Page i of xi

IN THE HON’BLE CIVIL COURT OF MUMBAI

MAHARASHTRA

Between

Ms. Kalyani Tekriwal ...Plaintiff

V.

1.Pankaj Electronics, …Defendant no. 1

2. Sony Ericsson Service Centre (Andheri East), …Defendant no. 2

3. Sony Ericsson Mobile Communication (I)(P) Ltd. …Defendant no. 3

On submission to the Hon’ble Civil Court

At Mumbai

WRITTEN SUBMISSION ON BEHAILF OF THE PLAINTIFF

9TH ANNUAL INTRA BATCH MOOT COURT COMPETITION 2010

-NLIU BHOPAL-
Table of Contents……………………………………………...……………………………...Page ii of xi

TABLE OF CONTENTS

List of Abbreviations……………………………………………………………………………...iii of xi

Index of Authorities………………………………………………………………………….…….iv of xi

Table of Cases…………………………………………………………………………………..iv of xi

Books & Articles……………………………………………………………………….……….v of xi

Statutes…………………………………………………………………………………………..v of xi

Websites……………………………………………………………………………………..…..v of xi

Statement of Jurisdiction………………………………………………………………….………vi of xi

Synopsis of Facts……………………………………………………………………………..……viii of xi

Issues Raised……………………………………………………………………………………...ix of xi

Summary of Arguments…………………………………………………………….…………….x of xi

Arguments Advanced………………………………………………………………………….……1 of 8

Prayer

MEMORIAL ON BEHALF OF THE PLAINTIFF

List of Abbreviation…………………….……………………………………………………Page iii of xi

LIST OF ABBREVIATIONS

AIR : All India Reporter

ALL ER : All England Reporter

Bom : Bombay

Bom LR : Bombay Law Reporter

Corp. : Corporation

CPC : Code of Civil Procedure

CPR : Consumer Protection Reporter

Cal : Calcutta

Co. : Company

Edn. : Edition

Govt. : Government

Hon’ble : Honourable

KAR : Karnataka

KB : King’s Bench

Ltd : Limited

NCDRC : National Consumer Dispute Redressal Commission

Ors : Others

Pvt. : Private

QB : Queen’s Bench

& : and

v. : verses

MEMORIAL ON BEHALF OF THE PLAINTIFF

Index of Authorities………………………………………………………………………….Page iv of xi

INDEX OF AUTHORITIES

Table of Cases

1. A. Lakshmanan v. M/s Anjaleem Enterprises & Anr. (1993) 2 CPR 355

2. Brook v. bool [1928] 2 KB 578

3. Donogue v. Stevenson [1932] All ER Rep 1

4. Eastern Mining Contractors (Private) Ltd. v.

The Premier Automobiles Limited (1963) 65 BOM LR 183

5. Harmohinder Singh v. Anil Sehgal & Anr Revision Petition No. 955 of 1996,

NCDRC, New Delhi

6. Love v. Port of London Authority [1959] 2 Llyod’s Rep 541

7. Mash & Murrel Ltd v Joseph Emanuel Ltd [1961] 1 All ER 1189

8. Patel Roadways And Another v.

Manish Chhotalal Thakkar And Ors ILR 2000 KAR 3286

9. P. C Rajput v. State Govt. of Madhya Pradesh AIR 1993 MP 107

10. Ranbirsingh Shankarsingh v. Hindustan General

Electric Corporation Ltd AIR 1971 Bom 97

11. V.J. Acharya v Ratilal Fulchand Shah And Anr. 1 (1985) ACC 186

MEMORIAL ON BEHALF OF THE PLAINTIFF

Index of Authorities…………………………………………………………………………….Page v of xi

- Books & Articles –

A Lakshminath, M Sridhar, Ramaswamy Iyer’s The Law of Torts, (10th edn Lexis Nexis Butterworth
2007)

Atiyah P S, An Introduction to the Law of Contract,(5th edn. Clarendon Press Oxford 1995)

Chakraborty R, Law of Sales of goods and partnership, (1st edn. Orient Publication2006)

Cooke John, Law of tort (7th edn. british library cataloguing-in-publication data 2005)

Glannon W Joseph The law of torts, (2nd edn. Aspin Law and Business 2000)

Jones A Micheal, Text book on torts (8th edn. a Oxford university press 2002)

Majumdar P K, The law of consumer protection in india, (5th edn. Orient Publiting Co. 2006)

Singh Avtar, Contract and Specific Relief, (10th edn. Eastern Book Co. Lucknow 2008)

- Statutes -

1. Sales of goods act, 1930

2. Consumer protection act, 1986

3. Indian Contract Act, 1872

4. Code of Civil Procedure, 1908

- Websites -

1. www.advantageconsumer.com

2. www.indiankanoon.org

3. www.lawof contracts.co.uk

4. www.legaldictionary.thefreedictionary.com

5. www.ncdrc.nic.in

MEMORIAL ON BEHALF OF THE PLAINTIFF

Statement of Jurisdiction….…………………………………………………………………Page vi of xi

STATEMENT OF JURISDICTION

The plaintiff knocks the door of this hon’ble court and invokes its original civil jurisdiction
under the following sections of the CPC, 1908:

 9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.

 15. Court in which suits to be instituted – Every suit shall be instituted in the Court of the
lowest grade competent to try it.

 20. Other suits to be instituted where defendants reside or cause of action arises –
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local
limits of whose jurisdiction.
(a) The defendants or each of the defendants, at the time of the commencement of the suit
actually or voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

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

(c) The cause of action wholly or partly arises.

MEMORIAL ON BEHALF OF THE PLAINTIFF

Background of Parties & Synopsis of Facts………………………………………………Page vii of xi

BACKGROUND OF PARTIES

Plaintiff, Ms. Kalyani Tekriwal- resident of 29C Andheri, senior partner at the Law Firm Silver
Circle & Associates

Defendant No. 1- Mr. Pankaj Siddhique, store owner, Pankaj Electronics (a standalstone
multipurpose electronics store)

Defendant No. 2- the Sony Ericsson Service Centre, Andheri East, Mumbai

Defendant No. 3- the Sony Ericsson Communications (I)(P) Ltd, Delhi

SYNOPSIS OF FACTS

1. The plaintiff, Ms. Kalyani Tekriwal (hereafter referred as Ms. Tekriwal) is a resident of
Andheri, and a senior partner at the Law firm Silver Circle and Associates. She has a
family history of Premature Heart diseases and diabetes. Apprehensive of being
diagnosed with the same, she regularly exercised and followed healthy eating habits and
had visiting Dr. Gurjar, a resident cardiologist at the Fortis Hospital.
2. On 25th September 2009, Ms. Tekriwal visits Dr. Gurjar and complains of severe chest
pain for the past two months and formation of nodules on her knees and elbows and is
diagnose with acute diabetes and very high blood cholesterol and Triglyceride level. She
is prescribed medication and adviced to lose 10 kgs by walking for atleast 5 to 6 kms
everyday and show her progress after four months.
3. On 27th September 2009 Ms. Tekriwal went to the shop of Mr. Pankaj Siddhique
(hereafter referred as Mr. Siddhique) with an intention to purchase a pedometer. However
Mr. Siddhique persuaded rather convinced her to buy Sony Ericsson W580i mobile
phone which had ad additional feature of pedometer and a music player. Being insisted
by him, she purchased the same.
4. From 30th September 2009, Ms. Tekriwal regularly jogged at the Shivaji Park which had
a jogging area of 9 kms. She carried the new phone to keep a track of the distance and

MEMORIAL ON BEHALF OF THE PLAINTIFF

Synopsis of Facts……………………………………………………………………………Page viii of xi

would stop after she reached the mark of 5 km. every once a while she felt some slight
chest pains.
5. On 25th December 2009, Ms. Tekriwal noted some defect in the battery and charging
display of the mobile phone and immediately contacted Mr. Siddhique, who in turn
provided her with a simple pedometer as he was aware of her health condition. He told
her that repair would take two days.
6. On 28th December 2009 Ms. Tekriwal realized that the distance she regularly jogged
assuming to be 5 kms according her mobile phone was actually 4 kms. She immediately
called the Sony Ericsson Service Customer Care to lodge a complaint but it refused to
entertain her complaint. Ms. Tekriwal also reported the defect to Mr. Siddhique. However
he labled the defect as manufacturing defect and refused to take the liability for the fault.
7. On 1st January 2010, Ms. Tekriwal sent a written complaint to the Sony Ericsson Service
Centre about the malfunctioning of the pedometer bur there was never any response from
them.
8. On 10th January 2010, Ms. Tekriwal felt severe chest pain and approached Dr. Gurjar
who informed her that her health condition had not improved yet and she had mererly lost
5 kgs.
9. On 18th January 2010, Ms. Tekriwal suffered from a heart attack and had to go an
emergency bypass surgery costing 4 lakh.
10. Being aggrieved she filed a suit in the Civil Court of Mumbai to seek compensation to the
tune of 4 lakh along with other damages.

Hence the present petition before the Hon’ble Civil Court of Mumbai.

MEMORIAL ON BEHALF OF THE PLAINTIFF

Issues Raised………………………………………………………………………………..…Page ix of xi

ISSUES RAISED

1. WHETHER THERE IS A CONTRACT OF SALE BETWEEN THE

PETITIONER, MS. TEKRIWAL & DEFENDANT NO. 1, MR. SIDDHIQUE?

2. WHETHER THERE IS A FUNDAMENTAL BREACH OF CONTRACT ON THE

PART OF MR. SIDDHIQUE?

3. WHETHER MR. PANKAJ SIDDHIQUE AND THE SONY ERICSSON SERVICE

CENTRE, ANDHERI, MUMBAI ARE LIABLE FOR DEFICIENCY IN
SERVICE?

4. WHETHER THE SONY ERICSSON COMMUNICATION (I)(P) LTD, DELHI IS

LIABLE TO MS. TEKRIWAL?

5. WHETHER MR. SIDDHIQUE, THE STORE OWNER OF PANKAJ

ELECTRONICS, SONY ERICSSON SERVICE CENTRE (&HERI EAST),
MUMBAI, & SONY ERICSSON COMMUNICATIONS (I)(P) LTD, DELHI ARE
JOINTLY AND SEVERALLY LIABLE TO PAY COMPENSATION OF RS. 4
LAKHS ALONG WITH OTHER DAMAGES TO THE PETITIONER, MS.
TEKRIWAL?

MEMORIAL ON BEHALF OF THE PLAINTIFF

Summary of Arguments…………………..………………………………..………………..…Page x of xi

SUMMARY OF ARGUMENTS

1. THERE IS A CONTRACT OF SALE BETWEEN THE PLAINTIFF, MS.

TEKRIWAL & DEFENDANT ONE, MR. SIDDHIQUE.

1.1 That there is a contract of sale between Ms. Tekriwal & Mr. Siddhique under section 5(1) of
the Sale of Goods Act, 1930.

1.2 That there is an implied condition of the quality or fitness of the product purchased under
section 16(1).

2. THERE IS A FUNDAMENTAL BREACH OF CONTRACT ON THE PART OF

MR. SIDDHIQUE.
2.1 That breach of a major term (condition) of the contract entitles the aggrieved party to sue
the offending party for damages arising from breach.

3. THERE IS DEFICIENCY IN SERVICE ON THE PART OF PANKAJ SIDDHIQUE

& THE SONY ERICSSON SERVICE CENTRE, ANDHERI EAST, MUMBAI.

3.1 That failure of the seller/manufacturer to rectify the defects amounts to deficiency in service.

4. THE SONY ERICSSON COMMUNICATION (I)(P) LTD, DELHI IS LIABLE TO

PAY MS. TEKRIWAL?

4.1 The Sony Ericsson Communication (I)(P) Ltd, Delhi is liable for negligently incorporating
defective pedometer in the mobile phone.

4.2 The Sony Ericsson Communication (I)(P) Ltd, Delhi is vicariously liable for the acts of its
Service Centre, the Sony Ericsson Service Centre, Andheri East, Mumbai.

MEMORIAL ON BEHALF OF THE PLAINTIFF

 Summary of Arguments…………………..………………………………..……………..…Page xi of xi

5. MR. SIDDHIQUE, THE STORE OWNER OF PANKAJ ELECTRONICS, SONY

ERICSSON SERVICE CENTRE (&HERI EAST), MUMBAI, & SONY ERICSSON
COMMUNICATIONS (I)(P) LTD, DELHI ARE JOINTLY AND SEVERALLY
LIABLE TO PAY COMPENSATION OF RS. 4 LAKHS ALONG WITH OTHER
DAMAGES TO THE PETITIONER, MS. TEKRIWAL.

5.1 That Mr. Pankaj Siddhique & the Sony Ericsson service center (andheri) Mumbai are liable
for not carrying out the terms of warranty.
5.2 That Mr. Pankaj Siddhique & the Sony Ericsson service center (andheri) Mumbai are liable
for the deficiency in service.
5.3 That the Sony Ericson Mobile Communications (I)(P)Ltd, Delhi is liable for negligently
incorporating defective pedometer in the mobile phone and for the acts of the Sony Ericsson
Service Centre, Andheri East, Mumbai

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 1 of 7

ARGUMENTS ADVANCED

1. WHETHER THERE IS A CONTRACT OF SALE BETWEEN MS. TEKRIWAL &

MR. PANKAJ SIDDHIQUE?

1.1. There is a contract of sale of the Sony Ericsson W580i mobile phone.

1.1.1 The plaintiffs most reverentially submitted that a contract of sale of goods is a contract
whereby the seller transfers or agrees to transfer the property in goods to the buyer for a
price.1

1.1.2 It is further submitted that in the instant case defendant no. 1 agreed to transfer or sell the
W580i phone to plaintiff for a price of Rs. 25000.

1.1.3 It is therefore most respectfully submitted that in the light of above stated facts and
circumstances it is clear that there exists a contract of sale between the plaintiff &
defendant no. 1.

1.2 That there is an implied condition of the quality or fitness of the product purchased
under section 16(1).

1.2.1 It is humbly submitted that Where the buyer, expressly or by implication, makes known to
the seller the particular purpose for which the goods are required, so as to show that the
buyer relies on the seller’s skill or judgement, & the goods are of a description which it is
in the course of the seller’s business to supply (whether he is the manufacturer or producer

______________________

1. Section 4 (1), Sale of Goods Act, 1930: A contract of sale of goods is a contract whereby the seller transfers or
agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-
owner and another.

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 2 of 7

or not), there is an implied condition that the goods shall be reasonably fit for such
purpose2.

1.2.2 The implied condition only applies to defects not reasonably discoverable to the buyer on
such examination as he made or could make a thing is sold by description, though it is
specific, so long as it is sold not merely as the specific thing but as a thing corresponding to
a description3.

1.2.2 It has been held in Mash & Murrel Ltd v Joseph Emanuel Ltd4 that “[I]f the particular
purpose is made known by the buyer to the seller,….that in itself sufficient to raise the
presumption that the buyer relies on the skill & judgment of the seller.” Further if the good
is not of that quality & if it is not fit for such purpose, then the law implies a promise from
the vendor that he will supply to the purchaser an article of that quality & reasonably fit for
that purpose for which it is required5.

It is respectfully submitted that Ms. Tekriwal went to Pankaj Electronics with the intention
to purchase a pedometer. By this she expressly made him known the purpose of her buying
as pedometer is used for nothing else but for estimating the distance travelled on foot.
Further based upon the recommendations of Mr. Siddhique and relying upon him.
Ms. Tekriwal considered the phone as a good bargain & bought the phone for Rs 25,000/-
By such description there arose an implied condition that the good shall be fit for the
required purpose.

______________________

2. Section 16, Sale of Goods Act, 1930: Subject to the provisions of this Act and of any other law for the time being
in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale, excepts as follows:-

(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the
goods are required, so as to show that the buyer relies on the seller’s skill or judgement, and the goods are of a
description which it is in the course of the seller’s business to supply (whether he is the manufacturer or producer or
not), there is an implied condition that the goods shall be reasonably fit for such purpose.

3. Eastern Mining Contractors (Private) Ltd. v. The Premier Automobiles Limited (1963) 65 BOM LR 183
4. [1961] 1 All ER 485, at 1189

5. Ranbirsingh Shankarsingh v. Hindustan General Electric Corporation Ltd, AIR 1971 Bom 97

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 3 of 7

2. WHETHER THERE IS A FUNDAMENTAL BREACH OF CONTRACT ON THE

PART OF MR. SIDDHIQUE?

2.1 It is humbly put forward that “every contract contains a ‘core’ or fundamental obligation
which must be performed. If one party fails to perform this obligation, he will be guilty of a
breach of the obligation….” The breach of contract is the deviation from the main purpose
of the contract. A breach of a contract which goes to root of the contract or which conflicts
with its main purpose, is a deviation from, or a repudiation or fundamental breach, of such
contract….[T]his expression is no more than a convenient shorthand expression for saying
that a particular breach or breaches of contract by one party is or are such as to go to the
root of the contract which entitles the other party to treat such breach or breaches as a
repudiation of the whole contract and sue for damages.6

2.2 The counsel for plaintiff humbly submits before the Hon’ble Civil Court of Mumbai that the
sole purpose of buying the Sony Ericsson W580i mobile phone was that it had an in-built
feature of a pedometer, which could be used by Ms. Tekriwal while jogging. Hence the
correct functioning of pedometer formed the core and fundamental term of the contract.
Furthermore the pedometer in the phone was not accurate and showed only four kilometers
for five kilometers.

2.3 The very inaccuracy of the pedometer and denial to take liability resulted in the
fundamental breach of contract on the part of Mr. Siddhique.

______________________

6. P. C Rajput v. State Govt. of Madhya Pradesh AIR 1993 MP 107

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 4 of 7

3. WHETHER MR. PANKAJ SIDDHIQUE & THE SONY ERICSSON SERVICE

CENTRE ARE LIABLE FOR DEFICIENCY IN SREVICE?

3.1 It is humbly submitted before the Hon’ble Court that "deficiency" means any fault,
imperfection, shortcoming or inadequacy in the quality, nature & 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.7

3.1.1 It is humbly put forth that when the malfunctioning of the machinery is during the period of
warranty, failure of the seller/manufacturer to rectify the defect amounts to deficiency in
service8. Where the sale of machinery carries with it a warranty, the seller is bound to
maintain it in a proper working order during the period of warranty.9

3.1.2The dealer cannot avoid his liability simply on the ground that he was not the manufacturer.
It was his responsibility to carry out the terms of the warranty & in turn he may involve the
manufacturer in fulfilling their obligations under the warranty10.

3.1.3 The written complaint sent by Ms. Tekriwal on 1st January to the Sony Ericson Customer
Care was not entertained also Mr. Sidhhique refused to take any liability for the fault &
failure to carry out the terms of warranty.

3.1.4 It is therefore submitted that Mr. Pankaj Siddhique & the Sony Ericsson Service Centre are
liable for deficiency in service.

______________________

7. Section 2 (g), The Consumer Protection Act, 1986

8. A. Lakshmanan v. M/s Anjaleem Enterprises & Anr. (1993) 2 CPR 355
9. Ibid 8
10. Harmohinder Singh v. Anil Sehgal & Anr Revision Petition No. 955 of 1996, NCDRC, New Delhi

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 5 of 7

4. WHETHER THE SONY ERICSSON COMMUNICATION (I)(P) LTD, DELHI IS

LIABLE TO MS.TEKRIWAL?

4.1 The Sony Ericsson Communications (I) (P) Ltd is liable under negligence for
incorporating a defective pedometer in the mobile phone.

4.1.1 It is most reverentially submitted that cause of action in negligence arises if there is a
breach of duty of care committed by the defendant and such breach causes damage to the
plaintiff. A person is required to meet the standard of care where he has obligation or a
duty to be careful. The standard of care is that of a reasonable man or of ordinary prudent
man. [T]he manufacturer or indeed the repairer of any article apart entirely from contract
owes a duty of care to any person by whom the article is lawfully used to see that it has
been carefully constructed11.

4.1.1.1 The Sony Ericsson Communications (I) (P) Ltd owed a duty of care to Ms Tekriwal
being its customer/consumer and with the imprecision of pedometer instated in the phone
sold to her there has been a breach of that duty.

4.1.2.1 It is humbly put forth that the defendant must take his victim as he finds him12. The
maxim is used to describe the notion that where the claimant is suffering from a latent or
psychological predisposition to a particular injury or illness which the harm inflicted by the
defendant triggers off, the defendant is responsible for the additional, unforeseeable
damage that his negligence is produced. In Love v. Port of London Authority13 the court
held that the defendants must take the plaintiff as they find him, that is to say, with his
already vulnerable personality.

4.1.2.2 The counsel would like to submit that Ms. Tekriwal was suffering from acute diabetes
and high cholesterol together with these she had a family history of Heart attack, the error
in the pedometer exacerbated her illness and resulted in a heart attack.

______________________

11. Donogue v. Stevenson [1932] All ER Rep 1

12. Thin skull or egg-shell skull principle
13. [1959] 2 Llyod’s Rep 541

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 7 of 7

4.1.3 Hence in the light of above stated facts the Sony Ericsson Communications (I) (P) Ltd is
liable under negligence for incorporating a defective pedometer in the mobile phone.

4.2 The Sony Ericsson Communications (I)(P) Ltd, Delhi is vicariously liable for the acts
of the Sony Ericsson Service Centre, Andheri East, Mumbai.

4.2.1 Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did
not cause the injury but who has a particular legal relationship to the person who did act
negligently. the principle behind vicarious liability is to put the responsibility on the person
’who ought in justice to bear it’14 The rationale behind vicarious liability is respondeat
superior i.e. let the master respond. It is a device to provide a “deep pocket” defendant
able to pay the plaintiff’s damages.
4.2.2 It is humbly put forth that the manufacturing company, the Sony Ericsson Communications
(I)(P) Ltd, Delhi is an apex body which controls the functions and activities of its sub-
branches, the Sony Ericsson Service Centre being one of them. Hence it is accountable for
every activity or function of its branches which are authorized and done during the course
of the employment.

4.2.3 In the light of the circumstances of the case, it is reverentially submitted to the Court that
the Sony Ericsson Communications (I) (P) Ltd, Delhi is vicariously liable for the acts of
Sony Ericsson Service Centre, Andheri East, Mumbai.

5. WHETHER MR. SIDDHIQUE, THE STORE OWNER OF PANKAJ

ELECTRONICS, SONY ERICSSON SERVICE CENTRE (ANDHERI EAST),
MUMBAI, & SONY ERICSSON COMMUNICATIONS (I)(P) LTD, DELHI ARE
JOINTLY AND SEVERALLY LIABLE TO PAY COMPENSATION OF RS. 4
LAKHS ALONG WITH OTHER DAMAGES TO THE PLAINTIFF, MS.
TEKRIWAL?

______________________

14. V.J. Acharya v Ratilal Fulchand Shah And Anr. 1 (1985) ACC 186.

MEMORIAL ON BEHALF OF THE PLAINTIFF

Arguments Advanced…………………………………………………………………………...Page 7 of 7

5.1 It is to humbly submit that where the same damage is attributable to the conductor two or
more tortfeasors and if they all have participated in the same act leading to that damage
they are called joint tortfeasors on the other hand two or more tortfeasors are severely liable
if different acts of theirs lead to the same damage15.

5.1.1 Where two or more persons are so engaged and damage results from the wrongful act of
any one of them, that act is joint tort and all of them are responsible for it as joint
torfeasors. Further their respective shares in the commission of the tort are done in the
furtherance of a common design16.

5.2 In the light of the given facts, issues raised and arguments put forth, it is most reverentially
submitted that the Defendants, Mr. Pankaj Siddhique, the Sony Ericsson Service Centre,
Andheri East, Mumbai and the Sony Ericsson Communication (I)(P) Ltd are jointly and
severally liable to pay compensation to Ms. Tekriwal to the tune of Four Lakh Rupees as
their concurrent acts brought about the harm to the plaintiff.

5.3 Mr. Pankaj Siddhique is liable to Ms. Tekriwal for the fundamental breach of contract and
not carrying out the terms of warranty, hence deficiency in service.

5.4 The Sony Ericsson Service Centre, Andheri East, Mumbai is liable to Ms. Tekriwal for
Deficiency in service.

5.5 The Sony Ericsson Communications (I)(P) Ltd, Delhi is responsible for negligently
Incorporating defective pedometer in the Sony Ericsson W580i mobile phone and
vicariously liable for the act of the Sony Ericsson Service Centre, Andheri East, Mumbai.

______________________

15. Patel Roadways And Another v. Manish Chhotalal Thakkar & Ors ILR 2000 KAR 3286
16. Brook v. bool [1928] 2 KB 578

MEMORIAL ON BEHALF OF THE PLAINTIFF

Prayer…………………………………………………………………………………………………………

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced, reasons given and

authorities cited, this Hon’ble Court may be pleased:

 To hold Mr. Pankaj Siddhique, the owner of Pankaj Electronics, the Sony Ericsson

Service Centre, Andheri East, Mumbai and the Sony Ericsson Co mmunicat ions (I)(P)

Ltd jo intly and severally liable to Ms. Tekriwal.

 To award compensat ion to the tune of four lakh for the medical charges and alo ng wit h

the compensat ion for the agony suffered by the plaint iff, Ms. Tekriwal.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of

just ice,equit y and good conscience.

AND FOR THIS THE PLAINTIFF SHALL FOREVER PRAY.

COUNSELS FOR THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF