memo for respondent

8/11/2019 memo for respondent

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UNIVERSITY INSTITUTE OF LEGAL

STUDIES, 9th SEMESTER

ACADEMIC MOOT COURT.

IN THE HONOURABLE DISTRICT COURT OF MANALI, HIMACHAL

PRADESH

Civil Suit No. of 2014

IN THE MATTER OF

X.Y.Z.

. PLANTIFF/CLAIMANT

VERSUS

STATE OF HIMACHAL PRADESH & OTHERS

DEFENDANT

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT NO.1

MOST RESPECTFULLY SUBMITTEDCOUNSEL FOR DEFENDANT NO.1SD/-


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TABLE OF CONTENTS.

1. INDEX OF AUTHORITIES Pg.1

Statutes

Books Websites

Cases

2. TABLE OF ABBREVIATIONS..Pg.2

3. STATEMENT OF JURISDICTION..Pg.3

4. STATEMENT OF FACTS.Pg.4

5. IDENTIFICATION OF ISSUES..Pg.5

6. SUMMARY OF PLEADINGS...Pg.6

7. BODY OF PLEADINGS Pg.8

8. PRAYER FOR RELIEFPg.17


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INDEX OF AUTHORITIES.

1. STATUTES

Civil liability act 2002 (New south Wales Legislation)

Central Water commission act Occupiers Liability act

Bhakra Beas Board Management act2. BOOKS

Iyers, Ramaswamy, The Law of Torts, Ed 9th

, Lexis Nexis Butterworts

Ratanlal and Dhirajlal, The Law of Torts , Wadhwa & Co, New Delhi

R.K. Bangia, The Law of Torts3. WEBSITES

http://webpage.pace.edu/pacelegalassistance/negligence.htm

http://archive.org/stream/jstor-1321649/1321649_djvu.txt

www.duhaime.org Legal Dictionary

http://www.inbrief.co.uk/land-law/occupiers-liability.htm www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/.../whealy1107.pdf

http://www.judis.nic.in

http://www.manupatra.com

http://www.findlaw.com4.CASES

Fitzgerald v. Conn. River R. R. 155 Mass. 156 (1891)

Weld-Blundells case [1920] AC 956

Addie v Dumbreck [1929] AC 358

Khoo Ting Hong v Sim Guan Soon [1969-1971] SLR 55 at 56

Woodley v. Met. Dist. Ry. Co. 3 (1877) Consolidated Broken Hill Limited v Edwards[2002] QSC 394

Enright v Coolum Resort Pty Limited [2005] NSWCA 380

Prast v Town of Cottesloe [2000] WASCA 274

Greenland v. Chapplin(1850)5 Ex 243

Donoghue v Stevenson (1932) HL

Mahalaxmi v metro water supply board

Ms grewal & anth v Deep Chand Sood & othrs

Klaus mittelbachert v East India Hotel Ltd.

Duraisamy v The Executive Engineer.
http://archive.org/stream/jstor-1321649/1321649_djvu.txthttp://www.duhaime.org/LegalDictionary.aspxhttp://www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/.../whealy1107.pdfhttp://www.manupatra.com/http://www.findlaw.com/http://www.findlaw.com/http://www.manupatra.com/http://www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/.../whealy1107.pdfhttp://www.duhaime.org/LegalDictionary.aspxhttp://archive.org/stream/jstor-1321649/1321649_djvu.txt


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TABLE OF ABBREVATIONS.

1. A.I.R.All India Reporter.

2. ArtArticle

3. HCHigh court4. SCSupreme court

5. SCCSupreme Court Cases

6. P.Page

7. USUnited states of America

8. Vol.Volume

9. UOIunion of India

10.CPC- Code of Civil Procedure, 1908


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STATEMENT OF JURTISDICTION.

The counsel on behalf of the defendant submits to the jurisdiction of this District Court under Section 19

of Civil Procedure Code 1908.

Section: 19- Suits for compensation for wrongs to person or movables.Where a suit is for compensation for wrong done to the person or to movable property, if the wrong wasdone within the local limits of the jurisdiction of one Court and the defendant resides, or carries on

business, or personally works for gain, within the local limits of the jurisdiction of another Court, the

suit may be instituted at the option of the plaintiff in either of the said Courts.


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STATEMENT OF FACTS.

Main facts:

Fifty students of Hyderabad Engineering College, Hyderabad went for an educational trip to Himachal

Pradesh alongwith tour guides of company Holiday Planners and two lecturers of the college. The

students on the last day of the trip went to click pictures of river Beas. The water was suddenly released

from the dam and due to sudden rise of water within few minutes. 24 students alongwith one guide got

drowned

Aftermath:

Immediately search operation was started. Dead bodies of 24-students were recovered from the river. . A

case has been filed by the parents of Students to get compensation of 25 lacs for each student from the

Bhakhara Beas Board, the state of Himachal Pradesh, Hyderabad Engineering College, Hyderabad and

company Holiday Planners, according to them they have lost their children due to negligence of theState for not managing the river banks properly and putting warning signals at proper places, Bhakhara

Beas Board for sudden release of water in contravention with safety measures, tour planner for being

negligent in planning the tour and also management of the college for being irresponsible in taking care

of students.


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IDENTIFICATION OF ISSUES.

1. Whether plantiffs can claim compensation?

Or

Whether plantiffs are themselves negligent?

2. Whether the state government of Himachal Pradesh is negligent?

3. Whether the case filed by plantiff is bad for not giving notice under section 80 of

cpc?

4. Was there any contributory negligence on part of the college management & tour

planners?


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SUMMARY OF PLEADINGS.

Whether plantiffs can claim compensation?

OR

Whether plantiffs are themselves negligent?

"Negligence is the failure to bestow the care and skill which the situation demands."

In the present case the students are trespasser as they entered the land without any permission and acted

negligently. Therefore, the Government does not owe any duty to take care towards the student as they

are trespasser, and hence cannot claim compensation for the wrong of which the root lies in their own

negligent act.

The maxim Ex turpi causa non oritur actionwhich means from a dishonorable cause an action does

not arise, will apply here. This legal doctrine states that a person will be unable to pursue a cause of

action, if such action arises as a result of his/her own illegal act.

Whether State Government of Himachal Pradesh is negligent?

The water from the dam is released only after due compliance with the safety measures, of blowing the

sirens fifteen minutes prior to the release of water. Negligence can only be established when it is

sufficiently proven that the defendants had a duty of care towards the plaintiff and they commit breach

of such duty, as a consequence thereof, plaintiffs suffer the damage. Also, the injury so caused must

have been reasonably foreseeable. The defendants were not aware of the presence of the plaintiffs on

their land and could not have foreseen such a tragedy to have happened. It was unavoidable and

inevitable in so far as they could not have taken further reasonably precautionary measures. To be liable

under tort, the defendants need to be hold strictly liable but having refuted the allegations of negligence,

it is humbly submitted that they are also exempted from being liable by the rule of Strict Liability.

In the present case the students are specifically warned by their teachers that not to go to the river side

and also they are students of an Engineering College and are intellectually sound. On the warning givenby the teachers they can easily anticipate that there is an obvious risk that water in river could rise or

anything of the same nature could happen but without caring the warning given by teachers they went

there and took the risk by themselves and in the present situation the students are well aware of the risk

although not accurately, therefore State Government is not negligent.


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On the question of foreseeability, the law recognises that precautions can only be taken against

reasonably known risks. If a risk is not known at the time, precautions cannot be taken against an

unforeseeable possibility.

Is there any contributory negligence on the part of college management and tour planners

?

oNegligence on the part of college management: It is humbly submitted that only by getting the

waiver form signed by the students, it does not absolve the college management and

accompanying staff, from their responsibility and duty of care towards their students. Since any

prudent person could reasonably have foreseen the presumable risk by heading into the river,

teachers could have acted more stringently and prevented the students from going inside. Thus,

there is lack of care and caution on their part and they are contributory towards the negligence.

oNegligence on the part of tour planners: It is humbly submitted that whoever is under a duty to

organize the tour shall be liable towards his customers, if they suffer from an injury. A tour planner

is required to carefully inspect into the surroundings before planning the tour and if the site seems

to have a presumable risk of harm, the tour planners should take necessary measures to prevent the

customers from heading towards the danger.


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PLEADINGS.

Whether plantiffs can claim compensation?

Negligence is the failure to act as a reasonably cautious person is expected to act within similar

circumstances. Negligence deals with carelessly imposing injury on another, rather than intentionally

doing so. In law, negligence is a type of tort or that may be either criminal or civil in nature. Negligence

means conduct that is culpable because it is below the legal standard protecting individuals against

foreseeable risk or harmful acts of other members of society. Negligent behavior towards others gives

them rights to be compensated for the harm to their body or property.1

"Negligence is the failure to bestow the care and skill which the situation demands."

The duty imposed upon a man to exercise care towards another must vary according to the character of

the danger, whether hidden or obvious, great or small, and according to the relation between the twomen. The same act may be negligent as against one man, and not as against another. In a given suit,

therefore, for negligence, the defendant's duty to the plaintiff at the particular time of the injury is the

sole thing to be considered, and not his general duty to others.2

Main ingridients of Negligence are:-

A duty of care (by the defendant to the plaintiff)

A breach of that duty

Damages to persons or property

Causation between the breach and the duty; The causation must not be too remote from the breach and the duty in the causal chain.

Fitzgerald v. Conn. River R. R.3,

In this case it was held that defendant was not liable -

(a) because no duty was imposed by law upon persons standing in the relative positions of the parties,

as, for instance, where the plaintiff is a trespasser, or, where he is not such a person as

the defendant was bound to anticipate would be likely to incur the danger;

(b) because the plaintiff himself had voluntarily placed himself in such a position that no duty arose as

towards him.

Invitees.An invitee is someone that enters the land for the financial benefit of the property

owner/occupier or a person that enters land generally open to the public at large. To invitees, a

1http://webpage.pace.edu/pacelegalassistance/negligence.htm

2http://archive.org/stream/jstor-1321649/1321649_djvu.txt

3155 Mass. 156 (1891)


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property owner/occupier owes the duty of reasonable care in maintaining the premises. This duty

includes an affirmative obligation to discover dangers on the property or to warn of them. If the land

owner/occupier has a warning sign present and a personal injury occurs nonetheless, he or she will

probably not be liable because he or she exercised the level of care required of him or her and the

invitee is said to have assumed the riskof the danger.

Licensees. A licensee is any person who is has the express or implied permission of the property

owner/occupier to enter the land. Social guests, for example, are licensees. However, if the social

guest is asked to the leave the property and refuses, he or she becomes a trespasser. To licensees, a

property owner/occupier must fix or warn of concealed dangers he or she knew or should have

known about of which the licensee was unaware. If the land owner/occupier has a warning sign

present and a personal injury occurs nonetheless, as with invitees, he or she will probably not be

liable because he or she exercised the level of care required of him or her.

Trespassers. A trespasser is someone who unlawfully enters or remains on the land of another. To

trespassers, the property owner/occupier owes no duty. In such situations, the presence or absence of a

warning sign is usually not relevant to whether or not the land owner will escape liability. As far as

trespassers are concerned, the occupier ordinarily only owes the duty of refraining from causing

intentional harm to the trespasser. The occupier is under no duty to warn the trespasser of dangers or

make the property safe to protect trespassers from harm.

Inthe Weld-Blundells case4, it has been held that no man can claim damages when the root of the

damage which he claims is his own wrong. Therefore the plantiff being a wrongdoer cannot claim the

compensation.

The maxim Ex turpi causa non oritur actionwhich means from a dishonorable cause an action does

not arise. This legal doctrine states that a person will be unable to pursue a cause of action, if suchaction arises as a result of his/her own illegal act.

5

Addie v Dumbreck6is a House of Lords decision regardingoccupiers' liability and trespassers.

The defendant owned View Park Colliery which was situated in a field adjacent to a road. There was a

fence around the perimeter of the field although there were large gaps in the fence. The field was

frequently used as a short cut to a railway station and children would use it as a playground. The

defendant would often warn people off the land but the attempts were not effective and no real attempt

was made to ensure that people did not come onto the land. A child came on to the land and was killed

when he climbed onto a piece of haulage apparatus.

Held:

No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The

only duty was not to inflict harm wilfully.

4[1920] AC 9565www.duhaime.org Legal Dictionary

6[1929] AC 358
http://caselaw.wikia.com/wiki/Occupier%27s_Liabilityhttp://www.duhaime.org/LegalDictionary.aspxhttp://www.duhaime.org/LegalDictionary.aspxhttp://caselaw.wikia.com/wiki/Occupier%27s_Liability


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Occupiers Liability Act 1984 of UK

The 1984 Act deals with individuals other than visitors and is taken to mean trespassers. A duty of care

has to be established in this case and occurs when the following three factors are met:

1. That the occupier is aware of the danger.2. That the occupier knows that the other person will be near the danger or that they have

reasonable grounds to believe that it is the case

3. Under the 1984 Act no duty will exist when a person willingly accepts a risk when they trespass

on a certain type of land.7

There is no liability on the part of an occupier for risks willingly accepted by the visitor or trespasser.

In the case of Khoo Ting Hong v Sim Guan Soon (1969)8, as decided by the court of Appeal of

Singapore, it was held that-To impose liability on an occupier towards a trespasser, these 2 elements must be proved:

that the occupier knew of the presence of the trespasser at the time and place of injury or

could be reposed with knowledge that the presence of the trespasser was extremely likely or very

probable; and

that the injury was caused either by a willful act by the occupier to injure the trespasser or

by the occupiers reckless disregard for the trespassers safety.

In the present case the students are trespasser as they entered the land without any permission and acted

negligently. Therefore, the Government does not owe any duty to take care towards the student as theyare trespasser, and hence cannot claim compensation for the wrong of which the root lies in their own

negligent act.

Assumption of risk

A doctrine that a person may in advance relieve another person of the obligation to act towards him or

her with due care and may accept the chance of being injured also an affirmative defense that the

plaintiff cannot receive compensation for injuries from the defendant because the plaintiff freely and

knowingly assumed the risk of injury and relieved the defendant of the obligation to act with reasonable

care.

In Woodley v. Met. Dist. Ry. Co.9, it was held that if a man, not the servant of the Railway Company,

but of a contractor, undertakes to do work in a tunnel where he knows trains are constantly passing, he

7http://www.inbrief.co.uk/land-law/occupiers-liability.htm83 [1969-1971] SLR 55 at 56

93 (1877)


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cannot complain that the railway did not warn persons of approaching trains, and that the defendant was

not at fault and owed no duty to the plaintiff. "

Also that the Dean Welfare of University had given permission for an educational trip to visit Agro

Industries in Himachal Pradesh and not for the adventure trip. The students by their own conduct is

negligent and also they have been warned by the accompaining teachers as notr to go to the riverbeds

and they took the risk themselves and hence are not entitled to claim compensation.

Whether State Government of Himachal Pradesh is negligent?

A similar mishap took place on 8th june 2014 and after that the Mandi and Kullu administration

installed warning sign boards at many locations requesting tourists not to go near the river but this has

failed to stop them. During monsoon water level can increase any time, the local people refrain from

going near Beas but tourists are unstoppable and this clearly shows that putting warning boards does not

serve the purpose.

In Consolidated Broken Hill Limited v Edwards10

, Ipp JA has provided a very useful and careful

summary of the current High Court situation in relation to the concept of obviousness.

Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely

a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is

relevant to whether there has been a breach of the duty of care. The weight to be attached to the

obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be

of such significance and importance as to be effectively conclusive. A case with somewhat extreme

factual circumstances in the realm of obviousness is the decision of Moynihan J in Enright v Coolum

Resort Pty Limited11

. This was a case decided in November 2002.

The plaintiff was the widow of the unfortunate Mr Enright who drowned at Yaroomba Beach on 3

March 1993. The claim was one for the loss of dependency. The principal issue was the liability of the

defendants. They included the Resort and its interests. The second defendant was the local council. It

sued on the basis that Yaroomba Beach was under its control. There was no dispute in the case that each

of the defendants owed a duty of care to Mr Enright. The plaintiffs case was essentially one of failure

by the defendants to warn Mr Enright of the dangers of swimming at un-patrolled Yaroomba Beach. In

the case of the Council, there was an alleged failure to provide a warning sign in the park area from

which Mr Enright had accessed the beach.

In deciding the case a number of judgements have been referred. One of those was the decision of the

Full Court of the Supreme Court of Western Australia in Prast v Town of Cottesloe12where the issue

10[2005] NSWCA 380

11[2002] QSC 394

12[2000] WASCA 274


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was whether the local authority ought to have provided a warning to surfers of the dangers of suffering a

serious injury as a consequence of being dumped by a wave.

Sea conditions often change. Currents, rips and surges unexpectedly materialise. Large and

unexpected waves materialise out of the deep. These phenomenon are all capable of causing

serious injury or death.Surges and unexpected large waves can hurl an unsuspecting swimmer

against rocks or on to the seashore, with serious damage to body and limb. And yet the

suggestion that signs should be placed on all beaches in Australia indicating that swimming in

the sea could lead to serious injury or death would be absurd. The absurdity lies in the

obviousness of the danger that attaches to the common everyday, activity of swimming in the

sea

It seems that the unfortunate Mr Enright went off on a frolic of his own. For example, on his way to the

Resort, he had been told that Yaroomba Beach was not a safe place at which to swim. In fact, he had

been advised that he should swim only at Coolum Beach where it was safer, or in one of the Resorts

swimming pools.His Honour said: -

A sign which said for example, surfing dangerous, it is dangerous to get out of your depth is simply

a statement of what already ought to have been obvious to Enright. Since in is my view Enright did not

drown because of a rip, a sign warning against rips would not have been to the point.

Therefore putting warning boards is not going to serve any purpose when the student know about the

obvious risk when the teachers accompanying them have specificallywarned them not to go to river side

and even alleging that there is no sign board is absurd because it is practically and consciously not

possible to put boards in each and every spot and every river flowing through the state as there are in

large number. And also management of river banks is not the proximate cause of the incident andtherefore no inference of negligence can be drawn from this fact because for negligence fact should be

the immediate cause of incident.

Meaning of obvious risk

(1) An "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been

obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of

occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the

risk) not prominent, conspicuous or physically observable.13

13www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/.../whealy1107.pdf


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In the present case the students are specifically warned by their teachers that not to go to the river side

and also they are students of an Engineering College and are intellectually sound. On the warning given

by the teachers they can easily anticipate that there is an obvious risk that water in river could rise or

anything of the same nature could happen but without caring the warning given by teachers they went

there and took the risk by themselves and the above authority clearly covers the point and hence State

Government is not liable for negligence.

On the question of foreseeability, the law recognises that precautions can only be taken against

reasonably known risks. If a risk is not known at the time, precautions cannot be taken against an

unforeseeable possibility.

In the case of Greenland v. Chapplin14

, the court held that this test means that if the damage

complained of was forseeable by the defendant as a reasonable man, his breach of duty or negligent

conduct would be the legal cause of damage and he would be responsible for it.15

In the case ofDonoghue v Stevenson

16

:-

C, Mrs Donoghue went to Minchella's Wellmeadow Cafe in Paisley with a friend. The friend ordered ice

cream over which part of a bottle of ginger beer was poured. When the remainder of the ginger beer was

poured, it was found to contain a decomposed snail. Mrs Donoghue became ill through having

consumed contaminated ginger beer.

Held:

"The rule that you are to love your neighbour become in law, you must not injure your neighbour; and

the lawyer's question, Who is my neighbour? Receives a restricted reply. You must reasonable care to

avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour.

Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directlyaffected by my act that I ought reasonably to have them in contemplation as being so affected when I am

directing my mind to the acts or omissions which are called in question."

Also the Bhakra Beas Board has acted as per the CWC(Central Water Commission) Guidelines and has

not realesed the water suddenlt but after 15 minutes of blowing the siren, and therefore not negligent in

their part. Hence, as the Board has acted with due diligence there is no liability of State vicraously also.

The plaintiffs had submitted themselves to the presumable risk of harm by meddling into the river

voluntarily. The maxims Volenti Not Fit Injuria and Ex Turpi Causa Non OriturActioare both

applicable on them. Even when the proper warning signs were placed, they intruded into the landbelonging to the State.

14(1850)5 Ex 243

15Iyers, Ramaswamy, The Law Of Torts, ed. 9

th, Lexis Nexis Butterworts

16(1932) HL


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It is humbly submitted before this Honble Court that the respondent have taken all the safety measures

prescribed by the Central Water Commission before releasing the water from the Dam.

According to the Central Water Commission guidelines to ensure the safety of the life and property of

people says the siren should be blown before releasing the water from the Dam and water should be

released 15 minutes after blowing the siren. The Dam officials rightly blown the horn 15 minutes beforereleasing the water and proper sign boards were there on the river side.

Regarding reasons for sudden release of water was that the State Load Dispatch Centre which usually

directs Power Companies how much electricity is needed on a particular day, had directed Bhakhara

Beas Board to stop producing further electricity which may cause grid collapse, so water had to be

released from the dam.

Firstly, the students ignored the security siren, by normal protocol water is released 15-minutes after the

siren and water was not risen suddenly, when they saw the water is rising still they didnt dispersed from

the site, considering that they were the college students some common sense should have applied.

To establish negligence there must be a breach of duty on the part of respondent but in this case a

reasonable standard of care has taken by the respondent so no breach of duty on the part of respondent

and board can not be made liable for the negligence.

It should be contended here that there is no previous history of such an accident took place here as our

security protocols are up to date.

It is also contended that to negligence can only be established when it is sufficiently proven that the

defendants had a duty of care towards the plaintiff and they commit breach of such duty, as a

consequence thereof, plaintiffs suffer the damage. Also, the injury so caused must have been reasonablyforeseeable. The defendants were not aware of the presence of the plaintiffs on their land and could not

have foreseen such a tragedy to have happened. It was unavoidable and inevitable in so far as they could

not have taken further reasonably precautionary measures. To be liable under tort, the defendants need

to be hold strictly liable but having refuted the allegations of negligence, it is humbly submitted that they

are also exempted from being liable by the rule of Strict Liability.

Therefore, the question of paying compensation doesnt arise.

From the above arguments, it can be proved that there is no negligence on the part of Bhakhara Beas

Management Board and they have taken all the safety and security measures.

It is therefore clear that there is no negligence on the part of the State Government. Even the

plantiffs should not be allowed to plead contributory negligence so as to apportion the liability in

order to get the reduced amount of compensation because for contributory negligence there

should be an act of negligence on both the parties and in the present case there is no negligence on

the part of the state government.

Whether the case filed by plantiff is bad for not giving notice under section 80 of cpc?


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Two months institution of notice before filing of caseIt should further be remembered that Section

80 of the Code of Civil Procedure provides that no suit shall be instituted against the Government or a

Public Officer in respect of an official act, unless two months notice has been given of the intention to

bring such suit, and that the plaint must contain a statement that such notice has been duly given.

Is there any contributory negligence owing to tour planners, management of Hyderabad Engineering

College?

In the present case, it is submitted before the Honble Courtthatthe students of Hyderabad Engineering

College came for an Educational Trip to visit an Agro Industry and not for an adventurous trip and we

had no information regarding this tour.

They came here on educational trip and started taking pictures after entering the river without our

permission just to put the pictures on the social media. They themselves endangered their lives as theywere mature enough to understand what can be consequences. If they wanted to take pictures, they could

have clicked on the road side, why they entered the river.

We have no information that students were entering the river as they entered in the river at their own

risk, there is legal principle in law of Tort called VOLENTI NON FIT INJURIA that is if one who

knowingly and voluntarily consents to and takes on a risk (for example, by participating in a potentially

dangerous sport, such as motor racing or entering the river) cannot ask for compensation. Supposedly a

train hit the person crossing beneath a railway barriers despite the train blown the horn this doesnt mean

railway management is responsible for the accident.

If the case is that it is a duty of the board to look out as the site belong to the board, then the information

should have given to the board otherwise it is a trespass as in the case of MAHALAKSHMI V. METRO

WATER SUPPLY BOARD dismissed by the court as in the case court said that it was a giant water

pipeline and the deceased boy had no business to go over the pipeline as there was a regular road

available. It was pointed out that the said water pipeline was not meant for being treaded upon. It was

controlled by the board and deceased has no right to go over there, it was a trespass on the part of

deceased.

It is also condemned hereby signing the waiver form between the students and the college, this doesnt

mean college have waived all its responsibility. The teacher alongwith the students must stop them to go

the river as decided by the court in M.S. GREWAL & ANTH V. DEEP CHAND SOOD & OTH. this


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was a case where fourteen students of a public school were drowned when they had gone on a picnic

though under the guidance of their teachers, due to the negligence of two teachers 14 students had

drowned and court said that it was the responsibility of teacher to take care of students and found the

school negligent and ordered to pay compensation

There was also negligence on the part of tour guide who should supposed to have awareness of the area,

they should have stopped them before entering the river as in case of KLAUS MITTELBACHERT vs

EAST INDIA HOTEL LT in this case plaintiff visited the swimming pool the hotel arranged by the tour

planner while diving the plaintiff met with an accident. He had hit his head on the bottom of the

swimming pool. He was taken out bleeding from right ear and appearing to have paralyzed in the arms

and the legs. He claimed the compensation of 50 lac. The court held that it was the duty of tour planner to

take care of customer and any breach of duty is negligence on his part and to pay the compensation of 50

lacs with interest.

From the above arguments, it is clear that it was the contributory negligence on the part of college, tour

planner and students.


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PRAYER FOR RELIEF.

In the light of the issues raised, authorities cited and arguments advanced, it is humbly submitted that the

Honble Court may be pleased to hold, adjudge and declare:

a. That the plantiffs were themselves negligent and should not claim compensation.

b. That State Govenment is not negligent in taking due care as per the circumstances of the present case.

c. That the case for the claim of compensation of plantiffs should be dismissed.

And any other relief that this Honble Court may be pleased to grant in the interest of justice, equity and

good conscience.

And for this act of kindness Your Lordships the Respondent shall as duty bound ever pray.

(Counsel for Defendant No.1)

memo for respondent

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