SVKM’S NMIMS KIRIT P.

MEHTA’S SCHOOL OF LAW NOVICE MOOT COURT, 2023

Before

CIVIL COURT OF HYDERABAD

FILED UNDER

THE LAWS OF INDIANA

IN THE CASE CONCERNING EXPLODING XM1 PHONE

AND

IN THE MATTER BETWEEN:

MR. KIRAT LAL [PETITIONER]

versus

XEEMEE INDIANA [RESPONDENT]

XEEMEE

GOGGLE

MEMORIAL for RESPONDENT

MEMORIAL for PETITIONER TABLE OF CONTENTS
 TABLE OF CONTENTS

Table of Contents 2

Index of Authorities I3

Statement of Jurisdiction 4

Statement of Facts 5

Issues Raised 7

Summary of Arguments 8

Arguments Advanced 10

Prayer for Relief 22

MEMORIAL for PETITIONER TABLE OF CONTENTS

 INDEX OF AUTHORITIES

Cases

1. Jacob Mathew vs State Of Punjab & Anr ( 2005 ) 6 AIR 2005 SCC 1 - pg 12
2. Jindal Vijayanagar Steel. vs Jindal Praxair Oxygen Company Ltd ( 2006 ) 11 SCC 521
- pg 13
3. Caparo Industries plc v Dickman. ALL ER 568,, 2 AC 605 - pg 14
4. M/S GLAXY COMPUTER V. SUPRIYA RAI. (2017) - pg 16

Statute

1. Indian Contract Act, 1872, sec. 9 - pg 10

2. Code of Civil Procedure, 1908, sec. 19 - pg 10
3. Code of Civil Procedure, 1908, sec.20 - pg 10
4. Consumer Protection Act, 2019, sec. 34 - pg 11
5. Consumer Protection Act, 2019, sec. 6 - pg 13
6. Consumer Protection Act, 2019, sec. 7 - pg 13
7. Consumer Protection Act, 2019, sec. 36 - pg 13
8. Consumer Protection Act, 2019, sec. 37 - pg 13
9. Consumer Protection Act, 2019, sec. 38 - pg 13
10. Consumer Protection Act, 2019, sec. 9 - pg 14
11. Consumer Protection Act, 2019, sec. 84 - pg 14
12. Consumer Protection Act, 2019, sec. 86 - pg 15
13. Consumer Protection Act, 2019, sec. 87 - pg 17

Books / Articles

1. Ratanlal & Dhirajlal's the Law of Torts, 441 (2002) - pg 12

2. Epstein, Torts, §16.15, p. 430 (Aspen Publishers, 1st Ed. 1999) - pg 16

MEMORIAL for RESPONDENT INDEX OF ABBREVIATIONS

 STATEMENT OF JURISDICTION

The respondent, XEEMEE Indiana, would deny the jurisdiction of the civil court of
Hyderbad in this plaint, as the court would be exceeding its jurisdiction. In the opinion of the
respondents, it was expressly stated that jurisdiction of Mumbai courts and tribunals will have
the authority in any dispute or claim regarding the products or services of XEEMEE. 1

1
moot proposition. pg. 1, para 2

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4
 STATEMENT OF FACTS

BACKDROP

“XEEMEE” was a Kchinese Mobile Company, that released the phone “XM1” in the year
2018. The mobile used the software of the company “Goggle” based in USSA.

Due to its low price and popularity, XEEMEE went global and established a subsidiary unit
in Indiana called “XEEMEE Indiana”, with its head office in Mumbai. It started operating its
business involving distribution, sale and services of XM1.

Mr Kirat Lal was a citizen of Indiana, living in Delhi who purchased the XM1 due to its
affordability. The standard sale purchase agreement of the mobile stated that ‘any dispute or
claim regarding the products or services of XEEMEE, jurisdiction of Mumbai courts and
tribunals will be applicable’.

UNFOLDING OF EVENTS

April 2020 - Kirat Lal started noticing heating issues during long calls and charging,
especially after a new android update by Goggle which rolled out.

April, 2020 - many users reported the same issue with the XM1 phone from around the world
and XEEMEE issued a statement directing ‘users to not overcharge their phone by keeping it
in a charging state overnight as 2-3 hours are sufficient to fully charge the phone’

Kirat Lal faced the issue of his phone heating up again and called customer care, who
directed him to bring the phone to the nearest service centre and asked him not to overcharge
his phone, but he did not have the time to take it to the centre and continued using it

3rd May 2020- Kirat Lal had been informed that he would have to transfer to Hyderbad
within a week's time

6th May 2020- he charged his phone overnight and when he woke up the next morning he
noticed his phone was heating up more than usual. While he was on a call with his sister the

MEMORIAL for RESPONDENT

5
phone started smoking out and burst in his hand. This caused him severe burns in his right
hand and right ear and an extreme ringing sensation. The doctor reported that the burns are
recoverable, but he had permanently lost hearing in his right ear.

10th May - After being discharged on 9th May he had to immediately leave Hyderabad from
Delhi

He filed a case in the Civil Court of Hyderabad for the Tort of Negligence and under
Consumer Protection Act 2019, against “XEEMEE”, “XEEMEE Indiana” and “Goggle”

He filed a suit against XEEMEE and XEEMEE Indiana on the grounds that he sustained
injuries due to the faulty products made by them, and that the issue was not rectified or the
phone replaced even after the problem was reported by the masses. He filed a suit against
Goggle as the problem began after the new software rollout in 2020. He claimed
compensation of 50 lakhs for serious physical injury, mental agony to him personally and its
impact on his affairs while he was shifting due to the transfer.

MEMORIAL for RESPONDENT

6
 ISSUES RAISED

1. Whether the case be maintainable under the jurisdiction of the courts of Mumbai,
Delhi or Hyderabad?

2. Whether the issue be considered a tort of negligence and maintainable under civil
courts or would it be filed purely as a consumer complaint?

3. Whether Mr Kirat Lal can hold XEEMEE and XEEMEE Indiana and Goggle liable
for damages caused to him.

MEMORIAL for RESPONDENT

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 SUMMARY OF ARGUMENTS

ISSUE 1- As per the respondent, this case is oustside of the jurisdiction of the civil court of
Hyderbad, because as per the expressly stated standard sale-purchase agreement, in the case
of any dispute arising jurisdiction of courts and tribunals of Mumbai shall be exercised.
Further, as per section 19 and 20 of the Code of Civil Procedure, 1908, it can be concluded
that the petitioners suit can only be instituted in the jurisdiction of the courts where either the
defendant resides or the cause of action arises, considering Hyderbad is neither, the courts
would be exceeding their jurisdictions. As per section 34 of the Consumer Protection Act,
2019, a District Commission can entertain the consumer dispute claiming for compensation
of 50 lakhs.

ISSUE 2- Through established case laws it can be held that the respondent was not negligent
in their actions, they filled the requisites for duty of care as held under various cases and
Ratanlal & Dhirajlal's the Law of Torts. They were not negligent as they responded to his
consumer complaint in due time and urged him to service his phone and not overcharge, both
of which he did not act on, and therefore neither of the respondents can be held liable for the
tort of negligence. The complaint filed by Mr. Kirat Lal should be a pure consumer complaint
as the issue filled the requisites mandated under the Consumer Protection Act, 2019 and
could be filed in the District Commission. Further, under this case special law, which is the
Consumer Protection Act would prevail over general law, which is the Code of Civil
Procedure, through established precedents, which is why it should have been filed under CPA
only.

ISSUE 3- XEEMEE Indiana,XEEMEE and Goggle shall not be liable to compensate Mr

Kirat Lal. The injury caused was not due to the negligence of the respondent and does not
come under the perview product liability under the Consumer Protection Act, 2019.
XEEMEE and XEEMEE indiana established their duty of care by giving instructions about
the product (through statements and customer service calls) therefore shouldn’t be liable
under product liability and the tort of negligence. The injury suffered by the petitioner can be
considered contributory negligence as his final action of overcharging the phone led to the
injury(after he was expressly told not to do it) It is submitted that there exists an assumption
of risk. The action of charging the device overnight establishes an awareness of an inherent

MEMORIAL for RESPONDENT

risk and the willingness to accept it (mentioned under Consumer Protection Act) It is also
submitted that Goggle is not liable under product liability as a service provider as the
essentials to establish liability were not met.

MEMORIAL for RESPONDENT

 ARGUMENTS ADVANCED

[1] Whether the case be maintainable under the jurisdiction of the courts
of Mumbai, Delhi or Hyderabad?

The respondents question the jurisdiction of the civil court of Hyderbad in the settlement of
the dispute as it is out of the jurisdiction of this court to take up this case for multiple reasons.

1. It was expressly stated under the under the standard sale-purchase agreement and
terms of warranty with “XEEMEE Indiana”, that ‘any dispute or claim regarding the
products or services of XEEMEE, jurisdiction of Mumbai courts and tribunals will be
applicable’2. The petitioner by buying the product gave his consent to the above
clause and entered into contract through his conduct, which satisfy the conditions of
an implied promise as laid under section 9 of the Indian Contract Act, 18723.
therefore, jurisdiction of the courts of Mumbai would take precedence

2. As per, section 19 of the Code of Civil Procedure, 19084- Suits for compensation for
wrongs to person or movables- Where a suit is for compensation for wrong done to
the person or to movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction of another Court,
the suit may be instituted at the option of the plaintiff in either of the said Courts

it had been established that the headquarters of XEEMEE Indiana were situated in Mumbai,
where the respondent worked for profit or gain5, and as it was not proved that the respondent

2
moot proposition, p.no 1, para 1
3
Indian Contract Act, 1872, sec. 9
4
Code of Civil Procedure, 1908, sec. 19
5
moot proposition, p.no, para 1

MEMORIAL for RESPONDENT

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carried out business in Hyderabad, a suit cannot be instituted there. Suits can also be
instituted where the cause of action arose, at the discretion of the plaintiff which happened in
Delhi.

3. as per section 20 of the Code of Civil Procedure6-. Other suits to be instituted where
defendants reside or cause of action arises.—Subject to the limitations aforesaid,
every suit shall be instituted in a Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or (b) any of the defendants, where there are
more than one, at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain, provided that in such
case either the leave of the Court is given, or the defendants who do not reside, or
carry on business, or personally works for gain, as aforesaid, acquiesce in such
institution; or (c) The cause of action, wholly or in part, arises

the suit as per the above mentioned issues can be filed where

a) defendant resides or carries on business, which would be Mumbai, the jurisdiction where
the sole or principal office is situated

or

b) where the cause of action, wholly or in part arises, which would be where the appellant
resided when the accident occurred

4. As the suit for compensation was filed for a sum of 50 lakhs it can be filed in a
District Commission as per section 34 of the CPA 20197 which holds that
“Jurisdiction of District Commission.—(1) Subject to the other provisions of this Act,
the District Commission shall have jurisdiction to entertain complaints where the
value of the goods or services paid as consideration does not exceed one crore rupees”

6
Code of Civil Procedure, 1908, sec.20
7
Consumer Protection Act, 2019, sec. 34

MEMORIAL for RESPONDENT

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4.1 as per section 34 (2) of the Consumer Protection Act 20198- A complaint shall be
instituted in a District Commission within the local limits of whose jurisdiction,— (a) the
opposite party or each of the opposite parties, where there are more than one, at the time of
the institution of the complaint, ordinarily resides or carries on business or has a branch office
or personally works for gain, which would considered to be Mumbai- city of the principal
office of XEEMEE, or as per part (c) the cause of action, wholly or in part, arises- which
would be Delhi.

[2] Whether the issue be considered a tort of negligence and maintainable under
civil courts or would it be filed purely as a consumer complaint?

1. The respondent humbly submits before the Hon’ble court that the present case be
considered a pure consumer complaint rather than a tort of negligence.

1.1 As read in the case of Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005 9

Ratanlal & Dhirajlal's the Law of Torts , 24th edition 2002 edited by Justice G.P. Singh. It is
stated (at p.441-442)10

8
Consumer Protection Act, 2019, sec. 34 (2)
9
Jacob Mathew vs State Of Punjab & Anr ( 2005 ) 6 AIR 2005 SCC 1
10
Ratanlal & Dhirajlal the Law of Torts, 441 (2002)

MEMORIAL for RESPONDENT

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Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property. The definition involves
three constituents of negligence: (1) A legal duty to exercise due care on the part of the party
complained of towards the party complaining the former's conduct within the scope of the
duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for
negligence arises only when damage occurs; for, damage is a necessary ingredient of this
tort."

(a) The existence of a duty to take care, which is owed by the defendant to the
complainant;
(b) the failure to attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and
(c) damage, which is both causally connected with such breach and recognized by the
law, has been suffered by the complainant. If the claimant satisfies the court on the
evidence that these three ingredients are made out, the defendant should be held liable
in negligence.

1.2 The essentials of negligence are not fulfilled in the present case as XEEMEE Indiana,
XEEMEE and Goggle did not breach their duty towards Mr. Kirat Lal. Both XEEMEE and
XEEMEE Indiana took reasonable care and fulfilled their duty by informing their consumers
about the limitations(for usage).

They issued a global statement directing users of the XM1 phone, not to overcharge their
phones as 2-3 hours would be ample11, and also they asked Kirat Lal to bring his phone in for
servicing as soon as he could.12 Doing this, they ensured that they fulfilled their duty of care
towards the consumer.

The damage caused to the plaintiff should be connected to the alleged breach of duty, and

11
moot proposition, pg. no. 1, para 3
12
moot proposition, pg. no. 2, para 3

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there was no breach of duty. The injury caused to Mr Kirat Lal was not as a result of
negligence of the respondent.(as established in 3rd issue) It is humbly submitted that the case
in hand should not be considered as a Tort of negligence as it does not satisfy the essentials.

2. The issue also falls under the purview of consumer complaint, section 613 and section 714 of
the Consumer Protection Act, 2019 defines “complaint” and “consumer”

2.1 . Mr Kirat Lal is a consumer under Section 7 of CPA 2019 and a complaint under Section
6 has been lodged against the product manufacturer(Xeemee), product seller(Xeemee
Indiana) and product service provider(Goggle). Section 3615 ,3716 and 38 of CPA17 2019
defines a “product manufacturer”, “product seller” and “product service provider”
respectively.

2.2 .“Complaint" means any allegation in writing, made by a complainant for obtaining any
relief provided by or under Consumer Protection Act 2019. Only The initial heating of the
phone can be considered as a consumer complaint rather than the act of the explosion. It has
been established in the arguments of the 3rd issue, that the injury actually suffered by Mr
Kirat Lal was a result of overcharging beyond the prescribed amount. This confirms that the
initial heating issue and the phone exploding due to overcharging are separate issues.
Therefore, Mr. Kirat Lal can only file a consumer complaint for the heating rather than the
actual explosion that caused the injury.

2.3 .It can also be contented that as Kirat Lal has been identified as a consumer under the
above mentioned Act, the special law which established the Consumer Redressal Forums
should overrule the general law that allows a civil court to have jurisdiction over civil cases.
As supported by the case of Jindal Vijayanagar Steel (Jsw ... vs Jindal Praxair Oxygen
Company Ltd18 “ It is a well settled law, that in the event of a conflict between a special law
and a general law, the special law must always prevail."

2.4 .The issues of this case hold it maintainable under the District Commission Forum

13
Consumer Protection Act, 2019, sec. 6
14
Consumer Protection Act, 2019, sec. 7
15
Consumer Protection Act, 2019, sec. 36
16
Consumer Protection Act, 2019, sec. 37
17
Consumer Protection Act, 2019, sec. 38
18
Jindal Vijayanagar Steel. vs Jindal Praxair Oxygen Company Ltd ( 2006 ) 11 SCC 521

MEMORIAL for RESPONDENT

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established under section 3419 of the Consumer Protection Act 2019, as the suit for
compensation was 50 lakhs.

[3] Whether Mr. Kirat Lal can hold XEEMEE and XEEMEE Indiana and
Goggle liable for damages caused to him.

1. The respondent humbly submits before the Hon’ble court that XEEME Indiana,XEEMEE
and Goggle shall not be liable to compensate Mr Kirat Lal. The injury caused was not due to
the negligence of the respondent and does not come under the perview product liability under
the Consumer Protection Act, 2019

2. "Product liability" means the responsibility of a product manufacturer or product seller, of

any product or service, to compensate for any harm caused to a consumer by such defective
product manufactured or sold or by deficiency in services relating thereto; ((34) CPA2019) 20

3. In this case, The respondents adhered to their duty of care and did everything in their
power to warn their consumers about the limitations on the usage of the product.

4. It is submitted that the test whether a “duty of care” existed between the plaintiff and the
defendant was laid down in Caparo Industries (P) Ltd. Co. v. Dickman21. The House of Lords,
in that case, stated that the duty of care in tort depends not solely upon the existence of the
essential ingredients of the “foreseeability” of damage to the plaintiff but also upon its
coincidence with a another ingredient called “proximity” and also if it be “just and
reasonable” to impose such a “duty of care”. They diligently acted on their duty of care by

19
id note 7
20
id note 7
21
Caparo Industries plc v Dickman. ALL ER 568,, 2 AC 605

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advising him and thus providing a way of redressal when he called their customer service to
lodge a complaint

5. As per section (9)(iv) of the Consumer Protection Act 2019 22, the right to be heard and to
be assured that consumer's interests will receive due consideration at appropriate fora;
XEEMEE Indiana customer care entertained Mr.Kirat Lal’s complaint seriously and provided
him an instant solution to deal with the heating issues.Therefore it abides by the right of the
consumer to be heard and given relief. XEEMEE Indiana completes duty of care by issuing
instructions about the limitations on the usage and relinquishes their liability.

6. Prior to this, XEEMEE had issued a public statement directing holders of the XM1 phone
not to overcharge their phone. Two warnings can be considered to have been given. One in
the form of a statement and the other through a customer service call.

7. As per Chapter 6 of the Consumer Protection Act,2019 Section 84 (1) 23 A product

manufacturer shall be liable in a product liability action, if—(e) the product fails to contain
adequate instructions of correct usage to prevent any harm or any warning regarding
improper or incorrect usage. The instructions of proper usage was given by the XEEMEE in
their Statement as well as customer service provided to Mr.Kirat Lal, therefore it is evident
that Mr kirat Lal had sufficient information for handling the phone.

8. Even if we assume that the statement released by XEEMEE was not seen by Kirat Lal, he
was given direct instructions during the customer service phone call. Due to his busy
schedule,Mr.Kirat Lal did not follow through with XEEMEE’S advice of bringing his mobile
phone to a service centre for further check-up, however this does not exempt the fact that he
had information regarding the usage of the phone and cannot plead ignorance to the fact that
he had information regarding the usage of the phone.

9. As per chapter 6, section 86 of CPA 2019 24, 86. A product seller who is not a product
manufacturer shall be liable in a product liability action, if:- (e) he failed to exercise
reasonable care in assembling, inspecting or maintaining such product or he did not pass on
22
Consumer Protection Act, 2019, sec. 9
23
Consumer Protection Act, 2019, sec. 84
24
Consumer Protection Act, 2019, sec. 86

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the warnings or instructions of the product manufacturer regarding the dangers involved or
proper usage of the product while selling such product and such failure was the proximate
cause of the harm

10. It cannot be proved that XEEMEE did not exercise reasonable care in the assembly,
inspection or maintenance of XM1 products, as no issues were raised concerning the method
of manufacturing the phone, to answer the second part of the section concerning whether the
sellers issues adequate warnings regarding the dangers involved or proper usage of the
product while selling such product and such failure was the proximate cause of the harm.

11. Here the sellers issues adequate warning by issuing a statement directing ‘users to not
overcharge their phone by keeping it in a charging state overnight as 2-3 hours are sufficient
to fully charge the phone’ XEEMEE and XEEMEE Indiana fulfilled their duty by adequately
warning him and asking him to present the phone at the nearest customer service as and when
he could. The instructions of proper usage was given by the XEEMEE in their Statement as
well as customer service provided to Mr.Kirat Lal.

12. The Indian Evidence Act, 1872 (Evidence Act) sets out the law relating to burden of
proof for civil and criminal cases. As a general rule, any party seeking the court’s
intervention as to enforcement of its legal rights must prove the facts that establish and
substantiate its claim.To establish causation in product liability cases under Indian law, every
fact establishing the elements of a cause of action must be proved by the plaintiff or the
aggrieved party. One of the burdens of proof to the aggrieved party is breach of duty of care
and resulting damage (in instances involving negligence).

13. The respondent humbly submits that The act that caused the injury was a direct result of
the overcharging of the device.As mentioned in the previous arguments ,after the initial
complaints XEEMEE and XEEMEE Indiana took all the steps necessary to inform Mr Kirat
Lal,which establishes the duty of care.

Contributory negligence

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14. Under general tort law principles, a plaintiff who acts negligently and contributes to his or
her own harm may be limited in the ability to recover. According to the facts of the case, the
loss or injury is owing to negligence or misuse by the consumer(Mr Kirat Lal), including
contributory negligence;( Restatement(2nd) of Torts §402A comment n.) Contemporary
decisions have held that when a user suffers an injury from a defective product due in part to
his or her own negligent conduct, reduces or eliminates the liability of the manufacturer. Mr
Kirat Lal charged his phone overnight after being told to not charge for more than 2-3 hours
and neglecting the suggestion of bringing his phone for servicing (customer care call). Since
the action(exploding of the device) occurred after he did something he was specifically not
supposed to do (overcharging of the phone) We can infer that the explosion of the phone was
due to the overnight charging of the phone.25

15. The rule of comparative negligence reduces or eliminates the defendant’s liability when a
plaintiff fails to meet a standard of reasonable care, and the lack of care is a proximate cause
of the injury. This standard includes conduct that would be high risk even without the defect,
which combines with the defect to create harm, or make it worse. For example, in one case a
plaintiff was thrown from his car due to a defect in the door latch, but was also intoxicated,
and had failed to use the seatbelt or lock the car door.26

16. Contemporary decisions have held that when a user suffers an injury from a defective
product due in part to his or her own negligent conduct, this may reduce or eliminate the
liability of the manufacturer. This can be recognized by most jurisdictions in situations in
which the plaintiff’s conduct combines causes injury.27

17. M/S GLAXY COMPUTER V. SUPRIYA RAI28 a case filed for a manufacturing defect
showcased The mere fact that the laptop was taken to respondent No. 3 twice, is no ground to
presume or hold that the laptop in question suffered from inherent manufacturing defect. The
complainant has not filed any cogent and reliable evidence to show that there was any
manufacturing defect in the laptop in question purchased by her. As is stated above, both the

25
moot proposition, pg. n. 2, para 4
26
Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P. 2d 1162, 144 Cal.
27
Epstein, Torts, §16.15, p. 430 (Aspen Publishers, 1st Ed. 1999)
28
M/S GLAXY COMPUTER V. SUPRIYA RAI. (2017)

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times when the laptop was taken to respondent No. 3, the problems pointed out were duly
attended and rectified and the laptop was put in perfect working condition. It is also a settled
law that the onus to prove manufacturing defect in a product lies on the complainant and the
complainant has to discharge the said burden by filing cogent and reliable evidence. It is
further pertinent to mention here that no expert evidence has been filed by the complainant in
the present case to prove that the laptop in question was having any manufacturing defect.
Similarly the claim of a manufacturing defect may not prevail as the chain of events clearly
conclude that the overnight charging of the device was the reason for the explosion

18. XEEMEE issued a statement, and gave personal instructions to the plaintiff in order to
ensure the safety of the consumer. A failure on the part of Mr Kirat Lal to employ these
safety features can be considered a form of negligence.

The Assumption of risk

19. It is submitted that Consumer protection Act Section 87 29 A product manufacturer shall
not be liable for failure to instruct or warn about a danger which is obvious or commonly
known to the user or consumer of such product or which, such user or consumer, ought to
have known, taking into account the characteristics of such product.

20. Essentially, the assumption of the risk asserts that, by taking the chance of injury from a
known risk, Mr.Kirat Lal agreed to assume the risk of injury. After already facing a fair
amount of heating issues(along with a ringing sensation) It can be established that Mr Kirat
Lal was aware of the issues being aggravated. This should have induced Mr Kirat Lal to be
more precautious while using the product ( or he should have stopped using the product for
the time being and sent it for servicing as suggested by XEEMEE customer care)

21. Assumption of risk can be established through Mr Kirat Lal’s own experience with the
product.Having certain conditions for the use of electronic appliances is reasonable and
consumers are expected to follow through with the given instructions. The initial heating,
ringing in the ear and consumer service instructions should have discouraged Kirat Lal to
continue without getting his phone serviced. The action of charging the device overnight
establishes an awareness of an inherent risk and the willingness to accept it.

29
Consumer Protection Act, 2019, sec. 87

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Whether Goggle is a Product service provider and if so, are they liable for the injury
caused to Mr Kirat Lal

22. It is submitted that Under Consumer protection Act, Section (38) "product service
provider", in relation to a product, means a person who provides any service in respect of
such a product; Goggle in this case is a “product service provider” as they are the operating
system used by XM1.

23. Consumer protection Act Section 87 30 : A product service provider shall be liable in a
product liability action, if—
(a) the service provided by him was faulty or imperfect or deficient or inadequate in quality,
nature or manner of performance which is required to be provided by or under any law for the
time being in force, or pursuant to any contract or otherwise; or
(b) there was an act of omission or commission or negligence or conscious withholding any
information which caused harm; or
(c) the service provider did not issue adequate instructions or warnings to prevent any harm;
(d) the service did not conform to express warranty or the terms and conditions of the
contract.

Goggle does not fall within the product liability of service providers and should not be made
liable. Additionally, it cannot be proved that they had produced defective software.

24. It is submitted that there is no concrete evidence to suggest that there was an inherent
defficiency in the nature or performance of the working of the operating system. There is also
no direct correlation between the update and the actual injury suffered by Mr.Kirat Lal. The
argument of negligence and act of omission or commission does not sustain,as nothing was
done differently considering the running of the app. Since Goggle is an open source operating
system, an inherent defect in their software cannot be certain since there is no information
about other devices (using Goggle as an operating system) facing similar issues.

25. Goggle should not be made a party to the present case as it neither manufactures the XM1
nor its battery, rather it only provides an open licence software to companies for their android
phones. The contribution of proximity does not apply as it is not reasonable to foresee the

30
id note 29

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physical injury faced by Mr Kirat Lal as a result of the android update. Since Goggle was an
open source operating system (The open-source operating system allows the use of code that
is freely distributed and available to anyone and for commercial purposes.There was no
presence of an express warranty as an open source operating system can be used by anyone
and a direct contract only specific to XM1 and Mr Kirat Lal does not exist.

26. It is humbly submitted that Goggle should not be held liable for the injury caused to
Mr.Kirat Lal as conditions of a product liability action as a product service provider are not
fulfilled . In addition to that, The injury was not as a result of the operating system, therefore
excluding Goggle as a party to the case.

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 PRAYER FOR RELIEF

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

1. XEEMEE,XEEMEE Indiana and Goggle are not liable to pay damages to Mr.Kirat
Lal

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

Respectfully Submitted;

Sd-

On Behalf of the Respondent

MEMORIAL for RESPONDENT

MEMORIAL for RESPONDENT