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BENNETT UNIVERSITY MOOT CLINIC 1

TEAM CODE : A21

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BENNETT UNIVERSITY

Moot Court Clinic 1

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BEFORE THE HON’BLE SUPREME COURT OF INDIA

________________________________________________________
IN THE MATTER OF:
Socialtainment Pvt. Ltd.
v.
Ramesh & Ors.
________________________________________________________
ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE
SUPREME COURT OF INDIA.

________________________________________________________

__________________________________________________
MEMORIAL ON BEHALF OF APPELLANT (SOCIALTAINMENT)
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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

TABLE OF CONTENTS

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

INDEX OF AUTHORITIES………………………………………………………………..4

STATEMENT OF JURISDICTION………………………………………………………..5

STATEMENT OF FACTS………………………………………………………………….6

STATEMENT OF ISSUES ………………………………………………………………...8

SUMMARY OF ARGUMENTS …………………………………………………………...9

ARGUMENTS ADVANCED……………………………………………………………..11

I.WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?........11

A. THE APPELLANT HAS LOCUS STANDI TO APPROACH THE HONOURABLE


SC………………………………………………………………………………11
B. THE HC HAS NOT CONSIDERED THE ENTIRE GAMUT OF EVIDENCE
PROPERLY…………………………………………………………………...,,13
C. THAT GRAVE INJUSTICE HAS BEEN DONE………………………….....14
II. WHETHER THE APPELLANT WAS NEGLIGENT IN CARRING OUT THE DUTIES
TOWARDS THE RESPONDETS?.......................................................................................15

III.WHETHER DEFENCE OF VOLUNTI NON FIT INJURIA TAKEN INTO


CONSIDERATION FOR THE APPELLANT? …………………………………………....20

PRAYER…………………………………………………………………………………..,.22

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

LIST OF ABBREVIATIONS

1. & AND
2. Art. ARTICLE
3. Ads ADVERTISMENT
4. AIR ALL INDIA REPORT
5. Pvt. PRIVATE
6. Ltd. LIMITED
7. Hon’ble HONOURABLE
8. SC SUPREME COURT
9. & AND
10. % PERCENTAGE
11. Ed. EDITION
12. Vol. VOLUME
13. v. VERUS
14. SLP SPECIAL LEAVE PETITION
15. Cr. CRIMINAL
16. HC HIGH COURT
17. SCC SUPREME COURT CASES
18. Ors. OTHERS
19. NO. NUMBER
20. CPC CIVIL PROCEDURE CODE

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

INDEX OF AUTHORITIES

STATUES REFFERED

Constitution of India, 1950

The Code of Civil Procedure, 1908 (CPC)

Indian Contract Act, 1872

CASES REFFERED

Palsgraf v long island company ( Rantanlal)

Nihal Singh &Ors v. State Of Punjab, AIR 1965 SC 26

State of Madras v. VaidyanathaIyer, 1958 Cr.LJ 232

State of Maharashtra v. MH George, AIR 1965 SC 722


M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207
Subedar v. State of UP, AIR 1971 SC 125

BOOKS REFFERED

P.M Bakshi, The Constitution of India,159(13th ed.2016)

Ratanlal&Dhrajlal, THE LAW OF TORTS, 457(27th ed.2016 reprint 2017)

Black’s Law Dictionary

R. K. Bangia, Law of Torts, (22nd ed.2011)

Winfield & Jolowicz, TORT, Sweet and Maxwell limited, (17th ed. 2006)

S P Singh, Law of Tort, Universal Law Publishing Co. 35(5th ed. 2010)

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

STATEMENT OF JURISDICTION

The Appellant have approached the Hon’ble Supreme Court of India under the article 136 of the
Indian Constitution Act 1950. The Hon’ble Supreme Court of India has jurisdiction to entertain
and adjudicate the instant matters. Article 136 under which the jurisdiction of the Hon’ble Court
is invoked is read as:

Article 136: Special leave to appeal by the Supreme Court

(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.

(2) 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.

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

STATEMENT OF FACTS

1. Ozone Layer is a dance group which was started by Ramesh and other six dancers on
3rd March 2010, in which Ramesh was the senior most student aged 17 years.
2. On 30th March 2014, Socialtainment, who was the event organizers of Talent Buds
India opened auditions for the fifth season all over the country.
3. Their purpose was to attract youth from all over the country increase the risk factor of
the competition.
4. So, Socialtainment Pvt. Ltd planned a road show targeting near the educational
institutions in four zonal audition rounds with Delhi as one of the venue for the
audition for the Northern zone.
5. Socialtainment Pvt. Ltd had decided to provide impromptu props to the dance teams
which were supposed to incorporate or use the props along with their own music and
dance moves.
6. The entire auditions were planned to be conducted on major roadways near
educational institutions to give it a feel of a ‘Road Show’ with live streaming on
EyeBook, a social networking platform, to allow live voting by viewers.
7. On 24th April, Ozone Layer Group (Ramesh and other members) decided to dance
like in the music video ‘KayKay’ which was viral by altering some part of dance by
including Indian folk dance forms for the audition.
8. For dancing on this music, Ozone Layer Group needed a car. A member of the group
Shyam whose father was a mechanic in a local garage arranged a Maruti Alto 800
without certificate papers for the dance.
9. The group decided that Shyam will drive the car, Nilima will take care of the
backstage arrangements of music and lights and other members of the group will
perform.
10. On 6th July, all the participants had to register and asked to mention the selected
dance song and preferred dance prop. Along with that the teams were asked to to sign
a Consent and Release Declaration.
11. Socialtainment Pvt. Ltd told that the props will be informed two days prior to the
competition.

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MEMORIAL ON THE BEHALF OF APPELLANT
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12. On 8th July 2014, Ozone Layer Group was allocated a Bajaj RE Optima CNG auto-
rickshaw.
13. Socialtainment Pvt. Ltd provided a stuntman to each team as a team supervisor.
Ozone Layer Group was taught by allotted supervisor Arun Shankar.
14. On 10th July 2014, on the day event Ozone Layer Group was allotted as team number
20 out of thirty team members.
15. Around 18:00 hours Ozone Layer Group Had to perform the dance. Once the song
started Shyam started the auto rickshaw and all the members started performing the
dance.
16. As the half dance performance was done the light systems was switched off suddenly
due to an electric short circuit. The members were injured. Iqbal’s mother Sana
fainted after witnessing the accident while taking to the hospital she was declared
dead.
17. Ramesh’s grandfather Sumesh suffered a heart attack after watching the live event on
EyeBook and taken to the hospital after a delay of 20 mins and after four hours he
died in Sanjeev Multi-Speciality Hospital.
18. Ramesh and Shyam suffered serious injuries during the audition while other members
suffered minor abrasions to their forearms and knees.
19. Ramesh was in the ICU twenty two days and Shyam was in the ICU for two days.
20. Ozone Layer filed a suit for damages worth Rupees 1 crore against Socialtainment&
Ors.
21. The Delhi high court allowed a suit and ordered the defendants to pay damages of
rupees 70 lakhs to Ramesh and 15 Lakhs each to Iqbal and Shyam with 12% interest
from 10th July 2014 for the damages.
22. The amount to be recovered from the defendants was in the proportion of 2:1:1.

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

STATEMENT OF ISSUES

Issue I Whether the Special Leave Petition (SLP) is maintainable before this Hon’ble
court?

Issue II Whether the Appellant is negligent in carrying out the duties towards the
Respondents?

Issue III Whether the Appellant can use the defense of Volunti Non Fit Injuria?

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

SUMMARY OF ARGUMENTS (NOT MORE THAN 2)

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?


It is humbly submitted before this Honourable court that the present SLP filed by
Socialtainment Pvt. Ltd. is maintainable in the Hon’ble Supreme Court under Article 136
of the Constitution of India. The said SLP is maintainable as, firstly the Appellant has
locus standi to approach the Honourable SC [A], secondly the HC has not considered the
entire gamut of evidence properly [B], thirdly the grave injustice has been done[C].

II. WHETHER THE APPELLANT WAS NEGLIGENT IN CARRYING OUT


THE DUTIES TOWARDS THE RESPONDENTS?
It is humbly submitted before the hon’ble court that the Socialtainment Pvt. Ltd. couldn’t be held
liable because before the audition taken the ozone layer were very well aware about the risk
factor and were ready to give the audition. Ozone layer sent one of the group members backstage
to take care of lights and sound, when their own person was required to take care of sound and
light and how can a company held liable for the thing which is out of the human reach to know
that what all are going on inside the concrete wall between the wires, it is all on the hand of god
and out of human control it was a act of god, and as per the contract they themselves agreed to
the risk they were taking and they send there own team member to take care of light and sound.
In these facts and circumstances it is submitted that the appellant is not liable for the given
incidents under any circumstances.

III. WHETHER THE APPELLANT CAN USE THE DEFENCE OF VOLUNTI NON
FIT INJURIA ?
‘VolentiNon Fit Injuria’(Latin: ‘to the consenting, no injury is done’) is a common legal doctrine
which states that if someone willingly places himself/ herself in a position where harm might
result, having the full knowledge that some degree of harm might result, then he /she cannot
bring a claim against the other party. The doctrine only applies to the risk which a reasonable
person could have considered to have been present having assumed by his/her actions. Harm
suffered voluntarily does not constitute a legal injury and is not actionable. One cannot enforce a
right which he has voluntarily waived or abandoned. It is contended that the Respondents
themselves consented to the said risk and the incident which occurred resulted in a fatal accident

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MEMORIAL ON THE BEHALF OF APPELLANT
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for which it is submitted that the Appellant is not liable in anyway as the incident which occurred
is not even remotely connected with the appellant in any way.

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MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

ARGUMENTS ADVANCED

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR


NOT?

It is humbly submitted before this Honourable court that the present SLP filed by
Socialtainment Pvt. Ltd. is maintainable in the Hon’ble Supreme Court [hereinafter referred as
‘SC’] under Article 136 of the Constitution of India. Article 136 of the Constitution elucidates
that Special leave to appeal by the SC -

(1) Notwithstanding anything in this chapter, the SC 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.

(2) 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.

This SLP is maintainable as, firstly the Appellants have locus standi to approach the Honourable
SC [A], secondly the HC has not considered the entire gamut of evidence properly [B], thirdly
the grave injustice has been done[C].

A. THE APPELLANT HAS LOCUS STANDI TO APPROACH THE HONOURABLE SC

It is humbly submitted before this Honourable SC that the appellant has locus standi to
approach the Honourable SC in the present case. Article 136 of the Constitution is couched in the
widest phraseology.1 This Court's jurisdiction is limited only by its discretion.2
In the present case the HC erred in granting the order in favour of the Respondents. The
jurisdiction conferred under article 136 on the SC is corrective one & not a restrictive one. A
duty is enjoined upon the SC to exercise its power by setting right the illegality in the judgments,

1
Nihal Singh &Ors v. State Of Punjab, AIR 1965 SC 26
2
Ibid

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ARGUMENTS ADVANCED

it is well-settled that illegality must not be allowed to be perpetrated & failure by the SC to
interfere with the same would amount to allowing the illegality to be perpetuated.3

Again, the SC said in another case4:


“It is not possible to define the limitation on the exercise of the discretionary jurisdictionvested
in the Court by Article 136. The limitation whatever they may be, are implicit in nature
character of the power itself. It being an exceptional & overriding power, naturally it has to be
exercised sparingly & with caution & only in special & extraordinary situations. Beyond that, it
is not possible to fetter the exercise of this power by any set formula or rule”

Also in this case, Chinnappa Reddy J. laid emphasis on the “plenary appellate jurisdiction” of
the SC under article 136 & observed:

“It is now the well-established practice of this court to permit the invocation of the power under
article 136 only in very exceptional circumstances, as & when a question of law of general
importance arises.”5

In Delhi Judicial Service Assn. v. State of Gujarat,6 the SC has held that under article
136 the SC has wide power to interfere and correct the judgment and order passed by any court
or tribunal in India. In addition to the appellate power, the court has special residuary power to
entertain appeal against any order of any court.

Even if we assume that the case doesn’t involve ‘substantial’ question of law, SC in the
exercise of its power conferred under article 136 can entertain the present appeal. Article 136
uses the wording ‘in any cause or matter’.7 This gives widest power to this court to deal with any
cause or matter, even if it involves question of fact.

This case establishes the position that the powers of the SC in appeal under article 136
are not restricted by the appellate provisions contained in the C.P.C or any other statute. Hence,

3
Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC); see also H.M. Seervai, Constitutional Law of India (4 th
Ed. Vol. I 2010)
4
Dhakeswari Cotton Mills Ltd. v. CIT, Bengal 1955 SCR (1) 941
5
Arunachalam v. P.S.R. Setharatnam AIR 1979 SC 1284
6
(1991) 4 SCC 406
7
Pritam Singh v. State, AIR 1950 SC 169

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MEMORIAL ON THE BEHALF OF APPELLANT
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in the present case appellant has locus standi to approach the Honourable SC. The SC under
article 136 of the Constitution following principles emerge8:

i. The powers of this Court under article 136 of the Constitution are very
wide.
ii. It is open to this Court to interfere with the findings of fact given by
the HC, if the HC has acted perversely or otherwise improperly.

iii. It is open to this Court to invoke the power under Art. 136 only in very
exceptional circumstances as and when a question of law of general
public importance arises or a decision shocks the conscience of the
Court.
iv. Where the appreciation of evidence and finding is vitiated by any error
of law of procedure or found contrary to the principles of natural
justice, errors of record & misreading of the evidence, or where the
conclusions of the HC are manifestly perverse & unsupportable from
the evidence on record.

It is humbly submitted before this Hon’ble Court that in the instant case the Delhi High Court,
without considering the materials on record, allowed the suit filed by Ramesh and Ors., and
ordered the defendants therein to pay the damages. The said order was passed without properly
examining the facts and circumstances involved and thus it is submitted that since the grave error
concerns the appellant in question, the said appeal is maintainable.

B. THE HC HAS NOT CONSIDERED THE ENTIRE GAMUT OF EVIDENCE


PROPERLY
It is most humbly submitted before this Honourable Court that the appreciation of
evidence was not proper. Firstly, the Hon’ble Court failed to consider that there is no negligence
on part of the appellant. Secondly, there is no breach of duty on part of Socialtainment Pvt. Ltd.

8
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211

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and the respondents were fully aware of the risks involved in the performance. The Court below
erred in taking into consideration the fact that the entire incident was an accident for which
Socialtainment Pvt. Ltd. cannot be held liable. The immediate cause of the accident was a short-
circuit. It is to be noted that the responsibility of handling lights and music was given to Nilima
and while the performance was going on, a short-circuit occurred leading to incidents one after
the other.

The judgment of the HC is liable to be set aside as certain salient features of the case were not
properly appreciated or given due weight by the HC.9 In Nihal Singh v. State of Punjab10, it was
held that if there is no evidence to support the finding of a fact, or the conclusions of the HC are
manifestly perverse are based on surmises, conjectures & are unsupportable by evidence, the SC
may go behind the findings of facts arrived at by the courts below. The SC can interfere when
concurrent findings are vitiated by errors of law, or the conclusions reached by the court below
are so patently opposed to well established principles as to amount to miscarriage of justice or
where the interest of justice so requires.11

It is also pertinent to note that HC erred in passing the impugned judgment in the suit
holding the appellant company and others to be liable for negligence which resulted in the death
and loss of life of two people and further injuring the participants. In the present case there are
certain material aspects which were lost sight by the HC. Therefore, since in the present case HC
did not appreciate the material facts and erred in interpreting the same, the present appeal is
maintainable and fit to be allowed.

C. THAT GRAVE INJUSTICE HAS BEEN DONE

It is most humbly submitted before this Honorable Court that grave injustice has been
done in the present case. In this case the loopholes present, clearly establishes that the HC did
not use its faculty and failed to consider them. Instead the HC heavily relied on the case of the

9
State of Madras v. VaidyanathaIyer, 1958 Cr.LJ 232
10
Supra Note 2
11
Dalbir Kaur v. State of Punjab, AIR 1977 SC 472

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Plaintiff/Respondent and ordered against the appellant. The HC erred in considering the case in
its entirety.
It is also pertinent to note that SC does not interfere with the sentence passed by sub-
ordinate court unless there is an illegally in it, or is unjust in the facts & circumstances of the
case, it is unduly lenient, it involves any question of principle or where the HC does not exercise
its discretion judicial on the question of sentence.12 In the case at hand, the HC did not exercise
its discretion and ordered the Appellant and other companies to pay damages to the
Plaintiff/Respondent, upon finding the appellant company and others to be liable for negligence.

It is contended that if the appellant prove that a concurrent decision of two or more courts
or tribunal is manifestly unjust, it will be the duty of SC to remedy the injustice.13 Thus when the
judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or
mistake in the reading of evidence or by ignoring material evidence then it is not only
empowered but is expected to interfere to promote the cause of justice.14
The extent of injustice caused to the appellant demands the intervention of the Honourable Apex
Court. Hence, it is humbly submitted that the present appeal is maintainable.

II. WHETHER THE APPELLANT WAS NEGLIGENT IN CARRING OUT


THE DUTIES TOWARDS THE RESPONDENTS?

It is humbly submitted before the hon’ble court that the Socialtainment Pvt. Ltd. couldn’t be held
liable because before the audition taken the ozone layer were very well aware about the risk
factor and were ready to give the audition. As the announcement were made four months in
advance that is on 30th March 2014 itself making all the minute details public so as to attract
youth from all the classes of society and ensure maximum participation thereby increasing the
competition. As it is mentioned above in the facts that before the 5th season they got rejected two
times already, this very well indicates that they knew for a year or two before this audition that
this competition demands innovation and risk in the dance moves and in the announcement of

12
State of Maharashtra v. MH George, AIR 1965 SC 722
13
M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207
14
Subedar v. State of UP, AIR 1971 SC 125

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the fifth season it was very well mentioned that the risk factor has comparatively been increased
and despite all that they were trying for two years and for the fifth season after the announcement
of road show, they started searching for the song and the moves for four months before the
registration. And the song and moves were selected by themselves only which means that there
was no enforcement of such dangerous dance moves and props. On the day of registration they
were to sign a consent and release declaration ( Annexure-1) in the presence of all the group
members it clearly says that it implies the consent of all the group members and as they
mentioned in the announcement of the audition that this will be a team event as the head and core
member of the team Ramesh signed the consent letter. So they all agreed and were very well
aware about what they are doing. They were told to inform about their prop and song on 6th July
2014 almost 4 months after the announcement and as per their practice, ozone layer registered
the song that was kay kay which got viral because of its unique innovative and dangerous dance
moves where a person get off the car while it is in a neutral gear and dance along the car on a
road, so it was very well suggested their own choice of dance moves and the prop as a car, on 8 th
July ozone layer informed that the prop allocated to them was a Bajaj RE optima CNG auto-
rickshaw and they were asked to come on 9th July 2014 to practice dance moves using the prop.
The members of OZONE LAYER were REALLY HAPPY to get the prop similar to the one they
wanted for their dance moves and were confident, as per the information it is clear that they
wholly accepted the prop without the sense of danger and were happy about it and although
knowing the danger they were confident, even though it was an audition round Socialtainment
Pvt. Ltd. Knew the risk factor regarding the prop ozone layer was using , so on the same day that
is 9th July 2014 the company organisers provided them with the professionally trained stuntman
as the team supervisor who was required to train the team on using the prop. Ozone layer was
taught by the allocated supervisor Arun Shanker.

On 10th July 2014, on the day of auditions, Ozone layer was allotted team number 20 out
of 30 teams and the reporting time was 5:00 hours with the show starting at 7:00 hours with each
team being allotted ten minutes each for the stage preparation, and clearing the area for the next
team. In the 18th hour it was announced that ozone layer is the next team hence they sent one of
the group members backstage to take care of lights and sound, when their own person was

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required to take care of sound and light and how can a company held liable for the thing which is
out of the human reach to know that what all are going on inside the concrete wall between the
wires, it is all on the hand of god and out of human control it was a act of god, and as per the
contract they themselves agreed to the risk they were taking and they send there own team
member to take care of light and sound.

It is therefore humbly prayed that this Hon’ble Court takes into consideration the above
stated facts as the Appellant clearly has no liability on them for the damages caused to ozone
layer and that they took all the measures of safety regarding the performance and stage setup.

A) Socialtainment was not liable for the accident that happened with Ramesh and Ors.

It is humbly submitted before the Hon’ble Court that Socialtainment cannot be held liable for
the accident that happened to Ramesh and Ors. because the accident which happened was
beyond the control of the organisers as it is clearly visible that they took all the proper
measures to keep the participants safe and the performance to be full proof a success, without
any misconduct and scope of any accident. Even though the competition itself says to take
risk, it is them who had their will and consent to the risk taking factor and they were
preparing for it since long. It was them who chose the prop, song, and dance moves they
were free to choose the prop to incorporate in their performance, and when the prop was
given it was up to them either to choose or to reject but in fact, in spite of being nervous or a
bit hesitant about the prop they were really happy and confident about the prop and their
performance, as ozone layer was allotted 20 out of thirty teams that means there was 19
performance already performed before them and it is very well possible that after taking
several security and proper measures wires gets heated up and short circuit happened which
was beyond the control of Socialtainment. Rather the incident could be classified as an Act of
a stranger, not concerned with Socialtainment. It was the 5th season in which the
Socialtainment has participated earlier in the several seasons conducted before. There is no
such record of such incidents, that shows that Socialtainment and the concerned organisers

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take all the proper measures and conduct the auditions and shows with all the security
measures, and they even send the member of ozone layer to take care of light and sound
before the performance starts hence it was all in their hand and the death of the Ramesh’s
grandfather Surmesh and Iqbal’s mother Sana was beyond the foreseeability as Ramesh was
already suffering with the disease of tuberculosis because of which he couldn’t attend the
show and was very old and he died because of delay in taking him to the hospital as doctor
mentioned that the heart attack was not fatal in this cases company is no were liable as they
don’t have any direct connection and is not in the proximity and neither the accident was
foreseen.
It is thus submitted that for the death of Sumesh, company is nowhere liable whereas in
the case of Iqbal’s mother Sana, as she fainted by seeing the accident on the stage and due to
the public rush due to suffocation, she died on the spot and the company’s priority were the
participant’s they were looking for them although the whole situation got under control in 10
minutes. Hence, this is not at all foreseen and neither there is any wrong on behalf of the
company. Hence, the company cannot be held liable for the death of the Iqbal’s mother Sana.

It is thus humbly submitted that the company Socialtainment Pvt. Ltd. and company no
where can be held liable because they all signed the consent letter for taking all the risk and if
it would have been a normal dance programme the short circuit would have hardly made any
effect but the dance move they chose was way too risky and hence because of the black-out
they fell down and injured themselves and all the risk were having their consent .

B) The Company took all the precautions to avoid any untoward incident.

It humbly submitted before the hon’ble court that above mentioned facts clearly shows that the
Socialtainment announced the due risk concerned with their auditions and they announced it four
months in advance and it was them who voluntarily wanted to do such performance and accepted
all the risk. Though Socialtainment provided them with the professionally trained stuntman as
team supervisor who trained the team on using the props, and they were given the props as per

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MEMORIAL ON THE BEHALF OF APPELLANT
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their own choice and before their performance there has been nineteen performances already
took place which were successful and the company had been conducting these event before this
one which were huge success clears the fact that in the previous events they took all measures
and were able to perform all the duty of care properly and took all the safety measures, one of the
member of the ozone layer itself went backstage to take care of lights and sound and it was
responsibility on their part to take care of light and check whether all the sound system and lights
and wires are working properly or not hence the company has a reputed history and background
of working with all the safety measures and didn’t even have a single allegation on them
regarding negligence and not taking the due care.

C) Socialtainment is not liable for the death of Iqbal’s mother Sana & Ramesh
grandfather Surmesh.

It is humbly submitted in front of the hon’ble court that Socialtainment company has no duty of
care towards the parents of the participants as the incident was beyond their proximity and never
been foreseen as Surmesh was a sensitive person and not a normal person hence it was not the
fault of the company as Surmesh was a old aged person and after his death doctor gave the report
declaring that it was not due to the heart attack as the attack was not fatal but because there was a
delay taking him to the medical help so clearly the company is no where responsible for what
happened to him and in case of Iqbal’s mother Sana, it was not the fault of company as it was
due to public rush happened during the accident as she fainted and as per the priority the
organisers were concerned about the participants and hence they took the situation under control
and took all the injured people to hospital but till then she died of suffocation and it was not the
fault of the company as they had no direct relation with the parents of the participants and the
company had no duty of care towards anyone when they made them sign the consent letter hence
they voluntarily took part in the event and the risk hence the company has no liability neither for
the parents nor for the participants and making them pay for the damages for the thing which
they are not liable

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BENNETT UNIVERSITY MOOT CLINIC 1

“in the case of palsgraf v long island railroad co the judge said that it was not obvious to the
long island railroad guard that the package carried by the passenger contained firwork. Tort
law limits responsibility only to when one can forsee the consequences of the act rathet than
even possible result that can follow due to the butterfly effect hence the company could’t be held
liable “ 15

hence it is requested in the hon’ble court to consider the facts and give relief .

III. WHETHER THE APPELLANT CAN USE THE DEFENCE OF VOLUNTI


NON FIT INJURIA ?

‘VolentiNon Fit Injuria’(Latin: ‘to the consenting, no injury is done’) is a common legal doctrine
which states that if someone willingly places himself/ herself in a position where harm might
result, having the full knowledge that some degree of harm might result, then he /she cannot
bring a claim against the other party.The doctrine only applies to the risk which a reasonable
person could have considered to have been present having assumed by his/her actions. Harm
suffered voluntarily does not constitute a legal injury and is not actionable. One cannot enforce a
right which he has voluntarily waived or abandoned.

The defence of Volenti non fit injuria is applicable in case of Socialtainment as all the essential
elements of the doctrine arefulfilled.

A) There should be an agreement.


An agreement has been entered in the first place between the parties (refer:Annexure-1),
which says by signing this, you have given consent to participatein the Talent Buds India
and to release, waive, discharge, and covenant not to sue, and agree to hold
SocialtainmentPvt. Ltd., its trustees,officers, servants, agents, volunteers and employees
from and against any and all liabilities, demands, claims, or injuries, including death, that
I may sustain during or in connection with the competition. Agreeing to the facts that

15
Palsgraf v long island company ( Rantanlal)

20
MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

their safety was their primarily own responsibility, that they would participate safely and
employ those practices to minimize risk for injury and refrain from any and all actions
that had a hazard to themselves and others. The respondents have expressed their consent
which is clearly and unmistakably stated in the written consent submitted to appellant.

B) The Agreement should have been entered into voluntarily.


The agreement between the parties was done in the expressed form of consent by the
respondents and the respondents have voluntarily and freely entered into the agreement,
without any kind of undue influence. The consent was not obtained by fraud or under any
compulsion or under some mistake impression, imposition, coercion, influence of drug or
misrepresentation expressed or implied by the appellants. Facts clearly shows that the
respondents were really excited and started working hard for perfect music and dance
moves just after the release of Talent Buds India’s fifth edition through advertisements
brought to people by the organizers(Socialtainment&ors).

C) The Agreement should have been made in full knowledge of the nature and extent of risk
involved in the act.

The consent was still given by the respondents knowing the extent of risk involved stated in the
facts Ramesh leader of the group was aware of the risks associated while performing dance set
for the auditions, and how the other members of the team were unsure of the safety while
performing the dance moves but Ramesh convinces other to perform the dance which clearly
proves that all the respondents were in full knowledge of the nature and extent of risk involved in
the act. This also indicates us towards the breach of agreement which requires the respondent to
employ those practises which minimize risk for injury. It is contended that the Respondents
themselves consented to the said risk and the incident which occurred resulted in a fatal accident
for which it is submitted that the Appellant is not liable in anyway as the incident which occurred
is not even remotely connected with the appellant in any way.

21
MEMORIAL ON THE BEHALF OF APPELLANT
BENNETT UNIVERSITY MOOT CLINIC 1

PRAYER

In the light of the stated, issues raised, arguments advanced and authorities cited it is most
humbly and respectfully prayed before The Hon’ble Supreme Court may be pleaded to adjudge
and declare that:

1. The present Special Leave Petition is maintainable.


2. Socialtainment was not negligent while performing their duties.
3. Socialtainment is not liable to pay any compensation to the Respondents.
4. And pass any other order that this Hon’ble Court deems fit in the interests of justice,
equity and good conscience.

All of which is humbly prayed.

X-----------------------------------

( Counsel of the appellant )

22
MEMORIAL ON THE BEHALF OF APPELLANT

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