[TEAM CODE] A-21

THE NATIONAL COMMISSION OF INDILAND

UNIVERSITY INSTITUTE OF LEGAL STUDIES INTRA DEPARTMENT MOOT

COURT COMPETITION, 2018

IN THE MATTER OF:

Appeal No. .... /2018

(Under Section 19 of Consumer Protection Act, 1986)

1. Kamra Electronics, SCO 69, Sector-14, Chandiland

2. Bhatia@ Swag Insurance, franchise of B-secure Insurance Company, Dandi

Nagar, Chandiland.

3. Nikitagarg (NG) Service Providers SCO 534, 1st Floor, Sector 29,

Chandiland- through its Manager.

………APPELLANTS

V.

Ms. Vaishnavi, R/O H. No. 1234, Sector-11, Chandiland

………RESPONDENT

MEMORIAL ON BEHALF OF APPELLANTS

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TABLE OF CONTENTS

S. No. Particulars Page No.

1. LIST OF ABBRIVIATIONS 1
2. INDEX OF AUTHORITIES 2
 TABLE OF CASES
 STATUTES REFERRED
 BOOKS AND COMMENTARIES REFERRED
 WEBSITES REFERRED
3. STATEMENT OF JURISDICTION 6
4. STATEMENT OF FACTS 7
5. ISSUES RAISED 9
6. SUMMARY OF ARGUMENTS 11
6. ARGUMENTS ADVANCED 13
7. PRAYER 27

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 [TEAM CODE] A-21

LIST OF ABBREVIATIONS

S.NO. ABBREVIATION FULL FORM

1. & And
2. AIR All India Reporter
3. Anr. Another
4. Ed. Or Edn. Edition
6. Hon’ble Honorable
7. Ltd. Limited
8. Ors. Others
9. Pvt. Private
10. SC Supreme Court
11. SCC Supreme Court Cases
12. S. or Sec. Section
13. Vol. Volume
14. W.P. Writ Petition
15. C.A. Civil Appeal
16. C.P.A. Consumer Protection Act
17. MRTP Monopolistic and
Restrictive Trade Practices
Act.
19. No. Number
20. Co. Company
21. V. or V. Versus
22. IRDA Insurance Regulatory &
Developmental Authority
23. OP Opposite Party
24. NCDRC National Consumer
Disputes Redressal
Commission
25. CPJ Consumer Protection
Judgments
26. Comp Cas Company Cases

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INDEX OF AUTHORITIES

TABLE OF CASES

CASE CITATION

Air France v O.P. Srivastava First Appeal No. 310 of 2008

Amravati District Central Cooperative Bank

Limited v United India Fire And General 2010 5 SCC 294
Insurance Company Limited

"Awaz", Punita Society, "Jagrut ... V. Reserve III (2008) CPJ 98 NC

Bank Of India And Ors
Bangalore Development Authority v Syndicate Bank. Civil Appeal No. 5462 of 2002
Bharathi knitting company V. DHL Worldwide
Express Courier Division of Airfreight ltd. (1996) 4 SCC 704

Britannia Industries Ltd. V. State Of West REVISION PETITION NO. 2001

Bengal OF 2011(NC)

Colgate Palmolive (India) Ltd. v MRTP Commission 2003 1 SCC 129

and Ors.
Deokar Exports Pvt. Ltd. v New India Assurance Co.
Ltd. 2008 14 SCC 598
Export Credit Guarantee Corpn. of India Ltd. V. M/s
Appeal (civil). 1557 OF 2004
Garg Sons International

General Assurance Society Ltd. v Chandmull Jain AIR 1966 SC 1644

Ghaziabad Development Authority v Balbir Singh 2004 5 SCC 65

Ghaziabad Development Authority V. Balbir

Appeal (civil) 7173 of 2002 (SC)
Singh

Haryana Urban Development Authority v B.K. Sood Civil Appeal No. 6572 of 2005

Hindustan Ciba Geigy v Union of India and Ors. 2003 1 SCC 134
ICICI Prudential Life Insurance Co. Ltd. v Sudesh
Gupta First Appeal No. 123 of 2008.
In Prabhat Khanna (deceased) Thr. Lrs. V. New India
Assurance Company Ltd. 2017 (1) 480 (NC)

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IND Swift limited v New India Assurance Co.

IV (2012) CPJ 148 (NC) 14.
Ltd. & Ors;

Interglobe Aviation Ltd. v N Satchidanand 2011 7 SCC 463

Kandimalla Raghavaiah & Co. v National Insurance Civil Appeal No. 4962 of 2002
Co. & Anr
Kiranjit Kaur and 3 Ors. v HDFC Standard Life Revision Petition No. 2480 OF
Insurance Co. 2014

Kulwant Singh V. The Managing Director, United Revision Petition

India Insurance Company no.3320 of 2014 (SC)

Lakhmi Chand v Reliance General Insurance (2016) 3 SCC 100

Ludhiana Improvement Trust V. Shakti Coop. 4 (2009) 12 SCC 369; Appeal

House Building Society Ltd. (civil) 1866 of 2002 (SC)

M/S BHS Industries V. Export Credit

Civil Appeal No. 2729 of 2009 (SC)
Guarantee Corporation of India
M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United
(2010) 10 SCC 567
India Insurance Co. Ltd
M/S Vijay Concerns V. State Bank of India, through
its Branch Manager & Anr. 2013 (4) CPR 165 (NC)

Meenakshi Saxena and Anr. V ECGC Ltd. Civil Appeal No. 5681/2018
(Formerly known as Export Credit Guarantee Arising out of SLP (C) 6286 of
Corporation of India Limited) 2017
Revision Petition No. 443 of
Mohd. Unis v United India Insurance Co. Ltd.
2013
Revision Petition No. 4068 of
National Insurance Co. Ltd. v A.S. Moosani & Co.
2010

National Insurance Company v Public Type Revision Petition No. 869 Of

College 2001(SC)
New India Assurance Co. Ltd. v Zuari Industries
2009 9 SCC 70
Ltd.

New India Assurance Co., Shimla v Kamla & Ors. Appeal (civil) 2387 of 2001

Oriental Insurance Co. Ltd. v M/s Narbheram Civil Appeal No. 2268 Of 2018
Power And Steel Pvt. Ltd. (@S.L.P.(C) No. 33621 Of 2017)

Oriental Insurance Co. Ltd. V. Parvesh Chander

C.A. No.6739 of 2010 (SC)
Chadha

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Oriental Insurance Co. Ltd. v Samayanallur

Civil Appeal No. 8716 Of 1997
Primary Agriculture Cooperative Bank

Oriental Insurance Co. Ltd. v Sony Cheriyan 1999 6 SCC 451

Premier Engineers v Taj Rubber Industries 2005 6 SCC 610

Ravneet Singh Bagga v KLM Royal Dutch Airlines 2000 1 SCC 66

and Anr.

Satish Kumar V. Royal Sundaram Alliance Co. Ltd. III (2015) CPJ 669 (NC)

Sikka Papers Ltd v National Insurance Co. Ltd. 2009 7 SCC 777
Skandia Insurance Co. Ltd. V. KokilaBen
Chandravadan 1987 ACJ 411 (SC)

State Bank of India v B.S. Agricultural Industries Civil Appeal No. 2067 of 2002

Suraj Mal Ram Niwas Oil Mills Private Limited

2010 10 SCC 567
v United India Insurance Co. Ltd.

Union of India and Anr v British India Corporation (2003) 9 SCC 505
Ltd.

United India Assurance Co. Ltd. v Pushpalaya

2004 3 SCC 694
Printers

United India Insurance Co. Ltd. v Great

2007 7 SCC 101
Eastern Shipping Co. Ltd.
United India Insurance Co. Ltd. v M/s Harchand Rai
Chandan Lal 2005 (1) CPR 64 (SC)

United India Insurance Co. Ltd. V. Hukum

Singh W.P. 975 of 1994
United India Insurance Co.Ltd V. M/S.Harchand Rai
Appeal (civil) 6277 of 2004 (SC)
Chandan Lal
Vikram Greentech India Ltd. & Anr v New India
Assurance Co. Ltd. JT 2009 5 SC 579 SCC
Vikram Greentech India Ltd. & Anr v New India
2009 5 SC 579 SCC
Assurance Co. Ltd. JT

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STATUTES REFERRED

1. Consumer Protection Act, 1986

2. The Indian Contract Act, 1872

BOOKS AND COMMENTARIES REFERRED

1. Bryan A. Garner, Black’s Law Dictionary (2nd Pocket ed. 2001)

2. Majumdar, Law of Consumer Protection in India, Orient Publishing Company, Seventh Edition
2016
3. Pollock and Mulla, The Indian Contract Act and Specific Relief Act, Lexis Nexis, 14th Edition.
4. V.V. Rao, Commentary on Consumer Protection Act, 1986, 3 rd Edition, Asia Law House
5. JN Barowalia, Commentary on The Consumer Protection Act, 6 th Edition, Universal Law
Publishing

WEBSITES REFERRED

1. www.scconline.com
2. www.indiankanoon.com

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STATEMENT OF JURISDICTION

The National Commission of Indiland has the jurisdiction to hear and adjudicate the appeal that
has been filed, under Section 19 of the Consumer Protection Act, 1986 which is 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.]”

Hence, the jurisdiction of this commission is invoked under Section 19 of the Consumer
Protection Act, 1986.

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STATEMENT OF FACTS

1. Orange Inc., a reputed Indian phone company, was famous for import and export of O-
TAB; a tablet with its back cover made of pure white gold and tints of One carat Red
Beryl, inscribed around the logo. Kamra electronics is one of the most reputed retail
stores in Chandiland dealing in the sale of O-tab because of their cordial relationship
with its customers.
2. Kamra electronics advertised in various newspapers about their bumper Diwali bonanza
frequently in the month September which was valid till late October. In this offer a
discount of 1,00,000 was given in place of the old phone.
3. On 12-10-2015 Vaishnavi bought a tab from Kamra electronics costing her 20, 00,000
after the exchange of her old phone. Thereafter, she also wanted to get an additional
insurance cover for her tab from Bhatia Insurance Company as it was one of the most
efficient insurance providers in the electronics industry. Vaishnavi purchased an O-tab
and an additional insurance policy which in totality cost her Rs.22,00,000. And in the
excitement of buying the tab, she hurriedly signed the terms and conditions.
4. Vaishnavi used the phone for a period of 5 months and 22 days and was really satisfied
with the functioning of the tab. Thereafter she realized that the guarantee of phone will
lapse after a period of 8 days. So, in order to get an extended warranty, she even went
with her claim to the NG service providers, the only authorized service provider of
Orange Inc., making a false claim that the camera of her phone is not functioning
properly. However, after investigating, the service providers found the phone to be in
workable condition, thereafter, rejecting her claim.
5. On 08-04-2016(Friday), when Vaishnavi was coming back home from salon on her
active, at around 5:00 p.m.; while standing on the red light, she got hit by a car driven
by Nanda. In the collision she got injured and also her tab which was in her handbag
was damaged and its screen got cracked. Following the incident on 11-04-2016
(Monday), Vaishnavi approached NG Service Providers with all the receipts and
required documents, where she pressed upon replacing her phone as per the insurance
policy. However, they refused to entertain her claim since the incident did not comply
with the terms and conditions of insurance policy.

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6. Being aggrieved with the conduct of NG service provider, she contacted the Bhatia
Insurance Company and the company accepted her claim subject to the terms of
insurance which were already signed by her appended as (Annexure 1) herein. When
she came to know that she will have to pay the 50% of the charges incurred to get the
phone repaired, she got infuriated and felt cheated, and went to Kamra electronics to
confirm the policy terms which she was not made aware about; however she was
informed that she had herself signed the terms and conditions of the insurance policy.
7. Thereafter, Vaishnavi filed a consumer suit against the following:-
a. Kamra electronics
b. Bhatia insurance company
c. NG service provider
8. This suit was filed by Vaishnavi in the Chandiland State Commission. Thereafter, out of
these three parties, two got ex-parte and the only litigating party from respondents was
Bhatia Insurance Company. The State Commission allowed to Complaint to succeed
against the three appellants, who were held jointly and severally liable and were
thereafter directed to: -
(a) Get the handset repaired forthwith without asking for any contribution/sharing from
the complainant;
(b) To pay Rs. 80,000/- each as compensation to the complainant for the unfair trade
practice and the harassment caused to her.
(c) To also pay a sum of Rs. 8000/- each to the complainant as litigation expenses.
9. Aggrieved by the order, the three Appellants, Kamra electronics, Bhatia insurance
company and NG service provider have filed an appeal in the National Commission of
Indiland. Now the matter is pending for final adjudication.

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ISSUES RAISED

ISSUE 1: WHETHER OR NOT VAISHNAVI WAS AGGRIEVED BY DEFICIENCY

IN SERVICES?
(1.1) THAT VAISHNAVI DID NOT READ THE TERMS AND CONDITIONS
CAREFULLY

(1.2) THAT SHE DID NOT APPRISE AND INTIMATE THE INSURANCE
COMPANY WITHIN THE STIPULATED TIME PERIOD ABOUT THE
ACCIDENTAL DAMAGE CAUSED TO THE DEVICE.

(1.3) THAT VAISHNAVI HAD TO PAY 50% OF THE CHARGES INCURRED

TO GET THE DEVICE REPAIRED

(1.4) THAT THE SERVICE PROVIDERS ACT OF REJECTING HER CLAIM FOR
EXTENDED WARRANTY AND THE SUBSEQUENT REPLACEMENT AND
REPAIRS, DOES NOT AMOUNT TO DEFICIENCY IN SERVICE.

ISSUE 2: WHETHER OR NOT THE SERVICE PROVIDED BY KAMRA

ELECTRONICS CAN BE TERMED AS UNFAIR TRADE PRACTICE
WITHIN THE AMBIT OF CONSUMER PROTECTION ACT, 1986?

(2.1) THAT THE ACT OF THE PARTY DOES NOT QUALIFY AS BEING AN
‘UNFAIR TRADE PRACTICE’ WITHIN THE AMBIT OF CONSUMER
PROTECTION ACT, 1986.

(2.2) THAT THE RESPONDENT DID NOT SUFFER ANY PHYSICAL/ MENTAL
OR EMOTIONAL SUFFERING, INSULT, INJURY OR LOSS.

ISSUE 3: WHETHER OR NOT, THE ORDER PASSED BY THE STATE

COMMISSION BE TERMED AS BEING IMPUGNED?

(3.1) THAT THE STATE COMMISSION MISCONSTRUED THE TERMS AND

CONDITIONS OF THE INSURANCE POLICY

(3.2) THAT THE STATE COMMISSION ADDED A CLAUSE THAT WAS NOT
INCLUDED IN THE ORIGINAL INSURANCE POLICY.

(3.3) THAT THE PERIOD OF 6 MONTHS HAD NOT LAPSED.

(3.4) THAT THE APPELLANTS HAD NOT INDULGED IN ANY ‘UNFAIR

TRADE PRACTICE’.

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(3.5) THAT THE RESPONDENT DID NOT SUFFER FROM ANY SORTS OF
‘MENTAL AGONY OR HARASSMENT’ OR ANY LOSS OR INJURY.

(3.6) THAT THE COMPENSATION AWARDED BY THE STATE COMMISSION

ON THE PRETEXT OF ‘UNFAIR TRADE PRACTICE’ AND
‘HARASSMENT’ WAS EXEMPLARY.

ISSUE 4: WHETHER OR NOT NG SERVICE PROVIDERS BE MADE A PARTY

TO THE CASE OR NOT?

(4.1) THE ORDER OF THE STATE COMMISSION IS IMPUGNED

(4.2) THE REJECTION OF THE WARRANTY CLAIM WAS AFTER PROPER

INVESTIGATION.

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER OR NOT, VAISHNAVI WAS AGGRIEVED BY DEFICIENCY IN SERVICES?

It is humbly submitted that the respondent was not aggrieved by deficiency in
services primarily because, the service providers act of rejecting her claim for
extended warranty does not amount to deficiency in service as it does not fit into the
definition of ‘deficiency’ as laid down in the consumer protection act, 1986.
Moreover, she herself did not read the terms and conditions carefully and
subsequently did not apprise and intimate the insurance company within the
stipulated time period about the accidental damage caused to the device.

ISSUE 2: WHETHER OR NOT THE SERVICE PROVIDED BY KAMRA ELECTRONICS CAN BE

TERMED AS ‘UNFAIR TRADE PRACTICE’ WITHIN THE AMBIT OF CONSUMER PROTECTION

ACT, 1986?
It is reverentially contended that the act of the party does not qualify as being an
‘unfair trade practice’ within the ambit of consumer protection act, 1986 as it does
satisfy the ingredients of the same. Also, the respondent did not suffer any physical/
mental or emotional suffering, insult, injury or loss as a result of the alleged Unfair
Trade Practices or Deficiency in Services, and thus the claim for the compensation
for the same does not stand.

ISSUE 3: WHETHER OR NOT, THE ORDER PASSED BY THE STATE COMMISSION BE TERMED

AS IMPUGNED?

It is humbly submitted that the state commission misconstrued the terms and
conditions of the insurance policy and as a result, added a clause in the Insurance
contract that was originally not there. The State Commission also faulted by
assuming that the period of 6 months had lapsed, while it hadn’t. it is also contended
that the appellants had not indulged in any unfair trade practice and that the
respondent did not suffer from any sorts of mental agony or harassment.

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ISSUE 4: WHETHER OR NOT N.G. SERVICE PROVIDERS BE MADE A PARTY TO THE CASE

OR NOT?

It is humbly put forth that the order of the state commission is impugned and that the
said Appellants should not be made a part to the case. Moreover, the rejection of the
warranty claim was after proper investigation of the device and the complaint of its
improper functioning was carefully and efficiently looked into. The said Appellants
also had sound and cogent reasoning behind the refusal for repair of the device, once
it suffered accidental damage because, it was the complainant in the first place who
was at fault as she did not read the terms and conditions carefully while signing them
and thereafter did not adhere to the claim procedure that was to be followed.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER OR NOT VAISHNAVI WAS AGGRIEVED BY DEFICIENCY

IN SERVICES?

(1.1) THAT VAISHNAVI DID NOT READ THE TERMS AND CONDITIONS CAREFULLY
It is humbly submitted that the respondent was duly handed over a document
containing the terms and conditions of the additional insurance cover that was
bought by her, along with the O-TAB.
It is contended that the said document envisaging the terms and conditions of the
insurance policy was not carefully read by her. The Claim procedure was also not
adhered to.1
The insurance policy between the insurer and the insured represents a contract
between the parties2.
Both parties are bound by the terms of contract and the terms of the policy have to
be construed as it is. 3
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 in order to determine
the extent of the liability of the insurer.4
A person who signs a document containing contract and terms is normally bound
by them even though he has not read them, and even though he is ignorant of their
precise legal effect. When a party to the contract disputes the binding nature of the
signed document, it is for him to prove the terms in the contract or circumstances
in which he came to sign the documents need to be established. 5 It is the primary
duty of the claimant to obtain the insurance policy and have knowledge about its
terms and conditions.6
The fact that the Respondent has not carefully read the terms and Conditions of

1
Moot Proposition
2
Oriental Insurance Co. Ltd. V. Sony Cherian,II(1999)CPJ13 (NC)
3
United India Insurance Co.Ltd V. M/S.Harchand Rai Chandan Lal, Appeal (civil) 6277 of 2004
4
M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567);
see also Export Credit Guarantee Corpn. of India Ltd. V. M/s Garg Sons International, CIVIL APPEAL
NO. 1557 OF 2004
5
Bharathi knitting company V. DHL Worldwide Express Courier Division of Airfreight ltd.
6
M/S Vijay Concerns V. State Bank of India, through its Branch Manager & Anr., 2013 (4) CPR 165
(NC)
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the insurance policy is not a legit defense that she never meant to enforce a policy
of the kind. In case of an assured, a positive act on his part by which he recognizes
or seeks to enforce the policy amounts to an affirmation of it. 7 As is evident from
the factual matrix, the respondent was duly handed over the document containing
the terms and conditions of the insurance policy, although she failed to act
diligently by not reading them carefully. This, clearly, is a lapse on the part of the
respondent and not the Appellant Company, as alleged.

(1.2) THAT SHE DID NOT APPRISE AND INTIMATE THE INSURANCE COMPANY WITHIN THE

STIPULATED TIME PERIOD ABOUT THE ACCIDENTAL DAMAGE CAUSED TO THE DEVICE.

According to point (2) of the Claim Procedure, the insuree had to report within 48
hours about the accidental damage to the device to the insurer, which was then to
be forwarded by them to the authorized Service Providers. It was also explicitly
mentioned that any fall-out in making the requisite intimation could result in the
invalidation of claim. 8
It is humbly submitted that on 8th April 2016 (Friday) the respondent was
involved in a motor accident as she was hit by a car due to which the device (O-
TAB) suffered accidental damage.9
The respondent thereafter approached NG Service Providers on 11 th April 2018
(Monday), with all the requisite documents where she pressed upon replacing her
phone as per the insurance policy. However the Service Providers refused to
entertain her claim on the ground that the incident did not comply with the terms
and conditions of the insurance policy.
Delay in intimation about incident to insurance company may vitiate insurance
cover.10 The insurance company could not be saddled with the liability to pay the
compensation to the insured despite the fact that he/she has not complied with the
terms of the policy. 11
Intimation to insurance Company was not given immediately and was given first

7
M/S BHS Industries V. Export Credit Guarantee Corporation of India, Civil Appeal No. 2729 of 2009
(SC)
8
Moot Proposition
9
Ibid.
10
In Prabhat Khanna (deceased) Thr. Lrs. V. New India Assurance Company Ltd. 2017 (1) 480 (NC),
11
Oriental Insurance Co. Ltd. V. Parvesh Chander Chadha, C.A. No.6739 of 2010
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time while submitting the claim. Repudiation of the policy was justified in the
scenario.12
It is respectfully put forth that there was no lapse/ breach of duty on the part of the
Service Providers and that the respondent failed to adhere to point (2) of the
Claim Procedure, encompassed within the Insurance policy, by not apprising and
intimating the Appellants (Parties 2 and 3) about the accidental loss caused to the
O-TAB.

(1.3) THAT VAISHNAVI HAD TO PAY 50% OF THE CHARGES INCURRED TO GET THE DEVICE

REPAIRED

According to point 8(f) of the Terms and Conditions of the Insurance policy,
signed by the respondent, she was liable to pay 50% of the physical
damage/claim. 13 On the instance of her claim being rejected by the NG Service
Providers, the Respondent approached the Insurance Company, which accepted
her claim, subject to the Terms and Conditions that had already been signed by
her. It was then, that the respondent apparently became aware that the 50% of the
charges incurred had to be borne by her.
The insurance policy between the insurer and the insured represents a contract
between the parties14. Both parties are bound by the terms of contract and the
terms of the policy have to be construed as it is.15
It is well settled that the insurance is a contract between the parties and while
deciding the insurance dispute between the parties the terms and conditions of the
contract are to be strictly followed. 16
A person who signs a document containing contract and terms is normally bound
by them even though he has not read them, and even though he is ignorant of their
precise legal effect. When a party to the contract disputes the binding nature of the
signed document, it is for him to prove the terms in the contract or circumstances

12
Satish Kumar V. Royal Sundaram Alliance Co. Ltd., III (2015) CPJ 669 (NC)
13
Moot Proposition
14
Supra, note 2
15
Supra, note 3
16
Kulwant Singh V. The Managing Director, United India Insurance Company, Revision Petition
no.3320 of 2014 (SC)
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in which he came to sign the documents need to be established. 17

It is reverentially contended that in the instant case, it was explicitly mentioned in
the Terms and Conditions, duly signed by the Respondent, that in the event of a
claim for accidental damage, the compensation shall vary according to the extent
of loss suffered, with maximum compensation amounting to 50% of the physical
damage/ claim only. This clearly points out towards the verity that the Respondent
was rightfully liable to pay the 50% of the charges incurred, so as to get the device
repaired, according to the Terms and Conditions of the Insurance Policy, which,
as a contract were binding on both the parties. Also, the repeated requests from
the Appellants, for the payment of the said amount, in no way, qualifies as being a
deficiency in service, as this was being done in accordance to the Terms and
Conditions of the contract, signed by the respondent.

(1.4) THAT THE SERVICE PROVIDERS ACT OF REJECTING HER CLAIM FOR EXTENDED WARRANTY
DOES NOT AMOUNT TO DEFICIENCY IN SERVICE.

The respondent, on realizing that the guarantee of the O-TAB was about to lapse,
approached the Appellant party (3) with false claim that the camera of her phone
was not functioning properly, in order to get an extended warranty. The Service
Providers, thereafter, rejected her claim, after proper investigation.
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.18 The word deficiency as defined would mean any shortcoming or
inadequacy in the manner of performance which is required to be maintained by
or under any law for the time being in force. 19
It is humbly submitted that this act of rejecting the claim of the Respondent by the
Service Providers, in no way amounts to deficiency in service, primarily because
the claim was not out rightly and arbitrarily rejected and the same was done after

17
Supra, note 5
18
Section 2(1)(g), Consumer Protection Act. 1986
19
"Awaz", Punita Society, "Jagrut ... V. Reserve Bank Of India And Ors., 2008, III (2008) CPJ 98 NC

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proper investigation of the device. Also, the repeated requests from the
Appellants, for the payment of the said amount, was also clearly in pursuance of
the Terms and Conditions of the policy and in no way qualifies as amounting to
‘Deficiency in Service.’

ISSUE 2: WHETHER OR NOT THE SERVICE PROVIDED BY KAMRA

ELECTRONICS CAN BE TERMED AS UNFAIR TRADE PRACTICE WITHIN THE
AMBIT OF CONSUMER PROTECTION ACT, 1986?
(2.1) THAT THE ACT OF THE PARTY DOES NOT QUALIFY AS BEING AN ‘UNFAIR TRADE PRACTICE’
WITHIN THE AMBIT OF CONSUMER PROTECTION ACT, 1986.

The basic ingredients of 'unfair trade practice' are:

(i) It must be a trade practice;

(ii) 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

(iii) The trade practice adopts any unfair method or unfair or deceptive practice
including any of the practices enumerated in sub-clauses (1) to (6) of Section
2(1)(r) of the Act.20

The relevant Section in this regard is Section 2(1)(r) of the Consumer Protection
Act, 1986 reads as follows: -

“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,—

20
Britannia Industries Ltd. V. State Of West Bengal, REVISION PETITION NO. 2001 OF 2011(NC);
see also Ludhiana Improvement Trust V. Shakti Coop. House Building Society Ltd. 4 (2009) 12 SCC
369; see also Improvement Trust, Ludhiana & Anr V. Shakti Co-Op. House Bldg. Soceity Ltd. CIVIL
APPEAL NO. 1866 OF 2002 (SC)
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(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;
(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.
It is humbly submitted that none of the acts of the Appellants i.e. Kamra
Electronics fulfils the parameters for qualifying as an Unfair Trade Practice within
the ambit to Consumer Protection Act. Most importantly, the fact that the
appellants had cordial relations with all its customers and that it was the most
reputed retail store in Chandiland stand as a testimony to the fact that they
enjoyed huge Customer Loyalty, which would obviously not have been possible
had they indulged in any activities of this sort.

(2.2) THAT THE RESPONDENT DID NOT SUFFER ANY PHYSICAL/ MENTAL OR EMOTIONAL SUFFERING,
INSULT, INJURY OR LOSS AS A RESULT OF ANY UNFAIR TRADE PRACTICE OR DEFICIENCY IN SERVICES.

The provisions of the CPA, 1986 enable the consumer to and empower the
Commission to redress any injustice done. In legal sense, Compensation may
constitute actual loss or expected loss and may extend to physical, mental or even
emotional suffering, insult, injury or loss. 21

21
Ghaziabad Development Authority V. Balbir Singh, Appeal (civil) 7173 of 2002 (SC)
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To revert to the facts of the case, the State Commission ordered the three
Appellants to pay compensation of Rs. 80,000 to the respondent for the ‘Unfair
Trade Practices’ and the ‘harassment’ caused to her.
It is humbly submitted that the respondent hadn’t suffered any physical/ mental or
emotional suffering, insult, injury or loss. It has been already established that there
was no deficiency in services or unfair trade practice on the part of any of the
three appellants and that the Respondent faulted when she did not read the terms
and conditions of the policy carefully and thereafter, did not adhere to the Claim
Procedure that was laid down therewith.

ISSUE 3: WHETHER OR NOT, THE ORDER PASSED BY THE STATE

COMMISSION BE TERMED AS BEING IMPUGNED?

(3.1) THAT THE STATE COMMISSION MISCONSTRUED THE TERMS AND CONDITIONS OF THE INSURANCE
POLICY

It is humbly submitted that in this instant case, the state commission has misconstrued
the terms and conditions of the insurance policy. The state commission by its order has
directed the op1, op2, op3 to get that handset repaired without asking for any
contribution/sharing from the complainant without paying any heed to the point 8(f) of
the terms and conditions of the insurance policy, which explicitly mentions that the
compensation amount payable in the event of a claim would vary according to the extent
of damage with the compensation amounting to maximum 50% of the physical
damage/claim only.

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 the terms of the policy expressly set out therein. 22

22
IND Swift limited v New India Assurance Co. Ltd. & Ors; IV (2012) CPJ 148 (NC) 14.
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It is also laid down that a little emphasis should be made in construing the terms
of the contract of insurance, the words used therein must be given paramount
importance and it is not open for the court to add or delete or substitute any
words, therefore the endeavor of the court should always be to interpret the words
in which the contract is expressed by the parties. 23

The insured cannot claim anything more than what is covered by the insurance
policy. The terms of the contract have to be construed strictly without altering the
nature of the contract as the same may affect the interests of the parties
adversely. 24 It is settled law that the terms of the policy shall govern the contract
between the parties, they have to abide by the definitions given and all those
expressions appearing in the policy should be interpreted with reference to the
terms of policy and not with reference to the definition given in other laws 25. In
interpreting the documents relating the contract of insurance, the duty of the court
is to interpret the words in which the contract is expressed by the parties because
it is not for the court to make a new contract, however reasonable, if the parties
have not made it themselves. The insurance policy has to be construed having
reference contained in it and no artificial farfetched meaning could be given to the
words appearing in it.26

To construe the provision differently would amount to rewriting the provision and
there is a need to emphasize that it is not the contract of insurance which is being
interpreted but the provisions of the insurance policy is being interpreted, these
must, therefore, be interpreted in the spirit in which the same have been enacted
accompanied by anxiety to insure that the provision is not nullified by a
backward-looking interpretation, which would amount to misconstruing the

23
Suraj Mal Ram Niwas Oil Mills Private Limited v United India Insurance Co. Ltd. 2010 10 SCC
567, SCC p.575, para26; Oriental Insurance Co. Ltd. v Sony Cheriyan 1999 6 SCC 451;
Amravati District Central Cooperative Bank Limited v United India Fire And General Insurance
Company Limited 2010 5 SCC 294.
24
Export Credit Guarantee Corporation Of India Limited v M/s Garg Sons International, II (2013) CPJ 1
(SC)
25
National Insurance Company v Public Type College Revision Petition No. 869 Of 2001
26
Oriental Insurance Co. Ltd. v Samayanallur Primary Agriculture Cooperative Bank Civil Appeal No.
8716 Of 1997; Oriental Insurance Co. Ltd. v M/s Narbheram Power And Steel Pvt. Ltd. Civil Appeal No.
2268 Of 2018 (@S.L.P.(C) No. 33621 Of 2017)
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provisions of the policy. 27

In order to interpret any clause of the insurance contract or policy, it is also

necessary to gather the intention of the parties from the words used in the policy, 28
since it is evident from the term 8(f) of the B- Secure Insurance Policy that the
compensation would vary according to the extent of damage with the
compensation amounting to maximum 50% of the physical damage or claim only,
the intention of the parties is substantiated by the legal phrase Expresio Unis est
Exclusio Alterius which says that expression of one thing is the exclusion of
another.

(3.2) THAT THE STATE COMMISSION ADDED A CLAUSE THAT WAS NOT INCLUDED IN THE
ORIGINAL INSURANCE POLICY.

It is humbly submitted that the state commission in its order has added and
substituted the terms on their own, regarding the recovery of 50% of the assessed
value of the O-TAB in case of total loss only and the same not applicable in the
case of partial loss, which is totally inconsistent according to the point 8(a) of the
terms and conditions of the insurance policy, which says that in case of accidental
damage the insurance will cover only physical damage/breakage/malfunction
(partial damage) and not full damage.

The terms of the policy have to be construed as it is and we cannot add or subtract
something. Howsoever liberally we may construe the policy but we cannot take
liberalism to the extent of substituting the words which are not intended. 29

In the contract of insurance rights and obligations are strictly governed by the
terms of the policy and no exception or relaxation can be given on the ground of
equity.30

Since upon the issuance of insurance policy the insurer undertakes to indemnify

27
United India Insurance Co. Ltd. V. Hukum Singh, W.P. 975 of 1994; see also Skandia Insurance Co.
Ltd. V. KokilaBen Chandravadan, 1987 ACJ 411 (SC)
28
United India Assurance Co. Ltd. v Pushpalaya Printers 2004 3 SCC 694; United India Insurance Co.
Ltd. v Great Eastern Shipping Co. Ltd. 2007 7 SCC 101.
29
United India Insurance Co. Ltd. v M/s Harchand Rai Chandan Lal 2005 (1) CPR 64 (SC)
30
Deokar Exports Pvt. Ltd. v New India Assurance Co. Ltd. 2008 14 SCC 598; Lakhmi Chand v Reliance
General Insurance (2016) 3 SCC100.
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the loss suffered by the insured on account of the risks covered by the insurance
policy its terms have to be strictly construed. The court while construing the terms
of the policy is not expected to venture into extra liberalism that may result in
rewriting the contract or substituting the terms which were not attended by the
parties. 31 The insurer and the insured are bound by the conditions enumerated in
the policy and the insurer is not liable to the insured if there is violation of any
policy condition. 32

Reading a judgment as a whole without undertaking a piecemeal approach in

interpreting a decree in a manner which may amount to substitution of a new
decree is not countenance under law. Therefore it s clear that as per the insurance
contract that whatever the provisions were explicitly mentioned will have the legal
effect in comparison to the new provision added by the state commission in its
order.33

in a catena of judgments the Hon’ble Supreme Court has held that in interpreting
the documents relating to the contract of insurance, the duty of the court is to
strictly interpret the words in which the contract is expressed by the parties,
because the terms of the policy have to be construed as it is and there can be no
addition or substitution liberally. 34

(3.3) THAT THE PERIOD OF 6 MONTHS HAD NOT LAPSED.

It is humbly submitted that the Respondent purchased the O-TAB and an

additional insurance cover on 12-10-2015. The Cover was for a period of 6
31
Vikram Greentech India Ltd. & Anr v New India Assurance Co. Ltd. JT 2009 5 SC 579 SCC P.603-04,
Para16-18; General Assurance Society Ltd. v Chandmull Jain AIR 1966 SC 1644 P.1648-49 Para11;
Sikka Papers Ltd v National Insurance Co. Ltd. 2009 7 SCC 777, SCC pp. 781-82, P.13.
32
New India Assurance Co., Shimla v Kamla & Ors. Appeal (civil) 2387 of 2001, Appeal (civil) 2388 of
2001, Appeal (civil) 2389 of 2001.
33
Meenakshi Saxena and Anr. V ECGC Ltd. ( Formerly known as Export Credit Guarantee Corporation
of India Limited), Civil Appeal No. 5681/2018 Arising out of SLP (C) 6286 of 2017.
34
Kiranjit Kaur and 3 Ors. v HDFC Standard Life Insurance Co. Revision Petition No. 2480 OF 2014;
National Insurance Co. Ltd. v A.S. Moosani & Co. Revision Petition No. 4068 of 2010; Vikram
Greentech India Ltd. & Anr v New India Assurance Co. Ltd. JT 2009 5 SC 579 SCC P.603-04, Para16-
18; Sikka Papers Ltd v National Insurance Co. Ltd. 2009 7 SCC 777, SCC pp. 781-82, P.13; New India
Assurance Co. Ltd. v Zuari Industries Ltd. 2009 9 SCC 70; Hukam Singh & Anr v United India Insurance
Co. Ltd. Revision petition No. 4028 OF 2012; Mohd. Unis v United India Insurance Co. Ltd. Revision
Petition No. 443 of 2013; ICICI Prudential Life Insurance Co. Ltd. v Sudesh Gupta First Appeal No. 123
of 2008.

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months which makes it manifest that her policy cover was to end on 12-04-2016.
Since the Bhatia Insurance Company accepted her claim in time, to repair her
phone, subject to the terms of insurance which were already signed by her,
signifies that there was no lapse of the time period of the insurance cover.
It is evident from the provision no. 5 of terms and conditions of the insurance policy that
the consumer has to file his complaint within the time limit for any cause of action,
however if there are any reasons which substantiate the delay in filing the complaint
sufficient cause shall be shown. 35

(3.4) THAT THE APPELLANTS HAD NOT INDULGED IN ANY ‘UNFAIR TRADE PRACTICE’

The basic ingredients of 'unfair trade practice' are:

(i) It must be a trade practice;
(ii) 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
(iii) The trade practice adopts any unfair method or unfair or deceptive practice
including any of the practices enumerated in sub-clauses (1) to (6) of Section
2(1)(r) of the Act.36
It is humbly submitted that none of the acts of the Appellants amounts to ‘Unfair Trade
Practice’ as envisaged under the Consumer Protection Act, 1986. If there is nothing on
record to suggest that any actual loss or injury was caused to the respondent then the
application filed by the respondent applicant was not only cryptic but lacked in particulars
to fall within the definition of unfair trade practice.37

35
State Bank of India v B.S. Agricultural Industries, Civil Appeal No. 2067 of 2002; Union of India and
Anr v British India Corporation Ltd. (2004) 190 CTR SC 385, (2003) 9 SCC 505; Haryana Urban
Development Authority v B.K. Sood, Civil Appeal No. 6572 of 2005; Kandimalla Raghavaiah & Co. v
National Insurance Co. & Anr, Civil Appeal No. 4962 of 2002.
36
Britannia Industries Ltd. V. State Of West Bengal, REVISION PETITION NO. 2001 OF 2011(NC);
see also Ludhiana Improvement Trust V. Shakti Coop. House Building Society Ltd. 4 (2009) 12 SCC
369; see also Improvement Trust, Ludhiana & Anr V. Shakti Co-Op. House Bldg. Soceity Ltd. CIVIL
APPEAL NO. 1866 OF 2002 (SC)
37
Premier Engineers v Taj Rubber Industries, 2005 6 SCC 610; Hindustan Ciba Geigy v Union of India
and Ors. 2003 1 SCC 134; Colgate Palmolive (India) Ltd. v Mrtp Commission and Ors, 2003 1 SCC 129;
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(3.5) THAT THE RESPONDENT DID NOT SUFFER FROM ANY SORTS OF ‘MENTAL AGONY OR
HARASSMENT’ OR ANY LOSS OR INJURY.

It is humbly submitted that the direction given by the state commission to pay
compensation for the harassment caused to Vaishnavi does not hold any value. the
quantum of compensation if it is to be awarded will depend on the facts of each case,
nature of harassment, the period of harassment and the nature of arbitrary or capricious or
negligent action of the authority which led to such harassment. 38 Since OP-2 accepted the
claim put forth by the respondent and even the OP-3 rejected the respondent plea
regarding her replacement of phone only on the basis of this cogent reason that the
incident did not comply with the terms and conditions of the insurance policy. So from
the above premise the counsel seeks to attract the attention of the Hon’ble bench that
nowhere the respondent party had been subjected to undergo mental agony and
harassment. 39
From the settled law it is apparent that the insurance company can repudiate the claim if
there is a breach of the policy condition and the breach is fundamental or material so as to
vitiate the contract. Since the OP-3 places reliance on this condition that there was a
fundamental breach of point 2 of claim procedure of the insurance policy, their refusal to
entertain the respondent party’s claim does not amount to deficiency in service.
Deficiency in service cannot be alleged without attributing fault, imperfection,
shortcoming or inadequacy or quality or nature and manner of performance which is
required to be performed by persons in pursuance of a contract or otherwise in relation to
any service. If on facts it is found that the person or authority rendering service has taken
all precautions and considered all relevance facts and circumstances in the course of the
transaction and that their action or the final decision was in good faith, it cannot be said
that there is any deficiency in service. If the action of the respondent is found to be in
good faith there is no deficiency in service entitling the aggrieved person to claim relief
under the act. The rendering of deficient service has to be considered and decided in each
case according to the facts of that case for which no hard and fast rule can be laid down.
Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the
like may be the factors to ascertain the efficiency in rendering the service. 40

38
Bangalore Development Authority v Syndicate Bank, Civil Appeal No. 5462 of 2002.
40
Ravneet Singh Bagga v KLM Royal Dutch Airlines and Anr. 2000 1 SCC 66; Interglobe Aviation Ltd.
v N Satchidanand 2011 7 SCC 463; Air France v O.P. Srivastava, First Appeal No. 310 of 2008.
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(3.6) THAT THE COMPENSATION AWARDED BY THE STATE COMMISSION ON THE PRETEXT OF
‘UNFAIR TRADE PRACTICE’ AND ‘HARASSMENT’ WAS EXEMPLARY.

It is humbly submitted that the order of the state commission is totally inconsistent with
the settled principles as laid down in one of the Apex’s court decision. Compensation
includes both the just equivalent for the loss of goods and services and also for suffering
injustice. When the point of awarding the exemplary or aggravated damages for
humiliation etc. to a person is raised it has been held that the exception has to be carved
out if the injury is due to arbitrary or oppressive action by the insurance company. The
commission must be satisfied that the complainant is entitled to compensation for
harassment or mental agony or oppression which should be recorded carefully on material
and convincing circumstances and not lightly. 41 Since it has been proved from the
aforementioned issues that the opposing parties were neither involved in any arbitrary
action nor there was any deficiency in service on their part and also the complainant did
not also undergo any kind of harassment or mental agony.

ISSUE 4: WHETHER OR NOT NG SERVICE PROVIDERS BE MADE A PARTY TO

THE CASE OR NOT?

(4.1) THE ORDER OF THE STATE COMMISSION IS IMPUGNED

It is humbly submitted that the order of the state commission is totally inconsistent
with the settled principles as laid down in one of the Apex’s court decision.
Compensation includes both the just equivalent for the loss of goods and services
and also for suffering injustice. When the point of awarding the exemplary or
aggravated damages for humiliation etc. to a person is raised it has been held that
the exception has to be carved out if the injury is due to arbitrary or oppressive
action by the insurance company. The commission must be satisfied that the
complainant is entitled to compensation for harassment or mental agony or
oppression which should be recorded carefully on material and convincing
circumstances and not lightly. 42 Since it has been proved from the aforementioned

41
Ghaziabad Development Authority v Balbir Singh 2004 5 SCC 65
42
Ghaziabad Development Authority v Balbir Singh 2004 5 SCC 65
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issues that the opposing parties were neither involved in any arbitrary action nor
there was any deficiency in service on their part and also the complainant did not
also undergo any kind of harassment or mental agony and therefore the order of
the state commission may please be termed as impugned.

(4.2) THE REJECTION OF THE WARRANTY CLAIM WAS AFTER PROPER INVESTIGATION.

It is humbly submitted that when the respondent party approached the opposing
party with their claim regarding the malfunctioning of the phone camera, it was
after the proper investigation the NG Service provider rejected her claim. When at
the second instance Vaishnavi approached the OP-3, for replacing her phone as
per the insurance policy her claim was rejected since the incident in which her tab
was damaged and its screen got cracked, did not comply with the terms and
conditions of the insurance policy.

4.2.1 THAT THE RESPONDENT MISCONSTRUED THE CLAIM

PROCEDURE

It is humbly submitted that the respondent did not adhere to the Claim procedure,
wherein it was expressly stated that the first hand information was to be given to
the Insurance Company, who was then, to forward the same to the authorized
service providers. It is contended that the Respondent faltered in approaching the
said appellants at the first instance. 43

There was neither any misleading omission on the part of the NG Service
provider nor any practice which is contrary to the requirement of professional
diligence and that the respondent party did not intimate the insurer within 48
hours of the occurrence of the event, which was the fundamental breach of the
terms of the insurance policy. According to the point 3 of the claim procedure as
per the terms and conditions the insured was to inform the insurer by means of e-
mail/voice call or through written communication at the insurers authorized email

43
Moot Proposition
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address, which the respondent was unable to perform thus leading to the
fundamental breach of the claim procedure as given under the terms and
conditions of the insurance policy and also was unable in citing a cogent reason
for same and thus NG Service provider did not cause any harassment or agony to
the respondent as it strictly followed the terms and conditions as decided under
this insurance contract nor it involved itself in any unfair trade practice. 44 Because
of no default on its part the said Appellants i.e. NG Service Providers cannot be
made a party to the case.

44
Ravneet Singh Bagga v KLM Royal Dutch Airlines and Anr. 2000 1 SCC 66; Interglobe Aviation Ltd.
v N Sastchidanand 2011 7 SCC 463; Air France v O.P. Srivastava, First Appeal No. 310 of 2008.

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PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN

AND AUTHORITIES CITED, COUNSELS FOR THE PROSECUTION HUMBLY PRAY AND

IMPLORE BEFORE THE HON’BLE NATIONAL COMMISSION,

THAT IT MAY BE PLEASED TO HOLD THAT: -

 VAISHNAVI WAS NOT AGGRIEVED BY DEFICIENCY IN SERVICES

 THE SERVICES PROVIDED BY KAMRA ELECTRONICS CANNOT BE TERMED AS

UNFAIR TRADE PRACTICES WITHIN THE AMBIT OF THE CONSUMER PROTECTION

ACT, 1986

 THE ORDERS PASSED BY THE STATE COMMISSION WERE IMPUGNED

 THE N.G. SERVICE PROVIDERS CANNOT BE MADE PARTY TO THE CASE.

MISCELLANEOUS

AND ANY OTHER RELIEF THAT THIS HON’BLE COMMISSION MAY BE PLEASED TO GRANT
IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE AND FOR THIS ACT OF
KINDNESS THE APPELLANTS AS IN DUTY BOUND EVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

SD/-
COUNSEL FOR APPELLANTS

28