This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mahaveer Jain against Respondents-(1) B.G. Tele Services Franchise for TATA Indicom, Station Road Raichur (2) TATA Tele Services Ltd., Circle Office, Koramangala Bangalore. The brief facts of the complaint are as under:<br /> <br /> The complainant is a businessman & proprietor of A-1 Tools and except this business he has no any other sources of income for his livelihood. Respondent No-1 is a Franchisee for TATA Indicom and Respondent No-2 is a Circle office of TATA Tele Services Ltd., at Bangalore. The complainant is a subscriber of TATA Indicom Post-paid Mobile Phone No. 9243234498 under tariff plan “DO MORE” (ARP) 999. Respondent NO-1 have received a sum of Rs. 1,500/- plus Rs. 1,024/- under 1+1 offer scheme in the month of November-2005 and issued a receipt for the same. Respondent NO-1 has given one hand-set of Kyocera Kx444 model to the complainant. He used the said hand-set for a week, thereafter it not functioned so he approached Respondent NO-1 with a complaint who gave a Zem Model Hand-set by receiving Rs. 700/- from the complainant illegally though he has to replace the hand-set free of cost. The complainant used the said hand set for two months and thereafter it started not functioning properly so on 23-02-06 the complainant again approached Respondent NO-1 for repair of Zem model hand-set on the Respondent No-1 have received the hand-set for repair and gave acknowledgement for having received the same and asked the complainant to come after one week. Thereafter Respondent NO-1 asked the complainant to come after (15) days and after (15) days he again approached Respondent No-1 and requested to give the old hand-set or to give new one but the Respondent did not respond properly and asked the complainant to come after a week as the hand-set had been send to Bangalore. Thereafter Respondent No-1 repeatedly post-poned the matter and neglected the complainant for not replacing the hand set or to give the repaired hand-set.<br /> <br /> Thus both the Respondents are harassing the complainant who was made to sustain loss in his business for want of cell phone in his business concern. Therefore on 04-05-06 the complainant got issued legal notice by RPAD to both the Respondents but both of them have not replied to his notice. So these facts amply establish sheer negligence, un-fair trade practice and deficiency in service by the Respondents. Hence for all these reasons the complainant has sought for direction to replace new hand-set to the complainant and to pay compensation of Rs. 20,000/- for the loss and in-convenience suffered in his business and further to pay Rs. 20,000/- towards damages due to harassment and mental agony and to award cost of proceedings.<br /> <br /> 2. In-response to service of notice by way of paper publication in Sudhi Moola Kannada News Paper Raichur, the Respondent NO-1 (of Raichur) remained absent when called out and so he was placed at Ex-parte. The Respondent No-2 in response to service of notice by RPAD appeared through his counsel and filed written statement as under:<br /> <br /> It is true that Respondent NO-1 was the Franchisee of this Respondent NO-2 and that the complainant had subscribed for Post-paid Mobile No. 9243234498 under tariff plan “DO MORE” (ARP 999). The complainant opted for annual rental plan by paying Rs. 1,500/- towards security deposit and Rs. 999/- towards annual rental & Rs. 25/- towards annual plan charges. But it is false to say that the complainant was offered with 1+1 offer scheme. It is submitted that the said annual rental under the scheme in-question provided to the complainant consists features like free call charges, call forwarding etc., under the plan it provides sealed hand set packed and supplied by its manufacturer that contains its user manual, hand-set with battery, charger along with the warranty card etc., to the customer through the Franchisee concerned. So there was no undertaking from Respondent NO-1 of whatsoever nature in-respect of instrument (hand set) concerned. Therefore any technical problem or defect over the hand-set is covered under the warranty card provided by the manufacturer concerned which is sent along with the hand-set in the sealed packet. Therefore the complainant has a remedy against the manufacturers of the hand set in-question and without resorting to the said remedy, the complainant has filed a false complaint against this Respondent NO-2. This Respondent NO-2 is liable for only with regard to the complaints in his call services but not for the complaints in-respect of hand-set. <br /> <br /> The allegation of the complainant that he entrusted the alleged Kyocera 444 model to Respondent NO-1 and in this connection Respondent NO-1 replaced it with Zem hand set by receiving Rs. 700/- illegally etc., is not tenable as any un-authorized action outside the express or implied agreement in-respect of transaction between the complainant and Respondent NO-1 has no bearing on the roll of this Respondent NO-2. The Respondent NO-2 was un-aware of the said defect and other developments that has taken place between the complainant and Respondent No-1 as this Respondent No-2 did not receive any complaint about the defectiveness of the instrument from the complainant. Hence the complaint is not maintainable against this Respondent NO-2 as he never under-took the liability for giving service to the hand set in-question. The complaint is bad for non-joinder of manufacturers of the hand- set who provided the warranty card along with hand-set in-question which was delivered to the complainant at the time of subscription. There was neither any agreement nor undertaking given by this Respondent NO-2 in-respect of the condition & functioning of hand-set. So there is no such deficiency of service on the part of this Respondent NO-2.<br /> <br /> This Respondent No-2 on the receipt of the legal notice has brought the above factual situation to the notice of the complainant over phone and made it clear that he should proceed as per the warranty card against manufacturer of the hand-set in case he experienced any problem with the hand set. Despite the said fact, the complainant has opted to file this complaint against the Respondent No-2 without any cause of action. The Respondent No-1 has committed acts of criminal breach of trust, cheating etc., by mis-using the legal dues of Respondent No-2 being collected by him from the customers and he is taking steps to launch prosecution against the Respondent NO-1. Therefore any act or collusion that might taken place between the complainant and Respondent NO-1 beyond the scope of the authority does not bind the Respondent NO-2. Hence for all these reasons the Respondent No-2 has sought for dismissal of the complaint with cost.<br /> <br /> 3. During the course of enquiry the complainant has filed his sworn affidavit by way of examination-in-chief and has got marked (7) documents at Ex.P-1 to P-7. The contesting Respondent NO-2 in-rebuttal has filed sworn affidavit of its legal Manager by way of examination-in-chief but has not produced & got marked any documents. <br /> <br /> 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> <br /> 1. Whether the complainant proves deficiency in service against both Respondents as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought <br /> for?<br /> 5. Our finding on the above points are as under:-<br /> <br /> 1. In the negative. 2. As per final order for the following.<br /> <br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 6. There is no dispute that Respondent NO-1 was the franchisee of Respondent No-2 and that complainant had subscribed for Post-paid Mobile No. 9243234498 under tariff plan “DO MORE” (ARP 999). It is the case of the complainant that Respondent NO-1 has received a sum of Rs. 1,500/- plus Rs. 1,024/- under 1+ 1 offer scheme in the month of November 2005 and passed a receipt for the same. It is also his case that Respondent NO-1 has given hand set of Kyocera Kx444 model to him and after a week it started not functioning so he approached Respondent No-1 in the matter for which Respondent NO-1 gave a Zem Model hand-set by receiving extra Rs. 700/- illegally though Respondent NO-1 has to replace the hand-set on free of cost. Even this Zem Model hand-set started not properly functioning after two months so he approached Respondent NO-1 for repair. The Respondent NO-1 received the said Zem Model hand set for repair and gave an acknowledgement for having received the same and asked the complainant to come after one week. Thereafter he asked to come after (15) days and thereafter he again asked him to come after one week stating that he had sent the hand-set to Bangalore and even thereafter Respondent NO-1 simply post-poned the matter and thereby both Respondents 1 & 2 have neglected for replacement of hand-set or to give repaired hand-set. <br /> <br /> 7. The Respondent No-1 has remained absent and has been placed Ex-parte. The Respondent NO-2 has denied that the complainant was supplied with 1 + 1 offer scheme and further contended that under plan, it provides sealed hand-set and packed with user manual hand set with battery, charger along with warranty-card etc., supplied by the manufacturer to the customers through the franchisee concerned. There is no under-taking from Respondent NO-1 of whatsoever nature in-respect of hand-set concerned and so any technical problem or defect over the hand-set is covered under the warranty card provided by the manufacturer concerned which is sent along with the hand-set in the sealed packet. Therefore complainant has a remedy against manufacturer of the hand set in-question and without resorting to the said remedy the complainant has filed a false complaint against the Respondent No-2. This Respondent NO-2 is liable for only with regard to complaints call service but not for the complaints in-respect of hand set. The allegation that he had entrusted the alleged Kyocera 444 Model to Respondent NO-1 and in this connection Respondent No-1 replaced it with a Zem Model hand-set by receiving Rs. 700/- illegally etc., is not tenable as any un-authorized action outside the express or implied agreement in-respect of the transaction in-question between the complainant and Respondent NO-1 has no bearing on the Respondent No-2 and this Respondent NO-2 is un-aware of the said defect and other developments taken place between the complainant and Respondent No-1 as Respondent NO-1 did not receive any complaint about the defectiveness of the hand set from the complainant.<br /> <br /> 8. The complainant has produced (7) documents at Ex.P-1 to P-7 namely: Ex.P-1 is the Receipt dt. 07-11-05 for the receipt amount of Rs. 1,500 + 1,024 ARP under 1 + 1 offer issued by Respondent NO-1 TELE Services. Ex.P-2 is the acknowledgement for the receipt of Zem hand-set received by Respondent NO-1. Ex.P-3 is the bill Bearing No. 157200677 dt. 01-02-06. Ex.P-4 is the another bill Bearing No. 164631414 dt. 02-03-06. Ex.P-5 is the Office Copy of legal notice issued to Respondent No-1 dt. 04-05-06 and a copy to Respondent NO-2. Ex.P-6 (1) & Ex.P-6 (2) are the two postal receipts. Ex.-7 (1) & Ex.P-7 (2) are the two postal acknowledgement received from Respondent No- 1 & 2.<br /> <br /> 9. As stated earlier Respondent No-2 has contended that Respondent NO-2 is liable for only with regard to complainants in the call service but not for the complainants in-respect of hand-set supplied by its manufacturer battery charger along-with warranty card etc., to the customer through the franchisee concerned, and there is no undertaking from Respondent No-2 whatsoever nature in-respect of the instruments (hand set) concerned. So any technical problem or defect over the hand-set is covered under the warranty card supplied by the manufacturer concerned and so the complainant has a remedy against the manufacturer of the hand set in-question. The complainant even though has produced (7) documents but he has not produced any documents to show liability of Respondent NO-2 for the complaints in-respect of hand-set also. Even the complainant has not contraverted or denied the allegation of Respondent NO-2 in the written statement regarding the only liability of manufacturer and not of Respondent NO-2 as contended in the written statement. Even he has not filed counter affidavit to the affidavit-evidence of Respondent NO-2. Hence in the absence of cogent and convincing material showing liability of Respondent No-2 regarding the hand-set supplied how can it be said that the Respondent No-2 is liable for the complaints regarding manufacturing defect of the hand-set. It may be that the complainant might have approached Respondent NO-1 who in the first instance replaced Kyocera 444 with Zem Model hand-set and subsequently might have received the Zem hand-set for further action. But it is not the case of the complainant nor admission of the Respondent NO-2 that the Zem hand- set received by Respondent No-1 was sent to Respondent No-2 office for necessary action. In the absence of any piece of evidence showing liability of Respondent NO-2 for the supply of defective hand-set and also in the absence of any evidence that the Zem hand-set received by Respondent NO-1 under Ex.P-2 was sent to Respondent NO-2 for needful action, the Respondent NO-2 cannot be said liable for the defective hand-set. Merely the receipt at Ex.P-2 issued by Respondent NO-1 having received the Zem Model (defective hand set) from the complainant it cannot be said that it was sent to Respondent No-2 especially when it was having manufacturing defect which can be resorted to by approaching manufacture of the said hand-set. Under these circumstances we do not find any deficiency in service by the Respondents. It would be more so when the Respondent NO-2 has specifically contended that any un-authorized action outside the express or implied agreement in-respect of transactions between the complainant and Respondent NO-1 has no bearing on Respondent NO-2. Hence for all these reasons we hold that the complainant has failed to prove deficiency in service by Respondents for replacement of defective hand set as alleged, so we hold that the complainant has failed to prove point NO-1 and the same is answered in the negative.<br /> <br /> 9. In-view of our above discussion and finding on Point NO-1 the complainant is not entitled for the reliefs sought for. In the result we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost.<br /> Office to furnish a copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 13-03-07)<br /> <br /> Sd/-<br /> Sri. N.H. Savalagi<br /> President<br /> Dist.Consumer Forum-Raichur.<br /> <br /> Sd/-<br /> Sri.Pampannagouda <br /> Member.<br /> Dist.Consumer Forum-Raichur.<br /> <br /> On Leave/-<br /> Smt.Kavita Patil <br /> Member.<br /> Dist.Consumer Forum-Raichur.<br />