APPLICABILITY OF CPA IN THE PRESENT CASE

1st- talk about the possibility of a claim under CPA. This act provides remedy to complainant to institute
proceedings against the manufacturer if there is any kind of defect in the product or deficiency in the
services provided.

Definition of defect- section 2(1)(f)- any fault, imperfection or shortcoming in the quality, quantity,
potency, purity or standard which is required to maintained by or under any law for the time being in
force or under any contract, express or implied, or as is claimed by the trader (which includes the
manufacturer) in any manner whatsoever in relation to any goods.
No fault or imperfection in NUCAR- in terms of quality, purity and standards to be maintained.
Software did not malfunction and no fault in the functioning of NUCAR in terms of detecting vehicles
and objects, unlike the U.S. Uber taxi case of 2018 (, the AI of the autonomous car malfunctioned as it
could not detect the pedestrian, which it subsequently killed).
In a landmark judgement called A and others vs. the national blood authority England and Wales Court,
what constitutes as a defect was discussed. The courts held that Nothing in this section shall require a
defect to be inferred from the fact alone that the safety of a product which is supplied after that time is
greater than the safety of the product in question. This statement counters any claim of defect and liability
on Yesla solely on the basis that other automobile giants like Volvo have promised to the consumers that
they will take full liability for any accident that will happen because of their autonomous self-driving cars
that will be produced in the future. As the technology advances, the safety of using certain products
inevitably increases. This should not serve as a deterrent to not produce these goods in the current times.
These products should be judged according to the safety standards in the current time.
Therefore, according to the current standards, the NUCars did not violate any law of the land as even on
Mad max mode, it functions within the speed limits and there was no defect in the functioning of AI
either. Aggressive driving ipso facto Is not a criminal or tortious act.
The claim for misrepresentation, failure to warn the consumer or any kind of fraud under the garb of
unfair trade practices will also fail. Firstly, there was no misrepresentation from the side of Yesla as the
claim that NUCars or any autonomous car is safer than a manually driven car can be corroborated from
U.S.’ Department of Transport’s report on autonomous vehicles which said that ninety four percent of
accidents happen due to human error. This inevitably means that autonomous cars are a tool to mitigate
majority of the accidents. Yesla had also fulfilled it’s duty to warn the consumer about the risks inherent
to operating in the Mad Max mode when the prompt was displayed on the screen before switching to mad
max fury mode. Therefore, there is no breach of trust by Yesla as under Section 2(1)(r) of the Act, as they
did not involve in any such fraudulent activities. Therefore, the applicant are not liable to receive any
damages from Yesla, and Yesla must be absolved of any claim for liability under the Consumer
Protection Act.
CLAIM FOR PRODUCT LIABILITY
Product liability- has not been definied in any Indian Statues. Consumer protection bill 2018 – is a move
to include this principle under the ambit of consumer laws. It is the submission of the defendant’s counsel
that any claim for product liability under tort law is also bound to fail.

in the case of Donoghue v. Stevenson1 that a duty was imposed on the manufacturer towards the final
consumer of a good. A claim for product liability in torts generally arises when the manufacturer acted
negligently, giving rise to a defect, or knowing the risks inherent in the normal use of a product, failed to
warn the consumer about the said risks.
of Hurley v Dyke2 it was held that the defendant’s duty would be fulfilled if he had given adequate
warning to his purchaser. It was also held in Buchan v Ortho Pharmaceutical3 that, “manufacturers are in
a position to escape all liability by the simple expedient of providing a clear and forthright warning of the
dangers inherent in the use of their products of which they know or ought to know”.4
Therefore, applying these rationales, it is the case of the respondents that the warning given by Yesla, in
the form of the prompt was adequate and therefore, Yesla can’t be held liable for negligence. If we apply
the reasonable man tort standards to judge whether the warning was sufficient or not, it would be easy to
reach to the conclusion that a prudent man, after seeing the prompt which said that the probability of risks
increases in Mad Max mode would know that operating in such a mode in a busy highway would be an
act of negligence, devoid of due diligence. Therefore, it is clear that Yesla can’t be held for negligence or
product liability in this case.

1
(1932) A.C. 562.
2
(1979) R.T.R. 265.
3
1986 CanLII 114, (1986)
4
Buchan v Ortho Pharmaceutical, 1986 CanLII 114, (1986).
CLAIM FOR STRICT LIABILITY
Strict liability first emerged in the famous case of Rylamds v. Fletcher. Strict liability is a form of ‘no
fault’ liability which means that under this rule, defendant is liable even if he was not negligent, acted
with due care and did not cause the harm intentionally. 3 essentials- that a dangerous thing must have
been brought by a defendant on his land, this dangerous thing kept on his land must escape and there must
an unnatural use of land.
This claim will fail as the present case does not fit into the matrix of strict liability. An automobile is
inherently not a dangerous object, irrespective of the fact whether it is autonomous or not. Even if an
argument made by the petitioners that NUCar is a dangerous object succeeds, the escape criterion of strict
liability is not met. The owner of NUCar, Mr. Mohanty voluntarily chose to purchase this car. Lastly,
there is no element of unnatural use of land.
If the claimants in this case, plead for strict liability in the sense that a manufacturer owes to the
consumers and succeeds, even in that case Yesla won’t be held liable. The strict liability defence of
volenti non fit injuria or express consent will absolve Yesla of any claim of strict liability towards the
claimants. Volenti non fit injuria is a complete defence, and operates by barring absolving the defendant
of liability where the claimant has expressly or impliedly consented to the presence of the source of
danger, and there has been no negligence on the part of the defendant. This is because the plaintiff
voluntarily assumes the risk, and then suffers harm, and holding the defendant liable for something that
the plaintiff had agreed to do in the first place is against the principle of justice, equity and good
conscience which are the fundamental principles of a tort claim.
Another defence which applies in this case is that of default of the claimant. This exception of ‘plaintiff’s
own fault’ was enunciated in the landmark case of Ryland v. Fletcher.5 As it will be proved in the next
argument, when the operator of NUCar, Mr. Mohanty changed the default setting of the car to Mad max,
fury mode, he acted negligently, and assumed the risk to run into more accidents while operating the car.
Therefore, this exception will come to the rescue of Yesla to absolve them of any kind of claim under
strict liability.

5
(1868) L.R. 3 H.L. 300.
Negligence by mr. Mohanty
It can be argued that the prompt which appeared on the screen when the operator tried to enforce the mad
max fury road mode was a type of a clickwrap or shrink-wrap agreement. In this type of agreements, an
electronic prompt appears on the screen while the user is operating the electronic gadget, and based on
that the user either consents to or denies the pop-up prompt message.
when the operator of the NUCar accepted the risk of increased car accidents, he accepted the inherent
liabilities that would subsequently follow because of the NUCar operating in an aggressive mode. It was
upto the operator to decide when he wanted to shift to this mode of aggressiveness.
in the case of Pro C.D. v Zeidenberg that such shrinkwrap agreements are legally enforceable. It must be
noted that even though there has been no precedence of shrinkwrap type of agreements in India, the need
to think about this act of accepting the risk of increased accidents in this case, as a shrink wrap like
agreement cannot be denied.
As the technology of a country advances, there is a need to modify the laws accordingly. Therefore, Mr.
Mohanty cannot absolve himself of the liability of the accident, by claiming that the manufacturers of the
NUCar were to blame.
CLICK WRAP AGREEMENT

The three components that need to be fulfilled for there to be a tort of negligence are a legal duty of care,
breach of statutory duty and consequential damages.
it is an indisputable fact that drivers driving on a road have an inherent duty towards others on the road,
so as to not cause harm to them. The NUCar warned the operator that if he changes the mode of the
automobile to mad max fury mode, the aggressiveness of the car would increase, and thus inevitably
increasing the risks of the car running into an accident.
Therefore, the accepting of this increased risk of accident is a volitional act of the operator. A reasonable
operator, would take due care while driving on a busy highway. Therefore, a reasonable operator would
not choose to drive aggressively on a busy highway. Thus, the operator acted without due diligence while
accepting to change the setting of the AI to Mad Max fury mode. There was a resultant breach because of
this negligent act of the operator. Therefore, it is proved that it was in fact due to the negligent act of the
operator that the NUCar ran into an accident, and subsequently killed Mr. Mohanty.
The U.S. Department of Transportation in its NHTSA report on Automated Vehicles highlighted it’s
researched based finding that 35,092 people died on the United States roadways in 2015 alone and that
ninety four percent of crashes can be tied to a human choice of error. On the other hand, autonomous cars
have faster reaction time than humans.6

The utility of automated, self-driving vehicles is undeniable and the need to develop Artificial
Intelligence in the automobile field is undisputable and indispensable.

No design defect.

. It is pertinent to note the fact that in a manually driven car as well, there is an option available for the
car to be driven upto a speed of 200km/h and in some cars up to a speed of 380 km/h. If a negligent
driver were to drive this car at a speed 100 km/h in a busy highway, the manufacturer of the car would not
be held liable for providing the option for a speed limit up to 200km/h in the first place.
It would be the prerogative of the person driving the car to not misuse the feature. The existence of such a
speed limit would not be considered as a manufacturing, design defect of a car. Taking BMW 5 series into
consideration, there exists a sports mode in this car. This ‘sports made’ changes the functioning of the car
in a lot of ways. The steering of the car gets stiff, the traction control changes, the pick-up of the car
increases and the car responds more quickly when the gas pedal is stepped on.

If a negligent driver were to drive in this sports mode in a busy highway, it would be a rather surprising
case for the driver to blame the manufacturer for providing the sports mode facility in the first place.

Therefore, the counsel for the defendant argues that to advance technological inventions like

autonomous vehicles, deterrent principles like that of strict liability and product liability, even when

there is no defect and negligent act by the defendant, cannot be applied. They will hinder the growth of

such technologies, as manufacturers will then be unwilling to take any risk and therefore not produce

such products.

6
Kyle Colonna, Autonomous Cars and Tort Liability, 4 CASE W. RES. J.L. TECH. &
INTERNET 81, 130 (2012).