TEAMCODE-

BEFORE

THE HON’BLE SUPREME COURT OF ZINDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF THE ZINDIA, 1950

SPECIAL LEAVE PETITION

IN THE MATTER RAISES QUESTIONS OF PUBLIC IMPORTANCE REGARDING

CONTRACT WITH HOSPITAL

MR. OKURSEN ................................................................................. APPELLANT

v.
STATE OF TUJARAT ............................................................. …. RESPONDENT

MEMORIAL ON BEHALF OF THE APPLICANT

 TABLE OF CONTENTS

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

INDEX OF AUTHORITES ............................................................................................ 6

STATEMENT OF JURISDICTION ............................................................................... 11

STATEMENT OF FACTS ............................................................................................. 12

ISSUES RAISED ........................................................................................................... 13

SUMMARY OF ARGUMENTS .................................................................................... 14

ARGUMENTS ADVANCED......................................................................................... 16

1. THE SPECIAL LEAVE PETITION FILED BY THE APPELLANT UNDER

ARTICLE 136 OF THE CONSTITUTION OF ZINDIA IS MAINTAINABLE . 16
2. THE APPELLANT CAN SUE AGAINST THE HOSPITAL FOR THE BREACH OF
CONTRACT ........................................................................................................... 21
3. THE APPELLANT CAN SEEK DAMAGES FOR THE UNWANTED PREGNANCY,
MENTAL PAIN AND THE COST OF UPBRINGING THE DISABLED CHILD TILL
HER PUBERTY AND LATER HER MARRIAGE .............................................. 28

PRAYER ........................................................................................................................ 33

2
MEMORANDUM ON BEHALF OF THE APPELLANT
 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph

¶¶ Paragraphs

& And

A.I.R. All India Reporter

Anr Another

Bom Bombay

Cal Calcutta

Ed. Edition

HC High Court

SC Supreme Court

ILR Indian Law Reporter

No. Number

Ors Others

p Page

Sec. Section

3
MEMORANDUM ON BEHALF OF THE APPELLANT
 S.C.C. Supreme Court Cases

Supp Supplementary

S.C.R. Supreme Court Reporter

u/a- Under Article

Hon’ble Honorable

Viz Namely

v. Versus

Vol Volume

u/s Under Section

i.e. That is

Govt Government

Art. Article

I.LR Indian Law Review

U.O. I Union of India

P&H Punjab and Haryana

Pg Page

4
MEMORANDUM ON BEHALF OF THE APPELLANT
Crim.LR Criminal Law Reporter

Para Paragraph

U.S. A United States of America

SLP Special Leave Petition

5
MEMORANDUM ON BEHALF OF THE APPELLANT
 INDEX OF AUTHORITIES

A. CASES

1) Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520;
2) Associated Cement Companies Ltd v. P.N. Sharma (1965) 2 SCR 366;
3) Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors. (1976) 2 SCC 917;
4) Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297;
5) P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141;
6) Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584.
7) Nihal Singh & Ors v. State of Punjab, AIR 1965 SC 26.
8) Pritam Singh v. State, AIR 1950 SC 169
9) Villianur Iyarkkai Padukappu Maiyam v. Union of India ,(2009) 7 SCC 561
10) A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
11) Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
12) State of U.P v. Anil Singh AIR 1988 SC 1998
13) Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
14) C.C.E v. Standard Motor Products, AIR1989 SC 1298;
15) N Suriyakala v. A Mohan Doss & Ors. (2007) 9 SCC
16) Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036
17) Sumati Dayal v. CIT, (1995) 214 ITR 801 1950
18) Dayaram v. Sudhir Batham, (2012) 1 SCC 333 (357): (2011) 11 SCALE 448;
19) Re, Vinay Chandra Mishra, (1995) 2 SCC 621.
20) Kunhayammed v. State of Kerala, AIR 2000 SC
2587
21) Kharak Singh v. State of Uttar Pradesh, AIR
1963 SC 129
22) Romesh Thappar v. The State of Madras, AIR 1950 SC 124.
23) Juggankhan Jamshankhan v. State, Through Police Shujalpur, A.I.R 1964 MP 102.
24) Indian Medical Association v. V.P. Shantha and ors, 1995 6 S.C.C. 651.
25) Dr. P Malathi v. The States of Telegana and Andhra Pradesh Criminal petition no: 5056 of
2014
26) Moni v. State of Kerala, S.A. No. 832 of 2000 (G)

6
MEMORANDUM ON BEHALF OF THE APPELLANT
27) Dr. Sursh Gupta v. Govt. of N.C.T of Delhi, A.I.R 2004 S.C. 678.
28) Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582,586.
29) Spring Meadows Hospital v. Harjot Ahluwalia, A.I.R. 1998 S.C. 1801.
30) Soni Hospital v. Alum Biyer, A.I.R. 2011, Mad. 208 at 214.
31) Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128
32) A.S.Mittal v. State of U.P., AIR 1989 SC 1570,
33) Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322
34) Indian Medical Association vs. V.P. Shanta and Ors., III (1995) CPJ 1 (SC),
35) Fortis Escorts Hospital v Smt. Meenu Jain. FA: 747/12 - 14/5/13 Raj
36) Heirs of A. Shah v Bombay Hosp. 1992 (II) CPR 154
37) State of Haryana v Smt. Santra. I (2000) CPJ 53 (SC),
38) Dr.Laxman Joshi v Dr.Godbole. AIR (1989) SC 128.
39) Bolam v Friern Hospital. (1957) 2 AllER 118
40) Rukmani vs State Of Tamilnadu, WP (MD) No. 14226 of 2015
41) REES Vs. NHS TRUST reported in (2002) 2 All ER 177.
42) Tamil Nadu State Government vs Deivanai, SA No. 139 of 2017
43) State of Punjab vs Shiv Ram and others [(2005) 7 SCC 1 : AIR 2005 SC 3280],
44) Keith Allenby vs H, reported in (2013) 2 SCC 1
45) State of Haryana and Ors v. Smt. Santra, I (2000) CPJ 53 (SC)
46) Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118,
47) Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC 39

B. STATUTES

1) THE INDIAN CONSTITUTION, 1950

2) THE INDIAN PENAL CODE, 1860

3) CODE OF CRIMINAL PROCEDUE, 1898

4) INDIAN MEDICAL COUNCIL ACT, 1956

C. ARTICLES AND REPORTS

1. Gargi, Law on Medical Negligence in India

(http://www.latestlaws.com)

7
MEMORANDUM ON BEHALF OF THE APPELLANT
2. Sylvine, Medical Negligence and law in India- an analysis
(http://www.blogipleaders.in)

3. Amit Agrawal, Medical Negligence: Indian Legal Perspective

(http://www.ncbi.nlm.nih.gov)

4. Subhodh Asthana, Medical Negligence in India

(http://www.blogipleaders.in)

5. Aakarsh Shah, Medical Negligence

(http://www.lawctopus.com)

6. David Goguen, Medical Negligence and law

(http://www.allaw.com)

7. Priya Adlakha and Nihit Nagpal, Medical Negligence India

(http://www.lexology.com)
8. Anush Gosh, Types of Medical Negligence
(http://www.lawfirms.com)

D. BOOKS

1. Mahendra Pal Singh, M.N. Shukla’s Constitution of India, EBC Publication,13th

edition,2017

2. Dr Mrs. Mamta Rao, Constitutional law, Eastern Book Company, Lucknow, 4 th Ed., 2013

3. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd edition, LexisNexis, 2010

4. M P Jain, M P JAIN Indian Constitutional law, Lexis Nexis, 8th Ed. 2010

5. P M Bakshi, The Constitution of India, Allahabad Law Agency, 3rd edition,2007

6. D.D. Basu, D.D. Basu’s Commentary on ‘the Constitution of India’, vol 1,2,3,7, Lexis Nexis,

8th ed. 2009.

7. H.M. Seervai, Constitutional Law of India, vol.1, Universal Book Traders, vol 3,4 thed.2002.

8. V.N. Shukla’s, Constitution of India, 11th ed. Eastern Book Company

8
MEMORANDUM ON BEHALF OF THE APPELLANT
9. T.K. Tope’s, Constitutional Law of India, 3rd ed, Eastern Book Company

10. Annop K Kaushal, Medical Negligence and Legal remedies, Universal law publishers, 4 th
edition, 2008.
11. Shweta Thakur, Vikram Singh Jaswal, Medical Negligence in India, Eastern Book Company,
4th edition, 2009.
12. Tapas Kumar Koley, Medical Negligence and the law in India, Oxford, 3 rd edition
13. Dr, Puteri Nemie Jahin Kassim, Law and ethics relating to medical profession, International
law book services, 2nd edition, 2004
14. B. Sandeepa Bhat, Reflections on Medical law and ethics in India, Eastern law house, 2nd
edition, 2000
15. Michael Boylan, A practical guide to medical negligence litigation, 4th edition, 2006

E. LEXICONS

1. Henry Campbell Black, Black’s Law Dictionary, (9th Ed. 2010)

2. RamanathaIyer, Advanced Law Lexicon, 2391(3rd Ed.2005)

3. The Oxford Dictionary, 2nd Ed.p.433)

4. Collina Cobuild English Language Dictionary

F. DATABASES AND WEBSITES

1. http://www.latestlaws.com

2. http:// www.legalserviceindia.com

3. http://www.westlawindia.com

4. http://www.vakilno1.com

5. http://www.manupatra.com

6. http://www.heionline.com

7. http://www.S.C.C.online.com

8. http://www.lexisnexis.com/in/legal

9. http://www.allaw.com

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MEMORANDUM ON BEHALF OF THE APPELLANT
10. http://www.lexology.com

11. http://www.lawfirms.com

12. http://www.scribd.com

13. http://www.indiankoon.org

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MEMORANDUM ON BEHALF OF THE APPELLANT
 STATEMENT OF JURISDICTION

THE CLAIMANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF ZINDIA, THE MEMORANDUM FILED BY APPELLANT
UNDER ARTICLE 136 (SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF
ZINDIA, 19501.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

1
Art 136, Constitution of Zindia
(1) Notwithstanding anything in this Chapter, 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;
Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed Forces.

11
MEMORANDUM ON BEHALF OF THE APPELLANT
 SUMMARY OF FACTS

In 2012 the Government of Zindia launched a National Population Policy, with the purpose of
reducing the birth rate to control the population explosion which was becoming a serious menace
as it was putting a lot of pressure on the existing resources. Under the Policy one of the measures
taken by the Government was to designate a government hospital in each district for encouraging
and promoting the people to undergo vasectomy and tubectomy. In the city of Jurat in State of
Tujarat, Spice Galore Hospital was designated for the said purpose. Mr. OkurSen, a diamond
merchant, had a family comprising of his wife, Mehant and one son. He was not interested in
having another child. In pursuance of that, Mehant agreed to tubectomy operation in the Spice
Galore Hospital. On 08th February 2013, Mehant underwent sterilisation. The couple entered
into a contract with the hospital in which few terms were as follows- • That 100 % success was
assured in the sterilization operation. • That the hospital would be liable for damages for any
injury caused to the mother during the operation. Soon the couple discovered that Mehant has
become pregnant. She later gave birth to a disabled girl child on 20th January 2014. On 03rd
February 2014, Mr. OkurSen filed a civil suit in the District Court seeking damages for the
unwanted pregnancy, mental pain and the cost of upbringing the disabled child till her puberty
and later her marriage. Mr. Sen also sued the hospital for the breach of contract on the ground
that the hospital had ensured a cent percent success. The lower court rejected his claims and
ruled in the favour of the hospital. On appeal the High Court of Tujarat upheld the decision of
the lower court. Aggrieved by the decision of the High Court, the claimant approached the
Supreme Court under Article 136 of the Constitution of Zindia. A 3- Judge bench of the
Supreme Court granted leave to appeal and initially heard the matter. In the course of the hearing
it was felt that the matter raises questions of public importance and therefore it would be
appropriate that the matters be heard by a 5 Judge Bench. Accordingly, all the matters are now
posted for hearing before a 5 Judge Bench on September 07, 2014.

12
MEMORANDUM ON BEHALF OF THE APPELLANT
 ISSUES RAISED

ISSUE 1

Whether the Special Leave Petition filed by the Appellant under Article 136 of the

Constitution of Zindia is maintainable?

ISSUE 2

Whether the Appellant can sue against the Hospital for the breach of contract?

ISSUE 3

Whether the Appellant can seek damages for the unwanted pregnancy, mental pain and

the cost of upbringing the disabled child till her puberty and later her marriage?

13
MEMORANDUM ON BEHALF OF THE APPELLANT
 SUMMARY OF ARGUMENTS

1. THE SPECIAL LEAVE PETITION FILED BY THE APPELLANT UNDER ARTICLE 136 OF

THE CONSTITUTION OF ZINDIA IS MAINTAINABLE

It is humbly submitted before this Hon’ble Court by the Counsel on behalf of the Appellant that
the present Special Leave Petition (hereinafter referred to as “SLP”) is maintainable under
Article 136 of the Constitution of Zindia. Article 136 empowers the Supreme Court (hereinafter
referred to as “SC”) to grant in discretion Special leave to Appeal from any judgement, decree,
determination, sentence or order in any cause or matter passed or made by any court or tribunal
in the territory of India. In the present case there exists special circumstances that warrant the
attention of this Hon’ble Court.

2. THE APPELLANT CAN SUE AGAINST THE HOSPITAL FOR THE BREACH OF

CONTRACT

It is humbly submitted by the Counsel for the Appellant that the Appellant can sue against the
Hospital for breach of contract. On 03rd February 2014, Mr. OkurSen filed a civil suit in the
District Court seeking damages for the unwanted pregnancy, mental pain and the cost of
upbringing the disabled child till her puberty and later her marriage. Mr. Sen also sued the
hospital for the breach of contract on the ground that the hospital had ensured a cent percent
success. The lower court rejected his claims and ruled in the favour of the hospital.

3. THE APPELLANT CAN SEEK DAMAGES FOR THE UNWANTED PREGNANCY,

MENTAL PAIN AND THE COST OF UPBRINGING THE DISABLED CHILD TILL HER

PUBERTY AND LATER HER MARRIAGE.

It was contended by the Counsel for the Appellant side that the appellant can seek damages for
the unwanted pregnancy, mental pain and the cost of upbringing the disabled child till her
puberty and later her marriage. It was held in the case of Rukmani vs State Of Tamilnadu, The
medical ethics require certain duties to be performed by the medical practitioners with
reasonable degree of care and skill, failing which, such negligence of the medical practitioners

14
MEMORANDUM ON BEHALF OF THE APPELLANT
working in the Government Hospitals vicariously gets shifted on the employer State. Every
Doctor who enters into the medical profession has a duty to act with a reasonable degree of care
and skill. This is what is known as "implied undertaking" by a member of the medical profession
that he would use a fair, reasonable and competent degree of skill.

15
MEMORANDUM ON BEHALF OF THE APPELLANT
 ARGUMENTS ADVANCED

1. THE SPECIAL LEAVE PETITION FILED BY THE APPELLANT UNDER

ARTICLE 136 OF THE CONSTITUTION OF ZINDIA IS MAINTAINABLE.

1) It is humbly submitted before this Hon’ble Court by the Counsel on behalf of the Appellant
that the present Special Leave Petition (hereinafter referred to as “SLP”) is maintainable
under Article 136 of the Constitution of Zindia. Article 136 empowers the Supreme Court
(hereinafter referred to as “SC”) to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India2. In the present case there exists special
circumstances that warrant the attention of this Hon’ble Court.

1.1 THAT THE WIDE AND DISCRETIONARY POWERS UNDER ARTICLE 136
MAKES THIS SLP MAINTAINABLE.

2) It is humbly submitted that the SLP against the judgment of High Court is maintainable
under Article 136 of the Constitution of India.
3) It is humbly submitted that powers under Article 136 can be exercised against any kind of
judgement or order which is causing injustice to any party, and to serve the need, the power
under Article 136 is unfettered3. The only limitation in jurisdiction of this court is its own
decision4.
4) It is pertinent to note under Article 136 the court has the discretion to hear “in any cause or
matter”.5 Thereby giving the court the jurisdiction to entertain the present appeal.

2
Art. 136, Constitution of India, 1950
3
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520; Associated Cement Companies Ltd
v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors. (1976) 2
SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297; P.S.R. Sadhanantham v.
Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4
SCC 584.
4
Nihal Singh & Ors v. State of Punjab, AIR 1965 SC 26.
5
Pritam Singh v. State, AIR 1950 SC 169
16
MEMORANDUM ON BEHALF OF THE APPELLANT
1.1.1 ARGUENDO, IF ASSUMED THE PETITION IS NOT MAINTAINABLE, THIS
HON’BLE COURT CAN STILL HEAR THE MATTER AS POWERS OF THE
SC ARE PLENARY.

5) It is further humbly submitted that if assumed that the present appeal is not maintainable,
considering the wide powers of the Hon’ble Court may extend to a situation where although
the appeals are found not to be maintainable, yet, the SC may decide on the merit of the
appeals.6 Such powers of this court have been held to be plenary, limitless 7 , adjunctive and
unassailable8.

1.2 THAT THERE EXISTS EXCEPTIONAL AND SPECIAL CIRCUMSTANCES.

6) As was held by SC that doesn’t grant SLP in criminal matters liberally 9 but due to presence
of exceptional and special circumstances in the present appeal is sufficient gravity to
warrant an appeal.
7) It is humbly submitted that the administration of justice was hampered therefore making it
integral for the SC to deliberate upon the matter.

1.3 THAT THE JURISDICTION OF THE SUPREME COURT UNDER ARTICLE

136 TO BE INVOKED AS THERE IS A SUBSTANTIAL QUESTION OF LAW
OF GENERAL PUBLIC IMPORTANCE.

8) The jurisdiction conferred under Art. 136 on the SC is corrective one and not a restrictive
one.10 . In the present case, the issue involves matter of Substantial Question of Law and
General Public Importance.

6
Villianur Iyarkkai Padukappu Maiyam v. Union of India ,(2009) 7 SCC 561
7
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
8
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
9
State of U.P v. Anil Singh AIR 1988 SC 1998
17
MEMORANDUM ON BEHALF OF THE APPELLANT
9) It is humbly submitted that questions raised in the present matter involves substantial
question of law of general public importance therefore entitled to be maintainable. It has
been held by this Hon’ble Court time and again that when a substantial question of law of
general public importance arises, its jurisdiction can always be invoked. Article 136 is the
residuary power of SC to do justice where the court is satisfied that there is injustice.1112
10) Substantial question also arises as there are so legal reasons or conceptual motives for
denying personhood to an AI robot13, thereby submitting that the law should be able to grant
personhood on grounds of evidence rather than superstition making MAK T- 9000 worthy
of personhood and all the rights and privileges which come with it.
11) AI will prevail in the days to come and there will be growth and development beyond our
imagination in this field building the need for the SC to intervene in such cases, since
whether or not a case involves a substantial question of law depends on facts and
14
circumstances , it is submitted that questions on whether an AI robot has legal remedies
under the Constitution of Wadia and the peripheral aspects involving this are Substantial
Question of Law of General Public Importance.
12) That, the Counsel for the Appellants would humbly request this Hon’ble Supreme Court to
indulge in the erroneous decision of the Hon’ble HC and hear this matter.

1.3.1 THAT THE RELIEFS COULD BE GRANTED BY THIS HON’BLE COURT BY

INVOKING ARTICLE 142 OF THE CONSTITUTION OF WADIA.

13) It is submitted that for the present matter the SC may even invoke its power under Article
14215. Thus, Hon’ble Court is directed to grant orders that could remedy the injustice that is
being caused to the Appellants in the present matter which will be subsequently discussed in
the coming issues.

14) That, under Article. 142 of the Constitution of Wadia this Hon’ble Court is vested with
extraordinary jurisdiction necessary to do complete justice. Also, contains no limitation

10
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
11
C.C.E v. Standard Motor Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss & Ors. (2007) 9 SCC
12
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036
13
Solum, L.B. Legal personhood for artificial intelligence. N. C. Law Rev. 1992, 70, 1231–1287
14
Sumati Dayal v. CIT, (1995) 214 ITR 801
15
Art. 142, Constitution of India, 1950
18
MEMORANDUM ON BEHALF OF THE APPELLANT
 regarding the causes or the circumstances in which the power can be exercised nor does it
lay down any condition to be satisfied before such power is exercised. 16

1.4 THAT THE GROUNDS TO REJECT THE PRESENT SLP ARE NOT MET.

15) It is humbly submitted that the grounds to reject the present petition are not met. Relying on
the case of Kunhayammed and Others v. State of Kerala and Another17 , it was held that a
petition seeking grant of special leave to appeal may be rejected for several reasons, some
of which are: If the Petition is barred by time, presented in a defective manner or the
conduct of the petitioner disentitling him to any indulgence by the court. In the present case
none of these apply to the Appellant.
16) It is submitted before this Hon’ble Court that on a prima-facie level there are no grounds for
the appeal by the Appellant to be rejected. In the instant case, on a prima- facie level that
the Appellants have no grounds on which the instant petition for special leave could be
rejected.

1.5 THAT IT IS THE DUTY OF THIS HON’BLE COURT TO ENSURE

INJUSTICE IS NOT PERPETUATED BY THE DECISION OF THE HON’BLE
HIGH COURT.

17) It is humbly submitted that is the duty of this Hon’ble court to take this matter as it was
decided erroneously and if no intervention is made by the SC it would result in gross
injustice and that, miscarriage of justice which has already occurred can be set right.
18) It is pertinent to note that in cases like Kharak Singh v. State of Uttar Pradesh18 and
Romesh Thappar v. State of Madras19, the court held that cases particularly true in of grave
public importance, a mere technical ground cannot be the reason to deny its maintainability.

16
Dayaram v. Sudhir Batham, (2012) 1 SCC 333 (357): (2011) 11 SCALE 448; Re, Vinay Chandra Mishra, (1995)
2 SCC 621.
17
Kunhayammed v. State of Kerala, AIR 2000 SC 2587
18
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129
19
Romesh Thappar v. The State of Madras, AIR 1950 SC 124.
19
MEMORANDUM ON BEHALF OF THE APPELLANT
19) It is further humbly submitted that the present case sheds light on conflicts related to
Sterilization. On 03rd February 2014, Mr. OkurSen filed a civil suit in the District Court
seeking damages for the unwanted pregnancy, mental pain and the cost of upbringing the
disabled child till her puberty and later her marriage. Mr. Sen also sued the hospital for
the breach of contract on the ground that the hospital had ensured a cent percent success.
The lower court rejected his claims and ruled in the favour of the hospital. On appeal the
High Court of Tujarat upheld the decision of the lower court. Aggrieved by the decision
of the High Court, the claimant approached the Supreme Court under Article 136 of the
Constitution of Zindia. A 3- Judge bench of the Supreme Court granted leave to appeal
and initially heard the matter. In the course of the hearing it was felt that the matter
raises questions of public importance and therefore it would be appropriate that the
matters be heard by a 5 Judge Bench20.
20) In light of the aforesaid reasons, it is humbly submitted that the appeal is maintainable
before the Hon’ble Supreme Court.

20
Moot Proposition page. 2
 2. THE APPELLANT CAN SUE AGAINST THE HOSPITAL FOR THE

BREACH OF CONTRACT.

21) It is humbly submitted by the Counsel for the Appellant that the Appellant can sue against
the Hospital for breach of contract. On 03rd February 2014, Mr. OkurSen filed a civil suit
in the District Court seeking damages for the unwanted pregnancy, mental pain and the
cost of upbringing the disabled child till her puberty and later her marriage. Mr. Sen also
sued the hospital for the breach of contract on the ground that the hospital had ensured a
cent percent success. The lower court rejected his claims and ruled in the favour of the
hospital.
22) In the case of Juggankhan Jamshankhan v. State, Through Police Shujalpur21, the
patient was given the same medicine as he had given to another patient. So, here the
treatment by doctors or by quacks leads to the death of the patient. Medical malpractice
occurs when a health care professional of provider neglects to provide appropriate
treatment, omits to take an appropriate action, or gives substandard treatment that causes
harm, injury, or death to a patient. The malpractice or negligence normally involves a
medical error. This could be in diagnosis, medication dosage, health management,
treatment, or aftercare22.
23) In the case of Dr. P Malathi v. The States of Telegana and Andhra Pradesh 23, it was
held that coming to section 304- A I.P.C a plain reading of the above provisions indicates
that death must be due to rash or negligent act of the accused persons. So, cause of death
is the primary point and negligent and rash act is the next point. To attract offence of
criminal medical negligence punishable under section 304- A IPC, the essential
ingredients are: Death of a person, Death was caused by the accused during any rash or
negligent act, Act does not amount to culpable homicide.
2.1 THERE IS A GROSS NEGLIGENCE FROM THE PART OF RESPONDENT

21
Juggankhan Jamshankhan v. State, Through Police Shujalpur, A.I.R 1964 MP 102.
22
Indian Medical Association v. V.P. Shantha and ors, 1995 6 S.C.C. 651.
23
Dr. P Malathi v. The States of Telegana and Andhra Pradesh Criminal petition no: 5056 of 2014

21
MEMORIAL ON BEHALF OF APPELLANT
24) As per Moni v. State of Kerala24, “In the case of medical man, negligence means failure
to act by the standards of reasonably competent medical men at the time”.
25) Medical negligence also known as medical malpractice is improper, unskilled, or
negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health
care professional25.

26) Further In Dr. Suresh Gupta’s Case26, the court held that the legal position was quite
clear and well settled that whenever a patient died due to medical negligence, the doctor
was liable in civil law for paying the compensation. Only when the negligence was so
gross and his act was as reckless as to endanger the life of the patient, criminal law for
offence under section 304A of Indian Penal Code, 1860 will apply. Indian Penal Code
1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of
medical malpractice in India.
27) In the case of Bolam v. Friern Hospital Management Committee27, the test for
determining medical negligence is laid down. For negligence to amount to an offence, the
element of mens rea must be shown to exist. For an act to amount to criminal negligence,
the degree of negligence should be much higher i.e., gross or of a very high degree.

28) It is well accepted that in the cases of gross medical negligence the principle of res ipso
loquitur is to be applied28. The principle of res ipso loquitur is said to be essentially an
evidential principle and the said principle is intended to assist the claimant29. Res Ipso
loquitur means things speaks for itself; while deciding the liability of the doctor it has to
be well established that the negligence pointed out should be a breach in due care which
an ordinary practitioner would have been able to keep.
29) Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be
negligent if he/she/it had exclusive control of whatever caused the injury even though
there is no specific evidence of an act of negligence, and without negligence the accident
would not have happened. So, in the present case, it is very sure that there was gross
negligence on the part of the appellant.

24
Moni v. State of Kerala, S.A. No. 832 of 2000 (G)
25
The law Dictionary
26
Dr. Sursh Gupta v. Govt. of N.C.T of Delhi, A.I.R 2004 S.C. 678.
27
Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582,586.
28
Spring Meadows Hospital v. Harjot Ahluwalia, A.I.R. 1998 S.C. 1801.
29
Soni Hospital v. Alum Biyer, A.I.R. 2011, Mad. 208 at 214.

22
MEMORIAL ON BEHALF OF APPELLANT
30) It is an undeniable fact that medical profession is a noble profession as it deals with
human life which is given the highest importance among anything present on earth. It is
the utmost responsibility of the medical practitioner to ensure their patients safety while
treating them. However it should also be noted that To Err Is Human it is natural for
human beings to make mistakes and doctors are no exception to it.

31) Not every time but in some crucial circumstances there is a possibility of making mistake.
It is important for doctors to perform their duty with expertise skill and caution when
there is failure in performing the duty it amounts to medical negligence. It is not good for
them to handle their patients without proper technical training and specialization.

2.2 GROSS MEDICAL NEGLIGENCE AND VIOALTION OF CONTRACT

32) In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr,30
31
and A.S.Mittal v. State of U.P, 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, (b) duty of care in deciding what treatment to
give, and (c) duty of care in the administration of that treatment. A breach of any of the
above duties may give a cause of action for negligence and the patient may on that basis
recover damages from his doctor. In the aforementioned case, the apex court interalia
observed that negligence has many manifestations – it may be active negligence,
collateral negligence, comparative negligence, concurrent negligence, continued
negligence, criminal negligence, gross negligence, hazardous negligence, active and
passive negligence, willful or reckless negligence, or negligence per se. Black's Law
Dictionary 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.”

30
Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128
31
A.S.Mittal v. State of U.P., AIR 1989 SC 1570,

23
MEMORIAL ON BEHALF OF APPELLANT
33) While deliberating on the absence of basic qualifications of a homeopathic doctor to
practice allopathy in Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 32232, the
Supreme Court held that a person who does not have knowledge of a particular system of
medicine but practices in that system is a quack. Where a person is guilty of negligence
per se, no further proof is needed.

34) In the case of the Indian Medical Association vs. V.P. Shanta and Ors., III (1995) CPJ
33
1 (SC), the Supreme Court finally decided on the issue of coverage of medical
profession within the ambit of the Consumer Protection Act, 1986 so that all ambiguity
on the subject was cleared. With this epoch making decision, doctors and hospitals
became aware of the fact that as long as they have paid patients, all patients are
consumers even if treatment is given free of charge. While the above mentioned apex
court decision recognizes that a small percentage of patients may not respond to
treatment, medical literature speaks of such failures despite all the proper care and proper
treatment given by doctors and hospitals. Failure of family planning operations is a
classic example. The apex court does not favor saddling medical men with ex
gratia awards. Similarly, a in a few landmark decisions of the National Commission
dealing with hospital death, the National Commission has recognized the possibility of
hospital death despite there being no negligence.

35) In the recent times the cases on medical negligence is being increased, whatever may be
the reason but the ultimate sufferers are the innocent public who consult doctors with a
firm belief of finding a cure to their health problems and it was found important to
establish laws on medical negligence to provide with a relief to claim damages occurred
to the patient and also punishments for the professionals negligent behaviour.

2.3 REMEDY UNDER CONSUMER PROTECTION ACT, 1986

36) A consumer is a buyer who buys a good for consumption not having an idea of resale it
also includes consumption of services. The consumer protection act was introduced in the
year 1986 for public benefit, provide speedy remedy to the public, to recognise their

32
Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322
33
Indian Medical Association vs. V.P. Shanta and Ors., III (1995) CPJ 1 (SC),

24
MEMORIAL ON BEHALF OF APPELLANT
 rights, providing low cost remedy, to get compensation without any complicated
proceedings.
37) When it comes to medical negligence it was decided in a land mark judgement In the case
34
Indian Medical Association vs. V.P. Santha-III (1995) CPJ 1(SC), service provided by
almost every doctor is covered under this act. After this judgement an aggrieved person
can claim damages for medical negligence against a doctor or a hospital.
38) The remedy under this act is an alternative in addition to that already available to the
aggrieved person by way of a civil suit. In the complaint/appeal/petition submitted under
the act, a consumer is required to pay a nominal fee.
39) The consumer forum consist of a 3-Tire structure of the National and state commission
and district forums In Indian Medical Association vs. V.P. Santha �III (1995) CPJ
1(SC)
As a result of this judgment, medical profession has been brought under the Section 2(1)
(o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals
under this Section.
35
40) Fortis Escorts Hospital v Smt. Meenu Jain. FA: 747/12 - 14/5/13 Raj held that The
contended that no money in excess to the maximum retail price was charged - hospital
does not allow the patients to purchase medicines from outside in order to ensure the
quality and genuineness of the medicines and for the welfare of the patients signed
general consent form. Also entitled to get from the hospital the information as to what
was the price of the drugs or injections and what was their batch number and expiry date
which were not furnished. direct the hospital not to repeat such unfair trade practice in
future as it is within jurisdiction under u/s 14 (1) (f) of CPA.
41) In the case of Heirs of A. Shah v Bombay Hosp. 1992 (II) CPR 15436, The complainant
approached Medical Councils but they replied that they had no statutory power and
authority to look into such case. It was observed that: we find that despite the frantic
efforts on the part of the complainant to approach the different authorities, no cognizance
of the complaint was taken by any medical organization, we are deeply grieved to note
the inaction on the part of these highest professional bodies meant for the observance of
the professional conduct of the practicing doctors and the hospitals.

34
Id.
35
Fortis Escorts Hospital v Smt. Meenu Jain. FA: 747/12 - 14/5/13 Raj
36
Heirs of A. Shah v Bombay Hosp. 1992 (II) CPR 154

25
MEMORIAL ON BEHALF OF APPELLANT
 37
42) In State of Haryana v Smt. Santra. I (2000) CPJ 53 (SC), court held that Negligence
has many manifestations - it may be active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence, criminal negligence, gross
negligence, hazardous negligence, active and passive negligence, will full or reckless
negligence or negligence per se. It is defined in Black's Law Dictionary as under:
Negligence per se: 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 a 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. It was also observed that where a person is guilty of negligence
per se, no further proof is needed as contended even in the case of Dr.Laxman Joshi v
Dr.Godbole. AIR (1989) SC 128.38
43) The concept of Bolam test arrived from the case Bolam Vs Friern Hospital
Management Committee. Medical negligence cases are briefly decided under the basis
of Bolam Test. The bolam test talks about the exercise of ordinary skill of an ordinary
competent man exercising that particular art. In simple words it means that the person
who procures the ordinary skill of performing the activity can perform such activity there
is no necessity to have an expert knowledge. The Bolam test usually favours the
professionals. In the Case Bolam v Friern Hospital. (1957) 2 AllER 11839.
44) Hence, in the instant case, there is a clear cut violation of the breach of contract. The
Appellant, Mehant underwent sterilisation. The couple entered into a contract with the
hospital in which few terms were as follows- • That 100 % success was assured in the
sterilization operation. • That the hospital would be liable for damages for any injury
caused to the mother during the operation. Soon the couple discovered that Mehant has
become pregnant. She later gave birth to a disabled girl child on 20th January 2014. On
03rd February 2014, Mr. OkurSen filed a civil suit in the District Court seeking damages
for the unwanted pregnancy, mental pain and the cost of upbringing the disabled child till
her puberty and later her marriage. Mr. Sen also sued the hospital for the breach of
contract on the ground that the hospital had ensured a cent percent success. The lower

37
State of Haryana v Smt. Santra. I (2000) CPJ 53 (SC),
38
Dr.Laxman Joshi v Dr.Godbole. AIR (1989) SC 128.
39
Bolam v Friern Hospital. (1957) 2 AllER 118

26
MEMORIAL ON BEHALF OF APPELLANT
court rejected his claims and ruled in the favour of the hospital. On appeal the High Court
of Tujarat upheld the decision of the lower court.

27
MEMORIAL ON BEHALF OF APPELLANT
 3. THE APPELLANT CAN SEEK DAMAGES FOR THE UNWANTED

PREGNANCY, MENTAL PAIN AND THE COST OF UPBRINGING THE

DISABLED CHILD TILL HER PUBERTY AND LATER HER MARRIAGE.

45) It was contended by the Counsel for the Appellant side that the appellant can seek
damages for the unwanted pregnancy, mental pain and the cost of upbringing the disabled
child till her puberty and later her marriage. It was held in the case of Rukmani vs State
40
Of Tamilnadu- "The medical ethics require certain duties to be performed by the
medical practitioners with reasonable degree of care and skill, failing which, such
negligence of the medical practitioners working in the Government Hospitals vicariously
gets shifted on the employer State. Every Doctor who enters into the medical profession
has a duty to act with a reasonable degree of care and skill. This is what is known as
"implied undertaking" by a member of the medical profession that he would use a fair,
reasonable and competent degree of skill.
46) The Government at the Centre as also at the State level is aware that India is the second
most populous country in the world and in order that it enters into an era of prosperity,
progress and complete self-dependence, it is necessary that the growth of population is
arrested. It is with this end in view that the family planning programme has been launched
by the Government. The implementation of the programme is directly in the hands of the
Government Officers, including Medical Officers involved in the family planning
programmes. The Medical Officers entrusted with the implementation of the family
planning programme cannot, by their negligent acts in not performing the complete
sterilisation operation, sabotage a scheme of national importance. The people of the
country who cooperate by offering themselves voluntarily for sterilisation reasonably
expect that after undergoing the operation they would be able to avoid further pregnancy
and consequent birth of an additional child.
3.1 CLAIMING DAMAGES FOR UNWANTED PREGNANCY
47) Therefore, in India where the population is increasing each second and family planning is
a national programme, the Doctor as also the State must be held responsible in damages if

40
Rukmani vs State Of Tamilnadu, WP (MD) No. 14226 of 2015

28
MEMORIAL ON BEHALF OF APPELLANT
 the sterilisation operation performed by him is a failure on account of his negligence,
which is directly responsible for another birth in the family, creating additional economic
burden on the person who had chosen to be operated upon for sterilisation. The vicarious
liability of the State for the negligence of its officers in performing the sterilisation
operation should be seen keeping in view the law settled by the Supreme Court."The
above view is also supported by the decision in REES Vs. NHS TRUST reported in
(2002) 2 All ER 177.41Tamil Nadu State Government vs Deivanai42, held that It is the
common case of the plaintiffs that they begotten two or three children and thereafter, they
underwent sterilization operation (Tubectomy) to avoid further pregnancy due to their
family circumstances.
48) All the plaintiffs were admitted at Mannargudi Government Hospital. The sterilization
operation (Tubectomy) was done in the case of the respondent in S.A.No.139 of 2017 on
08.07.1997. Similarly, the sterilization operation (Tubectomy) was done in the case of the
respondent in S.A.No.140 of 2017 on 19.12.1997. In the case of the respondent in
S.A.No.141 of 2017, she underwent sterilization operation (Tubectomy) on 20.01.2000.
However, to their dismay, the plaintiffs got pregnant subsequently within one year and
gave birth to a female child. 5.From the facts, it is seen that the respondent in S.A.No.139
of 2017 gave birth to a female child on 05.12.1999. In the case of the respondent in
S.A.No.140 of 2017, she gave birth to a female child on 23.07.2001 and in the case of the
respondent in S.A.No.141 of 2017, she gave birth to a female child on 15.02.2003.
Therefore, it is the common case of the https://www.mhc.tn.gov.in/judis S.A.Nos.139 to
141 of 2017 plaintiffs/respondents in each second appeal that they have already two or
three children and that they were living in a poor financial condition. Their decision to go
for sterilization operation (Tubectomy) was on account of their financial constraints.
49) It is their common case that the pregnancy was due to medical negligence and therefore,
each one claimed a sum of Rs.1,50,000/- as damages/compensation. It is pertinent to
mention that the surgery was performed by a Lady Doctor, who is the the fourth
defendant in all the three suits. 6.The appellants/defendants in their written statement filed
before the Trial Court had stated that the plaintiffs in the respective suits had not followed
the advise given by the fourth defendant and that the pregnancy was not due to surgical
failure or negligence or carelessness on the part of the fourth defendant. It is also stated in
the written statement that the plaintiffs have not taken care to follow the medical advise

41
REES Vs. NHS TRUST reported in (2002) 2 All ER 177.
42
Tamil Nadu State Government vs Deivanai, SA No. 139 of 2017

29
MEMORIAL ON BEHALF OF APPELLANT
 and therefore, the suits are liable to be dismissed on the ground that there was no
negligence on the part of the fourth defendant, who have conducted the operation. It is the
specific stand of the Government that the plaintiffs/respondents have an opportunity to
abort the child. However, they refused to do it, even though it was informed to them that
such abortion will be done at free of cost.
3.2 CLAIMING COMPENSATION FOR BREACH OF CONTRACT
50) A Three Member Bench of Honourable Supreme Court in the case of State of Punjab vs
43
Shiv Ram and others [(2005) 7 SCC 1 : AIR 2005 SC 3280], has decided a similar
case, where, a suit for recovery of damages to the tune of Rs.3,00,000/- was filed by the
husband and wife on account of a female child having been born to them in spite of the
fact that the wife having been undergone a Tubectomy operation performed by a lady
surgeon, who is also impleaded as a defendant in the suit. 16.In the case of Keith Allenby
vs H, reported in (2013) 2 SCC 144, the Honourable Supreme Court held as follows: "53.
If, however, the purpose of the medical treatment is to prevent pregnancy from occurring
and by reason of medical error that purpose is not achieved, it does not seem to us that,
just because the pregnancy 6 then occurs as a biological process, there should be no cover
for the consequences. The development of the foetus following impregnation occurs
because of the medical error, just as in the case of the undetected tumour. It causes
significant physical changes to the woman’s anatomy, which of course occur naturally but
still cause discomfort and, at least ultimately, pain and suffering.
51) In this context, it may be recalled that in the case of the State of Haryana and Ors v. Smt.
Santra, I (2000) CPJ 53 (SC) 45(by S. Saghir Ahmad and D.P.Wadhwa, JJ.), the Supreme
Court in a Special Leave Petition upheld the claim for compensation where incomplete
sterilization (family planning operation) was held to be defective in service. Smt Santra
underwent a family planning operation related only to the right fallopian tube and the left
fallopian tube was not touched, which indicates that complete sterilization operation was
not performed. A poor laborer woman, who already had many children and had opted for
sterilization, became pregnant and ultimately gave birth to a female child in spite of a
sterilization operation that had obviously failed.
52) Claim for damages was based on the principle that if a person has committed civil wrong,
he must pay compensation by way of damages to the person wronged. The apex court

43
State of Punjab vs Shiv Ram and others [(2005) 7 SCC 1 : AIR 2005 SC 3280],
44
Keith Allenby vs H, reported in (2013) 2 SCC 1
45
State of Haryana and Ors v. Smt. Santra, I (2000) CPJ 53 (SC)

30
MEMORIAL ON BEHALF OF APPELLANT
 held: “Maintenance” would obviously include provision for food, clothing, residence,
education of the children and medical attendance or treatment. The obligation to maintain
besides being statutory in nature is also personal in the sense that it arises from the very
existence of the relationship between a parent and the child. Claim for damages, on the
contrary, is based on the principle that if a person has committed civil wrong, he must pay
compensation by way of damages to the person wronged.
53) While elaborating on medical negligence, the apex court observed as follows (abridged):
Negligence is a ‘tort’. Every doctor who enters into the medical profession has a duty to
act with a reasonable degree of care and skill. This is what is known as ‘implied
undertaking’ by a member of the medical profession that he would use a fair, reasonable
and competent degree of skill. In the case of Bolam V. Friern Hospital Management
Committee, (1957) 2 All ER 118, 46McNair, J. summed up the law as the following:
54) “The test is the standard of the ordinary skilled man exercising and professing to have
that special skill. A man need not possess the highest expert skill: It is well established
law that it is sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art. In the case of a medical man, negligence means failure to
act in accordance with the standards of reasonably competent medical men at the time.
There may be one or more perfectly proper standards, and if he confirms with one of
these proper standards, then he is not negligent.”
55) In the case of Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC 3947,
a compensation of Rs. 5 lacs was awarded because of mental anguish caused to the
parents of a child who became totally incapacitated for life in addition to a compensation
of Rs. 12 lacs approx. awarded to the child. While the amount of Rs. 12 lacs was to be
paid by insurer, the balance amount was to be paid by the hospital. Though the insurance
company took a stand since the nurse who administered the adult dose of inj. Lariago to
the child was not qualified, the apex court did not go into this issue while adjudicating
negligence related proceeding. Therefore, it is important to keep in mind that doctors and
hospitals should not only obtain a Professional Indemnity Insurance Policy, but also take
care that nurses and other hospitals staff engaged by it are qualified.
56) Hence, in the instant case, there is a clear cut violation of breach of contract, which leads
to the medical negligence on the part of the hospital as the sterilization operation was not

46
Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118,
47
Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC 39

31
MEMORIAL ON BEHALF OF APPELLANT
successful and hence, the hospital would be liable for damages for any injury caused to
the mother during the operation.

32
MEMORIAL ON BEHALF OF APPELLANT
 PRAYER

In the lights of issues raised, arguments advanced and authorities cited, it is most

humbly submitted that the court may please adjudge and declare that:

1. The Special Leave Petition filed by the Appellant under Article 136 of the

Constitution of Zindia is maintainable

2. The Appellant can sue against the Hospital for the breach of contract

3. The Appellant can seek damages for the unwanted pregnancy, mental pain and the

cost of upbringing the disabled child till her puberty and later her marriage.

And the court may pass any other order, writ or directions that deems fit in the interest

of justice, equity and good faith.

Respectfully submitted on behalf of the Appellant

SD/-

Place:

Date:

33
MEMORIAL ON BEHALF OF APPELLANT