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Moot court memorial of Ashok mohapatra National moot court. Best memorial awarded moot memorial
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1st National online Moot Court Competition MEMORANDUM ON BEHALF OF PETITIONER P a g e | i
(Jurisdiction under Article 226 of Constitution of Kings Landing and under Section 482 of Criminal Procedure Code, 1973) IN THE CLUBBED MATTERS OF: WRIT PETITION (CIVIL) No. _____/ MRS. DANNY…………………………………………..………..……............ PETITIONER
- VERSUS- STATE OF WINTERFELL & ANOTHER…….…….……………………………………...……............ RESPONDENT
CRL. M.C. No. _____/ JEMMIE AND THEON …………………..…………..………..…….......... PETITIONERS
- VERSUS- STATE OF WINTERFELL………………..………..…..….……................ RESPONDENT DISPUTE RELATING TO: CIVIL WRIT PETITION OF MANDAMUS UNDER ARTICLE 226 OF CONSTITUTION OF KINGS LANDING FILED BY MRS. DANNY i.e. THE PETITIONER IN THE FIRST CASE AND CRL.M.C. PETITION U/S 482 OF CRIMINAL PROCEDURE CODE, 1973 FILED BY JEMMIE AND THEON i.e. THE PETITIONERS IN THE SECOND CASE. TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON’BLE HIGH COURT OF WINTERFELL THE HUMBLE SUBMISSION OF MRS. DANNY- PETITIONER OF THE FIRST CASE & STATE OF WINTERFELL- RESPONDENT OF THE SECOND CASE
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | ii
LIST OF ABBREVIATIONS……………………………………………………………….iii INDEX OF AUTHORITIES………………………………………………………………...iv I. LIST OF CASES………………………………………………………………………..….iv II. LIST OF FOREIGN DECISIONS………………………………………………………...v III. LIST OF STATUTES…………………………………………………………………......vi IV. LIST OF BOOKS REFERRED…………………………………………………………..vi V. LIST OF ONLINE DATABASES…………………………………………….…..……………………….......vi-vii STATEMENT OF JURISDICTION……………………………………...…………………………………viii-ix STATEMENT OF FACTS…………………………………………………………….....x-xii STATEMENT OF ISSUES …………...……………………………………………….......xiii SUMMARY OF ARGUMENTS…………………………………………………………..xiv ARGUMENTS ADVANCED……………………………………………………………..... [I] WHETHER THERE IS CIVIL NEGLIGENCE ON THE PART OF THE COMPANY OR NOT? ……...............................................................................................1- 6 [II] WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT? .................7- 8 [III] WHETHER THE COGNIZANCE ORDER OF THE LEARNED J.M.F.C. OF NIGHT WATCH UNDER SECTION 304 - A & 336 K.P.C. IS LIABLE TO BE QUASHED? ........................................................................................................................ 8 - 11 PRAYER……………………………………….………….……………………………….... 12
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | iv
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | v
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | vii
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | viii
Article 226 of Constitution Of Kings Landing reads as: “ 226. Power of High Courts to issue certain writs .- (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. THE PETITIONERS OF THE SECOND CASE HAVE JOINTLY FILED A CRIMINAL MISCELLANEOUS CASE UNDER SECTION 482 OF Cr.P.C. 1973 TO QUASH THE COGNIZANCE ORDER OF THE LEARNED J.M.F.C. OF NIGHT WATCH. THE STATE AS RESPONDENT IN THE SECOND CASE HUMBLY SUBMITS TO THE JURISDICTION OF THIS HON’BLE COURT WHICH HAS BEEN INVOKED BY THE PETITIONERS. HOWEVER, THE RESPONDENT RESERVES THE RIGHT TO CHALLENGE THE SAME. THE PROVISION UNDER WHICH THE PETITIONERS HAVE FILED THE PETITION FOR QUASHING OF COGNIZANCE ORDER BEFORE THIS HONOURABLE COURT IS READ HEREIN UNDER AS: Section 482 Of Criminal Procedure Code, 1973 reads as: “ 482. Saving of inherent powers of High Court. – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary (^1) The Constitution of Kings Landing is pari materia to The Constitution of India.
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | x
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | xi
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | xiii
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | xiv
It is humbly submitted before this Hon'ble Court that the non performance of duty with standard degree of care and due diligence on the part of the Company which resulted in loss of two precious lives, holds them liable of Civil Negligence. II. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT? It is the humble submission of the counsels for the petitioner that the writ of Mandamus by the petitioner-w/o deceased 1 wherein she (i) claimed 40 lakhs as compensation for the death of her husband and son which was caused due to negligence done by the Company and (ii) prayed for a direction to IPCWDL to restore electricity connection to her house as such action is violative of her constitutional rights, is maintainable as the compensation claims primarily require negligence on the part of the defendant to be established which has been done under Issue I and the prayer for direction is reasonable and backed by law. III. WHETHER THE COGNIZANCE ORDER OF THE LEARNED J.M.F.C. OF NIGHT WATCH U/S 304-A & 336 K.P.C. IS LIABLE TO BE QUASHED? It is humbly submitted before this Hon'ble Court that the cognizance order of the learned J.M.F.C u/s 304A & 336 K.P.C. is made after proper application of his judicial mind by him and there are sufficient material available to prove guilt of the two accused beyond any reasonable doubt. Hence the cognizance order is devoid of being quashed.
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | 2 [III] Essentials Of Negligence : - In an action for negligence, the plaintiff has to prove primarily 6 main essentials. An act will be categorized as negligence only if, all the following conditions are satisfied – 1) Duty Of Care It is one of the essential conditions of negligence in order to make the person liable. It means that every person owes, a duty of care, to another person while performing an act. Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical or religious nature. In the case of Stansbele vs Troman (1948)^5 A decorator was engaged to carry out decorations in a house. Soon after The decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the house open and failed his duty of care. In Grant v. Australian Knitting Mills Ltd.^6 the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care. 2) The Duty must be towards the plaintiff A duty arises when the law recognizes a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the plaintiff but it must also be established which is usually determined by the judge. The case of Donoghue v. Stevenson (193 2 )^7 has evolved the principle that we each have a duty of care to our neighbour or someone we could reasonably expect to be affected by our acts or omissions. It was held that, despite no contract existed between the manufacturer and the person suffering the damage an action for negligence could succeed since the plaintiff (^5) Stansbele vs Troman (1948) (^6) 1935 AC 85 (^7) Donoghue v. Stevenson (1932)
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | 3 was successful in her claim that she was entitled to a duty of care even though the defective good i.e a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend. 3)Breach of Duty to take care It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care means that the person who has an existing duty of care should act wisely and not omit or commit any act which he has to do or not do as said in the case of Blyth v. Birmingham Waterworks Co. (1856).^8 In simple terms, it means non-observance of a standard of care. In the case of Ramesh Kumar Nayak vs Union of India(1994)^9 The post authorities failed to maintain the compound wall of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal authorities were liable since that had a duty to maintain the post office premises and due to their breach of duty to do so, the collapse occurred. Hence they were liable to pay compensation. In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)^10 A very old clock tower situated right in the middle of a crowded area of Chandni Chowk suddenly collapsed thereby causing the death of many people. The clock tower was 80 years old although the normal life span of the clock tower should have been 40-45 years. The clock tower was under the control of The Municipal Corporation of Delhi and they had a duty of care towards the citizens. By ignoring to repair the clock tower, they had breached their duty of care toward the public and were thereby liable In Municipal Corporation of Delhi v. Sushila Devi^11 ; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable. (^9) Ramesh Kumar Nayak vs Union of India(1994) (^10) Municipal Corporation of Delhi v. Subhagvanti (AIR 1966) (^11) AIR 1999 SC 1929
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | **5
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | 6 [2.1] All The Aforementioned Essential Conditions Of Negligence Are Satisfied It is humbly submitted that it was the legal duty of the IPCWDL Company to duly check the grid lines and make them ready for the rainy season. This satisfies the first condition i.e. Duty of care. The second condition is The Duty must be towards the plaintiff. In the instant case the deceased were and the plaintiff is a consumer of electricity service provided by the Company and consumers are entitled to safety. As stated above it was the duty of the company to check the grid and power lines which is of utmost importance to ensure the safety of the consumers. With this the second condition is satisfied. Moving forward to the third and fourth condition which are namely 'Breach of duty to take care' and 'Actual cause or cause in fact' respectively. The 'Breach of Duty to take care' means non observance of standard of care which is expected from the Company. It is a matter of fact that in rainy seasons ill maintained grid and power lines cause loss of lives and properties. The Company in the instant case should have taken care of this in order to prevent the same. And 'Actual cause or cause in fact' which is Company's lack of care in maintenance of the grid lines which resulted in physical contact of the deceased 1 with the live power line which fell on his head when it was raining. Then comes the fifth condition i.e. 'Proximate Cause' which says - A defendant in a negligence case is only responsible for those damages that the defendant could have foreseen through his actions. As discussed above the standard care of grid lines if not taken results in such incidents of loss of lives. Thus it was foreseeable on the part of the company that if the grid lines ain't maintained and weak power line wires ain't replaced, it will result in loss of lives yet they didn't take care of the power grid and line wires. Finally with the death of both the deceased last and most important condition i.e. Consequential harm to the plaintiff stands satisfied. This condition requires that failure of the respondent to exercise reasonable care resulted in damages to the petitioner to whom the respondent owed a duty of care. The non observance of duty to exercise reasonable care