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Memorial by Petitioner

Criminology (Government Law College, Churu)

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Full Name: Tejashvi Shantaram Chavan

Class Details: T. Y. L. L. B

Roll Number: 8

Email Address: tejashvichavan@gmail.com

Contact Number: 8097555108

Subject of the Topic: Memorial by Appellant

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SENIOR MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION

IN THE MATTER OF

MRS. VINETA NANDA … Appellant

Vs.

1. KASTURI MEDICARE PRIVATE

LIMITED HOSPITAL
2. Dr. AMIT AGARWAL … Respondents

MOST RESPECTFULLY SUBMITTED TO THE

PRESIDENT AND MEMBERS

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TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE NOS.

1. LIST OF ABBREVIATIONS 1

2. INDEX OF AUTHORITIES 2

3. STATEMENT OF JURISDICTION 3-4

4. STATEMENT OF FACTS 5-6

5. STATEMENT OF ISSUES 7

6. SUMMARY OF ARGUMENTS 8-9

7. ARGUMENTS ADVANCED 10-14

8. PRAYER 15

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LIST OF ABBREVIATIONS

CPC Code of Civil Procedure, 1908

AIR All India Reporter

CPA The Consumer Protection Act, 2019
CPJ Consumer Protection Judgments
GOJURIS gojuris.in
Vs. Versus
No. Number
MOHFW Ministry of Health and Welfare
& And
ICMR Indian Council of Medical Research
DCDRF The District Consumer Disputes Redressal
Forum
SCDRC The State Consumer Dispute Redressal
Commission
NCDRC The National Consumer Disputes Redressal
Commission

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INDEX OF AUTHORITIES

LEGAL DATABASES AND OTHER SITES REFERRED TO:

 www.gojuris.in
 www.mohfw.gov.in

CASES CITED

 S.V. Panchori Vs. Dr. Kaushal Pandey

 Indian Medical Association v V.P. Shantha and others

 Arvind Shah (Dr.) v Kamlaben Kushwaha

 Poonam Verma v Ashwin Patel & Ors

LEGISLATIONS

 The Consumer Protection Act, 2019 (As amended time to time)

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STATEMENT OF JURISDICTION

THE COUNSEL FOR THE APPELLANT HUMBLY SUBMITS BEFORE

THIS HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL
COMMISSION UNDER SECTION 34 OF THE CONSUMER
PROTECTION ACT, 2019.

SECTION 34 - JURISDICTION OF DISTRICT COMMISSION

(1) Subject to the other provisions of this Act, the District Commission shall have
jurisdiction to entertain complaints where the value of the goods or services paid as
consideration does not exceed one crore rupees:

Provided that where the Central Government deems it necessary so to do, it may
prescribe such other value, as it deems fit.

(2) A complaint shall be instituted in a District Commission within the local limits of
whose jurisdiction,-

(a) the opposite party or each of the opposite parties, where there are more than
one, at the time of the institution of the complaint, ordinarily resides or carries
on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides, or carries on
business or has a branch office, or personally works for gain, provided that in
such case the permission of the District Commission is given; or

(c) the cause of action, wholly or in part, arises; or

(d) the complainant resides or personally works for gain.

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(3) The District Commission shall ordinarily function in the district headquarters and
may perform its functions at such other place in the district, as the State Government
may, in consultation with the State Commission, notify in the Official Gazette from
time to time.

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STATEMENT OF FACTS

1. Mrs. Vineta Nanda was admitted in a critical condition to Matoshri Tiwari

Hospital, Gulagaonon on 14/04/2021 at around 5.37 pm. After detailed clinical
examination and perusal investigation reports she diagnosed a Covid RT PCR
positive Covid pneumonia (CT sensitivity score 12/25 as on 10/04/2021).

2. An ex-MLA Mr. Narendra Mehta has telephonically requested to doctor Mr.

Amit Agarwal to admit Mrs. Vineta Nanada in Kasturi Medicare Private Limited
hospital.

3. At the time of admission of Mrs. Vineta Nanada was in a critical condition with
breathlessness, fever spike off and on, mild restlessness, cough, and generalized
weakness and was on 8-10 litres of oxygen and needed Convalescent Plasma
Therapy and Actrema.

4. Mrs. Vineta Nanda was admitted under the care of Dr. Shobha Jadhav and
appropriate treatment was started. A deposit of Rs. 1,40,000 was made to the
hospital by NEFT.

5. Ms. Reena Nanda sister of the Mrs. Vineta Nanda signed on the medical records
of Mrs. Vineta Nanda.

6. Due to the non-availability of Injection Remdesivir at the hospital, the relatives

of Mrs. Vineta Nanda brought the medication and handed over to the hospital.
Accordingly, Mrs. Vineta Nanda was administered Actrema on 15/04/2021 and
the first dose of Convalescent Plasma was administered on 17/04/2021 and the
second dose on 18/04/2021.

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7. The HR CT was repeated on 23/04/2021, the score was 25/25 indicating severe
damage to the lungs and hence it was advised to shift the patient to a higher
centre.

8. The relatives of Mrs. Vineta Nanda repeatedly requested the Hospital to carry
5out RTPCR Test and hence which was repeated on 24/04/2021 and the result
of the test indicated that RT PCR negative.

9. The complainant was transferred to Jupiter Hospital on 25/04/2021 at 11.55 p.m.

and the daughter of Mrs. Vineta Nanda was present during her shifting.
Afterwards, total hospital bill after discount paid by the daughter of Mrs. Vineta
Nanda.

10. After getting fully recovered from Jupiter Hospital, Mrs. Vineta Nanda lodged
a consumer complaint before District Consumer Dispute Redressal Forum a case
of serious Negligence in her treatment and claim compensation from Kasturi
Medicare Private Limited.

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STATEMENT OF ISSUES

 Is the Complaint maintainable before District Consumer Dispute Redressal

Forum now known as District Consumer Dispute Redressal Commission?

 Whether there has been any deficiency in the services of the Hospital?

 Whether Dr. Amit Agarwal is liable for Negligence in the treatment of Mrs.
Vineta Nanda?

 Is Mrs. Vineta Nanda eligible for compensation?

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SUMMARY OF ARGUMENTS

Issue no. 1

Is the Complaint maintainable before District Consumer Dispute Redressal

Forum now known as District Consumer Dispute Redressal Commission?

 Jurisdiction of District Consumer Disputes Redressal Commission.

 The complaint filed is well within the limitation period i.e. 2years from the cause
of action and all the parameters of District Consumer Redressal Commission as
per CPA are complied.

Issue no. 2

Whether there has been any deficiency in the services of the Hospital?

 There has been deficiency in the services rendered by the hospital because the
Hospitals have failed to follow the Covid 19 rules and regulations laid down time
to time and other Hospital guidelines as required.
 In addition, due to unavailability of Injection Remdesivir in hospital at the
appropriate time, the patient and family members experience inconvenience slow
recovery.

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Issue no. 3

Whether Dr. Amit Agarwal is liable for Negligence in the treatment of Mrs. Vineta
Nanda?

 Yes, Dr. Amit Agarwal is liable for Negligence in the treatment of Mrs. Vineta
Nanda because Dr. Amit Agarwal only arranged to get admitted Mr. Vineta
Nanda as requested by an ex-MLA Mr. Narendra Mehta. But after she admitted,
he didn’t examine her and giver her the appropriate medication.

Issue no. 4

Is Mrs. Vineta Nanda eligible for compensation?

 Yes, Mrs. Vineta Nanda is entitled to compensation for the delay in a proper
medical examination caused by the Kasturi Hospital and also due to lack of
medication and for Dr. Amit Agarwal’s negligence in failing to properly care
and diagnose of Mrs.Vindeta Nanda before transferring to another hospital.

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ARGUMENTS ADVANCED

Issue No. 1

Is the Complaint maintainable before District Consumer Dispute Redressal

Forum Now Known As District Consumer Disputes Redressal Commission?

 Jurisdiction of District Consumer Disputes Redressal Commission:

It is submitted that any consumer complaint to be filed must be in the manner
laid down in section 35 of CPA and the extent of pecuniary jurisdiction of the
District Consumer Disputes Redressal Commission is upto Rupees One Crore.
According to various judgments, a Hospital where a medical practitioner
performs his/her duties can be sued for deficiency of service and/or negligence
or such other relief to complain and/or compensate under the CPA.

Issue No. 2

Whether there has been any deficiency in the services of the Hospital?

 Deficiency: According to section 2(11) of the CPA,

Quote: <"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 and includes--

(i) any act of negligence or omission or commission by such person which

causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the

consumer;=

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 Service: According to section 2(42)of the CPA:

Quote: <"service" means service of any description which is made available to

potential users and includes, but not limited to, the provision of facilities in
connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, telecom, boarding or lodging or both, housing
construction, entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge or
under a contract of personal service;=

Unquote.

The Central Government as well as the respective State Government had laid
down various Covid 19 guidelines for the residents, medical practitioners,
hospitals and such other medical non-medical institutions in the wake of rising
Covid 19 cases, which the Respondent No. 1 has failed to comply with and
thereby rendering inadequate services to the Complainant and resulting in
deficiency in services which are dealt in length hereunder.

 Covid 19 Rules and Regulations laid down by ICMR:

The complainant submits that the respondent has failed and neglected to follow
ICMR Guidelines wherein the procedure for retesting of RTPCR was avoided
by the respondent no. 1 even though the complainant was in a critical condition.
Further the respondent only conducted the RTPCR test when the respondent
wanted to transfer the complainant to higher maintenance as they realized their
shortcomings leading to inadequate service. As laid down in Shahul Hameed Vs.
Apollo Hospital Enterprises1 it was held that non conducting of tests on the day
of taking the samples amounted to deficiency in service similarly not carrying
out required tests1 amounts to deficiency in service.

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Action to be taken on detection of COVID -19 case in non-COVID health

facility:
The Respondent had a legal liability towards the complainant by following the
guidelines on detection of suspect/confirmed COVID-19 case in a Non-COVID
Health Facility issued by Ministry of Health & Family Welfare Directorate
General of Health Services EMR Division which respondent neglected to do so
thereby committing deficiency in service. Some of the guideline are as follows:

Quote:
<Clause 4.1 of Ministry of Health & Family Welfare Directorate General of
Health Services EMR Division:
Action to be taken on detection of COVID -19 case in non-COVID health
facility When a positive COVID-19 patient is identified in a health care
facility, not designated as COVID-19 isolation facility:
• Inform the local health authorities about the case
• Assess the clinical status of the patient prior to referral to a designated
COVID facility.
• The patient should be immediately isolated to another room (if currently
being managed in a shared ward/room). If the clinical condition permits,
such patients should be masked and only a dedicated healthcare worker
should attend this case, following due precautions.
• If the clinical status of the case permits, transfer such case to a COVID-
19 isolation facility (Dedicated COVID Health Centre or dedicated
COVID Hospital), informing the facility beforehand about the transfer, as
per his/her clinical status, test results (if available), with information to
local health authority. Complete case records of such patients must be
made available to the receiving hospital.

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• Follow appropriate standard precautions while transporting the patient

• This should be followed by disinfection procedures at the facility and the
ambulance
• All contacts of this patient (other patients being managed in the same
room or ward, healthcare workers who have attended to him/her, support
staff who may have come in close contact, caretaker/visitors etc.) should
be quarantined and followed up for 14 days. Their details must also be
shared with the local health authorities.
• All close contacts (other HCWs and supportive staff) of the confirmed
case should be put on Hydroxychloroquine chemoprophylaxis for a
period of 7 weeks, keeping in mind the contraindications of HCQ.
• If a healthcare worker is suspected to have contacted the disease, the
following additional action needs to be performed.=

Issue No. 3

Whether Dr. Amit Agarwal is liable for Negligence in the treatment of Mrs.
Vineta Nanda?

The Respondent, Doctor Amit Agarwal is liable for negligence as being a doctor
of high eminence it was his duty to do a routine investigation before transferring
the complainant to the Respondent No.1. Such act of the doctor amounts to
negligence alongwith deficiency in service which was held by Maharashtra State
Consumer Disputes Redressal Commission, Bombay in the case of S.V.
Panchori Vs. Dr. Kaushal Pandey2.

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so, it is to be noted that, the respondent No. 2 had the prime responsibility of the
Complainant because the Complainant in full trust on the Respondent No. 2
was shifted to the care of Respondent No. 1 hospital and hence the Respondent
No. 2 is liable for negligence in the present complaint and the Complainant prays
that the complainant be compensated for the negligence and deficiency in
service.

Issue No. 4

Is Mrs. Vineta Nanda eligible for compensation?’

The Complainant has made out her case against the Respondents as per the
contentions mentioned supra and is eligible for the compensation as under:
In the case of Pratibha Shinde Vs. Principal Secretary, Public Health
Department, State of Maharashtra & 10 Ors.3 heard and decided by the Hon’ble
Bombay High Court on 27/01/2021 where the compensation and damages were
awarded more than Rs. 50,00,000/- (Rupees Fifty Lakhs Only) not only by the
Hospital but also by the State of Maharashtra and Other Departments for the
breach of ICMR guidelines and such ther guidelines and protocols and Dos and
Don’ts required to be followed by the medical practitioners and all such
personnel dealing or in relation to the medical field which amounted to
mismanagement, negligence, etc.
Hence, the Complainant is eligible for compensation and therefore prays for
compensation of Rs. 25,00,000/- (Rupees Twenty Five Lakhs Only) be awarded
for the deficiency in service, negligence and mental agony to the complainant
and its relatives which the Complainant and her relatives had to go through and
the Complainant was at a near Life and Death situation

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PRAYER

WHEREFORE IT IS MOST RESPECTFULLY PRAYED IN THE LIGHT OF

THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN
AND AUTHORITIES CITED, THIS HON’BLE DISTRICT CONSUMER
DISPUTES REDRESSAL COMMISSION BE PLEASED TO:

I. Direct the Respondents to compensate and pay damages of amount Rs.

22,50,000/- (Rupees Twenty Two Lakhs and Fifty Thousand only) to
the Complainant;

II. Direct the Respondents to compensate and pay damages of amount Rs.
Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) towards
mental agony faced by the complainant and her relatives;

III. Direct the Respondents to pay the cost of the present litigation; and

IV. Any other order as The Honourable Commission may deem fit and
proper in the facts and circumstances in favour of the Complainant be
passed.

ALL OF THIS IS RESPECTFULLY SUBMITTED AND FOR THIS THE

APPELLANT SHALL FOREVER PRAY.

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