E.J. Bellie, President

1. Of the 7 opposite parties the 5th opposite party alone against whom an award has been passed by the District Forum is the appellant.

2. The complainant K.P.G.M. Palaniappan was doing textile business in Erode The 8th opposite party M/s. Ramanath Shivakumar & Company at Uttar Pradesh placed an order with the complainant for supply of 1001 printed sarees on 22.7.1991 for a total cost of Rs. 41,441.40 and paid an advance of Rs. 700/-. The consignment was sent through the 7th opposite party M/s. Lucky Bharat Careers Pvt. Ltd., on 29.7.1991. According to the complainant the documents namely Lorry Receipt Hundi and Invoice were sent to the 5th opposite party the Manager, Allahabad Bank, OBRA branch at Uttar Pradesh by a registered cover with acknowledgement due posted on 29.7.1991 as per the receipt R.L. No, 1766. Since the complainant did not receive any communication for a long time from the 5th opposite party he sent a letter on 30.8.1991. To that there was no reply. The complainant again sent a registered letter on 17.9.1991 and to that he received a reply stating that the 5th opposite party did not receive any registered postal cover containing documents as stated by him and the Bank received a letter only from one Lalji Tewari of Erode under R.L. No. 1766. According to the complainant fraud should have been committed during the transit of the registered cover to the Bank by the Postal Department or in the Bank itself. It is further according to the complainant that the 7th opposite party had sent a reply to their notice to them stating that they delivered the goods to the person who handed over the lorry receipt with Bank endorsement. The complainant would submit that he had lost his case worth Rs. 40,741.40. The complainant would then state that the 6th opposite party, the Insurer of goods is also bound to compensate the complainant. On these allegations the complaint has been filed.

3. The complainant had given up the 8th opposite party purchaser by making an endorsement on 17.8.1992. The 7th opposite partyCarrier remained ex-parte. The 2nd opposite party filed written version which was adopted by the opposite parties 1,3 & 4. The 5th opposite party Bank filed a separate written version. All contended that there was no deficiency in service on their part as alleged and they were not responsible if there was any loss suffered by the complainant.

4. The District Forum on consideration of the evidence came to the conclusion that it was true that the complainant has sent a consignment of the value of Rs. 41,441.40 and he had suffered a loss of Rs. 40,741.40, and that had happened only due to the deficiency in service on the part of the 5th opposite party-Bank and the Bank only had to make good that loss. In the result, the District Forum passed an award directing the 5th opposite party to pay to the complainant a sum of Rs. 40,741.40 for loss of goods with interest thereon at 18% p.a. from 27.1.1991 till date of payment. It further ordered the 5th opposite party to pay a sum of Rs. 3,000 / - as damages for mental agony and a sum of Rs. 1,000/- for costs. As regards the other opposite parties the complaint was dismissed.

5. Now it is contended by the learned Counsel appearing for the appellant/5th opposite party that the award passed by the District Forum against the Bank is against the evidence and the probabilities of the case and therefore it is not sustainable. After careful consideration of the matter we find that there is much force in this contention. As argued by the learned Counsel there is nothing to show that there was any privity of contract between the complainant and the 5th opposite party-Bank. The complainant was at Erode and the Bank was at Uttar Pradesh and the complainant has not shown us any previous arrangement between them as regards the transaction in question. It is simply stated in the complaint that the documents were sent to the 5th opposite party through a registered letter. There is nothing indicating that there was any customer and Bank relationship between them. Admittedly the complainant has not filed any acknowledgement of receipt of any registered post alleged to have been sent by him to the 5th opposite party. It is a definite case of the 5th opposite party Bank that it has not received any registered letter said to have been sent by the complainant. It only received a letter from one Lalji Tewari of Erode under R.L. No. 1766. To a summon issued by the Court for production of that letter from Lalji Tewari the 5th opposite party has filed Ex. A20 a xerox copy of that letter. The District Forum has commented that the original has not been filed and there must be some motive for that. It also found that the registered cover received from Lalji Tewari also has not been filed. But before us in the appeal the learned Counsel for the appellant/5th opposite party filed a registered letter cover and we find thereon R.L, No. 1766 dated 29.7.1991 and we find no reason to suspect the genuineness of this cover. As stated above the purchaser the 8th opposite party has been given up by the compla

inant by making an endorsement. In these circumstances we are clearly of the view that the material on record is not at all sufficient to hold that the 5th opposite party-Bank has played any fraud and it was deficient in service as alleged. This is a matter which should have been agitated by the complainant in a Civil Court and not in the Consumer Forum. 6. In the result, therefore, the appeal is allowed; the order of the District Forum is set aside and the complaint is dismissed. There will be no order as to costs. Appeal allowed.