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PETITIONER: P. RAMA RAO

       Vs.

RESPONDENT: P. NIRMALA & ORS.

DATE OF JUDGMENT:       05/12/1996

BENCH: K. RAMASWAMY, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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.      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 o 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.      Shir  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;      "No  suit   shall   be   instituted      against a  common carrier  for  the      loss  of,   or  injury   to,  goods      entrusted  to   him  for   carriage      unless notice  in  writing  of  the      loss or  injury has  been given  to      him before  the institution  of the

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    suit and  within six  months of the      time when  the loss or injury first      came  to   the  knowledge   of  the      plaintiff."      Admittedly, notice was issued by the petitioner on July 5, 1983  after the  expiry of six months’ time. A reading of Section 10,  it would  make it  clear that  no suit shall be instituted against  common carrier for the loss of or injury to goods  entrusted to  him for  carriage, unless  notice in writing of the loss of or injury to the goods has been given to him  before the institution of the suit within six months of the  time when  the loss  of or injury to the goods first came  to  the  knowledge  of  the  plaintiff.  The  admitted position is  that P.  Nirmala, the owner of the truck had an insurance policy  with the  4th respondent-Oriental  Fire  & General insurance  Co. Ltd.  Ultimately,  the  liability  is sought to  be fastened  on the insurance company as insurer, for the liability of common carrier. As a result, notice has to be  issued, when the damage was caused to the goods which is being carried due to an accident covered under the policy of insurance.  So, a  notice under Section 10 is required to be issued  to the  Insurance Company  within six months from the date  of the  knowledge of  the injury to or loss of the goods entrusted  for carriage  before filing  the  suit.  In fact, admittedly,  such a notice was issued on July 5, 1983, namely, after  the expiry of six months from the date of the accident, namely,  July 9,  1982.  The  appellant-petitioner stepped into  the shoes  of the  carrier, i.e.,  P. Nirmala. Notice,  issued   by  the  Indian  Oil  Corporation  to  the petitioner as  well as  common  carrier  and  the  Insurance Company would  not be construed to be a notice under Section 10. Under these circumstances, it must be held that the suit against the  Insurance Company  would not lie, though a suit may lie against the common carrier.      The special leave petition is accordingly dismissed.