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

& AND
S. SECTION
SCC SUPREME COURT CASES
SCDRC STATE CONSUMER
DISPUTE REDRESSAL
COMMISSION
GOVT. GOVERNMENT
AIR ALL INDIA REPORTER
CPA CONSUMER PROTECTION ACT
HON’BLE HONOURABLE
NCDRC NATIONAL CONSUMER
DISPUTE REDRESSAL
COMMISSION
V. VERSUS
ORS OTHERS
ANR OTHER PARTIES INVOLVED IN THE CASE
SC SUPREME COURT

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INDEX OF AUTHORITIES

ARYAVARTA CASES

CASE NAME

Sethuraman Subramanium Iyer vs. Triveni Nursing Home and Anr.

Dr. Sukumar Mukherjee vs. Medical Council of India & Ors

⁠ Mr. Subramani & Ors vs. Christ Jathi Hospital & Anr

Dr. Ganesh Prasad and Anr. V. L

⁠Bombay Hospital and Medical Research Centre vs. Asha Jaiswal and Ors

Chanda Rani Akhouri and Others vs. M.A. Methusethupathi and Ors

Dr. Subramanyam and Anr. vs. Dr. B. Krishna Rao and Anr.

⁠Samira Kohli vs. Dr Prabha Manchanda and Anr.

INTERNATIONAL CASES

Naraji vs.Shelbourne MD

BOOKS REFERRED

Sr. No. BOOK AND AUTHOR

1. THE LAW OF TORTS - C. JAMNADAS & CO.

2. LAW ON CONSUMER PROTECTION – V.K. AGGARWAL

3. THE LAW OF TORTS – R.K. BANGIA

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STATUTES

Sr. No. STATUTES REFERRED

1. CONSUMER PROTECTION ACT, 1986

2. CONSUMER PROTECTION ACT, 2019

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STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of the Hon’ble National Consumer Dispute
Redressal Commission of Aryavarta1. The petitioners approach the Hon’ble court under Sec. 51 of
The Consumer Protection Act, 2019.

Section 51 - Appeal to National Commission-

(1) Any person aggrieved by an order made by the State Commission in exercise of its powers
conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 47 may prefer an appeal
against such order to the National Commission within a period of thirty days from the date of the
order.

The counsel on the behalf of the respondent, challenges this appeal of the appellant.

The present memorandum sets forth the facts, issues and arguments.

1
All laws of Aryavarta are pari materia to the Indian Constitution.

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STATEMENT OF FACTS

1. Mr. Ramesh Chaturvedi, aged 68 years, is a resident of 71/A, Sector 3, Civil Lines, Teplana. Mr.
Ramesh lives with his wife, Mrs. Aarti Chaturvedi, aged 64 years. Teplana is a state in the country
of Aryavarta. All laws of Aryavarta are in pari materia with the laws of India.

2. Mr. Ramesh worked as an Accountant in Inkosys Ltd. Due to the stressful nature of his job Mr.
Ramesh relied on alcohol. He suffered from Hypertension from a very young age and took
medication for the same. Moreover as Mr. Ramesh grew older, he developed Osteoporosis.

3. On 8th October 2023 Mr. Ramesh suffered from a severe headache the whole day and by evening,
he had slight fever. After taking the paracetamol his wife gave him, he went to sleep. Next morning,
he noticed that he had developed rashes and blisters on his skin. His fever had not gone down and
he still had a headache. He suspected that he had contracted chicken pox and later that day, his
neighbour who visited him to check on his condition, confirmed the same.

4. Mrs. Aarti began using home remedies to treat Mr. Ramesh. She applied crushed neem leaves on
his skin to ease his discomfort. Mr. Ramesh, feeling uneasy, searched for online remedies to cure
chicken pox. He came across a site where it stated that a certain ‘anti-viral’ drug would cure chicken
pox within 3 days. Believing this, he ordered the same from ‘Netmedz’, a popular online medical
store. Mr. Ramesh took the anti-viral medication that he had ordered with great diligence and took
utmost care of himself. On 18th October 2023, he recovered from chicken pox.

5. After a few days, Mr. Ramesh’s son, Mr. Rohit Chaturvedi, celebrated his 31st birthday party where
the entire Chaturvedi family had gathered to celebrate the occasion. In the happy hour, he enjoyed
a few drinks with his son. The very next day at 3 am, Mr. Ramesh developed a high fever of 104°F
and a little discomfort while breathing. Mr. Rohit called PMRI (Progressive Medical Research
Institute) hospital and availed the hospital ambulance service. As Mr. Ramesh was having breathing
discomfort, his son asked the staff present to provide him with oxygen support. It was discovered
that the oxygen cylinder in the ambulance was empty. They arrived at PMRI hospital around 5 am
in the morning.

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6. PMRI hospital is one of the oldest private medical institutions in Teplana. It is a multi-speciality
hospital, famous for its specialization in orthopedics, which has been ranked No.1 in orthopedics
surgery by UK report in the year 2020-21. It has an exceptionally progressive record and is known
for its motto “Your life is precious to us”. The Hospital lacked in overall maintenance of hygiene
and equipment. Ultrasound machine, a basic testing machine was not available in the hospital. The
Hospital staff also failed to maintain cleanliness of the ward. The washrooms were covered with
fungus and were slippery which could lead to patients having a bad fall.

7. In the morning, there was insufficient staff available. After some time, one staff member gave the
patient a form to fill out, which included a number of tests that were to be conducted. The Hospital
staff did not provide any information regarding the tests. Despite not having any prior knowledge,
Mr. Ramesh signed the form. PMRI hospital has a policy of conducting HIV and HBsAg tests for
all their indoor patients but this policy is a voluntary act of the hospital and requires consent of the
patient. However, the Hospital staff conducted these tests without the prior consent of Mr. Ramesh.

8. Mr. Chaturvedi was attended by Dr. Agrawal, a renowned surgeon specializing in Musculoskeletal
disorders and orthopedics. Dr. Agrawal closely studied the test reports of Mr. Chaturvedi and
directed the Hospital staff to get an X-ray done. After examining the X-ray scan, Dr. Agrawal
diagnosed Mr. Ramesh with pneumonia and he was immediately admitted in the ICU.

9. He was kept in the ICU for 2 weeks where he was administered painkillers to prevent physical
distress and steroids to boost his immunity. He was also provided with physiotherapy. Lastly, Dr.
Agrawal conducted thoracentesis. On 10th November 2023 he was shifted to a general ward as his
condition improved. However, he still had cough and stiffness in the body.

10. On 12th November 2023, Mr. Chaturvedi developed a red patch in his neck-chest area which spread
throughout his body by afternoon. His skin started peeling, raw areas of skin surfaced and he faced
extreme irritation and discomfort. The Hospital conducted a skin biopsy to determine his condition,
where he was diagnosed with Toxic Epidermal Necrolysis.

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11. Since PMRI was an institution specializing in orthopedics, they lacked the equipment and the
procedure required to detect skin diseases. Thus, the Hospital could not provide any specific
treatment for the patient’s disease and were in the process of shifting the patient to another branch
of the institute which had the facilities to deal with the specific problems affecting the patient.
However, before they could transfer, the patient’s condition worsened and he developed liver
damage.

12. The PMRI hospital charged Rs. 85,000/day in the ICU and another Rs. 2,00,000/- for pathology
services, bed charges, ward medicines, nursing fees, food charges, x-ray and others. Ambulance
charges amounted to Rs. 10,000/-.

13. On 12th December 2023 Mr. Rohit filed a complaint in Teplana State Consumer Dispute Redressal
Commission against PMRI hospital and its staff, alleging medical negligence. On 25th January 2024
the State Consumer Dispute Redressal Commission passed an order in favor of PMRI hospital as
the hospital did not fail to take due care of the patient. The Court was of the view that the
complainant failed to establish medical negligence on the part of the hospital and thus refused to
grant Rs. 4,60,00,000/- as compensation prayed by the complainant. On 2nd February 2024 Mr. Rohit
aggrieved by the impugned order of the State Consumer Dispute Redressal Commission, filed an
appeal in the National Consumer Dispute Redressal Commission.

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ISSUES RAISED

I. Whether the present appeal is maintainable in the Hon’ble National Consumer Dispute
Redressal Commission?

II. Whether PMRI Hospital breached their duty to take care?

III. Whether PMRI Hospital is liable for consequential damage?

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SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT APPEAL IS MAINTAINABLE IN THE HON’BLE

NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION?

The Respondent hereby submits that the present appeal is not maintainable at the Hon’ble National
Consumer Dispute Redressal Commission of Aryavarta as the suit filed by the Appellant has been
decreed by the State Consumer Dispute Redressal Commission. Referring to the maxim of “res
judicata” the Defendant contends the appeal to be dismissed.

II. WHETHER PMRI HOSPITAL BREACHED THEIR DUTY TO TAKE CARE?

The Respondent submits that there is no breach of duty on part of PMRI Hospital. The Respondent
adhered to the standard medical procedures and protocols applicable to the situation and their
actions were in line with accepted medical practices.

III. WHETHER PMRI HOSPITAL IS LIABLE FOR CONSEQUENTIAL DAMAGE?

The Respondent submits that PMRI Hospital is not liable for consequential damage, The
Appellant's own actions contributed to the harm they suffered. The Respondent acted reasonably
given the urgency of the situation.

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT APPEAL IS MAINTAINABLE IN THE HON’BLE

NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION?

The Defendants contest the suit questioning its maintainability at the Hon’ble National Consumer
Dispute Redressal Commission of Aryavarta as the suit filed by the Appellant has been decreed by
the State Consumer Dispute Redressal Commission.

A. THE PRESENT APPEAL IS NOT MAINTAINABLE AT NCDRC

[1] The Defendant submits that the present appeal filed by the Original Plaintiff has no merits and
balance of convenience. The Appellant has already filed a suit in SCDRC which was decreed
and the court had further held that the Appellant has failed to establish medical negligence on
the part of the hospital.

[2] It is humbly submitted that, the Defendant would like to invoke the principle of “ res judicata”.
The doctrine highlights that- “Res judicata prevents a party from bringing a claim once that
particular claim has been subjected to a final judgment in some previous lawsuit. Re-litigation
applies to a new lawsuit brought in any court, not just the one responsible for earlier
judgment.” It has no merits of re-litigation as the facts and evidences are the same. This matter
has previously been adjudicated and decided upon in a court of competent jurisdiction, and as
such, it cannot be re-litigated here.

[3] In accordance with the court holding that the Appellant has failed to establish medical
negligence on the part of the hospital. The Respondent therefore submits that the present
appeal should be dismissed.

[4] The Respondent relies upon the case Sethuraman Subramniam Iyer vs. Triveni Nursing
Home and Anr. I (1998)1, wherein the National Commission dismissed the complaint holding
that the case has already been decreed by the lower court.

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[5] In Naraji vs. Shelbourne MD2 the Indiana court stated that “the same issue cannot be
relitigated between them in subsequent proceedings.” The doctrine of Res Judicata was
invoked.

[6] Similarly, the Respondent states that, in accordance with the above case the Appellant here
has failed to prove medical negligence on part of hospital by the SCDRC and hence is not
entitled to be heard.

Hence the present appeal is not maintainable at the Hon’ble NCDRC of Aryavarta and the
appeal should be dismissed ab initio.

_______________________________

1
AIR 2009 SC 2049
2
2011 EWHC 3298

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II. WHETHER PMRI HOSPITAL BREACHED THEIR DUTY TO TAKE CARE?

The Respondent submits that there is no breach of duty on part of PMRI Hospital. The
Respondent adhered to the standard medical procedures and protocols applicable to the situation
and their actions were in line with accepted medical practices.

A. NEGLIGENCE ON BEHALF OF THE APPELLANT / ORIGINAL

PLAINTIFF’S.

[1] The NCDRC explains negligence as - “Sometimes it is very difficult to differentiate between
some of the common and similar presentations of diseases. In such cases, if the doctor has
taken all the care but still complications occur due to improper diagnosis, then this is not
negligence”.

[2] The Defendant relies on the following definition and states that the skin condition and liver
damage are not results of the medications and treatments done at the hospital thus there was
no breach of duty or any negligence on the Hospitals behalf.

[3] It is Mr Ramesh Chaturvedi and his family who weren't diligent with their home remedies in
the first place, which has caused Mr Chaturvedi’s condition to worsen even before reaching
the PMRI hospital.

[4] The Respondent submits that the Appellant / Original plaintiff contributed to their own
condition through their actions.
- Relying on alcohol even after being aware of Hypertension and Osteoporosis
- Trusting medicines from a website rather than consulting a professional.
- Believing the neighbour without consulting a doctor.

[5] The Respondent would also like to add that it was negligence on behalf of the plaintiff simply
because Mr. Chaturvedi was well aware of his skin condition and still didn't visit a skin
specialist in the first place. In the case of Dr. Sukumar Mukherjee vs. Medical Council of
India & Ors.3 the judge specified in the judgment that “When Dr. Mukherjee examined
Anuradha, she had rashes all over her body and this being the case of dermatology, he should
have referred her to a dermatologist.” The facts align with the case and thus needs to be
considered.
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[6] In the case of M. Subramani & Ors. vs. Christ Jathi Hospital & Anr.4, deceased was
admitted for delivery and the child was delivered by cesarean operation. Deficiency was
alleged in post operative period as no Proper treatment was given to stop bleeding and the
blood not pre-arranged. The District Forum in the case held that “There is no deficiency in
service alleged by the complainant in performing the operation and thus the case is
dismissed”

B. PMRI HOSPITAL WAS DILIGENT OF THEIR ACTIONS.

[1] The Respondent submits that PMRI was completely diligent of its actions and provided the
required Doctor for Mr. Chaturvedi’s Diagnosis. As PMRI is an institution specializing in
orthopedics they couldn't follow the procedure of detecting a skin disease.

[2] The Respondent hereby submits that breach of duty under NCDRC is defined as “The liability
of a doctor arises not when the patient has suffered any injury, but when the injury has resulted
due to the conduct of the doctor, which has fallen below that of reasonable care. In other
words, the doctor is not liable for every injury suffered by a patient. He is liable for only those
that are a consequence of a breach of his duty. In case there is no breach or the breach did
not cause the damage, the doctor will not be liable.”

[3] The Respondent / Original Defendant relies upon the case of Dr. Ganesh Prasad and Anr. vs.
L5, wherein it was stated by the national commission that “where proper treatment is given,
death occurring due to process of disease and its complication, it cannot be held that doctors
and hospitals are negligent and orders of lower fora do not uphold the claim and award a
compensation.”

[4] In the M.A. Bivji judgment6, a Bench comprising Justice Hrishikesh Roy and Justice Manoj
Misra dealt with an important topic. It was held in the judgment that “This may include a
procedure entailing a higher risk element as well, which was opted for after due consideration
and deliberation by the doctor. Therefore, a line of treatment undertaken should not be of a
discarded or obsolete category in any circumstance.” In simple words it means that just a
different line of treatment is not a valid reason to prove medical negligence.

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[5] Relating to the above Judgment the Respondent draws attention to the case of Bombay
Hospital and Medical Research Centre vs. Asha Jaiswal and Others7, wherein by choosing
an alternative method the patient developed complications, the court held that- “without
sufficient and conclusive evidence to impute liability on the doctor, any subsequent liability
cannot be fastened upon the medical practitioner.”

[6] The Respondent relies on the case of Chanda Rani Akhouri and Others vs. M.A.
Methusethupathi and Others8, the court held that- “A doctor cannot be held accountable for
medical negligence when a doctor, using all due care, opted for one method over another
which would also qualify as the reasonable course of treatment.”

[7] Relying on the above case the Respondent submits that there is no breach of duty on behalf of
the hospital. The adverse outcome was a result of factors beyond their control and they
exercised reasonable care given the circumstances.

_____________________________
3
9758 (W) 2011
4
1089 of 1996
5 (1907) ILR 29ALL385
6
3975 of 2018
7
1658 of 2010
8
6507 of 2009

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III. WHETHER PMRI HOSPITAL IS LIABLE FOR CONSEQUENTIAL DAMAGE?

The Respondent submits that PMRI Hospital is not liable for consequential damage, The
Appellant’s own actions contributed to the harm they suffered. The PMRI Hospital acted reasonably
given the urgency of the situation and the limited information available at the time.

A. ABSENCE OF LIABILITY OF PMRI HOSPITAL

[1] The Respondent submits that the Hospital provided treatment in accordance with the
accepted medical standard of care. Mr. Chaturvedi was attended by Dr. Agrawal, a renowned
surgeon specializing in Musculoskeletal disorders and orthopedics. Their actions were
consistent with what a reasonable healthcare provider would have done in similar
circumstances.

[2] The deficiency in duty must be "Causa causans", i.e., direct and proximate cause for injury
or damage. Dr. Agrawal was completely diligent in his actions and thus all the necessary
tests were done on time. As there is no direct cause or side effect from the medications and
treatment provided in the hospital, the hospital isn't liable for consequential damages.

[3] The Respondent would like to invoke the principle of Causa Causans. It is humbly submitted
that Mr. Chaturvedi getting diagnosed with Toxic Epidermal Necrolysis and later developing
Liver Damage is in no way the direct reaction of the treatment of pneumonia. Sec 2(1)(g) of
CPA defines deficiency “as 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.”

[4] It is also stated that “where there is no evidence to prove the allegation there is no
negligence.” The Respondent therefore puts light on the fact that there is no such evidence
that proves the allegations made on PMRI Hospital are true. The Appellant has also failed to
establish medical negligence on the part of hospital to the SCDRC.

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[5] The Respondent / Original Defendant relies upon the case of Dr. Subramanyam and Anr.
vs. Dr. B. Krishna Rao and Anr. where the Hon'ble Commission observed that, “A doctor
can be held guilty of medical negligence only when he falls short of the standard of
reasonable medical care. A doctor cannot be found negligent merely because in a matter of
opinion he made an error of judgment.”

[6] In the case of Samira Kohli vs. Dr Prabha Manchanda and Anr9, the court held that “A
doctor acting with normal care and in consonance with recognised practice only then would
be accepted in the field of medicine.”

[7] The Supreme Court in 2023 ruled out a judgment that said- “To hold a medical practitioner
liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors
are focused on deciding the best course of treatment as per their assessment rather than
being concerned about possible persecution or harassment.” The Judgment was made to
protect the integrity of medical practitioners.

[8] According to the above-mentioned case the Defendant says and submits that the order has
been passed by the State Commission after hearing both the parties and the Plaintiff has failed
to prove medical negligence on the Hospitals behalf.

Hence, PMRI Hospital is not liable for consequential damage.

___________________
9
AIR 2008 SC 1385

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PRAYER

In the light of the facts stated, issues raised, arguments advanced, and the authorities cited the
counsel on the behalf of the respondent humbly pray before the Hon’ble National Consumer
Dispute Redressal Commission of Aryavarta to:

1. Request to dismiss the appeal and that the appeal is not maintainable as it was decreed by
the State Consumer Dispute Redressal Commission.
2. Declare that the PMRI Hospital has not breached their duty to take care.
3. There is no violation of legal right of Mr. Ramesh Chaturvedi and hence PMRI Hospital
is not liable.

And pass the order, discretion, or relief that it may deem fit in best interests of Justice, Fairness,
Equity and Good Conscience.

For this act of Kindness, the respondent shall duty bound forever pray.

All of which is humbly and respectfully submitted.

DATE: 16/03/2024 (S.D./-)

PLACE: - National Consumer Dispute

Redressal Commission, Aryavarta (Counsels for the Respondent)

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