13 P

6TH ANMCC, 2020

AURO UNIVERSITY

6TH AURO NATIONAL MOOT COURT COMPETITION, 2020

MOST RESPECTFULLY SUBMITTED BEFORE

THE HON’BLE SUPREME COURT OF OXYONIA

MEMORIAL FOR THE APPELLANT

IN THE CLUBBED MATTER OF

1. SLP NO.____/2020

MR. DHANRAJ DHANI APPELLANT

VERSUS
THE REPUBLIC OF OXYONIA RESPONDENT

2. CIVIL APPEAL NO. ____/2020

MR. DHANRAJ DHANI APPELLANT

VERSUS
STATE OF MEDITERRANEO RESPONDENT

3. CIVIL APPEAL NO. ____/2020

MR.DHANRAJ DHANI APPELLANT

VERSUS
ALSET PVT. LTD. RESPONDENT

DRAWN AND FILED BY

COUNSELS APPEARING ON BEHALF OF THE
APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS …2

INDEX OF AUTHORITIES …3

STATEMENT OF JURISDICTION …5

STATEMENT OF FACTS …7

STATEMENT OF ISSUES …9

SUMMARY OF ARGUMENTS …10

ARGUMENTS ADVANCED …12

I. WHETHER THE SUIT FILED BEFORE THE HON’BLE SUPREME

COURT OF OXYONIA IS MAINTAINABLE

II. WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE VIOLATION OF PROVISIONS OF inter
alia THE CONSUMER PROTECTION ACT, 1986?

III. WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE ACCIDENT DATED 17th JULY 2018?

IV. WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE VIOLATION OF PROVISIONS OF
THE OXYONIAN PERSONAL DATA PROTECTION ACT, 2014?
PRAYER …32

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LIST OF ABBREVIATIONS

AAA American Automobile Association

ACC Adaptive Cruise Control
ADS Alternative Driving System
AIR All India Reporter
Anr. Another
ASCI Advertising Standards Council of India
DPAI Data Protection Authority of India

GPS Global Positioning System

H.C. High Court

Hon’ble Honorable
i.e. That is
ILR Indian Law Reports
LIDAR Light Detecting and Ranging

LTD. Limited

MACT Motor Accidents Claim Tribunal

Mad. Madras High Court

NTSB National Transportation Safety Board

NDRC National Dispute Redressal Commission

PVT. Private

SLP Special Leave Petition

SC Supreme Court of India
SCC Supreme Court Cases
Sec Section
TV Television
USP Unique Selling Point

v. Versus

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INDEX OF AUTHORITIES

PRIMARY SOURCES

STATUTES REFERRED

1) The Cable Television Networks (Regulation) Act, 1995

2) The Constitution of India, 1950
3) The Consumer Protection Act, 1986
4) The Motor Vehicle’s Act, 1988
5) The Personal Data Protection Bill, 2018

CASES CITED

1) Blyth v. Birmingham waterworks co., (1856) 11 Ex 781).

2) Chapman v. Hearse, (1961) 106 CLR 112.
3) Champalal v. Venkataraman, AIR 1966 Mad 466.
4) Donoghue v. Stevenson, SC (HL) 31.

5) George Tharakan v. Kochappi Narayanan, AIR 1972 Ker 159.

6) Jeet kumar Poddar v. chittagang engineering and electrical supply co. ltd. AIR
1947 Cal 195. (1856) 11 Ex 781).
7) KLM Royal Dutch Airlines v. Director General of Investigation, (2009) 1 SCC
230.
8) K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.
9) Lakhanpal National Ltd. v. MRTP Commission, (1989) 3 SCC 251.
10) O'Brien v. Intuitive Surgical, Inc. and Mracek v. Bryn Mawr Hospital ,47
U.S.P.Q. 2d (BNA) 1020 (N.D. Cal. 1998).
11) Pritam Singh v. Union of India, A.I.R. 1950 S.C. 169.
12) Poonam Verma v. Ashwin Patel, (1996) 4 S.C.C. 332.
13) Satyamati Devi v. Union of India, AIR 1967 Delhi 98.
14) Shakuntala Shridhar Shetty v. State of Maharashtra, (1976) 78 BOMLR 106.
15) Vinoo Bhagat v. General Motors (India) Ltd, 2003 SCC Online NCDRC 5.

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SECONDARY SOURCES

BOOKS REFERRED

1) Halsbury’s Law of England, 4th Edition.

2) 1 POLLOCK AND MULLA, MULLA INDIAN CONTRACT AND SPECIFIC
RELIEF ACTS (12th ed 2001).
3) J.N. Barowalia, Commentary on The Consumer Protection Act, 1986, (2 nd ed,
2000).
4) Justice D.P Wadhwa, Landmark Judgements on consumer Protection, 2003
Edition.
5) Ratanlal & Dhirajlal, Law of Torts, (23rd ed, 1997).
6) R. F. V HEUSTON & R. A. BUCKLEY, SALMOND AND HEUSTON ON
LAW OF TORTS.
7) W.V.H ROGERS, TORTS, (18th ed, 2010).

LAW JOURNALS, ARTICLES AND REPORTS

1) Advertising Standards Council of India, Code for Self-Regulation of Advertising

content in India.
2) American Automobile Association, Emergency Automatic Braking with
Pedestrian Detection (Oct 2019).
3) Jessica S. Brodsky, Autonomous Vehicle Regulation, 31 BERKLEY
TECHNOLOGY L.J.
4) Misleading Advertisements and Exploitation of Consumers: Is the Law Silent?
5) National Transportation Safety Board. 2019. Collison Between Vehicle Controlled
by Developmental Automated Driving System and Pedestrian. Highway Accident
Report.
6) Rajesh Vellakkat, Fixing Liability for The Failure of Intelligent Machines.
7) Shiv Shankar Singh, Privacy & Data Protection in India, (2012) PL February.

STATEMENT OF JURISDICTION

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___________________________________________________________________________

It is respectfully submitted before the Hon’ble Court that the provision under which the
Appellant has approached the Supreme Court of Oxyonia is submitted herein under:

Article 136 of The Constitution of India, 1950

“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.1

It is respectfully submitted before the Hon’ble Court that the appellant has approached the
Supreme Court of Oxyonia to appeal against the decision of National Consumer Disputes
Resolution Commission of Oxyonia under Article 23 of Consumer Protection Act, 1986,
stating –

Article 23 of The Consumer Protection Act, 1986

“Any person, aggrieved by an order made by the National Commission in exercise of its
powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against
such order to the Supreme Court within a period of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period
of thirty days if it is satisfied that there was sufficient cause for not filing it within that
period.”2

Further, the Hon’ble Supreme Court is vested with the Jurisdiction to hear the present matter
1
INDIA CONST. art 136.
2
Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.

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under Article 133(1) of the Constitution of India, 1950 to review the decision of the High
Court of Mediterraneo. The article herein reads under as:

Article 133(1) of The Constitution of India,1950

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A

(a)  that the case involves a substantial question of law of general importance; and

(b)  that in the opinion of the High Court the said question needs to be decided by the
Supreme Court3

The present memorandum sets forth the facts, contentions and arguments in the present case.

STATEMENT OF FACTS

3
INDIA CONST. art 133 cl 1.

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1. Alset Pvt. Ltd. is a company primarily known for manufacturing cars, established
under Companies Act, 2013 with its registered office in New Equatoriana. Recently, it
has been expanding its scope by venturing into new technologies for which it has
established various subsidiaries. On January 1st, 2017, Alset launched the Model A, a
new brand of internet-enabled autonomous cars in the Republic of Oxyonia.
2. The USP of the car was that it could automatically communicate with the GPS and
Internet to automate the entire drive with the driver required to constantly supervise
and monitor the car. The car used technologies like Light Detecting and Ranging
(LIDAR) sensors, radar sensors, cameras, computer mapping systems that allowed to
read the environment, and was automated to accommodate a combination of multiple
functions such as adaptive cruise control, lane centering and braking to dodge
obstacles, traffic and avoid collisions.
3. Alset changed its slogan specifically for Model A from ‘safety first’ to ‘Just Let Go!’,
‘Leave the driving to it’ and ‘It’s not a car, it’s an experience’. The advertisements of
Model A on TV showed the driver playing board games with the passengers behind
with his seat turned 180 degrees such that he is facing the back seats, taking selfies,
reading books and doing unrealistic things that a traditional driver wouldn’t.
4. Mr. Dhanraj Dhani is a man of luxury, residing in the city of Rarisia. Dhanraj had
been amongst the very loyal customers of Alset for as long as he can remember and
like other customers, his trust in Alset has been unshakable since the very beginning.
However, when earlier in 2017 he came to know about the Model A, surprisingly he
was very skeptical of this new technology and the claims that Alset was making about
Model A through its advertisements. He bought the Model A on February 20th, 2017.
5. On 1st May 2017, Dhanraj received a feedback call from Alset where he was asked to
log into the mobile app, Model A Experiencez, by providing his personal information,
for an enhanced experience of the car, Dhanraj encountered a notice in the form of a
click-wrap agreement to which he agreed without reading.
6. By November, the car began taking inconvenient routes filled with retail outlets of
products either manufactured by subsidiaries of Alset or which matched the shopping
preferences of Dhanraj.
7. On 17th July 2018, Rarisia faced heavy unprecedented rainfall and the car again took
a more crowded route surrounded by shopping centers and various advertisement
sources, when all of a sudden, a lady who was heavily intoxicated jumped in front of

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the car. At that moment the car failed to brake and steered towards the right to collide
with Dhruval, instead.
8. Dhruval sued Dhanraj and the insurance company at the MACT for Rs. 20,00,000/-
which held the decision in favor of him and divided the compensation to be paid
between the insurance company and Dhanraj equally. MACT had also made Alset Pvt
Ltd a party to the case so as to ensure that justice is being done to all. Mr. Dhanraj
aggrieved by the decision, appealed to the High Court of Mediterraneo which
confirmed the decision of the Tribunal and dismissed the appeal with costs.
9. He then filed a suit at State Consumer Disputes Redressal Commission of Rarisia for
Rs. 60,00,000/- claiming inter alia that the car was defective in nature and that Alset
indulged in false advertising. The State Commission found no merit in the suit of Mr.
Dhanraj and passed the judgement in favor of the company. Dhanraj aggrieved by the
decision of the State Commission appealed to the National Commission which also
disposed of the appeal. Upon consulting his lawyer, Dhanraj further appealed to the
Supreme Court of Oxyonia where the matter is currently pending for hearing.
10. On 1st January 2019, the nationwide media was flooded with reports claiming that
Alset was using personal data of its customers to personalize advertisements in the car
and to reroute the vehicle to pass retail outlets which may match a user’s imputed
preferences in the name of providing enhanced experience. Since Alset conceded to
this fact and came into an infamous light, multiple cases involving Model A accidents
began surfacing.
11. Dhanraj filed a complaint with the Data Protection Authority of India for claiming
compensation for breach of his privacy. The DPAI dismissed the complaint on
grounds that the consent was lawfully obtained and there was no harm to Dhanraj, as
a result, Dhanraj filed a Special Leave Petition before the Supreme Court of Oxyonia
claiming compensation inter alia for breach of personal data provided by him. The
Supreme Court, realizing the gravity of the ramifications of autonomous vehicles,
clubbed the appeal from the High Court, National Commission and the Special Leave
Petition under the Supreme Court Rules, 2013.

STATEMENT OF ISSUES
___________________________________________________________________________

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ISSUE I

WHETHER THE SUIT FILED BEFORE THE HON’BLE SUPREME

COURT OF OXYONIA IS MAINTAINABLE?

ISSUE II

WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE VIOLATION OF PROVISIONS OF
inter alia THE CONSUMER PROTECTION ACT, 1986?

ISSUE III

WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE ACCIDENT DATED 17 th JULY
2018?

ISSUE IV

WHETHER THE RESPONDENT IS LIABLE TO PAY

COMPENSATION FOR THE VIOLATION OF PROVISIONS OF
THE OXYONIAN PERSONAL DATA PROTECTION ACT, 2014?

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SUMMARY OF ARGUMENTS
___________________________________________________________________________

ISSUE I

WHETHER THE SUIT FILED BEFORE THE HON’BLE SUPREME COURT OF

OXYONIA IS MAINTAINABLE
It is humbly submitted before the Hon’ble Court that the suit filed before the Supreme Court
of Oxyonia is maintainable under Article 136 of the Constitution of India, 1950 which vests
power to the Supreme Court to grant special permission or leave to appeal against an order
passed in any of the lower courts or tribunals in India. Furthermore, the appellant has
approached the court under Article 133(1) of the Constitution of India, 1950 to appeal against
the decision passed by the High Court of Mediterraneo. Both these appeals require a
substantial question of law and have a special circumstance as the case pertains to new
generation of internet enabled autonomous car. The Republic of Oxyonia does not have a
proper legal framework to deal with such issues.

ISSUE II

WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR THE

ACCIDENT DATED 17TH JULY 2018
It is humbly submitted before the Hon’ble Court that the respondent i.e. Alset Pvt. Ltd. shall
be held liable for the accident dated 17 th July 2018 because it was the deliberate decision of
the car, due to its programming that led to the collision between Dhruval and the car, thus
injuring him for two months and causing him loss in terms of medical expense, damage to
motorbike, loss of income etc. Furthermore, it was the negligence of the company in terms of
altering the routes to further its marketing strategy that put its user and Dhruval in jeopardy.

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ISSUE III

WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR THE

VIOLATION OF inter alia THE CONSUMER PROTECTION ACT, 1986
It is humbly submitted before the Hon’ble Court that the respondent shall be held liable to
pay compensation for the violation of provisions of Consumer Protection Act, 1986 in terms
of providing a defected car to the appellant along with indulging in false advertisement. The
TV advertisement of the company was false and misleading since it deceived its viewers by
portraying an unrealistic image of the car and did not provide important information about the
role of the driver. Furthermore, the accident dated 17 th July 2018 took place because of the
defect in the car as the technologies used by the car were put in place to avoid traffic,
collisions and obstacles all of which made up for the essential elements that led to the
accident.

ISSUE IV

WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR THE

VIOLATION OF PROVISIONS OF THE OXYONIAN PERSONAL DATA
PROTECTION ACT, 2014.
It is respectfully submitted that the respondent failed to process the data of the appellant in a
reasonable manner and so can be held liable for breach of privacy under the provisions of
Personal Data Protection Bill, 2018. Company when gathered information about the
appellant’s shopping preferences and used it for their marketing interest by adjusting the
routes that pass through specific retail outlets breached the privacy of the appellant. Mr.
Dhanraj agreed to the notice in lieu of enhanced experience as was explained by the Alset
representative during the feedback call made on 1 st May 2018 but was instead deceived by the
respondent to further their own promotion techniques.

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ARGUMENTS ADVANCED

I.WHETHER THE SUIT FILED BY THE APPELLANT IS MAINTAINBLE

It is humbly submitted before the Hon’ble Supreme Court of Oxyonia that the Special Leave
Petition filed by the appellant is maintainable under Article 136 of the Constitution of India,
1950 which reads herein under,

“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.4

Under Article 136, the Constitution of India gives power to the Supreme Court to grant
special permission or leave to appeal against an order passed in any of the lower courts or
tribunals in India.

SLP can be presented under the following circumstances—

 It can be filed against any judgment or decree or order of any high court /tribunal in
the territory of India, or
 It can be filed in case a high court refuses to grant the certificate of fitness for appeal
to the Supreme Court of India.

It was held by the Court that it will not grant special leave, unless it is shown that exceptional
and special circumstances exist, that substantial and grave injustice has been done and that
the case in question presents features of sufficient gravity to warrant a review of the decision
appealed against.5

4
INDIA CONST. art. 136.
5
Pritam Singh v. Union of India, A.I.R. 1950 S.C. 169.

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It is humbly submitted that the present case has sufficient gravity to warrant a review against
the decision of the DPAI as it pertains to the new technology of internet enabled autonomous
car equipped with artificial intelligence and internet of things. There exists a special
circumstance as this was first of its kind technology introduced in Oxyonia and there doesn’t
exist a proper legal framework to deal with such issues. The unauthorized use of personal
data of the appellant to adjust his routes so as to serve their own monetary interests amounts
to injustice being done to the appellant and so is respectfully submitted that this suit is
maintainable before the Hon’ble Court.

Further, the Hon’ble Supreme Court of Oxyonia is vested with Jurisdiction to hear the present
matter under Article 133(1) of the Constitution of India, 1950 which is:

“(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A
(a)  that the case involves a substantial question of law of general importance; and

(b)  that in the opinion of the High Court the said question needs to be decided by the
Supreme Court”6

It is humbly submitted that the appeal against the decision of High Court of Mediterraneo
stands maintainable under this Court as the present case requires a substantial question of law
of general importance due to the reasons aforementioned.

6
INDIA CONST. art. 133, cl 1.

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II. WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR

THE ACCIDENT DATED 17TH JULY 2018

It is humbly submitted before the Hon’ble Supreme Court that the appellants have
approached the said court under Article 133(1) of the Indian Constitution dealing with the
appellate jurisdiction of the Supreme Court.

It is most respectfully submitted that the appellant shall not be held liable for the unfortunate
accident that took place on the fateful evening of 17th July 2018 wherein the appellant’s car
failed to brake when a lady abruptly jumped in front of it and steered right to hit Dhruval
instead. The appellant was driving an internet enabled autonomous car, Model A, which was
equipped with features such as ACC and lane centering. The car that day was in its usual self-
driving mode and the appellant was entirely disengaged with its functioning. The decision to
steer right and collide with Dhruval instead of braking and hitting the lady was one taken
deliberately and entirely by Model A, and so the appellant can’t be made liable for the
accident.

Autonomous vehicles, capable of navigating with little or no human intervention, may be the
solution to many of the problems caused by traditional automobiles and provide some
unexpected benefits. For example, ninety percent of car accidents are caused by human error.
But once autonomous cars are commercially available, many predict accidents rates will
decrease rapidly.7

In the present matter, it is clearly stated in Moot Proposition, paragraph 10 that the appellant
vividly remembered how the car itself managed to spot obstacles before him along with
braking and accelerating in the precise measures and with precise timings to improve speed
without having the hassle of any erratic behavior by the vehicle. He would often say to
himself that the car drives itself better than any driver he has ever hired. This reinstates the
fact that autonomous cars, Model A in particular is more efficient in obstacle spotting as
compared to humans and thus the appellant can’t be held liable for the decision of the vehicle
after spotting the obstacle.

According to the report of NTSB on the Uber accident relating to killing of a female
7
Jessica S. Brodsky, Autonomous Vehicle Regulation, 31 BERKLEY TECHNOLOGY L.J. 851, 852 (2016).

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pedestrian by the autonomous car using ADS, it was held that,

The ADS detected the pedestrian 5.6 seconds before impact. Although the ADS continued to
track the pedestrian until the crash, it never accurately classified her as a pedestrian or
predicted her path. By the time the ADS determined that a collision was imminent, the
situation exceeded the response specifications of the ADS braking system—1.2 seconds
before impact. It initially classified the pedestrian as a vehicle, and subsequently also as an
unknown object and a bicyclist. 8

In the above case the LIDAR technology of the car had spotted the pedestrian 5.6 secs before
the impact but failed to clearly determine its path. At the same time the findings from the
camera indicate that the pedestrian became visible only 2 secs before the impact.

“The first time the pedestrian is visible on the recording is about 2 seconds before the
collision. Her shoes are the first objects to become visible, followed by the wheel rims of the
bicycle she is pushing. About 1 second before the collision, the pedestrian is seen looking
over her right shoulder toward the SUV. She appears to be wearing white shoes, blue jeans,
and a dark coat”9

A possible deduction from the similar situations can be that the car although spotted the lady
long before the accident failed to take appropriate measures so as to avoid the collision. The
accident report also claimed that the Model A failed to brake when the lady appeared and that
there was no other alternative possible for the car to choose apart from colliding with either
of the three persons present in its vicinity. The collision therefore was imminent and there
was nothing that Dhanraj could have done to mitigate the damage, since the car was
programmed to take the decision in such a situation.

2.1 That the respondent i.e. Alset Pvt Ltd shall be held liable for the accident dated 17 th
July 2018 under product liability

It is humbly submitted before the Hon’ble Court that this case requires product liability

8
National Transportation Safety Board. 2019. Collison Between Vehicle Controlled by Developmental
Automated Driving System and Pedestrian. Highway Accident Report NTSB/HAR-19/03. Washington, DC.
9
National Transportation Safety Board. 2019. Collison Between Vehicle Controlled by Developmental
Automated Driving System and Pedestrian. Highway Accident Report NTSB/HAR-19/03. Washington, DC.

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against the respondent. The use of artificial intelligence and neural networks in autonomous
vehicles may create surprising and unexpected complications in determining liability, and
courts may not know exactly how to approach these problems. In the context of autonomous
vehicles, where the vehicle, as opposed to the driver, is presumed to be in control, products
liability theoretically fits.10

For any accidents caused by the machines the liability is determined after determining the
cause of the accident. If it is found to have been caused by the negligence or failure of the
user/operator, then that individual will be liable. If machine failure is clearly established as
the cause of the failure or accident, then the manufacturer of the machine is made liable. If
there is a manufacturing defect, or a design defect or even a failure on the part of the
manufacturer to warn user about the non-obvious risk factors, the manufacturer is invariably
made liable for accidents resulting therefrom.11

In O'Brien v. Intuitive Surgical, Inc. and Mracek v. Bryn Mawr Hospital, US courts

considered the liability of error on the error of Da Vinci robot that performs surgery. In the
said case the US Court concluded that anyone that has a role in the development of the
machine and helps to map out its decision making is potentially responsible for wrongful acts
involving the machines committed by neglect or intentionally. This attributes the entire
liability on the manufacturer.12 

In the present case, the car was driving itself on the day of accident i.e. autonomous vehicle
itself was in control instead of the appellant and so the principle of product liability can be
applied. The decision to hit Dhruval being one of the car, the respondent shall be held liable.

2.2 That the respondent is liable for negligence towards Dhruval

In the present matter, According to Moot Proposition, paragraphs 12 and 13, The city of
Rarisia experienced unprecedented heavy rainfall on 17 th July 2018. At the end of the day,
sometime after 9:30 pm, the appellant was travelling in his Model A car to go back home.
The car did not take the usual route and routed itself to a more crowded street surrounded by

10
Jessica S. Brodsky, Autonomous Vehicle Regulation, 31 BERKEY TECHNOLOGY L.J. 851, 861 (2016).
11
Rajesh Vellakkat, Fixing Liability for The Failure of Intelligent Machines, (2017) PL (IT) April 86.
12
O'Brien v. Intuitive Surgical, Inc. and Mracek v. Bryn Mawr Hospital ,47 U.S.P.Q. 2d (BNA) 1020 (N.D. Cal.
1998).

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shopping centres, markets, and various advertisement sources that catered to the company.
Alset Pvt Ltd. later conceded to the fact that they had been using the personal data of its
customers to personalize advertisements displayed in the car, even to adjust a vehicle’s route
in the name of providing enhanced experience so that the car passes retail outlets which may
match its user’s imputed preferences. The accident on that day occurred due to the negligent
act of the company in taking such a route that could put the user of the car and other
pedestrians in danger.

Negligence is the breach of a duty caused by the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do.13

In the case of Poonam Verma v. Ashwin Patel14 in which negligence was proved, it was laid
down that three elements needed to be proved in cases of negligence, they are-
i. Defendant should be under a duty to take reasonable care towards the plaintiff to
avoid the damage complained of, it means a legal duty rather than a mere moral,
religious or social duty. The plaintiff has to establish that the defendant owed to him a
special legal duty to take care, of which he has made a breach.
ii. There must be breach of duty on the part of the defendant,
iii. The breach of duty was legal cause of the damage complained of.

All of the three elements as discussed above are dealt with in the present case,

 Duty of care

The existence of a duty situation or a duty to take care is essential before a person can be held
liable in negligence.15 The general principle of foreseeability and proximity applicable in
solving cases presenting the existence or otherwise of a new duty situation was laid down by
Lord Atkin in the celebrated case of Donoghue v. Stevenson in the following words “You
must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems

13
Blyth v. Birmingham waterworks co. (1856) 11 Ex 781).
14
Poonam Verma v. Ashwin Patel (1996) 4 S.C.C. 332.
15
Jeet kumar Poddar v. chittagang engineering and electrical supply co. ltd.AIR 1947 Cal 195.

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to be persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question”16

Applying these principles to the present case, the appellant during the selection of route and
at the time of the accident was not in control of the car. The car by itself selected the routes.
Therefore, the car owes the same duty of care to its neighbours that a driver of a normal car
owes to other motorists and pedestrians.

Dilating upon the duties of the driver of a motor vehicle, Venkatadri J. observed in
Champalal v. Venkataraman
“The driver must keep a proper look-out for pedestrians or other users of the road. He must
whenever expediently give warning of his approach as at cross roads. Even if another user of
the road is negligent, he must exercise due skill in trying to avoid the consequence of that
negligence.”17

It was held in the case of Shakuntala Shridhar Shetty v. State of Maharashtra that,
“There can be no doubt that a person in the control of a motor vehicle must keep a good
look-out in all the directions of the road, on the sides and in front of him and if he does so it
would naturally be expected that he would be able to notice a person walking or riding a
cycle right in front of him.”18

Referring to the aforementioned precedents in the present case, the Model A car which is
operated by Alset Pvt Ltd. owed a duty of care to Dhruval, who was on his motorcycle when
he was suddenly struck by the car on 17th July 2018.

 Breach of duty of care

The car after selecting an inconvenient route for the plaintiff, found itself to be on a heavily
trafficked road, when suddenly a woman appeared in front it and at the instance the Model A
made a technical decision to steer towards its right, hitting Dhruval. The car had failed to
apply the brakes. This accident took place late at night, when there was heavy rainfall and the
car was on a heavily trafficked road.
16
Donoghue v. Stevenson SC (HL) 31.
17
Champalal v. Venkataraman AIR 1966 Mad 466.
18
Shakuntala Shridhar Shetty v. State of Maharashtra (1976) 78 BOMLR 106.

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 6TH ANMCC, 2020

The standard by which we determine whether a person has been guilty of negligence is the
conduct of a prudent man in the particular situation; the amount of care, skill, diligence or the
like, varying according to the particular case.19 The general principle is that before negligence
can be established it must be shown not only that the event was foreseeable but also that there
is a likelihood of injury.20 To base liability upon foreseeability alone would be too severe, for,
foreseeability does not include any idea of likelihood at all.21

It was held in the case of George Tharakan v. Kochappi Narayanan that,

“A pedestrian or a cyclist may sometimes be negligent and may cause damage, but a
motorist causing damage by negligent driving causes casualties when life is lost. Naturally,
the very severity of the consequence must lead to greater diligence. I would, therefore, expect
an automobile driver, as a prudent man, to take far more care than a pedestrian or cart-
driver. Similarly, driving on a city road or along a residential street which is crowded, and
there being shops by the road, calls for greater care on the part of a speedy mortorist. Again,
a road which is narrow, puts the driver under a more serious obligation of
circumspection.”22
It was held in the case of Satyamati Devi v. Union of India that,
“…a driver of a car should take greater care when it is raining or drizzling...”23

According to the report of American Automobile Association (AAA) on Automatic

Emergency Breaking with Pedestrian Detection, the LIDAR technology that is responsible
for mapping the environment is sensitive to precipitation.

“Currently, lidar systems are somewhat sensitive to precipitation and fog. An additional
potential limitation to lidar is its tendency to be blinded by direct sunlight; however,
countermeasures that seek to address this issue are under development.”24

Herein, the respondent having deliberately chosen a route with heavy traffic despite heavy
rainfall, should have exercised due diligence so as to avoid the accident that took place. The
19
RATANLAL & DHIRAJ LAL, THE LAW OF TORTS, 521 (28TH ED 2019).
20
R. F. V HEUSTON & R. A. BUCKLEY, SALMOND AND HEUSTON ON LAW OF TORTS , 231(20TH ED
2000)
21
Chapman v hearse (1961) 106 CLR 112.
22
George Tharakan v. Kochappi Narayanan, AIR 1972 Ker 159.
23
Satyamati Devi v. Union of India, AIR 1967 Delhi 98.
24
American Automobile Association, Emergency Automatic Braking with Pedestrian Detection (Oct 2019)
file:///C:/Users/sai/Desktop/auro%20moot/Research-Report-Pedestrian-Detection.pdf.

19| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

car shows a further disregard for the safety of the appellant and others due to the fact that
even though there was heavy rainfall which can hinder the functioning of the advanced
technologies of the car namely LIDAR and that it was late at night which would hinder the
visibility of the cameras, it still decided to take the unusual route solely for the benefit of the
company.

 Damage caused due to negligence

The Model A car in order to avoid hitting the lady, steered to its right and hit Dhruval.
Dhruval was wearing all the safety gear he was required to by law, yet when the car struck
him on the heavily trafficked road, he was hospitalized for 2 months. Dhruval due to this
accident faced physical and mental agony. There was damage to his motorbike, he had
unnecessary medical expenses and there was loss of income due to his absence from his job.

As enunciated above the appellant is not liable for the accident that occurred on 17 th July
2018, rather the respondent is fully liable for the accident. It is humbly submitted that the
appellant shall be relieved of the compensation amount due to Dhruval. At the same time, the
appellant requests that he shall be made good for the inconvenience faced by him as the Court
deems fit.

20| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

III. WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR

THE VIOLATION OF PROVISIONS OF inter alia THE CONSUMER PROTECTION
ACT, 1986.

It is humbly submitted before the Hon’ble Court that the appellant has approached the court
under Article 23 of Consumer Protection Act, 1986. The respondent shall be held liable to
pay compensation for the violation of provisions of inter alia The Consumer Protection Act,
1986.

3.1 The respondent is liable for false and misleading advertisement

The TV advertisement provided by Alset Pvt Ltd. showed the car operating at the highest
level of autonomy. The driver was seen indulging in frivolous activities while the car drove
itself smoothly on the road. The driver seat in the advertisement was turned 180 degrees with
the driver clicking selfies and playing board games with fellow passengers, thus clearly
indicating that the driver had no supervision over the driving of the car. Whereas, the USP of
Model A clearly states that the driver is required to constantly supervise and monitor the
drive, thus the TV advertisement made false claims to the viewers, failed to provide
important information and mislead its customers into believing that the car was fully
automatic and completely drove itself requiring no supervision.

According to Section 2(r) of the Consumer Protection Act, 1986 —

“unfair trade practice” means a trade practice which, for the purpose of promoting
the sale, use or supply of any goods or for the provision of any service, adopts
any unfair method or unfair or deceptive practice including any of the
following practices, namely: —
(1) the practice of making any statement, whether orally or in writing or
by visible representation which, —
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade,
composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(vi)makes a false or misleading representation concerning the need for, or the usefulness

21| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

of, any goods or services.”25

Section 6 of Consumer Protection Act, 1986 states –

“The objects of the Central Council shall be to promote and protect the rights of the
consumers such as, —
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of
goods or services, as the case may be so as to protect the consumer against unfair trade
practices;
(f) the right to consumer education.”26

An advertisement can be said to be misleading when such advertisement, in any way, either
in its wording or presentation deceives or is likely to deceive the persons to whom it is
addressed or whom it reaches; or by reason of its deceptive nature, is likely to affect their
economic behavior or for those reasons, injures or likely to injure a competitor. 27 According
to Moot Proposition, paragraph 4, Alset considered the safety of its cars, a critical priority.
It’s slogan ‘Safety First’ gained the company popular acceptance amongst people, but for the
first time, Alset changed its slogan especially for Model A to ‘Just Let Go!’, ‘Leave the
driving to it’ and ‘It’s not a car, it’s an experience’ which highlights the company’s
overconfidence in its technology and it’s casual attitude towards the safety of the customers
purchasing Model A.

According to the ASCI code, advertisements have a significant influence on people's

behaviour. As such, advertisers are encouraged to depict advertisements, in a manner which
promotes safe practices, e.g. wearing of helmets and fastening of seat belts, not using
mobiles/cell phones when driving, etc.  The guidelines state, specifically, that advertisements
should not (a) Portray violation of the Traffic Rules, 28 

The amendment made in Cable Television ‘Networks (Amendment) Rules, 2006 section 7
now states that,

25
Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.
26
Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.
27
Misleading Advertisements and Exploitation of Consumers: Is the Law Silent? 3-5 RMLNLUJ (2011-2013)
48.
28
Advertising Standards Council of India, Code for Self-Regulation of Advertising Content in India.

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 6TH ANMCC, 2020

“(9) No advertisement which violates the Code for Self-Regulation in Advertising, as adopted
by the Advertising Standards Council of India (ASCI), Mumbai for public exhibition in India,
from time to time, shall be carried in the cable”29
In the present matter, the company’s advertisement did not adhere to the guidelines of ASCI
by displaying the violation of traffic rules in terms of the driver using his mobile phone while
the car was in the self-drive mode. The driver in the advertisement was seen disengaged and
did not exercise any supervision on the car at all, thus the TV ad was unable to promote safe
driving practices.

The Apex Court in KLM Royal Dutch Airlines v. Director General of Investigation and
Registration,30 states,

“It is not possible to provide an exclusive list of statements which may constitute misleading
representation nor there can be any strait jacket formula evolved thereof for the said
purpose. However, the statements of the nature which are willfully made knowingly false, or
made recklessly without belief in its truth, and made with the purpose to mislead or deceive
will definitely constitute a false or misleading representation. In addition, a failure to
disclose a material fact when a duty to disclose that fact has arisen will also constitute a
misleading representation.

It is stated in Halsbury's Law of England, that a representation will be deemed to be

misleading if it is false in substance and in fact; and the test by which the representation is to
be judged is to see whether the discrepancy between the fact as represented and the actual
fact is such as would be considered material by a reasonable representee.31

According to the Advertising Standards Council of India, Advertisements shall neither distort
facts nor mislead the consumer by means of implications or omissions. Advertisements shall
not contain statements or visual presentation which directly or by implication or by omission
or by ambiguity or by exaggeration are likely to mislead the consumer about the product
advertised or the advertiser or about any other product or advertiser.

29
Cable Television Networks (Regulation) Act, 1995 No. 7, Acts of Parliament, 1995.
30
KLM Royal Dutch Airlines v. Director General of Investigation and Registration, (2009) 1 SCC 230.
31
Halsbury Law of England, paragraphs 1044 and 1045 (4th Ed.).

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 6TH ANMCC, 2020

The apex court held in Lakhanpal National Ltd. v. MRTP Commission.32 that—

“…the object is to bring honesty and truth in the relationship between the manufacturer and
the consumer, the key to the solution would be to examine whether it contains a false
statement and is misleading and further what is the effect of such a representation made by
the manufacturer on the common man? Does it lead a reasonable person in the position of a
buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the
representation is correct or incorrect in the literal sense. A representation containing a
statement, apparently correct in the technical sense may have the effect of misleading the
buyer by using tricky language.”

3.2 The respondent is liable for providing a car that was defected in nature.

It is humbly submitted before the Hon’ble Court that the respondent shall be held liable for
providing a defected car to the appellant which was substandard in quality. It was because of
the defect in the car that on 17 th July 2018, it failed to brake in time and ended up colliding
with Dhruval thus causing the accident.

Section 2(1)(f) of the Consumer Protection Act, 1986 defines defect as –

““defect” means any fault, imperfection or shortcoming in the quality, quantity, potency,
purity or standard which is required to be maintained by or under any law of the time being
in force under any contract, express or implied or as is claimed by the trader in any manner
whatsoever in relation to any goods.”33

The consumer forums may provide remedies as given under Section 14 which include: (i)
issuing interim orders stopping advertisements that are false, deceptive or misleading; (ii) to
pass cease and desist order; (iii) award compensation for loss or suffering, including punitive
damages or litigation cost to the affected party; and (iv) to direct advertiser to issue corrective
advertisement.34
32
Lakhanpal National Ltd. v. MRTP Commission, (1989) 3 SCC 251.
33
Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.
34
Misleading Advertisements and Exploitation of Consumers: Is the Law Silent? 3-5 RMLNLUJ (2011-2013)

24| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

Section 14 of the Consumer Protection Act, 1986 states—

“If, after the proceeding conducted under section 13, the District Forum is satisfied that the
goods complained against suffer from any of the defects specified in the complaint or that
any of the allegations contained in the complaint about the services are proved, it shall issue
an order to the opposite party directing him to do one or more of the following things,
namely:—
(d) to pay such amount as may be awarded by it as compensation to the consumer for any
loss or injury suffered by the consumer due to the negligence of the opposite party.”35

It was held in Vinoo Bhagat v. General Motors (India) Ltd.36 that “undoubtedly it is for the
consumer who complains, to prove the defects in the car but that would not mean that he is
required to pinpoint the precise nature of the defects, its cause or source.”

The company showcased gross negligence in deviating the car towards a heavily trafficked
route to serve its own marketing strategy, On 17th July, 2018 there was unprecedented heavy
rainfall in Rarisia and the LIDAR sensors of the car which were required to read the driving
conditions and map the environment, did not perform accordingly because despite the bad
weather conditions the route of the car was altered. Furthermore, the car was automated to
accommodate a combination of multiple functions such as the adaptive cruise control, lane
centering, steering, braking etc., which were put in place for the purpose of avoiding
collisions, obstacles and traffic, all of which formed crucial elements that led to the accident.
Therefore, the events that took place on the day of the accident clearly indicate that the car
was defected in nature.

48.
35
Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.
36
Vinoo Bhagat v. General Motors (India) Ltd, 2003 SCC Online NCDRC 5.

25| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

IV. WHETHER THE RESPONDENT IS LIABLE TO PAY COMPENSATION FOR

THE VIOLATION OF THE PROVISIONS OF THE OXYONIAN PERSONAL DATA
PROTECTION ACT, 2014

It is humbly submitted before the Hon’ble Supreme Court that appeal shall lie before the said
court under Section 87 of The Personal Data Protection Bill, 2018 which deals with the
appeals to the Supreme Court of India, it states

(1) “Notwithstanding anything contained in the Code of Civil Procedure,1908 (5 of

1908) or in any other law, an appeal shall lie against any order of the Appellate
Tribunal to the Supreme Court of India”37

It is respectfully submitted that the respondent failed to process the data of the appellant in a
reasonable manner and so can be held liable for breach of privacy. The right to privacy refers
to the specific right of an individual to control the collection, use and disclosure of personal
information. Personal information could be in the form of personal interests,
habits and activities, family records, educational records, communications records to name a
few.38 Company when gathered information about the appellant’s shopping preferences and
used it for their marketing interest by adjusting the routes that pass through specific retail
outlets breached the privacy of the appellant.

In K.S. Puttaswamy (Retd) v. Union of India, The Apex Court held that privacy being
intrinsic to freedom and liberty falls within the ambit of Article 21 of the Constitution of
India, 195039 which reads:

“Protection of life and personal liberty No person shall be deprived of his life or personal
liberty except according to procedure established by law”40

When company purposely adjusted the routes of the users to match with their imputed
preferences they exercised gross negligence. They furthered their own interest and infringed
the personal liberty of the appellant as he got exposed to harm, he never gave consent to.

37
The Personal Data Protection Bill, 2018.
38
Shiv Shankar Singh, Privacy & Data Protection in India, (2012) PL February S-2.
39
K.S. Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1.
40
INDIAN CONST art 21.

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 6TH ANMCC, 2020

Furthermore, the consent though lawfully obtained was never properly brought to the
attention of the appellant. Mr. Dhanraj agreed to the notice in lieu of enhanced experience as
was explained by the Alset representative during the feedback call made on 1 st May 2018.
There was a pre conceived notion of experiencing the same, set in the mind of the appellant
after that call, so inspite of not even understanding the words “artificial intelligence” and
“internet of things” he agreed to the notice.

According to Section 12 (2) of the Data Protection Act, for the consent of the data principal
to be valid, it must be –
(c) “Specific, having regard to whether the data principal can determine the scope of
consent in respect of the purposes of processing;”41

Mr. Dhanraj when agreed to the click wrap agreement gave a specific consent to the extent of
Data being processed to enhance his experience in the Model A, but the consent which was
specific never extended to the car changing the routes to the heavy trafficked ones. Since this
was not in the reasonable contemplation of the appellant it is humbly submitted that his
consent was never acquired in the first place which caused him harm.

Also, Section 8 of the Act requires the data fiduciary to provide data principal with a notice at
the time of collection of data containing information regarding

“(1)(a) Purpose for which the personal data is to be processed;” 42

Section 8 (2) of the same states,

“The data fiduciary shall provide the information as required under this section to the data
principal in a clear and concise manner that is easily comprehensible to a reasonable person
in multiple languages where necessary and practicable.”43

Under the notice provided by the Alset in the form of click wrap agreement at the time of
downloading the app, the purpose was not clearly stated. Alset in ambiguous language stated
that they required information only for promotion concerns where they would provide
information about their latest technology. The term “personalized marketing” couldn’t have
41
Supra 39.
42
Ibid.
43
Ibid.

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 6TH ANMCC, 2020

reasonably encompassed the scope of changing the routes to pass the retail outlets. Alset has
done wrong to Mr. Dhanraj on two grounds:

IV.1 The company owed a duty of reasonable care to Dhanraj while

processing his personal data which resulted in significant harm

According to Section 9 of the Data Protection Act, the data fiduciary must take reasonable
steps to ensure that the personal data processed having regard to the purposes for which it is
processed. In considering the necessity of care, the data fiduciary shall have regard to
whether the personal data-
“(2)(a) is likely to be used to make decisions about the data principal.”44

The data being processed was used to adjust the routes of the car so as to serve the interest of
Alset at the expense of Mr. Dhanraj. This clearly enunciates that the personal data was being
used to make decisions about the data principal and so the company owed a duty of
reasonable care towards him which it failed to exercise.

Section 4 of Data Protection Bill, 2018 establishes a duty of care that lies upon the data
fiduciary, stating,
“Any person processing personal data owes a duty to the data principal to process such
personal data in a fair and reasonable manner that respects the privacy of the data
principal.”

Furthermore, section 5 of Data Protection Bill, 2018 talks about Personal limitation, stating,
1. “Personal data shall be processed only for purposes that are clear, specific and lawful.
2. Personal data shall be processed only for purposes specified or for any other incidental
purpose that the data principal would reasonably expect the personal data to be used for,
having regard to the specified purposes, and the context and circumstances in which the
personal data was collected.”45

In the present matter, the respondent in the click-wrap notice provided by them to the

44
Supra 39.
45
Ibid.

28| MEMORIAL ON BEHALF OF THE APPELLANT.

 6TH ANMCC, 2020

appellant never presented the purpose in a clear and specific manner. They also failed to
process the data only for the purposes specified in the annexure which amounts to violation
of the above sections of The Personal Data Protection Bill.

Harm, as defined in Section 3(21) of the Act, includes financial loss or loss of property
among others. The negligence by the company for re-routing the appellant’s paths to the ones
which were longer, time consuming and inconvenient resulted in loss of valuable office
hours, physical distress and mental agony. Appellant started using the car more often in
anticipation that it will benefit in saving the travelling time but instead it adversely affected
his work schedule. The time consumed in taking longer routes could have been used by the
appellant for better productivity and would have yielded him more income. The actions of
Alset acted as a setback for Dhanraj.

4.2 Company violated the provisions of the Data Protection Act by not being
transparent about their actions

According to the Section 29 of the Personal Data Protection Bill ,2018 that the data fiduciary
is required to implement and policies to ensure that-

“(f) processing of the personal data is carried out in a transparent manner; and
(g) the interest of the data principal is accounted for at every stage of processing of
personal data”46

It is humbly submitted before the Hon’ble Court that the respondent was not transparent and
true to the appellant about their intention in collection of the user’s personal information and
failed to exercise due diligence in terms of processing it. The company failed to take into
account the interest of the data principal while processing the data to adjust the routes of the
appellant thus exposing him to grave harm.

Furthermore, according to Section 30 of the Personal Data Protection Bill, 2018 which reads,

(1) “The data fiduciary shall take reasonable steps to maintain transparency regarding its
46
Supra 39.

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 6TH ANMCC, 2020

general practices related to processing personal data and shall make the following
information available in an easily accessible form as may be specified-
(c) any categories of the personal data processing in exceptional situations or any
exceptional purposes of processing that creates a risk of significant harm;”47

The company not just failed to be transparent in the processing of personal data but also
exposed the appellant to the significant harm on the night of 17 th July 2018 at the expense of
their promotional interest. They should have made the decision of altering the routes of the
users publicly known their customer base as this fall under the exceptional purposes of the
data processing.

It is most respectfully submitted that the respondent may be held liable for violation of all the
above provisions under the (Oxyonian) Personal Data Protection Act, 2014 and shall be made
to compensate for the harm resulting thereof.

PRAYER

47
Ibid.

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 6TH ANMCC, 2020

Wherefore in the light of issues raised, arguments advanced, and authorities cited, it is most
humbly and respectfully prayed that this Hon’ble Court may be pleased to:

1. Hold the respondent liable for the accident dated 17th July 2018.
2. Hold the respondent liable to pay compensation for the violation of provisions of
inter alia The Consumer Protection Act, 1986.
3. Hold the respondent liable to pay compensation for the violation of provisions of
The Oxyonian Personal Data Protection Act, 2014.

AND/OR

Pass any other Order, Direction and Relief that this Hon’ble Court may deem fit in the
Interest of justice, equity and good conscience.

For this act of Kindness, the Appellant, as in duty bound, shall humbly pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANT

31| MEMORIAL ON BEHALF OF THE APPELLANT.