UILS Intra Moot Competition, 2018

Memorial for : TEAM CODE – A-11

BEFORE THE HON’BLE NATIONAL COMMISSION OF INDILAND

CIVIL APPELLATE JURISDICTION

Regarding the Consumer Protection Act,1986 and Indian Contract Act,1872

THE UNIVERSITY INSTITUTE OF LEGAL STUDIES INTRA DEPARTMENT

MOOT COURT COMPETITON,2018

28th-30th SEPTEMBER 2018

IN THE MATTER OF

BHATIA INSURANCE COMPANY AND ORS. (APPELLANTS)

VERSUS

Ms. VAISHNAVI (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT OF

THE HON’BLE NATIONAL COMMISSION AT INDILAND

(MEMORANDUM ON THE BEHALF OF APPELLANT)

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TABLE OF CONTENTS
INDEX OF AUTHORITIES......................................................................................................3
BOOKS...................................................................................................................................3
STATUTES............................................................................................................................3
WEBSITES.............................................................................................................................3
Cases..........................................................................................................................................3
STATEMENT OF FACTS........................................................................................................5
STATEMENT OF JURISDICTION..........................................................................................6
STATEMENT OF ISSUES........................................................................................................7
ISSUE I...................................................................................................................................7
ISSUE II.................................................................................................................................7
ISSUE III................................................................................................................................7
ISSUE IV................................................................................................................................7
SUMMARY OF ARGUMENTS...............................................................................................8
ARGUMENTS ADVANCED...................................................................................................9
ISSUE I...................................................................................................................................9
Whether or not the Chandiland State Commission had jurisdiction to entertain the
complaint filed by Vaishnavi?............................................................................................9
ISSUE II...............................................................................................................................10
Whether or not Vaishnavi was aggrieved by the deficiency in services?.........................10
ISSUE III..............................................................................................................................15
Whether or not the services provided by the Kamra Electronics can be termed as Unfair
Trade Practices within the ambit of the Consumer Protection Act,1986?........................15
ISSUE IV..............................................................................................................................18
Whether or not the NG service provider can be made a party to the case?......................18
PRAYER FOR RELIEF...........................................................................................................20

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INDEX OF AUTHORITIES

BOOKS
1. Law of Contract & Specific Relief Act , Avatar Singh ( Eastern Book Company ).
2. Indian Contract Act, Dr. R.K. Bangia , 15th Ed , (Allahabad Law Agency )
3. The Indian Contract Act ,Pollock & Mulla , 14th Ed, (Lexis Nexis)
4. Universal’s Concise Commentary ; The Indian Contract Act (9 of 1872) (Universal
Law Publishing)
5. Contract-I and Specific Relief Act , Dr. S.K. Kapoor ( Central Law Agency )
6. Dutt on Contract : The Indian Contract Act,1872 , H.K. Sarahay (Eastern Law House)
7. Supreme Court on The Consumer Protection Act. Justice S.N. Aggarwal , 2nd Ed,
(Universal Law Publishing )

STATUTES
1. The Consumer Protection Act, 1986.
2. Indian Contract Act, 1872.
3. Sales of Goods Act, 1930.
4. Insurance Act, 1938.
5. Civil Procedure Code, 1908.

WEBSITES
1. https://www.scconline.com/webedition.aspx
2. www.westlawindia.com/
3. http://ncdrc.nic.in/
4. https://www.manupatra.com

Cases

1. Commr. Of Customs (Preventive) v. M/S. Afloat Textiles(i) Pvt. Ltd. and ors......9
2. Indian Oil Corporation v. Consumer Protection Council, Kerala and Ors.........13
3. M/S Suraj Mal Ram Niwas Oil Mills Private Limited v. United India Insurance
Company Limited and anr........................................................................................10

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4. Nita Singla v. Dr. Karnail Singh...............................................................................18

5. Oriental insurance Co. Ltd. v. Sony Cheriyan........................................................10
6. Raj Kumar v. Tayal India Motors Pvt. Ltd.............................................................12
7. United India Insurance Co. Ltd. v. Orient Treasures (P) Ltd...............................10

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STATEMENT OF FACTS

1. Orange Inc. is a reputed Indian phone company which deals in import and export of
O-Tab, a tablet. Karma Electronics is one reputed store in Chandiland dealing in the
sale of O-Tab because of their cordial relationship with its customers.
2. On 12-10-2015, Vaishnavi bought tab from Kamra Electronics costing her Rs.
20,00,000 after exchange of her old phone. Thereafter, she bought an additional
insurance cover for her O-Tab from Bhatia Insurance Co., which in totality costed her
Rs. 22,00,000. She hurriedly signed the terms and conditions in excitement of buying
the tab.
3. Vaishnavi used the phone and was satisfied with its functioning. When she realized
that the guarantee of the phone would lapse in 8 days, in order to get an extended
warranty, she went to N.G. Service Providers, the only authorized service providers of
Orange Inc., making a false claim that the camera of her phone wasn’t functioning
properly, which got rejected upon investigation.
4. On 08-04-2016 (Friday), at around 5:00 p.m., Vaaishnavi’s active got collided with a
car while she was standing on a red light. In the collision she got injured and tab got
damaged and its screen got cracked. On 11-04-2016 (Monday), Vaishnavi approached
N.G. Service Providers with all the receipts and required documents and pressed upon
replacing her phone as per insurance policy. However, her claim was rejected, citing
that the incident didn’t comply with the terms and conditions of the insurance policy.
5. She then contacted Bhatia Insurance Co., who accepted her claim subject to the terms
of insurance signed by her. When she got to know that she had to bear 50% of the
charges incurred to get her phone repaired, she felt cheated and approached Kamra
Electronics to confirm the policy terms of which she wasn’t made aware, however she
was told that she had herself signed the insurance policy.
6. Thereafter, Vaishnavi filed a suit against Kamra Electronics, Bhatia Insurance Co. and
N.G. Service Providers in Chandiland State Commission. Out of these, 2 parties got
ex-parte and the only litigating party from respondents was Bhatia Insurance Co. The
order of the Hon’ble commission was delivered in favour of Vaishnavi.
7. Aggrieved by the order, Kamra Electronics, Bhatia Insurance Co. and N.G. Service
providers have filed an appeal in the National Commission of Indiland.

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STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the appeal filed before this
Hon’ble National Commission of Indiland under Section 19 and 21 clause (a); sub clause (i)
of the Consumer Protection Act ,1986 which provides the Appellate Jurisdiction of National
Commission of the Indiland. It sets forth the facts and the laws on which the claims in the
present case are based and hence, its bare provisions read as under-

19.         Appeals—Any person aggrieved by an order made by the State Commission in

exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may
prefer an appeal against such order to the National Commission within a period of
thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission 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.

Provided further that no appeal by a person, who is required to pay any amount in
terms of an order of the State Commission, shall be entertained by the National
Commission unless the appellant has deposited in the prescribed manner fifty per
cent. of the amount or rupees thirty-five thousand, whichever is less:

21.        Jurisdiction of the National Commission. — Subject to the other provisions of this

Act, the National Commission shall have jurisdiction—

(a)  to entertain—

(i)   complaints where the value of the goods or services and compensation, if any,

claimed exceeds rupees  one  crore; and

(ii)  appeals against the orders of any State Commission; and

 (b) to call for the records and pass appropriate orders in any consumer dispute which
is pending before or has been decided by any State Commission where it appears
to the National Commission that such State Commission has exercised a
jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or with material
irregularity.

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STATEMENT OF ISSUES

ISSUE I
Whether or not Vaishnavi was aggrieved by the deficiency in services ?

ISSUE II
Whether or not the services provided by the Kamra Electronics can be termed as unfair trade
practices within the ambit of the consumer protection Act,1986?

ISSUE III
Whether or not the NG service provider can be made a party to the case ?

ISSUE IV
Whether or not the Chandiland State Commission had jurisdiction to entertain the complaint
filed by Vaishnavi?

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SUMMARY OF ARGUMENTS

Whether or not Chandiland State commission had the jurisdiction to entertain

complaint filed by Vaishnavi?

It is humbly submitted that Chandiland State Commission did not have the jurisdiction to
entertain complaint filed by Vaishnavi, i.e. the defendant, as the complaint did not fall under
the pecuniary jurisdiction of the State Commission according to the Consumer Protection
Act, 1986.

Whether or not Vaishnavi was aggrieved by deficiency in services?

It is humbly submitted that Vaishnavi i.e. defendant was not aggrieved by deficiency in
services by any of the three appellants, i.e. Bhatia Insurance Co. (A1), Kamra electronics
(A2) and N.G. Service Providers (A3).

A1 provided the defendant with a policy which was well drafted and which contained clear
and unambiguous terms and conditions. No attempts to hide information we’re made by A1.
The company had also duly accepted the defendant's claim. A2 had sold the defendant an
efficiently working tab. A3 had correctly rejected the claim of the defendant as it did not
comply with the terms of the insurance policy.

Whether or not services provided by the Kamra electronics can be termed as unfair
trade practices within the ambit of the Consumer Protection Act, 1986?

t is humbly submitted that the services provided by the Kamra electronics i.e. A2 can not be
termed as unfair trade practices within the ambit of the Consumer Protection Act, 1986. A2
had sold to the defendant an efficiently working O-Tab and no false representation about its
quality, service or condition were made by A2. The sale transaction between A2 and the
defendant fulfill the requested essential that there was no unfair trade practice by A2.

Whether or not the NG Service Provider can be made party to the case?

No requisites were fulfilled by the OP1 to be a consumer under the ambit of Consumer
protection Act , 1986 . There was no consideration between the AP3 and OP1

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ARGUMENTS ADVANCED

ISSUE I

Whether or not the Chandiland State Commission had jurisdiction to entertain the
complaint filed by Vaishnavi?
It is humbly submitted that the honorable Chandiland State Commission didn’t have
jurisdiction to entertain complaint filed by Vaishnavi, i.e. defendant, against the appellants as
the same didn’t fall under the pecuniary jurisdiction of the state commission. Acc. To s.17(1)
(a)(i) of the consumer protection act, 1986;

17. Jurisdiction of the State Commission. — (1) Subject to the other provisions of this Act,

the State Commission shall have jurisdiction—

(a)  to entertain— (i)   complaints where the value of the goods or services and

compensation, if any, claimed exceeds rupees twenty  lakhs but does not
exceed rupees one  crore

The claim filed by respondent, i.e. Vaishnavi was in relation to the services of insurance
which were not allegedly provided to her or provided deficiently. The services i.e. insurance
policy bought by her from Bhatia insurance Co. was bought at a consideration of RS.
2,00,000/- and it was only in respect of the insurance claim that compensation was sought by
her. The value of service being less that RS. 20,00,000 as provided the minimum value of
services to fall within the ambit of s. 17(1)(a)(i), the same fell under the jurisdiction of district
forum, as is provided under section 11 of consumer protection act, 1986.

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ISSUE II

Whether or not Vaishnavi was aggrieved by the deficiency in services?

It is humbly submitted that Vaishnavi, i.e. defendant was not aggrieved by deficiency in
services. Deficiency” is defined under the consumer protection act, 1986 under s. 2(1)(g) as:

"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and 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;

It is humbly submitted that Vaishnavi was not aggrieved by deficiency in service by any of
the appellants, i.e. Bhatia insurance Co., Kamra electronics and N.G. Service Providers

[2.1] Bhatia insurance Co. [A1]

It is humbly submitted that deficient services were not provided by the Bhatia insurance
company, i.e. A1.

[2.1.1] the defendant had bought insurance policy from A1. The present insurance policy is a
form of standard contract, which contained pre-drafted terms on which the defendant had
signed. It was a properly prepared contractual document, which contained in itself all the
terms and conditions of the insurance policy. A1 made no attempts to deliberately hide any
information from the respondent, and had mentioned all exception clauses and other
important terms and conditions in the insurance policy cum schedule.

Moreover, she had herself signed the terms and conditions of the policy hurridly in the
excitement of buying the tab. In such a circumstance, the rule of caveat emptor (let the buyer
beware) comes into picture.

In the case of Commr. Of Customs (Preventive) v. M/S. Afloat Textiles(i) Pvt. Ltd. and
ors.1 It was held by Supreme Court

“Whether the buyer had made any inquiry as to the genuineness of the license within his
knowledge. He has to establish that he made an enquiry and took requisite precautions to
find out about the genuineness of the SIL which he was purchasing.”

1
(2009) 11 SCC 18, J T 2009(5) SC 276.

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[2.1.2]It is humbly submitted that the contract contained clear and unequivocal terms. It was
clearly written in the insurance policy that in the event of a claim, the company would be
compensating to a maximum of 50% of the physical damage or claim. The company also
does not cover full damage, only partial damage is covered. As the claim brought before A1
was of partial damage, defendant would be indemnified only to the extent of 50% of the
claim.

In the case of United India Insurance Co. Ltd. v. Orient Treasures (P) Ltd., The Supreme
Court held that:

It is a settled rule of interpretation that when the words of a statute are clear, plain or
unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound
to give effect to that meaning irrespective of consequences.

In case of Oriental insurance Co. Ltd. v. Sony Cheriyan2, the Supreme court held that:

The insurance policy between the insurer and the insured represents a contract between the
parties. Since the insurer undertakes to compensate the loss suffered by the insured on
account of risks covered by the insurance policy, the terms of the agreement have to be
strictly construed to determine the extent of liability of the insurer. The insured cannot claim
anything more than what is covered by the insurance policy. That being so, the insured has
also to act strictly in accordance with the statutory limitations or terms of the policy
expressly set out therein

In case of M/S Suraj Mal Ram Niwas Oil Mills Private Limited v. United India
Insurance Company Limited and anr.,3 the Supreme court held

24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the
words used therein must be given paramount importance, and it is not open for the Court to
add, delete or substitute any words. It is also well settled that since upon issuance of an
insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on
account of risks covered by the policy, its terms have to be strictly construed to determine the
extent of liability of the insurer. Therefore, the endeavour of the court should always be to
interpret the words in which the contract is expressed by the parties.

2
AIR 1999 SC 3252, 1999(6) SCC 451.
3
(2010) SCC 567, JT 2010 (11) SC 404.

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[2.1.3] The company abided by all the terms and conditions present in the insurance cum
policy schedule. When the defendant approached A1 with her claim, it was duly accepted by
the company, subject to the same terms and conditions which she had herself accepted by
putting her signature on the document.

The exception clauses contained in the policy were as given below:

a) In case of accidental damage, the insurance covers only physical

damage/breakage/malfunction (partial damage) and not full damage.

It is humbly submitted that, the Chandiland State Commission misinterpreted the same
wrongly when it pointed out in it’s order that according to the policy, 50% of the assessed
value of damage was recoverable in case of total loss only and not partial loss.

Hence, Bhatia insurance company, i.e. A1 did not provide deficient services to Vaishnavi.,
i.e. the defendant.

[2.2] Kamra Electronics [A2]

It is humbly submitted that Kamra Electronics i.e. A2 was not deficient in providing services
to the defendant.

[2.2.1] The retail store sold her a tab while complying with the offer about which they
advertised. Also, the good which was sold by them was working efficiently, as is given in the
proposition that she was “really satisfied with the functioning of the tab”. Moreover, the same
is iterated in the proposition that her “false claim” of improper functioning of camera was
“rejected” as the same was found in a workable condition upon investigation by N.G. Service
Providers.

[2.2.2] Defendant bought the O-Tab from A3. Along with it, she also bought an insurance
policy from A1 i.e. Bhatia insurance company, citing the reason “as it was one of the most
efficient insurance providers in the electronics industry”.She opted for the policy which
costed her RS. 2,00,000/-. It is humbly submitted that there was presumed prior knowledge
on part of defendant that she knew about the insurance company, it’s insurance policies and
the terms and conditions contained there in.

In case of Raj Kumar v. Tayal India Motors Pvt. Ltd.,4 the National Commission said that

4
(2015) CPJ 253.

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“Since the complainant did not lodge any protest and accepted the delivery of the vehicle
along with the aforesaid sale certificate, we are satisfied that he knew, at the time of
purchase of vehicle itself that he was purchasing a March 2009 model and not a 2011 model.
Had the respondent represented to the complainant that a 2011 model would be delivered to
him, he would not have accepted the sale certificate dated 31.1.2011 disclosing the month
and the year of manufacturing of the vehicle to be March 9. There was nothing illegal in
selling a vehicle manufactured in March 2009 to a customer in June 2011, provided that the
month and year of manufacture of the vehicle was disclosed to him at the time of it’s sale.
That having been done and having been evidenced by sale certificate dated 31.01.2011, we
find no deficiency on the part of the opposite party in selling the aforesaid vehicle to the
petitioner.”

Hence, A2 was not deficient in providing services to the defendant.

[2.3] N.G. Service Providers [A3]

It is humbly submitted that there was no deficiency in services by N.G. Service Providers i.e.
A3.it has been alleged that A3 refused to entertain claim of the defendant by saying that the
incident did not comply with the terms and conditions of the insurance policy, and citing this
reason the defendant says that the appellant was deficient in providing deficiency in services
to her. However, the appellant was right in refusing the claim as the incident did not with the
terms and conditions of the insurance policy.

The defendant’s tab had been damaged and its screen got cracked due to the collision of her
active with a car on 08-04-2016. Following the incident, on 11-04-2016, she approached the
defendants for replacing her phone as per the insurance policy.

[2.3.1] it is humbly submitted that, according to the insurance policy, claim of repair was
covered in case of partial damage. However, the defendant pressed upon replacing her phone
in the incident, and the same was out of the purview of the insurance policy in case of
accidental damage. The clause dealing with the same is provided as under:

a) In case of accidental damage, the insurance covers only physical

damage/breakage/malfunction (partial damage) only and not full damage.

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[2.3.2]It is humbly submitted that the defendant did not follow the proper mechanism laid
down in the insurance policy which was to be followed by her in order to get the phone
repaired. The following clause lays down the claim procedure involving service provider:

2) In case of accidental damage of the device, intimation has to be made within 48 hours of
the occurrence of the event to the insurer, which would be forwarded by the insurer to the
authorized service providers. Any fall out in making the requisite intimation could result in
invalidation of the claim.

The defendant in the instant case came directly to A3 to get her phone replaced and did not
properly follow the mandatory procedure cited above.

[2.3.3] It is humbly submitted that there was no contract between A3 i.e. N.G. Service
Provider and defendant i.e. Vaishnavi. Defendant had never entered into a contract with N.G.
Service Providers. She had neither paid nor promised to pay any consideration in exchange of
any services from A3. Hence, the concept of privity of contract would apply here.

Privity of contract is defined as

“The doctrine of privity of contract means that only those persons who are parties to the
contract can enforce the same. A stranger to contract cannot enforce a contract even though
the contract may have been entered into for his benefit”

It is humbly submitted that, since there was not privity of contract and A3 was not bound by
any obligations towards the defendant, the question of deficiency in service does not arise.

In the Case of Indian Oil Corporation v. Consumer Protection Council, Kerala and Ors.

22. in so far there is no privity of contract between the appellant and consumer no
“deficiency” as defined under Section 2(g) (quoted above) arises. Therefore, the action itself
is not maintainable before the consumer forum.

Hence, A3 was not deficient in providing services to the defendant.

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ISSUE III

Whether or not the services provided by the Kamra Electronics can be termed as Unfair
Trade Practices within the ambit of the Consumer Protection Act,1986?
It is humbly submitted that the OP No. 1 i.e. Ms.Vaishnavi ,r/o H.NO. 1234 Sector-11,
Chandiland, bought a TAB which had its back cover made of pure white white gold and tints
of One carat Red Beryl inscribed around the logo, from the Appellant No. 2 i.e. Kamra
Electronics, SCO 69 Sector-14, Chandiland on 12-10-2015 costing her 20,00,000 after the
exchange of her old phone. The Appellant No. 2 is one of the most reputed retail store in
Chandiland dealing in the sale of O-TAB because of their cordial relationship with its
customers. Thereafter, she got the TAB insured from Appellant No. 1 i.e. Bhatia Insurance
Company as it was one of the most efficient insurance providers in the electronics industry.
As per the stated facts the Appellant No. 2 only provided the service which was selling the
handset to OP No. 1, the handset which was found to be in a workable and fine condition
when OP No. 1 went to Appellant No. 3 i.e. NG service provider with a false claim that the
camera of her phone is not functioning properly. The services provided by Appellant No. 2
cannot be termed as Unfair Trade Practices within the ambit of the Consumer Protection
Act,1986. Section 2 (r)(1)(6): "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;

(iii)  falsely represents any re-built, second-hand, renovated, reconditioned or old

goods as new goods;

(iv)  represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits which such goods or services do not
have;

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(v)   represents that the seller or the supplier has a sponsorship or approval or
affiliation which such seller or supplier does not have;

(vi)  makes a false or misleading representation concerning the need for, or the
usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or
length of life of a product or of any goods that is not based on an adequate or proper
test thereof;

   Provided that where a defence is raised to the effect that such warranty or
guarantee is based on adequate or proper test, the burden of proof of such defence
shall lie on the person raising such defence;

(viii) makes to the public a representation in a form that purports to be—

(i)   a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to

repeat or continue a service until it has achieved a specified result, if such
purported warranty or guarantee or promise is materially misleading or if there is
no reasonable prospect that such warranty, guarantee or promise will be carried
out;

(ix)  materially misleads the public concerning the price at which a product or like
products or goods or services, have been or are, ordinarily sold or provided, and, for
this purpose, a representation as to price shall be deemed to refer to the price at
which the product or goods or services has or have been sold by sellers or provided
by suppliers generally in the relevant market unless it is clearly specified to be the
price at which the product has been sold or services have been provided by the
person by whom or on whose behalf the representation is made;

(x)  gives false or misleading facts disparaging the goods, services or trade of
another person.
Explanation. - For the purposes of clause (1), a statement that is— 
(a)  expressed on an article offered or displayed for sale, or on its
wrapper or container; or
(b)    expressed on anything attached to, inserted in, or
accompanying, an article offered or displayed for sale, or on
anything on which the article is mounted for display or sale; or

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(c)     contained in or on anything that is sold, sent, delivered,

transmitted or in any other manner whatsoever made available
to a member of the public,  

shall be deemed to be a statement made to the public by, and only

by, the person who had caused the statement to be so expressed,
made or contained; 
(6)   manufacture of spurious goods or offering such goods for sale or adopts 
deceptive practices in the provision of services.”
The OP No. 1 received the TAB which was of particular standard quality, quantity, grade,
style and model. There was no false representation about any service and condition of the
TAB. Appellant No. 2 was selling the product with proper sponsorship that’s why it was the
most reputed retail store in Chandiland and had cordial relationship with its customers. The
good involved in the sale i.e. the O-Tab had an original warranty by which the OP No.1 could
claim the service if there would be any defect in the device. The sale transaction between the
Appellant No. 2 and OP No. 1 fulfil the requisite essential to prove that there was no Unfair
Trade Practice by the Appellant No. 2 i.e. Kamra electronics.

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ISSUE IV

Whether or not the NG service provider can be made a party to the case?

[4.1] Whether or not Vaishnavi is a consumer to NG Service Provider or not?

It is humbly submitted that the OP No.1 i.e. Vaishanvi purchased the O- Tab of the Orange
Inc. from the A2 i.e. Kamra Electronics and an additional insurance policy from A1 i.e.
Bhatia Insurance Company, whereas the A3 i.e. NG service provider is the authorised service
provider of Orange Inc. The OP No.1 met with an accident and in the accident the screen of
her O-Tab got cracked. Following the incident she approached the A3 with all the receipts
and required documents, where she pressed upon replacing her phone as per the insurance
policy. But the issue here is whether she is even the consumer of NG service provider, there
were no requisites fulfilled by OP 1 to become the consumer of A3.

“Section 2(d) of the Consumer Protection Act says that consumer means any person who—

    (i)   buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment, and includes any user of such
goods other than the person who buys such goods for consideration paid or promised or
partly paid or partly promised, or under any system of deferred payment when such use is
made with the approval of such person, but does not include a person who obtains such goods
for resale or for any commercial purpose; or

   (ii)   hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment, and includes any
beneficiary of such services other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned
person;

Explanation.—For the purposes of the sub-clause (i), “commercial purpose” does not include
use by a consumer of goods bought and used by him exclusively for the purpose of earning
his livelihood, by means of self-employment.

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Consumer of goods - The provision reveals that a person claiming himself as a consumer of
goods should satisfy that—

1-2-1a THE GOODS ARE BOUGHT FOR CONSIDERATION - There must be a sale
transaction between a seller and a buyer; the sale must be of goods; the buying of goods
must be for consideration. The terms sale, goods, and consideration have not been defined in
the Consumer Protection Act. The meaning of the terms ‘sale’, and ‘goods’ is to be construed
according to the Sale of Goods Act, and the meaning of the term ‘consideration’ is to be
construed according to the Indian Contract Act.”5

As decided in the Case Nita Singla v. Dr. Karnail Singh,

“..Where there was no consideration for hiring services of opposite party, the complainant are
not covered under the consumer protection act”

In the present case there is no consideration given to the A3 which makes it clear that there is
no duty on its part to entertain the claim of the OP No.1, there was no contract between A3
i.e. N.G. Service Provider and defendant i.e. Vaishnavi. Defendant had never entered into a
contract with N.G. Service Providers.

This leads us to the fact that when there was no consideration and no contract between the
parties hence, the A3 i.e. NG Service Provider should not be made a party to the case.

5
http://ncdrc.nic.in/bare_acts/1_1_2.html

MEMORIAL FOR THE APPELLANT Page 19

 UILS Intra Moot Competition, 2018

PRAYER FOR RELIEF

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Appellants humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That, Vaishnavi, i.e. the defendant was not aggrieved by deficiency in services.
2. That, services provided by Kamra electronics not be termed as unfair trade practices
under the ambit of consumer protection act, 1986.
3. That, N.G. Service provider not be made party to the case.

And pass any order that this Hon'ble court may deem fit in there interest of equity, justice
and good conscience.

And for this act of kindness, the counsel for the appellant shall duty bound forever pray.

Sd/-

(Counsel for appellants)

MEMORIAL FOR THE APPELLANT Page 20