M.Katju, J. - (1.) This writ petition has been filed for a mandamus directing the respondents to release the Truck No. ASOI D 7984 belonging to the petitioner forthwith. Heard learned counsel for the parties.
(2.) It is alleged in paragraph 2 of the writ petition that the petitioner is the owner of the aforesaid truck vide registration certificate Annexure I to the writ petition. The Indian Oil Corporation engages the contractors for transportation of L.P.G. gas cylinders to various destinations and for this purpose tenders are invited by the Indian Oil Corporation. The petitioner also gave his tender which was accepted and an agreement for the transport contract was entered into between the petitioner's firm in which one Suresh Kumar is partner. True copy of one of such agreement is Annexure 2 to the writ petition. After the execution of this agreement four trucks were employed in the Indian Oil Corporation for the transportation of L.P.G. gas cylinders of the Indian Oil Corporation. In paragraph 7 of the writ petition it is alleged that after execution of the agreement the -petitioners' trucks were transporting the gas cylinders to various destinations according to the directions of the respondents without any complaint. On 21-5- 2002, 306 cylinders were given by the Corporation from its Jhunsi bottling plant to the petitioner for transportation from Allahabad to Mirzapur. The cylinders were loaded in the truck at 6.15 p.m. The truck came out of the plant and proceeded towards Mirzapur for delivery. It is alleged in paragraph 10 of the writ petition that due to technical defect in the truck the driver stopped the truck near Hanuman temple towards left side of the road in between Jangiganj and Gopiganj in district Bhadohi. While driver was removing the technical defect, a heavy truck which was loaded with bamboos collided with the truck due to which the gas cylinder burst. The drivers of both the trucks died on the spot and a khalasi received heavy burn injuries and was admitted in hospital where a dying declaration was recorded by the Magistrate, and subsequently he also died. An F.I.R. of this incident was lodged by one Phool Chand at police station Gopiganj, district Bhadohi vide Annexure 3 to the writ petition. The petitioner sent letters dated 3-6-2002 and 7-6-2002 requesting the respondent No. 2 to make payment of the previous bills so that the payment may be made and two other trucks may be loaded according to the agreement. True copies of the letters are Annexure 4 and 5 to the writ petition. Another F.I.R. was lodged from petitioner's side.
(3.) On 6-6-2002 the petitioner received a letter from the respondents that due to accident the cylinders were destroyed and the respondents had suffered a loss of Rs. 6,23,805/ and the petitioners are liable to pay the loss. True copy of the letter is Annexure 6 to the writ petition. The petitioner's manager sent a letter dated 17-6-2002 stating that the accident was merely an Act of God and there was no fault of the drivers or khalasi and hence they are not liable to pay any damages. True copy of the letter is annexure 7 to the writ petition. The petitioner's truck is in custody of the respondent and are inside of the plant. The respondents refused to release the truck unless the alleged damages are paid. The petitioner's manager requested the respondents to make payment of the previous bills so that the bills of the diesel and pay of labourers may be given but nothing was done by the respond ents. Security deposit and earnest money is also lying with the respondents. True copy of the bills are Annexure 8 to the writ petition. The petitioner's manager sent a letter dated 17-6-2002 for payment of all the previous bills vide Annexure 9 to the writ petition but no reply was given by the respondents. The petitioner's manager personally went to the respondents and requested for release of the two trucks but the respondents refused to release the same.;