By Smt. C.S. Sulekha Beevi, President,

1. Complainant availed mobile connection from opposite party under the Dirubai Ambani Pioneer Offer Scheme by remitting Rs.21,000/- by way of demand draft on 08-7-2003. As per the offer complainant was given a free mobile phone handset worth Rs.10,500/-. This phone was offered a warranty of one year and insurance coverage for replacement and repair for three years. The handset developed snags from March, 2005 onwards and became totally defective in May, 2005. Complainant approached several service centres of opposite party to get the handset repaired but in vain. Complainant came to understand that the company has stopped manufacturing of the said model due to inherent manufacturing defects. Complainant issued lawyer notice and requested opposite parties to replace the set. Neither did the opposite parties reply nor did they replace the set. That after May, 2005 complainant was unable to use the set and he is entitled to refund of the deposit as per the terms and conditions stated in the offers. Opposite parties have not replaced the handset nor refunded the balance deposit. Hence this complaint alleging deficiency in service.

2. First opposite party has filed version denying that complainant has not availed a mobile connection under any scheme by paying Rs.21,000/-. It is submitted that complainant selected the phone/handset at his own will. That at the purchase a warranty was given by the manufacturer of the handset and this was assured by National Insurance Co. Ltd., Mumbai, by an agreement made by opposite party with Insurance Company to protect the interest of customers. Aggrieved complainants can claim replacement or get the handset repaired free of cost subject to the terms and conditions of warranty and policy. This right was informed to the complainant on receiving his complaint. That opposite party offered to provide another handset at a very low price which was not accepted by complainant. That complainant has not approached the manufacturer or the Insurance Company with any claim. The complaint filed without impleading manufacturer and Insurance Company is bad for non-jointer. That name of opposite party has been got amended to Reliance Communications Ltd. as per order dated, 01-9-2006 of High Court of Gujarat. That there is no deficiency in service.

3. Second opposite party though entered appearance through counsel has not filed any version.

4. Supplementel third opposite party was impleaded as per orders in IA-130/08. Third opposite party though entered appearance through counsel has not filed any version. The names of 1^st and 2^nd opposite parties have been amended as per orders in IA-129/08 in regard to the contention raised by first opposite party in the version.

5. Evidence consists of the affidavit filed by complainant and Exts.A1 to A4 marked for complainant. Counter affidavit filed by first opposite party. No documents marked on behalf of opposite parties. Either side has not adduced any oral evidence.

6. Points for consideration:-

(i) Whether opposite parties have committed any deficiency in service.

(ii) If so, reliefs and costs.

7. Point (i) and (ii):-

It is the say of complainant that he availed a mobile connection with handset from opposite party by paying Rs.21,000/-. The handset which had warranty for a year became defective within a few months of it's purchase. Ext.A1 is the counterfoil of the demand draft taken by complainant on 3-6-2003 for Rs.21,052/- in favour of opposite party. Ext.A2 is the brochure of the Dirubhai Ambani Pioneer Offer. In Ext.A2 it is stated that a digital mobile phone worth Rs.10,500/- with three years insurance and 12 months warranty is free. It also stated that if the consumer wishes to exit the

connection the balance of refundable deposit after deducting any dues will be returned. As per the provisions to exit, if the exit is after 90 days, Rs.40/- per month for the balance of 36 months will be deducted before returning the post dated cheque. 1^st opposite party has admitted that complainant approached with the grievance of defective handset. It is the case of 1^st opposite party that complainant was offered with another handset of low price which the complainant did not accept. Ext.A3 and A4 are notices issued by complainant to 1^st and 2^nd opposite parties on 18-8-2005 demanding replacement of the defective handset. Ext.A1 and Ext.A2 together with the admissions by first opposite party proves the case of complainant. Third opposite party who is the insurer has not produced any documents showing the terms and conditions of policy. The fact that the handset was insured is undisputed. Since the handset became defective during the warranty period itself complainant is entitled to the replacement of the handset or the value equal to that of the handset. Third opposite party being the insured is liable to pay this amount.

8. Complainant also claims refund from the deposit as per terms and conditions of the offer. He contends that as the handset became fully defective and unusable from May, 2005 it has to be considered that he has made exit from the connection from May, 2005 onwards. Complainant thus claims Rs.17,200/- as refund from the deposit of Rs.21,000/- after deducting the membership fee of Rs.3,000/- and rs.40/- per month for balance 36 months. From the materials placed before us the claim of the complainant is tenable and genuine. Opposite parties have not adduced any contra evidence to disbelieve these affirmation of the complainant. Complainant has established a case in his favour. We find opposite parties deficient in service.

9. In the result we allow the complaint and make the following orders:-

(i) Third opposite party is ordered to pay Rs.10,500/- (Rupees Ten thousand and five hundred only) to complainant, along with interest @ 6% per annum from date of complaint till payment.

(ii) First and second opposite parties are jointly and severally ordered to pay Rs.17,200/- to the complainant along with interest @ 6% per annum from date of complaint till payment.

(iii) The time limit for compliance of this order is fixed as one month from the date of receipt of copy of this order.

(iv) We make no separate order as to costs.

Dated this 12th day of March, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Counterfoil of the demand draft taken by complainant on 03-6-2003

for Rs.21,052/- in favour of opposite party.

Ext.A2 : Brochure of the Dirubhai Ambani Pioneer Offer..

Ext.A3 : Registered with A/d lawyer notice dated, 18-8-2005 issued by

complainant's counsel to opposite parties.

Ext.A4 : Registered with A/d lawyer notice dated, 18-8-2005 issued by

complainant's counsel to 2^nd opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER