P RAMA RAO Vs. P NIRMALA

JUDGEMENT

(1.) This special leave petition is from the judgment of the Division Bench of the Andhra Pradesh High Court dated December 6, 1995 made in LPA No. 239 of 1993.

(2.) The admitted position is that the petitioner is a registered contractor with the Indian Oil Corporation for transportation of the Petroleum products within Andhra Pradesh from Vishakhapatnam to Hyderabad. It would appear that he engaged one P. Nirmala, the owner bearing truck No. DHL 2182 and entrusted 12000 Lts. of oil for delivery at Hyderabad on July 9, 1982. It is now not in dispute that on account of the accident of the truck there was a leakage of oil. As a consequence, only 1755 Lts. were delivered resulting in shortage of the rest, namely, 10245 Lts. The suit was filed by the petitioner for recovery of a sum of Rs. 66,212.36 with interest against P. Nirmala, the truck owner and the insurer, Oriental Fire and General Insurance Company Ltd., respondent No. 4 in the special leave petition. The trial Court decreed the suit and on appeal the learned single Judge confirmed the same. The Division Bench allowed the appeal and set aside the decree as against respondent No. 4 on the ground that notice under Section 10 of the Carriers Act, 1865 (for short, the Act) was not issued and, therefore, the suit against the insurer would not lie. Thus, this special leave petition.

(3.) Shri A.T.M. Sampath, learned counsel for the petitioner, contends that since the petitioner is not the carrier, the need to issue notice does not rise. However, even if it is to be so, such a notice has been issued within six months by the Indian Oil Corporation, marking a copy to the Insurance Company, So, the suit is within limitation. We find no force in the contention. Section 10 of the Act reads as under: