CHHANDA SAHOO Vs. NARENDRA KUMAR RAY CHOUDHURY

JUDGEMENT

(1.) This is a Misc. Petition at the instance of respondent No.2 M/s. Sahoo Carriers, one of the Opposite Parties in the original C. D. Case No.7 of 2001, for reviewing our order dated 28.8.2002 in C. D. Appeal No.427 of 2001.

(2.) The complainant being an unemployed graduate, in order to earn his livelihood wanted to go for business in purchase and sale of Palmolin oil. By one bank draft for Rs.2 lakhs he placed orders for supply of Palmolin oil. The present petitioner-respondent No.3 as the transporter received the way bills from the supplier, viz. M/s. Kargil India Pvt. Ltd. The consignment was despatched by truck on road. The tanker passed through Girisola Sales-tax check gate on 6.10.1999, but on 7.10.1999, as alleged by the complainant, the consignment was delivered to a stranger. Complainant's case is, this was mischievously done by all the opposite parties in connivance with each other. For the loss sustained by him, the complainant approached the District Forum in C. D. Case No.7 of 2001. The District Forum passed order in his favour making the supplier of the Palmolin oil, i. e. M/s. Kargil India, liable to pay the cost of the oil and compensation of Rs.5,000/- and cost of Rs.1,000/-. On appeal by M/s. Kargil India, we disposed of the same by our judgment dated 28.8.2002. In our judgment considering the case of the parties, confirming the order of the Forum below we held that it was the supplier who was responsible to make good the loss, but we made also the present review petitioner, i. e, the transporter jointly and severally liable to compensate the complainant. We dismissed the appeal of supplier with modification as stated above. The transporter being aggrieved has moved this petition to recall/review our order dated 28.8.2002.

(3.) We have heard Mr. P. N. Das, learned Counsel for the complainant on the earlier occasion. We have heard Mr. Mohapatra, learned Counsel for transporter and have seen the notes on submissions in support of the review petition. Mr. Mohapatra has raised the following points : firstly, the District Forum committed gross illegality in making out a third case for the parties which was not pleaded by anyone of them. He has referred to paragraphs 3, 5, 6, 8 and 10 of the complaint petition and submitted that nowhere the complainant had stated that carrier was engaged by the complainant and, therefore, there being no privity of contract between the parties the question of fixing the liability on the transporter is wholly untenable in the eye of law. Referring to Annexure-1, the pleader's notice from the side of the complainant Mr. Mohapatra submitted that the letter does not indicate that the letter does not indicate that the transporter loaded the tanker at the station of the complainant. He has referred to the decision reported in . Secondly, it was strenuously urged that there was no framing of issue as to whether the transporter was at all liable for any laches because according to Mr. Mohapatra, the sole allegation of the complainant is the opposite party No.1 in connivance with Opposite Parties 2, 3 and 4 committed the illegal act. Thirdly, it was urged that the District Forum without giving a finding that the complainant was a consumer qua the transporter in the absence of any contract between the two, was wholly wrong in assuming jurisdiction to try the case under the Consumer Protection Act. Fourthly, it was submitted that in fact in the G. R. case the transporter was not an accused and that itself shows he has in no way connected with the wrong delivery of the oil and, thus, liable to make good the loss. Lastly on the basis of the record it was submitted that the transporter was not given opportunity and the order was ex parte one and judicial propriety demanded that the matter should be re-heard after remitting the same to the District Forum.