ARMY INSTITUTE OF LAW, SECTOR 68, MOHALI

BEFORE THE HON’BLE SESSIONS COURT, CHANDIGARH, UT

No. … Of 2017

In the matter of

ST. MARY’S SCHOOL MANAGEMENT

Vs

SANJEEVANI HOSPITAL

MEMORANDUM ON BEHALF OF THE PLAINTIFF

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 TABLE OF CONTENTS

LIST OF ABBREVATIONS…………………………………………………………………….3

INDEX OF AUTHORITIES………………………………………………………………….....5

STATEMENT OF JURISDICTION…………………………………………………………….6

STATEMENT OF FACTS………………………………………………………………………8

STATEMENT OF ISSUES……………………………………………………………………..10

SUMMARY OF ARGUMENTS………………………………………………………………..11

THE ARGUMENTS ADVANCED

CONTENTION 1:

CONTENTION 2:

2
 LIST OF ABBREVATIONS

A.I.R All India Reporter

All Allahabad

AP Andhra Pradesh

Bom Bombay

Cal. Calcutta

Cr.L.J Criminal Law Journal

Cri. Criminal

CrLR Criminal Law Report

D.B Division Bench

Ed. Edition

Hon’ble Honorable

I.P.C Indian Penal Code

ILR Indian Law Reporter

LJ Law Journal

M.P Madhya Pradesh

Mad. Madras

Ori. Orissa

Ors Others

3
Raj Rajasthan

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

Supp Supplementary

U.P Uttar Pradesh

V Versus

Vol Volume

INDEX OF AUTHORITIES

4
STATUARY COMPILATIONS

 THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860).

BOOKS AND DIGESTS

 Indian Penal Code, K.D Gaur, Lexis Nexis Universal Law Publisher, 5th Ed.

 The Indian Penal Code, Ratanlal and Dhirajlal, Wadhwa and Company Publishers,

Nagpur, 29th Ed

 The Indian Penal Code, Ratanlal and Dhirajlal, Lexis Nexis Butterworths Wadhwa

Nagpur, 33rd Ed

 Indian Penal Code, Volume 3, Dr. Hari Singh Gour, Law Publishers (India) Pvt. Ltd,

11th Ed

TABLE OF CASES

1. Director of Public Prosecution v. Ray, (1973) 3 All ER 131

2. Divender Kumar Singla v. Baldev Kumar Singla, AIR 2004 SC 3084

3. Ishwarlal Girdharilal, AIR 1969 SC 40

4. Mobarik Ali, (1958) SCR 328

5. R v. King, (1987) 1 All ER 547 (CA),

6. Sonbhandra Coke Products v. State of U.P., 1994 CrLJ 657 (All).

7. Sri Bhagwan Samradha Sreepada, etc. v. State of Andhra Pradesh, AIR 1999 SC 2332

STATEMENT OF JURISDICTION

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STATEMENT OF FACTS

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1. It was reported in a local newspaper that Sanjeevani Hospital in Greater Noida, was dumping

its bio-medical waste in its backyard, adjacent to which is the St. Mary’s School and just a

boundary wall separated the playground of the Hospital.

2. The photographs published in the newspaper had images of used syringes, used test tubes,

placenta, blood soaked cottons and other kinds of deadly wastes. Sanjeevani came out with a

publication in another competing newspaper, that those images were forged, and there was a

warehouse attached to the backyard to dispose of the wastes.

3. On 3-1-2018 students of St. Mary’s who had their class rooms on the ground floor next to the

playground complained of nausea and difficulty in breathing along with uneasiness.

4. After an in-house inquiry by the School Management it was revealed that the bio- medical

waste in the backyard of the hospital was responsible for the complaints by the students.

5. The School Management has decided to institute a suit restraining Sanjeevani Hospital from

keeping any bio- medical waste in their backyard and also claimed damages from the Hospital

because of the incident.

THE STATEMENT OF ISSUES

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1. WHETHER SANJEEVANI HOSPITAL FAILED TO FOLLOW THE BIO-MEDICAL
WASTE MANAGEMENT RULES, 2016 AND WERE NEGLIGENT IN THE DISPOSAL
OF THE WASTE CAUSING HARM OR NOT?

2. WHETHER SANJEEVANI HOSPITAL IS LIABLE TO PAY DAMAGES IN LIEU OF

THE SUMMARY OF ARGUMENTS

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I. THAT SANJEEVANI HOSPITAL FAILED TO FOLLOW THE BIO-

MEDICAL WASTE MANAGEMENT RULES, 2016 AND WERE

NEGLIGENT IN THE DISPOSAL OF THE WASTE CAUSING HARM.

II. THAT SANJEEVANI HOSPITAL IS LIABLE TO PAY DAMAGES IN LIEU

OF HARM CAUSED TO THE STUDENTS OF ST. MARY’S SCHOOL ON

ACCOUNT OF THEIR NEGLIGENCE

ARGUMENTS ADVANCED

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CONTENTION 1: THAT SANJEEVANI HOSPITAL FAILED TO FOLLOW THE BIO-
MEDICAL WASTE MANAGEMENT RULES, 2016 AND WERE NEGLIGENT IN THE
DISPOSAL OF THE WASTE CAUSING HARM

It is humbly submitted that in the present case the Hospital was negligent in performing its duties
which resulted in injury to the children studying in the school. The essence of tort was that a
person should be subject to liability for carelessly causing harm to another. 1 Also essential to
negligence, evident from an early date, was the necessity of a casual connection between the
defendant’s breach of duty and the plaintiff’s damage that was natural, proximate, and not too
remote.2

To commit the tort of negligence, there are primarily 3 main essentials or rather conditions that
are a perquisite to commit a negligent act which are namely:-

a) Existing duty of care,

It is evident from the facts of the case that the respondents, i.e., Sanjeevani Hospital were
required to undertake certain precautions when it comes to disposal of bio-medical waste. The
Ministry of Environment and Forests published the Bio-Medical Waste (Management and
Handling) Rules in 1998 by way of which they provided a regulatory frame work for
management of bio-medical waste generated in the country.

The Rules are in compliance with Section 6, 8 and 25 of the Environment Protection Act, 1986.
Section 6 of the Environment Protection Act lays down, that,

(1) The Central Government may, by notification in the Official Gazette, make rules in respect of
all or any of the matters referred to in section 3.

1
David G. Owen, The Five Elements of Negligence, Vol 35, Issue 4, HOFSTRA LAW REVIEW, 2007
2
William B. Hale, HANDBOOK ON THE LAW OF TORTS (1896), pg 44
3
Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111

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(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:--

(a) the standards of quality of air, water or soil for various areas and purposes;

(b) the maximum allowable limits of concentration of various environmental pollutants

(c) the procedures and safeguards for the handling of hazardous substances;

(d) the prohibition and restrictions on the handling of hazardous substances in different areas;

(e) the prohibition and restrictions on the location of industries and the carrying on of processes
and operations in different areas;

(f) the procedures and safeguards for the prevention of accidents which may cause environmental
pollution and for providing for remedial measures for such accidents.

Section 8 of the Act provides that, no person shall handle or cause to be handled any hazardous
substance except in accordance with such procedure and after complying with such safeguards as
may be prescribed.

Following the framework laid down under the above-mentioned provisions, the Bio-Medical
Waste Management Rules, 2016 came into existence and are required to be followed by all
medical bodies. These rules are essential when it comes to protection of the environment and
human beings from harmful wastes generated as an outcome of medical practices.

As per the Rules apply to all persons who generate, collect, receive, store, transport, treat,
dispose, or handle bio medical waste in any form including hospitals, nursing homes, clinics,
dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, ayush
hospitals, clinical establishments, research or educational institutions, health camps, medical or
surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic
laboratories and research labs.

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Furthermore, the definition of bio-medical wastes as given under the Rules, 2016, cover a wide
spectrum of wastes generated. The wastes that come under the purview of bio-medical wastes
have been mentioned in Schedule I of the Rules. A few have been mentioned as follows:

a) Human Anatomical Waste - Human tissues, organs, body parts and fetus below the
viability period.
b) Soiled Waste - Items contaminated with blood, body fluids like dressings, plaster casts,
cotton swab, bags containing residual or discarded blood and blood components.
c) Glassware - Broken or discarded and contaminated glass including medicine vials and
ampoules except those contaminated with cytotoxic wastes.
d) Waste sharps including Metals - Needles, syringes with fixed needles, needles from
needle tip cutter or burner, scalpels, blades, or any other contaminated sharp object that
may cause puncture and cuts. This includes both used, discarded and contaminated metal
sharps
e) Discarded linen, mattresses, beddings contaminated with blood or body fluid.

The fact sheet states clearly that according to the pictures in the local newspaper, there were
used syringes, used test tubes, placenta, blood-soaked cotton and sponges among other kinds
of deadly wastes. This goes on to prove that the Hospital did not comply with the rules laid
down which resulted in serious consequences.

It is humbly submitted that in addition to non compliance of the rules, the duties that were
imposed on the occupier were also not fulfilled.

The proper manner and procedure for disposal of bio-medical wastes is stipulated under
Section 4 of the Duties of the Occupier.-

It shall be the duty of every occupier to

(a) take all necessary steps to ensure that bio-medical waste is handled without any adverse
effect to human health and the environment and in accordance with these rules;

(b) make a provision within the premises for a safe, ventilated and secured location for
storage of segregated biomedical waste in colored bags or containers in the manner as
specified in Schedule I, to ensure that there shall be no secondary handling, pilferage of

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recyclables or inadvertent scattering or spillage by animals and the bio-medical waste from
such place or premises shall be directly transported in the manner as prescribed in these rules
to the common bio-medical waste treatment facility or for the appropriate treatment and
disposal, as the case may be, in the manner as prescribed in Schedule I;

(c) pre-treat the laboratory waste, microbiological waste, blood samples and blood bags
through disinfection or sterilisation on-site in the manner as prescribed by the World Health
Organisation (WHO) or National AIDs Control Organisation (NACO) guidelines and then
sent to the common bio-medical waste treatment facility for final disposal;

(d) phase out use of chlorinated plastic bags, gloves and blood bags within two years from
the date of notification of these rules;

(e) dispose of solid waste other than bio-medical waste in accordance with the provisions of
respective waste management rules made under the relevant laws and amended from time to
time;

(f) not to give treated bio-medical waste with municipal solid waste;

(g) provide training to all its health care workers and others, involved in handling of bio
medical waste at the time of induction and thereafter at least once every year and the details
of training programmes conducted, number of personnel trained and number of personnel not
undergone any training shall be provided in the Annual Report;

(h) immunise all its health care workers and others, involved in handling of bio-medical
waste for protection against diseases including Hepatitis B and Tetanus that are likely to be
transmitted by handling of bio-medical waste, in the manner as prescribed in the National
Immunisation Policy or the guidelines of the Ministry of Health and Family Welfare issued
from time to time;

(i) establish a Bar- Code System for bags or containers containing bio-medical waste to be
sent out of the premises or place for any purpose within one year from the date of the
notification of these rules;

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(j) ensure segregation of liquid chemical waste at source and ensure pre-treatment or
neutralisation prior to mixing with other effluent generated from health care facilities;

(k) ensure treatment and disposal of liquid waste in accordance with the Water (Prevention
and Control of Pollution) Act, 1974

(l) ensure occupational safety of all its health care workers and others involved in handling of
biomedical waste by providing appropriate and adequate personal protective equipments;

(m) conduct health check up at the time of induction and at least once in a year for all its
health care workers and others involved in handling of bio- medical waste and maintain the
records for the same;

(n) maintain and update on day to day basis the bio-medical waste management register and
display the monthly record on its website according to the bio-medical waste generated in
terms of category and colour coding as specified in Schedule I;

(o) report major accidents including accidents caused by fire hazards, blasts during handling
of biomedical waste and the remedial action taken and the records relevant thereto,
(including nil report) in Form I to the prescribed authority and also along with the annual
report;

(p) make available the annual report on its web-site and all the health care facilities shall
make own website within two years from the date of notification of these rules;

(q) inform the prescribed authority immediately in case the operator of a facility does not
collect the bio-medical waste within the intended time or as per the agreed time;

(r) establish a system to review and monitor the activities related to bio-medical waste
management, either through an existing committee or by forming a new committee and the
Committee shall meet once in every six months and the record of the minutes of the meetings
of this committee shall be submitted along with the annual report to the prescribed authority
and the healthcare establishments having less than thirty beds shall designate a qualified
person to review and monitor the activities relating to bio-medical waste management within
that establishment and submit the annual report;

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 (s) maintain all record for operation of incineration, hydro or autoclaving etc., for a period of
five years;

(t) existing incinerators to achieve the standards for treatment and disposal of bio-medical
waste as specified in Schedule II for retention time in secondary chamber and Dioxin and
Furans within two years from the date of this notification.4

The non-medical disposal of garbage also causes air pollution which degrades the quality of
air and public health. Every citizen has a fundamental right to get clean and fresh air under
Article 21 of the Constitution of India.5 The statutory authorities are remiss in discharge of
their duties. The municipal laws require scientific and proper disposal of garbage. The
garbage is to be collected, stored, segregated and transported and disposed of in a scientific
manner.6

Therefore, it is understood that there was a duty of care that was imposed upon the hospital to
take care while undertaking the disposal of its bio-medical waste. When the news reports
emerged, establishing the presence of bio-medical waste in the form of used syringes, used
test tubes, placenta, blood-soaked cotton and sponges among other kinds of deadly wastes, it
was evident that the hospital had failed to properly execute the duty imposed upon it as
provided for under the above mentioned Rules. This amounts to negligent behaviour.

CONTENTION 2: THAT SANJEEVANI HOSPITAL IS LIABLE TO PAY DAMAGES

To prove that whether there was an injury or nor lies upon the plaintiff i.e. the onus of proof is on
the plaintiff. However, there are exceptions to this rule such as the doctrine of Res Ipsa Loquitor,
which means things speak for itself.

There are 2 conditions for application of this doctrine, which are the following:

4
Sai Seva Nath Mandal v. State of Uttarakhand & Anr.,
5
T. Damoder Rao v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171
6
Ibid

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• The person who is injured is injured by negligence

• The negligence is not attributed by the injured person himself or some third party

If these two conditions are satisfied, then the onus of proof can be shifted from the plaintiff to the
defendant.7

In the case at hand, the facts clearly indicate that the respondents were lax in their duty towards
the people living in the vicinity of their hospital and towards the protection of the environment.
Their conduct of poor bio-medical waste disposal sheds light on the fact of their indifference to
the Rules prescribed by the Central Government which lay down a proper procedure for the
collection, transportation and disposal of such wastes as has been mentioned in the preceding
contention.

The Supreme Court rightly used the opportunity to create a landmark judgment imposing
absolute liability for protecting humanity and the environment. The principle in M.C. Mehta v.
Union of India8 was reiterated in simple terms in Indian Council for Enviro-Legal Action v.
Union of India9. The apex court called it the rule of "Polluter Pays", which gained global
appreciation and acceptance. ‘Generator is responsible’ is the universal principle holding the
health care establishments legally accountable for damage caused by waste management
processes.

It should be no answer to the enterprise to say that it had taken all reasonable care and that the
harm occurred without any negligence on its part. Because it is not possible to isolate the process
of operation from the hazardous preparation of substances or any other related elements that
caused the harm but, it is reasonable and justified to impose strict liability to pay the social cost
of the tragedy.

It is thus, safe to draw the inference that, in the present matter, the duty which was failed to be
upheld and fulfilled by the hospital, makes them liable for having violated the provisions laid
down under the Bio-Medical Waste Management Rules, 2016 and subsequently, the provisions
of the Environment protection Act, 1986

According to Rule 18 of the Bio-Medical Waste Management Rules, 2016 prescribes the
following:-

(1) The occupier or an operator of a common bio-medical waste treatment facility shall be liable
for all the damages caused to the environment or the public due to improper handling of bio-
medical wastes.

7
Minor Rampeary & Anr. V. Jai Prakash & Anr., A.I.R 1963 Pat 316
8
AIR 1987 SC 965
9
AIR 1996 SC 1466

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(2) The occupier or operator of common bio-medical waste treatment facility shall be liable for
action under section 5 and section 15 of the Act, in case of any violation.

Section 5 of the Environment Protection Act, 1986 provides for the power to give directions by
the Central Government. It lays down that, notwithstanding anything contained in any other law
but subject to the provisions of this Act, the Central Government may, in the exercise of its
powers and performance of its functions under this Act, issue directions in writing to any person,
officer or any authority and such person, officer or authority shall be bound to comply with such
directions.

For the avoidance of doubts, it is hereby declared that the power to issue directions under this
section includes the power to direct:-

a) the closure, prohibition or regulation of any industry, operation or process; or

Section 15 of the Act lays down that:-

1) whoever fails to comply with or contravenes any of the provisions of this Act, or the rules
made or orders or directions issued thereunder, shall, in respect of each such failure or
contravention, be punishable with imprisonment for a term which may extend to five
years or with fine which may extend to one lakh rupees, or with both, and in case the
failure or contravention continues, with additional fine which may extend to five
thousand rupees for every day during which such failure or contravention continues after
the conviction for the first such failure or contravention.
2) If the failure or contravention referred to in sub-section (1) continues beyond a period of
one year after the date of conviction, the offender shall be punishable with imprisonment
for a term which may extend to seven years.

It has been clear from the facts of the case that the hospital was the cause behind the
deterioration in health of the students of classes 1st, 2nd and 3rd, since they left extremely harmful
bio-medical wastes in their backyard which was right adjacent to the school premises.

As has been established by the previous and present contention, the Rules as notified by the
Central Government requires all medical institutions to follow the prescribed procedure for
disposal of bio-medical waste. Sanjeevani Hospital failed to perform this assigned duty and it
was in clear contravention of the provisions of the Rules and the corresponding Environment
Protection Act. Their negligence caused the students of St. Mary’s School to suffer and such
poor waste management has caused irrepairable damage to the environment as well. In light of
the same, it is safe to state that Sanjeevani Hospital is liable to pay damages due to its failure to
comply with stipulated rules and regulations pertaining to bio-medical waste disposal.

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 PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited,the
counsel of behalf of the plaintiff prays before this Hon’ble Court to kindly adjudge and declare:

1. THAT SANJEEVANI HOSPITAL WAS NEGLIGENT IN TREATING AND

2. THAT DAMAGES TO THE TUNE OF Rs. 2.5 LACS BE AWARDED TO THE

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 AND/OR

Pass any other appropriate order, which this Honorable Court may deem fit in light of Justice,
Equity and Good Conscience. For this act of kindness, the Counsel for Plaintiff as is duty bound
shall forever pray.

All of which is most humbly and respectfully submitted.

HUMBLY SUBMITTED

Sd/-

(Counsel for Plaintiff)

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