Team Code-A69
INTRA DEPARTMENT MOOT COURT
COMPETETION, 2018
BEFORE THE HON’BLE NATIONAL COMMISSION OF INDIDILAND
KAMRA ELECTRONICS
BHATIA @ SWAG INSURANCE
NIKITAGARG (NG) SERVICE PROVIDER
V.
MS. VAISHNAVI
APPEAL FILED UNDER SECTION 21 OF THE CONSUMER
PROTECTION ACT, 1986
TABLE OF CONTENTS

List of Abbreviations

Index of Authorities

Statement of Jurisdiction

Issues

Argument Advance

Prayer
LIST OF ABBREVIATIONS
S.NO.
1.
ABBREVIATIONS
FULL FORM
AIR
All India Reporter
Anr.
Another
Art.
Article
Civ.
Civil
CrLJ
Criminal Law Journal
Co.
Company
Crpn.
Corporation
DLT
Delhi Law Tribunal
HC
High Court
Hon’ble
Honourable
i.e.
That is
In Re
In Re
KLJ
Kerela Law Journal
Ltd.
Limited
Ors.
Others
Pvt.
Private
SC
Supreme Court
SCC
Supreme Court Cases
SLP
Special Leave Petition
SCR
Supreme Court Reporter
SUPP
Supplement
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
V.
Versus
LIST OF AUTHORITIES
BOOK

The Indian Contract Act ; Dr. R.K Bangia

Law Of Torts ; Avtar Singh

Law of Torts ; Dr. R. K. Bangia
Websites

www.scconline.com

www.indiankanoon.com

www.yourarticlelibrary.com
STATUTES

Indian Contract Act, 1872

Specific Relief Act, 1963

The Consumer Protection Act, 1986
SUMMARY OF FACTS
Orange Inc. was famous for import and export of O-Tab. Kamra Electronics, a retail store in
chandiland deals in sale of O-Tab. A discount of Rs. 1,00,000 was offered in exchange of phone
in their bumper Diwali bonanza. On 12-10-2015 Vaishnavi bought the O-Tab for Rs. 20,00,000
after discount. She also got an Insurance cover for her tab from Bhatia Insurance Company
which in totality cost her Rs. 22,00,000. She hurriedly signed the terms and conditions.After 5
months and 22 days she realized that guarantee will lapse in 8 days. She took her phone to NG
Service provider, the only authorized service provider claiming that her phone was not working
properly. However, the the service providers found the phone to be in a workable condition.
On 08-04-2016, when Vaishnavi was coming back home, she got hit by a car. In the collision,
she got injured and her phone got cracked. Vaishnavi approached the NG Service providers on
11-04-2016 with all receipts and required documents but they refused to entertain her claim by
arguing that the incident didn’t comply with the terms and conditions of the policy. Aggrieved
with NG Service provider she contacted Bhatia Insurance Company and the company accepted
her claim in lieu of her Insurance policy signed by her. The insurance co. demanded 50% of the
charges incurred to get the phone repaired. She got infuriated and felt cheated, and went to
Kamra Electronics to review her insurance policy about the terms which were not made aware
about; she was told that she herself signed the terms and conditions of the insurance policy.
Thereafter, Vashnavi filed a suit against the following:
a) Kamra Electronics
b) Bhatia Insurance Company
c) NG Service Provider
This suit was filed by Vaishnavi in the Chandiland State Commission. Out of these three parties,
2 got ex-parte and the only litigating party from respondents was Bhatia Insurance Comapany.
The order of the Hon’ble Chandiland State Commission is appended in ANNEXURE II.
Aggrieved by the order, Kamra Electronics, Bhatia Insurance Co. and NG service provider filed
STATEMENT OF JURISDICTION
The Appellants humbly submits this memorandum in response to the appeal filed before this
Honorable Court under Section 21 of The Consumer Protection Act, 1986 whose bare provisions
read as under21. 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
1[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.
ARGUMENTS ADVANCED
ISSUE-1 Whether Vaishnavi was aggrieved by the Deficiency in services?
It is humbly submitted to the Hon’ble National Commission that Vaishnavi was aggrieved by
deficiency in services. According to Section 2(1) (g) of The Consumer Protection Act, 1986
“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
enforced or has been undertaken to be performed by a person in pursuance of a contact or otherwise
in relation to any service.” The conduct of the appellant parties shows that they are deficient in
providing service.

Conduct of Bhatia Insurance Company
Firstly, The Bhatia Insurance Company being the framers of the standard form of contract that
is the insurance policy have misused their power in drafting the terms of the insurance policy.
The Clause (8) (f) restricting the amount of compensation to 50% of total physical damage is
unreasonable which is not in interest of the insured who is in a weaker bargaining position. So
the terms are not enforceable. It is pertinent to mention that in the case of LIC vs. Consumer
Education & Research Centre1, “if a contract or a clause in a contract is found to be
unreasonable or unfair or irrational, one must look to the relative bargaining power of the
contracting parties. An unfair and untenable or irrational clause in a contract is unjust and
amenable to judicial review.” Therefore, due to the greater bargaining power of Bhatia
insurance Company the clause in the contract is not binding. In another case of Lilly White v.
Munuswami2 an action was brought by a customer of a firm of launderes and dry cleaners,
M/s Lilly White, to whom the customer had given a new saree costing Rs.220 for cleaning but
the same was lost . The plaintiff claimed full price of the saree, i.e Rs.220 but the defendant
offered to pay only 50% of the price on the ground that there was a printed term on the back
of the receipt given to the customer stipulating that in case of loss of a garment, the customer
would be entitled to only 50% of the market price or value of the same. It was held that such a
term of the contract was unreasonable and against public policy and therefore unenforceable.
1
2
AIR 1995 SC 1811
AIR 1966 Mad.13
A term which is prima facie opposed both to public policy and to the fundamental principles
of the law of contracts cannot be enforced by a Court, merely because it is printed on the
reverse of a bill, and there is tacit acceptance of the term when the bill was received by the
customer. Another Limitation clause containing the time limit for intimation in case of
accidental damage to be 48 hours is unreasonable and opposed to public policy as 48 hours is
not sufficient time to approach the insurer with all claim documents.

Conduct of Kamra Electronics
The Section 2(1) (g)3 states that deficiency is the inadequacy in the manner of performance
which is required by any law or otherwise in relation to any service. Kamra Electronics was
under an obligation to adequately reveal the material terms of the insurance contract both under
law and in relation to a service. Firstly, being the mobile retailer it was the duty of OP-1 in its
service to reveal adequately the material and imperative facts of contract. Secondly, under
Section 17 (34) of The Indian Contract Act, 1872, the material and imperative facts or terms
must be adequately disclosed or otherwise it amounts to active concealment and fraud.
In the case of SEBI v. Kanhaiyalal Baldevbhai Patel 5 the hon’ble Supreme Court of India
gave a broad definition to fraud and stated that even an action or omission, even without any
deceit if such act or omission has the effect of inducing another person to deal in Securities.
Also under Section 6 (b)6 of The Consumer Protection Act, 1986, a consumer has right to be
informed about the quality, quantity, potency, purity, standard and price of goods or service.
3
The Indian Contract Act, 1872
Section 17. “Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party to a
contract, or with his connivance, or by his agent1 , with intent to deceive another party thereto of his agent, or to
induce him to enter into the contract:— (1) the suggestion, as a fact, of that which is not true, by one who does
not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a
promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or
omission as the law specially declares to be fraudulent.
5
(2017) 15 SCC 1
6
Section 6. Objects of the Central Council.—The objects of the Central Council shall be to promote and protect the
rights of the consumers such as,— (a) the right to be protected against the marketing of goods and services
which are hazardous to life and property; (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; (c) the right to be assured, wherever possible, access to a variety of goods and services at
competitive prices; (d) the right to be heard and to be assured that consumer's interests will receive due
consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or restrictive
trade practices or unscrupulous exploitation of consumers; and (f) the right to consumer education.
4
However, The OP-1 failed to exercise its obligation both under law and under service.
Therefore, the respondent was aggrieved by deficiency in service by Kamra Electronics.

Conduct Of NG Service Provider
The NG service provider being the only authorized service providers of Orange Inc. , reputed
Indian Phone company, had an obligation to provide the best assistance and support due to
their reputation. But, on the other hand OP-3 (NG Service Provider) refused prima facie to
provide any kind of service or support to the respondent when she goes to them after her OTab got damaged. They tried to escape their obligation and liability and deemed the terms
and conditions of the not complying with incident leading to damage of the O-Tab.
ISSUE-2 WHETHER THE SERVICES PROVIDED BY THE KAMRA ELECTRONICS
CAN BE TERMED AS UNFAIR TRADE PRACTICES WITHIN THE AMBIT OF THE
CONSUMER PROTECTION ACT, 1986 OR NOT?
It is submitted to the hon’ble National Commission that Vaishnavi was deceived by the opposing
parties (KAMRA ELECTRONICS) by its act of unfair trade practice, due to which she was denied
the insurance claim. She was aggrieved by the conduct of Kamra Electronics as they were the ones
who refused her the performance of the claim of insurance.
Further, it is mentioned that NG Service Providers is the only authorized service provider of
Orange Inc. in the region hence it is bound by the Insurance Policy provided for O-Tab.
(1) Supreme Court in Ludhiana Improvement Trust v. Shakti Corp. house building society
ltd.7, said that
The basic ingredient of “unfair trade practice” are:
(a) It must be a trade practice;
7
(2002) SCC 1866
(b) The trade practice must be employed for the purpose of promoting the sale, use or
supply of any goods or for the provision of any service; and
(c) The trade practice adopts any unfair method or unfair or deceptive practice including
any of the practices enumerated in clauses (1) to (6) of Section 2(1)(r) of the act.
By the above stated conditions, the Supreme Court in the case, France B Martins and another
v. Mafalda Maira Teresa Rodrigues8,has held that there should be a right to be heard and to be
assured that consumers’ interest will receive due considerations at appropriate forums and another
right to consumer information, but no such procedure was followed by the contracting parties i.e.
Kamra Electronics & Bhatia Insurance Company.
Next thing is, in the case of Bihar State Electricity Board v. Green Rubber Industries,9 the
contract act, 1872, section 23 states that the standard form of contracts which have been adopted
for years by both the parties should be such that the bargaining power of each party should be fair
and equitable, meaning that there should be no unjust dominance of one party over the another due
to the standards of the contract. But the situation arising in front of us clearly establish that there
is indeed an unjust dominance of the appellant(the companies) over the respondent(Vaishnavi).
Vaishnavi proceeds that the insurance policy is not favorable to the public interest whereas it only
favors the companies’ private interests. The general motive of an insurance policy/contract is
Insurance contracts are governed by the principle of utmost good faith (uberrima fides) which
requires both parties of the insurance contract to deal in good faith and in particular it imparts on
the insured a duty to disclose all material facts which relate to the risk to be covered10. It is deduced
from the statement of facts that Kamra Electronics is the party which is propagating the insurance
policy of Bhatia Insurance Company, therefore it can be verified that both the companies are
performing unfair means to favor each other, the companies are taking advantage of the people.
8
(1997) 6 SCC 383
(1990) 1 SCC 731
10
Mowbray, Albert H.; Blanchard, Ralph H. (1961). Insurance: It’s Theory and Practice in the United States (5th
Edn.). New York: McGraw-Hill. p. 61.
9
Issue-3 Whether the NG service provider can be made a party to the case?
It is humbly submitted before the Hon’ble National Commission that the NG Service provider
can be made a party to the contract. According to the facts of the case it can be seen that there is
an implied contract between the NG service provider and Vaishnavi.
As stated in Section-9 of the Indian Contract Act, 1872 an implied contract is one in which
proposal or acceptance is made otherwise than in words, the promise is said to be implied. An
implied contract is an agreement created by actions of the parties involved, but it is not written or
spoken. This is a contract assumed to have been drawn. In this case, there is written record in the
form of warranty bill. A form of an implied contract is an implied warranty provided
automatically by virtue of circumstances.
It is pertinent to mention that in the case of State of Maharashtra v. Saifuddin Mujjaffarali
Saifi11 a contract can be implied and it is very clear from the section 9 of the contract act, but it is
a fundamental principle of law that the court should not make a contract for the parties. A
contract implied in fact requires meeting of minds. The court should refuse to read an implied
term into a contract which is silent on the point or did not clearly indicate the nature of the term.
However when the stipulations are clear and in contemplation of the parties or which necessarily
arise out of the contract between the parties, they will be implied. So as per the facts of our case
stipulations are clear and there is meeting of minds between NG service provider and Vaishnavi
so there is a binding implied contract between them.
Secondly, According to Section-126 of The Indian Contract Act, 1872 “ A contract of guarantee
is a contract to perform the promise or discharge the liability, of a third person in case of his
default” So as every service centre of a mobile phone company has a liability to provide support
and assistance on the behalf of the company. Hence NG service provider has also a liability
towards Vaishnavi
11
AIR 1994 Bom 48
In Narayana Singh v. Chattarsingh12 it was held by the Hon’ble court that the liability of the
surety is coextensive with that of the principal debtor unless it is otherwise provided in the
contract.
12
AIR 1973 Raj 347
PRAYER
In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
That the decision of the Hon’ble National Commission should be Over-ruled and only 50% of the
claim should be awarded.