GALGOTIAS UNIVERSITY MOOT COURT 2022-23

THE HONOURABLE CIVIL COURT OF HYDERABAD

(Under Section 6, 9 & 20 of CPC)

MR. SUKIRAT LAL......................................................................................PETITIONER

Vs.

XINKMEE, XINKMEE INDIANA & GOOGLE.................................RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

1. Index of Authorities

i. List of Abbreviation

ii. Table of Cases

iii. Statutes

iv. Books and Articles

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of Issues

5. Summary of Arguments

6. Arguments Advanced

7. Prayer

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 Table of Cases

1. Robust Hotels Pvt ltd v. EIH Ltd Civil Appeal Nos. 11886-11887 OF (2016)
2. Blyth v. Birmingham Waterwork Co (1856) 11 Ex 781
3. Donoghue v. Stevenson (1932) AC 562
4. Gupta v. Samsung India Electronics Private Limited (2016)
5. Davies v. Mann 152 Eng. Rep. 588(1882)

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 Books and Articles

1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, Gurgaon 26th ed. 2010

2. Dr. R.K. Bangia, Law of Torts, Twenty Third Edition, 2010, Allahabad Law Agency,
Mathura Road, Faridabad(Haryana)

Statutes

1. The Consumer Protection Act, 2019

2. Personal Injuries (Emergencies Provisions) Act, 1963
3. The Code of Civil Procedure ,1908

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 List of Abbreviations

1. AIR All India Reporter

2. XM XM
3. Ed. Edition
4. CPC Civil Procedure Court
5. L.R. Law Report
6. CO. Company
7. SC Supreme Court
8. SCC Supreme Court Case
9. V. Versus
10. ACC According
11. & And
12. Sec Section

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 STATEMENT OF JURISDICTION

The Petitioners humbly submit this memorandum for the petition filed
under the Pecuniary and Territorial Jurisdiction before the Civil Court of
Hyderabad under Sec 6, 9 & 20 of CPC.

Section 6
Sec 6 of CPC states that “Save in so far as is otherwise expressly provided ,
nothing herein contained shall operate to give any Court jurisdiction over suits
the amount or value of the subject-matter of which exceeds the pecuniary limits
(if any) of its ordinary jurisdiction”

Section 9
Sec 9 of CPC states that “The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suites of
which their cognizance is either expressly or impliedly barred”.

Section 20
Sec 20 of CPC states that “A Court within whose local limits the cause of
action, ‘wholly or in part”, arises, would have Territorial Jurisdiction to try the
suit”.

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 STATEMENT OF FACTS

1. “XM” was a Khinese Mobile Company that launched a new mobile “XM” in Khina on
1st July 2018. XM was an Android phone based on the open license of the “Google”
operating system provided by a company in USS. Within months of its launch, it became
a very popular phone among the masses due to its low cost and higher performance. From
2019 onwards XM started branching out by taking its products to the global level for a
better platform to sell its products to the masses at a large scale. In an effort of the same,
it created an Indianan subsidiary “XM Indiana” for the import of “XM” products from
Khina and established a supply chain with distribution and sale in Indiana. XM Indiana
established a head office in Mumbai and started operating its business of distribution,
sales, and services of XM from there onwards.

2. Mr. Sukirat Lal was a citizen of Indiana, living in the place of Demhi. He used to work in
a power company having branches all over the country. For his day-to-day use and
official work, he decided to purchase a budget phone where after due research he comes
across an XM model for Rs. 10,000 with a discount of an additional Rs. 1,000 on credit
card purchases. Thus, on 1st December 2019, he purchased an XM model at a final price
of Rs. 9,000 from a third-party online retailer “Flapkart”. Under the standard sale-
purchase agreement and terms of warranty with “XM Indiana”, it was stated that ‘any
dispute or claim regarding the products or services of XM, the jurisdiction of Mumbai
courts and tribunals will be applicable’.

3. Within months of its purchase, Mr. Sukirat Lal started facing heating issues in his XM
phone, especially during long calls and while charging the mobile phone. The heating
issues increased to some extent after a new Android update was rolled out in April 2020.
The same issue was reported by people around the world using X phone, but XM issued a
statement directing ‘users to not overcharge their phone by keeping it in a charging state
overnight as 2-3 hrs is sufficient to fully charge the phone’. One day when he was making
a call to an old friend, he started feeling extreme temperature over his right ear causing a
slight ringing sensation in his hearing which subsided after an hour. He made a call to the
customer care of XM Indiana office complaining about the heating problem in his XM

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 phone, whereof it was suggested to him to bring his mobile phone to the nearest service
center for further check-up and directions to not overcharge the phone by keeping it in a
charging state overnight as 2-3 hrs is sufficient to fully charge the phone. Mr. Sukirat Lal,
due to his busy schedule, couldn’t bring the phone to the service center for any check-up
and kept using the phone in the same state.

4. On 3rd May 2020, Mr. Sukirat Lal received his transfer order where he was supposed to
shift and report to his new office in Hyderabad within a week. He started packing his
luggage the very same day as he didn’t have much time to settle down at a new place in
such a short period. On the night of 6 th May 2020, he came back from his office at 10 pm,
took the dinner, and slept immediately putting his mobile phone on charge. In the
morning when he woke up and removed his phone from charging, the phone was heating
more than usual. He kept the phone on one side and started dressing up for his office.
While preparing breakfast he got a call from his sister, he picked up the call and within 1-
2 minutes of conversation, the phone started smoking out and busted in his hand. This
caused severe burns on his right hand, and right ear, and extreme ringing sensation in his
hearing. He immediately went to a doctor for first aid where the doctor declared that the
burns on his right hand and right ear are recoverable, but he has lost hearing in his right
ear permanently.

5. Mr. Sukirat Lal was discharged from the hospital on 9th May 2020 after due recovery
except for the loss of permanent hearing in his right ear. In haste after discharge, he took
his luggage from his house as he had to report to the Hyderbad office on 10th May 2020 at
any cost. After settling down at the new place he filed a case in the Civil Court of
Hyderabad for Tort of Negligence and under the Consumer Protection Act, against “XM”,
“XM Indiana” and “Google”. He raised the ground that his injuries and disability of
hearing are attributable to the making of a faulty product by XM and XM Indiana, which
were not replaced or issue rectified even after the problem had been reported by masses.
Further, the problem was aggravated after the new update roll-out by Goggle contributing
to the final incident. He claimed compensation of 50 Lakh for serious physical injury and
mental agony to him personally and to his affairs at the peak of his transfer.

6. XM Indiana in its reply stated that the case is not maintainable in the present civil court
as this is not a case of torts of negligence. XM further stated that as per the terms of the
contract all disputes should be filed within the jurisdiction of Mumbai Court and the
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incident also occurred in Demhi, thus Hyderabad Court has no jurisdiction to try the case.
They also pointed out that the incident is attributable to the fault of Mr. Sukirat Lal as he
failed to follow the suggestion of the company by failing to bring his phone for a check-
up at the service center and breaching the direction of overcharge XM by keeping it on
charge overnight. Google also submitted that it should not be made a party to the present
case as it neither manufactures the XM, nor its battery, rather it only provides an open
license software to companies for their Android phones.

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 STATEMENT OF ISSUES

1. WHETHER THE SUIT IS MAINTABLE IN CIVIL COURT UNDER TORT OF

NEGLIGENCE?

2. WHETHER THE COURT OF HYDERABAD HAS A JURISDICTION TO TRY

THIS CASE?

3. WHETHER THE CASE IS INFRINGING THE CONSUMER RIGHTS?

4. WHETHER THERE IS NEGLIGENCE ON THE PART OF XM AND XM INDIANA?

a) WHETHER THERE IS CONTRIBUTORY NEGLIGENCE ON THE PART

OF PLAINTIFF OR NOT?

5. WHETHER GOOGLE TOGETHER WITH XM AND XM INDIANA SHOULD BE

HELD LIABLE OR NOT?

6. WHETHER MR.SUKIRAT LAL IS ENTITLED TO GET COMPENSATION FOR

PERSONAL INJURY SUUFERED BY HIM?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE SUIT IS MAINTABLE IN CIVIL COURT UNDER TORT

OF NEGLIGENCE?

The suit is maintainable under civil court, acc to section 9 of CPC civil suit includes private
rights, and negligence is a private wrong which means the act of negligence infringes the
private rights of an individual, and thus it is maintainable in civil court. In this due to the
negligent act of the XM Co., the plaintiff Mr, Sukirat Lal suffered personal injuries.

2. WHETHER THE COURT OF HYDERABAD HAS A JURISDICTION TO

TRY THIS CASE?

Jurisdiction of Civil Courts in India is dealt with under section 9 of the Code of Civil
Procedure. This section states that the court tries all civil suits unless barred. By the
following points, we can see whether a Civil Court is competent to try a suit or not. In this
case, the Hyderabad civil court has the territorial jurisdiction to try on this case

3. WHETHER THE CASE IS INFRINGING CONSUMER RIGHTS?

According to the consumer protection act 2019, the defendant infringed on the consumer
rights of the plaintiff by not informing about the heating issue of the phone, by not taking
action, and by providing compensation when the plaintiff suffered damage due to the heating
issue of the phone.

4. WHETHER THERE IS NEGLIGENCE ON THE PART OF XM AND XM

INDIANA?

a) WHETHER THERE IS CONTRIBUTORY NEGLIGENCE ON THE

PART OF PLAINTIFF OR NOT?

In this case the defendant i.e.XM and XM was negligent on their part as they did not took the
reasonable duty of care towards their consumers due to which all the consumer have to face

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difficulties. Contributory negligence is not available to defendant in this case as it was the
duty of the defendant to make changes in the faulty product and even if the plaintiff is not
able to go to the service centre due to the hectic schedule of the plaintiff its was there duty to
put some action because it was not only the plaintiff who was facing this problem it was
whole India who has buy that product were facing it And just issuing a mere statement about
the charging is not enough to show that they have follow their duty of care thus they are
negligent and there is no contributory negligence on part of plaintiff.

5. WHETHER GOOGLE TOGETHER WITH XM AND XM INDIANA

SHOULD BE HELD LIABLE OR NOT?

It is most humbly submitted that Google together with XM and XM Indiana is also liable as
they provided an open license operating system to XM phone, which is one of the essential
requirements of any phone and just before the incident which caused harm to the plaintiff
there was a new update roll out by google which contributed towards it. Google is also a
manufacturer of defective products as it has made a part of the product by providing an open
license operating system.

6. WHETHER MR.SUKIRAT LAL IS ENTITLED TO GET

COMPENSATION FOR PERSONAL INJURY SUUFERED BY HIM?

“Personal Injury” means a physical or mental injury.,Mr. Sukirat Lal must be compensated
by the defendant as he suffered physical injury in the form of the loss of permanent
hearing in his right ear and the mental injury in the form of tension suffered by him. Also
negligence on the part of the company is sufficient for claiming damages

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 ARGUMENTS ADVANCED

1. WHETHER THE SUIT IS MAINTABLE IN CIVIL COURT UNDER TORT

OF NEGLIGENCE?

The jurisdiction of Civil Courts in India is dealt with under section 92 of the Code of Civil
Procedure. This section states that the court tries all civil suits unless barred. By the
following points we can see whether a Civil Court is competent to try a suit or not:

 The suit must be of civil nature

 The cognizance of a civil suit is not expressly or impliedly barred

In a suit of civil nature, the primary question is involving or determines any civil right.
The phrase suit of civil nature protects the private rights as well as the applications of a
citizen. But it is not a suit of civil nature with the fundamental question involving caste or
religion.

A suit of a Civil nature means and includes:

 right to property or
 right to an office and such rights depend upon the questions as to religious rights
or ceremonies.
 private rights and obligations of a citizen3.

Negligence is a breach of 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 which a prudent or reasonable man would not do.4

The plaintiff has the burden to prove that the defendant

Essential elements of Negligence:

 Had a legal duty of care to the plaintiff;

 This duty was breached by the defendant;
 Because of this breach of duty, the damage was caused to the plaintiff;
 Actual damage must result as negligence is not actionable per se5

2
Robust hotels Pvt ltd v. EIH ltd Civil Appeal Nos. 11886-11887 OF 2016
3
Jurisdiction of Civil Courts - Law Insider India
4
Blyth v. Birmingham Waterwork Co (1856) 11 Ex 781
5
https://www.legalserviceindia.com/legal/article-3144-civil-and-criminal-negligence.html
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The tort is a Private wrong that contravenes the legal right of an individual or group It is a
civil wrong and Tort litigation is compoundable which means that the complainant can
withdraw the suit filed by him. In English tort law, a tort is a civil wrong by the ‘tortfeasor’
which unfairly results in a loss or harm to another person. The tortfeasor becomes liable to
the other person.6thus we can say that negligence is also a tort.

Civil negligence is a breach of a duty to care. Anyone who is found guilty of civil negligence
is deemed to have not acted in the way a reasonable person would in the same circumstances.
The negligent act must result in an injury or loss for there to be a claim. Civil negligence
often falls under tort laws.7

Thus we can say that for the damage caused under negligence, which is a private wrong we
can go to civil court acc to sec 9 of CPC as mentioned earlier.

2. WHETHER THE COURT OF HYDERABAD HAS A JURISDICTION TO

TRY THIS CASE?

Jurisdiction of Civil Courts in India is dealt with under section 9 of the Code of Civil
Procedure. This section states that the court tries all civil suits unless barred. By the
following points, we can see whether a Civil Court is competent to try a suit or not8

In this case, the Hyderabad civil court has the territorial jurisdiction to try on this case

Territorial jurisdiction is mentioned under Sec 20 CPC Subject to the limitations aforesaid,
every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement
of the suit, actually and voluntarily resides, or carries on business, or personally works for
gain, provided that in such case either the leave of the Court is given, or the defendants who
do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in
such institution; or

(c)The cause of action, wholly or in part, arises.9

6
https://www.claims.co.uk/knowledge-base/claim-preparations/the-law-of-tort
7
https://www.mylawquestions.com/what-is-civil-negligence.htm
8
CPC 1908
9
Sec-20 of CPC 1908

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Suits for movable property/civil wrong: Where a wrong has been caused to a person, or any
damage has been caused to a movable property, then the suit may be instituted either: In the
place, where wrong or damage has been caused, or In the place, where the defendant (the
person who caused the loss) resides, Where there is a dispute in business, agreement or any
other kind of civil dispute, except matrimonial matter, then the suit may be instituted either,
In a place, where the defendant resides or carries on business, or In a place, where the cause
of action has arisen, i.e. where the dispute or wrong took place10

In the statement of fact it was clear mentioned that the defendant carry out the business in
whole India thus according to section 20 of CPC, Hyderabad has jurisdiction to try it as the
company do its business in whole India .

3. WHETHER THE CASE IS INFRINGING THE CONSUMER RIGHTS?

An act to provide for the protection of the interests of consumers and for the said purpose, to
establish authorities for timely and effective administration and settlement of consumer
disputes and matters connected therewith or incidental thereto.11

The Consumer Protection Act, 2019 defines a consumer as any person who buys goods or
services in exchange for consideration and utilizes such goods and services for personal use
and the purpose of resale or commercial use.12 Thus Mr. Sukirat Lal is a consumer acc. to the
given defination and his rights are violated which is given under the consumer protection act
2019

There exist six rights of a consumer under the Consumer Protection Act, of 2019. The rights
of the consumers are mentioned under Section 2(9) of the Act, which is as follows13:

1. The right of a consumer to be protected from the marketing of goods and services
that are hazardous and detrimental to life and property.
2. The right of a consumer to be protected against unfair trade practices by being
aware of the quality, quantity, potency, purity, standard, and price of goods,
products, or services.
3. The right of a consumer to have access to a variety of goods, services, and products at
competitive prices.
4. The right to seek redressal at respective forums against unfair and restrictive
trade practices.

10
blog.ipleaders.in/how-to-identify-the-jurisdiction-of-civil-courts-in-india/?amp=1#
11
The Consumer Protection Act, 2019
12
Sec-2(7) of The Consumer Protection Act, 2019
13
https://blog.ipleaders.in/consumer-protection-act-2019-2/

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 5. The right to receive adequate compensation or consideration from respective
consumer forums in case they have been wronged by the seller.
6. The right to receive consumer education.14
In this case right to be informed, the right to be heard, the right to receive
compensation, and the right to consumer awareness is violated.15 Mr. Sukirat Lal
was not informed about the heating issue with the phone just issuing a statement is
not enough when this issue is faced by a large number of people and because of
that one day, while he was making a call to an old friend, he started feeling
extreme temperature over his right ear causing a slight ringing sensation in his
hearing which subsided after an hour. Even after complaining proper action was
not taken by the defendant get and also the plaintiff didn’t receive any
compensation from the defendant. Thus the defendant has violated the consumer
rights of the plaintiff

4. WHETHER THERE IS NEGLIGENCE ON PART OF XM AND XM

INDIANA?
 WHETHER THERE IN CONTRIBUTARY NEGLIGENCE ON
THE PART OF MR. SUKIRAT LAL OR NOT?

There is three essentials for proving whether the act was negligent or not. They are as
follows:
 The defendant must owe a duty towards another person which is imposed by
the law.
 There has been a breach of that duty by any act or omission.
 The breach of that duty has caused damage or injury to the plaintiff.

In this case it is most humbly submitted that there was negligence on the part of the
XM and XM Indiana in making XM model .The company has a duty to take care that
product which they made must not contain any defect in it but the product made by
the defendant has defect in as just within months of purchase plaintiff and other
consumers started facing heating issues in his XM phone, especially during long
calls and during charging.
There was duty on the part of defendant to manufacture a product which is not
defective but they have breached that duty which has caused harm to the plaintiff and
as a result has injury and permanent loss of hearing in his right ear. Thereby Mr.
Sukirat is entitled to be compensated for the loss suffered by him.

14
Sec-2(9) of The Consumer Act, 2019
15
Sec-2(9) of The Consumer Protection Act, 2019

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 In the case of Donoghue v. Stevenson16 the court held that the manufacturer owes a
duty of care towards its each and every consumer and will be liable for any tortitious
act conducted under their course of employment.

Contributory negligence is not available to defendant in this case as it was the duty of
the defendant to make changes in the faulty product and even if the plaintiff is not
able to go to the service centre due to the hectic schedule of the plaintiff is was there
duty to put some action because it was not only the plaintiff who was facing this
problem each and every customer who has buy that product were facing it And just
issuing a mere statement about the charging is not enough to show that they have
follow their duty of care thus they are negligent and there is no contributory
negligence on part of plaintiff.
In the case of Davies v. Mann17 the basic principle of contributory negligence was
eastablished.

5. WHETHER GOOGLE TOGETHER WITH XM AND XM INDIANA

SHOULD BE HELD LIABLE OR NOT?

It is most humbly submitted that Google together with XM and XM Indiana is also liable as
they provided an open license operating system to XM phone.

Open licenses are a set of conditions applied to an original work that grant permission for
anyone to make use of that work as long as they follow the condition of the license.18

Before the accident, there was a new update rolled out by Google which contributed to the
accident.

Consumer protection act 201919, defines who can be a manufacturer in 2(24). According to
this section, Manufacturer means a person who:

i. Makes any goods or parts thereof or;

16
[1932] AC 562
17
152 Eng. Rep 588 (1882)
18
https://www.yearofopen.org/what-are-open-licenses
19
Sec-2(24) of the Consumer Protection Act, 2019

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 ii. Assembles any goods or part thereof made by others or;
iii. Puts or causes to be put his mark any goods by any other person 20

And thus it is established that Google is also a manufactory in this case and thus google will
also be vicariously liable for the negligent act of XM and XM Indiana.

6. WHETHER MR.SUKIRAT LAL IS ENTITLED TO GET

COMPENSATION FOR PERSONAL INJURY SUUFERED BY HIM?

The Petitioner humbly submits that the Personal Injuries Act ,1963 could be used to obtain
damages for Personal Injuries21. Acc. to Personal Injuries Act ,1963 Sec 2(6) ‘ Personal
Injury’ is defined as Physical or mental injury.

In this case there was negligence on the part of the company and the other defendants due to
which Mr. Sukirat Lal had personal injuries i.e. physical injury in the form severe burn on his
right hand and right ear and permanent loss of hearing. The aggrieved party must be
compensated for the medical expenses paid by him and for the serious physical and mental
agony done to him.

In the case of Gupta v. Samsung India Electronics Private Limited22 , Mr. Gupta purchased a
Samsung Galaxy S4 smartphone from a dealer in Delhi. Within a few months of purchase,
the phone began to malfunction. Due to the malfunction of the phone, Mr. Gupta has to suffer
a lot of personal injuries for which. Mr. Gupta then filed a complaint with the NCDRC,
alleging that Samsung had sold him a defective product. Samsung was liable to compensate a
customer for its negligence.

Because of the negligence of the company and the other defendants, Mr. Sukirat Lal is
entitled to get compensation.

20
Sec-2(24) of the Consumer Protection Act,2019
21
Personal Injuries (Emergency Provisions Act, 1963)
22
2016

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited it is most humbly and
respectfully requested that this Hon’ble Supreme Court adjudge and declare that:

1. The defendant is to be ordered to pay the compensation of Rs 50 lakh to the plaintiff

for serious physical injury and mental agony caused to him.

2. The defendant is to be ordered to pay the cost of the suit to the plaintiff

3. The court may also be pleased to pass any other order, which this Hon’ble Court may
deem fit in the light of justice, equity and good conscience.

*******

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