2019LLB061

BEFORE THE MOTOR ACCIDENT CLAIM’S TRIBUNAL

UNDER SECTION 166 OF MOTOR VECHILE ACT, 1988

______________________________________________________________________________

VINAYA & ORS. ..…………………….…..……….................PLAINTIFF

VERSUS

JOHN…………...…………………………………..…………DEFENDANT

MEMORANDUM ON BEHALF OF THE APPLICANT

7TH NOVICE MOOT COURT COMPETITION, 2019

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MEMORIAL ON THE BEHALF OF PLAINTIFF
 TABLE OF CONTENTS

1. INDEX OF ABBREVIATION…… ……………………………………………..III-IV

2. INDEX OF AUTHORITIES…………………………………………………….V
3. STATEMENT OF JURISDICTION……. ……………………………………..VII
4. STATEMENT OF FACTS ……………………………………………………..VIIs
5. STATEMENT OF ISSUES ……………………………………………………..VIII
6. SUMMARY OF ARGUMENT….. ……………………………………………..IX
7. ARGUMENT ADVANCED……… ……………………………………………..1-3
8. PRAYER…... ……………………………………………………………………..XI

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MEMORIAL ON THE BEHALF OF PLAINTIFF
 INDEX OF ABBREVIATIONS

S. NO. ABBREVIATION FULL FORM

1. & And

2. ¶ Paragraph

3. Addl. Additional

4. AIR All India Reporter

5. Anr. Another

7. Art. Article.

10. Edn. Edition

11. Govt. Government

12. Hon’ble Honorable

13. i.e. That is

14. Ltd. Limited

16. No. Number

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MEMORIAL ON THE BEHALF OF PLAINTIFF
17. Ors. Others

19. P. g. Page

21. SC Supreme Court

22. SCC Supreme Court Cases

23. SCR Supreme Court Record

24. Sec. Section

25. Sr. Serial

26. UOI Union of India

29. Vol. Volume

30. v./vs. Versus

31. W.B. West Bengal

33. w.r.t. With respect to

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MEMORIAL ON THE BEHALF OF PLAINTIFF
INDEX OF AUTHORITIES

BOOKS

1. P.S.A. Pillai, Law of Tort (9th Ed., 2004)

2. R.K. Bangia, Law of Torts (24th Ed., 2017)
3. Ratanlal & Dhirajlal, The Law of Torts (27th Ed., 2016)
4. Winfield & Jolowicz, Tort (18th Ed., 2010)

CASES

1. Blyth v. Birmingham Waterworks Co. (1856) 11 Ex Ch 781, 156 ER

1047.
2. Bourhill v. You, [1943] AC 92

3. Minor Veeran And Anr. v T.V. Krishnamoorthy And Anr. A.I.R. 1966
Ker 172.
4. Rural Transport Service v. Bezlum Bibi, A.I.R. 1980 Cal. 165.
5. Subhakar v. Mysore State Road Transport Corporation, A.I.R. 1975
Kerala 73.
6. Vaughan v. Menlove (1837) 3 Bing NC 468, 132 ER 490 (CP).

LEGAL DATABASES

1. Heinonline, https://home.heinonline.org.
2. LexisNexis, https://www.lexisnexis.com/in/legal.
3. Manupatra Online Resources, https://www.manupatra.co.in.
4. SCC Online, https://www.scconline.com.
5. Westlaw India, https://login.westlawindia.com.
6. EBSCO host, http://web.ebscohost.com

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MEMORIAL ON THE BEHALF OF PLAINTIFF
STATEMENT OF FACTS

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

for expecting mothers. He has three sisters. The second sister is a doctor and has two
kids. He had purchased a brand new car called ‘Venue’ which was bright blue in colour
and looked attractive.
2. He had four traffic signals on his commute to office every day. On his first signal, he
passes by a petrol bunk. On his second signal, he passes by a Government hospital on the
opposite side of the road. The third signal is an extremely busy signal as there is a school
and college near the same. Near the fourth signal, there is a super speciality hospital on
the same side of the road.
3. John wanted to take his car to his office to show off to his colleagues after the purchase.
He crossed the first signal and immediately in front of him, he saw an accident, wherein
the lady passenger of an auto was thrown out on the road. The auto though momentarily
stopped, fled as soon as crowd started to gather.
4. John parked the car to the side of the road and got out to see if the lady was injured.
When he went to see the lady, he realized that the lady was pregnant and was also his
sister’s patient. He recognized her from one of his visits. He immediately rushed to her
side, picked her up and took her in his car to take her to the hospital. He had tried calling
his sister but her phone was unavailable. The lady was conscious at that time.
5. John in a rush of panic, immediately proceeded towards the super speciality hospital. At
the second signal, he realized that Vinaya had lost consciousness; however, he stopped at
the signal as the signal was red. 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. He recovered soon and took the lady to the hospital.
At the hospital, it was pronounced that Vinaya had given birth to a still born child.
6. After a few days, he receives two notices that two suits have been filed against him, one
by the lady and the other by the other car owner for payment of damages.

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MEMORIAL ON THE BEHALF OF PLAINTIFF
STATEMENT OF JURISDICTION

The Counsel on behalf of the Plaintiff humbly submits before this Hon’ble Court that the
Claim’s Tribunal has Jurisdiction under Section 166 of the Motor Vehicle Act, 1988.

______________________________________________________________________________

Section 166-Application for compensation

(1) An application for compensation arising out of an accident of the nature specified in sub-
section (1) of section 165 may be made –

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the
deceased; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives
of the deceased, as the case may be

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MEMORIAL ON THE BEHALF OF PLAINTIFF
STATEMENT OF ISSUES

-I-
WHETHER THE LADY AND THE OTHER CAR OWNER ARE ENTITLED FOR
PAYMENT OF DAMAGES OR NOT

A. Vinaya is entitled to get damages.

B. The car owner is entitled to receive compensation.

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MEMORIAL ON THE BEHALF OF PLAINTIFF
SUMMARY OF ARGUMENTS

1. Whether the lady and the other car owner are entitled to receive damages or not?

The counsel on behalf of the Applicant humbly contends that Vinaya and the other car owner are
entitled to get compensation. In Vinaya’s case, the defendant took the decision of taking her to
the super speciality hospital rather than taking her to the nearest Govt. Hospital which made her
condition worse. In the car owner’s case, the defendant in a state of hurry skipped the traffic light
when it was yellow hence colliding with the car owner.

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MEMORIAL ON THE BEHALF OF PLAINTIFF
ARGUMENTS ADVANCED

ISSUE 1: That the lady and the other car owner are entitled to receive damages .

A. Vinaya is entitled to receive compensation.

1. The plaintiff is a 43 years old lady whose pregnancy was a tough one. The plaintiff had
been childless for about 7 years and finally after the defendant’s sister performed an
IVF treatment, she was able to conceive. This was a delicate case. The defendant knew
the case was a tough one as he had heard it from sister a couple of times.

2. The defendant saw the accident where lady was thrown out on the road when he had
just crossed the first signal, where he passes by a petrol bunk. He recognized her from
one his visits to his sister’s hospital. He picked her up and took her is his car to take her
to the hospital.

3. The defendant had realized that the plaintiff had lost consciousness at the second
signal, despite knowing this he didn’t admit the plaintiff in the Govt. hospital which
was on the opposite side of the road, instead he stopped at the signal as the signal was
red.

4. In the case established, the defendant in a rush of panic did not act reasonably.

5. In the case of Bourhill v. Young1, it was held that, “if at the time of the act or omission,
the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent
that injury and failure to do that makes him liable. Duty to take care is the duty to
avoid doing omitting to do anything, the doing or omitting to do which may have as its

1
Bourhill v. You, [1943] AC 92

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MEMORIAL ON THE BEHALF OF PLAINTIFF
 reasonable and probable consequence injury to others, and the duty is owed to those to
whom injury may reasonably and probably be anticipated if the duty is not observed.”2

6. Again, in the case of Veeran v. Krishnamoorthy3, the Court stated that to decide
culpability, we have to determine what a reasonable man would have foreseen and thus
form an idea of how he would have behaved under the circumstances.

7. As a reasonable man, the defendant should have taken the applicant to the nearest
hospital instead of taking her to the super speciality hospital which delayed her medical
assistance.

8. As stated by Alderson B. in Blyth v. Birmingham Waterworks Co.4, “Negligence is the

omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do.”5

9. The law requires the caution which a prudent man would observe.

10. In Vaughan v. Menlove6 “We ought to adhere to the rule which requires in all cases a
regard to caution such as a man of ordinary prudence would observe… the care taken
by a prudent man has always been the rule laid down.”7

11. The defendant as a prudent and reasonable man should have taken the plaintiff to the
nearest government hospital looking at her condition. The plaintiff’s condition
worsened when the accident between the defendant and the other owner’s car took
place which might have resulted in the still birth of the child.

2
Dr. R.K. Bangia, Law of Torts 230 Narender Kumar, 24th Ed., 2017.
3
Minor Veeran And Anr. v T.V. Krishnamoorthy And Anr. A.I.R. 1966 Ker 172.
4
Blyth v. Birmingham Waterworks Co. (1856) 11 Ex Ch 781, 156 ER 1047.
5
Id. at 2.
6
Vaughan v. Menlove (1837) 3 Bing NC 468, 132 ER 490 (CP).
7
Id. at 2.

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MEMORIAL ON THE BEHALF OF PLAINTIFF
 B. The car owner is entitled to receive compensation.

1. The defendant in this case rushed through the third signal as the light was yellow.

2. The yellow light means to stop. You can enter the intersection if you are so close that
sudden braking might cause a crash.

3. In Subhakar v. Mysore State Road Transport Corporation8, the court reduced the
compensation payable to the extent the claimant was himself at fault. There, the claimant-
appellant who was going on a cycle suddenly turned to the right side of the road. He was
hit by the respondent’s bus resulting in his fall and injury to his leg necessitating
hospitalization for about two and a half months. It was held that both the parties had
equally contributed to the accident by their negligence and, therefore, the compensation
payable to the claimant was reduced by 50%.

4. In Rural Transport Service v. Bezlum Bibi9, the compensation payable was reduced by
50%.

5. The defendant is liable to an extent under the rule as he was negligent while he crossed
the traffic light when it was yellow in a state of rush and panic. The counsel pleads before
the Hon’ble Court to compensate the plaintiff for the loss caused by the defendant’s
negligent act.

8
Subhakar v. Mysore State Road Transport Corporation, A.I.R. 1975 Kerala 73.
9
Rural Transport Service v. Bezlum Bibi, A.I.R. 1980 Cal. 165.

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MEMORIAL ON THE BEHALF OF PLAINTIFF
 PRAYER

In the light of the Questions presented, pleadings submitted and Authorities Cited, the
Hon’ble Motor Accident Claim’s Tribunal may be pleased to direct the Defendant to pay
1. Compensation of 2 lakhs to the plaintiff Vinaya for loss of her child and mental trauma.
2. Entire cost of filing the suit to the plaintiff Vinaya.
3. Compensation of Rs. 20,000 to the car owner for the loss caused by the accident.

AND/OR

Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity and
Good Conscience.

For this act of kindness, the Agents shall duty bound forever pray.

Sd/-
(Counsel for Plaintiffs)

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