MRS. SHANTA Vs.

STATE OF ANDHRA PRADESH AND OTHERS

IN THE HON’BLE HIGH COURT OF ANDHRA PRADESH

CASE CONCERNING

Negligence under Law of torts

Mrs. Shanta
V.
State of Andhra Pradesh and Ors.

MEMORANDUM ON BEHALF OF THE APPELANT

COUNSEL ON BEHALF OF THE APPELANT

SACHIN

MEMORANDUM ON BEHALF OF THE

APPELANT
MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS

O TABLE OF AUTHORITIES

o TABLE OF CASES
o BOOKS
o ACTS, LEGISLATIONS AND STATUTES
o WEBLIOGRAPHY

 STATEMENT OF JURISDICTION

 SYNOPSIS OF FACTS

 ISSUES RAISED

 SUMMARY OF ARGUMENTS

 WRITTEN PLEADINGS

 PRAYER

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

LIST OF ABBREVIATIONS

AIR All India Reporter

AP Andhra Pradesh

Dr. Doctor

Govt. Government

Hon’ble Honourable

Ors. Others

SC Supreme Court

V. Versus

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

TABLE OF CASES

1. K. Ravindra Nath (Dr.) And Anr. vs Vitta Veera Surya Prakasam And Ors.

2. Achut Rao v. State of Maharashatra.

3. Dr.S.R. Ranganadhan vs Alluri Seetharama Raju

MEMORANDUM ON BEHALF OF THE

APPELANT
MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

BOOKS

 RATANLAL & DHIRAJLAL, THE LAW OF TORTS, LEXIS NEXIS

BUTTERWORTHS WADHWA NAGPUR, 25TH EDITION, 2009.
 WINFIELD AND JOLOWICZ ON TORT, W. V. H. ROGERS, SWEET &
MAXWELL; 16TH REVISED EDITION,2002.
 SALMOND AND HEUSTON ON THE LAW OF TORTS, R.F.V. HEUSTON &
R.A. BUCKLEY, SWEET & MAXWELL; 21TH REVISED EDITION,1996.

ACTS/STATUES/LEGISLATIONS

 THE CONSTITUTION OF INDIA, 1950 - ARTICLE 21

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

Statement of Jurisdiction

The petitioner has approached to Hon’ble High Court of Andhra Pradesh under the article
226 of the Constitution of India.

MEMORANDUM ON BEHALF OF THE

APPELANT
MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

SYNOPSIS OF FACTS

1. Petitioner Mrs. Shanta has been working as an assistant to a cook – Janaki Ramaiah in
Hyderabad. She has given birth to two children. She was pregnant for third time so
she used to go Government Maternity Hospital, Afzalgunj for periodical check-up
since she had not been having sufficient financial back-up.
2. She had undergone Caesarean operation for deliveries of first and second child so she
got admitted into Government Maternity Hospital on 15-11-1997 and operated on 20-
11-1997.
3. Operation was conducted under spinal aesthesia by the doctors of Yellow unit and
discharged on 26-11-1997. After 1 or 2 days she started developing pain in her
abdomen. The pain gradually increased.
4. She went back to hospital for check-up and met with the 3 rd respondent who earlier
conducted the operation on her on 20-11-1997. The 4 th respondent after examination
told her that the pain would subside in course of time.
5. There was no improvement however and her condition became so serious that she
could not even get up from bed by 1st January 1998.
6. Janaki came to see her condition and he admitted her in a private hospital under the
control of 4th respondent hospital. After her complete examination a hyper echoic
band was found in the left lower abdomen measuring 10x5 cms. She was suggested to
undergo an operation immediately but she refused because she had no relatives and no
money at that time.
7. She was operated by 4th respondent S. Chandra Shekar Rao and his team on 4-1-1998
and a towel was found in her abdomen, because of that the small intestine and all
other surrounding parts were highly infected.
8. For the operation she had to sell all her jewellery including Mangalsutram to meet the
expenditure. She required being in the hospital for 2 months for complete recovery.
9. In between all these she was taken 3 times to the 3rd respondent who threatened her
that she’d be starved for medicine if she happened to file any complaint against her.
She prevented her from going back to maternity hospital for further treatment.
10. Petitioner is a poor lady and she has already spent more than 1 lakh on her treatment.
She has lost her source of livelihood. Further she is not able to take care of her one

MEMORANDUM ON BEHALF OF THE

APPELANT
MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

and half month old baby which is being externally fed. This is causing her a lot of
mental agony.
ISSUES RAISED

1. Whether the Government Doctor was negligent on her part?

2. Whether the State is liable for the act done by the Doctor of a Government
hospital?

MEMORANDUM ON BEHALF OF THE

APPELANT
MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

SUMMARY OF PLEADINGS

A. Doctor was negligent on her part.

A.1. Doctor left a mop (towel) in the abdomen of the petitioner which caused
serious injuries to the petitioner. Petitioner had to undergo another operation and she
had to sell her jewllary.

B. State is liable for the act of Doctor.

B.1. Doctor was a Government employee and she did the operation in Government
Hospital. The state is liable for the act done by its employees.

B.2. State is responsible for the act of its employees because of the doctrime of
vicarious liability of the state.

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

WRITTEN SUBMISSION

A. The Govt. Doctor was negligent on her part.

Negligence may be defined as the “breach of a duty caused by the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and reasonable man
would not do”.1 According to Winfeild, “negligence as a tort is a breach of a legal duty to
take care which result in damage, undesired by the defendant to the plaintiff”.2

The definition involves the following constituents:-

(1) a legal duty to exercise due care;

(2) breach of the duty; and

(3) consequently damages.

As it is a legal duty of a doctor to exersice due care during the course of employment. Mrs.
Shanta went to the hospital because she was pregnant for 3rd time so it was the duty of the
doctors of that hospital to take care of her.

During the operation the doctor negligently left the mop (towel) inside the abdomen of the
plaintiff so the doctor breached the duty of due care.

In K. Ravindra Nath (Dr.) And Anr. vs Vitta Veera Surya Prakasam And Ors.3 the doctor left a
surgical mop inside the abdomen of the plaintiff and the court held the doctor liable for
negligently performing the operation.

1
J. Singh G P, The Law of Torts, Lexis Nexis Butterworth Wadhwa, Nagpur, p.474
2
Winfeild and Jolowicz Tort, 12th Edn., p.69
3
IV (2006) CPJ 105 NC.

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

In Dr.S.R. Ranganadhan vs Alluri Seetharama Raju doctor left some surgical sutures in the abdomen
of the plaintiff and the doctor was held liable for his negligent act and the plaintiff was awarded
compensation for his medical expenses and mental agony caused by the same.

Because of the negligence of the doctor the plaintiff had to undergo another operation and as
she was very poor so she had to sell her jewellery including Mangalasutram. She could not
attend her baby and this caused her mental agony. Further, she will have to spend 2 months in
the hospital for complete recovery. She has lost her livelihood.

B. State is vicariously liable for the act of Doctor.

According to Jowitt Dictionary of English Law, ‘when the law holds one person responsible
for the misconduct of another although he is himself free from personal blameworthiness or
fault we speak of vicarious liability’. Vicarious liability is a legal doctrine that assigns liability
for an injury to a person who did not cause the injury but who has a particular legal
relationship to the person who did act negligently.

Two Latin maxims closely related to the principle of vicarious liability are respondent
superior and qui facit per alium facit perse. The first maxim means that a principal must
answer for the acts of his subordinates and the second explains that he who employs
another person to do something does it himself or in other words he who acts through
another is deemed to act in person. These maxims form the basis of vicarious liability.

According to the maxim respondent superior a principle must answer for the act of his
subordinates, so the state should answer for the act of government hospital and state
should be held liable.

According to the maxim qui facit per alium facit perse he who employs another person to do
something does it himself or in other words he who acts through another is deemed to act
in person. As the state employs the doctor so the act done by the doctor should be treated
as the act done by the state itself.

As the doctor was performing her duty in the course of employment and it was a
government hospital so she was a employee of the state. Hence the state should be held
vicariously liable for the act of the doctor.

In the case of Achut Rao v. State of MH4 a government doctor left a mop in abdomen of the
wife of the plaintiff. Because of the negligent act of the doctor the state was held liable and
the plaintiff was awarded compensation.
4
AIR 1996 SC 2377

MEMORANDUM ON BEHALF OF THE

APPELANT
 MRS. SHANTA Vs. STATE OF ANDHRA PRADESH AND OTHERS

PRAYER FOR RELIEF

Therefore in light of facts stated, issues raised, arguments advanced and authorities cited, the
counsel for Appellant humbly request this Hon’ble High Court of Andhra Pradesh to adjudge
and declare that:

1. State is liable for the negligent act of the government doctor.

2. Compensation should be given to the plaintiff for the loss suffered due to the negligence of
the doctor.

And pass any other order as it may deem fit in the interest of justice, equity and good
conscience. All of which is mostly submitted before this Hon’ble Court.

Counsel for Appellant

Sachin

MEMORANDUM ON BEHALF OF THE

APPELANT