KPMSOL NMIMS CLINICAL MOOT COURT 2024

MEMORIAL FOR THE COMPLAINANT T02A

TC9C

KPMSOL NMIMS CLINICAL MOOT COURT ’24

IN THE HONOURABLE MAHARASHTRA MEDICAL COUNCIL

MUMBAI

COMPLAINT NO: ________ UNDER SECTION 51 OF THE

CONSUMER PROTECTION ACT 2019

BEFORE THE HONOURABLE PRESIDENT OF THE NATIONAL CONSUMER

DISPUTES REDRESSAL COMMISSION AND HIS COMPANION JUDGES

IN THE MATTER OF:

MR. FARAD KHAN …COMPLAINANT

MM
VERSUS

NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN
DR. PRITAM PRASSANA …DEFENDANT
NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN
NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN

MEMORIAL FOR THE COMPLAINANT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………… 4-
5

STATEMENT OF JURISDICTION……………………………………………………… 6

STATEMENT OF FACTS…………………………………………………………………7-8

ISSUES RAISED……………………………………………………………………………9

SUMMARY OF ARGUMENTS……………………………………………………… 10-

11

ARGUMENTS ADVANCED………………………………………………………… 12-

30

A. The National consumer disputes redressal commission has the jurisdiction to decide
upon the appeal filed by Mr. Parikson………………………………………… 12-15
1. The appellant and the respondent are consumer and service provider, respectively
2. The shortage of pennyphrine injection was caused due to the negligence of Dr.
Younis which caused the death of Mrs. Parikson. This is deficiency in service on part
of Dr. Younis
3. National commission has the jurisdiction to entertain appeals against the orders of
State commission
4. The pendency of the criminal writ petition in the Bombay high court has no bar on
this appeal under the National consumer disputes redressal commission
B. The state consumer disputes redressal commission has erred in dismissing the
complaint filed by Mr. Parkinson…………………………………………………15-20

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1. The state commission dismissed the complaint by the appellant Mr. Parikson based
on the indemnity clause in the employment contract between Happy homes and Dr.
Younis, which is arbitrary and contrary to the indemnity laws and rights of indemnity
holder stated in the Indian contract act 1872.
2. The case of negligence which is sub judice under Bombay high court is of criminal
nature whereas the matter before the state commission was a civil suit for
compensation
3. Mere non joinder of parties no grounds for dismissing complaint

C. Dr. Younis has committed negligence against Late Mrs. Parikson leading to her
death………………………………………………………………………………20-28
1.1. Right to emergency medical care a fundamental right enshrined under article
21 of the Indian constitution and the Patient’s charter
1.2. Duty of hospital management to maintain provisions for emergency medical
care...
1.3. A matter of Professional and medical negligence
1.4. Mrs. Parikson could have been saved if Dr. Younis didn’t commit negligence
and had taken a rational and considerate decision
1.5. False claim of being an emergency treatment facility
1.6. Dr. Younis’s decision in violation of the Geneva declaration oath
D. The claim of compensation by Mr. Parikson against Dr. Younis is maintainable
despite the clause 3.5 of the employment agreement of Dr. Younis and Happy homes
research facility centre. ……………………………………………………………28-30

PRAYER…………………………………………………………………………………31

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INDEX OF AUTHORITIES
STATUTES
1. The Constitution of India
2. Code of Medical ethics regulations 2023
3. Consumer protect act 2019
4. Declaration of Geneva 1948
5. Indian contract act 1872
6. NQAS Standard operating procedure in accidents and emergency
7. The Patient’s charter 2018

CASES REFERRED
1. Indian medical association vs V.P Shantha AIR 1996 SUPREME COURT 550
2. Martin F. D' Souza vs Mohd. Ishfaq
3. Lalmuni Devi Vs. State of Bihar and Ors. 2001 AIR SCW 2504
4. Smt. Savita Garg vs The Director, National Heart Institute AIR 2004 SUPREME COURT
5088
5. Pratibha Shinde and Ors. Vs. Principal Secretary, Public Health Department and Ors.
AIRONLINE 2021 BOM 373
6. Achutrao Haribhau Khodwa vs. State of Maharashtra AIR 1996 SUPREME COURT 2377
7. Union of India (UOI) and Ors. Vs. N.K. Srivasta and Ors. MANU/SC/0571/2020
8. Ashish Kumar Mazumdar Vs. Aishi Ram Batra Charitable Hospital Trust and Ors.
MANU/SC/0208/1974
9. Mohit Srivastava & Anr. vs Dr. Neelam Mishra & Ors. 2021 SCC OnLine NCDRC 40
10. Kamaladevi Agarwal Vs. State of West Bengal and Ors. AIR 2001 SUPREME COURT
3846
11. City Hospital Vs. Vijay Singh Pal and Ors. Another on 9 August, 2018 SCDRC
12. Kusum sharma vs Batra hospital and medical research centre and ors.
MANU/SC/0098/2010

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13. Bolam vs Friern hospital hospital management committee 1957 1 W.L.R 582
14. Jacob Mathew vs state of Punjab MANU/SC/0457/2005
15. Barnali Choudhury and anr vs Woodlands medical centre ltd.
16. Poonam verma vs Ashwin pate lMANU/SC/0098/2010
17. Pashchim banga khet mazdoorsamity of ors vs state of West Bengal and anr.
1966/SCC/(4)/37
18. Balram prasad vs Kunal saha and ors. AIRONLINE 2013 SC 528
19. Management of rashtradoot Jaipur vs Rajasthan working journalist union
MANU/SC/0313/1969

BOOKS ,RESEARCH PAPERS & REPORTS REFERRED

1. Law & Medicine by Dr, Nandita Adhikari( Central Law)
2. Contract II By Dr. R.K. Bangia
3. MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY By Daya Shankar
Tiwari College of Legal Studies, University of Petroleum & Energy Studies,
Dehradun
4. Modern Law review Volume 25 January 1962
5. 2010 5 S.C.R 1

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STATEMENT OF JURISDICTION

The complainant humbly submits that, this hon’ble medical council has the jurisdiction to
hear this matter under section 10 of the Maharashtra medical council act 1965.

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STATEMENT OF FACTS

BACKGROUND

Mr. Farad Khan, a prominent figure in the Indian film industry, faced health challenges due to Chronic
Active Ileitis, leading to the postponement of his film projects. Despite his popularity, his health
issues and lifestyle choices, including alcohol consumption, have been subjects of public discussion.
He gained significant social media following on Zintagram, although he expressed discomfort with
online platforms.

Consulting Dr. Pritam Prasanna for his health condition, Mr. Khan underwent tests, with
initial indications pointing to Active Ileitis. However, Dr. Prasanna cautioned about the
potential progression to Crohn's disease. A hastily signed form during the consultation raised
questions about informed consent.

Following Mr. Khan's collapse during a promotional event, Dr. Prasanna's diagnosis of
Crohn's disease became public, leading to conflicting medical opinions. This controversy
affected the release of Mr. Khan's film 'Sunki', prompting legal action against him and his
team for alleged misrepresentation.

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An international conference on gastric diseases highlighted the challenges in distinguishing

between Active Ileitis and Crohn's disease. Dr. Prasanna's expertise contributed to the
discussions, emphasizing the role of patient history and lifestyle.

In response to the medical controversy, Mr. Khan filed a case against Dr. Prasanna, alleging
medical negligence, malpractice, and fraudulent misrepresentation.

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ISSUES RAISED

A. Whether the Hon’ble Maharashtra medical council has jurisdiction in this

matter?
B. Whether this complaint is maintainable despite the consent form signed by Mr.
Frad Khan
C. Whether Dr. Pritam has committed an act of negligence against Mr. Farad
Khan amounting to medical negligence
D. Whether Dr. Pritam has indulged in medical mal practice
E. Whether Dr. Pritam’s license should be terminated

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SUMMARY OF ARGUMENTS
A. The hon’ble national consumer disputes redressal commission has
jurisdiction in this matter.

B. The state consumer redressal commission has erred in dismissing the

complaint.
The state commission has erred in dismissing the complaint filed by the appellant
Mr. Parikson. The state commission dismissed the complaint on grounds which
are not justified and lawful. The decision of the state commission to dismiss the
complaint based on the indemnity clause is arbitrary and contrary to the
indemnity laws stated in the Indian contract act 1872. The state commission’s
decision to dismiss the complaint because a criminal case of similar nature is
pending in the Bombay high court is against the precedents set by the higher
judiciary. The complaint cannot be dismissed based on the mere non joinder of
parties nor it can be dismissed based on the grounds stated above.

C. Dr. Younis has committed negligence which led to the death of Mrs. Parikson.
The tragic death of Mrs. Parikson at Happy Homes emergency treatment facility
in Pali can be directly attributed to the gross negligence of Dr. Younis. Despite
being aware of the critical need for Pennyphrine injections in cases of groho insect
bites, Dr. Younis ordered an insufficient quantity of the life-saving medication,
motivated by profit rather than patient well-being. This decision violated the
fundamental right to emergency medical care guaranteed under Article 21 of the
Indian Constitution and the Patient's Charter. Dr. Younis's failure to ensure
adequate emergency provisions, as mandated by law, constitutes a clear breach of
duty and gross negligence. In accordance with legal precedent, such shortcomings
in medical care are deemed violative of Article 21, making Dr. Younis individually
liable for the deficiency in service that led to Mrs. Parikson's untimely demise.

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D. The claim of compensation by Mr. Parikson against Dr. Younis is

maintainable despite the clause 3.5 of the employment agreement of Dr.
Younis and Happy homes research facility centre.
The contention regarding the interpretation of the Indian Contract Act of 1872,
particularly Section 125, asserts that the indemnity holder retains the right to be
sued, contrary to the misunderstanding presented. It is argued that while
indemnity laws address compensation post-decree issuance, they do not exempt
the promisor from being sued. Thus, a civil suit against Dr. Younis remains valid
despite the presence of an indemnity clause between Happy Homes and Dr.
Younis. This clause shields Dr. Younis from third-party claims, but not from
negligence suits. The case of Mohit Srivastava & Anr. vs Dr. Neelam Mishra &
Ors highlights that indemnity clauses pertain solely to the contracting parties, not
third parties like the complainant, Mr. Parikson. Therefore, the claim against Dr.
Younis is independent of the indemnity agreement between Happy Homes and Dr.
Younis.

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WRITTEN PLEADINGS

1. The appellant and the respondent are consumer and

service provider, respectively.
1.1. The appellant Mr. Parikson falls under the definition of consumer
defined under chapter I section 7 sub section ii of the consumer protection
act 2019. In the case of Indian medical association vs V.P Shanth the court
held that patients are consumers who avail medical service for
consideration, and can seek legal remedy under the consumer forum if the
patient’s rights are breached. The medical service availed should be done
for a consideration and not free of charge.
1.2. The respondent Dr. Younis falls under the definition of service
provider defined under chapter I section 42 of the consumer protection act
2019. In the case of Indian medical association vs V.P. Shantha the court
held that doctors and hospitals are service provider unless the medical
service rendered is free of charge or without consideration.

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2. The shortage of pennyphrine injection was caused due to the negligence of

Dr. Younis which caused the death of Mrs. Parikson. This is deficiency in
service on part of Dr. Younis.
2.1. The definition of deficiency in service is stated under the consumer
protection act 2019 as follows:
"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
consumer1;
The intentional reduction in the supply of Pennyphrine injections
orchestrated by Dr. Younis constitutes a clear deficiency in service,
manifesting as a notable shortcoming and inadequacy in the execution of
the medical service she was entrusted to provide. Such deliberate actions,
resulting in a shortage of a crucial life-saving medication, stand as a
serious deviation from the expected standard of care.

The jurisdiction of the National Consumer Disputes Redressal

Commission (NCDRC) is unequivocally applicable to this matter. The

1
Consumer PACT 2019 sec 11.

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deliberate act of creating a shortage in essential medical supplies, directly

impacting the well-being of the consumer, aligns with the definition of
deficiency in service as recognized by consumer protection laws. In this
case, the deficiency in service led to tangible harm, further reinforcing the
applicability of the NCDRC's jurisdiction.

It is imperative to emphasize that the intentional actions of Dr. Younis not

only deviated from established medical norms but also directly resulted in
harm to the consumer, Mrs. Parikson. The NCDRC, being the designated
authority for addressing consumer grievances related to deficient services,
holds clear jurisdiction over this case, where the deliberate act of creating
a shortage in vital medical supplies constitutes a severe breach of the duty
of care owed to the consumer.

3. National commission has the jurisdiction to entertain appeals against the

orders of State commission
3.1. The national consumer disputes redressal commission has inherent
appellate jurisdiction to entertain appeals against the orders of State
consumer disputes redressal commission under section 51 of the consumer
protection act 20192.
4. The pendency of the criminal writ petition in the Bombay high court has
no bar on this appeal under the National consumer disputes redressal
commission.
4.1. As per the supreme court of India, Civil and criminal cases can run
parallel to each other. In the case of Lalmuni devi vs state of Bihar3, the
hon’ble supreme court of India held that the facts of the case can give rise

2
Consumer PACT 2019 sec 51.
3
2001 AIR SCW 2504

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to civil and criminal cases at the same time, and that the pendency of one
case cannot be the lawful justification to quash or dismiss the other case.4

It is humbly submitted that the negligent act of Dr. Younis gives rise to
criminal proceedings against her under 304 A of the Indian penal code as
well as it also gives the right to civil remedy to Mr. Parikson under the
consumer protection act 2019. This civil appeal under the consumer
protection act 2019 is therefore maintainable.
4.2. The complaint has already been admitted under the state commission 5
and the state commission while dismissing the complaint neglected certain
points of law, which resulted in an arbitrary and unlawful judgement . It is
humbly prayed that the specific points of law which the hon’ble state
commission failed to neglect are argued later in the memorial.
A. The state consumer redressal commission has erred in dismissing the complaint.
1. The state commission dismissed the complaint by the appellant Mr. Parikson
based on the indemnity clause in the employment contract between Happy
homes and Dr. Younis, which is arbitrary and contrary to the indemnity laws
and rights of indemnity holder stated in the Indian contract act 1872.
1.1. The rights of indemnity holder are mentioned as it is stated in the
Indian contract act.
125.Rights of indemnity-holder when sued.—The promisee in a contract of
indemnity, acting within the scope of his authority, is entitled to recover
from the promisor—
(1) all damages which he may be compelled to pay in any suit in respect of
any matter to which the promise to indemnify applies;

4
Ibid . 7.
5
Moot proposition para. 8.

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(2) all costs which he may be compelled to pay in any such suit if, in
bringing or defending it, he did not contravene the orders of the promisor,
and acted as it would have been prudent for him to act in the absence of
any contract of indemnity, or if the promisor authorized him to bring or
defend the suit;
(3) all sums which he may have paid under the terms of any compromise of
any such suit, if the compromise was not contrary to the orders of the
promisor, and was one which it would have been prudent for the promisee
to make in the absence of any contract of indemnity, or if the promisor
authorized him to compromise the suit6
It is humbly submitted, the contention arises from a misinterpretation of
the legal provisions outlined in the Indian Contract Act of 1872 7. The
assertion that the indemnity holder lacks the right to be sued is
misconstrued and merits clarification. Section 125 of the Indian Contract
Act explicitly grants the indemnity holder the right to seek compensation
from the promisor when faced with legal action. Nowhere within this
statutory provision does it preclude the promisor from being made a party
to a civil suit.

The indemnity laws encapsulated in the Indian Contract Act of 1872

meticulously delineate the entitlements of the promisee or indemnity
holder to claim compensation from the party conferring the indemnity. The
pivotal error lies in the State Commission's unilateral dismissal of the
complaint grounded solely on the presence of an indemnity clause. This
dismissal stands as a substantive oversight, as it neglects due consideration
of the comprehensive indemnity laws enshrined in the Indian Contract Act.

6
Indian contract act 1872 sec 125.
7
Ibid. 10.

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Contrary to the Commission's decision, the claim for compensation against

Dr. Younis remains eminently maintainable despite the existence of the
indemnity clause. The privity of contract established within the indemnity
clause pertains exclusively to Happy Homes and Dr. Younis. The
protective ambit of Dr. Younis's indemnity clause extends to shield him
from third-party claims for compensation, with indemnification ensuing
subsequent to the issuance of a decree by the Hon'ble National
Commission.
Importantly, the presence of an indemnity clause does not, in any manner,
absolve Dr. Younis from the possibility of being sued for negligence. The
explicit terms of the indemnity clause neither bar legal action nor render
such actions impermissible. Consequently, the complaint lodged by Mr.
Parikson stands firmly within the bounds of the law and cannot be
summarily dismissed on the grounds of the indemnity clause alone.

It is humbly submitted that the State Commission's decision, bereft of due

consideration for the comprehensive indemnity laws embedded in the
Indian Contract Act of 18728, represents a glaring oversight. The decision
is rendered arbitrary by its exclusive reliance on the indemnity clause
within the employment agreement, thereby necessitating a revaluation of
the matter in accordance with the statutory framework.
1.1.1. In the case of Mohit Srivastava & Anr. vs Dr. Neelam Mishra &
Ors9 the hon’ble national commission gave a judgement in which it
specifically mentioned that the case is between the hospital, its
doctor and the complainant. The national commission specifically

8
Supra note. 10.
9
2021 SCC OnLine NCDRC 40

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stated that the role and liability of the insurance company is not a
matter of concern as the indemnity bond is between the hospital
and the insurance company, but it is the duty of the insurance
company to indemnify the doctor/hospital10. This is similar to the
present case as Happy Homes as an indemnifier acts just as a mere
insurer and that the indemnity clause is between Happy homes and
Dr. Younis, and that the appellant Mr. Parikson is nowhere involved
in the contract. The claim for compensation against Dr. Younis has
no relation with the indemnity clause between Happy homes and
Dr. Younis.

2. The case of negligence which is sub judice under Bombay high court is of
criminal nature whereas the matter before the state commission was a civil
suit for compensation.
2.1. It is respectfully submitted before the Hon’ble National Commission
that the criminal case pending under the jurisdiction of the Bombay High
Court holds no legal impediment over the civil suit filed within the
purview of the State Consumer Disputes Redressal Commission.
Therefore, the assertions made by Dr. Younis and accepted by the State
Commission in this regard are fundamentally flawed. The mere existence
of a pending criminal case cannot serve as lawful justification or rationale
for the dismissal of the complaint brought before the State Consumer
Disputes Redressal Commission.11 This principle is firmly established in
legal precedents and underscores the independence and distinctiveness of
civil and criminal proceedings. Drawing from the decision in the case of
Lalmuni Devi (Smt) v. State of Bihar & Ors 12, as reiterated by the
10
Ibid . 13.
11
Lalmuni devi (smt.) v. State of Bihar & Ors. (2001) 1 ALLCRIR 262
12
(2001) 1 ALLCRIR 262

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Supreme Court, it is evident that the circumstances of a case may give

rise to both a civil claim and a criminal offense 13. In the present matter,
the deliberate action of Dr. Younis in ordering a lesser amount of a crucial
life-saving medication constitutes criminal negligence, thereby
warranting criminal proceedings. Additionally, the deficiency in service
further substantiates a valid civil claim. Therefore, it is imperative to
recognize that the initiation of criminal proceedings does not preclude the
pursuit of civil remedies. Each aspect of the case must be adjudicated
independently, and the pendency of criminal charges cannot serve as a
basis for dismissing the civil complaint before this Hon’ble Commission.
2.2. It is respectfully submitted before the Hon’ble National Commission
that as per the ruling of the Supreme Court in the case of Kamaladevi
Agarwal vs State of West Bengal14, the pendency of an ongoing civil suit
does not warrant the quashing of criminal cases, and both legal
proceedings can indeed progress concurrently15. The principles
enunciated in the aforementioned case underscore the notion that civil
and criminal cases are not mutually exclusive, and they can run parallel
to each other. A comprehensive interpretation of the judgment in
Kamaladevi Agarwal vs State of West Bengal16 elucidates that there exists
no inherent bar between civil and criminal cases, allowing them to
proceed simultaneously and independently. Furthermore, it is crucial to
note that the prayers and reliefs sought in each case are distinct and serve
different legal purposes. Hence, it is fervently prayed that the decision of
the State Consumer Disputes Redressal Commission to dismiss the
appeal based on the pendency of the criminal case is both erroneous and

13
Ibid. 16.
14
AIR 2001 SUPREME COURT 3846
15
Ibid. 18 .
16
Supra note. 18.

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arbitrary in nature. Such a decision runs counter to the established

precedent set forth by the Hon’ble Supreme Court of India and unjustly
deprives the appellant of their right to seek redress through the civil
forum.
3. Mere non joinder of parties no grounds for dismissing complaint.
3.1. In light of the precedent set forth by the honourable Supreme Court in
the case of Smt. Savita Garg vs The Director, National Heart Institute 17, it
is evident that the mere non-joinder of parties cannot serve as the sole
grounds for dismissing a complaint under the Consumer Protection Act
201918. The Supreme Court's ruling emphasized that hospitals or doctors
cannot evade liability solely on the basis of non-impleadment of
necessary parties19. Similarly, in the case of Mr. Parikson, the State
Commission's dismissal of the complaint based on the indemnity clause
between Dr. Younis and Happy Homes overlooks the fundamental
principle elucidated by the Supreme Court. It is imperative to recognize
that the liability of Happy Homes in the present matter is distinct from
the allegations against Dr. Younis. The crux of the complaint revolves
around Dr. Younis's negligent decision to order a lesser quantity of
pennyphrine injections, which resulted in adverse consequences for Mr.
Parikson. Therefore, Dr. Younis cannot absolve herself of liability merely
due to the non-impleadment of Happy Homes as a party. The State
Commission's decision fails to acknowledge the essence of the complaint
and unjustly dismisses Mr. Parikson's grievances. In line with the
precedent established by the Supreme Court, it is imperative that Dr.
Younis be held accountable for her actions, irrespective of the
involvement of other parties.
17
AIR 2004 SUPREME COURT 5088
18
Ibid . 21.
19
Supra note. 21.

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B. Dr. Younis has committed negligence which led to the death of Mrs. Parikson.
1. It is humbly submitted, that Happy Homes, being an emergency
treatment facility centre in Pali 20, is obligated to be fully equipped with
the requisite emergency medical care drugs and equipment to address
prevalent emergencies in the town, such as the groho insect bite. The
fatal consequence resulting from the untimely demise of Mrs. Parikson
is directly attributed to the ill-considered decision of Dr. Younis,
motivated by profit, to order an insufficient quantity of Pennyphrine
injections. It is noteworthy that Dr. Younis, having previously assisted
Dr. Xander21, was presumably aware of the issue surrounding the
excess or adequacy of Pennyphrine injections during her tenure.
Despite her knowledge of the critical importance of the life-saving
injection Pennyphrine in instances of life and death caused by groho
insect bites, Dr. Younis, when temporarily assuming Dr. Xander's
responsibilities, failed to account for the established practices of the
hospital in ordering an excess quantity of Pennyphrine injections.
In the case of Kusum sharma vs Batra hospital and medical research
centre and ors22 the supreme court stated that a professional man
should command the corpus of knowledge which forms part of the
professional equipment of the ordinary member of his profession. He
should not lag behind other ordinary assiduous and intelligent
members of his profession in knowledge of new advances, discoveries
and developments in his field. He should have such an awareness as an
ordinarily competent practitioner would have of the deficiencies in his
knowledge and the limitations on his skill. He should be alert to the
hazards and risks in any professional task he undertakes to the extent
20
Moot proposition para. 1.
21
Moot proposition para. 2.
22
MANU/SC/0098/2010

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that other ordinarily competent members of the profession would be

alert. As per the given test of negligence Dr. Younis as a competent
professional should have predicted that her decision would lead to a
shortage of the life saving Pennyphrine injection and could potentially
cause hazard to the patients.
Her prioritization of maximizing profitability over the well-being of the patient
resulted in a negligent decision to procure a reduced quantity of Pennyphrine
injections compared to the standard under Dr. Xander's management. Dr. Younis's
gross negligence directly contributed to a deficiency in service, culminating in the
tragic death of Mrs. Parikson.
This argument contends that the lapses in protocol, motivated by financial
considerations and a departure from established practices, render Dr. Younis liable
for the untimely demise of Mrs. Parikson. The failure to ensure an adequate
supply of life-saving medication represents a clear breach of duty, constituting
gross negligence and a direct causative factor in the deficiency in service and the
subsequent loss of life.

1.1. Right to emergency medical care a fundamental right enshrined

under article 21 of the Indian constitution and the Patient’s charter.
Every citizen of India has the right to emergency medical care under
article 21 of the Indian constitution 23. According to the Patient’s charter
every government or private hospital is duty bound to provide
emergency medical care to patients. 24 It is the duty and responsibility
of the hospital management to maintain such emergency provisions,
like medicines, equipment, etc, without compromising quality and
health of patients.25 It is pertinent to note that Dr. Younis was
23
The constitution of India art. 21
24
Patient’s charter 2018 right no.3
25
Ibid .27.

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responsible for the managerial role at Happy Homes emergency

treatment facility in absence of Dr. Xander. Dr. Younis’s negligent and
profit driven decision of ordering lesser quantity of Pennyphrine
injections is directly against the emergency provisions stated in the
Patient’s charter. It was the legal obligation of Dr. Younis to ensure
emergency provisions of drugs and medicines at all times, as an
emergency situation can arise at any point of time. In the case of
Pratibha Shinde and Ors. vs. Principal Secretary, Public Health
Department and Ors26, the hon’ble supreme court held that any
shortcomings or lapses in providing medical care is violative of article
21.27 The non availability of a life saving drug amounts to shortcoming
and deficiency in service by the hospital management, and Dr. Younis
being in charge of the management at the time of the unfortunate
incident should be individually liable for gross negligence.

1.1.1. In the case of City Hospital, through its Director Shiv Kumar
Kapoor, Haridwar v Vijay Singh Pal S/o Khajan Singh and
others28 the hon’ble state commission of Uttarakhand, Dehradun
bench gave a order in which they held that the City hospitals and
its doctors are negligent as they did not provide emergency medical
services to the patient such as ECG, qualified doctors and
ambulance services29. This case is similar to the matter at hand as
they both are concerned with the non-availability of emergency
medical provisions falling under the ambit of negligence. In the
present case Dr. Younis’s negligent decision led to the inadequate

26
AIRONLINE 2021 BOM 373
27
Ibid . 29.
28
City Hospital vs Vijay Singh Pal & Another on 9 August, 2018 SCDRC
29
Ibid . 31.

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quantity of Pennyphrine injections which are an essential

emergency medical provision in the town of Pali, due to the
prevalent attack of groho insect30. This negligent act of Dr. Younis
caused the death of Mrs. Parikson.
1.2. Duty of hospital management to maintain provisions for
emergency medical care.
According to the guidelines of the national quality assurance standard
31
hospital management need to maintain provisions for emergency
medical care. Serial number 4.1032 clearly states that hospitals should
be equipped with emergency medicines. Dr. Younis being in charge
and being the sole authority for the management of the hospital owed a
duty of care to the patients for providing them with the necessary
emergency medical care, but her profit-oriented vision led her to make
a negligent decision of ordering lesser quantity of Pennyphrine
injection, which is a breach of duty of care which amounts to
negligence.

1.3. A matter of Professional and medical negligence.

Dr. Younis at the time of this unfortunate incident, was in a managerial
as well as medical role while ordering for the Pennyphrine injections.
Dr. Younis had a professional duty of care as a manager as well as a
doctor to consider the severity of emergency situations arising out of
groho insect bite, and the importance of Pennyphrine injections in
treating the same. Dr. Younis used to assist Dr. Xander earlier, so it is
presumed that she knew about the established practices to order
Pennyphrine injections in excess quantity despite the injections being
30
Moot proposition para. 3.
31
National quality assurance standard
32
NQAS Standard operating procedure for accident and emergency management

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unutilized. It was the legal duty and obligation of Dr. Younis as a

manager and doctor to consider the other factors of ordering
pennyphrine injections in excess rather than only considering the
monetary factors. Dr. Younis was a temporary manager in the absence
of Dr. Xander, and as a prudent person, she should have followed the
established norms of the emergency treatment facility centre set by
senior Dr. Xander, however Dr. Younis failed to exercise due care and
committed negligence. In the case of Achutrao Haribhau Khodwa vs
State of Maharashtra33 the hon’ble supreme court of India found the
government hospital liable for negligence and stated that a professional
man owes a duty of care while performing or rendering service 34. The
same is applicable in the present case as Dr. Younis owed a duty of
care while performing the managerial services and the breach of that
duty resulted in the death of Mrs. Parikson.

1.4. Mrs. Parikson could have been saved if Dr. Younis didn’t commit
negligence and had taken a rational and considerate decision.
The untimely tragic death of Mrs. Parikson is directly linked to the
negligence committed by Dr. Younis. If Dr. Younis would not have
been negligent by ordering a lesser quantity of Pennyphrine injections
then Mrs. Parikson would have been saved. It is the negligence of Dr.
Younis which has resulted in the death of Mrs. Parikson. If the
established practices of Dr. Xander to order Pennyphrine injections in
excess would have been followed by Dr Younis during her temporary
tenure as manager, the shortage of Pennyphrine injections would not
have happened, and the life of Mrs. Parikson could have been saved. In

33
AIR 1996 SUPREME COURT 2377
34
Ibid . 36.

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the case of Ashish Kumar Mazumdar vs Aishi Ram Batra charitable

hospital trust & ors35. the hon’ble supreme court of India held that the
management of the hospital is liable if there is any lack of medical care
or services.36 The court also stated that the patient could have been
saved if the management had not acted negligently and had followed
their duty diligently. 37

1.5. False claim of being an emergency treatment facility.

Happy homes being an emergency facility centre in the Pali town 38,
should have had emergency medical provisions for the prevalent
emergencies in the town like the groho insect bite. The name
emergency treatment facility centre implies that the facility has
emergency medical care provisions, and the absence of the same is
cheating and an unfair practice. It is humbly submitted that if such
practices are not penalized would give a free hand to hospital
management to claim facilities which they do not provide. An
emergency treatment facility centre without emergency medications
and injection is just like having an operation theatre without surgical
equipment, or like having a hospital without nursing staff. In the case
of Union of India & Anr vs NK Srivasta & Ors 39. the hon’ble supreme
court of India through the chief justice gave a landmark judgement, the
court held the hospital negligent for deficiency of service as the prior
to the admission of the patient the hospital represented that it was fully
equipped with nursery ICU, but after the admission of patient, when

35
MANU/SC/0208/1974
36
Ibid.38.
37
Supra note. 38.
38
Moot proposition para. 1.
39
MANU/SC/0571/2020

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the Patient required Nursery ICU it was found that the hospital lacked
the infrastructure of Nursery ICU40.

1.6. Dr. Younis’s decision in violation of the Geneva declaration oath.

The Declaration of Geneva, akin to the Hippocratic Oath 41, embodies
the core principles of medical ethics, emphasizing the paramount
importance of patient welfare. Oath No. 4 unequivocally mandates that
the health of patients must be a physician's primary consideration. This
oath underscores the solemn duty of physicians to prioritize patient
well-being above all other concerns.42

In the present case, Dr. Younis's actions starkly deviate from the ethical
imperatives delineated in the Declaration of Geneva. By electing to
order a reduced quantity of Pennyphrine injections without adequately
considering the health implications for her patients, Dr. Younis
displayed a profound lapse in judgment and a disregard for her
professional responsibilities. Rather than prioritizing the welfare of her
patients, she appeared to prioritize financial interests, thereby exposing
her patients to unnecessary risks.

Dr. Younis's decision to overlook the potential consequences of her

actions constitutes a clear instance of negligence. Negligence in the
medical context encompasses not only acts of commission but also acts
of omission—failing to act in a manner consistent with the accepted
40
Ibid. 42.
41
Law & Medicine Dr. Nandita Adhikari, Central Law Publications
42
Ibid . 44.

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standards of care. In this instance, Dr. Younis's failure to exercise due

diligence and ensure the appropriate administration of medication
constitutes a breach of her duty of care to her patients.

Moreover, Dr. Younis's deviation from the ethical precepts outlined in

the Declaration of Geneva is indicative of a broader failure to uphold
the principles of medical professionalism. By prioritizing financial
considerations over patient well-being, she undermined the trust and
confidence that patients place in their healthcare providers.

It is essential to underscore that negligence in medical practice carries

significant legal and ethical ramifications. The breach of duty owed to
patients, as exemplified by Dr. Younis's actions, not only jeopardizes
individual patient outcomes but also erodes public trust in the medical
profession as a whole.

In conclusion, Dr. Younis's departure from the ethical standards

articulated in the Declaration of Geneva constitutes a profound breach
of her professional obligations. Her negligent conduct highlights the
critical importance of upholding the principles of patient-centred care
and underscores the need for rigorous adherence to ethical and legal
standards within the medical profession.

C. The claim of compensation by Mr. Parikson against Dr. Younis is maintainable

despite the clause 3.5 of the employment agreement of Dr. Younis and Happy
homes research facility centre.

1. The rights of indemnity holder are mentioned as it is stated in the Indian

contract act.

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125.Rights of indemnity-holder when sued. —The promisee in a contract of

indemnity, acting within the scope of his authority, is entitled to recover
from the promisor—
(1) all damages which he may be compelled to pay in any suit in respect of
any matter to which the promise to indemnify applies;
(2) all costs which he may be compelled to pay in any such suit if, in
bringing or defending it, he did not contravene the orders of the promisor,
and acted as it would have been prudent for him to act in the absence of
any contract of indemnity, or if the promisor authorized him to bring or
defend the suit;
(3) all sums which he may have paid under the terms of any compromise of
any such suit, if the compromise was not contrary to the orders of the
promisor, and was one which it would have been prudent for the promisee
to make in the absence of any contract of indemnity, or if the promisor
authorized him to compromise the suit.43
It is humbly submitted, the contention arises from a misinterpretation of the
legal provisions outlined in the Indian Contract Act of 1872 44. The assertion
that the indemnity holder lacks the right to be sued is misconstrued and merits
clarification. Section 125 of the Indian Contract Act explicitly grants the
indemnity holder the right to seek compensation from the promisor when
faced with legal action45. Nowhere within this statutory provision does it
preclude the promisor from being made a party to a civil suit. It is therefore
contended that, a claim of compensation is valid against Dr. Younis despite the
indemnity clause as the indemnity laws are concerned with the compensation
that will be paid after a decree is issued by the court, therefore this civil suit is
maintainable. The privity of contract established within the indemnity clause
43
Indian contract act 1872, sec 125.
44
Ibid 46.
45
Supra note. 46.

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pertains exclusively to Happy Homes and Dr. Younis. The protective ambit of
Dr. Younis's indemnity clause extends to shield him from third-party claims
for compensation, with indemnification ensuing subsequent to the issuance of
a decree by the Hon'ble National Commission.
Importantly, the presence of an indemnity clause does not, in any manner,
absolve Dr. Younis from the possibility of being sued for negligence. The
explicit terms of the indemnity clause neither bar legal action nor render such
actions impermissible. Consequently, the complaint lodged by Mr. Parikson
stands firmly within the bounds of the law and cannot be summarily dismissed
on the grounds of the indemnity clause alone.
1.1.1. In the case of Mohit Srivastava & Anr. vs Dr. Neelam Mishra &
46
Ors the hon’ble national commission gave a judgement in which it
specifically mentioned that the case is between the hospital, its doctor and the
complainant. The national commission specifically stated that the role and
liability of the insurance company is not a matter of concern as the indemnity
bond is between the hospital and the insurance company, but it is the duty of
the insurance company to indemnify the doctor/hospital.47 This is similar to the
present case as Happy Homes as an indemnifier acts just as a mere insurer and
that the indemnity clause is between Happy homes and Dr. Younis, and that
the appellant Mr. Parikson is nowhere involved in the contract. The claim for
compensation against Dr. Younis has no relation with the indemnity clause
between Happy homes and Dr. Younis.

46
MANU/CF/0056/2021
47
Ibid. 49.

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT
MAY BE PLEASED TO

1. Set aside the decision of the state commission.

2. Allow this appeal under section 51 of the consumer protection act 2019.

And pass any order or direction that this Hon’ble Court may deem fit in the interests
of justice, equity and good conscience.

All of which is humbly prayed,

Counsels for the Appellant

31