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This is a memorial covering the issue of motor vehicle accident resulting in torts.
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Before THE CIVIL COURT OF INDIA CIVIL SUIT NO. - ____/ [UNDER SECTION 9 OF CODE OF CIVIL PROCEDURE, 1908] MR. SHYAM……………………………………………………………………….…PLAINTIFF v. HERO TAXI PVT LTD…………………………………………………………….DEFENDANT WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT HARSH KUMAR PATIDAR ROLL NO. 622, SEM I, SEC A
The respondent humbly submits the memorial in response to the petition filed by the petitioner under the section 9^1 of the Civil Procedure Code. (^1) Courts to try all civil suits unless barred. - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I—As suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
doctrine of last chance^3 the plaintiff had a last chance to avoid the accident and he failed accordingly. The another reason is that the plaintiff had the knowledge of the risk as he knew that the driver was drunk and he still agreed to travel with the drunk driver. This shows that he has given his consent^4 for the injury that may occur due to the inebriated state of the defendant as established in the case of Dann v_. Hamilton_^5. In the case of Dann v. Hamilton the defendant took lift from the plaintiff who was driving in an intoxicated state. On the way the car met with an accident and the passenger filed the suit for damages. It was held in the case that when a person agrees to sit in a vehicle which is being driven by an intoxicated driver the passenger knows the risk of injury while doing so and has consented for the same. Similarly in case of Morris v. Murray the plaintiff and the defendant had been drinking all day. They decided to take the aircraft for a flight. The aircraft took off and soon crashed. The defendant was killed and the plaintiff was seriously injured. In the case it was held that the plaintiff had the knowledge of the state of defendant and still agreed on flying with him shows the willingness consent to take risk on part of plaintiff. As per the facts the driver got drunk on the way while travelling which shows that the plaintiff had the knowledge of the state of the driver and he didn’t oppose to it. This knowledge of driver’s state signifies that the plaintiff consented to take the risk of travelling with a driver in drunken state. This clearly shows the case of volenti non fit injuria and the above facts proved that prove that the plaintiff not only had knowledge but also consented to the risk and damages by deciding to continue the journey with a drunken driver. It is according to this argument that the counsel pleads to court that the claim for the damages to be dropped. (^3) According to the doctrine of last chance the liability lies with the person who has the last chance to avoid the accident. 4 (^5) [1939] 1 KB 509
