CHHANDA SAHOO vs NARENDRA KUMAR RAY CHOUDHURY

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.

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. 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 1992 OJD 150. 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.

We dispose of the matter as follows : We may point out that our judgment is sought to be reviewed on the grounds as narrated above. But the grounds stated above are wholly untenable for the purpose of reviewing a judgment. We have not found any error apparent on the face of record while dismissing the appeal and also making the present review petitioner jointly liable with the appellant and we have given adequate reasons for the same. Therefore, we do not accept the contention of Mr. Mohapatra, though he has so strenuously placed those points before us that the judgment should be reviewed.

OF course on the ground that the matter has been decided ex parte we could have taken a view to review the judgment provided that the transporter was justified in bringing out a case on the basis of material on record that he received no intimation about the case, nor the Forum gave it time or opportunity to have its say in the matter. This aspect we have dealt with in page 3 of our judgment in the appeal. We have mentioned very clearly that in paragraph 12 of the written version of the transporter it was stated that they were set ex parte because of some ''extraneous considerations''. We were conscious of the fact that by this pleading, they did not mean to say that in the original case they did not receive the notice. In paragraph 15 of the version he mentioned that the respondent did not receive the notice as he had been to his native place in Jaipur district. However, we have taken into consideration the report of the postal peon that the respondent refused to receive the notice. Not only that the transporter had also engaged an Advocate and had filed written version on 12.8.2002. Relying on the Supreme Court decision that the transporter is liable to make good any loss during the transit, we have held the present petitioner to be also liable. We do not think we have committed any error apparent on the face of record. The review petition is misconceived and accordingly dismissed. No costs. Review Petition dismissed.