Professional Documents
Culture Documents
Applicant Memorial Final
Applicant Memorial Final
xi
MAHARASHTRA
Between
V.
At Mumbai
-NLIU BHOPAL-
Table of Contents……………………………………………...……………………………...Page ii of xi
TABLE OF CONTENTS
List of Abbreviations……………………………………………………………………………...iii of xi
Index of Authorities………………………………………………………………………….…….iv of xi
Table of Cases…………………………………………………………………………………..iv of xi
Statutes…………………………………………………………………………………………..v of xi
Websites……………………………………………………………………………………..…..v of xi
Statement of Jurisdiction………………………………………………………………….………vi of xi
Synopsis of Facts……………………………………………………………………………..……viii of xi
Issues Raised……………………………………………………………………………………...ix of xi
Summary of Arguments…………………………………………………………….…………….x of xi
Arguments Advanced………………………………………………………………………….……1 of 8
Prayer
LIST OF ABBREVIATIONS
Bom : Bombay
Corp. : Corporation
Cal : Calcutta
Co. : Company
Edn. : Edition
Govt. : Government
Hon’ble : Honourable
KAR : Karnataka
KB : King’s Bench
Ltd : Limited
Ors : Others
Pvt. : Private
QB : Queen’s Bench
& : and
v. : verses
INDEX OF AUTHORITIES
Table of Cases
5. Harmohinder Singh v. Anil Sehgal & Anr Revision Petition No. 955
of 1996,
NCDRC, New
Delhi
A Lakshminath, M Sridhar, Ramaswamy Iyer’s The Law of Torts, (10th edn Lexis Nexis
Butterworth
2007)
Cooke John, Law of tort (7th edn. british library cataloguing-in-publication data
2005)
Glannon W Joseph The law of torts, (2nd edn. Aspin Law and Business 2000)
Jones A Micheal, Text book on torts (8th edn. a Oxford university press 2002)
Majumdar P K, The law of consumer protection in india, (5th edn. Orient Publiting
Co. 2006)
Singh Avtar, Contract and Specific Relief, (10th edn. Eastern Book Co. Lucknow
2008)
- Statutes -
- Websites -
1. www.advantageconsumer.com
2. www.indiankanoon.org
3. www.lawof contracts.co.uk
4. www.legaldictionary.thefreedictionary.com
5. www.ncdrc.nic.in
STATEMENT OF JURISDICTION
The plaintiff knocks the door of this hon’ble court and invokes its original civil
jurisdiction
under the following sections of the CPC, 1908:
9. 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.
(b) Any of the defendants, where there are more than one, at the time of the
commencement of
the suit actually or voluntarily resides, or carries on business, or
personally works for gain,
provided that in such case either the leave of court is given, or the
defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid,
acquiesce in such
institution; or
BACKGROUND OF PARTIES
Plaintiff, Ms. Kalyani Tekriwal- resident of 29C Andheri, senior partner at the Law
Firm Silver
Circle & Associates
Defendant No. 2- the Sony Ericsson Service Centre, Andheri East, Mumbai
SYNOPSIS OF FACTS
would stop after she reached the mark of 5 km. every once a while she felt some
slight
chest pains.
5. On 25th December 2009, Ms. Tekriwal noted some defect in the battery and
charging
display of the mobile phone and immediately contacted Mr. Siddhique, who in
turn
provided her with a simple pedometer as he was aware of her health condition.
He told
her that repair would take two days.
6. On 28th December 2009 Ms. Tekriwal realized that the distance she regularly
jogged
assuming to be 5 kms according her mobile phone was actually 4 kms. She
immediately
called the Sony Ericsson Service Customer Care to lodge a complaint but it
refused to
entertain her complaint. Ms. Tekriwal also reported the defect to Mr.
Siddhique. However
he labled the defect as manufacturing defect and refused to take the liability
for the fault.
7. On 1st January 2010, Ms. Tekriwal sent a written complaint to the Sony Ericsson
Service
Centre about the malfunctioning of the pedometer bur there was never any
response from
them.
8. On 10th January 2010, Ms. Tekriwal felt severe chest pain and approached Dr.
Gurjar
who informed her that her health condition had not improved yet and she had
mererly lost
5 kgs.
9. On 18th January 2010, Ms. Tekriwal suffered from a heart attack and had to go
an
emergency bypass surgery costing 4 lakh.
10. Being aggrieved she filed a suit in the Civil Court of Mumbai to seek
compensation to the
tune of 4 lakh along with other damages.
Hence the present petition before the Hon’ble Civil Court of Mumbai.
ISSUES RAISED
SUMMARY OF ARGUMENTS
1.1 That there is a contract of sale between Ms. Tekriwal & Mr. Siddhique under
section 5(1) of
the Sale of Goods Act, 1930.
1.2 That there is an implied condition of the quality or fitness of the product
purchased under
section 16(1).
4.1 The Sony Ericsson Communication (I)(P) Ltd, Delhi is liable for negligently
incorporating
defective pedometer in the mobile phone.
4.2 The Sony Ericsson Communication (I)(P) Ltd, Delhi is vicariously liable for
the acts of its
Service Centre, the Sony Ericsson Service Centre, Andheri East, Mumbai.
5.1 That Mr. Pankaj Siddhique & the Sony Ericsson service center (andheri) Mumbai
are liable
for not carrying out the terms of warranty.
5.2 That Mr. Pankaj Siddhique & the Sony Ericsson service center (andheri) Mumbai
are liable
for the deficiency in service.
5.3 That the Sony Ericson Mobile Communications (I)(P)Ltd, Delhi is liable for
negligently
incorporating defective pedometer in the mobile phone and for the acts of the
Sony Ericsson
Service Centre, Andheri East, Mumbai
ARGUMENTS ADVANCED
1.1. There is a contract of sale of the Sony Ericsson W580i mobile phone.
1.1.1 The plaintiffs most reverentially submitted that a contract of sale of goods
is a contract
whereby the seller transfers or agrees to transfer the property in goods to
the buyer for a
price.1
1.1.2 It is further submitted that in the instant case defendant no. 1 agreed to
transfer or sell the
W580i phone to plaintiff for a price of Rs. 25000.
1.1.3 It is therefore most respectfully submitted that in the light of above stated
facts and
circumstances it is clear that there exists a contract of sale between the
plaintiff &
defendant no. 1.
1.2 That there is an implied condition of the quality or fitness of the product
purchased
under section 16(1).
______________________
or not), there is an implied condition that the goods shall be reasonably fit
for such
purpose2.
1.2.2 The implied condition only applies to defects not reasonably discoverable to
the buyer on
such examination as he made or could make a thing is sold by description,
though it is
specific, so long as it is sold not merely as the specific thing but as a
thing corresponding to
a description3.
1.2.2 It has been held in Mash & Murrel Ltd v Joseph Emanuel Ltd4 that “[I]f the
particular
purpose is made known by the buyer to the seller,….that in itself sufficient
to raise the
presumption that the buyer relies on the skill & judgment of the seller.”
Further if the good
is not of that quality & if it is not fit for such purpose, then the law
implies a promise from
the vendor that he will supply to the purchaser an article of that quality &
reasonably fit for
that purpose for which it is required5.
______________________
2. Section 16, Sale of Goods Act, 1930: Subject to the provisions of this Act and
of any other law for the time being
in force, there is no implied warranty or condition as to the quality or fitness
for any particular purpose of goods
supplied under a contract of sale, excepts as follows:-
(1) Where the buyer, expressly or by implication, makes known to the seller the
particular purpose for which the
goods are required, so as to show that the buyer relies on the seller’s skill or
judgement, and the goods are of a
description which it is in the course of the seller’s business to supply (whether
he is the manufacturer or producer or
not), there is an implied condition that the goods shall be reasonably fit for such
purpose.
2.2 The counsel for plaintiff humbly submits before the Hon’ble Civil Court of
Mumbai that the
sole purpose of buying the Sony Ericsson W580i mobile phone was that it had
an in-built
feature of a pedometer, which could be used by Ms. Tekriwal while jogging.
Hence the
correct functioning of pedometer formed the core and fundamental term of the
contract.
Furthermore the pedometer in the phone was not accurate and showed only four
kilometers
for five kilometers.
2.3 The very inaccuracy of the pedometer and denial to take liability resulted in
the
fundamental breach of contract on the part of Mr. Siddhique.
______________________
3.1 It is humbly submitted before the Hon’ble Court that "deficiency" means any
fault,
imperfection, shortcoming or inadequacy in the quality, nature & manner of
performance
which is required to be maintained by or under any law for the time being in
force or has
been undertaken to be performed by a person in pursuance of a contract or
otherwise in
relation to any service.7
3.1.1 It is humbly put forth that when the malfunctioning of the machinery is
during the period of
warranty, failure of the seller/manufacturer to rectify the defect amounts
to deficiency in
service8. Where the sale of machinery carries with it a warranty, the seller
is bound to
maintain it in a proper working order during the period of warranty.9
3.1.2The dealer cannot avoid his liability simply on the ground that he was not the
manufacturer.
It was his responsibility to carry out the terms of the warranty & in turn
he may involve the
manufacturer in fulfilling their obligations under the warranty10.
3.1.3 The written complaint sent by Ms. Tekriwal on 1st January to the Sony Ericson
Customer
Care was not entertained also Mr. Sidhhique refused to take any liability
for the fault &
failure to carry out the terms of warranty.
3.1.4 It is therefore submitted that Mr. Pankaj Siddhique & the Sony Ericsson
Service Centre are
liable for deficiency in service.
______________________
4.1 The Sony Ericsson Communications (I) (P) Ltd is liable under negligence for
incorporating a defective pedometer in the mobile phone.
4.1.1.1 The Sony Ericsson Communications (I) (P) Ltd owed a duty of care to Ms
Tekriwal
being its customer/consumer and with the imprecision of pedometer instated
in the phone
sold to her there has been a breach of that duty.
4.1.2.1 It is humbly put forth that the defendant must take his victim as he finds
him12. The
maxim is used to describe the notion that where the claimant is suffering
from a latent or
psychological predisposition to a particular injury or illness which the
harm inflicted by the
defendant triggers off, the defendant is responsible for the additional,
unforeseeable
damage that his negligence is produced. In Love v. Port of London
Authority13 the court
held that the defendants must take the plaintiff as they find him, that is
to say, with his
already vulnerable personality.
4.1.2.2 The counsel would like to submit that Ms. Tekriwal was suffering from acute
diabetes
and high cholesterol together with these she had a family history of Heart
attack, the error
in the pedometer exacerbated her illness and resulted in a heart attack.
______________________
4.1.3 Hence in the light of above stated facts the Sony Ericsson Communications (I)
(P) Ltd is
liable under negligence for incorporating a defective pedometer in the mobile
phone.
4.2 The Sony Ericsson Communications (I)(P) Ltd, Delhi is vicariously liable for
the acts
of the Sony Ericsson Service Centre, Andheri East, Mumbai.
4.2.1 Vicarious liability is a legal doctrine that assigns liability for an injury
to a person who did
not cause the injury but who has a particular legal relationship to the
person who did act
negligently. the principle behind vicarious liability is to put the
responsibility on the person
’who ought in justice to bear it’14 The rationale behind vicarious liability
is respondeat
superior i.e. let the master respond. It is a device to provide a “deep
pocket” defendant
able to pay the plaintiff’s damages.
4.2.2 It is humbly put forth that the manufacturing company, the Sony Ericsson
Communications
(I)(P) Ltd, Delhi is an apex body which controls the functions and activities
of its sub-
branches, the Sony Ericsson Service Centre being one of them. Hence it is
accountable for
every activity or function of its branches which are authorized and done
during the course
of the employment.
______________________
14. V.J. Acharya v Ratilal Fulchand Shah And Anr. 1 (1985) ACC 186.
5.1 It is to humbly submit that where the same damage is attributable to the
conductor two or
more tortfeasors and if they all have participated in the same act leading to
that damage
they are called joint tortfeasors on the other hand two or more tortfeasors
are severely liable
if different acts of theirs lead to the same damage15.
5.1.1 Where two or more persons are so engaged and damage results from the wrongful
act of
any one of them, that act is joint tort and all of them are responsible for
it as joint
torfeasors. Further their respective shares in the commission of the tort are
done in the
furtherance of a common design16.
5.2 In the light of the given facts, issues raised and arguments put forth, it is
most reverentially
submitted that the Defendants, Mr. Pankaj Siddhique, the Sony Ericsson
Service Centre,
Andheri East, Mumbai and the Sony Ericsson Communication (I)(P) Ltd are
jointly and
severally liable to pay compensation to Ms. Tekriwal to the tune of Four Lakh
Rupees as
their concurrent acts brought about the harm to the plaintiff.
5.3 Mr. Pankaj Siddhique is liable to Ms. Tekriwal for the fundamental breach of
contract and
not carrying out the terms of warranty, hence deficiency in service.
5.4 The Sony Ericsson Service Centre, Andheri East, Mumbai is liable to Ms.
Tekriwal for
Deficiency in service.
5.5 The Sony Ericsson Communications (I)(P) Ltd, Delhi is responsible for
negligently
Incorporating defective pedometer in the Sony Ericsson W580i mobile phone and
vicariously liable for the act of the Sony Ericsson Service Centre, Andheri
East, Mumbai.
______________________
15. Patel Roadways And Another v. Manish Chhotalal Thakkar & Ors ILR 2000 KAR 3286
16. Brook v. bool [1928] 2 KB 578
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced,
reasons given and
To hold Mr. Pankaj Siddhique, the owner of Pankaj Electronics, the Sony
Ericsson
Service Centre, Andheri East, Mumbai and the Sony Ericsson Co mmunicat ions
(I)(P)
To award compensat ion to the tune of four lakh for the medical charges and
alo ng wit h
the compensat ion for the agony suffered by the plaint iff, Ms. Tekriwal.
And any other relief that this Hon’ble Court may be pleased to grant in the
interests of