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

COMPLAINANT

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TABLE OF CONTENTS

TABLE OF CONTENTS __________________________________________________________________ I

LIST OF ABBREVIATIONS ______________________________________________________________ II

INDEX OF AUTHORITIES ______________________________________________________________ III

STATEMENT OF FACTS_______________________________________________________________ VII

STATEMENT OF JURISDICTION______________________________________________________ VIII

ISSUES _______________________________________________________________________________ IX

SUMMARY OF ARGUMENTS ____________________________________________________________ X

ARGUMENTS ADVANCED ______________________________________________________________ 1

I. THE OPPOSITE PARTIES PROVIDED DEFICIENT SERVICES WHILE CARRYING OUT THE
TREATMENT OF THE COMPLAINANT’S WIFE. ___________________________________________ 1
A. TWO OR MORE PERSONS HAVE CARRIED OUT THE TREATMENT ___________________ 1
B. THE TREATMENT HAS BEEN NEGLIGENTLY CARRIED OUT. ________________________ 1

II. THE LIABILITY OF THE OPPOSITE PARTIES CAN’T BE EXEMPTED THROUGH THE
PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT. _________________________________ 8
A. THERE IS A FUNDAMENTAL BREACH OF A STANDARD FORM CONTRACT. ___________ 8

III. THE LIABILITY OF THE OPPOSITE PARTIES WOULD NOT MITIGATE AS THE
COMPLAINANT WAS NOT NEGLIGENT. ________________________________________________ 11
A. THE COMPLAINANT HAD TAKEN REASONABLE CARE FOR THE SAFETY OF THE
DECEASED. _________________________________________________________________________ 11
B. THE NEGLIGENCE, EVEN IF PRESENT, WAS NOT SUBSTANTIAL. ____________________ 11
C. THE COMPLAINANT TOOK THE SAFEST COURSE OF ACTION IN LIGHT OF THE
DANGEROUS SITUATION CAUSED BY THE OPPOSITE PARTIES. _______________________ 12

IV. THAT THE COMPLAINANT IS ENTITLED TO SUE AND CLAIM DAMAGES UNDER
VARIOUS HEADS. _____________________________________________________________________ 13
A. ENTITLEMENT TO RECOVER PECUNIARY DAMAGES.______________________________ 13
B. ENTITLEMENT TO RECOVER NON- PECUNIARY DAMAGES. ________________________ 14
C. ENTITLEMENT TO RECOVER PUNITIVE DAMAGES. ________________________________ 15

V. THAT THERE CAN BE NO BAR ON THE COMPLAINANT TO INITIATE A LEGAL

PROCEEDINGS IN UK. _________________________________________________________________ 17
A. DIFFERENCE IN THE HEADS OF DAMAGES IN VARIOUS JURISDICTIONS WILL LEAD
TO DIFFERENT CAUSES OF ACTION. _________________________________________________ 17
B. AVOID ANY CHANCES OF DELAY IN GRANT OF RELIEF FROM THE INDIAN COURTS. 19

PRAYER ______________________________________________________________________________ 20 

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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
 Fatal Accidents Act, 1855
 Legal Representatives Suits Act, 1855
 Private International Law (Miscellaneous Provisions) Act 1995

Books
 ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005)
 DICEYET AL., THE CONFLICT OF LAWS 177 (Lawrence Collins ed.,14th ed.
2000)
 LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN
GENERAL MEDICINE 649 (8th ed. 2012)
 RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th
ed. 2013)
 TAPAS KUMAR KOLEY, MEDICAL NEGLIGENCE AND THE LAW IN INDIA:
DUTIES, RESPONSIBILITIES, RIGHTS 98 (1stedn. 2010)
 WINFIELD &JOLOWICZ, TORT 22-9 (Rogers.. ed., 18thedn., 2010)

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

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Articles
 Alan D.Widgerow, Toxic epidermal necrolysis management issues and treatment
options, 1INT. J. BURNSAND TRAUMA42, 47 (2011)
 G. Gravante, D. Delogu et al, Toxic epidermal necrolysis and Steven Johnson
syndrome: 11- years’ experience and outcome, EUROPEAN REVIEW FOR
MEDICAL AND PHARMACOLOGICAL SCIENCES 121 (2007)
 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)
 Jean Revuzet al.,Treatment of toxic epidermal necrolysis: Creteil’s experience, 123
(9)ARCH. DERMATOLOGY1156, 1157 (1987)
 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)
 PrashantTiwari et al.,Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC
JOURNAL OF TROPICAL DISEASE 85, 86 (2013)
 T.A.Faunce&S.N.Bolsin,Fiduciary disclosure of medical mistakes: The duty to
promptly notify patients of adverse health care events,12JOURNAL OF LAW AND
MEDICINE 478, 480 (2005)
 WW Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J.
333, 334 (1933)

Table of Cases
Alexander v. Railway Executive, [1951] 2 All E.R. 442 _____________________________ 8
Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant
Bank Ltd., [1989] 3 All E.R. 65 _____________________________________________ 20
B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647 _____________________ 8
Beaumont Thomas v. Blue Star Line Ltd., [1939] 3 All E.R. 127 ______________________ 8
Bennett v. Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.) _______________________ 6
Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955) _________________________ 9
Black v. Yates _____________________________________________________________ 19
Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 _____________ 1, 10
Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350 _________________________ 12
Chaplin v. Boys, [1971] A.C. 356 (H.L.) ________________________________________ 18

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Chaplin v. Hawes, (1828) 3 C. & P. 554 ________________________________________ 13
Devki Nandan v. Gokli Bai, (1886) 7 Punj. L.R. 325_______________________________ 10
Dr. Balram Prasad, (2014) 1 S.C.C. 384 _____________________________________ 15, 16
Dr. Kusaldas Pammandas v. State of Madhya Pradesh, A.I.R. 1960 M.P. 50 _____________ 3
Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128 _________________________________ 2
Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781 _____________________________ 10
Huber v. Steiner, (1835) 2 Bing. N.C. 202 _______________________________________ 18
Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., A.I.R.
1986 S.C. 1571 __________________________________________________________ 10
Jacob Mathew, (2005) 6 S.C.C. 1 _______________________________________________ 9
Kohnke v. Karger [1951] 2 K.B. 670 ___________________________________________ 19
Landgraf v. USI Film Prods, 511 U.S. 244 (1994); Welch v. Epstein 536 S.E. 2d. 408 (2000)
_______________________________________________________________________ 17
M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154 _______________________________ 9
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 1162 _____ 4, 6
Mostyn v. Fabrigas, 1 Cowp. 161 ______________________________________________ 19
National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 763 _________________ 14
Petrie v. Lamont, (1842) C. Marsh. 93 (Eng.) _____________________________________ 1
Poonam Verma v. Ashwin Patel, A.I.R.1996 S.C.2111 ______________________________ 2
R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 ________________ 14
Rajesh and Ors. v. Rajvir Singh and Ors., 2013 (9) S.C.C.54 ________________________ 16
Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67 __________________ 10
Robinson v. The Post Office, (1974) 2 All E.R. 737 ________________________________ 7
S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223 at 230 _____________________________ 12
Sarla Verma vs. Delhi Transport Corporation (2011) 4 SCC 689 _____________________ 15
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital,
[1985] A.C. (H.L.) 871 (appeal taken from Eng.) ________________________________ 11
Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 14 ____________ 7
Spring Meadows Hospital & Another v. Harjol Ahluwalia & Anr.,(1998) 4 S.C.C. 39 _____ 3
Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461 ___________________________________ 8
Swadling v. Cooper, (1931) A.C. (H.L.) 1 (appeal taken from Eng.) __________________ 12
Thake v. Maurice, (1986) 1 All E.R. 497 _________________________________________ 2
Thompson v. London County Council, (1899) 1 Q.B. 840 ___________________________ 1
Vidya Devi v. Madhya Pradesh State Road Transport Corporation, A.I.R. 1975 M.P. 89 __ 12

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White v. John Warwick & Co Ltd, [1953] 2 All ER 1021 ____________________________ 9
Whitehouse v. Jordan, (1981) 1 All E.R. 267 ______________________________________ 5
Williams v. Health America 41 Ohio App. 3d 245 (1987) ____________________________ 5
Wood v. Thurston, 1953 C.L.C. 6871____________________________________________ 2

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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 (Normal dose- 40-120 mg at a minimum interval
of 1-2 weeks).
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 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 mentioned 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 improvement, 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 has submitted this complaint to the Hon’ble National Consumer Disputes
Redressal Commission, New Delhi invoking its jurisdiction under Section 211 of The
Consumer Protection Act, 1986. The Complainant has 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 complainant humbly submits to the jurisdiction of this Hon’ble Commission and shall
accept any judgment of this Commission as final and binding and shall execute them in its
entirety and in good faith.

Note: The necessary fee of ₹ 5000 as mandated by 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
 

I. THE OPPOSITE PARTIES PROVIDED DEFICIENT SERVICES WHILE

CARRYING OUT THE TREATMENT OF THE COMPLAINANT’S WIFE.
The opposite parties were negligent in carrying out the treatment of the complainant’s wife
i.e. they provided deficient services. To establish this, the complainant has submitted a two-
fold argument:
A) That two or more persons have carried out the treatment, as the 1st opposite party was
involved in carrying out the initial treatment and the 2nd opposite party continued the
treatment before the complainant’s wife was shifted from Chandigarh to New Delhi, and
B) that the treatment was negligently carried out as the opposite parties did not exercise
ordinary skill and care and follow the established and accepted norms of medical practice.
Moreover, the damages were a direct consequence of the act of the opposite parties.

II. THE LIABILITY OF THE OPPOSITE PARTIES CANNOT BE EXEMPTED

THROUGH THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT.
The Patient Undertaking cum Guideline Document cannot exempt the liability of the opposite
parties. To establish this, the complainant has submitted a four-fold argument:
A) That there is a fundamental breach of a Standard Form Contract as it exempts the doctors
from the core obligation of safe and medically recognized treatment to the patients,
B) that the liability arising out of deficiency in services through the negligent act of the
doctors cannot be exempted by a contractual clause and the duty of care to the patient arises
out of tort law and not a contractual stipulation,
C) that the Patient Undertaking cum Document is against the public policy as it entails the
features of an unconscionable contract, and
D) that the provisions of section 16 of the Indian Contract Act is applicable as the exemption
clause is clearly symbolic of an unfair advantage that the doctors and staff of AGI Hospital
had over the patients.

III. THE LIABILITY OF THE OPPOSITE PARTIES WOULD NOT MITIGATE AS

THE COMPLAINANT WAS NOT NEGLIGENT.
There is absence of negligence on part of the complainant. To establish this, the complainant
has submitted a three-fold argument:
A) That the complainant did not fail to take reasonable care of the safety of the deceased as
the movement of the complainant’s wife from Chandigarh to New Delhi was as per

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reasonable medical prudence,
B) that assuming arguendo, even if there was negligence, it was not substantial as the disease
of the wife of the complainant had already aggravated before the complainant’s wife was
moved from Chandigarh to New Delhi, and
C) that the complainant took the safest course of action in light of the dangerous situation
created by the opposite parties as the safest course of action was to move the complainant’s
wife to another medical facility so that her ailment could be cured.

IV. THAT THE COMPLAINANT IS ENTITLED TO SUE AND CLAIM DAMAGES

UNDER VARIOUS HEADS.
The complainant is entitled to sue and claim damages under various heads. To establish this,
the complainant submits a three-fold argument:
A) That the complainant is entitled to recover pecuniary damages,
B) that the complainant is entitled to recover non-pecuniary damages, and
C) that the complainant is entitled to recover punitive damages.

V. THAT THERE IS NO BAR ON THE COMPLAINANT TO INITIATE LEGAL

PROCEEDINGS IN UK.
The complainant is entitled to sue the opposite parties in the Birmingham County Court. To
establish this, the complainant submits a two-fold argument:
A) That recovering damages on those heads which are not allowed by the Indian substantive
law, but are allowed by the UK law would lead to a different cause of action, and
B) The complainant can initiate legal proceedings in the UK to avoid any chances of delay in
granting of relief from the Indian Courts.

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ARGUMENTS ADVANCED

I. THE OPPOSITE PARTIES PROVIDED DEFICIENT SERVICES WHILE

CARRYING OUT THE TREATMENT OF THE COMPLAINANT’S WIFE.
1. The opposite parties were compositely negligent in carrying out the treatment of the
complainant’s wife i.e. they provided deficient services, as [A] two or more persons have
carried out the treatment; and [B] the treatment has been negligently carried out.

A. TWO OR MORE PERSONS HAVE CARRIED OUT THE TREATMENT

2. Composite negligence refers to the negligence on part of two or more persons. Thus, the
person needs to be injured as a result of the negligence on part of two or more wrongdoers.
3. All persons who aid, or counsel, or direct or join in the committal of a wrongful act, i.e.
negligence would be party to the composite negligence.3
4. It is submitted that in the present case, both the opposite parties were involved in carrying
out the treatment of the complainant’s wife. While the 1st opposite party was involved in
carrying out the initial treatment, the 2nd opposite party continued the treatment before the
complainant’s wife was shifted from Chandigarh to New Delhi Hospital.

B. THE TREATMENT HAS BEEN NEGLIGENTLY CARRIED OUT.

5. An injury accruing to a party as a result of the wrongful act of two or more tort-feasors
forms the essential and intrinsic part of composite negligence4. Thus the causation of an
injury as a result of the negligence forms the essential component of composite negligence.
6. It is submitted that the injury caused to the complainant’s wife and complainant was due to
the negligence of the opposite parties in the treatment of complainant’s wife, which can be
adjudged from the facts of the case that: ordinary skills and care were not exercised,
established and accepted norms of the medical profession were not followed and the
subsequent damages caused are a direct consequence of the act of the opposite parties and
were not remote.
i. The opposite parties did not exercise ordinarily skill and care. 
7. The case of Bolam v. Friern Hospital Management Committee5 had clearly established the
fact that the test for medical professionals is the test of an ordinary skilled man exercising and
professing to have that ordinary skill.

                                                            
3
 Thompson v. London County Council, (1899) 1 Q.B. 840
4
Petrie v. Lamont, (1842) C. Marsh. 93 (Eng.)
5
(1957) 2 All E.R. 118 

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8. A doctor needs to ensure reasonable degree of care and caution while carrying out the
treatment of a patient. Moreover, the treatment of a doctor has to be judged in light of the
circumstances of the each case6. It is incumbent upon the medical professional to bring a fair,
reasonable and competent degree of skill while carrying out a medical treatment.
9. It is submitted that the opposite parties did not exercise ordinary care and skills as
improper diagnosis had been carried out by the 1st opposite party and the medication
prescribed by the opposite parties was not in consonance with established medical practice.
(i-a) The diagnosis performed by the 1st opposite party was grossly and blatantly
against the fundamentals of medical sciences.
10. It is submitted that a doctor, when consulted by the patient, owes the patient certain duties
and a duty of care in deciding what treatment to give is one of them7. It is the duty of a
medical professional to examine a patient closely and accurately diagnose the ailment of the
patient8. A doctor would be held liable for not applying with reasonable competence the
medical skills of which he/she is possessed.
11. The diagnosis should appear reasonable in light of the circumstances of the case.
Moreover, the inherent risks associated with every treatment needs to be kept in mind at the
time of diagnosis9.
12. The complainant’s wife had complained of acute fever, rashes and pain when she
approached the 1st opposite party for treatment.
13. Initial symptoms of Toxic Epidermal Necrolysis (TEN) include pain and fever along with
stinging eyes10. The patient might also experience chest pain, joint pain, nausea and vomiting.
The prodrome typically lasts from 1 day to 3 weeks11. The acute phase however consists of
persistent fever and burning and painful skin rash. When the rash appears, it may be over
large and varied parts of the body and it is usually warm and appears red.12 An analysis of the
skin biopsy would show typical full thickness epidermal necrolysis due to keratinocyte
apoptosis13. This clearly differentiates it from any other form of skin disease, especially

                                                            
6
 Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128
7
Poonam Verma v. Ashwin Patel, A.I.R.1996 S.C.2111
8
Wood v. Thurston, 1953 C.L.C. 6871 (cited in V. Kishan Rao v. Nikhil Super Specialty Hospital, 2010 (5)
S.C.R. 1)
9
Thake v. Maurice, (1986) 1 All E.R. 497
10
Thomas Harr & Lars E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5 ORPHANET
JOURNAL OF RARE DISEASES 1, 2 (2010)
11
Toxic Epidermal Necrolysis, (Jan 18, 2016, 9:30 PM), www.emedicine.medscape.com/article/229698-
overview. 
12
 Prashant Tiwari et al., Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC JOURNAL OF
TROPICAL DISEASE 85, 86 (2013)
13
Thomas Harr & Lars E French, supra note 10 

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allergic vasculitis. Apparent indications such as these that point towards a particular ailment
need to be taken note of and analyzed in depth.
14. As for any other organ, diagnosis of skin disease involves history, examination and
additional tests, if required. The diagnosis does not just involve taking a ‘quick look’ at the
patient14. The skin reactions needs to be analyzed closely as they render instant diagnosis in
certain cases or at least a ‘diagnotic label’ which could be attributed to a certain disease
depending on the visual signs15.
15. It is submitted that the 1st opposite party did not examine the complainant’s wife closely
and accurately and thus, breached the duty of care to diagnose the patient correctly. The
incorrect diagnosis of allergic vasculitis had led to the huge deterioration in the health of the
patient and thus, the 1st opposite party is liable for negligent diagnosis, and hence, deficiency
in service.
(i-b) The medication prescribed by the opposite parties was not in consonance with the
established medical practice.
16. It is submitted that the administration of any medication needs to be done in accordance
with the established medical principles. If the medical professional is ignorant of the science
of medicine while prescribing the medication and its dosage, then a prima facie case of
negligence builds upon the doctor16. Using or prescribing a wrong drug or injection, which
proves to be detrimental for the patient, would bring the doctor within the ambit of medical
liability.17
17. The complainant’s wife was administered 80 mg of Depomedrol straightway and
prescribed two injections daily for three days from 15th Oct., while the maximum
recommended dosage of the drug is within the range of 40-120 mg, and that too at a
minimum interval of 1-2 weeks between such doses.
18. Depomedrol (methylprednisolone) is an anti-inflammatory steroid. Corticosteroids are
double-edged weapons, insofar as they can have beneficial as well as huge untoward effects
such as immunosuppression18. As per Jean Edouard Revoz and Jean Claude Rojuz, whose
expertise is accepted world over, corticosteroids are more dangerous than useful in disorders
such as TEN as they increase the risk of death from infections. Moreover, the dosage should

                                                            
14
 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)
15
ANNE LEE, ADVERSE DRUG REACTIONS 128 (2005)
16
Dr. Kusaldas Pammandas v. State of Madhya Pradesh, A.I.R. 1960 M.P. 50
17
Spring Meadows Hospital & Another v. Harjol Ahluwalia & Anr.,(1998) 4 S.C.C. 39
18
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 1162

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only be from 80-120 mg per day and should be tapered quickly and cautiously so as to avoid
any untoward incident.19
19. Prednisolone is a corticosteroid that has anti-inflammatory and mineralocorticoid
properties. The steroidal qualities of prednisolone make it as unfit for the treatment of TEN as
Depomedrol20. The people who receive corticosteroid are generally at a worse off position
than those who do not use such steroids for the purpose for TEN. The patients using such
steroids are prone to more complications and a longer hospital stay21.
20. Steroid used to be the standard treatment for TEN till the 1990s. However, the use of
these steroids has become increasingly disputable in light of the harmful effects that arise out
of them. Systematic steroids have become increasingly dangerous for treatment of TEN
owing to the increased chances of mortality. Hence the use of antibiotics, anticonvulsants and
non-steroidal inflammatory drugs has become preferable now.22
21. Even if steroids are to be given, they are to be only given at the early stages of the disease
along with proper dosage. High dosage at the early stages can benefit the patient if it is
withdrawn at the appropriate time. Continuing of the use of steroids, however, could be quite
detrimental for the patient.23
22. The risk of pneumonia and septicemia also gets highly increased by corticosteroids. They
may even get masked and may reach an advanced stage before being recognized.24
23. Therefore, it is submitted that the administration of Depomedrol in such high dosages by
the 1st opposite party was a grossly negligent act when considered in light of the above facts.
Furthermore, the complainant’s wife was under the care of the 1st opposite party till it was
transferred to the 2nd opposite party. It is submitted that the conduct of the 1st opposite party,
while in AGI Hospital, was regulated by the ‘Patient Undertaking Cum Guideline
Document’, in lieu of which Prednisolone was administered under his directions.
Furthermore, the 2nd opposite party even after diagnosing the disease as TEN still continued
with the same medication. It is submitted that the opposite parties breached their ordinary

                                                            
19
 2 LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN GENERAL MEDICINE 649
(8th ed. 2012).
20
P.H. Halebian et al., Improved burn center survival of patients with toxic epidermal necrolysis managed
without corticosteroids, 204 (5) ANNALS OF SURGERY503, 512 (1986).
21
L. FRENCH & C. PRINS, ERYTHEMA MULTIFORME, STEVENS-JOHNSON SYNDROME AND
TOXIC EPIDERMAL NECROLYSIS, 290 (J.L. Bolognia et al. eds., 2nd ed. 2008). 
22
 G. Gravante, D. Delogu et al, Toxic epidermal necrolysis and Steven Johnson syndrome: 11-years
experience and outcome, EUROPEAN REVIEW FOR MEDICAL AND PHARMACOLOGICAL SCIENCES
121 (2007) 
23
 Depomedrol Datasheet, (Jan 17, 2016, 8 AM), www.medsafe.govt.nz/profs/datasheet/d/depomedolinj.pdf. 
24
 2 LOWELL A. GOLDSMITH et al., supra note 19 at 651; Prednisolone Datasheet 

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duty and care when administering Depomedrol and Prednisolone. Such steroidal medication
is highly advised against in cases of TEN and thus their administration leads to imputation of
negligence on the opposite parties.
ii. The established and accepted norms of medical practice have not been followed.
24. A medical professional needs to act in accordance with the standards of a reasonably
competent medical man at all points in time. There are certain accepted standards and the act
of the medical professional should be in consonance with such standards25.
25. It is submitted that the opposite parties did not act as per the accepted norms of medical
practice as the complainant’s wife was not referred to a specialist at the outset of the
treatment, and no supportive care was provided during the course of the treatment.
(ii-a) Referral was not made to a specialist at the outset of the treatment.
26. It is submitted that absence of a timely referral to a specialist would constitute negligence
on part of the medical professional26. The failure to send a patient to a specialist, when the
situation mandates, would be a breach of duty on part of the doctor and could lead to huge
aggravation in the condition of the patient. Thus, the physician should not take the patient on
an experimental basis and an analysis with respect to the reference needs to be made quickly.
27. Specialists concentrate on specific types of illnesses and problems that affect specific
tissues and organ systems in our body27. Dermatologists are the only experienced, trained and
accredited specialists in the diagnosis and management of diseases of the skin, hair and nails
in adults and children. There are no others who can provide care of an equal quality to that of
dermatologists28, in terms of diagnosing and treating skin lesions.
28. Unless the general practitioner has had special training in dermatology he should not
assume responsibility for the treatment of such conditions. Moreover, a timely referral needs
to be made to the specialist. The decision to make a referral depends on the analysis of how a
reasonable general practitioner would have acted in determining whether the person should
have been referred or not29.
29. It is submitted that the complainant’s wife was not referred to a specialist at the onset of
the disease in spite of the apparent presence of severe symptoms of a skin disease. Moreover,
her care was handed over to the 2nd opposite party on the 20th Oct., when her condition had
                                                            
25
Whitehouse v. Jordan, (1981) 1 All E.R. 267
26
Williams v. Health America 41 Ohio App. 3d 245 (1987)
27
The Road to Becoming a Doctor, (Jan 18,2016 , 9:20 AM),
http://www.aamc.org/download/68806/data/roaddoctor.pdf
28
Royal College of Physicians: Dermatology, (Jan 17,2016 , 6 PM),
https://www.rcplondon.ac.uk/sites.default/files/dermatology.pdf.
29
Bennett v. Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.) 

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deteriorated to a large extent. Therefore, the 1st opposite party was negligent due to delayed
and untimely referral.
( ii-b) There was no supportive care to the complainant’s wife during the course of the
treatment.
30. Supportive care becomes highly important in cases of TEN. Huge amount of attention
needs to be paid to high-calorie and high-protein diet30. Symphonatic Treatment and
antibacterial policy are other aspects of supportive treatment that need to be adhered to.
Several liters of fluid per day are needed since fluid loss is enormous in severe cases. The
absence of substitution of these fluids leads to important internal problems31.
31. Artificial ventilation also needs to be provided in certain cases. Conjunctival involvement
also becomes a major problem. Thus eye care also constituted an important element of the
supportive care. Use of air- fluidized beds, use of systemic antibiotic therapy for specific
infections but not for prophylaxis, topical antibiotic therapy is not used, meticulous wound
care and moist saline gauge dressing are applied once daily when most of the involved
epidermal surface has sloughed off etc. are some of the other measures that need to be
taken.32 Thus, supportive case becomes an essential part of the therapeutic approach for the
prevention of TEN.
32. It is submitted that there was absence of any kind of supportive therapy during the course
of treatment. While the 1st opposite party’s wrong diagnosis initiated a totally different
course of treatment and supportive care could not be provided at that time, the 2nd opposite
party even after rightly diagnosing the complainant’s wife of TEN was patently negligent in
not providing the supportive care, which is the mainstay in treatment of TEN.
iii. The damages are a direct consequence of the act of the opposite parties.
33. It is submitted that for a tortious claim, the damage cause needs to be a direct result of the
act of the opposite parties33. The negligence of the medical professionals needs to be the
cause of the damage that has accrued to the patient. The ‘but for’ test becomes important in
this regard, since it is to be analyzed that whether the damage would have accrued ‘but for’
the negligence of the opposite party34.
34. The opposite parties would in any case be liable, if their wrongful act has resulted in

                                                            
30
 2 LOWELL A. GOLDSMITH et al., supra note 19, at 651; Malay Kumar Ganguly, supra note 18
31
GERARD PIERARD, TREATISE ON TEN
32
Malay Kumar Ganguly, supra note 18
33
RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 184 (G.P. Singh eds., 26th ed. 2013)
34
Robinson v. The Post Office, (1974) 2 All E.R. 737 

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materially contributing to the damage35. The fact that other factors were also present would
not discharge the opposite parties of their liability. The damages should, however, be such
that a reasonable man could have foreseen them36.
35. TEN is a serious adverse skin reaction that can be life threatening37. Complications such
as sepsis can lead to the mortality of the patient in TEN. Thus, in the present case the damage
accruing to the complainant’s wife was reasonably foreseeable. Moreover, the disease could
have been diagnosed, treated and cured at an earlier stage, which was ‘but for’ the negligence
of the opposite parties, could not be done. Thus, the death of the complainant’s wife is a
direct consequence of the acts and omissions of the opposite parties.

                                                            
35
 RATANLAL AND DHIRAJLAL, supra note 33, at 185
36
Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 14
37
Alan D. Widgerow, Toxic epidermal necrolysis management issues and treatment options, 1INT. J.
BURNSAND TRAUMA42, 47 (2011) 

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II. THE LIABILITY OF THE OPPOSITE PARTIES CAN’T BE EXEMPTED
THROUGH THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT.
36. It is submitted that the Patient Undertaking cum Guideline Document cannot exempt the
liability of the opposite parties as [A] there is a fundamental breach of a standard form
contract, [B] the liability in tort cannot be exempted by a contractual clause, [C] the
document is against public policy, and [D] it attracts the provisions of §16 of the Indian
Contracts Act, 1872.

A. THERE IS A FUNDAMENTAL BREACH OF A STANDARD FORM CONTRACT.

37. It is submitted that the standard form contracts are those contracts where one of the
parties habitually makes contracts of the same type with other parties in a particular form and
allow little, if any, variation from that form38. These contracts entail standardization of the
package offered to customers, in much the same way, as is standardization of a product. Due
to the commercial nature of the most of these contracts, less attention might be paid to issues
of contractual fairness39.
38. There might be certain conditions in the standard form contracts which if put into effect,
would negate the main contractual duty40. Such contracts, in consequence, become
unenforceable, as a protection needs to be provided against unreasonable consequences of
wide and sweeping exemption clauses41. Moreover, every contract contains a core or certain
fundamental provisions, which if any party fails to honor, will be held to be guilty of a breach
of contract irrespective of the fact that an exempting clause has been inserted purporting to
protect that party42.
39. Fundamental breach protects the interest of the weaker party in the contract. An
exemption clause of the contract cannot allow a party to the contract to escape its liability and
be negligent in carrying out its duties with respect to the contract.43
40. It is submitted that the exemption clause of the Patient Undertaking cum Guideline
Document constituted a fundamental breach of contract insofar it exempts the staff and
doctors from all the risks associated with the treatment of a patient. The document entails a
contract with the fundamental and core obligation being provision of safe and medically
recognized treatment to the patients. The exemption clause of the document cannot be used

                                                            
38
H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW318, 328 (1953)
39
Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) WILLIAM AND MARY LAW
REVIEW 328 (2010)
40
Alexander v. Railway Executive, [1951] 2 All E.R. 442
41
Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461
42
B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647 
43
 Beaumont Thomas v. Blue Star Line Ltd., [1939] 3 All E.R. 127 

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by the doctors and staff of the hospital to exempt themselves of this core provision and thus a
fundamental breach of contract has been constituted.
B. THE LIABILITY IN TORT CANNOT BE EXEMPTED BY A CONTRACTUAL
CLAUSE.
41. It is submitted that tort duties are imposed by law to protect the interest of society in
freedom from various kinds of harm44. They are grounded basically upon social policy and
not upon the will or intention of the parties. Therefore the duty of ordinary care, therefore,
does not arise out of the contract.
42. The exemption clause is an incident of a contract. Thus the exemption clause can exempt
the opposite parties from their liability in contract, however the exemption for the opposite
parties does not cover the ambit of torts45.
43. A medical professional owes a reasonable duty of care to the patient while carrying out
the treatment of the patient46. This duty of care is a duty arising out of tort law and is not a
contractual stipulation. Therefore the duty of care of the opposite parties cannot be exempted
through the Patient Undertaking cum Guideline Document, insofar it is a tortious claim.
C. THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT IS AGAINST
THE PUBLIC POLICY.
44. It is submitted that whenever a party relying upon the exculpatory clause owes a duty of
service to the public, the contract is invalidated as being contrary to public policy. Any clause
that is contrary to the public policy would be unenforceable as against the contracting party47.
The protection against abridgment of public policy is to discourage negligence by inflicting
damages upon the wrongdoers. Moreover, it also protects the consumers of goods and
services from harsh contracts being enforced upon them48.
45. Public policy is a broad term allowing the Courts to refuse the enforcement of a contract
on the considerations of public interest. The Court in pursuance of this might relieve a party
of the duty placed on it through an exemption clause of a contract49. Thus, an aspect of the
contract having tendency to injure public interest or public welfare would be opposed to
public policy and thus would be unenforceable50.

                                                            
44
 Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA LAW
REVIEW 121, 128 (1956)
45
White v. John Warwick & Co Ltd, [1953] 2 All ER 1021
46
See Jacob Mathew, (2005) 6 S.C.C. 1 
47
 M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154
48
Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955)
49
Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781 
50
 Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67

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46. The Indian Contract Act 1872 explicitly prohibits the enforcement of such agreements51.
Any consideration or object that is opposed to public policy is prohibited by it. Thus, an
unconscionable contract would be prevented from being enforced in the interests of the
public52.
47. It is submitted that in the present case, the Patient Undertaking cum Guideline Document
entails the features of an agreement opposed to public policy. A reasonable duty of care is an
essential feature that needs to be imbibed by the medical practitioners in their functioning.53
Thus contracting out of such duty would be against public policy and would render the
agreement unconscionable.
D. THE PROVISION OF SECTION 16 OF THE INDIAN CONTRACT ACT IS
ATTRACTED. 
48. It is submitted that a contract is said to be induced by undue influence if the relationship
between the parties is such that one is able to dominate the will of the other party and uses
that position to obtain an unfair advantage.54 The party in the superior position might prevail
upon the other party and induce the other party to enter into an unfair agreement. Undue
influence constraints free agency, restricts the power of resistance and brings about the
submission of one party before the other.
49. A party can be said to dominate the will of the other party when there is active trust and
confidence between the parties or the parties are not on an equal footing55. Since, a doctor is
clearly on a higher footing that the patient in terms of medical knowledge along with the
expertise of the intricacies of the medical profession, and the relationship of a doctor and a
patient is clearly that of trust and confidence, wherein the patient puts his health and life in
the doctor’s hands, it is clear that doctors exercise influence over the patients.56
50. It is submitted that the patient undertaking cum guideline document would attract the
provisions of Section 16 of the Indian Contract Act, insofar the exemption clause is
concerned as it is clearly symbolic of an unfair advantage on part of the doctors and staff of
AGI Hospital over the patients, thereby rendering the contract voidable at the option of the
party over whom the unfair advantage was exercised.

                                                            
51
Indian Contracts Act 1872, No. 9 of 1872, Section 21
52
Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., A.I.R. 1986 S.C. 1571
(cited in M.K. Usmankoya v. C.S. Santha, AIR 2003 Ker 191)
53
See Jacob Mathew, (2005) 6 S.C.C. 1, See Bolam, (1957) 2 All E.R. 118.
54
Indian Contracts Act 1872, supra note 51, Section 16
55
Devki Nandan v. Gokli Bai, (1886) 7 Punj. L.R. 325 
56
 Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, [1985] A.C.
(H.L.) 871 (appeal taken from Eng.)

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III. THE LIABILITY OF THE OPPOSITE PARTIES WOULD NOT MITIGATE AS
THE COMPLAINANT WAS NOT NEGLIGENT.
51. It is submitted that the liability of the opposite parties would not be reduced as there is
absence of negligence on part of the complainant as [A] the complainant did not fail to take
reasonable care of the safety of the deceased; [B] assuming arguendo, even if there was
negligence, it was not substantial; and [C] the complainant cannot be held liable for not
taking the safest course in light of the dangerous situation caused by the opposite parties.

A. THE COMPLAINANT HAD TAKEN REASONABLE CARE FOR THE SAFETY OF

THE DECEASED.
52. If the complainant fails to take reasonable care of his/her own safety, then the defense of
contributory negligence would be attracted. The complainant’s or the deceased’s negligence
should contribute in some degree to the injury or death of the deceased57. The damages in
such cases would get apportioned as per the contribution of negligence by both the parties.58
53. It is submitted that in the present case, the complainant had taken reasonable care for his
wife’s safety. He had sought medical guidance at the outset of the disease and even took her
from Chandigarh to New Delhi in light of her deteriorating appalling condition at AGI. The
said movement was in pursuance of her own safety as per reasonable medical prudence,
thereby eliminating the chance of any absence of reasonable care on her part.

B. THE NEGLIGENCE, EVEN IF PRESENT, WAS NOT SUBSTANTIAL.

54. For the defense of contributory negligence to be attracted, it is necessary that the
negligence on part of the complainant was substantial59. The question, thus, in all cases is not
as to who had the last opportunity of avoiding the mischief, but whose act caused the wrong.
The act of the complainant needs to make a substantial contribution to the damage suffered
by the complainant.60
55. It is submitted that in the present case, the complainant’s wife had to be moved, out of
necessity, from AGI hospital in Chandigarh to AMS hospital in New Delhi to seek for better
medical treatment owing to her rapidly depleting health condition. The movement from
Chandigarh to New Delhi even if considered negligence, did not substantially contribute to
the injury and damage to the complainant’s wife, as the aggravation of TEN had already led
to the detaching of the upper layer of the skin from the lower layer of the body, all of which
                                                            
57
 S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223 at 230
58
Swadling v. Cooper, (1931) A.C. (H.L.) 1 (appeal taken from Eng.); Vidya Devi v. Madhya Pradesh State
Road Transport Corporation, A.I.R. 1975 M.P. 89.
59
Id
60
Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350 (appeal taken from Scot.) 

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was mainly the fault of the doctors at Chandigarh who were negligent in undertaking
improper diagnosis and giving inadequate treatment.

C. THE COMPLAINANT TOOK THE SAFEST COURSE OF ACTION IN LIGHT OF

THE DANGEROUS SITUATION CAUSED BY THE OPPOSITE PARTIES.
56. It is submitted that when the creation of a dangerous situation is ascribable to the
negligent act of the opposite party, he is not to be excused from liability for the consequent
harm by reason of the fact that the endangered person takes a course of action which turns out
to not be the safest one.
57. In such circumstances, the contributory negligence on the part of the person injured is not
made out unless he is shown to have acted with less caution than any person of ordinary
prudence would have shown under the same trying condition61.
58. In the present case, the dangerous situation was created by the opposite parties owing to
the negligent medical treatment that was carried out by them. The safest course of action in
that particular situation was to shift the complainant’s wife to another medical facility where
her treatment could be carried out in a more efficient manner. The course adopted was that of
a person of ordinary prudence and hence the defense of negligence on part of the complainant
does not get attracted in this particular situation.

                                                            
61
 Chaplin v. Hawes, (1828) 3 C. & P. 554 

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IV. THAT THE COMPLAINANT IS ENTITLED TO SUE AND CLAIM DAMAGES
UNDER VARIOUS HEADS.
59. The complainant is the husband of the victim- deceased and has sued the opposite parties
for treating his wife negligently, thereby causing her death.
60. The common law maxim action personalis moritur cum persona, i.e. a personal right of
action dies with the person, has been abrogated by the statutory provisions of Legal
Representatives Suits Act 185562, and Fatal Accidents Act 185563. These statutory laws
enable the Executors, Administrators or Representatives to sue for any wrong committed in
the time of the deceased person and also provide for compensation to the families for the loss
occasioned by the death of a person caused by actionable wrong.64
61. It is submitted that the complainant under the above laws and the common law is entitled
to various [A] pecuniary; [B] non- pecuniary; and[C] punitive damages, due to the
commission of the deficiency in services by the opposite party doctors.

A. ENTITLEMENT TO RECOVER PECUNIARY DAMAGES.

62. Pecuniary damages are those damages, which the victim has actually incurred and are
capable of being assessed in terms of money.65
63. The complainant is entitled to pecuniary damages under the heads of loss of income of
the deceased; and costs in terms of the expenses incurred in the medical treatment in
Chandigarh and New Delhi, travelling and hotel expenses of taking to New Delhi and
expense of litigation including lawyer services.
(i). Loss of income of the deceased leading to loss of dependency.
64. Both Legal Representatives Suits Act 1855 read with the Fatal Accidents Act 1855 allow
the administrators, executors or representatives of the deceased to sue the wrongdoer for the
pecuniary loss caused to the dependents.66 For the purposes of assessing damages to the
dependents, it has been held that the income of the deceased should be taken into account67.
64. The complainant has used a method prescribed by the Motor Vehicle Act, 1988 , to
calculate the loss of the income of the deceased for granting damages to the dependents. To

                                                            
62
Legal Representatives Suits Act 1855, Act, No.12 of 1855, Statement of Objects and Reasons [hereinafter
‘Legal Representatives Act’]
63
Fatal Accidents Act 1855, No.12 of 1855, Statement of Objects and Reasons [hereinafter ‘Fatal Accidents
Act’].
64
Legal Representatives Act, supra note 62, Section 1; Fatal Accidents Act, supra note 63, Section 1A
65
R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 (cited in Ashwani Kumar Mishra v. P.
P. Muniam Babu, 1999 A.C.J. 1105.).
66
Legal Representatives Act, supra note 62, Section 1 r/w Fatal Accidents Act, supra note 63 Section 1A;
RATANLAL AND DHIRAJLAL, supra note 33, at 113
67
 National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 763 

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calculate, he took the income of the deceased at the time of her death, and based on that
income, calculated the sum that she could have earned had she been in a regular job, termed
as ‘a’. Then, a deduction of 1/3rd for the purposes of expenditure was done from the income
at the time of death, termed here as ‘b’. Then the amount ‘a-b’ was multiplied by 16 as per
the multiplier set in Sarla Verma vs. Delhi Transport Corporation68 and then the final amount
of compensation to be claimed was ascertained.
65. It is submitted that taking into account the difference in the standards of living of the
people in UK, the court is requested to grant extra damages than ascertained using the
formula.
(ii) Costs in terms of expenses incurred on various items.
66. In the cases of medical negligence, the Supreme Court of India has awarded damages on
the ground of expenses incurred by the complainant on the heads of cost of medical treatment
including the cost of medicines, consultant’s fees, nursing charges and other ancillary charges
like transportation to and from hospital69, and the costs incurred in the litigation including the
lawyer fees70.

B. ENTITLEMENT TO RECOVER NON- PECUNIARY DAMAGES.

67. Non- pecuniary damages are those damages, which are capable of being assessed by
arithmetical calculations. The complainant is entitled to non-pecuniary damages under the
heads of pain and suffering of the deceased; loss of consortium; and mental and emotional
distress of the complainant.
(i) Pain and Suffering of the Deceased.
68. The abolition of the maxim action personalis moritur cum persona, by the Legal
Representatives Suit Act 1855 and Fatal Accidents Act 1855 allows for damages suffered by
the deceased before his death under the heads of loss of earnings, pain and suffering71.
Duration and intensity of pain and suffering are taken into consideration while awarding
damages under this head72.
69. In the present case, the horrific impact of TEN resulting in the detachment of skin, further
aggravated with the increased vulnerability of sepsis due to depleting immunity as a
consequence of administration of alarming dosage of anti-allergy steroids, has caused

                                                            
68
 (2011) 4 SCC 689
69
TAPAS KUMAR KOLEY, MEDICAL NEGLIGENCE AND THE LAW IN INDIA: DUTIES,
RESPONSIBILITIES, RIGHTS98 (1stedn. 2010)
70
See Dr. Balram Prasad, (2014) 1 S.C.C. 384
71
KOLEY, supra note 69, at 94-5
72
See Dr. Balram Prasad, (2014) 1 S.C.C. 384 

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tremendous pain and shock to the deceased.
(ii) Loss of Consortium.
70. In legal parlance, ‘consortium’ is the right of the spouse to the company, care, help,
comfort, guidance, society, solace, affection and sexual relations with his or her mate73.
The Hon’ble Supreme Court of India has recognized that the loss of companionship, care and
protection, etc., is a loss for which the spouse is entitled to get compensated appropriately.
Therefore, by granting damages under the head of loss of consortium, the Courts have made
an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship,
society, assistance, protection, care and sexual relations during the future.74
(iii) Mental and Emotional Distress of the Complainant.
71. In England, bereavement damages are perceived as performing a symbolic function of
providing some “sympathetic recognition” by the state of the fact of grief, sorrow, pain75
caused to the complainant on losing some loved one, and an expression on the part of society
of the gravity with which it regards the loss of a human life76.
72. In the present case, the complainant being the husband of the deceased had to experience
the traumatic experience of having to see his wife’s suffering on account of her disease and
her bodily reactions to the steroids recklessly administered by the opposite parties, leading to
the wearing off of the skin on her body and culminating in her untimely death.

C. ENTITLEMENT TO RECOVER PUNITIVE DAMAGES.

73. Punitive damages are awarded to punish the opposite party and to deter him and others
from similar behavior in future.77
74. It has been recognized the Supreme Court that punitive damages are routinely awarded in
medical negligence cases in many jurisdictions for reckless and reprehensible act by the
doctors or hospitals in order to send a deterrent message to other members of the medical
community.78 It is also recognized that the patients, irrespective of their social, cultural and
economic background have a Human Right to be treated with dignity.
75. In the present case, administration of a dose of 80 mg of Depomedrol along with
                                                            
73
 Rajesh and Ors. v. Rajvir Singh and Ors., 2013 (9) S.C.C.54; (cited in See Dr. Balram Prasad, (2014) 1
S.C.C. 384)
74
See Dr. Balram Prasad, (2014) 1 S.C.C. 384; See Rajesh and Ors., 2013 (9) S.C.C.54; Sunil Sharma v.
Bachitar Singh, (2011) 11 S.C.C. 425; Pushpa v. Shakuntla, (2011) 2 S.C.C. 240; Rani Gupta v. United India
Insurance Company Ltd., (2009) 13 S.C.C. 498.
75
Fatal Accidents Act, 1976, c. 30, section 1A (Eng.)
76
428 PARL. DEB, H.C. (1982) 41-2 (U.K.)
77
WINFIELD & JOLOWICZ, TORT1230 (Rogers ed., 18thedn., 2010)
78
Landgraf v. USI Film Prods, 511 U.S. 244 (1994); Welch v. Epstein 536 S.E. 2d. 408 (2000) (cited in See Dr.
Balram Prasad, (2014) 1 S.C.C. 384) 

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prescribing injection Depomedrol to be used twice daily for three days by the 1st opposite
party was in clear violation of the manufacturer’s warning and recommendation, which no
doctor has to right to do79.
76. Therefore, it is submitted that the complainant is entitled to pecuniary, non- pecuniary
and punitive damages in light of the loss of income of the complainant’s wife, mental
suffering and pain of both complainant and his wife, costs incurred in contesting litigation in
form of travelling expenses, lawyer services and the patent negligent act and omission of the
opposite parties.

                                                            
79
 See Sukumar Mukherjee and Baidyanath Halder,(2004) I.L.R. 1 Cal. 332

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V. THAT THERE CAN BE NO BAR ON THE COMPLAINANT TO INITIATE A
LEGAL PROCEEDINGS IN UK.
77. It is submitted that the complainant is entitled to sue the opposite parties in the
Birmingham County Court because [A] recovering damages on those heads which are not
allowed by the Indian substantive law, but are allowed by the UK law would lead to a
different cause of action; and/or [B]to avoid any chances of delay in granting of relief from
the Indian Courts.

A. DIFFERENCE IN THE HEADS OF DAMAGES IN VARIOUS JURISDICTIONS

WILL LEAD TO DIFFERENT CAUSES OF ACTION.
78. Before any proceeding begins in a conflict of laws case, it is the task of the forum to
characterize an issue either as substantive or procedural. While substance is broadly a matter
of right, procedure is broadly a matter of remedy in such cases80. 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 law.81
79. In this regard, it is submitted that if there is any difference between the UK and Indian
substantive law on the aspect of recoverable heads of damages, then, such difference leads to
different causes of action. Ascertaining the heads of damages is a substantive issue;
consequently, if the Indian substantive law does not recognize any particular head of damage
which is recognized in UK law, there would be a separate cause of action. Hence, the
principle of claim preclusion would be inapplicable.
i. Ascertaining the heads of damages is a substantive issue.
80. The common law classifies recoverable heads of damages as an issue of substantive
law82. The reason for such characterization can be illustrated by taking into perspective the
law of a country that does not grant damages on account of pain and suffering, thereby
rendering a non-citizen, who meets with an accident and undergoes pain and suffering,
without suffering any economical loss, totally remediless. Thus applying procedural law and
characterizing the heads of damages as a procedural issue in such cases poses a situation
wherein in essence, no right of the complainant can be enforced and hence substantive rights
are adversely affected.83

                                                            
80
 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)
81
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)
82
Chaplin v. Boys, [1971] A.C. 356 (H.L.) (appeal taken from Eng.)
83
Id

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ii. Non- recognition of any head of damage leads of a separate cause of action.
81. In the illustration above, though there would be a civil wrong done according to the law
of which the complainant is a citizen; but by the lex loci delicti, the place where the tort
occurred (where the complainant might have gone to holidaying purposes), there would be no
justification, and consequently no civil cause of action84.
82. Therefore, the common law recognizes that difference or differences in the recoverable
heads of damage will distinguish one cause of action from another.85
83. A similar question arose in the case of Black v. Yates86, where the plaintiff widow sought
to secure damages under the head of ‘loss of dependency’ from an English Court on the basis
of a judgment from the Spanish Court holding the defendant guilty of negligently causing the
death of the complainant’s husband in Spain. The Court rejected the claim on the sole ground
that the Spanish law recognizes the right to recover under the head of damage for ‘loss of
dependence’ which was also recoverable in English proceedings under the Fatal Accidents
Act 1976.
iii. Non- recognition of damages under the head of bereavement in Indian law may lead
to a separate cause of action.
84. The English statutory law recognizes damages in cases of death due to a tort under
various heads including that of bereavement87. The purpose of damages for bereavement
made recoverable is regarded as constituting compensation for all non- pecuniary loss
suffered by the surviving relatives including “grief” or “mental suffering”88.
85. Therefore, if the Indian law does not recognize this head of damage by applying its own
substantive law, then, in such cases a right, not only remedy, of the complainant would be
curtailed.
86. Hence, it is submitted that another ‘cause of action’ would arise in terms of whether the
complainant is entitled to seek damages under the head of bereavement in the English
statutory law which would have to be addressed by the English Civil Courts. Therefore, there
is no bar to file a civil action in England.89
iv. The Principle of claim preclusion is inapplicable.
87. The UNIDROIT Principles of Transnational Civil Procedure regarding the rules of

                                                            
84
 Mostyn v. Fabrigas, 1 Cowp. 161
85
Kohnke v. Karger [1951] 2 K.B. 670.
86
[1992] Q.B.526
87
Fatal Accidents Act, 1976, c. 30, Section 1A (Eng.)
88
Law Commission of UK, Report on Personal Injury Litigation - Assessment of Damages, at 30- 3 (1973)
89
Civil Jurisdiction and Judgments Act, 1982, c. 27, Section 34 (Eng.)

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successive jurisdiction, i.e., res judicata is intended to avoid repetitive litigation90.
88. ‘Claim preclusion’ means that a complainant may not, in a subsequent action, assert a
claim that was the subject of a prior action, whether the claim was victorious or defeated, if it
was conclusively determined.91
89. In the present case, the complainant is seeking damages under the head of bereavement or
mental and emotional distress in losing his wife. But if is the Indian Courts do not grant
damage under this head on the ground that it’s substantive law, i.e., the common law, does
not recognize such type of damages, then, there is no claim preclusion as it would be an
instance of the claim being left undecided due to absence of a provision in law.

B. AVOID ANY CHANCES OF DELAY IN GRANT OF RELIEF FROM THE INDIAN

COURTS.
90. The English common law allows parallel proceedings in two jurisdictions only in unusual
circumstances92. It has been opined in order to address the issue of Lis alibi pendens that the
second proceeding could be stayed with the option of reopening it again in case the first
proceeding does not provide timely and satisfying relief93.
91. Therefore, the UNIDROIT Principles to which both India and UK are signatories, provide
that the court should decline jurisdiction or suspend the proceeding, when the dispute is
previously pending in another court competent to exercise jurisdiction, unless it appears that
the dispute can be expeditiously resolved in that forum.94

                                                            
90
 UNIDROIT, art 28
91
UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (2004), Travaux Préparatoires,
Study LXXVI 1999 – Doc. 3 at 22
92
Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant Bank Ltd., [1989] 3
All E.R. 65
93
UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (2004), Travaux Préparatoires,
STUDY LXXVI 1999 – DOC. 1at 14; DOC. 3 at 23.
94
UNIDROIT, supra note 90, art. 2.6 

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PRAYER
 

In light of the facts of the case, issues raised and arguments advanced, Counsels for the
Complainant respectfully prays before this Hon’ble Court to:
1. HOLD that the opposite parties were compositely negligent in causing the death of
the complainant’s wife;
2. AWARD damages;
3. REJECT any injunction application sought 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 Complainant

MEMORIAL ON BEHALF OF THE COMPLAINANT