Sri A.Giridar

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IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

I-ADDL. DISTRICT JUDGE, KRISHNA, MACHILIPATNAM.

Present: Sri Alapati Giridhar, B.A., LL.B.,

I-Addl. District Judge,

Wednesday, this the 6 th day of March, 2013

M.V.O.P. No. 249/2011

Between:

1. Peethala Sailaja, W/o. Late Venkata Srinivasa Rao, Hindu, 29 years, Housewife.

2. Peethala Sinduja, D/o. Late P. Venkata Srinivasa Rao, Hindu, 14 years, Student.

3. Peethala Tarun Kumar, S/o. Late P. Venkata Srinivasa Rao, Hindu, 13 years, Student.

4. Peethala Satish, S/o. Late P. Venkata Srinivasa Rao, Hindu, 12 years, Student. (2nd, 3rd and 4th petitioners are being minors Rep. By their mother 1st petitioner Natural Guardian).

5. Peethala Nookalayya, S/o. Bhimayya, Hindu, 50 years, Coolly. (All are residents of Door No. 5-25-1-5, Main Road, Harijanavada, Pedana village and Mandal.

...Petitioners.

A N D (1) B. Narasimha Rao, S/o. Radha Krishna Murthy, Driver of City Bus No. AP 16 TW 2180, 36 years, Hindu, R/o. Dodlapalem, H/o. Akumarru Loku, Guduru Mandal. (2)Ch. Venkata Ranga Rao, S/o. Seshaiah, Owner of City Bus Bearing No. AP 16 TW 2180, Hindu, 45 years, R/o. Door No. 26/160, Buttaiahpet, Machilipatnam. (3)M/s. National Insurance Company Limited, Rep. By Branch Manager, Branch Office, D.No.11/1170, Vijayawada Road, Near Challarasta Center, Machilipatnam.

...Respondents.

This petition coming on this day before me for final hearing in the presence of Sri Md. Suleaman, Advocate for petitioners and Sri. G. J. Victor., Advocate for 1st respondent, Sri K.V.S. Ramana Murthy, Advocate for 3rd respondent and 2nd respondent having been called absent and set exparte, and the matter having stood over for consideration till this day the court delivered the following.

ORDER

The petition is filed under Section 166 of Motor Vehicles Act claiming compensation of Rs.15,00,000/- for the death of Peethala Venkata Srinivasa

Rao in a motor vehicle accident that took place on 04.03.2011 at 11.00 a.m., near Rice Mill at Hussainpalem, Pedana. The 1st respondent is the driver of 2 the crime bus, the 2nd respondent is owner of the bus bearing No. AP.16 TW 2180 and the 3rd respondent is insurer of the crime bus.

2)The brief averments of the petition are as follows:-

(i)The deceased was hale and healthy prior to the accident. He was working as Sales Manager and Commission Agent, Lorry Booking

Agent and salt booking agent in Sri Priya Lime Works, Pedana and was earning Rs.10,000/- per month. The deceased leased out vacant site of

Ac.0.13 cents to Sri Priya Lime Works at monthly rent of Rs.1,000/-, he was doing cultivation and getting Rs.50,000/- per annum and in total Rs.15,000/- per month.

(ii)On 04.03.2011 at about 11.00 a.m., the deceased was proceeding on Hero Honda Passion Plus, registration No. AP 16 BH 2487 from Bandar to Pedana. He was proceeding on the left side margin of the road, near Rice Mill at Hussainpalem of Pedana at Bandar main road, the 1st respondent of city bus registration No. AP. 16 TW 2180 drove the bus in a rash and negligent manner and proceeding from Pedana to Bandar, the 1st respondent dashed against the deceased Hero Honda with opposite direction and dragged the deceased to a distance of 20 yards. The deceased died on the spot. One Mendu Hanumantha Rao and passers by witnessed the accident, the 1st respondent stopped his but, got down and ran away. The said Mendu Hanumantha Rao presented a report to Bandar

Taluq police station, the same was registered as Cr.No. 40/2011 U/s.304-A of I.P.C. The police also filed charge sheet against the 1st respondent.

Inquest and postmortem were also conducted.

(iii)The 1st petitioner is wife of the deceased, the petitioners 2 to 4 are children of deceased. The 5th petitioner is father of the deceased and all the petitioners are dependents on the sole earnings of the deceased.

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(iv)The 1st respondent is having valid driving licence D.L.No.

DLRAP: 11649122010, the 2nd respondent owner of the crime bus and the 3rdrespondent is insurer of crime bus, vide policy no 551502/31/10/6700000580, valid from 17.6.2010 to 16.06.2011. All the respondents are jointly and severally and vicariously liable to pay compensation.

3)The 2nd respondent set exparte.

4) The 3rd respondent filed counter denying the material allegations of the petition. Further denied the 1st Respondent the rash and negligent driving resulted the accident and the death, further the age, income and his job was disputed. Further disputed working in Sri Priya

Lime Works of Pedana and further averred that the claim is very high and excessive and averred that the 2nd respondent is owner of the crime bus and insured with the 3rd respondent and finally prayed to dismiss the claim petition with costs.

5) Basing on the aforesaid pleadings, the following issues are framed for trial:-

1) Whether the deceased died due to rash and negligent driving of the vehicle City Bus bearing Regn. No. AP 16 TW 2180 in the motor accident dt.4.3.2011?

2) Whether the petitioners are entitled to any compensation? If so, to what amount? and from whom?

3) To what relief?

6) The 1st petitioner was examined as P.W.1. PW2, the proprietor of

Sri Priya Lime Works, Pedana was examined. Ex.A.1 to A.12 are marked in favour of the petitioners to prove their case. The 1st and 2nd respondent were set exparte. The 3rd respondent did not adduce any evidence and not mark documents on their behalf.

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7) POINT NO.1:

After completion of evidence and during arguments the admitted aspects before this Tribunal are the deceased died in a motor accident on 4.3.2011. The Crime Bus was driven by the 1st respondent, owned by 2nd respondent and insured with the 3rd respondent Registration of crime and filing of charge sheet.

8) The disputed aspects are the possessing of driving license by the deceased, negligence driving of the 1st respondent, age of the deceased, his income and the earnings on the date of accident, working in Sri Priya Lime

Works and the quantum of compensation.

9)P.W.1 filed his evidence affidavit, who is the wife of the deceased that her husband Peethala Venkata Srinivasa Rao met with an accident occurred on 4.3.2011 at about 11.00 p.m., at Hussainpalem while he was proceeding on his hero Honda Passion Plus, bearing No. AP 16 BH 2487, he was proceeding on left side of the road, the 1st respondent of the City Bus, bearing No. AP 16 TW 2180 drove the bus in a rash and negligent manner and dashed against the deceased Hero Honda in opposite direction and dragged the deceased to a distance of 20 yards, he died on the spot. One

Mendu Hanumantha Rao and others witnessed the accident, the 1st respondent ran away and a case is registered in Cr.No. 40/2011 U/s.304-A of I.P.C and the Police filed charge sheet against the 1st respondent and prayed to grant compensation of Rs.15,00,000/-.

10)P.W.1 got marked Ex.A.1 to A.12. Ex.A.1 is attested copy of F.I.R in

Cr.No.40/2011 of Bandar Taluq police station registered U/s.304-A of I.P.C,

Ex.A.2 is attested copy of inquest report, Ex.A.3 is attested copy of postmortem report, Ex.A.4 is salary certificate of deceased issued by Sri

Priya Lime Works, Ex.A.5 is attested copy of M.V.I report, Ex.A.6 is 5 attested copy of charge sheet, Ex.A.7 is attested copy of driving licence of the 1st respondent, Ex.A.8 is attested copy of Insurance Policy of crime bus,

Ex.A.9 is attested copy of registration certificate of crime vehicle, Ex.A.10 is gift deed in the name of the deceased, Ex.A.11 is sale deed in the name of the deceased and Ex.A.12 is gift deed in the name of the deceased.

11)The proprietor of Sri Priya Lime Works, Pedana was examined as

P.W.2. He stated in his evidence affidavit that the deceased worked as

Sales Manager and all in one (Commission Agent, Lorry Booking Agent and

Salt Booking Agent) in his Lime Works, his last salary was Rs.10,000/- and issued Ex.A.4 salary certificate dated 18.4.2011, further stated that the deceased is aged about 30 years at the time of the accident. The deceased leased out to him vacant site of Ac.0.13 cents and he is running Sri Priya

Lime Works and paying rent of Rs.1,000/- per month.

12)The respondents did not examine any witnesses and did not mark any document in their favour.

13)The counsel for petitioners reiterated the material contents of M.V.O.P and chief affidavit and his brief arguments on the disputed aspects are that the deceased is aged about 30 years on the date of accident. He was working as Sales Manager and Commission agent, lorry booking agent and salt booking agent in Sri Priya Lime Works at Pedana and was earning

Rs.10,000/- per month and earning Rs.50,000/- per annum from cultivation and total getting an amount of Rs.15,000/- per month and contended that the multiplier 18 applies and the petitioners are entitled for compensation of

Rs.30,00, 000/-, but confined their claim only for Rs.15,00,000/-.

14)Whereas the counsel for the 3rd respondent contended that the deceased age was mentioned as 37 years in Ex.A.10 to A.12 and the 5th petitioner is not 50 years as claimed in the petition, but he is aged about 75 6 years as per Ex.A.10 to A.12, the deceased did not wear Helmet and did not have driving license and the accident occurred due to the negligence of the deceased. Ex.A.4 salary certificate is not authenticated. Whereas in the ration card the annual income of the deceased was mentioned as

Rs.12,000/- and where as the claim is for Rs.15,00,000/-, the claim is very excessive and also the petitioners did not prove the negligence of the 1st respondent and the deceased is a coolly and his earnings would be maximum Rs.3,000/- per month.

15)The contention that the deceased did not wear Helmet and did not have driving license and he is at negligent and caused the accident and the 1st respondent did not drive the crime vehicle in a rash and negligent manner, these all are have no force in view of filing of Ex.A.6 charge sheet against the 1st respondent. The 3rd Respondent did not elicit nor place any contra material. This Tribunal considering the oral evidence of P.W.1 couple with documentary evidence Ex.A.1 to A.3 and Ex.A.6 hold that the deceased died in the accident and the 1st respondent drive the crime bus in rash and negligent manner and caused the accident.

16) POINT NO.2:

The age of the deceased is concerned in claim petition, it was mentioned the 1st petitioner is aged 29 years, the 2nd petitioner is aged 14 years, the 3rd petitioner is 13 years, the 4th petitioner is aged 12 years. In

Ex.A.3 postmortem report, the deceased age was mentioned as 30 years. In

Ex.A.10 gift deed dated 2.5.2009 the deceased age was mentioned as 34 years. In Ex.A.11 gift deed dated 9.8.2010 the deceased age was mentioned as 37 years and Ex.A.12 sale deed dated 20-7-2010 his age was mentioned as 33 years.

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17)The learned counsel for the petitioners relied on a judgment of

Hon'ble High Court of Rajasthan, Jaipur Bench in Rajasthan State

Road Transport Corporation V. Ram Niwasi and others and contended that the deceased age in postmortem report to be taken and contended that the deceased age is 30 years. Whereas the learned counsel for the 3rd respondent contended that he is aged about 37 years. This Tribunal hold that the age in post mortem report is not required to follow when the other material is available. This Tribunal, considering the above material and documents, assess the deceased age is more than 35 years and below 40 years on the date of accident.

18)Coming to the income of the deceased and driving license of the deceased, the P.W.1 filed Ex.A.4 salary certificate issued by P.W.2 and contended that the deceased was drawing Rs.10,000/- per month by working as Sales Manager and Commission Agent and Lorry Booking Agent and also Salt Booking Agent in Sri Priya Lime Works and he was earning

Rs.50,000/-per month on cultivation and Rs.1,000/- toward rent for month.

Whereas the learned counsel for the 3rd respondent contended after giving notice they filed memo by filing Xerox copy of house hold card No. WAP 068200500400 asking the petitioners to produce driving license particulars of the deceased and the house hold card, further contended that the

Petitioners deliberately did not produce the House hold card and driving license particulars of the deceased and contended that in house hold card the deceased income was mentioned as Rs.12,000/- per annum. PW1 did not furnish driving license particulars of the deceased not placed any justifiable reason. But PW2 in his cross-examination stated that he has two ______________ (1) 2002 ACJ 475 8 employees. He has not an Income Tax Assesses. He did not maintain any register for salary payment and the Ex.A.4 salary certificate also do not disclose for which period Ex.A.4 is issued. Ex.A4 contains Roc

No.V12/0/3/2194 Dt.2000-01, but P.W.2 either in his chief-examination or in cross-examination did not disclose to whom the Lime Works is registered.

He did not file any extract of registration. This Tribunal considering the above circumstances did not believe Ex.A.4 certificate. This Tribunal considering the material on record and the above aspects hold that the

P.Ws.1 and 2 did not prove the earnings of the deceased and adverse inference can be drawn that the deceased did not have driving license.

However this Tribunal considering prevailing wages and cost of living assessed the income at Rs.4,500/- per month on the date of accident.

19)With regard to quantum of compensation is concerned as the earnings of the deceased was assessed at Rs.4,500/- pm as stated supra, it comes to Rs.54,000/- per annum. The multiplier is 15 as his age was assessed more than 35 years and below 40 years as stated supra. 1/3rd to be deducted towards personal expenses of the deceased. Therefore, after deducting 1/3rd, the dependency comes Rs.36,000/- per month, after multiplying with multiplier 15, it comes to Rs.5,40,000/- (Rs.36,000 x 15) awarded towards loss of dependency, awarded Rs.10,000/- for loss of

Estate and Rs.10,000/- towards loss of consortium and awarded Rs.10,000/- towards funeral expenses and cost of transportation of dead body. Thus, in total the petitioners are entitled to Rs. 5,70,000/- towards compensation.

The 1st to 3rd respondents are jointly and severally liable to pay the said compensation with proportionate costs with interest. Hence, the issue is answered accordingly.

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20)ISSUE NO.3:

In the result, the petition is partly allowed awarding a sum of

Rs.5,70,000/- towards compensation to the petitioners with proportionate costs and interest thereon @ 7.5.% per annum from the date of petition i.e., 27.5.2011 till the date of realization. The 1st and 3rd respondents are jointly and severally liable to pay the said compensation amount to the petitioners and the respondents are directed to deposit the award amount with interest and costs within one month from the date of this order. The 1st petitioner is entitled for Rs.1,50,000/-, the petitioners 2 to 4 are entitled for Rs.1,10,000/- each and the 5th petitioner is entitled for Rs.90,000/- and apportioned accordingly. On the deposit of the award amount, the 1st petitioner is entitled to withdraw an amount of Rs.1,00,000/- and the 5th petitioner is entitled for Rs.50,000/- by filing separate applications. The amount 2 to 4 petitioners is ordered to be deposited in any Nationalized Bank till they attain their age of majority. The remaining balance of 1st and 5th petitioners shall be kept in fixed deposit for one year in any nationalized bank. Advocate fee is fixed at Rs.8,000/-.

Dictated to the Personal Assistant, transcribed and typed by

him, corrected and pronounced by me in open Court, this the 6th day of March, 2013.

Chairman, Motor Accidents Claims Tribunal -cum-I Addl. District Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

For Petitioners: For Respondents:

P.W.1: P. Sailaja. - None- P.W.2: S. Chandra Rao.

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Documents marked for Petitioners

Ex.A.104-03-2011Attested copy of FIR in Cr.No.40/2011 of Bandar Taluq Police Station

Ex.A.204-03-2011Attested copy of inquest report

Ex.A.304-03-2011Attested copy of P.M Report.

Ex.A.418-04-2011Salary Certificate.

Ex.A.5--Xerox copy of M.V.I. Report.

Ex.A.6--Charge sheet.

Ex.A.7--True Copy of Driving Licence of R.1.

Ex.A.8--Attested copy of Insurance Policy

Ex.A.9--Copy of Certificate of Registration.

Ex.A.1002-05-2009 Original Gift deed.

Ex.A.1109-08-2010 Certified copy of sale deed

Ex.A.1220-07-2010 Original gift deed.

Chairman, MACT: cum: I-ADJ, Machilipatnam, Krishna Dt.

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IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

I-ADDL. DISTRICT JUDGE, KRISHNA, MACHILIPATNAM.

Present: Sri Alapati Giridhar, B.A., LL.B.,

I-Addl. District Judge,

Thursday, this the 7 th day of March, 2013

M.V.O.P. No. 349/2010

Between:

Battula Kondababu @ Konda, S/o. Rambabu, Hindu, 20 years, Coconut Seller, R/o. Pedagonnuru village, Mudinepalli Mandal, Kaikaluru J.C.J.C. At Present residing at Edepalli, Machilipatnam, Bandar J.C.J.C.

...Petitioner.

A N D

1) Kolluru Sreenivasa Rao, S/o. Subba Rao, Hindu, 38 years, Driver of Mini Lorry AP 27 T 6837, R/o. Tadigiripadu village, Kolluru Mandal, Guntur District, Guntur P.J.C.J.

2) Jasti Koteswara Rao, S/o. Naraiah, Hindu, Owner of Mini Lorry AP 27 T 6837, R/o. Pathareddipalem village, Chebrolu Mandal, Gunturu District, Gunturu P.J.C.J.

3) M/s. New India Assurance Company Limited, Rep. By its Divisional Manager, Divisional Office, D.No.38-8-7, Opp. All India Radio, Kona, Heights, 3rd Floor, Punnammathota, M.G. Road, Vijayawada, Vijayawada J.C.J.C.

...Respondents.

This petition coming on 28-02-2013 before me for final hearing in the presence of Sri G.V. Ramana, Advocate for petitioner and Sri Y. Bhima Sankara Rao, Advocate for 3rd respondent and respondents 1 and 2 having been called absent and set exparte, and the matter having stood over for consideration till this day the court delivered the following.

ORDER

The petition is filed under Section 140 and 166 of the Motor Vehicles

Act claiming compensation of Rs.1,00,000/- with interest @ 12% p.a. with costs for the injuries sustained by the petitioner in a motor vehicle accident occurred on 08.03.2010 by Mini Lorry bearing No. AP 27 T 6837 driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent.

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2)The brief averments of the petition are as follows:-

The petitioner was hale and health and aged 20 years and coconut seller and he was earning Rs.6,000/- per month. On 08.03.2010 at about 6.00 a.m., the petitioner and another person engaged a Mini Lorry bearing

No. AP 27 T 6837 for loading coconuts, they loaded coconuts at

Viswanadripalem to take to Gudivada, the 1st respondent drove the lorry in a rash and negligent manner with hectic speed, though the petitioner cautioned the 1st respondent, near Rice Mill at Pedapalaparru, the Mini Lorry dashed opposite coming TATA INDICA, car bearing No. AP 16 AR 7576, lorry turned turtle on road side canal. The petitioner sustained grievous bleeding and fracture injuries. He was shifted to Government Hospital,

Gudivada in 108 Ambulance. Police registered F.I.R in Cr.No. 28/2010

U/s.337 and 338 of I.P.C and also filed charge against the 1st respondent for the offence U/s.337 and 338 of I.P.C. The petitioner was admitted in Vishnu

Orthopedic Hospital, Gudivada and cement bandaged to his fracture. He was in hospital for 10 days as inpatient and Doctor advised him for check up for every fortnight. The petitioner spent Rs. Rs.20,000/- towards medicines,

Rs.5,000/- towards transportation and Rs.10,000/- towards extra nourishment. He requires surgery and he is taking treatment continuously.

He also sustained loss of earnings due to the accident. He could not work normally. The 1st respondent is driver of the Mini Lorry, the 2nd respondent is owner of the Mini Lorry and the 3rd respondent is insurer of the Mini Lorry and all the respondents are jointly and severally liable to pay compensation of Rs.1,00,000/- with interest @ 12% p.a., and for costs.

3)The 1st and 2nd respondents were set exparte.

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4) The 3rd respondent filed counter denying material averments of the petition and did not admit the manner of accident and negligence of the 1st respondent, further denied the 1st respondent is having valid Driving

License, further denied that the accident dated 8.3.2010 by the crime lorry and sustained injuries by the petitioner and his treatment, further averred that the petitioner and another traveling in the vehicle as unauthorized and gratuities passengers, in violation of rules and terms and conditions of policy, further averred the petitioner is not entitled for compensation, no premium is paid to cover risk of owner of the goods and averred that due to negligent driving of TATA INDICA car accident was occurred and averred that the claim amount of Rs.1,00,000/- is highly excessive and exorbitant and prayed to dismiss the petition with costs.

5) Basing on the above pleadings, the following issues were framed for trial:-

4) Whether the petitioner sustained injuries due to rash and negligent driving of the vehicle/Mini Lorry bearing No. AP 27

T 6837 in the Motor accident dated 08.03.2010?

2) Whether the petitioner is entitled for any amount of compensation, if so, to what amount and from which of the respondent?

3) To what relief?

6)During the course of trial, the petitioner was examined as P.W.1 and got examined P.W.2 on his behalf and got marked Ex.A.1 to A.7 to prove its case.

7)On behalf of the respondents R.W.1 was examined and Ex.B.1 to

Ex.B.3 were marked.

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8)ISSUE NO.1

The learned counsel for the petitioner argued that the petitioner engaged the Mini Lorry and loaded his coconut and sat in the Cabin and he was traveling to the destination, the 1st respondent drove the Mini Lorry in a rash and negligent manner and hit Indica car. He sustained fracture injury to his right foot joint and the injury is grievous. He was bed ridden for three months and conducted surgery and spent Rs.10,000/- towards medical bills and prayed to allow the claim as prayed for. Whereas the counsel for the 3rd respondent contended that the Insurance Company is not liable to pay the compensation, as the petitioner is unauthorized and Gratuities passenger, the petitioner himself in cross-examination admitted that he sat on coconut load, but not in lorry, this is in violation of terms and conditions of Policy, further passengers traveled in the Crime lorry is more than capacity, these all are violations of terms and conditions of policy, the Insurance Company is not liable to pay compensation and the petitioner did not implead driver, owner and insurer of TATA INDICA Car and prayed to dismiss the petition with costs.

9)There is no dispute about the occurrence of accident on 8.3.2010 by

Mini Lorry bearing No. AP 27 T 6837 driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent, further there is no dispute the petitioner traveled and sustained injuries in the accident.

10)The disputed aspects before this Tribunal are whether the petitioner engaged the crime lorry to transport coconuts or he is unauthorized or gratuities passenger and whether he sat on the coconut load, whether the mini lorry took persons more than capacity, paying of premium to the owner of the goods, the quantum of claim and the liability of insurance Company, effect of non-impleading of parties of INDICA car.

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11)P.W.1 the injured petitioner filed chief-affidavit on the lines of petition and got marked Ex.A.1 to A.7. Ex.A.1 is attested copy of F.I.R., Ex.A.2 is attested copy of wound certificate, Ex.A.3 is attested copy of M.V.I report,

Ex.A.4 is attested copy of Charge Sheet, Ex.A5 is bunch of X-Ray films – 3

Nos, Ex.A.6 is bunch of medical bills for Rs.10,426/- and Ex.A7 is attested copy of 161 statement of the PW1. PW1 stated in his evidence affidavit that on 8.3.2010 he engaged mini lorry and loaded coconuts, he was traveling, the 1st Respondent with high speed dashed against opposite coming TATA

INDICA car and the Mini Lorry turned turtle on road side canal. He sustained fracture and other injuries. He was shifted to Government hospital, Gudivada and shifted to Vishu Orthopedic Hospital, Gudivada and he was inpatient for 10 days. The incident is registered as Cr.No.28/2010 of

Mudinepalli police station U/s.337 and 338 of I.P.C.

12)P.W.2 examined who is police constable, the statement recorded

U/s.161 of Cr.P.C of injured marked as Ex.A.7. PW2 stated that PW1 was taking coconut load in the mini lorry and occurred an accident and he sustained injuries. The Counsel for the 3rd Respondent through cross examined PW1 & PW2 did not elicit nor place any contra material. This

Tribunal, considering the evidence of P.W.1 and P.W.2 coupled with Ex.A.1 to A.4 and A.7 hold that the 1st respondent drove the mini lorry in a rash and negligent manner and caused the accident and the petitioner sustained injury in the accident. Hence, this issue is answered accordingly.

13)ISSUE NO.2:

Coming to the point that whether P.W.1 engaged a mini lorry for transporting coconut or he is unauthorized or gratuities passenger. The evidence of P.W.1 and P.W2 2 coupled with Ex.A.1, A.4 and A.7 go to show 6 that he engaged mini lorry to transport coconut load. The 3rd respondent though cross-examined P.W.1 and P.W.2 did not elicit nor placed any contra material before the Tribunal to prove their contention. In the absence of specific proof, this Tribunal considering the above material hold that the

P.W.1 engaged the lorry for transportation of coconut and the P.W.1 is not unauthorized or gratuities passenger.

14) Coming to the aspect that whether P.W.1 sat on the coconut load, whether the 1st respondent took many persons on the lorry than permitted capacity and whether premium is collected for owner of the goods. The

P.W.1 in his cross-examination admitted that he sat on the coconut load and further stated that he along with two more persons, excluding driver were proceeding in crime vehicle and he sat on the load of coconut. In Ex.B.1 statement also P.W.1 stated that he sat on the coconut load and in Ex.A.4 charge sheet investigation material discloses that L.W.1 and L.W.4 sustained injuries and remaining were sustained simple injuries on their bodies. Whereas Ex.B.3 extract of “B” register show that the seating capacity of mini lorry is three. Ex.B.2 also covers risk of 3rd party cover compulsory personal accident (P.A) cover for owner, driver LL to pay driver and also Ex.B.2 does not cover risk of others. R.W.1 in his cross- examination stated that “It is true that the owner of goods can travel on

the goods vehicle, witness adds he must be travelled in cabin of the

vehicle.” The above material go to show that PW1 sat on the coconut load and the 1st respondent took more than two persons on the lorry i.e more than permitted capacity and the 3rd Respondent collected premium for the owner of the goods. However the 3rd Respondent has to pay the amount and recover the same from the 1st and 2nd respondents in the circumstances of the case.

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15)The other contention that the 3rd respondent did non-implead driver, owner and insurer of India Car and the contention this is fatal to the case have no force, as Ex.A.4 charge sheet, investigation material show that the 1st respondent is negligent and caused the accident, thus non-impleading driver, owner and insurer of India Car cannot be said the Petition is not maintainable.

16) Coming to the question of quantum of compensation, Ex.A.2 wound certificate go to show that the P.W.1 sustained a fracture at right foot and the injury is grievous in nature, there is no dispute on the same. Ex.A.6 medical bills go to show that he spent Rs.10,426/-. But P.W.1 did not file any document to show that he incurred some amount on the other heads or he is still under going treatment, so this Tribunal is not inclined to consider the claim under other heads. The counsel for petitioner relied on a judgment of Hon'ble High court of Andhra Pradesh in New India Assurance

Company Limited, Visakhapatnam V. Korukonda Appa Rao and another (1) and contended that :

“.......even without examination of doctor Ex.A.2 wound

certificate can be considered....”

This Tribunal considering the above material on record and judgment of the

Hon'ble High Court of Andhra Pradesh hold that the P.W.1 is entitled for

compensation for the grievous injury. Thus, this Tribunal inclined to grant compensation of Rs.30,000/- for the grievous injury beside pain and suffering and Rs.10,426/- towards medical bills. Thus in all the petitioner is entitled for Rs.40,426/-. Admittedly the 1st respondent is driver of mini lorry, _________________ (1) 2010 (2) ALT 229 8 the 2nd respondent is owner of mini lorry and the 3rd respondent is insurer.

The 1st to 3rd respondents are jointly and severally liable to pay the said compensation and the 3rd respondent is directed to pay compensation and recover from the 1st and 2nd respondents without filing a separate suit for the reasons stated supra. Hence, this issue is answered accordingly.

17)ISSUE NO.3:

In the result, the petition is partly allowed with proportionate costs. The petitioner is awarded compensation of Rs. 40,426/- for the injuries sustained by him in the Motor Vehicle Accident. The 1st to 3rd respondents are jointly and severally liable to pay an amount of compensation of Rs.46,426/-. The 3rd Respondent being insurer of crime vehicle is directed to pay the compensation amount of Rs.40,426/- with interest @ 7.5% p.a., from the date of petition i.e., 17.09.2009 till the date of realization, the 3rd Respondent is entitled to recover the award amount from the 1st and 2nd respondents without filing a separate suit. On deposit of the said amount, the petitioner is entitled to receive the entire amount by filing separate application. Advocate Fee is fixed at Rs.2,000/-.

Dictated to the Personal Assistant, transcribed and typed by him,

corrected and pronounced by me in open Court, this the 7th day of March, 2013.

Chairman, Motor Accidents Claims Tribunal -cum-I Addl. District Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

For Petitioner: For Respondents:

P.W.1: B. Konda Babu. -None- P.W.2: K. Lokeswara Rao.

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Documents marked for Petitioner

Ex.A.110-03-2010 Attested copy of FIR in Cr.No.28/2010 of Mudinepalli Police Station

Ex.A.221.04.2010Attested copy of Wound Certificate.

Ex.A.312-03-2010 Attested copy of M.V.I. Report.

Ex.A.426-04-2010 Attested Copy of charge sheet.

Ex.A.5--Bunch of X-Ray films.

Ex.A.6--Bunch of Medical Bills.

Ex.A.7--Attested copy of 161 Cr.P.C statement of P.W.1.

Chairman, MACT: cum: I-ADJ, Machilipatnam, Krishna Dt.

1

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

I-ADDL. DISTRICT JUDGE, KRISHNA, MACHILIPATNAM.

Present: Sri Alapati Giridhar, B.A., LL.B.,

I-Addl. District Judge,

Wednesday, this the 13 th day of March, 2013

M.V.O.P. No. 435/2010

Between:

1. Valapalli Rangamma, W/o. Suryanarayana, Hindu, 35 years, Naiducheruvu, H/o. Dakaram Village, Now at Edepalli, Machilipatnam, Machilipatnam J.C.J.C.

2. Valapalli Divya, D/o. Late Suryanarayana, Hindu, 20 years Naiducheruvu, H/o. Dakaram Villag;e, Now at Edepalli, Machilipatnam, Machilipatnam J.C.J.C.

3. Alla Sudha Rani, W/o. Naga Sivakumar, Hindu, 22 years, Punnamathota, Vijayawada, Vijayawada J.C.J.C.

...Petitioners.

A N D

1) Konda Rajesh, S/o. Giri Babu, Hindu, 23 years, Madhava Katta, D.No.210/2-214, Driver of Tata India Car bearing No. AP 27 AC 4779, Vijaya Durga Nagar, Vijayawada, Vijayawada J.C.J.C.

2) Unnam Srinivasulu, S/o. Venkateswarlu, 45 years, Kamma, Chowthapalem Village, Ponnuru Mandal, Owner of Tata Indica Car bearing No. AP 27 AC 4779, Prakasam District.

3) M/s. Oriental Insurance Company Limited, Rep. By its Divisional Manager, Labbipet, Vijayawada, Vijayawada J.C.J.C.

...Respondents.

This petition coming on 04-03-2013 before me for final hearing in the presence of Sri P. Venkateswara Rao, Advocate for petitioners and Sri N. Maheswara Rao, Advocate for 3rd respondent and respondents 1 and 2 having been called absent and set exparte, and the matter having stood over for consideration till this day the court delivered the following.

ORDER

The petition is filed under Section 166 of Motor Vehicles Act claiming compensation of Rs.6,00,000/- with 12% interest and costs for the death of

Valapalli Suryanarayana on 08.07.2010 in a motor vehicle accident.

2

2)The brief facts of the petition are as follows:-

The 1st petitioner is wife and the 2nd and 3rd petitioners are un-married and married daughters of deceased/Valapalli Suryanarayana respectively.

He was bread winner of the family. The deceased was working as a chicken cutter in a shop and he was earning Rs.180/- per day and Rs.20/- as batta and he was spending for maintenance of the family. The deceased performed the marriage of the 3rd petitioner and he has burden to perform the marriage of the 2nd petitioner, but he died in the accident. On 8.7.2010 at about 5.40 p.m., the deceased was proceeding towards his house from water well on Mudinepalli-Kaikaluru main road, he was walking by the side of the road, the 1st respondent, driver of Tata Indica Car, bearing No. AP 27

AC 4779, plying towards Mudinepalli from Kaikaluru, drove the Car in a rash and negligent manner with high speed and dashed the pedestrian/deceased.

As a result, he fell down into a canal and received severe head injury and died on the spot. One Valapalli Chandra Rao and others witnessed the incident and shifted the deceased to the canal bund. The said Valapalli

Chandra Rao lodged a report with Mudinepalli police and they registered in

Cr.No.78/2010 U/s.304-A of I.P.C and took up investigation. Inquest and autopsy was conducted over the dead body of the deceased and opined that the deceased was died due to head injury. The police also filed charge sheet against the 1st respondent U/s.304-A of I.P.C. The deceased was hale and healthy and robust person prior to the accident, he was aged 40 years and was earning Rs.6,000/- per month. The family is facing severe financial crisis due to his death, the 1st petitioner lost consortium in her earlier age and love and affection. The 1st respondent who is the driver of the crime car had valid and effective driving license and the 2nd respondent is owner of crime car and the 3rd respondent is insurer of the crime car, the policy No.

3 744444, covering from 31.7.2009 to 30.7.2010. The policy was in force.

The petitioners demanded the respondents, but they did not come forward to pay the amount and prayed to grant compensation.

3)The 1st and 2nd respondents were set exparte.

4) The 3rd respondent filed counter denying the material allegations of the petition, denied involving of crime vehicle owned by the 2nd respondent, denied the accident dated 8.9.2010 by the crime car and the 1st respondent drove in a rash and negligent manner, denied the petitioners working in meat shop and getting of Rs.200/- per day and his age and earning, further averred that the 1st petitioner is 35 years, 2nd and 3rd petitioners are 20 and 22 years respectively and denied they are only legal heirs and averred the compensation is highly excessive and exorbitant and finally prayed to dismiss the petition.

5) Basing on the pleadings, the following issues are framed for trial:-

1) Whether the deceased died due to rash and negligent driving of the vehicle Indica Car bearing No. AP 16 AC 4779 in the motor accident dt.8.7.2010?

2) Whether the petitioners are entitled to any compensation? If so, to what amount? and from whom?

3) To what relief?

6)The 1st petitioner was examined as P.W.1. and P.W.2, who is the eye- witness to the accident, were examined. Ex.A.1 to A.5 are marked in favour of the petitioners to prove their case. The 1st and 2nd respondent were set exparte. The 3rd respondent did not adduce any evidence and no documents are marked on their behalf.

4

7)POINT NO.1:

The petitioner counsel contended that the deceased is aged 40 years, he was working in Chicken shop and also attending coolly works, the deceased was earning Rs.6,000/- per month on the date of accident, further contended the multiplier is 16 and prayed to allow the petition as prayed for.

Whereas the learned counsel for the 3rd respondent contended that the 2nd claimant is in employment and 3rd claimant is married woman. The petitioners did not file any proof to show that the deceased was working in chicken shop and further contended that in inquest Ex.A.3 it was mentioned that the deceased was an agricultural coolly and further contended that he was earning Rs.2,000/- per month and the same may be taken as his income as he is coolly and 1/3rd to be deducted and relied on a judgment of

Hon'ble High Court of Jharkhand at Ranchi in Agnahis Khalkho and

others V. New India Assurance Company Limited and another (1) and contended that the Tribunal took Notional income of Rs.15,000/- per annum for agricultural coolly and awarded Rs.1,67,000/-, but enhanced to

Rs.3,00,000/-. Further relied on a Judgment of Hon'ble High Court of

Karnataka, Circuit Bench at Gulbarga in Gopal and others V.

Shivasharanappa and others (2) and contended that the Tribunal awarded

Rs.1,69,000/-, but enhanced Rs.2,94,000/- and relied on a Judgment of

Hon'ble High Court of Andhra Pradesh in National Insurance Company

Limited V. B. Rudramma and others (3) and contended that the deceased ______________ (1) 2011 ACJ 776 (2) 2012 ACJ 98 (3) 2011 ACJ 711 5 was 45 years, coolly and assessed and awarded Rs.1,91,000/-, but the

Hon'ble High Court reduced to Rs.1,65,500/- and contended to follow the

above Judgment while awarding compensation to the petitioners.

8) There is no dispute after trial and during arguments before this

Tribunal that the death of the deceased Valapalli Suryanarayana in a motor accident occurred on 8.7.2010 and involving of crime vehicle AP 27 AC 4779 driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent, further there is no dispute on the petitioners on their capacity about heirs of the deceased.

9)The disputed aspects before this Tribunal are the age of the deceased, his income, his earning and rash and negligent driving of 1st respondent.

10) P.W.1, wife of the deceased, P.W.2 who is the witness to the accident categorically deposed that on 8.7.2010 at 5.45 p.m., while the deceased was walking on the left side of the road margin, the crime vehicle in a rash and negligent manner with high speed dashed the deceased and he fell down in a canal and received head injury and died on the spot. Ex.A.1 is the F.I.R. Ex.A.2 is the charge sheet, Ex.A.3 is the Inquest report. Ex.A.4 is the M.V.I. Report and Ex.A.5 is the postmortem report, Ex.A1 to A5 go to show that the death of the deceased was occurred in the motor vehicle accident due to rash and negligent driving of the 1st respondent. The counsel for the 3rd respondent though cross-examined P.Ws.1 and 2 at length could not elicit nor place any contra material before the Tribunal.

Thus, considering the material on record, this Tribunal hold that the deceased died in the motor vehicle accident due to rash and negligent driving of the 1st respondent. Hence, the issue is answered accordingly.

6

11) POINT No. 2:

With regard to the age and income of the deceased, the 1st petitioner/P.W.1 in her evidence affidavit mentioned that the deceased was aged 40 years and working in chicken center and earning Rs.200/- per day and also doing Muta coolly work and the deceased was earning Rs.6,000/- per month. In inquest/Ex.A3 the age of the deceased was mentioned as 40 years and in Postmortem report/Ex.A.5 his age was mentioned as 40 years.

In claim Petition the age of the 3rd petitioner was mentioned as 35 years, the age of the 2nd petitioner was mentioned as 20 years and the age of the 2nd petitioner was mentioned as 22 years. Thus even as per the Petition averments the deceased has 22 years aged daughter. Considering the above material, this Tribunal assess that the deceased is more than 40 years and below 45 years on the date of accident.

12)With regard to income of the deceased, there is no documentary evidence to prove about the earning of the deceased. However, considering the wages and cost of living and other circumstances, this Tribunal takes his earning at Rs.4,500/- per month i.e., Rs.4,500/- x 12 months = Rs.54,000/- per annum and 1/3rd amount to be deducted towards personal and living expenses of the deceased i.e Rs.18,000/- per annum and loss of dependency by the family is assessed at Rs.36,000/- per annum. The multiplier is 14 as per the Judgment of Hon’ble Supreme Court of India in

Sarala Verma and others V. Delhi Road Transport Corporation and

others(4). Thus, Rs.36,000 x 14 = Rs.5,04,000/- is awarded towards loss of dependency, awarded Rs.6,000/- towards loss of Estate, Rs.8,000/- towards loss of consortium and Rs.10,000/- towards funeral expenses and cost transportation of body. Thus in all the petitioners are entitled for

Rs.5,28,000/-. The respondents 1 to 3 are jointly and severally are liable to 7 pay compensation with proportionate costs with interest. Hence, the issue is answered accordingly.

13)ISSUE NO.3:

In the result, the petition is partly allowed awarding a sum of

Rs.5,28,000/- towards compensation to the petitioners with interest thereon @ 7.5.% per annum from the date of petition i.e., 11.10.2010 till the date of realization with proportionate costs. The respondents 1 to 3 are jointly and severally liable to pay the compensation amount to the petitioners. The 3rd respondent is directed to deposit the award amount with interest and costs within one month from the date of this order. The 1st petitioner is entitled for

Rs.2,50,000/-, the 2nd petitioner is entitled for Rs.1,68,000/- and the 3rd petitioner is entitled for Rs.1,10,000/- towards their shares of compensation and apportioned accordingly. On the deposit of the award amount, the 1st petitioner is entitled to withdraw an amount of Rs.1,50,000/- and the 2nd and 3rd petitioners are entitled to withdraw an amount of Rs.60,000/- each by filing separate applications. The balance amount of petitioners is ordered to be deposited for a period of two years in any Nationalized Bank. Advocate fee is fixed at Rs.10,000/-.

Dictated to the Personal Assistant, transcribed and typed by

him, corrected and pronounced by me in open Court, this the 13th day of March, 2013.

Chairman, Motor Accidents Claims Tribunal -cum-I Addl. District Judge, Krishna, Machilipatnam.

8

APPENDIX OF EVIDENCE

For Petitioners: For Respondents:

P.W.1: V. Rangamma. -None- P.W.2: K. Narayana Rao.

Documents marked for Petitioners

Ex.A.108-07-2010 Attested copy of FIR in Cr.No.78/2010 of Mudinepalli Police Station

Ex.A.227.07.2010Attested copy of Wound Certificate.

Ex.A.3--Attested copy of Inquest Report.

Ex.A.4--Attested Copy of M.V.I. Report.

Ex.A.509-07-2010 Attested copy of P.M. Report.

Documents Marked for Respondents

Ex.B.1--Attested copy of Insurance Policy.

Chairman, MACT: cum: I-ADJ, Machilipatnam, Krishna Dt.

THE COURT OF THE I ADDL.DIST. & SESSIONS JUDGE; KRISHNA:

MACHILIPATNAM.

Present:- Sri ALAPATI GIRIDHAR, B.A., LL.B.,

I- Addl. Dist. & Sessions Judge

Friday , this the 8 th day of March, 2013

D.O.P.No.365 of 2011

Between:-

Javadala Yesubhaktueu @ John Wilson, S/o. Yohan, Christian, 32 years, R/o. Chilakalapudi, Machilipatnam, Machilipatnam J.C.J.C. : Petitioner. A N D

Javadala Suneeta, W/o. Yesubhaktueu @ John Wilson, Christian, 28 years, D/o. Gudapati Gnana Prakasam, R/o. Mandavalli village & Mandal, Kaikaluru J.C.J.C. : Respondent.

Petition filed by the petitioner U/s.10 (1) (x) of Divorce Act praying to pass an order dissolving the marriage between the petitioner and respondent that took place on 12-2-2012 by way of decree of divorce on the ground of desertion and award costs of the petition in the interest of justice.

This petition is coming on this day before me for final hearing in the presence of Sri. S.Balaji Rao, Advocate for petitioner and Sri. D. Narasimharao Advocate for respondent; and upon perusing the petition and other connected material papers on record, this Court made the following:

O R D E R

The petitioner called absent. Petition is accordingly dismissed as per the conditional order dated 19.02.2013.

Pronounced by me in open court, this the 8th day of March, 2013.

I Addl. Dist. & Sessions Judge, Krishna, Machilipatnam.

Appendix of Evidence

−Nil- −

I A.D.J., M.T.M.

THE COURT OF THE I ADDL.DIST. & SESSIONS JUDGE; KRISHNA:

MACHILIPATNAM.

Present:- Sri ALAPATI GIRIDHAR, B.A., LL.B.,

I- Addl. Dist. & Sessions Judge

Friday , this the 8 th day of March, 2013

D.O.P.No.365 of 2011

Between:-

Javadala Yesubhaktueu @ John Wilson, S/o. Yohan, Christian, 32 years, R/o. Chilakalapudi, Machilipatnam, Machilipatnam J.C.J.C. : Petitioner. A N D

Javadala Suneeta, W/o. Yesubhaktueu @ John Wilson, Christian, 28 years, D/o. Gudapati Gnana Prakasam, R/o. Mandavalli village & Mandal, Kaikaluru J.C.J.C. : Respondent.

Petition filed by the petitioner U/s.10 (1) (x) of Divorce Act praying to pass an order dissolving the marriage between the petitioner and respondent that took place on 12-2-2012 by way of decree of divorce on the ground of desertion and award costs of the petition in the interest of justice.

2.Petition presented on : 09-09-2011.

3.This petition is coming on this day before me for final disposal in the presence of Sri. S. Balaji Rao, Advocate for petitioner and Sri. D. Narasimha Rao, Advocate for respondent; and upon perusing the petition and other connected material papers on record and this court doth order and decretal order:

i)that the petition be and the same is hereby dismissed for default; and ii) that there be no order on costs.

Given under my hand and the seal of the court, this the 8th day of March, 2013.

I Addl. Dist. & Sessions Judge, Krishna, Machilipatnam.

Memorandum of Costs.

- Nil -

I. A.D.J., M.T.M.

THE COURT OF THE I ADDL.DIST. & SESSIONS JUDGE; KRISHNA:

MACHILIPATNAM.

Present:- Sri ALAPATI GIRIDHAR, B.A., LL.B.,

I- Addl. Dist. & Sessions Judge

Friday , this the 8 th day of March, 2013

D.O.P.No.365 of 2011

Between:-

Javadala Yesubhaktueu @ John Wilson, S/o. Yohan, Christian, 32 years, R/o. Chilakalapudi, Machilipatnam, Machilipatnam J.C.J.C. : Petitioner. A N D

Javadala Suneeta, W/o. Yesubhaktueu @ John Wilson, Christian, 28 years, D/o. Gudapati Gnana Prakasam, R/o. Mandavalli village & Mandal, Kaikaluru J.C.J.C. : Respondent.

Petition filed by the petitioner U/s.10 (1) (x) of Divorce Act praying to pass an order dissolving the marriage between the petitioner and respondent that took place on 12-2-2012 by way of decree of divorce on the ground of desertion and award costs of the petition in the interest of justice.

This petition is coming on this day before me for final hearing in the presence of Sri. S.Balaji Rao, Advocate for petitioner and Sri. D. Narasimharao Advocate for respondent; and upon perusing the petition and other connected material papers on record, this Court made the following:

O R D E R

The petitioner called absent. Petition is accordingly dismissed as per the conditional order dated 19.02.2013.

Pronounced by me in open court, this the 8th day of March, 2013.

I Addl. Dist. & Sessions Judge, Krishna, Machilipatnam.

Appendix of Evidence

−Nil- −

I A.D.J., M.T.M.

THE COURT OF THE I ADDL.DIST. & SESSIONS JUDGE; KRISHNA:

MACHILIPATNAM.

Present:- Sri ALAPATI GIRIDHAR, B.A., LL.B.,

I- Addl. Dist. & Sessions Judge

Friday , this the 8 th day of March, 2013

D.O.P.No.365 of 2011

Between:-

Javadala Yesubhaktueu @ John Wilson, S/o. Yohan, Christian, 32 years, R/o. Chilakalapudi, Machilipatnam, Machilipatnam J.C.J.C. : Petitioner. A N D

Javadala Suneeta, W/o. Yesubhaktueu @ John Wilson, Christian, 28 years, D/o. Gudapati Gnana Prakasam, R/o. Mandavalli village & Mandal, Kaikaluru J.C.J.C. : Respondent.

Petition filed by the petitioner U/s.10 (1) (x) of Divorce Act praying to pass an order dissolving the marriage between the petitioner and respondent that took place on 12-2-2012 by way of decree of divorce on the ground of desertion and award costs of the petition in the interest of justice.

2.Petition presented on : 09-09-2011.

3.This petition is coming on this day before me for final disposal in the presence of Sri. S. Balaji Rao, Advocate for petitioner and Sri. D. Narasimha Rao, Advocate for respondent; and upon perusing the petition and other connected material papers on record and this court doth order and decretal order:

i)that the petition be and the same is hereby dismissed for default; and ii) that there be no order on costs.

Given under my hand and the seal of the court, this the 8th day of March, 2013.

I Addl. Dist. & Sessions Judge, Krishna, Machilipatnam.

Memorandum of Costs.

- Nil -

I. A.D.J., M.T.M.