Present: Mr. Brijesh Singh, counsel for Appellant (through VC)

Mr. Sanjeev Kumar, counsel for Respondent No. 1 None for Respondent No. 2

PER:

HON’BLE MS. BIMLA KUMARI, MEMBER (FEMALE)

ORDER

1. By this judgment, we shall dispose of the appeal filed by the Appellants against the impugned order dated 05.01.2018 passed by Ld. Consumer Disputes Redressal Forum-X (South-II), Udyog Sadan, C-22 & 23, Institutional Area, New Delhi in Complaint Case No. 549/2005 titled as “Mrs. Kusum Gupta Vs. M/s Hyundai Motor India Ltd., The Chief Executive of Samara Hyundai & Senior Sales Executive of Samara Hyundai.”

2. Brief facts of the case as per the complaint are that on 14.08.2013, the Complainant had booked a Sonata-GLS car with the Opposite Party No. 2 and paid advance booking amount of Rs.1,00,000/-. The Opposite Party No. 1 was manufacturer of car and the Opposite Party No. 3 was Senior Sales Executive of Opposite Party No. 2.

3. It was the case of Complainant that she was interested for the delivery of the said car before 30.09.2003 for the purpose of attending important family engagements/functions. At the time of booking the said car, it was promised by the Opposite Party No. 3 that the car would be delivered within four weeks of booking. Since the car was not delivered within four weeks of booking, the Complainant enquired from Opposite Party No. 2 and it was revealed that the delivery of car would take another 3-5 weeks. The Complainant was constrained to send a legal notice claiming breach of contract, misuse of funds and alleging deficiency in service and unfair trade practice. Despite receipt of legal notice, till date the car was not delivered, due to which the Complainant made alternate arrangement and incurred a sum of Rs.20,000 to Rs.30,000/-.

4. Hence, the Complainant filed the complaint before Ld District Forum for directions to the Opposite Party to refund booking amount of Rs.1,00,000/- along with interest @ 18% and to further pay a sum of Rs.2,00,000/- as compensation for suffering mental agony and torture and a sum of Rs.5,000/- towards litigation costs.

5. The Opposite Party No. 1 filed the written statement before Ld District Forum, wherein it was submitted that there was no deficiency in service on the part of Opposite Party No. 1. No cause of action has arisen to file the complaint against the Opposite Party No. 1 because there was no question of hiring service at all. Non-delivery is not a deficiency in service and it can only constitute, if at all, a breach of contract in the sale of goods, where delivery is the essence of contract. The delivery of car could not be made by Opposite Party No. 2 as it had received the only booking amount from the Complainant. The formalities for getting the loan sanctioned were still pending from the side of Complainant. The Complainant had not paid the balance amount of car. As per information, the booking amount of Rs.1,00,000/- was already refunded to Complainant by Opposite Party No. 2 through bank draft dated 24.08.2004 drawn on Lord Krishna Bank Ltd. The Opposite Party No. 1 prayed for dismissal of complaint.

6. The Opposite Party No. 2 & 3 also filed the written statement before Ld District Forum, wherein it was submitted that there was no deficiency in service on the part of Opposite Party No. 2 & 3. The Complainant never turned up before 30.09.2003 for making the remaining payment and delivery of car. It was denied that the Opposite Party No. 2 & 3 had ever promised to deliver the car within four weeks from the date of booking. The delivery of car could only take place once the entire payment of car was paid. The Complainant had never made the payment of remaining amount. The Opposite Party No. 2 & 3 also prayed for dismissal of complaint.

7. After going through the record filed by the parties, Ld. District Forum passed the following order: -

“So far as the point whether the complainant is