C.C.No.31 OF 2009.

Date of filing : 02.02.2009.
Between :

Garre Rama Rao, S/o.Late Ramulu, resident of Anjaneya Vagu Centre, Kothapet, Vijayawada.

..… Complainant.

And

1. The Director, ZTE Corporation, Drive India Enterprises Solutions Limited, G 1 & 2, New Udyog Mandir 2, Moghal Lane, Mahim (West), Mumbai – 400 016.

2. The Manager/Authorised Signatory, Excel Technologies, Authorised Service Partner of TV9 E.Services, Navodaya School, Opp.Swathi Apartments, Kasturibaipet, Vijayawada – 10.

3. M/s.Connect, represented by its Authorized Signatory, D.No.11-22-27, R.R.Apparao Street, Near Bharathi X-Ray, Kothapet, Vijayawada – 1.
….. Opposite Parties.

This complaint is coming before us for final hearing on 06.01.2009, in the presence of Boddula Sai Prasad, Advocate for complainant and S.Raja Sekhar (Kashyap), Reshma Parveen, Advocates for opposite party No. 1 and the opposite party No.2 in person and Ch.Damodara Rao, Advocate for opposite party No.3 and having stood over for consideration till this day, the Forum doth order the following:

O R D E R

Sri B. Srinivasu, Member :

This complaint is filed under section 12 of the Consumer Protection Act, 1986.

1. The averments of the complaint in concise are as follows :-

The complainant purchased a Tata Service Mobile from the 3rd opposite party for a sum of Rs.1,400/-. The said mobile vide ZTE C335, IMEI No.320680211838, Battery No.10090801230578936. The warranty period is one year for the said mobile. But from the date of purchase itself the mobile giving troubles and not functioning properly. The said fact was informed to the 2nd opposite party and handover his mobile for effecting repairs. On receipt the said instrument the 2nd opposite party assured that they would sent the same to Chennai and also provide another instrument. But in spite of the repeated requests made by the complainant, the opposite parties failed to deliver the mobile. Therefore the complainant got issued legal notices demanding the opposite parties to deliver a new mobile. On receipt of the said notice, the 3rd opposite party gave a reply with false allegations. Hence the complaint.


2. The 1st opposite party filed version which runs briefly as follows:

This opposite party stated that the notice from this Hon’ble Forum was served on Drive India Enterprise Solutions Limited as such vakalat was filed on behalf of M/s. Drive India Enterprises Solutions Limited. On receipt of the papers from the Forum and on verifying the later it came to the light that the complaint was not properly filed against the necessary and proper parties. The opposite party further stated that ZTE Corporation is a separate entity and M/s. Drive India Enterprises Solutions Limited is a separate entity. The 1st opposite party was shown in the complaint as ZTE Corporation, Drive India Enterprises Solutions Limited and the address of the M/s. Drive India Enterprises Solutions Limited mentioned. It is further stated that two independent organizations which are having independent entities were clubbed in the address as single entity. The notice was served to M/s. Drive India Enterprises Solutions Limited only and it can not be treated as appearance on behalf of ZTE Corporation. This opposite party prays that the Hon’ble Forum may be pleased to dismiss the complaint.



3. The 2nd opposite party called absent and failed to file the version and affidavit.



4. The 3rd opposite party stated that it is true that the complainant purchased cell phone from opposite party No.3 but the complainant did not purchased the cell phone for the alleged sale consideration of Rs.1,400/-. The hand set cost is Rs.1,000/- for which this opposite party issued a receipt of Rs.1,000/- and the 3rd opposite party further stated that the hand set to get lifetime membership, the complainant paid an amount of Rs.300/- and Rs.100/- for recharge to the instrument. It is clear that the cost of the instrument is Rs.1,000/-. This opposite party never received any notice from the complainant either on 20.10.2008 or 3.12.2008. This opposite party is not liable jointly for anything as alleged by the complainant. The instrument should be replaced only when dead or arrival certificate issued by the authorized service center. The D.O.A. will be issued only when the mother board is dead for which this opposite party advised the complainant to go for the test and service with M/s. Excel Technologies, Authorized Service Partner of TV9 E.Services, Vijayawada i.e., opposite party No.2 and the Hon’ble Forum may be dismiss the complaint with costs and compensation.



5. On behalf of the complainant, the complainant himself filed an affidavit and got marked Exhibits A1 to A9. One Sri M.Venkata Subrahmanya Sastry, Manager (Finance) filed an affidavit on behalf of the 1st opposite party and got marked Exhibit B1. One Sri T.Narendra Kumar, Authorised Signatory filed an affidavit on behalf of the 3rd opposite party, no documents filed on his behalf.



6. Heard and perused.



7. Now the points that arise for consideration in this complaint are:

i) Whether there was deficiency in service on the part of the opposite parties 1, 2 and 3? If so the complainant is entitled for the reliefs as claimed?

ii) To what relief the complainant is entitled?

8. Point No.1: as could be seen from the material on record it is clear that the complainant purchased a Tata service mobile cell phone vide ZTE C335, IEMI No.320680211838, Battery No.10090801230578936 for an amount of Rs.1,000/- dated 12.6.2008 from 3rd opposite party. The 3rd opposite party issued a cash receipt for Rs.1,000/- vide Exhibit A1 but from the date of purchase it gave troubles. So the complainant approached the 2nd opposite party/service center for rectification of defect in the cell phone. Accordingly the complainant surrender his cell phone to the 2nd opposite party and the 2nd opposite party assured that he would send the cell phone to Chennai office get it rectified or in the alternative to provide another instrument. Exhibit A2 is job sheet issued by the 2nd opposite party. It is also revealed that itself disfunction and defect in the cell phone. The complainant got issued Exhibit A3 office copy legal notice to 2nd opposite party on 18.10.2008 and the 2nd opposite party failed to rectify the defect. The complainant got issued vide Exhibit A5 legal notice to the opposite parties on 3.12.2008 and the 3rd opposite party gave a reply vide Exhibit A9. The plea of the 1st opposite party is ZTE Corporation is a separate entity and Drive India Enterprises Solutions Limited is a separate entity. The 1st opposite party was shown in the complaint as ZTE Drive India Enterprises Solutions Limited and address of M/s. Drive India Enterprises Solutions Limited was mentioned. The two independent organizations which are having independent entities were clubbed in the address as single entity. Notice was served to M/s. Drive India address, the vakalat was filed on behalf of the M/s. Drive India Enterprises Solutions Limited only, it can not be treated as appearance on behalf of ZTE Corporation. Exhibit B1 certified true copy issued by the authorized signatory of M/s. Drive India Enterprises Solutions Limited. Exhibit B1 shows that it is separate entity and ZTE Corporation was separate entity. The complainant filed a memo along with the brochure wherein it is mentioned that M/s. Drive India Enterprises Solutions Limited and ZTE Corporation are separate entities. The complainant also failed to furnish the communication address of the ZTE Corporation. The plea of the 3rd opposite parry is the complainant purchased the cell phone from 3rd opposite party but the cell phone cost is only Rs.1,000/- for which the 3rd opposite party issued a receipt of Rs.1,000/- under Exhibit A1 but not for Rs.1,400/-, when the instrument is not working properly it will be sent by the customer to the authorized service center. Non filing of counter by the 2nd opposite party it must be said that they have no defense and also it must be said that admitted their liability. The 3rd opposite party admitted the Exhibit A1 transaction. In the above said discussion, we hold that the cell phone set sold by the 3rd opposite party to the complainant is a defective one and the complainant delivered the same to the 2nd opposite party for repair and the 2nd opposite party failed to repair the said mobile set. The opposite parties 2 and 3 are failed to comply the demand of the complainant amounts to deficiency in service on the part of the opposite parties 2 and 3. The acts of the opposite parties 2 and 3 clearly falls within the purview of under this Consumer Protection Act, 1986, so there is a deficiency in service on the part of the opposite parties 2 and 3. We further hold that according to Exhibit B1 M/s. Drive India Enterprises Solutions Limited is a separate entity and the said company is not a manufacturer of Exhibit A1 cell phone. So the complainant is entitled for a new cell phone of same model and costs accordingly this point is answered.



9. Point No.2: In the result the complaint is allowed and the 3rd opposite party is hereby directed to provide a new defective free cell phone of same model to the complainant, by taking back the old defective cell phone from the 2nd opposite party or from the complainant and the opposite parties 2 and 3 are (jointly and severally) liable to pay an amount of Rs.500/- (Rupees Five Hundred) only towards costs to the complainant. The complaint against 1st opposite party is hereby dismissed. Rest of the claims if any claimed by the complainant are hereby rejected. Time for compliance one month.