ALL INDIA MOOT COURT COMPETITION, 2024

TEAM CODE: AIMCCCL53

IN THE HON’BLE SUPREME COURT OF VENGADAM

In the Matters Between-

(Special Leave Appeal . No. /2024)

Bio-Med Care Co.,.................................................Appellant/Appellant/Appellant/Respondent

Mrs. Lisa....................................................... Respondent/ Respondent/Respondent/Petitioner

Along with

(Special Leave Appeal . No. /2024)

Pillai’s Wellness Hospital...................................Appellant/Appellant/Respondent/Respondent

Mrs. Lisa............................................................Respondent/Respondent/Appellant/Petitioner

Along with

(Special Leave Appeal . No. /2024)

Mr. Tilak Varma...........................................................................................Appellant/Appellant

Central Consumer Protection Authority............................................Respondent/Respondent

Appeal preferred by invoking Article 136 of the Constitution of Vengadam

Written Submission on behalf of the Appellant

Memorandum on behalf of Appellant 1

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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

LIST OF ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

WRITTEN PLEADINGS / ARGUMENTS ADVANCED . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Memorandum on behalf of Appellant 2

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LIST OF ABBREVIATIONS

1. ¶ Paragraph
2. % Percentage
3. AIR All India Reporter
4. Art Article
5. BOM Bombay
6. CAL Calcutta
7. CPC Civil Procedure Code
8. CRPC Criminal Procedure Code
9. DPSP Directive Principle of State Policy
10. HC High Court
11. HCC High Court Case
12. HR Human Rights
13. IPC Indian Penal Code
14. NGO Non-Governmental Organisation
15. ORS Others
16. PIL Public Interest Litigation
17. SC Scheduled Caste
18. SCC Supreme Court Cases
19. SEC Section
20. SCR Supreme Court Reporter
21. UCC Uniform Civil Code
22. U/S Under Section
23. UOI Union of India
24. v. Versus

Memorandum on behalf of Appellant 3

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LEXICON

1. Catherine Sounes, Oxford Dictionary Thesaurus. 40th Edn. 2006, Oxford University Press.
2. Collins Gem English Thesaurus, 8th Edn. 2016, Collins.
3. B. A. Garner, Black’s Law Dictionary (9th edn, 2009).
4. Garner Bryana, Black’s Law Dictionary, 7th Edn.1981, West Group.
5. New International Webster’s comprehensive Dictionary (Encyclopaediaedn).

BOOKS REFERRED

1. The Constitution of India, 1950.

2. The Code of Criminal Procedure, Ratanlal & Dhirajlal, 22nd Edition.
3. The Code of Criminal Procedure, Tandon, 19th Edition.
4. Modi's Medical Jurisprudence and Toxicology, (23uf Ed. 2010).
5. M.P. Jain, The Constitution of India, Ed., 2020, Bharat Law House.
6. D.D Basu, The Indian Constitution, Ed., 2019, Allahabad Law House.
7. 3. Samaraditya Pal, India’s Constitution – Volume 2 original & Evolution (LexisNexis,
Gurgaon, 1st edn., 2014).
8. Dr. V.N Shukla, The Constitution of India, Ed, 14th, 2022, EBC explore.
9. Constituent Assembly Debates, Volume 7.
10. Seervai H.M. Constitutional Law of India, Ed, 4, Volume 3.
11. 1. D.K. Sharma & R.C. Goyal, Hospital Administration and Human Resource Management
(7th Edn., 2017).
12. 2. Principles of forensic medicine and toxicology (Jaypee Brothers Medical Publication
2011).
13. A. Maitri, Medical Negligence: Bolam-Bolitho and Beyond (Notion Press, 2022).
14. 6. Sheila A.M Mclean, First Do No Harm Law, Ethics and Healthcare (Ashgate Publishing
Limited 2006).
15. 7. Avatar Singh, Law of Contract and Specific Relief(12 thedn, Eastern Book Company 2020).
16. Medical Law, Thomson, Sweet and Maxwell, Second Edition.
17. Textbook on medical law, Michael Davies, Second Edition.
18. Medical law and ethics, Jonathan Herring, Oxford, Third Edition.
19. Medicine, Patients and the Law, Brazier and Cave, Butterworths, Third Edition.
20. Consumer Protection Law and Practice, N. K. Jain, Regal publishers.
21. Law of Consumer Protection, Chakraborty, Dwivedi Law Agency.
22. 7. The Law of Consumer Protection, Justice D. P. Wadhwa and N. L. Rajah, Lexis Nexis,
Second Edition.

Memorandum on behalf of Appellant 4

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LEGAL DEBATES

1. SCC Online, https://www.scconline.com/.

2. Indian Kanoon, https://indiankanoon.org/.

3. LexisNexis, http://www.lexisnexis.co.in/.

4. Manupatra Online Resources, http://www.manupatra.com

5. JSTOR, https://www.jstor.org

TABLE OF AUTHORITIES

1. A. S. Mittal v. State of U.P., AIR 1989 SC 1570.

2. Al-Iqra v DSG Retail Ltd., [2019] EWHC 429 (QB).
3. Attorney General for India v. Amratlal Prajivandas, 1994 (5) SCC 54.
4. Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.
5. Bolam v. Friern Hospital Management Committee, (1957) 2 All ER 118,
6. Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391
7. Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahdeo, (2006) CPJ 117 (NC).
8. Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors. OP No. 240 of 1999.
Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC
9.
128.
10. Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC)
11. E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
12. Food Corporation of India v. Joginderpal, SC 1989-3-31.
Horlicks Limited v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided
13.
on 20-5-2020
14. Indian Medical Association v. V. P Shantha & Ors., AIR 1996 SC 550.
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461 (1973) 4
15.
SCC 225.
16. M/S. Global Hospital vs P. Manjula & 3 Ors. on 5 July, 2023.

Memorandum on behalf of Appellant 5

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Mac Pherson v. Buick Motor Co., 161 A.D. 906, 145 N.Y.S. 1132 (N.Y. App. Div. Jan.
17.
21, 1914).
18. Magrine v. Krasnica, (1967) 94 N.J. Super. 228 [227 A. 2d 539].
19. Manipal Hospital v. J. Douglas Luiz, Civil Appeal No. 1700 of 2024 SC 134.
Moti Ram (D) Tr. LRs and Anr. v. Ashok Kumar and Anr, Civic Appeal No. 1095 of
20.
2008.
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid
21.
the following principles:
22. Romesh Thappar v. State of Madras, 1950 SCR 594
23. S. Seshachalam v Bar Council of TN, (2014) 16 SCC 72: 2014 (14) SCALE 79.
24. Sabiha Hamid vs Dr M Khan Hospital on 30 September, 2021 SCDRC
25. Samira Kohli vs. Prabha Manchanda Dr. & ANR 1 (2008) CPJ 56 (SC).
26. Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279,
27.
AIR 1958 SUPREME COURT 538, 1959 SCJ 147, 1961 BOM LR 192
28. Shrikant G. Mantri vs. Punjab National Bank, 2022 (SC) 197.
29. Smt. Sukanti Behera v. Dr. sashi Bhushan Rath, II (1993) CPJ 633 (SY)
30. Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC 39
31. State of UP v Jeet S Bisht, (2007) 6 SCC 586, at page 617 (2007) 8 JT 59.
State of UP v. Sanjay Kumar, 2012 (6) All LJ 746 (750): 2012 AIR SCW 5157: (2012) 8
32.
SCC 537: (2012) 8 SCALE 3.
33. State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75, 1952 SCR 284.
State of West Bengal v. The Committee for Protection of Democratic Rights, West
34.
Bengal, AIR 2010 SC 1476: 2010 AIR SCW 1829: (2010) 3 SCC 571.
Sudipta Chakrobarty and Another v Ranaghat SD Hospital and Ors. 2019 SCC OnLine
35.
NCDRC 1653.
36. Tarlok Chand Mattu v M/s Vasal Hospital & Anr. 2017 SCC Online NCDRC 399.
Tata Press Limited v Mahanagar Telephone Nigam Ltd, AIR 1995 SC 2438, 2446:
37.
(1995) 5 SCC 139.
Union of India v. Delhi High Court Bar Association, (2002) 4 SCC 275, at page 282:
38.
AIR 2002 SC 1479.
UOI v Delhi High Court Bar Association, (2002) 4 SCC 275, at page 293: AIR 2002 SC
39.
1479.
40. V. K. Majotra v. Union of India, (2003) 8 SCC 40.

Memorandum on behalf of Appellant 6

 ALL INDIA MOOT COURT COMPETITION, 2024

STATEMENT OF JURISDICTION

Bio Med Care Co., v. Mrs. Lisa

(Special Leave Appeal. No. /2024)
Special Leave Appeal

136. (1) Notwithstanding anything in Chapter V, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

Being an aggrieved by the order of National Commission Bio Med Care Co., preferred appeal
against the impugned order of the National Commission upholding the State Commission’s
decision.

Pillai’s Wellness Hospital v. Mrs. Lisa

(Special Leave Appeal. No. /2024)
Special Leave Appeal

136. (1) Notwithstanding anything in Chapter V, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

Being an aggrieved by the order of National Commission Pillai’s Wellness Hospital preferred
appeal against the impugned order of the National Commission upholding the State Commission
decision.

Mr. Tilak Varma v. Central consumer protection Authority

(Special Leave Appeal. No. /2024)
Special Leave Appeal

136. (1) Notwithstanding anything in Chapter V, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

Being an aggrieved by the order of Central consumer protection Authority Mr. Tilak Varma
preferred appeal against the impugned order of the Central consumer protection Authority

Memorandum on behalf of Appellant 7

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STATEMENT OF FACTS

Union of Vengadam

The Union of Vengadam, with a federal democratic government, is the 7th largest country in the
world and has a glorious tradition of public health, which is a 'State' subject. Medical tourism is
flourishing in Vengadam and it stands at number 5 in the Global Medical Tourism Index.
Vengadam has adopted the Consumer Protection Act in 1986 and it was replaced by the
Consumer Protection Act of 2019.
In May 2022, Mrs. Lisa an Irish tourist was attracted by the advertisement with prominent actor
Tilak Varma of Pillai's Wellness Hospital and bid to seek their treatment for liposuction surgery
to remove over-fat from her arms of two years.

Aftermath of Liposuction surgery

Dr. Shivaraj conducted the surgery with proper measures on June 4th 2022 post consultation. On
6th June pain in Mrs. Lisa's right arm swelled and on 8th June 2022 it was recognized as
'Necrosis'. The investigative medical team revealed that the ailment was due to a manufacturing
defect in the sterilization equipment supplied to the hospital by Bio-Med Care Co. The Hospital
decided to initiate legal proceedings against the Bio-Med Care Co. under other appropriate laws.

The pain in Mrs. Lisa's increased and they requested free treatment from Pillai's Wellness
Hospital but they refused. After 6 months of treatment and suffering Mrs. Lisa's health improved,
and aggrieved by the mis-happenings, Mrs. Lisa filed 3 different consumer complaints:

Complaints

1. A complaint against Bio-Med Care under the Consumer Protection Act, 2019. The District
commission awarded Mrs. Lisa with Rs. 15 lakh as compensation rejecting the reply of Bio-
Med Care. In appeals, both the State Commission and National Commission reaffirmed the
order of the District Commission. Hence, Bio-Med Care Co. filed an appeal before the
Hon’ble Supreme Court.
2. Second complaint against Pillai's Wellness Hospital seeking remedies during which
mediation was sought. Mediation was a success but just 1 week after the order, Mrs. Lisa
appealed to the State commission and the State Commission held the hospital liable to pay
Rs. 5 lakhs compensation. Pillai’s Wellness Hospital filed an appeal before the Hon’ble
Supreme Court.
3. Third complaint made against the hoardings/advertisements of Pillai's Wellness Hospital.
The Central authority imposed a penalty of Rs. 50,000 on Mr. Tilak Varma for the endorsed
advertisement and Mr. Tilak Varma Appeals to the Supreme Court. The Hon’ble Supreme
Court of Vengadam, for the sake of convenience, decided to hear all the cases on the same
day.

Memorandum on behalf of Appellant 8

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STATEMENT OF ISSUES

ISSUE 1

Whether Mrs. Lisa can be considered a Consumer as per the provisions of the Consumer
Protection Act, 2019, and hence eligible to claim a remedy from Bio-Med Care Co.?

ISSUE 2

Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital so as to
be liable to compensate Mrs. Lisa?

ISSUE 3

Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is constitutionally valid?

ISSUE 4

Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers constitutionally valid?

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SUMMARY OF ARGUMENTS

1. Whether Mrs. Lisa can be considered a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim a remedy from Bio-Med
Care Co.?

It is humbly submitted that Mrs. Lisa is not qualified as a consumer under the Consumer
Protection Act, as there's no direct contractual relationship with Bio-Med Care Co. The
focus is on the commercial purpose of supplying medical equipment to Pillai’s Wellness
Hospital. Additionally, the illegality of Mrs. Lisa's surgery without a proper medical visa
is emphasized, contending that both Mrs. Lisa and Pillai’s Wellness Hospital are in
breach of standards and mandates. The appellant, Bio Med Care Co., is asserted to be
exempt from product liability due to the improper use of the sterilizing machine by the
hospital.

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital
so as to be liable to compensate Mrs. Lisa?

It is humbly submitted that Pillai’s Wellness Hospital is not at fault, stressing the
necessity of substantial evidence to prove medical negligence. Referring to legal
precedents, it is contented that treatment failure alone does not imply negligence. The
importance of verified medical evidence to protect doctors from baseless allegations and
maintain public trust is emphasized. Analogies to relevant product liability cases are
made to stress the requirement of demonstrating inherent danger in claims against the
hospital.

3. Whether the provisions conferring the right to appeal against an order issued by
the Commission based on the settlement in Mediation is constitutionally valid?

It is humbly submitted that the provisions of the Mediation Act, 20231 omitting the third
provisio of section 41 by the tenth schedule of the Mediation Act, 20232 thereby lifting
the bar and conferring the right to appeal against an order issued by the District
Commission based on the settlement in Mediation is constitutionally invalid.
The impugned amendment Act is distracting the essential elements of mediation and
brought it ineffective thus, rendered the access to justice and speed remedy illusory.

1
The Mediation Act, 2023, No. 32 of 2023.
2
The Consumer Protection, Sec. 41, No. 35 of 2019.

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Access to justice is part of Article 21 and 143 which is violation by the impugned
amendment also an encroachment on the legislative powers of State legislature, Hence
the impugned amendment is unconstitutional and ultra vires.

4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers constitutionally valid?

It is humbly submitted that the section 21 of the Consumer Protection Act, 20194
empower the Central Authority to issue directions and penalties against false or
misleading advertisements. The impugned provision is violative of equality before law as
it fails to establish the intelligible differentia among the classified group of endorsers or
manufacturers and rational nexus to the object sought to be achieved. The impugned
provision is an unreasonable restrictions of Commercial speech under Article 19 5 thus
unconstitutional.

WRITTEN PLEADING/ARGUMENTS ADVANCED

1. Whether Mrs. Lisa can be considered a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim a remedy from Bio-Med
Care Co.?

1. It is humbly submitted that Mrs. Lisa cannot be a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim a remedy from Bio-Med
Care Co., thereby the district commission.

1.1. Mrs. Lisa is not a Consumer within the definition of section 2(7) of the Consumer
Protection Act, 2019.

2. It is humbly submitted to enforce liability of the seller manufacturer or service provider

towards the consumer. It is pertinent to establish the contractual relationship between
parties.
3. As per section 2(7) of the Consumer protection Act, 20196 there are two classes of
consumers namely who:

3
INDIA CONST. art. 14 & art. 21.
4
The Consumer Protection Act, 2019, Sec. 21, No. 35 OF 2019.
5
INDIA CONST. art. 19.
6
The Consumer Protection Act, 2019, Sec. 2, sub. sec. 7, No. 35 OF 2019.

Memorandum on behalf of Appellant 11

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● buys any goods for a consideration

● hires or avails of any service for a consideration

4. In this instant case there is no contractual relationship 7 between Mrs. Lisa and the Bio-Med
Care Co. However, various medical equipment including sterilization of surgical instruments
were supplied by the appellant to Pillai’s Wellness Hospital who brought for commercial
purpose meant within the definition of Consumer provided.

5. In Shrikant G. Mantri vs. Punjab National Bank8 the Apex Court elucidated ‘commercial
purpose’ to include business-to-business transactions between commercial entities wherein there
is a direct nexus with profit-generating activity and the dominant purpose or intention behind the
transaction is to be seen rather than the person’s identity or value of the transaction. The hospital
bought the sterilization equipment for the commercial purpose of using it in the hospital.

6. It is humbly submitted that Mrs. Lisa neither bought any good for consideration nor hire or
avails of any service for a consideration from appellant. Therefore, Mrs. Lisa failed to
establish the consumer relationship to Bio Med-Care Co. she cannot claim any compensation
from Bio-Med Care Co.

7. Also it is humbly submitted that the medical service rendered to Mrs. Lisa is by Pillai’s
Wellness Hospital not by the Bio Med-Care Co. In the case of Indian Medical Association v.
V. P. Shantha & Ors9 Supreme Court held that the terms service provided in consumer
protection act includes medical services provided by doctors to the patients. In this instant
case Mrs. Lisa availed medical service from Pillai Wellness hospital.

8. In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr10 and
A.S.Mittal v. State of U.P11., it was laid down that when a doctor is consulted by a patient, the
doctor owes to his patient certain duties which are:
(a) duty of care in deciding whether to undertake the case 12,
(b) duty of care in deciding what treatment to give, and
(c) duty of care in the administration of that treatment.

9. Mrs. Lisa consulted Dr. Shivaraj, a cosmetic surgeon at Pillai’s Wellness Hospital, to
overcome the problem of over fat in Lisa’s arms. Dr. Shivaraj suggested Liposuction surgery
for the removal of over fat, and accordingly, Mrs. Lisa was admitted to the hospital.

7
Smt. Sukanti Behera v. Dr. sashi Bhushan Rath, II (1993) CPJ 633 (SY)
8
Shrikant G. Mantri vs. Punjab National Bank, 2022 (SC) 197.
9
Indian Medical Association v. V. P Shantha & Ors., AIR 1996 SC 550.
10
Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128.
11
A. S. Mittal v. State of U.P., AIR 1989 SC 1570.
12
Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118,

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Such breach of any of the duties may give a cause of action for negligence 13 and the patient
may on that basis recover damages from his doctor.

10. Black’s Law Dictionary14 defines negligence per se as “conduct, whether of action or
omission, which may be declared and treated as negligence without any argument or proof as
to the particular surrounding circumstances, either because it is in violation of statute or valid
Municipal ordinance or because it is so palpably opposed to the dictates of common prudence
that it can be said without hesitation or doubt that no careful person would have been guilty
of it.
As a general rule, the violation of a public duty, enjoined by law for the protection of person
or property, so constitutes.” Hereby, it is humbly content at that the Pillai wellness hospital
and the doctors who treated Mrs. Lisa, has legal duty of care while deploying medical
machineries.

11. It is humbly submitted that it is duty of the Member States should develop or maintain
adequate standards, provisions and appropriate regulatory systems for ensuring the quality
and appropriate use of pharmaceuticals through integrated national drug policies which could
address, inter alia, procurement, distribution, production, licensing arrangements, registration
systems and the availability of reliable information on pharmaceuticals 15.

12. In so doing, Member States should take special Account of the work and recommendations
of the World Health Organization on pharmaceuticals. For relevant products, the use of that
Organization’s Certification Scheme on the Quality of Pharmaceutical Products Moving in
International Commerce and other international information systems on pharmaceuticals
under the United Nations guidelines on consumer protection.

13. Therefore being signatory United Nations guidelines on consumer protection Vengadam
Should make the hospital comply the international standards for specific quality of
pharmaceutical products likely there is a specific guidelines for Sterilization of surgical
equipment by W.H.O called “Decontamination And Reprocessing Of Medical Device For
Health-care Facilities16” Which mandate installation qualification certificate to use
Sterilization machine in any hospitals.
Installation qualification (IQ) means it is a process of obtaining and documenting evidence
that equipment has been provided and installed in accordance with its specification.17

13
Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC)
14
Garner Bryana, Black’s Law Dictionary, 7th Edn.1981, West Group.
15
United Nations Guidelines for Consumer Protection, UNCTAD/DITC/CPLP/MISC/2016/1, (2016).
16
Decontamination and Reprocessing of Medical Devices for Health-care Facilities, WORLD HEALTH
ORGANISATION, 2016.
17
(ISO/TS 11139: 2006 Sterilization of healthcare products – Vocabulary)

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IQ consists of verifying that the equipment has been adequately installed and is safe to
operate following the Manufacturer’s specifications and the standards applied in each
country.
14. The following steps should be taken:
i. Verify the correct installation of connections: water, steam, electricity, compressed
air, ventilation, etc.
ii. This process verifies that the different parameters meet the manufacturer’s
specifications and the Regulations that apply.
iii. Verify the correct operation of the equipment’s different security functions, according
to standards.
iv. Confirm that the machine is equipped with the adequate technical documentation, i.e.
installation plans, technical/operational user manual, etc.
15. Hereby it is humbly contended that any manufacturing defect in the sterilizing machine could
possibly identified in the above process of installation certification. The international
standards preclude the manufacturer from the improper use of sterilization machine.
It is humbly submitted that it is a list from the fact clearly the medical team concluding the
harm18 caused to Mrs. Lisa is of poor sterilization by the machine supplied by Bio Med Care
Co, which has manufacturing defect.

16. It is humbly submitted that the conclusion through the investigation of medical team is
unreliable in the eyes of law as it is constituted by the management of Pillai’s Wellness
hospital. It is appropriate to prove any manufacturing defect of the instrument supplied by
Bio Med Care Co, must be done by proper laboratory definition19 under the Consumer
Protection Act, 201920 which is approved by the central government.

1.2. That the Pillai’s Wellness hospital is liable for breach of legal duty.

17. In the case of Manipal Hospital v. J. Douglas Luiz21, Mr. J. Douglas Luiz underwent
thoracotomy surgery at Manipal Hospital. Following the surgery, he experienced severe
hoarseness of voice, allegedly due to the improper administration of anesthesia using a
double lumen tube by a trainee anesthetist. Despite efforts to improve his condition,
subsequent examinations revealed dislocation of the left Arytenoid, leading to vocal cord
paralysis. The National Commission for Consumer Disputes Redressal (NCDRC) confirmed
medical negligence by the hospital, attributing the dislocation to the faulty insertion of the

18
Sabiha Hamid v. Dr M Khan Hospital, Sep., 30, 2021 SCDRC.
19
Dynavox Electronic Pvt. Ltd. v. B.J.S. Rampuria Jain College, Bikaner, (Appeal No. 4/89 before the Rajasthan
CDRC).
20
The Consumer Protection Act, 2019, No. 35 OF 2019.
21
Manipal Hospital v. J. Douglas Luiz, Civil Appeal No. 1700 of 2024 SC 134.

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tube. The State Commission's order holding the hospital guilty and awarding compensation 22
of Rs.5,00,000, along with Rs. 5,000 in costs, was upheld by the NCDRC.

18. It was in the case M/S. Global Hospital v. P. Manjula & 3 Ors23 before the State Commission
that on account of callousness and gross negligence24 on the part of OP-2 in performing the
operation and not taking care of the patient, the patient went unconscious resulting in his
death and this happened in the process of performing surgery by OP-2. While the patient
was taken with complaint of cardiac problem, he died due to brain hemorrhage.
The failure of brain functions and the resultant death of the patient was due to negligence on
the part of OP-2 and his associates who were expected to keep the supply of oxygen to the
brain intact and show the vigil during the course of conducting the surgery.

19. It was also the case of complainants that on persistent enquiries, the OP-2 hesitatingly
revealed that during the course of conducting surgery, there must have been disruption in the
supply of oxygen to the brain and for such non-supply or improper supply, there could be
clotting of blood in the brain, for which the patient is in unconscious state and in coma. OPs
did not furnish the CD recordings of surgery in the theatre.

20. State Commission after considering the entire facts of the case and evidence before it has
come to a finding that there is a negligence/deficiency in service on the part of OP-1
Hospital. As payments have been made to Hospital, there was an agreement of hiring of
services25 of hospital, hence Hospital was held liable. There was no privity of contract about
hiring of OP-2 doctor, hence OP-2 was not held liable. State Commission after considering
the evidence of DW1 (Dr. K. Prashant, CPO of Hospital) has concluded that there was
improper supply of oxygen to the patient, which amounts to negligence and deficiency in
service on the part of Hospital authorities.

1.3. The liposuction surgery is illegal and Mrs. Lisa cannot claim any remedy.

21. It is humbly submitted that in May 2022, Mrs. Lisa and Mr. Steve are foreigners visited
Vengadam for summer vacation as “tourist” to enjoy beach activities and trucking in the state
of Dhurupadam. After seeing the hoarding on the roadside portraying the Pillai’s Wellness
Hospital as a best hospital for liposuction surgery she decided to carry the surgery after
consulting Dr. Shivaraj.
However, the Vengadam authorities introduced the medical visa for the purpose of visiting
Vengadam for specialized surgery from June 5 of 200526

22
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384
23
M/S. Global Hospital v. P. Manjula & 3 Ors. on 5 July, 2023.
24
Sudipta Chakrobarty and Another v. Ranaghat SD Hospital and Ors., 2019 SCC OnLine NCDRC 1653.
25
Tarlok Chand Mattu v. M/s Vasal Hospital & Anr., 2017 SCC Online NCDRC 399.
26
General policy guidelines relating to Indian Visa, MINISTRY OF EXTERNAL AFFAIRS, Visa Manual, 2003.

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22. It can be extended for a further period of 1 year by the State Governments or Foreigners
Regional Registration Offices (FRROs) or Foreigners Registration Offices (FROs) on
production of a medical certificate from reputable/recognized/specialized hospitals in India.
Further extensions can be granted by the Ministry of Home Affairs on the recommendations
of the State Governments/FRROs/FROs supported by appropriate medical documents. The
visa is valid for a maximum of three entries during the year. Foreigners coming to India on
the medical visa are required to get themselves registered with the concerned FRROs within
14 days from the date of their arrival in India.

23. The following list of ailments would be of primary consideration: Serious ailments such as
neuro-surgery; ophthalmic disorders; heart-related problems; renal disorders; organ
transplantation; congenital disorders; gene-therapy; radio-therapy; plastic surgery; joint
replacement, etc..
Foreigners coming on “Medical Visa” will be required to get themselves registered
mandatorily well within the period of 14 days of arrival with the concerned FRROs/FROs.
Medical Visa is meant for those foreigners whose sole objective of visit to India is to seek
medical treatment in established/recognized/specialized Hospital/Treatment Centre in India
for serious ailments.

24. Despite there are strict regulations for carrying plastic surgery Mrs. Lisa carried the
liposuction surgery without proper medical visa which is illegal. Thereby, it is humbly
submitted that the entire act of Mrs. Lisa and Pillai’s Wellness Hospital is illegal and
contravention to the standards and mandates of the Union of Vengadam. Hence Mrs. Lisa
cannot claim any compensation form the Appellant.

1.4. The appellant falls within the exemption to product liability.

25. It is humbly submitted that the product liability action cannot be brought against the product
seller if, at the time of harm, the product was misused, altered, or modified 27 sec. 87 of
Consumer Protections Act, 2019.
In this instant case the improper use of sterilizing machine by the Pillai’s Wellness Hospital
precludes the product liability of appellant. Hence, Mrs. Lisa cannot claim compensation
from Bio Med Care Co.,

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital
so as to be liable to compensate Mrs. Lisa?

27
The Consumer Protection Act, 2019, sec. 87, No. 35 OF 2019.

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2.1.No deficiency in service:

26. It is humbly submitted that according to Black's Law Dictionary28, Negligence means as the
failure to exercise the standard of care that a reasonably prudent person would have exercised
in a similar situation. "Duty," "breach," and "resulting damage" are the three ingredients of
negligence.

27. Every professional cannot be highly skilled or expertise in the field he practices. Mere failure
of treatment and death of patient doesn’t mean that medical negligence, there should be
medical evidence or material available on record to prove medical negligence.

28. As held in the case Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahdeo29, the death
of a patient while undergoing treatment does not amounts to medical negligence. In the case
of Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors30., the National Commission held
that error of judgment in diagnosis or failure to cure a disease does not necessarily mean
medical negligence. When a patient does not give a proper medical history, the doctor cannot
be blamed for the consequences.

2.2. Loss of public credibility:

29. Recently, on 29 March, 2022, a doctor committed suicide, who was charged with murder
after patient’s death31. The FIR was filed against her based on unverified allegations of
medical Negligence. The unwarranted harassment on doctor without negligence being
certified will make expensive medical care. Medical negligence 32 has to be proved with
medical evidence and material record on circumstances so that the innocent doctor who has
attended the patient with due care will be saved. The patient should be treated with due care,
if not, the people will lose hope on the doctors. The doctor should treat patients with dignity.
Indian Medical Association should verify the hospital and doctors are maintaining the
standard care and principles as per the rules and regulations.

2.3. Injury to the reputation will affect their good will of the hospital

30. Mac Pherson v. Buick Motor Co33, that any instrument negligently made by a departure from
any of the above standards of due care, becomes inherently and imminently dangerous, and

28
Supra note 11.
29
Dr. Ganesh Prasad and Anr. v. Lal Janamajay Nath Shahdeo, (2006) CPJ 117 (NC).
30
Dr. Kunal Saha v. Dr. Sukumar Mukherjee and Ors. OP No. 240 of 1999.
31
Journal of Indian medico legal and ethics association, Quarterly Medical Journal, ISSN: 2347-7458 Vol.10,
Issue: Jan. – Mar., 2022.
32
Samira Kohli vs. Prabha Manchanda Dr. & ANR 1 (2008) CPJ 56 (SC).
33
Mac Pherson v. Buick Motor Co., 161 A.D. 906, 145 N.Y.S. 1132 (N.Y. App. Div. Jan. 21, 1914).

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that the manufacturer therefore owes the duty of due care to the general public and not just to
the immediate purchaser.

31. Magrine v. Krasnica34, involved just such an attempt to extend strict liability to a dentist,
when the hypodermic needle he was using for a mandibular block anesthesia broke off in
plaintiff's jaw. Both the trial court and the appellate court held that strict liability would not
apply where the dentist had not manufactured or sold the needle, where he was a non-
negligent user, and where the defect was latent and undiscoverable.

32. Greenman v Yuba Power Products Inc.35 wherein the Court held the manufacturer liable
while observing the cause of injury arising from a defect in the design.

33. In Al-Iqra v DSG Retail Ltd36, the Court observed that the contention of a product never
previously causing harm did not mean that the product could not be defective.

3. Whether the provisions conferring the right to appeal against an order issued by
the Commission based on the settlement in Mediation is constitutionally valid?

34. It is humbly submitted that the provisions of the Mediation Act, 202337omitting the third
provisio of section 4138 by the tenth schedule of the Mediation Act, 2023 thereby lifting the
bar and conferring the right to appeal against an order issued by the District Commission
based on the settlement in Mediation is constitutionally invalid.

3.1. That the impugned Amendment:

35. It is humbly submitted that section 41 of the Consumer Protection Act, 201939 under third
proviso explicitly bars the right to appeal to any court or tribunal on the order passed by
the District Commission upon the settlement arrived at mediation.

The proviso reads as follow: Provided also that no appeal shall lie
from any order passed under sub-section (1) of section 81 by the
District Commission pursuant to a settlement by mediation under
section 80.

34
Magrine v. Krasnica, (1967) 94 N.J. Super. 228 [227 A. 2d 539].
35
Greenman v. Yuba Power Products Inc., (1963) 59 Cal. 2 D 57.
36
Al-Iqra v. DSG Retail Ltd., [2019] EWHC 429 (QB).
37
The Mediation Act, 2023, No. 32 of 2023.
38
The Mediation Act, 2023, Sec. 41, No. 32 of 2023.
39
The Consumer Protection Act, 2019, Sec. 41, No. 35 OF 2019.

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36. However, the Mediation Act, 202340 was enacted which contains overriding provision to the
Consumer Protection Act, 201941. By invoking the amending powers Schedule nine of the
Act amended the Consumer Protection Act, 2019 as follows;

In the Consumer Protection Act, 2019 (35 of 2019)42,—

(a) in section 2, clauses (25) and (26) shall be omitted;
.................................................................

(d) in section 41, the third proviso shall be omitted.

37. On the other hand the Mediation Act, 2023 section 28 43 provided for challenging the
settlement report passed by the District Commission to the State commission on the grounds of
fraud, corruption, impersonation or the impugned mediation was conducted in disputes or
matters not fit for mediation.

38. In this instant case Mrs. Lisa filed a complaint against the Pillai’s wellness Hospital claiming
remedies for the sufferings due to ‘Necrosis’ which was occurs due to non-sterilized conditions
during the surgical procedure44. While the complaint is pending, both parties agreed to submit
their dispute for mediation, and accordingly, the District Commission referred this complaint for
settlement through mediation. The mediation was successful and the parties settled their dispute
accordingly the District Commission passed an order. However, after one week of passing the
order, Mrs. Lisa filed an appeal before the State Commission as there is no bar to appeal45.

39. The State Commission under sec 47(iii) 46 entertained Mrs. Lisa’s appeal and held that the
Hospital is liable for deficiency in service and ordered to pay Rs. 5 lakhs as compensation Mrs.
Lisa. The same order is reaffirmed by the National Commission

40. It is humbly contended that the State Commission has erred in passing the order for
compensation of rupees 5 lakh to appellant as section 28 only permits the State Commission to
cancel the settlement agreement on the said grounds of fraud, corruption, impersonation or the
impugned mediation was conducted in disputes or matters not fit for mediation 47.

41. As far as this case is concerned there is no such grounds was satisfied because there is no
complaint was filed against the doctor who actually provided the medical service in Medical

40
Supra note 1.
41
Supra note 15.
42
Supra note 15.
43
The Mediation Act, 2023, Sec. 28, No. 32 of 2023.
44
Moot Proposition, para. 7.
45
Moot Proposition, para. 11 & para. 12.
46
Moot Proposition, para. 12.
47
The Mediation Act, 2023, Sec. 28, No. 32 of 2023.

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council of India as required by section 6 of the Mediation Act, 202348 thereby the State
Commission and National Commission beyond their powers thus rendered injustice to the
appellant.

3.2. Disruption to amicable settlement through Mediation.

42. It is humbly submitted that the Apex Court in Food Corporation of India v. Joginderpal
(1989)49, laid down the emphasis on ADR system of adjudication through arbitration, mediation
and conciliation is a modern innovation into the area of the legal system and it has brought
revolutionary changes in the administration of justice. It can provide a better solution to a dispute
more expeditiously and at a lesser cost than in regular litigation. The law commission of India in
its report No. 222 in 200950 stated “Need for justice-dispensation through ADR etc.”,
recommended that “We are aware that there is an urgent need for justice dispensation through
ADR mechanism.”

43. Supreme Court of India, in the case of Moti Ram (D) Tr. LRs and Anr. v. Ashok Kumar and
Anr51, held that mediation proceedings were confidential in nature, and that only an executed
settlement agreement or alternatively a statement that the mediation proceedings were
unsuccessful, should be provided to the court by the mediator

44. In this case the Supreme Court had made a direction for the parties to take part in a mediation
in order to try and settle their dispute. After the mediator had provided a report of the mediation
proceedings to the court, the Supreme Court held that mediation proceedings were confidential in
nature, although such confidentiality could be lost in the event that the mediation proceedings
were disclosed. The court gave guidance to mediators in relation to preserving confidentiality by
holding that, if the mediation proceedings resulted in a settlement, the mediator should only
provide a copy of the executed settlement agreement to the court, and not disclose anything
about what transpired during the mediation proceedings. Alternatively, if the mediation
proceedings did not directly result in a settlement, the mediator should only provide the court
with a statement setting out that the mediation proceedings were unsuccessful.

45. The importance and effectiveness of mediation can realize by the words of Joseph Grynbaum

”An ounce of mediation is worth a pound of arbitration and a ton of litigation.52”

However, the impugned provisions rendered the most effective way of dispute resolution as mere
performance of a ceremonial mandate before access to justice.

48
The Mediation Act, 2023, Sec. 6, No. 32 OF 2023.
49
Food Corporation of India v. Joginderpal, SC 1989-3-31.
50
Need for Justice Dispensation through ADR, etc., LAW COMMISSION OF INDIA, Report No. 222, Apr., 2009.
51
Moti Ram (D) Tr. LRs and Anr. v. Ashok Kumar and Anr, Civic Appeal No. 1095 of 2008.
52
MEDIATION AND CONCILIATION PROJECT COMMITTEE, Supreme Court of India, Broucher 2005.

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3.2.The impugned provision of Mediation Act, 202353 is contrary to the international

obligation.

46. It is humbly submitted that Union of Vengadam actively participates in almost all
international discussions and conferences relating to the protection of human rights, including
the rights of consumers. The framework for the Consumer Act was provided by a Resolution,
dated 9-4-1985 of the General Assembly of the United Nations Organization. This is known as
'Consumer Protection Resolution No. 39/248.54' India is a signatory to the said Resolution.
Which provides United Nations guidelines for consumer protection.

47. There is an international obligation to Vengadam to encourage the development of fair,

effective, transparent and impartial mechanisms to address consumer complaints through
administrative, judicial and alternative dispute resolution, including for cross-border cases55.

48. Also, Union of Vengadam obliged to establish or maintain legal and/or administrative
measures to enable consumers or, as appropriate, relevant organizations to obtain redress through
formal or informal procedures that are expeditious, fair, transparent, inexpensive and
accessible 56.

However by the impugned tenth schedule of the Mediation Act, 202357 the mediation became an
obstacle and dragging the time of the litigation to be settled. Thereby, Union of Vengadam is
rendered the expeditious, fair, transparent, inexpensive and accessible into illusion.

3.4. Alteration of essential character of Mediation.

49. The reason behind the success of Alternate Dispute Resolutions such as Arbitration and
Conciliation in India are: efficiency, flexibility, simplicity, confidentiality, impartiality, cost
effectiveness, and finality.

50. The Arbitration and Conciliation Act, 199658 section 35 provided for finality of arbitral
award and create binding obligation of the parties to the award and it can only be set aside not be
reversed or adjusted upon merit on appeal like normal decree from court.

51. The Arbitration and Conciliation Act, 1996 section 73 59 provided for the finality of
settlement agreed signed between the parties and create binding obligation.

53
The Mediation Act, 2023, No. 32 of 2023.
54
Resolutions Adopted on the Reports of the Second Committee, Consumer Protection Resolution, GENERAL
ASSEMBLY OF THE UNITED NATIONS ORGANISATION, 106th Plenary Meeting, Resolution No. 39/248,
Apr., 9, 1985.
55
United Nations Guidelines for Consumer Protection, UNCTAD/DITC/CPLP/MISC/2016/1, (2016).
56
Supra note 46.
57
The Mediation Act, 2023, Tenth Schedule, No. 32 OF 2023.
58
The Arbitration and Conciliation Act, 1996, Sec. 35, (Act No. 26 of 1996).

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Mediation is a voluntary, binding process in which an impartial and neutral mediator

facilitates disputing parties in reaching a settlement.

52. In the case of Delhi Airport Metro Express Pvt. Ltd. V. Delhi Metro Rail Corporation60
Supreme court observed that “courts are mandated to strictly act in accordance with and within
the confines of the section 34 of Arbitration and conciliation Act, 1996, refraining from
appreciation and re-appreciation of matters of facts as well as law.”

53. However, the finality of order is inevitable to ensure the speedy disposal of claims otherwise
it prolongs like any lengthy civil cases in civil courts.

54. Thereby the right to access to justice and speedy remedy is violated for the Applicant. The
Mediation Act, 2023 mandated the pre litigation mediation settlement for amicable dispute
resolution of parties without intervention of court as per section 12A of the Act as follows61.

Pre-litigation Mediation and Settlement.—(1) A suit, which does not contemplate

any urgent interim relief under this Act, shall not be instituted unless the plaintiff
exhausts the remedy of pre-litigation mediation in accordance with such manner and
procedure as may be prescribed by rules made by the Central Government.

Hence the parties went mediation and settled the same but the appeal preferred by the respondent
rendered period of time invested for amicable settlement rendered futile thereby the right to
access to justice was denied to the appellant.

3.5. The impugned amendment lacks legislative competence

55. It is humbly submitted that the impugned amendment to the provisions of the Consumer
Protection Act, 201962 is ultra vires to the constitution as it colorable in nature.

56. The constitutional scheme does not provide for union to enact law on the subject specified
list II of the 7th schedule 63 unless there was an emergency. However in this instant case the
impugned amendment omitting third Proviso of section 41 of Consumer Protection Act, 201964 is
clearly falls within the state list entry 65.

57. Entry 65 deals with jurisdiction and powers of all quotes except the Supreme Court with
respect to any of the matters in this list.

59
The Arbitration and Conciliation Act, 1996, Sec. 73, (Act No. 26 of 1996).
60
Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation, SC 452, May 5, 2022.
61
The Mediation Act, 2023, Sec. 12-A, No. 32 OF 2023.
62
The Consumer Protection Act, 2019, No. 35 OF 2019.
63
INDIA CONST. Sch. VII, List II, Ent. 65.
64
The Consumer Protection Act, 2019, Sec. 41, No. 35 OF 2019.

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58. As per, “Quando Aliquid Prohibetur ex Directo, Prohibetur” also per Obliquum which
means “what cannot be done directly cannot be done indirectly65.”while a legislature professes to
operate within the bounds of its power in making legislation, in substance and in fact, it
transgresses those powers, the violation being disguised by what appears to be a mere pretense or
disguise on the proper investigation. As a result, the idea is inextricably linked to the doctrine of
‘pith and substance66.

59. Article 246 (3)67 gives the states the exclusive power to make laws concerning the items
included in the State List (List II in the Seventh Schedule) 68. These are issues that allow for local
variances and are best handled at the state level from an administrative standpoint; hence, the
Centre is barred from legislating on these issues. As a result, if a certain topic comes under the
exclusive competence of the states, i.e., List II, that is the prohibited field for the Centre.

60. The Supreme Court stated held in Attorney General for India v. Amratlal Prajivandas69,
(1994) that the criteria for determining the legislative authority of Parliament are as follows:

 If the authority of Parliament to pass a particular piece of legislation is questioned, one

must look to the items in List II.
 If the said statute is not related to any of the entries in List II, no further investigation is
required because Parliament will be competent to enact the said statute either through the
entries in List I and List III or through the residuary power contained in Article 248 70

61. Here by it is humbly content at that the impugned amendment is colorable exercise of
legislative powers of union and transgressing the legislative domain of the state is ultra vires and
unconstitutional

3.6. The Impugned provisions are violative of Article 21 and 14 of the

Constitution71.

62. It is humbly submitted that the provisions of the Mediation Act, 202372omitting the third
provisio of section 41 by the ninth schedule of the Mediation Act, 2023 thereby lifting the bar
and conferring the right to appeal against an order issued by the Commission based on the
settlement in Mediation is constitutionally invalid.

65
INDIA CONST. art. 246, cl. 3.
66
INDIA CONST. Sch. VII, List II.
67
INDIA CONST. art. 246, cl. 3.
68
Supra note 57.
69
Attorney General for India v. Amratlal Prajivandas, 1994 (5) SCC 54.
70
INDIA CONST. art. 248.
71
INDIA CONST. art. 14 & art. 21.
72
Supra note 1.

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63. The Constitution Bench of the Supreme Court has held that access to Justice is a
Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution of
India73.

64. The Five judge bench observed that if “life” implies not only life in the physical sense but a
bundle of rights that makes life worth living, there is no juristic or other basis for holding that
denial of “access to justice” will not affect the quality of human life so as to take access to justice
out of the purview of right to life guaranteed under Article 21 74.

“We have; therefore, no hesitation in holding that access to justice is indeed a facet of
right to life guaranteed under Article 21 of the Constitution75. The Citizen’s inability to
access courts or any other adjudicatory mechanism provided for determination of rights
and obligations is bound to result in denial of the guarantee contained in Article 14 both
in relation to equality before law as well as equal protection of laws. Absence of any
adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound
to prevent those looking for enforcement of their right to equality before laws and equal
protection of the laws from seeking redress and thereby negate the guarantee of equality
before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21
of the Constitution apart, access to justice can be said to be part of the guarantee
contained in Article 14 as well.”

(ii) The mechanism must be conveniently accessible in terms of distance: The

forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be
reasonably accessible in terms of distance for access to justice since so much depends
upon the ability of the litigant to place his/her grievance effectively before the
court/tribunal/court/competent authority to grant such a relief.

(iii) The process of adjudication must be speedy. “Access to justice” as a constitutional

value will be a mere illusion if justice is not speedy. Justice delayed, it is famously said,
is justice denied. If the process of administration of justice is so time consuming,
laborious, indolent and frustrating for those who seek justice that it dissuades or deters
them from even considering resort to that process as an option, it would tantamount to
denial of not only access to justice but justice itself.

3.7. The impugned provision conferring right to appeal on settlement report denial
of speedy remedy

73
INDIA CONST. art. 14 & art. 21.
74
INDIA CONST. art. 21.
75
Supra note 65.

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65. In Sheela Barse’s case76 this Court declared speedy trial as a facet of right to life, for if the
trial of a citizen goes on endlessly his right to life itself is violated.

66. There is jurisprudentially no qualitative difference between denial of speedy trial in a

criminal case, on the one hand, and civil suit, appeal or other proceedings, on the other, for ought
we know that civil disputes can at times have an equally, if not, more severe impact on a
citizen’s life or the quality of it. Access to Justice would, therefore, be a constitutional value of
any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise,
the right to access to justice is no more than a hollow slogan of no use or inspiration for the
citizen.

67. It is heartening to note that over the past six decades or so the number of courts established in
the country has increased manifold in comparison to the number that existed on the day the
country earned its freedom. There is today almost invariably a court of Civil Judge junior or
senior division in every taluka and a District and Sessions Judge in every district. In terms of
accessibility from the point of view of distance which a citizen ought to travel, we have come a
long way since the time the British left the country.

68. However, the increase in literacy, awareness, prosperity and proliferation of laws has made
the process of adjudication slow and time consuming primarily on account of the over worked
and under staffed judicial system, which is crying for creation of additional courts with requisite
human resources and infrastructure to effectively deal with an ever increasing number of cases
being filed in the courts and mounting backlog of over thirty million cases in the subordinate
courts. While the States have done their bit in terms of providing the basic adjudicatory
mechanisms for disposal of resolution of civil or criminal conflicts, access to justice remains a
big question mark on account of delays in the completion of the process of adjudication on
account of poor judge population and judge case ratio in comparison to other countries.

69. The process of adjudication must be affordable to the disputants: Access to justice will again
be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a
disputant from taking resort to the same. Article 39-A of the Constitution of India promotes a
laudable objective of providing legal aid to needy litigants and obliges the State to make access
to justice affordable for the less fortunate sections of the society.

70. Hereby, it is humbly submitted the impugned provision of the Mediation Act, 202377
providing for appeal on the order passed by the District Commission pursuant to settlement
report in mediation is violative of fundament right to access justice under Article 14 and 21 and
international obligation under the United Nations Guidelines for Consumer Protection78.

76
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
77
Supra note 1.
78
United Nations Guidelines for Consumer Protection, UNCTAD/DITC/CPLP/MISC/2016/1, (2016).

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4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers are constitutionally valid?

4.1.That the section 21 of the Consumer Protection Act79 is violative of right to 14, 21
and 1980

71. It is humbly submitted that section 21 of the Consumer Protection Act, 201981 empower the
Central Authority to issue directions and penalties against false or misleading advertisements.

72. Where the Central Authority is satisfied after investigation that any advertisement is false or
misleading and is prejudicial to the interest of any consumer or is in contravention of
consumer rights.

73. If the Central Authority is of the opinion that it is necessary to impose a penalty in respect of
such false or misleading advertisement, by a manufacturer or an endorser, it may, by order,
impose on manufacturer or endorser a penalty which may extend to ten lakh rupees or
impose sentence may extend to one year and if any subsequent contravention found it can
impose fine which may extend to fifty lakh rupees or three years82.
74. It is humbly submitted that conferring the power to penalize the manufacturer or an endorser
with imprisonment or fine was unconstitutional and void under article 13(2) 83 as it denied to
the appellant the equal protection of the laws enjoined by article 1484.

75. Article 1485 forbids class legislation, it does not forbid reasonable classifications of objects
and transactions by the Legislature for the purpose of achieving specific ends. Classification to
be reasonable should fulfill the following two test86:

(1) It should not be arbitrary, artificial or evasive 87. It should be based on an intelligible
differentia, some real and substantial distinction, which distinguishes persons or things grouped
together in the class from others left out of it

79
The Consumer Protection Act, 2019, Sec. 21, No. 35 OF 2019.
80
INDIA CONST. art. 14, art. 19 & art. 21.
81
Supra note 15, Sec. 21.
82
Supra note 72.
83
INDIA CONST. art. 13, cl. 2.
84
INDIA CONST. art. 14.
85
Supra note 75.
86
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279, AIR 1958 SC 538, 1959
SCJ 147, 1961 BOM LR 192.
87
E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

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(2) The differentia adopted as the basis of classification must have a rational or reasonable nexus
with the object sought to be achieved by the statute in question88.

76. In State of West Bengal v. Anwar Ali Sarkar89, Supreme Court held the West Bengal Special
Courts Act, 1950, Section 590 provided for Special Court which shall try such offences or classes
of offences or cases or classes of cases, as the State Government may by general or special order
in writing, direct.

77. And Sections 6 to 15 eliminated the procedural safeguards under the Code of Criminal
Procedure91, and substituted the same with special procedure. As bad at Article 14 and
unconstitutional despite the object of the Act to provide for the speedier trial of certain offences".

78. Thereby in this instant case the manufacturers or endorsers of misleading advertisement
treated a separate class from the other wrongs mentioned in the Consumer Protection Act, 2019.
The former proving with the jurisdiction of CCPA and its procedures from the latter within the
jurisdiction of tribunals is violative of equal protection of the laws enjoined by article 14 92 of the
appellant.

4.2. Violation of right to freedom of speech and expression.

79. It is humbly submitted that Supreme Court has concluded in Tata Press (Tata Press Limited
v Mahanagar Telephone Nigam Limited93, that “commercial speech” cannot be denied the
protection of Article 19(1) (a)94 merely because the same is issued by businessmen.

“Commercial speech” is a part of freedom of speech guaranteed under Article 19(1)(a)95.

80. The public at large has a right to receive the “commercial speech”. Article 19(1)(a) 96 protects
the rights of an individual “to listen, read and receive” the “commercial speech”. The protection
of Article 19(1) (a)97 is available both to the speaker as well as the recipient of the speech

81. Advertising is a ‘commercial speech’ which has two facets:

(1) Advertising which is no more than a commercial transaction, nonetheless, disseminates

in- formation regarding the product advertised. Public at large stands benefited by the

88
S. Seshachalam v. Bar Council of TN, (2014) 16 SCC 72: 2014 (14) SCALE 79.
89
State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75, 1952 SCR 284.
90
West Bengal Special Courts Act, 1950, Sec. 5, Act X of 1950.
91
The Code of Criminal Procedure, 1973, Sec. 6 to Sec. 15, Act NO. 2 of 1974.
92
INDIA CONST. art. 14.
93
Tata Press Limited v. Mahanagar Telephone Nigam Ltd, AIR 1995 SC 2438, 2446 : (1995) 5 SCC 139.
94
INDIA CONST. art. 19, cl. 1. sub cl. a.
95
Supra note 83.
96
Supra note 83.
97
Supra note 83.

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information made available through advertisement. In a democratic economy, free flow

of commercial information is indispensable. Therefore, any curtailment of advertisement
would affect the Fundamental right98.

(2) The public at large has a right to receive commercial information. Article 19(1) (a)99
protects the right of an individual to listen, read and receive the said speech.

4.3. Violation of Article 50 separation of judiciary from executive

82. Montesquieu enunciated and described his theory of separation of powers in his work ‘The
Spirit of the Laws’ in 1748 100.

“ The administration of justice becomes meaningless and flawed if the judicial

and executive powers are merged and assigned to one individual or one
institution since the police (executive) then function as the judiciary”

83. Article 50 is based on the bedrock of the principle of independence of the judiciary

.It is observer by the Supreme Court in the following cases, State of UP v Sanjay Kumar101,
Kesavananda Bharati Sripadagalvaru v State of Kerala 102, Indira Nehru Gandhi v Raj Narain103,
State of West Bengal v The Committee for Protection of Democratic Rights, West Bengal104.

84. The separation of the judiciary from the executive is regarded as a very necessary element for
proper administration of justice in the country. The separation of powers between the legislature,
the executive and the judiciary constitutes one of the basic features of the Constitution

85. The idea underlying Article 50105 was that such an anomalous position be corrected and the
judiciary be freed from executive control. By and large this goal has been achieved. The
Constitution makes a number of provisions to strengthen the lower judiciary and preserve its
judicial independence106.

86. In Course of time, the Supreme Court has interpreted these provisions so as to further
enhance the prestige, dignity and independence of the subordinate judiciary 107. To promote this

98
E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
99
Supra note 83.
100
MONTESQUIEU, THE SPIRIT OF THE LAWS, 1748.
101
State of UP v. Sanjay Kumar, 2012 (6) All LJ 746 (750): 2012 AIR SCW 5157: (2012) 8 SCC 537: (2012) 8
SCALE 3.
102
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461 (1973) 4 SCC 225.
103
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: 1975 Supp SCC 1.
104
State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476:
2010 AIR SCW 1829: (2010) 3 SCC 571.
105
INDIA CONST. art. 50.
106
MP Jain, Outlines of Indian Legal History, chapter 18
107
. MP Jain, Outlines of Indian Legal History, chapter 18,

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value, the Supreme Court has laid down that only judicial magistrates can be promoted as district
Judges and the High Court Judges. An executive magistrate cannot be promoted as such 108.

87. A somewhat converse situation arose in UOI v Delhi High Court Bar Association109. The
Delhi High Court had held that the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993110 was unconstitutional because it eroded the independence of the judiciary by
curtailing the jurisdiction of the civil Courts and because the High Court had no role to play in
the appointment of the Presiding Officers. Reversing the decision the Supreme Court said that
there is no reason to presume that Tribunals appointed under Articles 323-A and 323-B111 would
not be independent or that the independence of the judiciary would stand eroded particularly
when the Presiding Officers were required to be qualified to be judges and all decisions were
subject to judicial review 112.

4.4. That the advertisement is not misleading

88. It is humbly submitted that complaint was filed before the Central Consumer Protection
Authority against the claims made in the hoardings of Pillai’s Wellness Hospital placed in
different parts of the State of Dhrupadam. The Central Authority, after an appropriate
investigation and other proceedings, imposed a penalty of Rs.50000 on Mr. Tilak Varma for
endorsing the advertisement. The same was reaffirmed by the National Commission 113.

89. It is humbly submitted the CCPA and National Commission erred in application of law and
rendered grave injustice to the appellant. The hoardings of Mr. Tilak Varma portray that Pillai’s
Wellness Hospital is the best hospital in the country to carry out liposuction surgery.

90. It is humbly submitted that "misleading advertisement" in relation to any product or service,
means an advertisement, which—

(i) falsely describes such product or service;

(ii) gives a false guarantee to, or is likely to mislead the consumers as to the
nature, substance, quantity or quality of such product or service; or

108
Ibid.
109
Union of India v. Delhi High Court Bar Association, (2002) 4 SCC 275, at page 282: AIR 2002 SC 1479. See also
V. K. Majotra v. Union of India, (2003) 8 SCC 40.
110
Recovery of Debts Due to Banks and Financial Institutions Act, 1993, 51 of 1993.
111
INDIA CONST. art. 323-A & 323-B.
112
UOI v. Delhi High Court Bar Association, (2002) 4 SCC 275, at page 293: AIR 2002 SC 1479. See also V. K.
Majotra v. UOI, (2003) 8 SCC 40; All India Judges Association v. UOI, (2006) 12 SCC 178: (2005) 1 SCALE 615;
State of UP v. Jeet S Bisht, (2007) 6 SCC 586, at page 617 (2007) 8 JT 59.
113
Moot Proposition, para. 13.

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(iii) conveys an express or implied representation which, if made by the

manufacturer or seller or service provider thereof, would constitute an unfair
trade practice; or

(iv) deliberately conceals important information;

91. In this instant case the hording of the hording of Mr. Tilak Varma does not falsely describe
the product or mislead Mrs. Lisa as to the nature, substance, quantity or quality of such product
or service. The mis-happenings is purely due to the manufacturing defect of sterilization machine
and the medical service provided with adequate duty to care.

92. However, the Guidelines for Prevention of Misleading Advertisements and Endorsements for
Misleading Advertisements, 2022114 provided that due diligence required for endorsement of
advertisements115.

Any endorsement in an advertisement must reflect the genuine, reasonably current opinion of the
individual, group or organisation making such representation and must be based on adequate
information about, or experience with, the identified goods, product or service and must not
otherwise be deceptive.

93. As per the guidelines when an advertisement 116 is regulated under any law for the time being
in force the rules or regulations must not be in derogation with such law 117. As far as our case is
concerned the Code of Medical Ethics Regulations, 2002118 does not prohibit the physician
running private hospital to advertise in lay press 119. The only condition is such advertisements
should not contain anything more than the name of the institution, type of patients admitted, type
of training and other facilities offered and the fees. It is nowhere mentioned the word that Pillai’s
Wellness Hospital is the best hospital in the country to carry out liposuction surgery in hoarding
but mere portray120 which is understood by Mrs. Lisa who is foreigner.

114
Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022,
CENTRAL CONSUMER PROTECTION AUTHORITY, Notification issued on Jun., 9, 2022.
115
Horlicks Limited v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020
116
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802
117
Supra note 102, rule. 10.
118
(Professional Conduct, Etiquette and Ethics) Regulations, 2002, MEDICAL COUNCIL OF INDIA, Published in
Part III, Sec. 4 of the Gazette of Ind. Apr., 6, 2002. See also: Indian Medical Council Act, 1956 (102 of 1956).
119
Supra note 104, rule. 7.14.
120
Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

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PRAYER

Wherefore, in light of issues raised, arguments advanced & authorities cited, the
Petitioner humbly pray that this Supreme Court of Vengadam may be pleased to issue a
writ of mandamus, certiorari and certiorified mandamus or any other appropriate writ:

1. To quash the order of National Commission and declare Mrs. Lisa is not a
consumer and not eligible to claim remedy from Bio-Med Care Co.,
2. To quash the order of National Commission and declare there is any deficiency
in service on the part of Pillai’s Wellness Hospital so as to be liable to
compensate Mrs. Lisa
3. To quash the decision of National Commission upholding the fine imposed on
Mrs. Tilak Varma by Central Consumer Protection Authority.
4. To declare section 21 of the Consumer Protection Act, 2019 is unconstitutional.
5. To declare the tenth schedule of the Mediation Act, 2023 omitting the third
Provisio section 41 of the Consumer Protection Act, 2019 is unconstitutional.

And /or

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience for
which the counsel for the Appellant shall be duty bound forever pray.

Sd/-

(Counsel for the Appellant)

Memorandum on behalf of Appellant 31