LEGAL METHODS ASSIGNMENT-1

MEMORANDUM MAKING

SUBMITTED BY: SUBMITTED TO:

NEELAKSHI DR. CHANDRESHWARI MINHAS
1020202145 ASSISTANT PROFESSOR
1ST SEMESTER OF LAW
B.A.LL.B
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ACKNOWLEDGEMENT

This Assignment Was Upheld by the Himachal Pradesh National Law University, Shimla. I
Would like to Express my Gratitude Toward Dr. Chandreshwari Minhas , Assistant Professor
of Law for Her Help With the Connected topics and for Remarks That Enormously Improved
the Original Copy.
I Would Thank My Fellow mates Who Gave Knowledge and Ability That Enormously Helped
the Project Despite the Fact That They May Not Concur With the Entirety of the
Translations/finishes of This Paper
I Might also want to Show My Appreciation to My Parents for Imparting Their Pearls of Insight
to Me Throughout This Exploration Work.

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CONTENTS

ACKNOWLEDGEMENT……………………….3

LIST OF ABBREVIATIONS………………………...1

INDEX OF AUTHORITIES………………………….4

STATEMENT OF JURISDICTIONS……………….12

STATEMENT OF FACTS………………………..….16

STATEMENT OF ISSUES…………………………..18

SUMMARY OF ARGUMENTS………………….….19

ARGUMENTS ADVANCED………………………....24

PRAYER FOR RELIEF……………………………….31

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IN THE HON’BLE HIGH COURT OF DELHI

IN THE MATTER OF

KLAUS MITTLEBACHART ………APPELLANT

V/S
EAST INDIA HOTEL LTD …….RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE

PETITIONER

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ABBREVIATIONS
& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Co. Company

CompLJ Company Law Journal

Corpn. Corporation

Cr. Criminal

Edn. Edition

Govt. Government

Hon’ble Honourable

i.e. That is

Ltd. Limited

No. Number

Pvt. Private

QB Queens‟ Bench

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SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

INDEX OF AUTHORITIES

A. CASES REFERRED

1. Kerela State Electricity Board v.

Suresh Kumar

2. Environ-Legal Action vs Union of

India

3. In Sham Sunder vs. State of

Rajasthan, ,

4. In Rehana vs, Ahemdabad

Municipal Transport Service,

5. In Vinod Kumar Srivastava vs Ved

Mitra, , In Vinod Kumar Srivastava
vs Ved Mitra,

6. Benham vs Gambling 1941

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B.DATABASE REFERRED

1. www.judis.nic.in

2. www.lexisnexis.com

3. www.manupatrafast.com

4. www.scconline.com

5. www.westlaw.com

C.LEGAL DICTIONARY

1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009)

3. Greenberg Daniel, Stroud‟s Judicial Dictionary of Words and

Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

4. Oxford Advanced Learners Dictionary, (7th ed., 2008)

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D. BOOKS REFERRED

1. A Lakshminath M Sridhar, RAMASWAMY IYER’S THE LAW OF

TORTS (10th edition)

2. A Lakshminath M Sridhar, RAMASWAMY IYER’S THE LAW OF

TORTS (10th edition)

3. M.N. Shukla: The Law Of Torts(20th edition)

4. - Dr.S.K.Kapoor on Law of Torts (7th Edition)

5. .N. Panday : Law of Torts(9th edition)

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STATEMENT OF JURISDICTION

IT IS HUMBLY SUBMITTED THAT THE PETITIONER HAS

APPEARED BEFORE THE HON’BLE HIGH COURT OF DELHI IN
RESPONSE TO THE SPECIAL LEAVE PETITION FILED BY THE
PETITIONERS UNDER ARTICLE 1361 OF THE CONSTITUTION OF
INDIA AND SECTION 9 OF CPC
THE MEMONDRUM FOR PETITIONER IN THE MATTER OF KLAUS
MITTELBACHERT VS EAST INDIA HOTELS
LTD,FACTS,CONTENTIONS AND ARGUMENTS PRESENT IN THE
CASE

1. the case of the financial value. The code allows analysing the case unless the suit’s value exceeds the
financial limit of the court. Section 15 of the Code of Civil Procedure commands the organisation of
the suit in the court of the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of
the method and it does not affect the jurisdiction of the court. The main objective of establishing
pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to provide
assistance to the parties. However, the court shall interfere if it finds the judgment to be wrong. For
example, ’A ’wants to accuse ‘B’ due to a violation of the contract to obtain Rs 5000 in Bombay. The
Bombay High Court has original jurisdiction and small causes court with the jurisdiction up to Rs
50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes court. In the case of Karan
Singh Vs Chaman Paswan the plaintiff filed a suit in the subordinate court involving an amount of Rs
2950, but the court rejected the case. Later his next appeal was allowed by the High Court, but it
ordered him to pay the deficit amount. The appellant contested that the decision of the district court
will be a nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the
decision of the High Court declaring that the decision of district court won’t be void.
2. Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares
that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which their
cognizance is either expressly or impliedly barred.A Civil court has jurisdiction to decide a suit if two
requirements are fulfilled: The suit must be Pecuniary means ‘related to capital.’ It approaches the
question of whether the court is competent to try of a civil nature. The cognizance of such a suit should
not have been expressly or impliedly barred.

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STATEMENT OF FACTS

1.Klaus Mittelbachert, the plaintiff was a co-pilot in Lufthansa. He landed at Delhi

and was scheduled to continue the flight to Frankfurt on 14th August, 1972. For the
intervening time, elected in the air-line terminology as lay- over-period, he attested into and
stayed at the Hotel Oberoi Intercontinental.

2.Hotel Oberoi Intercontinental is owned by the defendants. One of the defendants was its
Chairman and it was allegedly being managed by another defendant at the material time. The
Hotel had a swimming pool installed with a diving board.

3.In the afternoon of August 13, 1972 the plaintiff (Klaus Mittelbachert ) visited the
swimming pool. At about 6.00 p.m. while driving 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 was taken to Holy Family
Hospital where he remained under medical observation until August, 21, 1972 on which date
he was taken to Germany under medical escort.

4.On 24th March, 1973 he was discharged from the Clinic. Further treatment prolonged but
the situation of the plaintiff did not improve. He was shifted back to his residence where his
medications resumed.

5.The present suit has been filed for recovery of an amount of Rs.50 lacs by way of damages
with interest calculated @ 12% from the date of the filing of the suit until payment and costs.

6.According to the plaintiff, the accident was caused by what in the circumstances amounted
to a trap. The diving board placed at the swimming pool suggested a proper depth of water
into which a swimmer could dive. The defendant hotel owed the plaintiff a duty to take care
and make certain of his safety.

7.The defendants have denied their liability. It is submitted that defendants No.2 and 4 have
been unnecessarily joined as parties to the suit as none of them can be held liable or
personally liable. The defendants admit that defendant No.1 is the owner of defendant No.3
and is solely responsible for the acts of defendant No.3.

8.A material occurrence during the pendency of the suit and resulted in the death of plaintiff
due to cardiac arrest.

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STATEMENT OF ISSUES

1. The first issue that is raised deals with deciding whether the defendants were in control of
the premises of Hotel Inter- continental or not on the day of the incident.

2. Another issue that was raised was that whether there was any failure on the part of the
plaintiff to take reasonable care of himself in his own interest and who has the last opportunity
of avoiding the accident. It was also debatable that whether the disabilities attributed and the
death of the plaintiff was the direct result of the accident that took place or not.

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SUMMARY OF ARGUMENTS

1. The first issue that is raised deals with deciding whether the defendants were in
control of the premises of Hotel Inter- continental or not on the day of the incident.

According to the plaintiff, the accident was caused by what in the circumstances amounted to
a trap. The diving board placed at the swimming pool suggested a proper depth of water into
which a swimmer could dive. The defendant hotel owed the plaintiff a duty to take care and
ensure his safety. Having failed therein the defendants are guilty of negligence and are,
therefore, liable to compensate the plaintiff for the consequences flowing from the accident.

2. Another issue that was raised was that whether there was any failure on the part of the
plaintiff to take reasonable care of himself in his own interest and who has the last
opportunity of avoiding the accident. It was also debatable that whether the disabilities
attributed and the death of the plaintiff was the direct result of the accident that took
place or not.

All other material averments in the plaint to the extent to which liability flowing from the
accident is sought to be fixed on the defendants have been denied. It is submitted that there
was no negligence on the part of the hotel; that it is the plaintiff who was negligent; and
that, in any case, the plaintiff was equally negligent and , under the doctrine of contributory
negligence the plaintiff is entitled to no damages at all.

According to the plaintiff he had gone to the swimming pool at 2.30 pm. He swum twice
or thrice, every time taking an hour's rest in between. At about 6 pm he wanted to have a
final swim with a dive from the three meter high diving board. On the diving board he
started by taking two-three steps and made a dive with his head forward and the arms
stretched and closed over the head. He sustained injury in the first dive itself. During cross-
examination he was confronted with the bill (Ex D-1) of the hotel and he admitted having
ordered for the beer. However, he stated that he did not take the beer as he had intended to
take it after the swim and before going for the dinner. Mrs Rose Marie has corroborated the
plaintiff giving almost the same narration of the events, just before the accident. She has
denied the plaintiff having had any drinks before the dive. She has also deposed to the
changes which had taken place subsequently at the swimming pool. After the incident she
stayed at the hotel 8-9 weeks later and found a big signboard near the stairs of the swimming
pool cautioning the people that they could dive at their own risk which notice board was
not there at the time of the accident. The hotel had also put some flowerpots on the diving
board so as to obstruct its user and also removed the flexible end thereof.

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ARGUMENTS ADVANCED

1. There are weighty reasons for which the story that the plaintiff had taken any such drinks
has to be discarded. 27.1Firstly, if the plaintiff had taken any drinks he must have ordered
for them. If that be so he must have been charged by the hotel for such drinks. The hotel
record would show the drinks having been ordered by the plaintiff and having been supplied
to and consumed by him. However, only one voucher slip Ex D-1 for one beer bottle has
been produced. The plaintiff has denied even having consumed the beer. Assuming that he
either alone or by sharing with others had consumed beer, it cannot be said that he had
consumed alcohol in such quantity as would have caused enough intoxication to impair his
alertness or lessen his normal senses so as to have deprived him of capacity to take care of
himself. 27.2.Secondly, we have the testimony of Mrs Gausmann PW6, who was
stewardess in the same flight and was also staying in the hotel. She was practically all the
time present by the side of the swimming pool when the plaintiff had also reached the
swimming pool. When the plaintiff was brought out from the swimming pool he was
finding it difficult to breath and his pulse was stopping. She had given mouth to mouth
respiration to the plaintiff. If at all the plaintiff had consumed any alcohol then she is the
one who would have certainly got smell of it. The defendants have cross-examined this
witness at length but no where in her cross- examination suggestion was given to the
witness of the plaintiff smelling of liquor. The defendants were bound to put up their case
to this witness which having not been done, the probative value of their case is shaken.
27.3Thirdly, Dr Daljeet Singh (DW8) panel doctor of the hotel who had examined the
plaintiff at the swimming pool and before the plaintiff was shifted to Holy Family Hospital
has also stated to have checked the pupils of the plaintiff and `they were reacting normally'.
27.4It is therefore proved that the plaintiff was not drunk.
2. So is the weight of the testimony on the point of the plaintiff having strained and exhausted
himself by too much swimming or diving. The case of the plaintiff is that it was the first
dive itself which had resulted in injuries to him. Even otherwise it cannot be said that a
person used to swimming and diving would have been so much exhausted that though he
could go to the diving board and take the jump but could not have so postured himself under
water as to come out completing the diving action. The plaintiff's witnesses including the
plaintiff himself have deposed to the plaintiff having stretched his hands above the head
while diving into the water.
3. A five star hotel charging a high or fancy price from its guests owes a high degree of care
to its guests as regards quality and safety of its structure and services it offers and makes
available. Any latent defect in its structure or service, which is hazardous to guests, would
attract strict liability to compensate for consequences flowing from its breach of duty to
take care. The five star price tag hanging on its service pack attracts and casts an obligation
to pay exemplary damages if an occasion may arise for the purpose. A five start hotel can
not be heard to say that its structure and services satisfied the standards of safety of the time
when it was built or introduced. It has to update itself with the latest and advanced standard
of safety.
4. In Krishna Bus Service Ltd vs Smt Mangli and others , their Lordships have stated the
principle as under :- "Wherein an action for negligence the thing causing fatal injury to the
deceased and consequent pecuniary loss to the plaintiff is shown to be under the

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management of the defendant or his servants and the accident is such as in the ordinary
course of events does not happen if those who have the management use proper care, that
affords reasonable evidence, in the absence of the explanation by the defendants, that the
accident arose from want of care."
5. In Sham Sunder vs. State of Rajasthan, , their Lordships held that the maxim did not
embody any rule of substantial law nor a law of evidence; it was simply `the caption to an
argument on the evidence'. Their Lordships further held :- "The maxim res ipsa loquitur is
resorted to when an accident is shown to have occurred and the cause of the accident is
primarily within the knowledge of the defendant. The mere fact that the cause of the
accident is unknown does not prevent the plaintiff from recovering the damages, if the
proper inference to be drawn from the circumstances which are known is that it was caused
by the negligence of the defendant. The fact of the accident may, sometimes, constitute
evidence of negligence and then the maxim res ipsa loquitur applies.

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PRAYER

Wherefore in the light of the facts presented, issues raised, arguments advanced, and
authorities cited, the Counsel on behalf of the Petitioner humbly pray before this Hon’ble
court that it may be pleased to adjudge and declare

• The negligence on the part of the defendants

Or pass any other order, direction or relief that the court may deem fit in the light of equity,
justice, and good conscience and for this Act of Kindness of Your Lordship the Petitioner
shall as duty bound ever pay.

Sd/- _______________________

Counsels for Appellant.

-MEMORANDUM FOR APPELLANT

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