CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.549/2005
MRS. KUSUM GUPTA
W/O LATE SH. R.C. GUPTA
10-L, DCM BUILDING,
BARAKHAMBA ROAD,
NEW DELHI-110001
…………. COMPLAINANT
Vs.
- M/S HYUNDAI MOTOR INDIA LTD.,
A-30, MOHAN COOPERATIVE INDUSTRIAL ESTATE,
MATHURA ROAD, NEW DELHI-110044
- THE CHIEF EXECUTIVE
SAMARA HYUNDAI
B-35, LAJPAT NAGAR-II,
NEW DELHI-110024
- MR. ANKUR WALIA
(SENIOR SALES EXECUTIVE)
SAMARA HYUNDAI
B-35, LAJPAT NAGAR-II,
NEW DELHI-110024
…………..RESPONDENTS
Date of Order:05.01.2018
O R D E R
A.S. Yadav, President
The case of the complainant is that she booked a car Sonata-GLS on 14.08.2003 and made an advance payment of Rs.1,00,000/-. OP-1 is the manufacturer and OP-2 is the authorized dealer of OP-1. The car was booked with OP-2. The complainant was interested for delivery of the said car before 30.09.2003 for some important family engagements and functions. It was promised by OP-3 that the car would be delivered within four weeks approximately from the date of booking. Since the vehicle was not delivered as promised by OP-3, who is the Senior Sales Executive of OP-2, enquiries were made from OP-2 and it was revealed that it would take another 3-5 weeks for the delivery of the car. The complainant was constrained to send a legal notice claiming breach of contract, misuse of funds, deficiency in service and unfair trade practice against OP. Despite the service of the legal notice in the third week of September 2003, till date the vehicle has not been delivered and the complainant was forced to make alternative arrangement in respect of personal family engagements and she incurred an expenditure of Rs.20,000/- to Rs.30,000/-. The conduct of OP amounts to deficiency in service. The complainant has sought refund of the amount paid as well as compensation of Rs.2 lakhs and Rs.30,000/- towards expenses incurred by the complainant for arranging alternative vehicle.
OP-1 in its reply took the plea that there was no deficiency in service on its part. There is no cause of action to initiate the present proceedings as it is not a question of hiring any 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 the contract. It is stated that delivery of the car could not be made by OP-2 as it has only received advance payment of Rs.1 lakh from the complainant. The other formalities for getting the sanction of the balance loan amount from the bank were still pending and the complainant has yet to complete the said formalities. The complainant has not paid the balance amount. It is submitted that even as per the information made available to OP-1, Rs.1 lakh has been refunded by OP-2 on 24.08.2004 by way of bank draft drawn on Lord Krishna Bank Ltd., Delhi. It is prayed that the complaint be dismissed.
OP-2 and OP-3 in their reply took the plea that there was no deficiency in service on their part. The complainant never turned up before 30.09.2003 for the remaining payment and delivery of car. It is denied that OP ever promised to deliver the car within four weeks from the date of booking. The delivery could only take place once the entire payment of the car is made. The complainant has never made payment of the remaining amount. It is prayed that the complaint be dismissed.
We have gone the through the records carefully.
So far as the point whether the complainant is a consumer is concerned, Ld. Counsel for the complainant has placed a reliance on the case of Mathura Gas Service Vs Jai Narain Pathak – Appeal No.1066/SC of 1993 – decided on 17.05.2002 - In fact in that case the Hon’ble State Commission has relied upon judgment of the Hon’ble Supreme Court in case of Om Prakash vs Asstt. Manager, Haryana Agro industries Corporation Ltd. & Anr. – Civil Appeal No.373 of 1994 – decided on 12.04.1994 - where it was held that:-
“It cannot be disputed that if a trader intentionally delays the delivery of any goods to the consumer, because of which the consumer suffers, it shall amount to an unfair method or unfair practice adopted by the the trader. As such after the introduction of the amendment by the Act No.58 of 1991 in Section 36-A, there should not be any difficulty in holding, that because of the unfair trade practice adopted by the respondent, the appellant has suffered a loss and damage, within the meaning of section 2(1)(c)(i) of the Consumer Protection Act, in respect of which he can file a complaint.”
..
There is nothing on the record to show that OP-2 has ever asked the complainant to pay the remaining amount. In fact OP-2 has never informed the complainant that car is ready for delivery and asked her to make balance payment. More so a legal notice was sent to OP regarding breach of contract, despite that the payment was not made. While the case was pending before this Forum, a bank draft was brought by OP-2 and OP-3 on 27.10.2004, however, Ld. counsel for the complainant objected in filing of bank draft brought by OP-2 and OP-3 and they were directed to file the bank draft alongwith an application. But thereafter the bank draft was never filed. It is a clear cut case of deficiency in service on the part of OP.
OP-2 is directed to pay a sum of Rs.1,00,000/- to complainant alongwith interest @ 9% p.a. from the date of filing of the complaint. OP-2 is further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (A.S. YADAV)
MEMBER PRESIDENT
