Aimccl Cpa2019 Respondant

ALL INDIA MOOT COURT COMPETITION,2024
ALL INDIA MOOT COURT COMPETITION,2024 AICCML-22
BEFORE
THE HON’BLE APEX COURT OF VENGADAM
UNDER ARTICLE 32 OF THE CONSTITUTION RWT SLP 136

&
UNDER SECTION 67 OF THE CONSUMER PROTECTION ACT,2019
IN THE MATTER OF:
Bio-Med Care Co. & Other ............................................................................... Appellant
Versus
Mrs. Lisa & Another ......................................................................................Respondent
MEMORANDUM ON BEHALF OF THE RESPONDENT
11
TABLE OF CONTENTS
LIST OF ABBREVIATIONS… ........................................................................... 3
INDEX OF AUTHORITIES ................................................................................ 4-5
STATEMENT OF JURISDICTION… .................................................................. 7-8
STATEMENT OF FACTS ................................................................................... 9-12
POINT OF ARGUMENT ..................................................................................... 13
SUMMARY OF ARGUMENTS ............................................................................ 14-15
ARGUMENTS ADVANCED .................................................................................16- 38
1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med ..... Care
Co.? ....................................................................................................................... 16-20
2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital so as
to be liable to compensate Mrs. Lisa?...................................................................... 21-28
3. Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid? 29- ...........33
4. Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers is Constitutionally valid? .......................................... 34-38
PRAYER.................................................................................................................. 39
2
LIST OF ABBREVIATIONS
1. AIR - All India Report

2. Consti- Constitution
3. &. - And
4. Anr. - Another
5. Art. - Article
6. Ors. - Orthers
7. Sec. - Section
8. SC - Supreme Court
9. SCC - Supreme Court Cases
10. SCR - Supreme Court Report
11. i.e - That is
12. u/s - Under Section
13. v. - Versus
14. Etc. – Etcetera
15. SOGA – Sale of Goods and Services Act,1930
16. ADR – Alternative Dispute Redressal Mechanism
17. NCDRD – National Consumer Disputes Redressal Commission
18. SCDRD- State Consumer Disputes Redressal Commission
19. CPA – Consumer Protection Act, 2019
3
INDEX OF AUTHORITIES
Indian Cases:
1. Jayanta Dasgupta v. Binata Debnath and Anr., 2009 SCC OnLine NCDRC 55
2. Anant Raj Agencies v. TELCO
3. Donoghue v. Stevenson
4. Henningson v. Bloomfield Motors Inc
5. Jagrut Nagrik v. Baroda Automobiles Sales and Service 2010 SCC OnLine NCDRC 250
6. Tata Motors Jivan Tara Building v. Rajesh Tyagi, 2013 SCC OnLine NCDRC 1031, the
NCDRC
7. Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 1048
8. A.S Mittal v. State of U.P., (1989) 3 SCC 223
9. Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651
10. Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
11. Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)
12. Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR 1969 SC 12
13. Jacob Mathew v. State of Punjab 2005 6 SCC 1
14. Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And
Another (1998 SCC 4 39, Supreme Court Of India, 1998
15. CHIEF MEDICAL OFFICER, ISPAT HOSPITAL & 4 ORS. v. PETER ANAND KUMAR
EKKA & 3 ORS. (National Consumer Disputes Redressal Commission, 2023
16. MRS. SURABHI KHURANA v. GOYAL HOSPITAL & ORS. (State Consumer Disputes
Redressal Commission, 2023
17. Smt. Savita Garg v. National Heart Institute AIR 2004 SC 5088 = (2004) 8 SCC 56
= 2004 AIR SCTh 5820
18. Balaram Prasad v. Kunal Naha (2014) 1 SCC 384
19. V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513,
Supreme Court Of India, 2010)
20. V.Ganesh alias Azhagu (died) & Ors v. K.S.Shanmuga Sundaram & Anr (Madras High
Court, 2009)
21. V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)
22. Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M.
Narotham Munumakulu narotham, Son of M. Chandrakanth, (State Consumer Disputes
Redressal Commission, 2017)
4
23. Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of
India And Others (2016 SCC 7 703)
24. Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49)
25. ervice I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement”
(NDTV.com November 24, 2019)
26. Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT
PENALIZES Brand Ambassador for False Claim” (Live Law January 4, 2021)
27. Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court Of India, 2023
5
Statutes Referred:
1. The Consumer Protection Act,2019
2. The Sale of Goods and Services Act,1930
3. The Arbitration and Conciliation Act, 1996
4. The Mediation Act, 2023
5. Code of Civil Procedure,1908
6. Consumer Protection (Mediation) Rules, 2019
7. Drugs and Cosmetics Act, 1940
Other Guidelines Referred:
1. Guidelines for Prevention of Misleading Advertisements and Endorsements for

Misleading Advertisements' (Misleading Ads & Endorsement Guidelines) in 2022
2. The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967
Sterilizer
Category 12 Entry 1 IS 10150:1981 guides for sterilization
Other authorities:
SCC Online
Manupatra
AIR online
6
STATEMENT OF JURISDICTION
THE RESPONDANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE

HON’BLE SUPREME COURT OF VENGADAM UNDER ARTICLE 32 OF THE
CONSTITUTION OF VENGADAM RWT SLP 136 AND UNDER THE SECTION 67 OF
THE CONSUMER PROTECTION ACT,2019.
It sets forth the facts, contentions, and arguments in the present case in the jurisdiction of the
Respondent.
ARTICLE 32 OF THE CONSTITUTION:

“Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
ill or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.”
ARTICLE 136 OF THE CONSTITUTION:

“Special leave to appeal by the Supreme Court
(1) Not with standing anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
7
SECTION 67 OF THE CONSUMER PROTECTION ACT,2019:

“Appeal against order of National Commission.—
Any person, aggrieved by an order made by the National Commission in exercise of its powers
conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 58, may prefer an appeal
against such order to the Supreme Court within a period of thirty days from the date of the order:
Provided that the Supreme Court 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 National
Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent.
of that amount in the manner as may be prescribed..”
8
STATEMENT OF FACTS
1. The Union of Vengadam, a South Asian country, is a union of 28 states. It has a
written Constitution and a federal democratic pattern of government. The total
population of Vengadam is more than 1.4 billion as per the recent statistics, and
hence, it is the world’s most populous country. It is the seventh largest country in
the world by area and is home to about 17.5% of the world’s total population. The
country has a glorious tradition of public health, and there exists a Ministry of
Health Care at the Centre from 1947 onwards.
2. As per the Constitution of Vengadam, health is a ‘State’ subject, and hence, the
different state governments have taken several measures to ensure basic healthcare
facilities in their states. Moreover, since ancient times, there has been an active
involvement of private players in the healthcare sector. Together with the initiatives
of the Central Government, State Governments and private players, the health
sector in Vengadam has made enormous strides over the past decades. As a result,
the life expectancy of individuals in the country has crossed 70 years, there has
been a steep decrease in infant mortality, many communicable diseases have
disappeared, etc. With the help of a well-established healthcare system during the
COVID-19 Pandemic, the Vengadam successfully reduced hardships and death
rates of COVID-19 patients.
3. Over the years, Medical Tourism has flourished in the Union of Vengadam and is
rapidly developing as a ‘Healing Center of the world. This is due to the fact that
Vengadam offers health services in compliance with international quality standards
with the latest technologies and medical expertise at a low cost. Most of the
doctors. Are trained in European countries and other developed countries, as well
as there are plenty of trained nurses to take care of patients. It is estimated that
every year, approximately 3 million patients visit Vengadam from about 100
countries in the world. As a result, Vengadam stands at number 5 in the Global
Medical Tourism Index.
9
4. The Union of Vengadam actively participates in almost all international discussions

and conferences relating to the protection of human rights, including the rights of
consumers. It was one of the first countries in the world to enact a specific
legislation for the protection of consumers, i.e., the Consumer Protection Act, 1986,
immediately after the adoption of Guidelines for the Protection of Consumers by
the United Nations in 1985.
The Consumer protection Act, 1986 has undergone several amendments, and
finally, it was replaced with the Consumer Protection Act, 2019 in order to create a
comprehensive framework for the protection of consumers in the country. Though
the provisions of the Act do not specifically include health services under the
purview of consumer service, the Hon’ble judiciary, through interpretations, settled
that a patient is a consumer and health services are consumer services for the
purpose of consumer protection laws.
5. In May 2022, Mr. Steve and Mrs. Lisa, an Irish couple, visited Union of Vengadam
to spend their summer vacation. As they were more interested in beach activities
and trekking, they made their visit to the State of Dhrupadam, the southern State of
the Union of Vengadam. While travelling in the State, they have seen several big
hoardings of hospitals on the roadside as well as in popular tourist destinations. Mr.
Steve and Mrs. Lisa were attracted to the hoardings of Pillai’s Wellness Hospital as
they displayed the details of Liposuction surgery.
6. The hoardings of Pillai’s Wellness Hospital contain the photo of a famous Tamil
Film Actor, Mr. Tilak Varma. He is one of the pan-Indian actors and recipient of
several awards, including national film awards and film critics’ awards. The
hoardings of Mr. Tilak Varma portray that Pillai’s Wellness Hospital is the best
hospital in the country to carry out Liposuction surgery. Mrs. Lisa was facing the
problem of over fat in her hands and was suffering pain and discomfort due to the
same for the last two years.
10
7. Mr. Steve and Mrs. Lisa consulted Dr. Shivaraj, a cosmetic surgeon at Pillai’s
Wellness Hospital, to overcome the problem of over fat in Lisa’s arms. Dr. Shivaraj
suggested Liposuction surgery for the removal of over fat, and accordingly, Mrs.
Lisa was admitted to the hospital. On June 4th, 2022, the said surgery was
completed. On 6th June, 2022, she started to have pain in her right hand, and a color
change was also noticed. On 8th June, 2022, it was identified that the cause of pain
in the right hand was ‘Necrosis’. It is an infection that usually occurs due to non-
sterilised conditions during the surgical procedure.
8. The Management of Pillai’s Wellness Hospital, constituted a medical team to

investigate about the unfortunate incident of Mrs. Lisa. The Medical team
identified that, the Dr. Shivaraj and his team performed the surgical procedure with
utmost care and caution and the surgical instruments used for the procedure were of
high quality. In Pillai’s Wellness Hospital, the sterilization of surgical instruments
was done with the help of various equipment supplied by Bio-Med Care Co.
9. The technicians found that the equipment used for the sterilization of instruments
used for Liposuction surgery contained a manufacturing defect. Though the
equipment works well, due to this manufacturing defect the sterilization process
does not happen positively. The Medical team concluded that, the infection
occurred due to poor sterilization of surgical instruments used for the procedure.
On receiving the legal advice that, the Pillai’s Wellness Hospital will not come
under the purview of ‘Consumer’ as defined under the Consumer Protection Act,
2019, the Hospital decided to initiate legal proceedings. Against the Bio-Med Care
Co. under other appropriate laws.
10. The pain in Mrs. Lisa’s hand was increasing day by day and they requested free
treatment from Pillai’s Wellness Hospital. However, the Hospital denied the
request for free treatment. Mr. Steve shifted Mrs. Lisa to another well-known
hospital in the same city. About a period of 6 months of treatment and suffering,
Mrs. Lisa’s condition was improved and she got discharged from the Hospital.
Aggrieved by the mis-happenings and sufferings due to the surgery, Mrs. Lisa filed
three different consumer complaints: two complaints before the District Consumer
Commission and one complaint before the Central Consumer Protection Authority.
11
11. The first complaint was against the Bio-Med Care Co., claiming remedies as per
the relevant provisions of the Consumer Protection Act, 2019. The Bio-Med Care
Co. filed their reply stating that this complaint is not maintainable since Mrs. Lisa
is not a consumer as per the provisions of the Act and also because she is a foreign
Citizen. However, rejecting the contentions of Bio-Med Care Co., the District
Commission awarded Rs.15 lakhs as compensation. In appeals, both the State
Commission and National Commission reaffirmed the order of the District
Commission. Hence, Bio-Med Care Co. filed an appeal before the Hon’ble
Supreme Court.
12. The second complaint was against the Pillai’s Wellness Hospital, claiming
remedies for the sufferings. The Hospital, in their reply, contented that, there was
no negligence on the part of the Doctor and his team while providing the surgery
and related treatments. Moreover, in the complaint, Doctor who actually provided
the service is not arrayed as a party. During the pendency of this complaint, both
the parties agreed to submit their dispute for mediation, and accordingly, the
District Commission referred this complaint for settlement through mediation.
13. The mediation was successful, and the parties settled their dispute accordingly the
District Commission passed an order. However, after one week of passing the
order, Mrs. Lisa filed an appeal before the State Commission. While disposing of
the appeal, the State Commission held that the Hospital is liable for deficiency in
service and ordered to pay Rs.5 lakhs as compensation to the appellant. On an
appeal filed by the Hospital, the National Commission reaffirmed the order of the
State Commission. Aggrieved by the order, Pillai’s Wellness Hospital filed an
appeal before the Hon’ble Supreme Court.
14. The third complaint was filed before the Central Consumer Protection Authority
against the claims made in the hoardings of Pillai’s Wellness Hospital placed in
different parts of the State of Dhrupadam. The Central Authority, after an
appropriate investigation and other proceedings, imposed a penalty of Rs. 50000 on
Mr. Tilak Varma for endorsing the advertisement. In an appeal, the National
Commission reaffirmed the order of the Central Authority. Being aggrieved by the
said order, Mr. Tilak Varma filed an appeal to the Hon’ble Supreme Court
challenging the constitutional validity of the relevant provision, which empowers
the Central Authority to impose penalties on endorsers.
12
POINT OF ARGUMENT
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med
Care Co.?
2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital
so as to be liable to compensate Mrs. Lisa?
Commission based on the settlement in Mediation is Constitutionally valid?
4. Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers is Constitutionally valid?
13
SUMMARY OF ARGUMENTS
1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the Consumer
Protection Act, 2019, and hence eligible to claim remedy from Bio-Med Care Co.?
It is humbly submitted before this Hon’ble Apex Court that Mrs. Lisa though being a foreign citizen
will be considered as a ‘Consumer’ under the purview of the Consumer Protection Act, 2019. The
Consumer Protection Act, 2019 extends to the whole of India except the State of Jammu and
Kashmir. The commission or omission of the act was within the boundaries of Vengadam. The
Consumer Protection Act, 2019 lays the concept of Product liability that encompasses claims against
manufacturers and sellers. Hence, Mrs. Lisa falls under the purview of Consumer under the
Consumer Protection Act, 2019 and is eligible to claim remedy from Bio-Med Care Co, being the
manufacturer of the product.
2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital so as to be
liable to compensate Mrs. Lisa?
It is humbly submitted before this Hon’ble Apex Court that there is a deficiency in service on the part
of Pillai’s Wellness Hospital. Though the suggested Liposuction surgery was completed and
successful, an infection Necrosis occurs due to non-sterilised conditions during the surgical
procedure. This shows the presence of lack of reasonable duty of care by the medical practitioners
of the Pillai’s Wellness Hospital. There is a medical negligence during the surgery part of it being
the deficiency in service in providing the treatment for the infection that arose out of the surgery.
Hence, Pillai’s Wellness Hospital is to be held liable to compensate for the sufferings of Mrs. Lisa.
14
3. Whether the provisions conferring the right to appeal against an order issued by the Commission
based on the settlement in Mediation is Constitutionally valid?
It is humbly submitted before this Hon’ble Apex Court that the provisions conferring the right to
appeal against an order issued by the Commission based on the settlement in Mediation is laid under
the Civil Procedure Code, 1908. This appeal ultra-vires the constitutional validity of the right to
appeal to the higher authority. The CPC,1908 allows exercising original jurisdiction before the
Court of Appeal which is authorized to hear the appeal in the Court's decision. Hence, the provisions
conferring the right to appeal against an order issued by the Commission based on the settlement in
Mediation is Constitutionally valid.
4. Whether the provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers is Constitutionally valid?
It is humbly submitted before this Hon’ble Apex Court that the Consumer Protection Act, 2019 empowers
the Central Consumer Protection Authority to impose penalities on endorsers and lays the liability and
accountability of an endorser/brand ambassador towards the consumers,in case of a consumer dispute related
to the misleading advertisement. Section 10 of the Consumer Protection Act, 2019, empowers CCPA
to regulate matters relating to violation of the rights of consumers, unfair trade practices and false
or misleading advertisements which are prejudicial to the interests of the public and consumers and
to promote, protect and enforce the rights of consumers. Hence, the provisions that empower the Central
Consumer Protection Authority to impose penalties on endorsers is Constitutionally valid.
15
ARGUMENTS ADVANCED
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med
Care Co.?
It is humblysubmitted before this Hon’ble Supreme Court of Vengadam that, Mrs. Lisa though being
a foreign citizen will be considered as a ‘Consumer’ under the purview of the Consumer Protection
Act, 2019.
The term "CONSUMER" in reference to goods in specific under the Consumer Protection Act,
2019
“means ‘any person’ who buys any goods for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment and includes any user
of such goods other than the person who buys such goods for consideration paid or promised or
partly paid or partly promised or under any system of deferred payment when such use is made
with the approval of such person, but does not include a person who obtains such goods for resale
or for any commercial purpose.”1
The above definition of ‘Consumer’ under the CPA,2019 states that ‘any person’ that includes an
Indian citizen or a Foreign citizen come under the purview of ‘Consumer’ under the act.
S. 2 (5) (i) provides that “complainant means a consumer”2 and the Chapeau of S. 2 (7) states that
“consumer means any person.” A conjoint reading of both these provisions entails that a
complainant could be any person that in terms of S. 2 (7) buys, hires or avails of any services or
goods for a consideration. The only bar in these provisions is that such hiring or buying or availing
of goods or services must not be for commercial purposes. It is also important to understand that
S. 2 (7) uses the term “any person” that may include both natural as well as juristic persons such
as companies or firms. No express bar or distinction in this regard has been made in the Act.3
1
The Consumer Protection Act, 2019 s. 2 (7)
2
3
Supra 1
16
In order to fortify this observation, the case of Jayanta Dasgupta v. Binata Debnath and Anr.4, 2009
SCC OnLine NCDRC 55, would be opposite for perusal. In this case, the Complainant was a British
Citizen and despite existence of this fact, the National Consumer Disputes Redressal Commission
i.e., the Apex Body for deciding consumer disputes, entertained the Consumer Complaint and
awarded in favour of the Complainant who was a British Citizen. Though this case-law does not deal
with the locus of a foreigner to institute consumer complaints in express terms, yet the very fact that
such Complaint was allowed to be entertained goes on to show that the National Consumer Disputes
Redressal Commission did not think it necessary to have gone into such question.
In Anant Raj Agencies v. TELCO5, the company purchased a car for the private use of a director of
the company. The car had serious defects and it stopped working altogether. The complainant claimed
the replacement of the car or the refund of price with interest. It was held that the car had not been
purchased for the profit-making activity of the company on large scale. There was no nexus between
the purchase of the car and profit-making activity of the company. The complainant was a consumer
and the complaint was admissible under the C.P.A.
The Consumer Protection Act, 2019 extends to the whole of India except the State of Jammu and
Kashmir.6 The commission or omission of the act was within the boundaries of Vengadam i.e, the
Liposuction surgery of Mrs. Lisa took place within the territories of Vengadam and falls under the
purview of CPA,2019.
The Consumer Protection Act, 2019 lays the concept of Product liability that encompasses claims
against manufacturers and sellers.7 Bio-Med Care is a sterilization manufacturing company. The
Lipo-suction surgery involved the process of sterilization. In case of Mrs. Lisa the surgery was
successful but the equipment used for the sterilization of instruments used for Liposuction surgery
contained a manufacturing defect. Product liability encompasses claims against companies accused
of producing or selling faulty products.8
4
Jayanta Dasgupta v. Binata Debnath and Anr.4, 2009 SCC OnLine NCDRC 55
5
Anant Raj Agencies v. TELCO
6
The Consumer Protection Act, 2019
7
Supra 6
8
Supra 6
17
The term "Product liability" is defined in Section 2(34) as
“the responsibility of a product manufacturer, service provider, or seller to compensate consumers
for harm caused by defective products or deficient services.”9
This inclusion empowers consumers to file complaints against manufacturers, service providers, or
sellers.
In the case of Donoghue v. Stevenson10, wherein when a drink was offered to the consumer with a
decomposed snail in it that caused health injury to the consumer, the consumer could hold the
manufacturer of the product liable even though the contract existed between the consumer and the
seller.
The case of Henningson v. Bloomfield Motors Inc11., where the Plaintiff bought a car from a dealer
and the car started to malfunction within 10 days of delivery which resulted in the Plaintiff’s wife
suffering injuries, it was held that the Plaintiff had to get remedy because it was a breach of the
implied warranty of safety. The fact that it was the plaintiff’s wife and not the plaintiff who got hurt
is no excuse as the product liability extended to every foreseeable user.
In the case of Jagrut Nagrik v. Baroda Automobiles Sales and Service 201012 SCC OnLine NCDRC
250, revolved around the complainant who had purchased a Padmini car from the dealer but
subsequently found several defects in various components of the vehicle. Despite many attempts, the
defects were not rectified by the dealer and both the manufacturer, and the dealer denied any liability.
The National Consumer Disputes Redressal Commission (NCDRC) held both of them to be liable to
pay compensation to the aggrieved complainant.
In Tata Motors Jivan Tara Building v. Rajesh Tyagi, 201313 SCC OnLine NCDRC 1031, the NCDRC
opined that there is the existence of an implied contract as to the manufacturer that the vehicle sold
is not possessed of and will not suffer from any fault or imperfection in the quality and standard
required to be upheld. This can be construed as freeing the warranties of fitness and merchantability
from the shackles of privity. There is clear transition towards conversion of strict product liability
into a full-fledged tort, while still employing the language of warranty.
9
10
Donoghue v. Stevenson
11
Henningson v. Bloomfield Motors Inc
12
Jagrut Nagrik v. Baroda Automobiles Sales and Service 201012 SCC OnLine NCDRC 250
13
Tata Motors Jivan Tara Building v. Rajesh Tyagi, 201313 SCC OnLine NCDRC 1031, the NCDRC
18
Section 84 under the Act states the conditions under which a consumer can claim remedy against a
product manufacturer. They are as follows:14
1. There is a manufacturing defect.
2. There is a design defect.
3. There is non-confirmation to an express warranty. It does not matter if such a warranty was made
negligently or honestly.
4. There is a marketing defect that is no warning of danger in the wrong usage was given to the
consumer in the product itself.
5. In the case where there were certain specifications to be followed while manufacturing the product
and they have not been complied with.
Unreasonably dangerous goods are defective because they are likely to jeopardize the safety of a
reasonable user. The danger may be due to defective design and non-meeting of expectations of the
user. Here, the sterilization used in-due process of the Liposuction surgery of Mrs. Lisa was of poor
quality and had a manufacturing defect so as to fulfill the conditions of section 84 of the CPA,2019.
The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967 Sterilizer
Category 12 Entry 1 IS 10150:1981 guides for sterilization15 also sets standards for sterilising
equipment and their maintenance which needs to be strictly adhered to.
In India, medical devices are primarily regulated by the Drugs and Cosmetics Act, 194016, along with
the Medical Device Rules (MDR)17. The MDR does not currently contain provisions for mandatory
compensation to be provided to patients in the event of an adverse event, outside of a clinical trial. In
addition, action under the regulatory framework can only be initiated by the drug/medical device
regulator and not by an individual patient. Therefore, for a patient to claim compensation for a
defective medical device, one of the little recourse available under the existing framework is to
approach the consumer forum and initiate action under the CPA 1986.
In case of Mrs. Lisa, there is a clear notion of the failure of Lipo-suction surgery due to the poor
sterilization of the equipment. The sterilization manufactured by the Bio-Med Care was poor in its
quality and there was a manufacturing defect with the product that led to Necrosis, an infection that
usually arises due to improper sterilization of the surgical equipment. 18
14
The Consumer Protection Act, 2019 s. 84
15
The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967 Sterilizer Category 12 Entry 1 IS 10150:1981
guides for sterilization
16
The Drugs and Cosmetics Act, 1940
17
The Medical Device Rules (MDR)
18
https://medlineplus.gov/ency/article/002266.htm#:~:text=Necrosis%20is%20the%20death%20of,Necrosis%20can
not%20be%20reversed.
19
Hence, Mrs. Lisa falls under the purview of Consumer under the Consumer Protection Act, 2019 and
is eligible to claim remedy from Bio-Med Care Co, being the manufacturer of the product.
20
2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital so as to
be liable to compensate Mrs. Lisa?
It is humbly submitted before this Hon’ble Apex Court that there is a deficiency in service on the part
of Pillai’s Wellness Hospital.
Service is an intangible benefit availed by the consumer from the service provider.19 The term
‘service’ is defined under Section 2(42) of the Consumer Protection Act, 201920,
“which include facilities related to banking, financing, insurance, telecom,
processing, transport, etc.”
Though the suggested Liposuction surgery was completed and successful, an infection
Necrosis occurs due to non-sterilised conditions during the surgical procedure.
According to Section 2(11) of the Consumer Protection Act, 2019,21

“deficiency is any sort of fault, imperfection, shortcoming or defect in the feature,
quality, amount, nature, worth, authenticity, capacity and standard which is obligatory
to be maintained and regulated as per the laws and statutes in function or any
agreement/contract claimed by the seller, with respect to the products and goods.
Including any act of negligence, omission or commission by the seller which causes
loss to the consumer, which a prudent seller is supposed to do or is supposed to omit,
but deliberately does the contrary, such actions amount to ‘deficiency of service’.”
The term ‘defect’ is defined under Section 2 (10) of Consumer Protection Act, 2019 22 as
“any fault, imperfection or shortcoming in the quality, quantity, potency, purity or
standard which is required to be maintained by or under and law for the time being in
force or under any contract, express or implied or as is claimed by the trader in any
manner whatsoever in relation to any goods or products and the expression ‘defective’
shall be construed accordingly.”
19
https://www.legalserviceindia.com/laws/consumer_services.htm#:~:text=Services%20as%20per%20sec%202,of%
20news%20or%20other%20information.
20
The Consumer Protection Act, 2019 s. 2(42)
21
22
21
In any buyer-seller relationship, deficiency of service prevails. Such as legal aid, banks, railways,
construction, transportation, education, electricity, entertainment, restaurant, hospitality, etc. The
consequences of deficiency of service can range from inconvenience or harassment to mental or
physical injury to death, thereby leading to legal consequences.
This case is a result of medical negligence from medical profession. This landmark decision
recognized patient’s rights through giving them the consumer status where complaints could be
lodged in a case of deficiency in the field of medical services under the Consumer Protection Act,
1986.23 The liability of doctor and hospital management arises when a patient is admitted. The
standard duty of care must be maintained by the hospital. When a patient is admitted, he/she is also
considered as a consumer.
The Supreme Court emphasized on the interest and safeguards of patients which is given the
upmost importance.
In the case of Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 1048 24,the
Consumer Commission relied on Black’s Law Dictionary to define the term ‘manufacturing defect
as
“a deviation from design specifications during production resulting in a product’s
defect, frailty or shortcoming”
The Act imposes strict liability on the manufacturer, distributors, suppliers and retailers for causing
injurious harm by its defective products or services. Notwithstanding any contractual obligations
and limitations of the liability, if a product or any of its components fails to comply with the
necessary standards and therefore causing a defect in the product, shall make the manufacturer of
the product directly liable for damages under the Act or the common law of negligence.
Subsequently, the action can be brought for injury, death or any damages caused to a person or
property under the Act due to a defect of the product. This means that there is no need for
consumers to prove that the manufacturer was negligent for filing the suit against the manufacturer.
The consumer only needs to prove that the defect in the product, the damage or injury was caused
to the consumer by the product or service only.
23
24
Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 1048
22
Deficiency in service shows the presence of lack of reasonable duty of care by the medical
practitioners of the Pillai’s Wellness Hospital. Reasonable degree of care and skill means that the
degree of care and competence that an “ordinary competent member of the profession who
professes to have those skills would exercise in the circumstance in question.”25 At this stage, it
may be necessary to note the distinction between the standard of care and the degree of care. The
standard of care is a constant and remains the same in all cases. It is the requirement that the
conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care
or the lowest degree of care possible. The degree of care is a variable and depends on the
circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.
India is recording a whopping 5.2 million injuries each year due to medical errors and adverse
events in the medical field.{Jha AK, Larizgoitia I, Audera-Lopez C, Prasopa-Plaizier N, Waters
H, Bates DW. The global burden of unsafe medical care: analytic modelling of observational
studies. BMJ Qual Saf 2013;22:809-15.}26
Doctrine of Res ipsa loquitor - the thing speaks for itself. There has been a clear case of negligence
which is evidently established via the consequences which Mrs Lisa had to go through.
In the case of A.S Mittal v. State of U.P., (1989) 3 SCC 223 27, the Court also took note that the
law recognises the dangers which are inherent in surgical operations and that mistakes will occur,
on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on
Torts (1983) (7th Edn.)28 wherein it was stated that the doctrine of res ipsa loquitur was attracted:
“ … Where an unexplained accident occurs from a thing under the control of the
defendant, and medical or other expert evidence shows that such accidents would not
happen if proper care were used, there is at least evidence of negligence for a jury.”
25
Rathanlal & Dhirajlal, The law of Torts, (LexisNexis, 28th edn.)
26
Jha AK, Larizgoitia I, Audera-Lopez C, Prasopa-Plaizier N, Waters H, Bates DW. The global burden of unsafe
medical care: analytic modelling of observational studies. BMJ Qual Saf 2013;22:809-15
27
A.S Mittal v. State of U.P., (1989) 3 SCC 223
28
Street on Torts (1983) (7th Edn.)
23
In the case of Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 65129, the Court
held that medical practitioners and hospitals/nursing homes are not immune from a claim for
damages on the ground of negligence and, therefore, they are not outside the purview of the
provisions of the Act. The Court also held that the composition of the Consumer Disputes
Redressal Agencies is suitable for adjudicating on issues arising in a complaint regarding
deficiency in service rendered by a medical practitioner.
In the case of Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 200430, The
Hon'ble Supreme Court held the respondent guilty of assault and battery amounting to deficiency
in service, and awarded Rs 25,000 as compensation for the unauthorized surgery to the appellant
and exempted the respondent from receiving any fee for the surgery.
In India, Bolam test has broadly been accepted as the general rule. Referring to Section 2(1)(g) of
the Consumer Protection Act, 2019, which defines 'deficiency' as any fault, imperfection,
shortcoming, or inadequacy in the quality, nature, or manner of performance of a service. Bio med
deficiency of service.
In case of Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)31 a consumer complaint
was filed by Sapient Corporation Employees Provident Fund Trust against HDFC bank Ltd. The
complainant claimed that OP-Bank has committed deficiency of services by debiting the account
of the Complainant. The court in this case held that there was no deficiency of service on the part
of OP-bank and the arguments contented by the complainant are baseless. A behaviour that
conforms to the direction of regulatory authority cannot be said to be negligence or service
deficiency.
In general terms, Negligence is simply the failure to exercise due care. The three ingredients of
negligence are as follows:32
 The defendant owes a duty of care to the plaintiff.
 The defendant has breached this duty of care.
 The plaintiff has suffered an injury due to this breach.
29
Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651
30
Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
31
Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)
32
supra 25
24
Medical negligence is no different. It is only that in a medical negligence case, most often, the
doctor is the defendant. Failure of an operation and side effects are not negligence. The term
negligence is defined as the absence or lack of care that a reasonable person should have taken in
the circumstances of the case.33 In the allegation of negligence in a case of wrist drop, the following
observations were made. Nothing has been mentioned in the complaint or in the grounds of appeal
about the type of care desired from the doctor in which he failed. It is not said anywhere what type
of negligence was done during the course of the operation. Nerves may be cut down at the time of
operation and mere cutting of a nerve does not amount to negligence. It is not said that it has been
deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it
was not cut at the time of the accident. No expert evidence whatsoever has been produced.
There is a medical negligence during the surgery part of it being the deficiency in service in
providing the treatment for the infection that arose out of the surgery.
In the case of Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR 1969
SC 1234, the Hon’ble Supreme Court had held that:
“11. The duties which a doctor owes to his patient are clear. A person who holds himself
out ready to give medical advice and treatment impliedly undertakes that he is possessed
of skill and knowledge for the purpose. Such a person when consulted by a patient owes
him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of
care in deciding what treatment to give or a duty of care in the administration of that
treatment. A breach of any of those duties gives a right of action for negligence to the
patient. The practitioner must bring to his task a reasonable degree of skill and knowledge
and must exercise a reasonable degree of care. Neither the very highest nor a very low
degree of care and competence judged in the light of the particular circumstances of each
case is what the law requires35 (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17).
The doctor no doubt has a discretion in choosing treatment which he proposes to give to
the patient and such discretion is relatively ampler in cases of emergency.”
33
supra 25
34
Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR 1969 SC 12
35
cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17
25
This Court in a landmark judgment in Jacob Mathew v. State of Punjab 2005 6 SCC 1 36 while
dealing with the case of negligence by professionals also gave illustration of legal profession.
The Court observed as under: (SCC p. 18, para 18)
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others
are included in the category of persons professing some special skill or skilled persons
generally. Any task which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person possesses the requisite skill for
performing that task. Any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to possess shall be exercised [and
exercised] with reasonable degree of care and caution.
1. Hospitals can be held liable for medical negligence when there is a deficiency in their
services or when they fail to provide proper medical treatment. The hospital may be
vicariously liable for the acts of the doctors employed by them.
2. Hospitals can be held liable if they do not provide necessary services despite extracting
money from patients and their families.
3. Hospitals may be liable for medical negligence if they do not ensure that their doctors and
staff members exercise reasonable care, skill, and diligence in providing medical treatment.
4. Hospitals can be held liable for medical negligence if they fail to provide the necessary
facilities, equipment, or resources required for proper medical treatment.
5. Hospitals may not be held liable for medical negligence if the patient's condition
deteriorates despite the doctor performing their duties to the best of their ability and with due
care and caution.
6. Hospitals may not be held liable for medical negligence if the doctor has performed their
duties with due care, skill, and diligence and has followed the acceptable standards of
medical practice.
It is important to note that each case of medical negligence is unique, and liability depends on the
specific facts and circumstances of the case. The applicability of the mentioned judgments will
depend on the specific details of the case in question.
Reasoning:
36
Jacob Mathew v. State of Punjab 2005 6 SCC 1
26
In Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And Another
(1998 SCC 4 39, Supreme Court Of India, 1998)37 The Supreme Court observed that “The true
position is that an error of judgement may, or may not, be negligent, it depends on the nature of the
error. If it is one that would not have been made by a reasonably competent professional man
professing to have the standard and type of skill that the defendant holds himself out as having, and
acting with ordinary care, then it is negligence. If on the other hand, it is an error that such a man,
acting with ordinary care, might have made, then it is not negligence.” It thus includes persons who
hire services as well as beneficiaries of services. Thus, they were allowed to get compensated by the
Hospital for deficiency in services.
This decision of the Supreme Court highlights that Medical Professionals which includes Doctors,
Nurses, Clinics, Hospitals including the Para Medical staff have to be wary of administering proper
drugs and even taking care of the patients. A thorough due-diligence of the patient’s history and
knowledge of the medicines is extremely important before taking any action.
In Smt. Savita Garg v. National Heart Institute AIR 2004 SC 5088 = (2004) 8 SCC 56 =
2004 AIR SCTh 582038, it was held that doctors who are staff of hospital are on ‘contract of
service’, while doctors on panel whose services are requisitioned from time to time by
hospital are on ‘contract for service’. Hospital is controlling authority of both – quoted with
approval in Balaram Prasad v. Kunal Naha (2014) 1 SCC 38439.
Other landmark Judgements:

- V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513, Supreme Court
Of India, 2010)40
- V.Ganesh alias Azhagu (died) & Ors v. K.S.Shanmuga Sundaram & Anr (Madras High Court,
2009)41
- V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)42
37
Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And Another (1998 SCC 4
39, Supreme Court Of India, 1998
38
Smt. Savita Garg v. National Heart Institute AIR 2004 SC 5088 = (2004) 8 SCC 56 = 2004 AIR SCTh
5820
39
Balaram Prasad v. Kunal Naha (2014) 1 SCC 384
40
V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513, Supreme Court Of India,
2010)
41
V.Ganesh alias Azhagu (died) & Ors v. K.S.Shanmuga Sundaram & Anr (Madras High Court, 2009)
42
V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)
27
- Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M. Narotham
Munumakulu narotham, Son of M. Chandrakanth, (State Consumer Disputes Redressal
Commission, 2017)43
- CHIEF MEDICAL OFFICER, ISPAT HOSPITAL & 4 ORS. v. PETER ANAND KUMAR EKKA &
3 ORS. (National Consumer Disputes Redressal Commission, 2023)44
- MRS. SURABHI KHURANA v. GOYAL HOSPITAL & ORS. (State Consumer Disputes Redressal
Commission, 2023)45
Hence, Pillai’s Wellness Hospital is to be held liable to compensate for the sufferings of Mrs. Lisa.
43
Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M. Narotham Munumakulu
narotham, Son of M. Chandrakanth, (State Consumer Disputes Redressal Commission, 2017)
44
CHIEF MEDICAL OFFICER, ISPAT HOSPITAL & 4 ORS. v. PETER ANAND KUMAR EKKA & 3 ORS.
(National Consumer Disputes Redressal Commission, 2023
45
MRS. SURABHI KHURANA v. GOYAL HOSPITAL & ORS. (State Consumer Disputes Redressal
Commission, 2023
28
Commission based on the settlement in Mediation is Constitutionally valid?
It is humbly submitted before this Hon’ble Court that the provisions conferring the right
to appeal against an order issued by the Commission based on settlement in Mediation
are constitutionally valid.
This issue touches upon the fundamental principles of access to justice, fairness and the
right to appeal in a legal framework. The right to appeal is a fundamental aspect of due
process and procedural fairness. It allows parties to seek redressal and review of decisions
that may have been made erroneously or unfairly. In the context of consumer protection
laws the right to appeal ensures that consumers have avenues to challenge decisions that
may not adequately address their grievances or provide appropriate remedies. In the case
of mediation while the aim is to facilitate amicable resolution of disputes parties should
still have the option to seek further redressal through the appellate process if they are
dissatisfied with the outcome. Denying parties the right to appeal against a mediation
settlement could potentially undermine the principles of fairness and justice. Furthermore
the right to appeal against a mediation settlement does not necessarily negate the benefits
of mediation. It simply provides an additional layer of recourse for parties to address any
concerns or issues that may have arisen during the mediation process or in the settlement
agreement.46
The provisions conferring the right to appeal against an order issued by the Commission
based on the settlement in Mediation are Constitutionally valid.
Settlement by 'Mediation' means the process by which a mediator appointed by parties or

by the Court, as the case may be, mediates the dispute between the parties to the suit by
the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular,
by facilitating discussion between parties directly or by communicating with each other
through the mediator, by assisting parties in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of compromise, generating
options in an attempt to solve the dispute and emphasizing that it is the parties own
responsibility for making decisions which affect them.47
46
https://www.legalserviceindia.com/article/l63-Appeals.html
47
Mediation Rules, 2003
29
Rule 448 of Consumer Protection (Mediation) Rules, 2020 enlists matter which cannot be brought
forth for mediation in which Rule 4 (a) applies to the case and yet it had been referred to
mediation. This is one of the grounds Mrs. Lisa had appealed to the State Consumer Dispute
Redressal Commission.
Section 6 of the Mediation Act,2023 states that a mediation under this Act shall not be conducted
for resolution of any dispute or matter contained in the indicative list under the First Schedule:
Provided that nothing contained herein shall prevent any court, if deemed appropriate, from
referring any dispute relating to compoundable offences including the matrimonial offences
which are compoundable and pending between the parties, to mediation: Provided further that
the outcome of such mediation shall not be deemed to be a judgment or decree of court referred
to in sub-section (2) of section 27, and shall be further considered by the court in accordance
with the law for the time being in force. (2) If the Central Government is satisfied that it is
necessary or expedient so to do, it may, by notification, amend the First Schedule.
First Schedule
Complaints or proceedings, initiated before any statutory authority or body in relation to

registration, discipline, misconduct of any practitioner, or other registered professional, such as
legal practitioner, medical practitioner, dentist, architect, chartered accountant, or in relation to
any other profession of whatever description, which is regulated under any law for the time being
in force.
The Supreme Court, in various judgments, has recognized the importance of alternative dispute
resolution mechanisms such as mediation in promoting speedy and efficient resolution of
disputes. The right to appeal is not an absolute right but a creature of statute, and if the
Legislature deems fit not to provide the remedy of appeal in certain cases, it is within its
legislative competence to do so. Therefore, the provisions conferring the right to appeal against
an order issued by the Commission based on the settlement in Mediation are Constitutionally
valid.
48
Consumer Protection (Mediation) Rules, 2020, Rule 4
30
Relevant Judgment:
- Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49, Supreme
Court Of India, 2002)49
It is also essential to note that when the said settlement was reached there was no
settlement amount which had been decided upon in spit of such grievous injury which
rendered her temporarily disabled from using her right hand for a period of 6 months. A
significant fact is that Pillai hospital backed off from taking responsibility and providing
free treatment due to the harm caused due to their negligence due to which she had to be
shifted and treated at another hospital.
In conclusion the provisions conferring the right to appeal against an order issued by the
Commission based on settlement in Mediation are essential for upholding the principles
of justice fairness and access to legal remedies. These provisions ensure that parties have
the opportunity to seek review and redressal in cases where the mediation settlement may
not adequately address their concerns. Therefore it can be argued that such provisions are
constitutionally valid and in line with the objectives of consumer protection laws.
Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of

India And Others (2016 SCC 7 703)50 .In the case, the provisions conferring the right to
appeal against an order issued by the Commission based on the settlement in Mediation
are Constitutionally valid. This is because the Supreme Court has recognized the
importance of alternative dispute resolution mechanisms such as mediation in promoting
speedy and efficient resolution of disputes. The right to appeal is not an absolute right but
a creature of statute, and if the Legislature deems fit not to provide the remedy of appeal
in certain cases, it is within its legislative competence to do so.
The judgments in Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC
149)51 support the Constitutionality of such provisions.
49
Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49, Supreme Court Of India, 2002
50
Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of India And Others (2016
SCC 7 703)
51
Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49)
31
Section 89. Settlement of disputes outside the Court.
[89. Settlement of disputes outside the Court.--(1) Where it appears to the Court that there
exist elements of a settlement which may be acceptable to the parties, the Court shall
formulate the terms of settlement and give them to the parties for their observations and
after receiving the observations of the parties, the Court may reformulate the terms of a
possible settlement and refer the same for:--
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat: or
(d) mediation.
(2) Were a dispute has been referred--
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were
referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39
of 1987) and all other provisions of that Act shall .apply in respect of the dispute so
referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitable institution or person
and such institution or person shall be deemed to be a Lok Adalat and all the provisions
of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed.]
32
Relevant Judgment:
In conclusion the provisions conferring the right to appeal against an order issued by the
Commission based on settlement in Mediation are essential for upholding the principles
of justice fairness and access to legal remedies. These provisions ensure that parties have
the opportunity to seek review and redressal in cases where the mediation settlement may
not adequately address their concerns. Therefore it can be argued that such provisions are
constitutionally valid and in line with the objectives of consumer protection law.
33
4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers is Constitutionally valid?
It is humbly submitted before this Hon’ble Court that the provisions that empower the Central
Consumer Protection Authority to impose penalties on endorsers are Constitutionally valid. The
Central Consumer Protection Authority has been established to protect the rights of consumers
and ensure the proper functioning of the consumer market. The power to impose penalties on
endorsers is aimed at holding them accountable for false or misleading advertisements that may
deceive consumers. Such provisions are in line with the objective of consumer protection and
do not violate any Constitutional rights. Therefore, the provisions that empower the Central
Consumer Protection Authority to impose penalties on endorsers are Constitutionally valid.
An endorser is usually a celebrity (could be organizations too) who opines that a product or
service is good and worthy of purchase. The endorser is typically not the manufacturer or seller
of the product. An advertiser is often the seller of a product or provider of a service or even a
brand, since such a person has an incentive in promoting the product or service, and could also
be the manufacturer of the product. 52
The Consumer Protection Act, 2019 (CPA)53 which has recently been brought into force,
includes express provisions detailing the liabilities of, inter alia advertisers and endorsers.
While a complaint could always be filed against a trader or a service provider (trader includes
a manufacturer), advertisers and endorsers may also now incur liability for a misleading
advertisement.
An “endorser” is not defined under CPA, however, Section 2(18) of CPA54 defines
“endorsement”, in relation to an advertisement, as (i) any message, verbal statement,
demonstration; or (ii) depiction of the name, signature, likeness or other identifiable personal
characteristics of an individual; or (iii) depiction of the name or seal of any institution or
organisation, which makes the consumer believe that it reflects the opinion, finding or
experience of the person making such endorsement.
In relation to any product or service, an advertisement is misleading if it: (i) falsely describes
52
53
54
34
such product or service; (ii) gives a false guarantee to mislead the consumers as to the nature,
substance, quantity or quality of a product or service; (iii) conveys an express or implied
representation which would constitute an unfair trade practice; or (iv) deliberately conceals
important information.
Section 21 of CPA55 deals with the power of the Central Consumer Protection Authority
(CCPA) to issue directions and penalties against false or misleading advertisements. Section
21(1)56 places endorsers or par with advertisers, traders, manufacturers and publishers. It states
that where the CCPA is satisfied after an investigation that any advertisement is false or
misleading and is prejudicial to the interest of any consumer or is in contravention of consumer
rights, it may issue directions to the concerned trader or manufacturer or endorser or advertiser
or publisher to discontinue such advertisement or to modify the same in such manner and within
such time as may be specified in that order. While it is unlikely that an endorser would be in a
position to modify or discontinue an advertisement, the CCPA has the discretion and freedom
to pass such an order on an endorser if it is necessary to do so.
Section 21(2)57 applies only to manufacturers and endorsers and does not cover advertisers.
However, since a manufacturer may be the advertiser, the advertiser may also be covered by
Section 21(2) which provides that in addition to any order passed under Section 21(1) the
Central Authority may also impose a fine of up to ten lakh rupees on any manufacturer or
endorser in respect of any false or misleading advertisement. Any subsequent offence attracts a
penalty extending up to fifty lakhs rupees.
Sections 21(3)58 and (5)59 apply only to endorsers. The CCPA may under Section 21(3) prohibit
the endorser of a false or misleading advertisement from making endorsement of any product
or service for a period of up to one year. In case of any repeat offence by an endorser, the
prohibit on endorsement may extend to three years. Section 21(5) states that no endorser shall
be liable to a penalty under sub-sections (2) and (3) if he has exercised due diligence to verify
the veracity of the claims made in the advertisement regarding the product or service being
endorsed by him.
55
The Consumer Protection Act, 2019 s.21
56
57
58
59
35
Section 16 of CPA60 also empowers the District Collector to inquire into or investigate
complaints which have been referred to them by the CCPA or Commissioner of a regional office
regarding the violation of rights of consumers as a class regarding unfair trade practices, the
violation of consumer rights, and false or misleading advertisements. It is unclear whether
misleading advertisements would include endorsements as well.
Service I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement”
(NDTV.com November 24, 2019)61 In a case before the Muzaffarnagar Consumer Court, actors
Govinda and Jackie Shroff were fined ₹20,000 for endorsing an herbal oil that claimed
guaranteed pain relief in 15 days or else a complete refund.The complainant alleged that the
actor’s endorsement made him trust the product, but the product showed no effect, and when
the company was approached for the refund, they failed and allegedly harassed Mr Aggarwal
(consumer) when he contacted again. The court decided the case in favour of Mr Aggarwal as
the product was sold through misleading advertisement and promotion.
Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT

PENALIZES Brand Ambassador for False Claim” (Live Law January 4, 2021)62 In a similar
case of misleading advertisement, a consumer court in Kerala held the brand ambassador liable
for making false claims while endorsing a hair care product without ascertaining the
effectiveness of the product. The court ordered manufacturers of Dhathri Hair Cream and their
brand ambassador Anoop Menon who endorsed the hair care product, to pay a fine of ₹ 10,000
for making false promises and selling their product by misleading advertisement.
Relevant Judgments:
- Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court Of India, 202363
The provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers are Constitutionally valid. This is because the Central
Consumer Protection Authority has been established to protect the rights of consumers
and ensure the proper functioning of the consumer market. The power to impose
penalties on endorsers is aimed at holding them accountable for false or misleading
60
61
Service I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement” (NDTV.com November
24, 2019)
62
Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT PENALIZES Brand
Ambassador for False Claim” (Live Law January 4, 2021)
63
Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court Of India, 2023
36
advertisements that may deceive consumers. Such provisions are in line with the
objective of consumer protection and do not violate any Constitutional rights.
The judgments in Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court
Of India, 2023)64 and Cellular Operators Association Of India And Others v. Telecom
Regulatory Authority Of India And Others (2016 SCC 7 703) 65 support the
Constitutionality of such provisions.
An advertisement is considered to be valid and not deceitful when it does not mislead
consumers by exaggerating the usefulness of the products or services. An advertisement
should be truthful & honest representation of facts by making disclosures in such a
manner that they are clear, prominent and extremely hard to miss for viewers to notice66.
This press release posted by the Press Information Bureau clearly highlights that the
disclosures should be clear, prominent and extremely hard to miss for viewers to notice
on the contrary the advertisement did not mention that the endorser is only assuring the
Pillai’s Hospital to the extent not amounting to the use of medical equipment sourced
from third party manufacturers.
This very court went ahead by extending the protection of Article 19 (1) (a) not only to
advertisers but also consumers. It was laid down that this Article guarantees not only
the freedom of speech and expression; it also protects the rights of the individual to
listen, read and receive the said speech. So far as the economic needs of citizens are
concerned, their fulfilment has to be guided by their information disseminated through
the advertisements67.
The protection of Article 19 (1) (a) is available to the speaker as well to the recipient of
the speech. It is crucial that the the rights of the recipients are also protected. According
to the Ministry of Education, literacy rate in rural India stands at 67.77 per cent, while
in urban India, it is 84.11 per cent68, which clearly indicated the percentile of population
64
Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court Of India, 2023
65
Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of India And Others
(2016 SCC 7 703)
66
Central Consumer Protection Authority imposes penalty of ₹5Lakh on Khan Study Group (KSG) Institute for
advertising misleading claims, (2023), https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1975863 (last
visited Feb 25, 2024).
67
TATA Press Ltd. V Mahanagar Telephone Nigam Ltd., AIR 1 995 SC 2438
68
Kumar, R. (2023) ‘International Literacy Day 2023: Know About Remarkable Progress Made By India’,
NDTV, 8 September. Available at: https://www-ndtv-
com.cdn.ampproject.org/v/s/www.ndtv.com/education/international-literacy-day-2023-know-about-remarkable-
progress-made-by-india-
4370870/amp/1?amp_gsa=1&amp_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251
37
susceptible to being misled. Apart from this there is no guarantee to establish he fact
that the literate sectors of the society are aware enough to certain the technical aspects
of the products which could further lead to their harm.
%24s&aoh=17092074660188&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fww
w.ndtv.com%2Feducation%2Finternational-literacy-day-2023-know-about-remarkable-progress-made-by-india-
4370870 (Accessed: 20 February 2024).
38
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsel on behalf of the Appellants humbly prays before this
Hon’ble Court that itmay be pleased to adjudge and declare that:
a. Mrs. Lisa can be considered as a Consumer as per the provisions of the Consumer
Protection Act, 2019, and hence eligible to claim remedy of ₹15 lakhs from Bio-Med
Care Co.
b. Pillai’s Wellness Hospital so as to be liable to compensate Mrs. Lisa by paying her ₹5

lakhs
c. The provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid
d. The provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers is Constitutionally valid.
and/or
Pass any other order, direction or relief that it may deem fit in the interest of justice,
equity,fairness and good conscience.
For this act of kindness of your lordship, the Respondants shall duty bound forever pray.
Place:
Date:
S/d- COUNSELS for the RESPONDANTS
39
40

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ALL INDIA MOOT COURT COMPETITION,2024

ALL INDIA MOOT COURT COMPETITION,2024 AICCML-22

UNDER ARTICLE 32 OF THE CONSTITUTION RWT SLP 136

IN THE MATTER OF:

Bio-Med Care Co. & Other ............................................................................... Appellant

Mrs. Lisa & Another ......................................................................................Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS… ........................................................................... 3

INDEX OF AUTHORITIES ................................................................................ 4-5

STATEMENT OF JURISDICTION… .................................................................. 7-8

STATEMENT OF FACTS ................................................................................... 9-12

POINT OF ARGUMENT ..................................................................................... 13

SUMMARY OF ARGUMENTS ............................................................................ 14-15

ARGUMENTS ADVANCED .................................................................................16- 38

1. AIR - All India Report

Other Guidelines Referred:

1. Guidelines for Prevention of Misleading Advertisements and Endorsements for

THE RESPONDANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE

ARTICLE 32 OF THE CONSTITUTION:

ARTICLE 136 OF THE CONSTITUTION:

SECTION 67 OF THE CONSUMER PROTECTION ACT,2019:

4. The Union of Vengadam actively participates in almost all international discussions

8. The Management of Pillai’s Wellness Hospital, constituted a medical team to

According to Section 2(11) of the Consumer Protection Act, 2019,21

Other landmark Judgements:

Settlement by 'Mediation' means the process by which a mediator appointed by parties or

Complaints or proceedings, initiated before any statutory authority or body in relation to

Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of

(c) judicial settlement including settlement through Lok Adalat: or

(2) Were a dispute has been referred--

Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT

b. Pillai’s Wellness Hospital so as to be liable to compensate Mrs. Lisa by paying her ₹5

S/d- COUNSELS for the RESPONDANTS

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