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1st National online Moot Court Competition MEMORANDUM ON BEHALF OF PETITIONER P a g e | i
DR. ASHOK KUMAR MOHAPATRA MEMORIAL STATE LEVEL
MOOT COURT COMPETITION - 2021
IN THE HON’BLE HIGH COURT OF WINTERFELL
(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
And
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
TEAM CODE:- AKM-
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | ii
TABLE OF CONTENTS
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
INDEX OF AUTHORITIES
I. LIST OF CASES
SL. NO. NAME OF THE CASE
- Ramesh Kumar Nayak vs Union of India(1994)
- Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
- Achutrao Haribhau Khodwa v. State of Maharashtra
- Municipal Corporation of Delhi v. Sushila Devi
- Chairman Grid Corporation Of Orissa Ltd. (GRIDCO) & Ors. Vs Smt. Sukamani Das And Anr. Etc
- Blyth v. Birmingham Water Works Co.
- Lochgelly Iron & Coal Co. v. Mc Mullan
- Stansbele vs Troman (1948)
- Palsgraf vs Long Island Railroad Co(1928)
- Grant v. Australian Knitting Mills Ltd.
- Joseph vs Dr. George Moonjely(1994)
- Donoghue v. Stevenson (1932)
- K.N. Raveendranadhan vs The Kerala State Electricity Board
- Bir Singh And Others vs State Of Haryana on 3 May, 2011
- State vs. Deepak Kumar @ Deepak Kr. Saha on 12 August, 2014
- Shamim Khan vs State (Govt. Of Nct Of Delhi) on 2 November, 2015
- Shri. Creamson War vs. Union Of India & Ors. on 16 December, 2020
- Duraisamy vs The Executive Engineer on 8 June, 2012
- Shri Kehar Singh vs Govt. Of Nct Of Delhi & Anr on 25 August, 2021
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | v
- S.Ruckmani vs Tamil Nadu Electricity Board ... on 28 January, 2016
- K.K. Mehta & Anr. vs Delhi Vidyut Board And Anr. on 20 September, 2013
- Saria Sahu And Others vs State Of Orissa And Others on 11 December, 2000
- Shanti Mukand Hospital vs Ms. Rinchu And Ors. on 7 December, 2007
- Joginder Singh vs In This Case on 24 March, 2011
- The K.S.E.Board vs Kurian Thomas on 6 October, 2009
- Raman vs Uttar Haryana Bijli Vitran Nigam ... on 17 December, 2014
- In The High Court Of Judicature At ... vs The Secretary To Government on 14 February, 2014
- Executive Engineer Electricity ... vs Chairman Permanent Lok Adalat And ... on 17 September, 2015
- Jyoti Singh vs The State Of Bihar on 18 February, 2016
- Pushpa vs The Superintending Engineer on 21 April, 2009
- Naval Kumar Alias Rohit Kumar vs State Of H.P. & Ors on 9 January, 201 5
- The Commissioner vs The State Of Tamil Nadu on 17 November, 2016
- Padmeswar Konch vs Assam Power Distribution Company ... on 3 February, 2021
- State vs. Jitender Etc. on 6 February, 2013
- State vs. 1) Hukum Chand S/O Durga Ram, R/O ... on 20 December, 2011
- The Station Manager, Matangini ... vs Smt. Sabita Mondal, Wife Of Late ... on
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | vii
- Electricity Act,2003 & Regulations
- A Functional Legal Design for Reliable Electricity Supply Book by Hamilcar Pieter Anton Knops
- Commercial's Central Electricity Authority Regulations Bare Act.
- • Delhi Law House's Commentary on The Electricity Laws of India by S. K.
- • The Tort Law of India-Ratanlal & Dhirajlal
V. LIST OF ONLINE DATABASES
SL. NO. ONLINE DATABASES
- Indian Kanoon (indiankanoon.org)
- Live Law (www.livelaw.in)
- Casemine (www.casemine.com)
- Manupatra (www.manupatra.com)
- SCC Online (www.scconline.in)
- Legitquest (www.legitquest.com)
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | viii
STATEMENT OF JURISDICTION
THE HON’BLE HIGH COURT OF WINTERFELL EXERCISES JURISDICTION TO
HEAR AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 226 OF THE
CONSTITUTION OF KINGS LANDING, 1950.^1 THE PROVISIONS UNDER WHICH
THE PETITIONER OF THE FIRST CASE HAS APPROACHED THIS
HONOURABLE COURT IS READ HEREIN UNDER AS:
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.
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STATEMENT OF FACTS
PRELIMIARY FACTS
- “Kings Landing" one of the disaster-prone countries, widely recognized for its rich culture and heritage where "Winterfell" is one of the state located in the eastern part of it. In 2016 UNDRR praised the Chief Minister "Ned Stark" of "Winterfell" for his preparation during natural calamities. On 23rd June, 2021 a strongest tropical cyclone "Night King" hit eastern Kings Landing. Storm and powerful winds reaching 140km/hr blew off the roof of the houses, uprooted trees & damaged power lines, however "Winterfell" successfully prevented the loss of life because of successful strategies and preparation.
- IPCWDL is a joint venture between Iron Power and Government of Winterfell with the majority stake being held by Iron Power Company (51%). It is responsible for medium voltage power transmission and distribution across 13 districts of Winterfell and "Night Watch" is one of the districts among them.
- John Snow aged 42years was working as A.S.O. in Winterfell High Court, Citadel. He was husband of Danny aged 38 years a housewife and they had two children; one son namely Drogon aged 14 years & one girl child aged 7 years. MAIN FACTS
- On the fateful day of 20.07.21 John and Drogon while returning home through their regular pathway heavy rain started falling. Within a fraction of second a live power line wire directly fell on the head of John Snow and he fell down.
- His son Drogon while trying to pull him out also was electrocuted and fell down at the spot. Both of them in an unconscious state were taken to the nearest hospital. Upon reaching the hospital the doctor declared both of them to be already dead.
- Post-mortem report conducted by doctor, it was found that there was blackening and charring of the skin and cause of death of both was "Electrocution".
- Two days after their death Danny filed a complaint against the company – IPCWDL alleging that due to negligence and improper discharge on duty by the Company and its authorities her husband and son died. More so they have failed to adhere to the statutory duties cast upon them.
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PROCEDURAL FACTS
- Local Police registered the FIR u/s 304A of KPC against IPCWDL & 2 persons - Jemmie aged 58 years and Theon aged 55 years (working as Executive Engineer and Assistant Executive Engineer respectively in IPCWDL Company) as they were on duty on that fateful day of occurrence.
- The Inquest Reports conducted on the bodies of the deceased persons was prepared by the Inspector of Police which mentioned their cause of death to be Electrocution.
- Statement of witnesses were recorded by the Investigating Officer. One witness named Tyrion has made a statement u/s 161 of C.r.P.C before I.O that has seen that on 20th July 2021 at about 4 PM the deceased 1’s head was touched with a hanging wire and suddenly he became unconscious and fell on the ground after that his son started pulling him as a result of which he also fell down on the ground. There after some co-villagers took both of them to be a nearby hospital where doctors declared him already dead. Investigation was carried out and a charge sheet was filed against Jemmie and Theon u/s 304A and 336 of KPC. The learned J.M.F.C of Night Watch took cognizance under Section 304-A & 336 against Jemmie and Theon. EVENTS LEADING TO THE FILING OF WRIT PETITION BY DANNY
- On 26.08.2021 w/o deceased approached the District Consumer Dispute Redressal Commission claiming rupees 20 Lakhs as compensation against the Company. She withdrew the same with the liberty from the commission to file the case before the Civil Court.
- On 25.09.21 at 6.00 PM, while Danny and her old ailing in-laws were sitting in her house, suddenly electricity went off. After that for next 2 days electricity was not given to her house. She went to IPCWDL office and requested the H.O.D. to restore the electricity.
- However, he replied to her grievance by showing appropriate documents which showed her husband John has not paid electricity bill amounting Rs. 15,000/- for last 5 months thus electricity cannot be restored unless the areas are cleared.
- After that Danny told him that John's brother, Archer succumbed to COVID-19 after staying in super - specialty hospital for more than a month and hospital bill was borne by John which finished his savings. Then she prayed for mutual settlement and assured to pay rest amount through instalments and requested for reconnection of electricity. Although the official gave consent to the proposal, however IPCWDL did not restore the connection.
MEMORANDUM ON BEHALF OF PETITIONER OF THE FIRST CASE AND RESPONDENT OF THE SECOND CASE P a g e | xiii
STATEMENT OF ISSUES
I. WHETHER THERE IS CIVIL NEGLIGENCE ON THE PART OF THE
COMPANY OR NOT?
II. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?
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?
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SUMMARY OF ARGUMENTS
I. WHETHER THERE IS CIVIL NEGLIGENCE ON THE PART OF THE
COMPANY OR NOT?
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
- Consequential harm to the plaintiff** Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of care. The harm may fall into the following classes:- a.) Bodily harm b.) Harm to the reputation c.) Harm to property d.) Financial Loss e.) Mental Harm. When such damage is proved, the defendant is bound to compensate the plaintiff for the damages occurred. In Achutrao Haribhau Khodwa v. State of Maharashtra 13 ; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable. In the case of Joseph vs Dr. George Moonjely(1994)^14 The Kerela high court awarded damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24- year-old girl without following proper medical procedures and not even administering local anaesthesia. [2] THERE IS NEGLIGENCE ON THE PART OF THE RESPONDENT-COMPANY In the instant case the Respondent-Company had committed negligence for which the deceased 1 & 2 met with untimely death. The company had failed to exercise ordinary care and due diligence while exercising their duty and that satisfies all the essential conditions of negligence and thus establishes the same. (^13) (1996) 2 SCC 634 (^14) Joseph vs Dr. George Moonjely(1994)
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
