Sri A.Hari Haranadha Sarma, B.Sc., B.L.,

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

I ADDL. DISTRICT JUDGE; WEST GODAVARI DISTRICT AT ELURU

PRESENT: - Sri A. Hari Haranatha Sarma,

II ADDL DISTRTICT JUDGE,

FAC: CHAIRMAN UNDER M.V. ACT-CUM-

I ADDL. DISTRICT JUDGE

Thursday, the 13th day of February, 2014

M.V.ORIGINAL PETITION NO.446/2011

BETWEEN:

1.Smt. Goli Sireesha.

2.Master Goli Partha Sarathi Reddy.

3.Master Goli Karthika Reddy.

4.Goli Venkata Reddy.

5.Smt. Goli Laxmi.

…..Petitioners.

(Petitioners 2 & 3 being minors, rep. by their mother and natural guardian 1st Petitioner)

And

1. Kata Ravi Kumar.

2. D. Satya Dhana Laxmi.

3. The Oriental Insurance Company Ltd., rep. by its

Divisional Manager, Vijayawada. ...Respondents.

This Petition coming on 06-01-2014 for final hearing before me in the presence of Sri B.V. Krishna Reddy, Advocate for the Petitioners and of Smt. K.

Kalyani, Advocate for 3rd Respondent and the Respondents 1 and 2 having been called absent and remained exparte, and the matter having stood over till this day for consideration this Tribunal made the following:-

A W A R D

1) Goli Sireesha, 2) Goli Partha Sarathi Reddy, 3) Goli

Karthika Reddy, 4) Goli Venkata Reddy and 5) Goli Laxmi (hereinafter referred to as claimants with respective numbers, wherever necessary), filed the present petitioner under Section 166 of M.V. Act r/w. Rule 455 of M.V. Rules claiming compensation of Rs.9,00,000/- for the 2 death of one Goli Srihari Reddy (hereinafter referred to as deceased) in a motor accident.

2.Case of claimants in brief is that, on 24-08-2010, deceased was proceeding on a Hero Honda Motorcycle bearing No.AP16AC 7242 along with one P. Sateesh for visiting Sri Bharathi School at Santhi Nagar,

Eluru. When they were near Panchayat Office of Vijayarai village on

Chintalapudi to Eluru road at about 1 noon, 1st respondent being driver of a car bearing No.AP16Y 1660 drove the same in a rash and negligent manner and dashed the motorcycle, on which, the petitioner was travelling from opposite direction. As a result of the said accident, deceased received head injury and he was shifted to Government Hospital, Eluru but he died during treatment.

2.1.Petitioners further claimed that the deceased was hale and healthy and aged 35 years as on the date of accident and earning

Rs.9,000/- per month by doing commission agent business and he was contributing entire his income to the petitioners. 1st petitioner is wife; petitioners 2 and 3 are children and petitioners 4 and 5 are parents of the deceased. They lost valuable financial support and love and affection of deceased due to his sudden demise.

2.2. It is further pleaded by the claimants that the accident has occurred owing to the rash and negligent driving of the crime vehicle, i.e., car bearing No.AP16Y 1660 by the 1st respondent and the said car was owned by the 2nd respondent and insured with the 3rd respondent.

Therefore, all the respondents are liable to pay compensation and a case 3 is also registered against the driver of the car vide Cr.No.149/2010 u/s.304(A) I.P.C. by Pedavegi Police.

3.1st and 2nd respondents remained exparte. 3rd respondent filed its written statement disputing the claim of the petitioners contending that the petitioners shall prove the pleaded accident; negligence of the driver of the crime vehicle; death of the deceased due to the accident; age, occupation and income of the deceased and also the dependency of the petitioners on the income of the deceased. It is also claimed by the 3rd respondent that there is possibility of negligence of P. Sateesh, rider of the motorcycle, on which, the deceased was travelling and owner and insurance company of the said motorcycle are also proper and necessary parties and without their presence, the petition is bad for non-joinder of necessary parties.

3.1.It is further claimed by 3rd respondent that the petitioners shall prove the compliance of policy conditions and justify the quantum of compensation claimed by them and in any event, the quantum of compensation claimed by petitioners is excessive and 3rd respondent is not liable to pay any amount.

4.Basing on the pleadings, the following issues were settled for trial:

(1)Whether the accident dated 24-08-2010 occurred due to the rash or negligent driving of car bearing No.AP16Y 1660, by the 1st Respondent?

(2)Whether the deceased and the legal heirs of the deceased are residing within the jurisdiction of this

Tribunal?

4 (3)Whether the petition is bad for non-joinder of proper and necessary parties, i.e., driver, owner and insurer of Hero

Honda Motorcycle bearing No.AP16 AC 7242?

(4)Whether the Petitioners are entitled for compensation?

And if so, for what amount and from which of the

Respondents?

(5)To what relief?

5.During the trial, first claimant was examined as P.W.1. One P.

Sateesh, rider of the motorcycle, on which the deceased was travelling at the time of accident and an eyewitness to the accident was examined as

P.W.2. One Kanamatareddy Chandrasekhara Reddy and Kanamata

Reddy Ajay Kumar Reddy, lessors of the lands cultivated by the deceased are examined as P.Ws.3 and 4. Further, petitioners got attested copies of

Ex.A.1 F.I.R.; Ex.A.2 Inquest report; Ex.A.3 P.M. Certificate and Ex.A.4 charge sheet marked, on their behalf. On behalf of the 3rd respondent, one

T. Ramam, working as Senior Branch Manager of 3rd respondent insurance company was examined as R.W.1 and one R. Vivekananda Swamy, working as Junior Assistant in Deputy Transport Commissioner’s Office,

Eluru was examined as R.W.2 and got Ex.B.1 copy of insurance policy and

Ex.B.2 driving license extract of 1st respondent, marked in its behalf.

Further, 3rd respondent got Ex.X.1 authorization letter authorizing R.W.2 to give evidence, issued by concerned office marked on its behalf.

6.Written arguments are filed on behalf of both, petitioners and 3rd respondents.

7.Argument of the learned counsel for the petitioners is that, the deceased was hale and healthy and the accident was occurred due to sole 5 negligence of 1st respondent. Crime vehicle was driven by 1st respondent, owned by 2nd respondent and insured with 3rd respondent. The 3rd respondent failed to prove violations of conditions of policy. The objection of 3rd respondent insurance company that there is no transport endorsement and the driving license to drive tractor and trailer is not sufficient to drive the crime vehicle, is not tenable and all the respondents are liable to pay the compensation, particularly 3rd respondent cannot escape liability.

8.The substance of argument of the 3rd respondent is that, the petitioners failed to prove the occupation and income of the deceased, the driving license possessed by the 1st respondent is not indicating possessing of valid badge or license to drive the crime vehicle, with the driving license to drive tractor-cum-trailer 1st respondent cannot drive the car and there is delay in registration of F.I.R. The negligence on the part of the 1st respondent is also not proved. Therefore, the 3rd respondent is not liable to pay any compensation.

9.Pleadings of both sides, evidence of P.Ws.1 to 4 and R.Ws.1 and 2; recitals in Exs.A.1 to A.4, Exs.B.1 and B.2 and Ex.X.1 are carefully perused. Points raised in the written arguments filed on behalf of both sides are taken note of. Findings of this court issue wise are as follows:

10.Issue No.1:

Whether the accident dated 24-08-2010 occurred due to the rash or negligent driving of car bearing No.AP16Y 1660, by the 1st

Respondent?

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11.P.W.1, wife of deceased stated about the accident, negligence of the 1st respondent, driver of the crime vehicle, i.e., car bearing

No.AP16Y 1660, but she is not an eyewitness for the accident.

12.P.W.2 P. Sateesh is an eyewitness for the accident.

Deceased was travelling on Hero Honda Motorcycle bearing No.AP16AC 7242 driven by P.W.2 at relevant time. The evidence of P.W.2 is clear and categorical on the point of 1st respondent driving his car in rash and negligent manner and causing the accident by hitting the motorcycle, on which the deceased and P.W.2 were travelling.

13.During cross-examination of P.W.2, except suggesting that

P.W.2 himself was negligent in driving the motorcycle, nothing more was elicited. The answer of P.W.2 that there was a turning at a distance of 50 yards prior to accident spot, found not helpful to believe contribution of negligence by P.W.2.

14.Another competent person to speak about the accident is 1st respondent. He remained exparte. No steps were taken by 3rd respondent to examine 1st respondent. Original of Ex.A.1 F.I.R. was registered against the driver of car, i.e., 1st respondent. Ex.A.2 Inquest report and Ex.A.3 postmortem reports are disclosing the death of deceased due to accident.

Ex.A.4 charge sheet is showing that 1st respondent is shown as accused in it.

15.When the evidence of P.W.2 and conduct of 1st respondent remaining exparte and lapse of 3rd respondent in examining 1st respondent are seen in the light of Exs.A.1 and A.4, it can be safely concluded that the petitioners are able to prove that, the pleaded accident dt.24.08.2010 has 7 occurred owing to rash and negligent driving of car bearing No.AP16Y 1660 by the 1st respondent. Issue No.1 is decided in favour of the petitioners accordingly.

16.ISSUE No.2:

Whether the deceased and the legal heirs of the deceased are residing within the jurisdiction of this Tribunal?

17.There is mistake in framing the issue. The issue out to have been framed as “Whether petitioners are legal heirs of deceased Goli

Srihari Reddy and whether deceased resided and his legal heirs are residing within the jurisdiction of this tribunal”. The parties went on trial with the knowledge of pleas and issue as to legal heir status of petitioners and jurisdiction of tribunal, there for issue No.2 is recasted and reframed as indicated now by invoking Order XIV Rule 5 C.P.C. as there will be no prejudice to both parties. On oath, P.W.1 stated that she is wife; petitioners 2 and 3 are children and petitioners 4 and 5 are parents of the deceased. Inquest report is also disclosing the relationship of 1st and 4th petitioners with the deceased. During cross-examination of P.W.1, nothing was elicited to doubt the relationship of petitioners with the deceased.

Even suggestion theory was not resorted to in disputing the relationship of petitioners with the deceased. Therefore, this court concludes that the petitioners are able to establish their relationship with the deceased that they are the legal heirs of deceased.

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18.Apart from that, there is no denial from the respondents as to the residence of the petitioners or deceased within the jurisdiction of this court. Therefore, this court concludes that the petitioners are legal heirs and residing within the jurisdiction of this court and this court has jurisdiction to try the case. Issue No.2 is accordingly decided in favour of the petitioners.

19.ISSUE No.3:

Whether the petition is bad for non-joinder of proper and necessary parties, i.e., driver, owner and insurer of Hero Honda

Motorcycle bearing No.AP16 AC 7242?

20.Deceased was travelling on Hero Honda Motorcycle bearing

No.AP16AC 7242 driven by P.W.2. The stand of 3rd respondent that the rider of Hero Honda Motorcycle was negligent and responsible for the accident gets squarely answered with the evidence of P.W.2. P.W.2 is the person, who has driven the Hero Honda Motorcycle at relevant time. On oath before the court, he has stated that there was negligence on the part of the driver of the car. Ex.A.1 F.I.R. and Ex.A.4 charge sheet are speaking against the driver of the car. There is no oath against oath at least to infer that there was some negligence on the part of P.W.2 in driving motorcycle. While discussing issue No.1, this court came to conclusion that the petitioners are able to establish the negligence of the driver of the car.

21.When there was no negligence on the part of P.W.2 in riding the Hero Honda Motorcycle, necessity of adding the owner and insurance 9 company of Hero Honda Motorcycle bearing No.AP16AC 7242 does not arise. Therefore, this court finds that the petition is not bad for non-joinder of proper and necessary parties, i.e., the owner and insurance company of

Hero Honda Motorcycle as the rider of motorcycle as taken witness stand as P.W.2. Therefore, issue No.3 is decided in favour of the petitioners concluding that the petition is proper and sustainable.

22.ISSUE No.4:

Whether the Petitioners are entitled for compensation? And if so, for what amount and from which of the Respondents?

23.Petitioners are dependants and legal heirs of deceased.

Deceased died in a motor accident. 1st respondent is responsible for the accident. Car owned by 2nd respondent involved in the accident.

Entitlement of petitioners for compensation is clear, but the other points remained for consideration and determination are what is the liability of respondents and what is the quantum of compensation that can be awarded to the petitioners.

24.LIABILITY:

3rd respondent is disputing its liability on the ground that there was no negligence on the part of the driver of car bearing No.AP16AC 7242 at relevant time. Issue and point relating to negligence of driver of car has already been considered at length under issue No.1 and this court concluded that the accident occurred due to negligence of 1st respondent.

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Therefore, the 3rd respondent cannot avoid its liability on the ground of want of negligence on the part of 1st respondent.

25.The other ground, on which the 3rd respondent disputing its liability is want of proper driving license to the driver of car. For which, the 3rd respondent is relying on the evidence of R.Ws.1 and 2 and Ex.B.2.

Ex.X.1 is the authorization in favour of R.W.2. Ex.B.2 the driving license extract in the name of 1st respondent Katta Ravi Kumar shows that the 1st respondent/driver of the car was authorized to drive tractor and trailer and same license was granted to him on 14.11.2008. Further, the license shows that the 1st respondent is authorized to drive the motorcycle with gear also. Tractor and trailer is a “class” by itself.

26.R.W.2 Junior Assistant working in the office of Deputy

Transport Commissioner, Eluru, stated that with Ex.B.2, the 1st respondent (license holder) cannot drive Light Motor Vehicle and Transport Vehicle.

During cross-examination of R.W.2, it is elicited that unladden weight of the tractor and trailer will be between 3000 Kgs. To 12000 Kgs., depends on the weight mentioned in C-book. He has further stated that the unladden weight of car will be around 500 Kgs. To 3000 Kgs.

27.By referring the unladden weight of vehicles, learned counsel

for the petitioners argued that the unladden weight of car will be below

3000 Kgs., whereas the driving license authorized the 1st respondent to drive a vehicle upto 12000 Kgs. Even a driving license to drive Light Motor

Vehicle will enable a person to drive the vehicle upto the weight of 7500

Kgs. Therefore, the driving license Ex.B.2 can be found sufficient to drive the car.

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28.Learned counsel for the petitioners relied on the observations of the Hon’ble High Court of Andhra Pradesh made in a case between

JAYAPRAKASH AGARWAL AND OTHERS, Vs., MOHD. KALEEMULLA

AND ANOTHER, reported in 2013 ACJ, 145, which was rendered by following SWARAN SINGH’s Case, vide 2004 ACJ, 1 (S.C.). In para-44 of the Judgment, it is observed that, “it is settled Law that burden lies on the insurance company to prove that the insured had violated the terms and conditions of the policy”.

29.In the said Judgment, where the driving license said to have been expired 10 years prior to the date of accident. Possibility of getting the same renewed at other R.T.A. offices and lapse of insurance company discharging its burden was considered. Even lapse of insurance company in not addressing a letter to the owner-cum-driver of the vehicle to produce the original was also considered.

30.It is also observed in para-47 of the Judgment that, “it is for the insurance company to initiate separate proceedings to establish to establish its case that the owner of the vehicle has violated the terms and conditions of the policy and recover the amount from him, if so advised.

Even for the sake of argument, if it is accepted that the insurance company has proved that the owner of the vehicle has violated the terms and conditions of the policy, the guidelines of the Supreme Court in SWARAN

SINGH’s case, 2004 ACJ 1(SC), comes to the rescue of the claimants”.

31.Further, the learned advocate for the petitioners relied on another Judgment rendered by the Hon’ble High Court of Judicature of

Madras, Madhurai Bench, in between BRANCH MANAGER, NEW INDIA 12

ASSURANCE COMPANY LIMITED, Vs., UMALYAKONAR AND

OTHERS reported in 2012 ACJ, 88, wherein at paras-19 to 21 of the

Judgment, it is observed as follows:

“A person possessing driving license to drive LMV can drive tractor and trailer, where the weight of the tractor and trailer was around 4700 Kgs. And 1050 Kgs. Respectively together 5750 Kgs.”

Further in the judgment, it is observed that, “the driving license to drive LMV possessed is sufficient to drive tractor-cum-trailer”.

32.Here this court finds it relevant to note the definition of Light

Motor Vehicle, provided under Motor Vehicles Act, vide Section 2(21), which reads that, “Light Motor Vehicle means transport vehicle or omnibus. The gross vehicle weight of either of which or a motorcar or a tractor or road roller, the unladden weight of any of which does not exceed 7500 Kgs”.

33.A reading of definition of Light Motor Vehicle provided under

Section2(21) of Motor Vehicles Act makes it clear that the tractor is also included within the definition of Light Motor Vehicle.

34.Now, even according to 3rd respondent, the 1st respondent was possessing driving license to drive tractor-cum-trailer, which is one of the categories provided u/s.2(21) of Motor Vehicles Act. Therefore, the driving license covered by Ex.B.2 can be found sufficient to drive the car (crime vehicle) involved in the accident in this case, as the unladden weight of which could be around 2500 K.Gs. according to evidence of R.W.2.

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35.The other part of objection of 3rd respondent is that the vehicle involved in question is a transport one and there is no transport endorsement on Ex.B.2 to 1st respondent. Therefore, there is violation.

36.This riddle can be squarely answered by reffering to the observations of the Hon’ble Apex Court made in SWARAN SINGH’s case 2004 ACJ 1 (SC) and also a recent case in between S. IYYAPAN, Vs.,

UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER,

reported in 2013 ACJ, 1944, wherein the Hon’ble Apex Court in paras-2, 18 and 19, observed after rendering to various Authorities including

Supreme Court Cases, as follows:

“The right of the victim of a road accident to claim compensation is a statutory one. Parliament in its wisdom inserted the relevant provisions in the Motor Vehicles Act in order to protect the victims of road accident travelling in the vehicle or using the road and thereby made it obligator that no motor vehicle shall be used unless the vehicle is compulsorily insured against third party risk. In this background, can an insurance company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the license to drive light motor vehicle used as commercial vehicle? This is the sole question that arises for consideration in this appeal”.

“Reading the provisions of sections 146 and 147 of the

Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer’s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under section 149 of the Motor Vehicles Act, the insurer can defend the action, inter-alia, on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person 14 driving the vehicle was disqualified to hold and obtain a driving license. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving license.

In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy”.

“In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxicab. Merely because the driver did not get any endorsement in the driving licence to drive

Mahindra Maxicab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay the compensation because the driver was not holding the licence to drive a commercial vehicle. The impugned judgment is, therefore, liable to be set aside”.

37.After considering the precedents referred above and after considering the evidence of R.W.2 and entries in Ex.B.2, this court concludes that the 3rd respondent failed to prove that there are violations of conditions of policy and it cannot escape from the liability to pay the compensation on the ground of violation of conditions of policy. Therefore, this court concludes on the point of liability that, 1st respondent is liable as he has caused the accident; 2nd respondent is vicariously liable as he is employer of 1st respondent and as his car involved in the accident and 3rd respondent is liable to pay compensation in view of existence of insurance policy.

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38.The other point remained for consideration and determination is quantum of compensation to which petitioners are entitled and what shall be the share of each claimants.

39.Quantum: For deciding quantum of compensation, principles to be followed are settled by the Hon’ble Apex Court in a case between

Sarala Varma and Others, Vs., Delhi Transport Corporation and Another, reported in 2009 A.C.J., page 1298. In para ‘9’ of the judgment, the

Hon’ble Apex Court mentioned about the modes of calculation of

compensation in a claim basing on death. As per the observations of

Hon’ble Apex Court and as per the settled practice, under first step, the

Tribunal shall ascertain multiplicand by referring to the occupation and income of the deceased. While assessing multiplicand, the court can add possibility of progression in the income and deduct ½ or 1/3 or ¼ or 1/5 of the amount arrived depending upon number of the dependants on the deceased.

40.Upon deciding the multiplicand, under 2nd step, the Tribunal shall select appropriate multiplier by referring to the age of the deceased or claimant depending upon the facts and circumstances of the each case.

Multiplier applicable to the respective age is mentioned under para-19, column No.4 of Sarala Varma’s case. In 3rd steps, the court shall make calculation of loss of income or loss of asset by applying the appropriate multiplier to the multiplicand arrived. Finally, the Tribunal can add a conventional sum up to Rs.10,000/- towards funeral expenditure and also a sum up to Rs.10,000/- towards loss of consortium, if one of claimants is spouse of the deceased.

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41.Multiplicand:

Petitioners claimed that the deceased was working as commission agent and taking the lands on lease and earning Rs.9,000/- per month. The petitioners relied on the evidence of P.Ws.3 and 4.

Ownership of P.Ws.3 and 4 over the lands referred by them is not proved.

Oral evidence alone is available. According to the evidence of P.Ws.3 and 4, the deceased was taking lands on lease. There are clear admissions during evidence that there is no record to show that the name of the deceased was entered in the revenue records as lessee. The oral evidence of P.Ws.3 and 4 is not found sufficient to believe the income of the deceased.

42.However, by considering the age and occupation of deceased, his income can be notionally taken at Rs.5,000/- per month by considering the socio-economic circumstances, cost of living etc. Then, annual income of deceased will comes to Rs.60,000/-. Dependants are 5 in number. 1/4th of the income of the deceased can be deducted towards his personal expenditure. Then, the contribution of income of the deceased to the family can be taken at Rs.45,000/- and the same can be considered as multiplicand.

43.Multiplier:

The age of deceased is mentioned as 35 years. Exs.A.2 inquest report and Ex.A.3 Postmortem reports are confirming the age of the deceased as 35 years. For the age group of 35 years, multiplier provided under Sarala Varma’s case is 16. Hence, the multiplier 16 is adopted without any hesitation.

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44.Calculation:

Multiplicand Rs.45,000/- X multiplier 16 = Rs.7,20,000/-.

Towards loss of consortium to the 1st claimant, an amount of Rs.10,000/- is awarded. Towards funeral expenditure, an amount of Rs.10,000/- is awarded.

45.In view of the discussion made above, total compensation awarded to the claimants under various heads is concluded as follows:

i)Loss of dependency. Rs. 7,20,000-00 ii)Loss of consortium.Rs. 10,000-00 iii)Funeral expenses.Rs. 10,000-00 ---------------------------- Total : Rs. 7,40,000-00 ----------------------------

46.In the light of my discussion made above, issue No.4 is decided in favour of the petitioners concluding that the petitioners are entitled for compensation of Rs.7,40,000/- and 1st respondent is liable in view of causing accident; 2nd respondent is vicariously liable in view of employing the 1st respondent and 3rd respondent is liable in view of insurance policy.

47.Issue No.5: To what relief?

48.Result: Petition is partly allowed awarding compensation of

Rs.7,40,000/- (Rupees Seven Lakhs and Forty Thousand Only) with interest at 7.5% p.a. from the date of petition till the date of deposit or realization.

Apportionment: An amount of Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand Only), total interest and costs are apportioned to the share of 1st claimant (wife of deceased). The said amount shall be 18 inclusive of amount of Rs.10,000/- awarded towards loss of consortium.

An amount of Rs.1,50,000/- (Rupees one Lakh and Fifty Thousand only) each is apportioned to the shares of claimants 2 and 3 (minor sons of deceased). An amount of Rs.1,00,000/- (Rupees One Lakh Only) each is apportioned to the shares of claimants 4 and 5, i.e., father and mother of the deceased.

Disbursement: 1st petitioner is permitted to withdraw Rs.40,000/- (Rupees Forty Thousand Only) total interest and costs leaving

Rs.2,00,000/- (Rupees Two Lakhs Only) to be continued in Fixed Deposit for a period of three years. Total amount of Rs.1,50,000/- (Rupees One

Lakh and Fifty Thousand Only) each apportioned to the shares of claimants 2 and 3 shall be kept in Fixed Deposit till they attain majority.

Claimants 4 and 5 are permitted to withdraw Rs.50,000/- (Rupees Fifty

Thousand Only) each and their remaining amount shall be kept in Fixed

Deposit for a period of three years.

Costs: Proportionate costs are awarded.

Time for deposit: 30 days time is granted for deposit.

Advocate Fee: Advocate fee is fixed at Rs.2,500/- (Rupees Two

Thousand and Five Hundred Only).

Liability: All the respondents are liable, however, 3rd respondent is liable to deposit in view of the insurance policy.

The office is directed to verify with regard to payment of Court Fee and exemption if any sought while filing the petition and supply decree copy to the petitioners after clearance of court fee dues, if any.

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

pronounced by me in open Court, this the 13th day of February,

2014.

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Sd/-A.Hariharanatha Sarma.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioners: For 3rd Respondent:

P.W.1Goli SireeshaR.W.1T. Ramam. P.W.2 Pachigolla Sathish.R.W.2R. Vivekananda Swamy. P.W.3Kanamatareddy Chandrasekhar

Reddy. P.W.4Kanamatareddy Ajay Kumar Reddy.

DOCUMENTS MARKED

For Petitioners:

Ex.A-125.08.2010Attested copy of FIR.

Ex.A-225.08.2010Attested copy inquest Report.

Ex.A-325.08.2010Attested copy of P.M. Certificate.

Ex.A-427.09.2010Attested copy of charge sheet.

For 3rd Respondent:

Ex.B.1/-- True copy of Insurance Policy.

Ex.B.2 14.11.2008 Driving license endorsement extract of R1.

By Witness:

Ex.X-1 05.02.2013 Authorization letter.

Id/-A.H.H.S.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, W.G., ELURU.

PRESENT: Sri A. Hari Haranatha Sarma, II Additional District & Sessions Judge, FAC: I Additional District & Sessions Judge, West Godavari, Eluru.

Friday, the 6th day of June, 2014

CRIMINAL APPEAL NO. 212 of 2012

From what court the appeal is:Principal Assistant Sessions Judge, Eluru.

No. of the case in that court :S.C.No.579/2011

No. of the Criminal Appeal : Crl. Appeal No.212/2012.

Name and Description of the :Vemulapalli Narendra Babu, S/o. Appellant.Kotaiah, M, H, 56 yrs., Cultivation, Appanaveedu village, Pedapadu Mandal (A1).

Name of the Respondent :State rep. by S.H.O., Pedapadu P.S., rep. by its P.P., W.G. Dist., Eluru.

The Sentence and Law under which it was imposed in the Lower Court :

In the result, the A1 is found guilty for the offence under Section 306 I.P.C., and accordingly he is convicted under Section 235 (2) Cr.P.C., and sentenced to undergo R.I. for three years and also sentenced to pay a fine of Rs.2,000/-, IDSI for six months.

Whether confirmed, modi-:REVERSED fied or reversed and if modified the modification In the result, appeal is allowed. The judgment of conviction and sentence dt. 02.07.2012 passed by the learned Principal Assistant Sessions Judge, Eluru, in S.C.579/2011 are set aside. Appellant is not found guilty for the offence u/s.306 of I.P.C., hence, he is acquitted of the said charge. The bail bonds of accused shall stand cancelled after expiry of six months period time contemplated u/s.437(A) Cr.P.C.

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Date of presentation:13-08-2013 Date of filing:24-07-2012 Date of notice issued:26-07-2012 Date of Bail Bond: -- Date of appearance:26.09.2012 Date of hearing:10-04-2014 Date of Judgment :06-06-2014

This Appeal is coming up for hearing before me on 10-04-2014 upon perusing the grounds of appeal and the record of evidence and Sri N.

Murali Gangadhara Rao, Advocate for the appellant and of the Addl.

Public Prosecutor, appearing for the State (Respondent), and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

This appeal is directed against the judgment dt.02.07.2012 passed in S.C.No.579/2011 by the Principal Assistant Sessions Judge,

Eluru, wherein the appellant was convicted for the offence u/s.306 I.P.C.

and sentenced to suffer R.I. for a period of three years and to pay a fine of

Rs.2,000/- and in default of payment of fine, to suffer S.I. for a period of six months.

2.Appellant is A1 in the impugned proceedings before the court below.

3.The State represented by the Sub-Inspector of Police,

Pedapadu Police Station filed charge sheet against Vemulapalli Narendra

Babu/A1 (Appellant) and Vemulapallli Vijayarani/A2 alleging commission of offences punishable u/s.306 I.P.C.

4.The case of prosecution in brief is that Vemulapalli

Satyanarayana Vara Prasad Deceased No.1 (D1) and Vemulapalli Jyothi 3

Deceased No.2 (D2) are man and wife and they are elder brother and sister-in-law of appellant (hereinafter referred as deceased 1 and 2, as they have referred in the impugned proceedings).

4.1.1st deceased sold away his landed property and got some money with him. At that time, appellant in a deceitful manner, availed loan of Rs.6,00,000/- on different dates by executing promissory notes in the name of deceased 1 and 2, but remained unfaithful to his repayment and continued default despite repeated requests, reminders and demands of deceased No.1. At the time of marriage of son of 1st defendant and at the time of 1st deceased purchasing a house also, appellant did not respond to the request for repayment of loan.

4.2.When the matter stood thus, on 23.04.2010 morning, both deceased 1 and 2 went to the house of appellant at Appanaveedu and requested to discharge the loan. Appellant and his wife abused deceased 1 and 2 in filthy language and claimed that they will not repay the loan amount and deceased 1 and 2 can do whatever they want and they have even asked the deceased 1 and 2 “mee chavu meeru chavandi”. Thus, humiliated and abetted deceased 1 and 2 to commit suicide. Whereupon deceased 1 and 2 consumed rat poison in front of the house of the appellant and fell unconscious. Appellant called 108 Ambulance and shifted both deceased 1 and 2 to Government Hospital, Eluru, where doctors declared that the deceased No.1 was brought dead, deceased

No.2 was also succumbed to death on the same day at about 11.50 A.M.

4.3.Further case of prosecution is that at first instance, on receipt of death intimation, case was registered u/s.174 Cr.P.C. Thereafter, on 4 the written report of brother-in-law of 1st defendant, P. Venkata Subba Rao (P.W.1), section of law was altered to 306 I.P.C., examination of scene of offence, verification of belongings of 1st deceased, report of mediators, promissory notes found in the pocket of 1st deceased executed by appellant, and statements of witnesses revealed abetment of suicide of deceased 1 and 2 by the appellant and his wife. Hence, they are charge sheeted.

5.The learned Special Judicial Magistrate of I Class, Excise

Court, Eluru, has taken the case on file for the offence u/s.306 of I.P.C.

and the matter was committed to Court of Sessions in due course in terms of Section 209 Cr.P.C. by the learned Magistrate under P.R.C.No.38/2010 observing that the procedure contemplated in terms of Section 207 Cr.P.C.

as to supply of copies is complied, by mentioning that the case u/s.306

I.P.C. is exclusively triable by the Court of Sessions.

6.The Principal Sessions Judge, Eluru, after numbering the case as S.C.579/2011, made over the same to the court of Principal Assistant

Sessions Judge, for disposal according to law.

7.After appearance of the accused and after hearing the accused and prosecution, learned trial Judge/learned Principal Assistant

Sessions Judge, Eluru, framed charge against the accused 1 and 2 for the

offence u/s.306 I.P.C.

8.During trial before the court below, prosecution has examined 10 witnesses out of 13 cited. P.W.1 is one P. Venkata Subba Rao, viyyanka of 1st defendant stated about the deceased 1 and 2 going to the house of accused on 23.04.2010 to recover the loan amount and about 1st 5 deceased making a phone call to him (P.W.1) as to A1(appellant) declining to pay the amount and about he (P.w.1) receiving information of death of deceased etc., aspects. P.W.2, is one V. Ranga Rao, younger brother of 1st deceased and A1, stated about the loan transaction between 1st deceased and A1 and bout A1 failing to repay the amount and asking deceased to die (mee chavu meeru chavandi). He has also stated about receiving information about the deceased 1 and 2 consuming poisonous substance at the house of accused and accused shifting the deceased to hospital etc. P.W.3 is one V. Rambabu, another brother of deceased. He has also stated about 1st defendant informing about the debt of appellant/A1 and failure of appellant to repay the debt and about appellant informing over phone that deceased 1 and 2 consumed poisonous substance and lying in verandah at his (appellant) house. P.W.4 is one P.

Seshagiri Rao, nephew of 1st deceased stated about the 1st deceased informing debt transaction and failure of appellant repaying the debt and asking deceased to die by uttering “mee chavu meeru chavandi”. P.W.5 is one B. Prasada Rao, a tenant of appellant. He (P.W.5) did not support the prosecution story as to appellant and his wife humiliating the deceased 1 and 2 in his presence. P.W.6 is one K. Venkateswara Rao working as

V.R.O. of Appanaveedu village stated about conducting inquest over the dead bodies of deceased 1 and 2. P.W.7 is one Karri Ramu, V.R.O-II of

Appanaveedu stated about the observation of scene of offence at the house of appellant in his presence. P.W.6 Dr. Ananda Rao, Causality

Surgeon in Government Hospital, stated about conducting autopsy over the dead bodies of deceased 1 and 2. P.W.9 P. Rajesh, Sub-Inspector of 6

Police stated about recording the statement of appellant and statement of other witnesses at Government Hospital and registration of a case u/s.174

Cr.P.C. and subsequent alteration of the same to 306 I.P.C. P.W.10 is

A.S.I. G. Ravi Kumar stated about filing of charge sheet after completion of investigation. Exs.P.1 to P.23 were also marked on behalf of the prosecution.

9.The trial court did not believe the guilt of A2 and her role in abetting commission of suicide by deceased 1 and 2, however believed the guilt of A1/appellant as to humiliating the deceased couple and challenging that they can do whatever they want and asking them to die and sufficiency of the conduct of appellant to consider the same as abetment of suicide by deceased 1 and 2 and convicted Appellant for the offence u/s.306 of I.P.C. and imposed sentence referred above.

10.Aggrieved by the judgment of conviction and also sentence, the present appeal is preferred on the grounds:

1) The trial court failed to appreciate the requirements of Section 306

I.P.C.

2) The trial court failed to consider that there is no proof as to incident of deceased 1 and 2 committing suicide in front of the house of appellant.

3) Trial court erred in making reliance on hearsay evidence of P.Ws.1 to 4 and further failed to note lapses on the prosecution in examining independent witnesses.

4) The trial court erred in relying on the opinion of persons participated in inquest mentioned in Column No.15 without any evidence with regard to the incident of abetment.

7

5) The trial court failed to consider that the availability and seizure of

Photostat copies of promissory notes is not mentioned in the inquest.

6) The trial court ought to have disbelieved the seizure of Exs.P.17 and

P.13 promissory notes in view of the admission of Investigation Officer (P.W.9) that promissory notes were handed over by one of the relatives of the deceased, when P.W.9 was in police station.

7) Demand for repayment of loan amount and non compliance by the accused cannot be found sufficient to believe that the deceased 1 and 2 committed suicide on account of abetment by the accused/appellant and trial court erred in observing that the defence failed to attribute any motive to P.Ws.1 to 4 to speak falsehood against the accused.

8) The trial court ignored the fundamental principle of criminal law that the benefit of doubt should be always given to the accused and prosecution shall establish the guilt beyond doubt.

11.Arguments are advanced by the learned counsel for the appellant reiterating the grounds mentioned in the memorandum of appeal.

Summary of the grounds raised in the memorandum of appeal and in arguments is mentioned above. Learned counsel for the appellant has also relied on some authorities and they will be mentioned below at appropriate stage.

12.Material record, i.e., F.I.R., charge sheet, evidence of prosecution witnesses P.Ws.1 to 10 and recitals in Exs.P.1 to P.23, observations in the impugned judgment, grounds raised in the memorandum of appeal, observations in the authorities cited on behalf of 8 the appellant are carefully perused. Thoughtful consideration is given to the arguments advanced by the appellant.

13.Now, the points that arises for consideration and determination in this Appeal are:

(1) Whether the prosecution has established beyond all reasonable doubt that the deceased 1 and 2 committed suicide on account of abetment by

A1/appellant and the appellant is liable for conviction for the offence u/s.306 I.P.C.?

(2) Whether the impugned judgment of conviction and sentence are sustainable in Law and on facts or whether any interference is necessary? If so, on what grounds and to what extent?

(3) What is the result of the appeal?

14,POINT No.1:

In order to establish the charge u/s.306 I.P.C., i.e., abetment of suicide of deceased 1 and 2 by the appellant, the prosecution shall establish:

1) Suicidal death of deceased 1 and 2;

2) Conduct of appellant abating commission of suicide by deceased

No.1 and No.2.

3) The appellant/A1 intentionally committing such abetment.

15.Nature of death of deceased 1 and 2:

Prosecution case is that the deceased 1 and 2 died by committing suicide. To prove the same, the prosecution relied on the evidence of P.Ws.1 to 5 and P.W.8 Dr. K. Ananda Rao, who conducted

Postmortem examination. Further, the prosecution has also relied on 9 inquest reports Exs.P.3 and P.4 and Exs.P.14 to P.17 postmortem reports and certificates. Exs.P.16 and P.17 are indicating that the death is due to

Phosphate poison. Existence of any other injuries over the dead bodies, is not mentioned either in inquest or in postmortem certificate. None of the prosecution witnesses stated that poison was administered on deceased 1 and 2 by anybody else.

15.2.The prosecution version is that, disgusted with the conduct of appellant in not repaying the loan amount and due to humiliation of accused, deceased 1 and 2 decided to end their life and consumed poison. It is not the case of the appellant that the death of deceased is not suicidal. With the evidence available on record, cause for the death of deceased 1 and 2 can be considered as suicide. But whether the appellant has abetted commission of such suicide or whether there is any other reason for the suicide of deceased Nos.1 and 2 is a matter needs careful consideration.

16.Abetment of appellant in commission of suicide by deceased 1 and 2:

Appellant is the own younger brother of 1st deceased. Age of appellant mentioned in charge sheet is 56 years. Age of 1st deceased mentioned in postmortem report is 60 years. Apart from blood relationship, the pleaded jural relationship between 1st deceased and appellant is that of creditor and debtor. 1) Debtor refusing to repay the loan amount; 2)

Humiliating the creditor and 3) Debtor stating to creditor that amount will not be repaid and creditor may choose his own death, are the causes pleaded by the prosecution for commission of suicide by the creditors 10 (deceased 1 and 2). For appreciating the contention, it is necessary to examine, 1) whether there existed creditor and debtor relationship between the deceased and accused; 2) What was the period of such debtor and creditor relationship and 3) What has happened immediately preceding the death of deceased. For examining these aspects, it is necessary to examine the evidence of prosecution witnesses.

17. P.W.1 P. Venkata Subba Rao, viyyanka of deceased No.1 who lodged Ex.P.1 report stated that, appellant/A1 is the 2nd brother of 1st deceased, deceased persons died on 23.04.2010, 8 years prior to the death, 1st deceased lent an amount of Rs.6,00,000/- to appellant in different spells and obtained promissory notes from appellant, despite repeated demands, repayment was postponed on one pretext or the other by the appellant. Even at the time of marriage of son of 1st deceased, the debt was not repaid. Marriage of daughter of P.W.1 was performed with the son of 1st deceased in the year 2005. In the year 2007 or 2008, at the request of son-in-law of P.W.1, he (P.W.1) accompanied to the house of

A1 for demanding repayment of money, but A1 did not make payment and gave reckless answers. 1st deceased used to inform that accused are harassing him without repaying the amount. On 23.04.2010, he (P.W.1) received phone call at about 9 A.M., from 1st deceased that he (Deceased

No.1) went to the house of appellant for demanding repayment, but appellant refused to make the payment and asked the 1st deceased to do whatever he want. Thereafter, the phone was disconnected and on the same day at about 12 noon, he received information from another younger brother of the appellant that both deceased were admitted in the hospital, 11 whereupon P.W.1 went to hospital and learnt that the deceased died because of poisoning and he has learnt that both deceased died at the house of appellant due to harassment of appellant and on 24.4.2010.

18.During cross-examination, P.W.1 stated that he is a practicing advocate. Appellant is having assets like house and landed property.

Deceased No.1 was having liquid cash. He (P.W.1) is aware that a lender can file a suit against borrower for recovery of money and attach properties. By the date of death of deceased, no legal notice was issued to appellant demanding repayment of money and no suit was filed for recovery of money. Accused 1/appellant and accused No.2 did not attend the marriage of his (P.W.1’s) daughter and he does not know whether most of the relatives of deceased did not attend the marriage, as it was a love marriage. He reached the Government hospital on 23.4.2010 at about 4 or 5 P.M. He has admitted that he stated to police that without making actual payment of money, part payments were endorsed on the promissory notes.

19.P.W.2 brother of 1st deceased and appellant stated that, deceased Nos.1 and 2 died because of poisoning. 8 years prior to death, deceased No.1 lent Rs.6,00,000/- to appellant and the same was informed to him (P.W.2) by deceased No.1 and he (P.W.2) was also informed that the amount was not repaid and appellant stated that he is not in a position to pay the amount and deceased were asked to choose death by uttering “mee chavu meeru chavandi”. Four days prior to death of deceased,

P.W.2 was informed that both the deceased will be going to the house of appellant for demanding repayment and he (deceased No.1) took a 12 decision what to do in the event of non-payment of money. For which he (P.W.2) advised deceased No.1 not to take any hasty decisions. This evidence suggest that deceased No.1 has taken some decision even

before going to the house of Accused.

20.P.W.2 has further stated that on 23.04.2010 at about 9 A.M.

his younger brother Rambabu (P.W.3) informed over phone that he (P.W.3) was informed by appellant (A1) that, deceased and his wife went to the house of appellant and because of the differences they (Deceased

No.1 and No.2) consumed poisonous substance and fell down and they were shifted to Government Hospital, Eluru. Further, he (A1) asked P.W.3 to come to Government Hospital, Eluru. After receiving the said information, P.W.2 along with P.W.3 went to the Government Hospital,

Eluru at about 12.30 or 1 P.M. and found the dead bodies of deceased at mortuary.

21.Here itself this court finds it appropriate to note that as per

P.W.1, at about 9 A.M., deceased No.1 made a phone call to P.W.1, but as per P.W.3 by 9 A.M., the incident of deceased consuming poison and shifting them to hospital was complete. There is glaring inconsistency in the version of P.W.1 and P.W.2.

22. During cross-examination, P.W.2 stated that he did not state

before the police about deceased informing him (P.W.2) that he will go to

the house of appellant along with deceased No.2 for demanding repayment of money and about he (P.W.2) advising deceased No.1 not to take any hasty decisions. This appears to be an improvement during trial.

The omission being minor cannot be considered as a serious one.

13

23. P.W.3 another brother of deceased No.1 and appellant stated that he was informed by deceased that A1 borrowed Rs.6,00,000/- and not repaying the same in spite of demands. 15 days prior to death, deceased

No.1 informed that, appellant is not repaying the amount. On 23.04.2010 at about 10.30 A.M., appellant informed to him (P.W.3) that deceased

Nos.1 and 2 consumed poisonous substance and lying in the verandah of his house and asked him (P.W.3) to come immediately. Then he went to the house and found that accused No.2 was cleaning the verandah with water and informed that the deceased were admitted in hospital. Then, he (P.W.3) rushed to the hospital. There, appellant asked him (P.W.3) to call all the relatives.

24. Here itself this court finds it is pertinent to note that as per the version of P.W.2, P.W.3 informed P.W.2 over phone about the incident and

P.Ws.2 and 3 together went to the Government Hospital, Eluru. But,

P.W.3 is stating different version.

25.During cross-examination, P.W.3 stated that he used to lend money to appellant and appellant was repaying the same promptly and the said transaction continued for 12 years. P.W.3 has admitted certain omissions and improvements from his statement before police to the evidence before court.

26. P.W.4, relative of P.Ws.1 to 3 and deceased and also accused stated that, reason for the death of the deceased couple is A1 evading payment of loan amount and deceased No.1 informed during his life time about appellant borrowing money and not repaying the same and Accused 14 asking the deceased to die (mee chavu meeru chavandi) and amount will not be repaid.

27.P.W.5 a tenant of appellant did not support the prosecution story. Evidence of P.w.6 as to scribing inquest report and evidence of

P.W.7 as to scribing observation report of scene of offence, evidence of

P.W.8 as to postmortem are not of any help to draw any inference as to appellant abetting commission of suicide.

28.P.W.9 is the investigation officer. He has admitted that as per

Ex.P.20, the report of appellant, the scene of offence is at cattle sandy of

Appanaveedu village. Ex.P.20 is the statement given by A,1 recorded by

P.W.9. As per Ex.P.20, appellant/A1 came to know about deceased Nos.1 and 2 vomiting near cattle sandy and lying down in unconscious stage and he got them shifted to Eluru Government Hospital in 108 Ambulance.

29.From the evidence of P.Ws.1 to 4 and other documents,

A1/appellant shifting the deceased Nos.1 and 2 to hospital and informing the other brothers can be believed. Existence of debt or loan transaction between the appellant and deceased No.1 can also be believed. The debt is 6 to 8 years old by the date of incident of suicide. P.W.1 is viyyanka of deceased Nos.1 and 2 and he (P.W.1) is a practicing advocate. P.W.1 is aware of the debt, even during 2007 and once he accompanied deceased while going to the house of appellant for demanding the dues. According to P.W.1, response of appellant was not normal and there was even denial to clear the loan Appellant is having properties, even according to P.W.1.

Except the relationship between deceased and the appellant, nothing would prevent the deceased from resorting to legal remedies for realizing 15 the loan amount. Whether, mere refusal of appellant to clear the loan amount is sufficient to abet the deceased Nos.1 and 2 to commit suicide is a serious question.

30. Here this court finds it appropriate to refer the observations of superior courts made in the following cases.

1) In a case between Mohan Singh and Another, Vs., State of

M.P., reported in 1999 Crl.L.J., 1334, vide para-25, Hon’ble

Apex Court observed that, utterance of words “Mar Sale-ko” may mean both kill him or beat him. In the absence of any specific evidence, the utterance of words does not lead to conclusion that there was intention to kill.

2) In a case between Syam Prahlad Das, Vs., State of M.P. and another, reported in 1995 Supp (3) SCC 438, Hon’ble Apex

Court observed in para-3 that, stating words in casual nature in heat of moment between quarrelling people does not reflect requisite mens rea.

3) In Gayathri Bai, Vs., State of M.P., reported in 1996

Crl.L.J., 894, Hon’ble Apex Court observed in para-1 of the

Judgment that conviction for the offence u/s.306 I.P.C. is not sustainable, merely on the allegation of harassment.

4) In P. Rama Murthy, Vs., Station House Officer, Done Police

Station, Kurnool District, reported in 2002(6) A.L.T., 633,

Hon’ble High Court of A.P., observed while dealing with a

case, where accused failed to pay the amount for the slabs (stones) supplied by the victim and the victim committed 16 suicide being unable to pay debts, held that, there was no intentional aiding or abetting or inducement to commit suicide.

In this case, a reference was made to the observations of

Hon’ble Apex Court and other High Courts, particularly a case

in Alka Grewal, Vs., State of M.P., (2000 Crl.L.J., 672), the woman was held to be not guilty of an offence u/s.306 I.P.C.

for her husband committing suicide after feeling insulted and humiliated due to her immoral conduct. The Court specifically held that though, she may be cause for the suicide of her husband, but she cannot be said to have abetted this suicide.

31.There are no direct witness to speak as to what has transpired between the deceased and appellant on the relevant date. Existence of debt and the conduct of appellant dragging or refusing to repay the debt are 6 to 8 years old. The deceased No.1 had sufficient time to think as to what is proper action, he can take. The pleaded harassment by appellant is non-payment of debt. Whether the deceased were asked to die on the date of suicide is not sure and clear from the evidence. Further, it suggest that earlier the appellant has asked the deceased that they (deceased) can choose death. When the said words were uttered? What was the time gap between uttering of the words and commission of suicide? Whether suicide is the direct consequence of uttering such words? Is not clear from the prosecution evidence. Deceased No.1 and 2 were together. They are aged about 60 years. Except uttering of the words referred above any particular conduct like suggesting modus of death, is not even alleged against the appellant. Then, it will be very difficult and impossible to 17 believe that the words uttered by the appellant alone prompted deceased

Nos.1 and 2 to commit suicide.

32. The observations of the trial court made in para67 of the

Judgment that the evidence of P.W.1 with regard to phone call made by deceased No.1 as to he visiting the house of appellant on the fateful day and informing about altercation are sufficient to invoke Section 32(1) of

Evidence Act and to believe the case of death, found not acceptable.

33.The debtor asking a creditor to do whatever the creditor wants and the debt will not be repaid, cannot be considered as a sufficient circumstance of abetting commission of suicide by creditor. Trial court erred in para-69 of the Judgment while considering the situation of debtor asking creditor to do whatever he wants and die, is sufficient to abet commission of suicide.

34.For all the reasons stated above, this court unhesitantly concludes that the prosecution failed to establish beyond all reasonable doubt that the appellant has abetted commission of suicide by his brother and sister-in-law, deceased Nos.1 and 2 and guilty of the offence u/s.306

I.P.C. Hence, appellant is entitled for benefit of doubt and acquittal.

35. POINT No.2:

In view of the discussion and conclusions drawn under point

No.1 above, this court finds that judgment of conviction and sentence dt.02.07.2012 passed by the learned Principal Assistant Sessions Judge,

Eluru, in S.C.579/2011 are not sustainable in law and on facts and liable to be set aside. Hence, they are set aside.

36.POINT No.3:

18

In the result, appeal is allowed. The judgment of conviction and sentence dt.02.07.2012 passed by the learned Principal Assistant

Sessions Judge, Eluru, in S.C.579/2011 are set aside. Appellant is not

found guilty for the offence u/s.306 of I.P.C., hence, he is acquitted of the said charge. The bail bonds of accused shall stand cancelled after expiry of six months period time contemplated u/s.437(A) Cr.P.C.

Typed to my dictation, corrected and pronounced by me in open court, this the 06th day of June, 2014.

Sd/- A. Hariharanatha Sarma.

II ADDL. DISTRICT & SESSIONS JUDGE,

FAC. I ADDL. DISTRICT & SESSIONS JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side.

Id/-A.H.H.S.

II A.D. &S.J.,

FAC.I A.D. &S.J.,

W.G., ELURU.

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

I ADDL. DISTRICT JUDGE; WEST GODAVARI DISTRICT AT ELURU

PRESENT: - Sri A. Hari Haranatha Sarma,

II ADDL DISTRTICT JUDGE,

FAC: CHAIRMAN UNDER M.V. ACT-CUM-

I ADDL. DISTRICT JUDGE

Friday, the 16th day of May, 2014

M.V.ORIGINAL PETITION NO. 1048/2011

BETWEEN:

Smt. Narukulla Lakshmi Padma.

...Petitioner.

And

1. P. Suresh.

2. T. Venkateswara Rao.

3. M/s.Andhra Pradesh State Road Transport Corporation, rep. by its Managing Director, Hyderabad.

4. The New India Assurance Company Limited, rep. by its Manager, Eluru.

...Respondents.

This Petition coming on 03-04-2014 for final hearing before me in the presence of Sri N. Krishna Murthy, Advocate for the Petitioner and of Sri T.

Ajith Raj, Advocate for the 1st respondent; Sri K. Krishna Rao, Advocate for the 2nd respondent, Sri K. Ramakrishna Rao, Advocate for the 3rd respondent and of

Sri D.Sambasiva Rao, Advocate for the 4th respondent and the matter having stood over till this day for consideration this Tribunal made the following:-

A W A R D

One Narukulla Lakshmi Padma (hereinafter referred to as petitioner), filed the present petition under Section 166 of M.V. Act, 1988 r/w. Rule 455 of M.V. Rules, 1989 claiming compensation of

Rs.10,12,000/- for the injuries sustained by her in a motor accident

2.Case of petitioner in brief is that on 17.06.2011, she along with her husband and 2nd son went to Gudivada on motorcycle bearing 2

NO.AP37BA 5007. After admitting her son in the hostel, she was returning to Sivapuram along with her husband on their motor bike. While they were moving towards Hanuman Junction, one APSRTC Bus bearing No.AP37Y 2967 driven by he 1st respondent came in a rash and negligent manner and dashed the motorcycle, on which the petitioner was travelling as pillion rider, thereby the accident occurred and petitioner sustained severe de- glooving injury on her left leg below the knee up to foot level. Petitioner was immediately taken to Help Hospital, Vijayawada, from there information was sent to III Town P.S., Vijayawada. Thereafter, the same was transferred to I Town P.S., Gudavadi and there, a case in

Cr.No.64/2011 was registered for the offence u/s.337 I.P.C. against the driver of the bus.

2.1.Petitioner further claimed that as the injury was de-glooving, she was given treatment as in-patient, skin grafting was done number of times between 17.06.2011 to 08.08.2011 and she was confined to bed for over a period of 90 days. It is also claimed by the petitioner that prior to accident, she was hale and healthy, besides attending household work, she was assisting her husband in agricultural work and used to maintain cattle in the morning and evening hours. She was even supplying milk of not less than 10 liters of a day on average and she was earning Rs.5,000/- per month and contributing her income to the family.

2.2.Petitioner further claimed that for the treatment, she has spent

Rs.2,10,508/- towards medical expenditure and she became disabled and unable to attend any work. It is further claimed by the petitioner that the accident occurred due to rash and negligent driving of 1st respondent, 2nd respondent is owner of the vehicle, 3rd respondent is operating the vehicle 3 and 4th respondent is the authorized insurer. Therefore, all the respondents are liable to pay compensation of Rs.10,12,000/- claimed by the petitioner which is just and reasonable.

3.1st Respondent filed written statement contending that, age, occupation and income, nature of injuries suffered, disability of the petitioner and loss of income to the petitioner claimed in the petition are all false. It is also claimed by the 1st respondent that there was no negligence on his part and husband of petitioner himself was negligent in driving his motorcycle and petition is bad for non-joinder of owner and insurance company of the motorcycle bearing No.AP37BA 5007, on which the petitioner was travelling.

3.1.It is further claimed by the 1st respondent that hospitalization, treatment undergone, medical expenditure incurred at Rs.2,10,508/- claimed by the petitioner are all incorrect and petitioner shall prove each and every fact.

4.2nd respondent filed written statement contending that petitioner shall prove each and every fact pleaded by her as to her age, occupation, income. negligence of 1st respondent in causing the accident, nature of injuries suffered and treatment undergone by the petitioner, medical expenditure incurred, disability suffered by the petitioner etc.

4.1.It is further claimed by the 2nd respondent that the husband of 1st petitioner himself was negligent in riding the motorcycle and the 1st respondent is having valid driving license and there is valid insurance for the bus and in any event, 2nd respondent is not liable to pay any compensation and compensation claimed by the petitioner is excessive.

4

5.3rd respondent filed written statement contending that the allegations in the petition as to age, occupation and income of petitioner, negligence of 1st respondent in driving the bus, petitioner sustaining injuries in the accident and her hospitalization, incurring of medical expenditure to a tune of Rs.2,10,508/- are all false and petitioner shall prove all the pleas taken by her.

5.1.It is further claimed by the 3rd respondent that 1st respondent is not employed by 3rd respondent and 3rd respondent is not owner of bus bearing No.AP37Y 2967 involved in the accident and the bus was hired for limited purpose by APSRTC. The bus was insured with 4th respondent.

Therefore, no liability can be fastened on 3rd respondent and if at all there is any liability, the 4th respondent is accountable and claim against 3rd respondent is liable to be dismissed.

6.4th respondent filed its written statement contending that the petitioner shall prove her age, occupation, income, negligence of 1st respondent in causing accident, nature of injuries suffered by the petitioner, hospitalization of petitioner and medical expenditure incurred etc., facts. It is further claimed by the 4th respondent that the husband of petitioner alone is responsible for the accident and there was no negligence of whatsoever nature on the part of the 1st respondent. Hence, no liability can be fastened on the respondents. Further, petition is bad for non-joinder of owner and insurance company of motorcycle, on which the petitioner was travelling.

6.1.It is also claimed by the 4th respondent that the bus involved in the accident was hired to APSRTC. If the accident has occurred due to rash and negligent driving of 1st respondent, the driver of bus, whose 5 services were under the control of 3rd respondent, the 3rd respondent alone shall be made liable to pay compensation and claim against 4th respondent is liable to be dismissed.

7.Basing on the pleadings, the following issues were settled for trial:

(1)Whether the accident dt.17.06.2011 occurred due to rash or negligent driving of APSRTC Hire Bus bearing

No.AP37Y 2967 by 1st Respondent?

(2)Whether the accident occurred due to rash and negligent riding of the motorcycle bearing No.AP37BA 5007 by the husband of the petitioner?

(3)Whether the petition is bad for non-joinder of proper and necessary parties, i.e., Driver, owner and insurer of the motorcycle bearing NO.AP37BA 5007?

(4)Whether the petitioner is entitled for compensation? And if so, for what amount and from which of the

Respondents?

(5)To what relief?

8.During the trial, on behalf of the petitioner, the petitioner got herself was examined as P.W.1; examined one Dr. K.V.V. Vara Prasad,

Orthopedic Consultant Surgeon of Help Hospital, Vijayawada as P.W.2; one Narukulla Ajay Babu, husband of petitioner as P.W.3 and one

Narukulla Sankara Rao, as P.W.4 on her behalf. Further, petitioner got

Ex.A.1 attested copy of F.I.R., Ex.A.2 attested copy of hospital intimation to police, Ex.A.3 bills issued by Help Hospital, Ex.A.4 copy of registration certificate of bus, Ex.A.5 copy of driving license of 1st respondent, Ex.A.6 copy of insurance policy, Ex.A.7 copy of household card and Ex.X.1 discharge summary issued by Help Hospital, Vijayawada marked on her 6 behalf. The respondents did not choose to lead any oral evidence and reported that there is no oral evidence on their behalf. It is also represented that there is no dispute about the policy.

9.Extensive arguments are advanced on behalf of both parties.

Written arguments are filed on behalf of petitioner.

10.The argument of counsel for the petitioner is that, the petitioner is the 3rd party. There was no negligence on the part of the petitioner or her husband in occurrence of the accident. There is evidence of the petitioner as P.W.1 and her husband as P.W.3 about the manner in which the accident occurred and also about the negligence of 1st respondent. 1st respondent did not choose to take the witness stand. The medical record filed by the petitioner, i.e., the discharge summary and hospital intimation are clearly disclosing that the injuries are sustained by the petitioner due to road traffic accident. He has further argued that the other documents filed by the petitioner are indicating the petitioners stand as to medical expenditure incurred, her age, occupation and income and also loss of income to her. Therefore, she is entitled for compensation claimed. It is also argued that all the respondents are liable to pay compensation, but they are throwing blame on each other.

11.Learned counsel for the 3rd respondent/APSRTC argued that the vehicle was owned by 2nd respondent and hired to APSRTC. Along with the hiring, the policy also runs with the vehicle and the liability of 4th respondent under policy continues to exists. Merely on the ground of the vehicle being under the custody and control of 3rd respondent, 4th respondent cannot avoid its liability, particularly for the reason, the driver of the vehicle was employed by the owner of the vehicle and the vicarious 7 liability for the act of the driver as the owner continuous with the owner and the obligation of the insurance company to indemnify the owner will not seize, merely because the owner has hired the vehicle to the 3rd respondent.

12.Per contra, the learned counsel for the 4th respondent argued that the bus and the services of the driver will be completely under the control of the 3rd respondent and the owner 2nd respondent will have no say with regard to operation of the vehicle. Hence, the services of driver deemed to be under the control of APSRTC, particularly for the reason that the charges for the using vehicle and services of the driver were paid by

APSRTC. He has further argued that when the APSRTC paid the hiring charges and for the services of the driver and when the 3rd respondent has instructed to driver to run he vehicle in particular route for particular number of trips, exclusive control over the vehicle in question deemed to be with the 3rd respondent APSRTC. Therefore, the 3rd respondent cannot shirk its responsibility.

13.Both counsel for respondents 3 and 4 argued that the petitioner ought to have joined the owner and insurance company of the vehicle, in which, she was travelling as negligence on the part of the rider of motorcycle, i.e., husband of petitioner is also cause for the accident.

14.Perused the pleadings and evidence of P.Ws.1 to 4 and recitals in Exs.A.1 to A.8 documents. Arguments advanced on behalf of both sides are taken in to consideration.

15.Finding of this court issue wise are as follows:

16.Issue No.1:

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1) Whether the accident dt.17.06.2011 occurred due to rash or negligent driving of APSRTC Bus bearing No.AP37Y 2967, by the 1st

Respondent?

17. Ex.A.1 F.I.R. is registered against the driver of RTC bus.

There is no dispute about the involvement of APSRTC bus in the accident.

But the respondents are disputing the negligence of the driver of bus.

18.With regard to negligence, petitioner as P.W.1 categorically stated about the rash and negligent driving of the RTC bus. Except eliciting that there is no divider near the accident spot, nothing creditworthy is made out during the cross-examination of P.W.1 to entertain any doubt as to negligence on the part of the driver of APSRTC bus.

19.P.W.3, husband of petitioner who was driving the motorcycle stated that APSRTC bearing No.AP37Y 2967 came from behind and dashed the motorcycle and the accident has occurred due to rash and negligent driving of the driver of the bus. Even during cross-examination of

P.W.3, except suggesting that the road near the accident spot is not in good condition and it is a single road and two vehicles cannot pass at the time and there will be no possibility to drive the vehicle with speed and that there was negligence on the part of P.W.3, nothing more is elicited.

20.This court finds it relevant and pertinent to note that another proper person to speak about the accident is 1st respondent, but for the reasons best known, he did not take the witness stand. For all the reasons stated above, this court finds that the petitioner is able to prove that the pleaded accident dt.17.06.2011 has occurred due to rash and negligent driving of APSRTC Bus bearing No.AP37Y 2967 by its driver. Issue No.1 is accordingly decided in favour of the petitioner.

9

21.Issue No.2:

Whether the accident occurred due to rash and negligent riding of the motorcycle bearing No.AP37BA 5007 by the husband of the petitioner?

22.A case vide Cr.No.64/2011 was registered against the 1st respondent. P.W.3 husband of petitioner was driving the motorcycle. 1st respondent was driving the bus. The stand of respondents that, there was negligence on the part of the rider of motorcycle bearing No.AP37BA 5007.

Husband of petitioner stated on oath that there was negligence on the part of the 1st respondent. Except the suggestions of respondents during cross- examination of P.Ws.1 and 3, there is no other material to believe or at lease imagine the negligence on the part of P.W.3, husband of petitioner.

There is no oath against oath. Therefore, this court unhesitatingly concludes that the respondents failed to prove that the accident has occurred due to negligent riding of motorcycle bearing No.AP37BA 5007 by the husband of petitioner. Therefore, issue No.2 is decided against the respondents accordingly.

23.Issue No.3:

Whether the petition is bad for non-joinder of proper and necessary parties, i.e., Driver, owner and insurer of the motorcycle bearing

NO.AP37BA 5007?

24. While deciding issue Nos.1 and 2, this court came to conclusion that the negligence of 1st respondent is cause for accident and there is no material to believe any negligence on the part of the husband of 10 petitioner, who was riding the motorcycle bearing No.AP37BA 5007. In view of the findings under issue Nos.1 and 2, this court concludes that the driver, owner and insurance company of motorcycle bearing No.AP37BA 5007 are not necessary parties and the petition is not bad for non-joinder of necessary parties on the ground of not adding the driver, owner and insurance company of motorcycle bearing No.AP37BA 5007 as parties to the petitioner. Issue No.3 is accordingly decided in favour of the petitioner and against the respondents.

25. ISSUE No.4:

Whether the Petitioner is entitled for compensation? And if so, for what amount and from which of the Respondents?

26. Petitioner sustained injuries in the accident. Her entitlement for compensation is quite clear, but the important points remains for consideration and determination are, the quantum of compensation, to which petitioner is entitled and what is the liability of the respondents.

QUANTAM:-

27. Learned counsel for the petitioner argued that in case of housewife, modest estimate about her income should be at Rs.3,000/- per month and Rs.36,000/- per month. Even though, petitioner is a house wife she has own income, petitioner as P.W.1 and another witness resident of the same village, P.W.4 categorically stated about the milk vending business of petitioner and her income. Therefore, her income can be taken as Rs.5,000/- as pleaded/stated by her and total loss of income to her during the period of hospitalization and loss of income to her after discharge in view of her disability shall be considered and she is entitled for the compensation claimed.

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28.In a claim for compensation basing on injuries, the compensation can be awarded under the heads

(i) Pain and suffering.

(ii)Nervous shock and loss of amenities.

(iii)Loss of income during hospitalization (temporary total disability) and loss of income due to permanent disability (permanent total or permanent partial disability).

(iv)Medical expenditure (present and future).

29.For awarding compensation under the head of pain and suffering, nature of injuries are relevant. For awarding compensation under the head of loss of amenities, nervous shock; nature, manner and time of accident, period of hospitalization etc., are relevant factors. For awarding compensation under the head of loss of earning due to hospitalization (temporary total disability, period of hospitalization and bed rest are the relevant factors. For awarding compensation under the head of permanent disability, the evidence as to disability suffered by the petitioner is relevant. For awarding compensation under the medical expenditure, evidence regarding to medical expenditure plays relevant role.

30.P.W.2 Dr. K.V. Varaprasad stated that on 17.06.2011 at about 9 P.M., he examined Narukulla Lakshmi Padma (petitioner) and he noticed the injuries 1)degloving injuries left lower limb, 2) closed head injuries, surgeries were done on 26.6.2011 and 25.07.2011. Petitioner was inpatient and she was discharged on 08.08.2011. Ex.X.1 is the discharge summary. Injuries suffered by the petitioner are grievous in nature. A consolidated bill for an amount of Rs.2,10,507-59 ps. was issued by his 12 hospital (Help Hospital, Vijayawada). He has even stated that the petitioner cannot attend her normal day to day activities, especially during winter. Ex.A.2 is also disclosing the injuries and its nature as grievous.

Ex.A.3 is disclosing that Rs.2,10,507-59 ps. Is the bill of Help Hospital.

31.There is no further evidence placed by petitioner as to percentage of disability being suffered by the petitioner. For want of proper evidence as to extent and percentage of disability, this court finds that no amount can be awarded to the petitioner under the head of loss of income due to permanent disability. But under the other heads, the petitioner is entitled for compensation.

32.The income of petitioner is notionally taken at Rs.3,000/- per month, taking aid of observations of Hon’ble High Court of Andhra Pradesh made in a case between UTLA BRAHMARAMBHA AND OTHERS, Vs.,

BRUNDA SATYANARAYANA AND OTHERS, reported in 2003(2)

An.W.R.139 (D.B.)(A.P.), vide para-11. Although, there is oral evidence of

P.W.4, the same is not found convincing to accept the income of the petitioner at Rs.5,000/- per month.

33.Considering the evidence available on record, for the grievous injuries suffered by the petitioner, Rs.50,000/- is awarded as compensation under the head of pain and suffering. Rs.50,000/- is awarded as compensation under the head of nervous shock, loss of amenities, transportation and attendant charges etc. Period of hospitalization is 17.06.2011 to 08.08.2011. Total loss of income to the petitioner for a period of three month is believed in view of period of hospitalization and bed rest there of etc. Hence, an amount of Rs.10,000/- is awarded as compensation under the head of loss of income during hospitalization.

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34.There is clear evidence as to petitioner spending Rs.2,10,507- 59 ps. Towards the medical expenditure. P.W.3 stated about the necessity of future maintenance of petitioner with regard to using moisturizers for the petitioner on grafting areas etc. Therefore, by considering the evidence under the medical expenditure (present and future), Rs.2,50,000/- is awarded as compensation to the petitioner.

35. In the light of the discussion made above, total compensation awarded to the petitioner under various heads is concluded as follows:

i. Pain and suffering. ..Rs. 50,000-00 ii. Nervous shock, loss of amenities, transportation, attendant charges etc.,..Rs. 50,000-00 iii.Loss of income during period of hospitalization. ..Rs. 10,000-00 iv. Present and Future Medical Expenditure...Rs.2,50,000-00 --------------------- Total: Rs.3,60,000-00 ---------------------

36.With regard to quantum, it is concluded that the petitioner is entitled for compensation of Rs.3,60,000/- with interest at 7.5% per annum from the date of petition till deposit or realization.

37.But the point remains for consideration and determination is what is the liability of the respondents. 1st respondent is the driver of the APSRTC Bus bearing No.AP37Y 2967 and 2nd respondent is the owner. The vehicle was insured with 4th respondent, but hired to 3rd respondent APSRTC. Respondents 3 and 4 throwing burden to pay compensation on each other.

14

LIABULITY:

38.Here this court finds it relevant to refer to the observations of

Hon’ble Apex Court made in a case between UTTAR PRADESH STATE

ROAD TRANSPORT CORPORATION, Vs., KULSUM & OTHERS,

reported in MANU/SC/0846/2011 = 2011 ACJ 2145 = 2011(8) SCC 142,

while considering the point:- “If insured vehicle is plying under an

Agreement of Contract with the Corporation, on the route as per permit

granted in favour of the Corporation, in case of an accident, whether the

Insurance Company would be liable to pay compensation or would it be the

responsibility of the Corporation or the owner?” “After referring to the earlier decision of the Hon’ble Apex

Court made in a case between RAJASTHAN STATE ROAD

TRANSPORT CORPORATION, Vs., KAILASH NATH KOTHARI AND

OTHERS, reported in MANU/SC/0849/1997 = (1997) 7 SCC, 481 and

after considering the points, (1) where the insurance company has

received premium for the period when the vehicle met with

accident, why should it not be made reply to make payment; (2)

there exists no different tariff of premium for vehicle insured,

whether it is run by the owner or by the hirer; (3) there is no

obligation to seek permission of the insurance company before

having a vehicle to corporation and by considering the

observations of the Hon’ble Apex Court made in a case between

UNITED INDIA INSURANCE COMPANY LIMITED, Vs., SANTRO

DEVI AND OTHERS, reported in (2009) 1 SCC 558, that once

certificate of insurance is issued, in Law, the insurance company

is bound to reimburse the owner. Finally, in para-45 of the

Judgment, the Hon’ble Apex Court observed that the Insurance

Company cannot escape its liability of payment of compensation

in 3 rd parties/claimants, particularly, where there is no violation of

condition of policy.”

39.The observations of Hon’ble Apex Court made in a decision referred above are squarely answering point in dispute between 15 respondents 3 and 4 and it is needless to mention that the principle decided by the Hon’ble Apex Court is binding when the proposition of law referred above settled by Hon’ble Apex Court is applied, the 4th respondent insurance company is liable to pay compensation.

40.In view of the discussion made above, point No.4 is decided in favour of the petitioner concluding that she is entitled for compensation of

Rs.3,60,000/- and respondents 1 and 2 are liable in view of tortuous act and vicarious liability and 4th respondent is liable in view of insurance policy and 3rd respondent is not liable to pay any compensation. Issue No.4 is accordingly decided in favour of the petitioner and against the respondents 1, 2 and 4 only.

41.ISSUE No.5: In the result, this petition is partly allowed.

COMPENSATION AWARDED: Rs.3,60,000/- (Rupees Three Lakhs and Sixty Thousand only) with interest at 7.5% p.a. from the date of petition till the date of deposit or realization.

DISBURSEMENT:

Petitioner is permitted to withdraw Rs.1,60,000/-, total interest and costs leaving the balance of Rs.2,00,000/- which shall be kept in fixed deposit in any nationalized bank for a period of three years.

COSTS: Proportionate costs are awarded.

LIABILITY: 1st Respondent is liable in view of negligence; 2nd respondent is vicariously liable, however, Respondent No.4 is liable to pay the compensation in view of insurance policy. Rest of the claim of the petitioner and total claim against respondent No.3 is dismissed without costs.

Advocate fee is fixed at Rs.2,500/-.

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Time for deposit – 30 days.

The decree shall be supplied to petitioner after verification by

Office as to payment of Court fee and exemption, if any, sought at the time of filing of the case and on clearance of Court fee Dues, if any.

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

pronounced by me in open Court, this the 16th day of May, 2014.

Sd/-A. Hariharanatha Sarma.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

P.W.1Narukulla Lakshmi Padma.-None- P.W.2 Dr. G.K.V. Vara Prasad. P.W.3Narukulla Ajay Babu. P.W.4Narukulla Sankara Rao.

DOCUMENTS MARKED

For Petitioner:

Ex.A-118.06.2011Attested copy of FIR.

Ex.A-218.06.2011Photostat copy of wound certificate. Ex.A-3--Discharge summary of Help Hospital, Vijayawada. Ex.A-4--Photostat copy of C-book of the offending vehicle. Ex.A-5--Photostat copy of driving license of 1st respondent. Ex.A-6--Photostat copy of Insurance policy. Ex.A-7--Photostat copy of Household card.

For Respondents: NIL.

By Witness:

Ex.B.1/-- Discharge Summary.

Id/-A.H.H.S.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

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

I ADDL. DISTRICT JUDGE; WEST GODAVARI DISTRICT AT ELURU

PRESENT: - Sri A. Hari Haranatha Sarma,

II ADDL DISTRTICT JUDGE,

FAC: CHAIRMAN UNDER M.V. ACT-CUM-

I ADDL. DISTRICT JUDGE

Wednesday, the 5th day of February, 2014

M.V.ORIGINAL PETITION NO. 911/2012

BETWEEN:

Velagaleti Ramakrishna.

...Petitioner.

And

1. Pammi Syam Paleena.

2. M/s. Royal Sundaram Alliance Insurance Company Ltd., rep. by its Duly Constituted Attorney, Chennai.

...Respondents.

This Petition coming on 30-12-2013 for final hearing before me in the presence of Sri T.V.V. Satyanarayana Swamy, Advocate for the Petitioner and of Sri V. Amar Srinivas, Advocate for the 1st respondent and of Sri T.S.S.N

Reddy, Advocate for the 2nd respondent and the matter having stood over till this day for consideration this Tribunal made the following:-

A W A R D

One Velagaleti Ramakrishna (hereinafter referred to as petitioner), filed the present petition under Section 166 of M.V. Act, 1988 r/w. Rule 455 of M.V. Rules, 1989 claiming compensation of

Rs.10,00,000/- for the injuries sustained by him in a motor accident

2.Case of petitioner in brief is that he is lorry driver by profession. On 13.06.2012 for the purpose of getting the repairs to his lorry bearing No.AP37W 0099, he was present near lorry mechanic shed,

Tanuku road, Tadepaligudem. Since the mechanic instructed the 2 petitioner to bring spare parts required for effecting the repairs, the petitioner went to concerned shop on his Hero Honda Splendor

Motorcycle. When he was crossing Jagadamba hotel center, Eluru road,

Tadepalligudem, at about 6 P..M., one Maruthi Wagon R DUO Car bearing No.AP37BX 7099 came from his behind in a rash and negligent manner without blowing any horn and dashed the motorcycle, on which, the petitioner was travelling. As a result of such hit, the petitioner fell down on road along with his motorcycle and sustained severe injuries on spinal card, fractures and multiple injuries all over the body. Immediately, petitioner was shifted to Prasad Hospitals, Tadepalligudem.

2.1.Petitioner further claimed that he was working as driver of lorry and earning Rs.10,000/- per month in the capacity of driver and as its owner, he was earning Rs.30,000/- per month and his total earnings were

Rs.40,000/- per month and he was contributing the entire income to his family members, who are dependents on his income. Due to the tragic accident referred above, petitioner sustained cervical spine injury, C56 extruded disc with cervical cord compression and he has also sustained multiple injuries on face and all other vital parts of the body.

2.2.Petitioner further claimed that at Prasad Hospital,

Tadepalligudem, he spent an amount of Rs.20,000/-. Thereafter, he was shifted to V.R.L.S. Memorial Neuro Hospital, Vijayawada, where he underwent treatment as inpatient from 13.06.2012 to 23.06.2012. During the course of treatment, petitioner underwent surgery to his spinal cord and spent Rs.2,00,000/- for treatment. Later, petitioner was shifted to Sri

Sai Hospitals, Guntur and he has undergone treatment as inpatient in that hospital from 23.06.2012 to 05.07.2012 by spending Rs.29,500/-. Later, 3 petitioner was shifted to Raghavendra Hospital, Guntur and he was there as inpatient from 20.07.2012 to 01.08.2012 and as per the doctors advise, petitioner has to undergo another operation.

2.3.It is further claimed by the petitioner that he has spent

Rs.2,49,500/- in total and became permanently disabled due to the accident and now he is unfit for driving. He and his family members are exposed to untold misery due to the accident.

2.4.It is further claimed that, the 1st respondent is owner-cum- driver of Maruthi Wagon R DUO Car bearing No.AP37BX 7099 and the same was insured with the 2nd respondent as on the date of accident and the accident occurred due to sole rash and negligent driving of the driver of the car. A case in Cr.No.154/2012 for the offence u/s.338 I.P.C. was registered against the driver of the car. There was no fault of whatsoever nature on the part of the petitioner. Hence, he is entitled for compensation and both respondents are liable to pay the same.

3.1st respondent filed his written statement contending that the petitioner shall prove the pleaded accident, negligence of the 1st respondent, age, occupation and income, ownership over the lorry and disability of the petitioner and also loss of income to the petitioner. It is also claimed by the 1st respondent that he is having valid driving license and the Maruthi Wagon R DUO Car bearing No.AP37BX 7099 was duly insured with the 2nd respondent by the time of accident. The petitioner himself drove his Hero Honda Splendor motorcycle in a rash and negligent manner without following traffic rules and contributed for the accident.

There was no negligence of whatsoever nature on the part of the 1st respondent. It is further claimed by the 1st respondent that the petition is 4 bad for non-joinder of owner, and insurance company of Hero Honda

Splendor motorcycle, on which the petitioner was travelling on the relevant date. If at all, the petitioner has any claim, he can maintain the same against the owner and insurance company of Hero Honda motorcycle and 1st respondent is not responsible in any way.

3.It is further claimed by the 1st respondent that the compensation claimed by the petitioner on various heads is highly exorbitant and under any circumstances, the 1st respondent is not liable to pay any compensation.

4.2nd respondent filed its written statement contending that the allegations made in the petition are not correct and petitioner has to prove the pleaded accident, negligence of the 1st respondent, age, occupation and income, disability if any being suffered by the petitioner. It is further claimed by the 2nd respondent that, the petitioner shall also prove the nature of treatment and expenditure incurred thereon.

4.2.2nd respondent further claimed that the petitioner himself was negligent in driving his Hero Honda Motorcycle and he alone is responsible for the accident and petitioner shall prove the compliance of policy conditions by 1st respondent including valid driving license of R1 to drive the vehicle in question.

5.Basing on the pleadings, the following issues were settled for trial:

(1)Whether the accident occurred due to rash or negligent driving of Maruthi Wagon R DUO Car bearing

No.AP37BX 7099, by the 1st Respondent?

5 (2)Whether the Petitioner is entitled for compensation?

And if so, for what amount and from which of the

Respondents?

(3)To what relief?

6.During the trial, on behalf of the petitioner, the petitioner himself was examined as P.W.1 and examined one Dr. V Naga Sankar as

P.W.2; Dr. Ch.C. Ratna Manmohan as P.W.3; Dr. V Siva Kumar as P.W.4 and Dr. A.V.R. Mohan as P.W.5 and petitioner got Ex.A.1 attested copy of

F.I.R.; Ex.A.2 discharge summary issued by Raghavendra Hospitals,

Guntur; Ex.A.3 attested copy of M.V.I. report; Ex.A4 wound certificate issued by V.R.L.S. Memorial Neuro Hospital, Vijayawada; Ex.A.5 charge sheet; Ex.A.6 driving license and pan card of petitioner; Ex.A.7 disability certificate of petitioner; Ex.A.8 bunch of 93 medical bills; Ex.A.9 certificate of registration of lorry bearing No.AP37W 0099; Ex.A.10 discharge summary issued by Sri Sai Hospitals, Guntur; ExA.11 X-rays copies and

Ex.X.1 case sheet, marked on his behalf. The respondents did not choose to lead any oral evidence, but copy of policy was marked as Ex.B.1.

7.Written arguments were filed on behalf of petitioner and 2nd respondent.

8.The arguments of counsel for the petitioner is that, the petitioner is the sole bread winner for the entire family, due to the tragic accident, petitioner became completely disabled and petitioner has incurred medical expenditure of Rs.2,49,500/-. The disability of petitioner is 90%. The insurance company failed to prove the violations of any kind.

Therefore, the petitioner is entitled for more compensation than what he claimed and petitioner is prepared to pay the additional court fee.

6

9.The learned advocate for the petitioner relied on the following cases:

1) G. Ravindranath @ R. Chowdary, Vs., E. Srinivas and another, reported in 2013(6) ALD, 79 (SC) for considering the various heads, under which compensation can be awarded in a claim for compensation, in case of personal injuries.

2) R. Venkata Ramana and another, Vs., United India Insurance

Company Limited and Others, reported in 2013 ACJ 2641 for considering the gravity of injury quadriplegia, where there was loss of all functions of four limbs despite undergoing tracheotomy and other surgeries and where the injured can move only on a wheel chair.

3) National Insurance Company Limited, Vs, Banda Ashok and

Another, reported in 2012 ACJ 900, rendered by the Hon’ble High Court of Andhra Pradesh for the proposition of Law, where Workmen was unable to walk and squat and where there was no possibility of driving a vehicle in future, his disability can be taken at 100%.

4) Minu Rout and Another, Vs., Satya Pradyumna Mohapatra and

Others, reported in 2013 ACJ 2544, for the proposition of Law as to adding 30% to the proved income towards the future prospects and possibility of progression in the income

5) Laxman, Vs., Divisional Manager, Oriental Insurance Company

Limited and Another, reported in 2012 ACJ 191, rendered by the Hon’ble

Apex Court for the proposition of Law that there is no bar in Motor Vehicles

Act for awarding more compensation than what claimed in appropriate cases.

7

10.The learned counsel for the petitioner has also relied on the

G.O. issued by the Government of Andhra Pradesh for the purpose of taking the basic wage at Rs.6,067-25 ps., for a heavy vehicle driver as the minimum wage.

11.Arguments for the 2nd respondent insurance company is that, negligence on the part of the petitioner cannot be ignored. Petitioner failed to prove the negligence of 1st respondent and occupation and income of petitioner and the medical record produced by the petitioner is a created one. The evidence of doctors is aimed to help petitioner on sympathetic basis and the petitioner is not entitled for any compensation and in any event, the quantum of compensation claimed is excessive and 2nd respondent is not liable to pay any compensation.

12.Pleadings of both sides, evidence adduced, i.e., oral evidence of P.Ws.1 to 5, recitals in documents Exs.A.1 to A.11, Ex.X.1 case sheet and Ex.B.1 insurance policy are all carefully perused. Thoughtful consideration is given to the arguments advanced on behalf of both sides.

13.Finding of this court issue wise are as follows:

14. Issue No.1:

1) Whether the accident occurred due to the rash or negligent driving of Maruthi Wagon R DUO Car bearing No.AP37BX 7099, by the 1st

Respondent?

15. Petitioner as P.W.1 categorically stated that on 13.06.2012, when he was travelling on his motorcycle near Jagadamba Hotel Center on Eluru road, Tadepalligudem, West Godavari District, at about 6 P.M., one Maruthi Wagon R DUO Car bearing No.AP37BX 7099 came from behind in a rash and negligent manner and dashed his motorcycle, as a 8 result of which, he fell down on road along with his motorcycle and sustained bleeding injuries.

16.During cross-examination, except suggesting that the accident occurred due to negligence of the petitioner, nothing more is elicited.

P.W.1 is the witness for the accident. 1st respondent, who drove the crime vehicle did not choose to take the witness stand. 2nd respondent insurance company also did not evince any interest to examine any other witness to discredit the testimony of P.W.1 with regard to nature of accident and negligence on the part of the driver of the car.

17.Ex.A.1 F.I.R. was registered against the driver of the car.

Ex.A.3 M.V.I. report is indicating the involvement of the car owned by 1st respondent. Ex.A.5 charge sheet was laid against the 1st respondent who was driving the crime vehicle, i.e., Maruthi Wagon R DUO Car bearing

No.AP37BX 7099 at relevant time. With the evidence of P.W.1 and recitals in Exs.A.1, A.3 and A.5 and by taking the conduct of 1st respondent remaining absent from taking witness stand and by considering the lapse of 2nd respondent in adducing any evidence, this court finds that the petitioner is able to prove that, the pleaded accident has occurred due to rash and negligent driving of Maruthi Wagon R DUO Car bearing

No.AP37BX 7099 by 1st respondent. Issue No.1 is accordingly decided in favour of the petitioner.

18. Issue No.2:

Whether the Petitioner is entitled for compensation? And if so, for what amount and from which of the Respondents?

19.Petitioner sustained injuries in the motor vehicle accident.

There is no evidence to believe that there was either negligence or 9 contributory negligence on the part of the petitioner. On the contrary, there is positive evidence placed by petitioner to show that the 1st respondent, the driver of Maruthi Wagon R DUO Car bearing No.AP37BX 7099 was negligent in driving the car and responsible for the accident.

Violations of conditions of policy are neither pleaded nor established.

Policy Ex.B.1 was in force from 18.02.2012 to 17.02.2013. The accident has occurred on 13.06.2012. So, it can be safely taken that the policy

Ex.B.1 was in force as on the date of accident. The only irresistible conclusion possible is that the 1st respondent is liable in view of the negligence and 2nd respondent is liable in view of policy Ex.B.1 as the fact situation is that, the petitioner suffered injuries in the accident caused by 1st respondent using the motor vehicle, i.e., Maruthi Wagon R DUO Car bearing No.AP37BX 7099 owned by 1st respondent and insured with 2nd respondent.

20.The only point remains for consideration and determination is quantum of compensation to which the petitioner is entitled.

21.As per the observations of the Hon’ble Apex Court in G.

Ravindranath @ R. Chowdary, Vs., E. Srinivas and another, reported in 2013(6) ALD, 79 (SC) referred above, compensation in case of personal injuries can be awarded under the following heads:

(A) Pecuniary Damages (Special Damages).

(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.

(ii)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the 10 period of treatment and (b) Loss of future earnings on account of permanent disability.

(iii)Future medical expenses.

(B) Non-pecuniary damages (General Damages).

(iv)Damages for pain, suffering and trauma as a consequence of the injuries.

(v)Loss of amenities ( and/or loss of prospects of marriage).

(vi)Loss of expectation of life (shortening of normal longevity).

22.(i) Expenses relating to treatment, hospitalization,

medicines, transportation, nourishing food and miscellaneous

expenditure.

23.Petitioner as P.W.1 stated that he has incurred an expenditure of Rs.2,49,500/- towards medicines. Ex.A8 are original medical bills (93 numbers) issued by Raghavendra Hospitals, Guntur; V.R.L.S. Memorial

Neuro Hospitals, Vijayawada and Sai Hospitals, Guntur, standing for

Rs.1,88,896/- (as per summary submitted by the petitioner). There is clear evidence that petitioner was treated in three hospitals.

24.P.W.2 Dr. Naga Sankar stated that on 20.07.2012, petitioner was joined in his hospital and the petitioner was discharged on 01.08.2012. During cross-examination, P.W.2 stated that the medical bills covered on Ex.A.8 are not excessive.P.W..4 Dr. Siva Kumar stated that he is a Consultant Neuro Surgeon and petitioner was admitted in his hospital on 13.06.2012. P.W.5 Dr. A.V.R. Mohan stated that he is a Civil Assistant

Surgeon and he has examined the petitioner on 04.07.2013.

25.When the total evidence is seen, shifting petitioner to V.R.L.S.

Memorial Hospitals, Vijayawada; Sri Sai Hospitals, Guntur; Prasad 11

Hospitals, Tadepalligudem and Raghavendra Hospitals, Guntur can be believed. During chief-examination itself, petitioner as P.W.1 stated that besides the amount paid by the Government under Rajiv Arogya Sri

Scheme, he has incurred an expenditure of Rs.2,49,500/-.

26.It is settled proposition of Law for awarding compensation and special damages, there shall be clear evidence. As per Ex.A.8, the amount covered is Rs.1,88,896/-. However, by considering the surrounding circumstances and nature of treatment etc., under the present head, an amount of Rs.2,00,000/- awarded to the petitioner as compensation.

27.(ii) Loss of earnings (and other gains) which the injured

would have made had he not been injured, comprising: (a) Loss of

earning during the period of treatment:

Petitioner claimed that he was earning Rs10,000/- per month by way of working as driver and Rs.30,000/- by way of leasing out the lorry. Income on the lorry may not get diminished. For the purpose of believing the income of the petitioner, the petitioner relied on the Minimum

Wages G.O. issued by the Government of Andhra Pradesh. As per

G.O.Ms.No.83, dt.22.112006, the minimum wages payable is fixed at

Rs.4,319/-. To the said amount, D.A. is added at Rs.1,748/-, the total is

Rs.6,067/-.

28.By considering the G.O. and certificate issued by the Assistant

Commissioner of Labour, the income of the petitioner is accepted at

Rs.6,000/- per month. Accident occurred in the month of June, 2012.

According to the evidence, the petitioner was in hospital till August, 2012.

The evidence of the petitioner that his disability is total, although it is 12 mentioned as 90% in the disability certificate. The period of three months can be taken for awarding compensation under the head of loss of income during hospitalization period hence under the said head, an amount of

Rs20,000/- can be awarded to the petitioner towards loss of earnings during the period of treatment.

29.(b) Loss of future earnings on account of permanent disability:

Petitioner as P.W.1 has categorically stated that he is unable to do any work and he became totally disabled. P.W.2 Dr. V. Naga Sankar also stated that the petitioner cannot sit or walk by himself due to weakness of hands and legs and petitioner cannot carry his regular profession, i.e., driving. P.W.4 also confirmed the same. P.W.5 Dr.

A.V.R.Mohan, Civil Assistant Surgeon and member of Medical Board,

West Godavari District, Eluru has stated that the disability certificate is issued to the petitioner assessing the disability at 90%. Ex.A.7 is the disability certificate issued by the Medical Board, wherein the disability is shown at 90% and the same is permanent in nature. By taking the same into consideration, the loss of income to the petitioner can be taken at 100% since with 90% disability, he cannot do the driving work. Therefore, loss of income to the petitioner can be taken at Rs.6,000/- per month, which will comes to Rs.72,000/- per annum.

30.Petitioner is aged 52 years as per the petition and his date of birth is shown as 08.07.1961 in the notarized pan card. But, in the disability certificate, his age is shown as 50. By considering the variations in the different documents, the age of petitioner can be taken as 55 years.

For the age group of around 55 years, the multiplier provided under the 13

Motor Vehicles Act is 8. Hence, the same is applied. 1st the loss of income of Rs.72,000/- is multiplied with 8, total loss of income to the petitioner under the head of permanent disability will comes to Rs.5,76,000/-.

Hence, the same is awarded to the petitioner as compensation under the head of permanent disability.

31.(iii) Future medical expenses:

There is no specific evidence quantifying the future medical necessities of the petitioner. However, the doctors stated that the petitioner will require further treatment. Upon considering the total evidence available on record, an amount of Rs.50,000/- is awarded to the petitioner under the head of future medical needs.

32.(iv) Damages for pain, suffering and trauma as a consequence of the injuries:

Petitioner undergone surgeries and petitioner was under treatment for a period of around two months and he was shifted to several hospitals. His four limbs were said to be unfunctional at the time of examination of doctors. Wound certificate Ex.A.4 is reflecting that the petitioner has sustained cervical spine injuries, C56 extruded disc with cervical cord compression. The opinion is that wounds are grievous in nature Upon considering the nature of injuries, period of treatment,

Rs.75,000/- is awarded notionally to the petitioner under the head of pain and suffering.

33.(v) Loss of amenities ( and/or loss of prospects of marriage):

Petitioner requires the attendance of somebody since his disability is 90%. Therefore, under the head of loss of amenities, an 14 amount of Rs.25,000/- is awarded notionally to the petitioner as compensation.

34.(vi) Loss of expectation of life (shortening of normal longevity):

There is no specific evidence to show that to what extent, the life expectation has been decreased in case of petitioner. However, by considering the nature of injuries and the disability certificate issued by the

Doctor, under this head, an amount of Rs.50,000/- is awarded to the petitioner as compensation.

35.In the light of the discussion made and conclusions drawn above, total amount awarded to the petitioner under various heads is concluded as follows:

i. Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure...Rs.2,00,000-00 ii (a)Loss of earnings during hospitalization...Rs. 20,000-00 ii (b)Loss of earnings due to permanent disability. ..Rs.5,76,000-00 iii. Future medical expenses...Rs. 50,000-00 iv. Damages for pain, suffering and trauma as a consequence of the injuries...Rs. 75,000-00 v. Loss of amenities...Rs. 25,000-00 vi. Loss of expectation of life...Rs. 50,000-00 --------------------- Total: Rs.9,96,000-00 ---------------------

36.For the reasons stated above, issue No.2 is decided in favour of the petitioner concluding that the petitioner is entitled for compensation of Rs.9,96,000/- and both the respondents are liable to 15 pay the same, however, 2nd respondent is liable in view of the insurance policy.

37.ISSUE No.3: In the result, this petition is partly allowed.

COMPENSATION AWARDED: Rs.9,96,000/- (Rupees Nine Lakhs and Ninety-six Thousand only) with interest at 7.5% p.a. from the date of petition till deposit or realization.

DISBURSEMENT:

By considering the medical expenditure incurred and necessity of future medical expenses, petitioner is permitted to withdraw

Rs.4,96,000/-, total interest and costs interest leaving the balance of

Rs.5,00,000/- which shall be kept in fixed deposit in any nationalized bank for a period of three years.

COSTS: Proportionate costs are awarded.

LIABILITY: Respondent Nos.1 and 2 are liable, however, Respondent

No.2 is liable to pay the compensation in view of insurance policy.

Advocate fee is fixed at Rs.2,500/-.

Time for deposit – 30 days.

Rest of the claim of the petitioner is dismissed without costs.

The decree shall be supplied to petitioner after verification by

Office as to payment of Court fee and exemption, if any, sought at the time of filing of the case and on clearance of Court fee Dues, if any.

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

pronounced by me in open Court, this the 5th day of February, 2014.

Sd/-A. Hariharanatha Sarma.

16

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

P.W.1Velagaleti Ramakrishna.-None- P.W.2 Dr. V. Naga Sankar. P.W.3Dr. Ch.C. Ratna Manmohan. P.W.4Dr. V. Siva Kumar. P.W.5Dr. A.V.R. Mohan.

DOCUMENTS MARKED

For Petitioner:

Ex.A-117.06.2012Attested copy of FIR.

Ex.A-2--Discharge Summary issued by Raghavendra Hospitals, Guntur.

Ex.A-319.06.2012Attested copy of M.V.I. report.

Ex.A-408.11.2012Attested copy of Wound Certificates issued by VRLS Memorial Neuro Hospital, Vijayawada. Ex.A-5--Attested copy of charge sheet. Ex.A-6--Notarized copy of driving license and Pan Card.

Ex.A-704.07.2013Disability certificate issued by Medical Board, W.G. District, Eluru.

Ex.A-8--Bunch of 93 medical bills. Ex.A-9--Notarized copy of Certificate of Registration. Ex.A-1005.07.2012Discharge summary issued by Sai Hospitals, Guntur. Ex.A-11--Bunch of X-rays (2 in number).

For Respondents:

Ex.B.1/--Copy of Insurance Policy.

For Respondents:

Ex.X.1/--Case sheet.

Id/-.A.H.H.S.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

17

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

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

I ADDL. DISTRICT JUDGE; WEST GODAVARI DISTRICT AT ELURU

PRESENT: - Sri A. Hari Haranatha Sarma,

II ADDL DISTRTICT JUDGE,

FAC: CHAIRMAN UNDER M.V. ACT-CUM-

I ADDL. DISTRICT JUDGE

Wednesday, the 5th day of February, 2014

M.V.ORIGINAL PETITION NO. 911/2012

BETWEEN:

Velagaleti Ramakrishna.

...Petitioner.

And

1. Pammi Syam Paleena.

2. M/s. Royal Sundaram Alliance Insurance Company Ltd., rep. by its Duly Constituted Attorney, Chennai.

...Respondents.

This Petition coming on 30-12-2013 for final hearing before me in the presence of Sri T.V.V. Satyanarayana Swamy, Advocate for the Petitioner and of Sri V. Amar Srinivas, Advocate for the 1st respondent and of Sri T.S.S.N

Reddy, Advocate for the 2nd respondent and the matter having stood over till this day for consideration this Tribunal made the following:-

A W A R D

One Velagaleti Ramakrishna (hereinafter referred to as petitioner), filed the present petition under Section 166 of M.V. Act, 1988 r/w. Rule 455 of M.V. Rules, 1989 claiming compensation of

Rs.10,00,000/- for the injuries sustained by him in a motor accident

2.Case of petitioner in brief is that he is lorry driver by profession. On 13.06.2012 for the purpose of getting the repairs to his lorry bearing No.AP37W 0099, he was present near lorry mechanic shed,

Tanuku road, Tadepaligudem. Since the mechanic instructed the 2 petitioner to bring spare parts required for effecting the repairs, the petitioner went to concerned shop on his Hero Honda Splendor

Motorcycle. When he was crossing Jagadamba hotel center, Eluru road,

Tadepalligudem, at about 6 P..M., one Maruthi Wagon R DUO Car bearing No.AP37BX 7099 came from his behind in a rash and negligent manner without blowing any horn and dashed the motorcycle, on which, the petitioner was travelling. As a result of such hit, the petitioner fell down on road along with his motorcycle and sustained severe injuries on spinal card, fractures and multiple injuries all over the body. Immediately, petitioner was shifted to Prasad Hospitals, Tadepalligudem.

2.1.Petitioner further claimed that he was working as driver of lorry and earning Rs.10,000/- per month in the capacity of driver and as its owner, he was earning Rs.30,000/- per month and his total earnings were

Rs.40,000/- per month and he was contributing the entire income to his family members, who are dependents on his income. Due to the tragic accident referred above, petitioner sustained cervical spine injury, C56 extruded disc with cervical cord compression and he has also sustained multiple injuries on face and all other vital parts of the body.

2.2.Petitioner further claimed that at Prasad Hospital,

Tadepalligudem, he spent an amount of Rs.20,000/-. Thereafter, he was shifted to V.R.L.S. Memorial Neuro Hospital, Vijayawada, where he underwent treatment as inpatient from 13.06.2012 to 23.06.2012. During the course of treatment, petitioner underwent surgery to his spinal cord and spent Rs.2,00,000/- for treatment. Later, petitioner was shifted to Sri

Sai Hospitals, Guntur and he has undergone treatment as inpatient in that hospital from 23.06.2012 to 05.07.2012 by spending Rs.29,500/-. Later, 3 petitioner was shifted to Raghavendra Hospital, Guntur and he was there as inpatient from 20.07.2012 to 01.08.2012 and as per the doctors advise, petitioner has to undergo another operation.

2.3.It is further claimed by the petitioner that he has spent

Rs.2,49,500/- in total and became permanently disabled due to the accident and now he is unfit for driving. He and his family members are exposed to untold misery due to the accident.

2.4.It is further claimed that, the 1st respondent is owner-cum- driver of Maruthi Wagon R DUO Car bearing No.AP37BX 7099 and the same was insured with the 2nd respondent as on the date of accident and the accident occurred due to sole rash and negligent driving of the driver of the car. A case in Cr.No.154/2012 for the offence u/s.338 I.P.C. was registered against the driver of the car. There was no fault of whatsoever nature on the part of the petitioner. Hence, he is entitled for compensation and both respondents are liable to pay the same.

3.1st respondent filed his written statement contending that the petitioner shall prove the pleaded accident, negligence of the 1st respondent, age, occupation and income, ownership over the lorry and disability of the petitioner and also loss of income to the petitioner. It is also claimed by the 1st respondent that he is having valid driving license and the Maruthi Wagon R DUO Car bearing No.AP37BX 7099 was duly insured with the 2nd respondent by the time of accident. The petitioner himself drove his Hero Honda Splendor motorcycle in a rash and negligent manner without following traffic rules and contributed for the accident.

There was no negligence of whatsoever nature on the part of the 1st respondent. It is further claimed by the 1st respondent that the petition is 4 bad for non-joinder of owner, and insurance company of Hero Honda

Splendor motorcycle, on which the petitioner was travelling on the relevant date. If at all, the petitioner has any claim, he can maintain the same against the owner and insurance company of Hero Honda motorcycle and 1st respondent is not responsible in any way.

3.It is further claimed by the 1st respondent that the compensation claimed by the petitioner on various heads is highly exorbitant and under any circumstances, the 1st respondent is not liable to pay any compensation.

4.2nd respondent filed its written statement contending that the allegations made in the petition are not correct and petitioner has to prove the pleaded accident, negligence of the 1st respondent, age, occupation and income, disability if any being suffered by the petitioner. It is further claimed by the 2nd respondent that, the petitioner shall also prove the nature of treatment and expenditure incurred thereon.

4.2.2nd respondent further claimed that the petitioner himself was negligent in driving his Hero Honda Motorcycle and he alone is responsible for the accident and petitioner shall prove the compliance of policy conditions by 1st respondent including valid driving license of R1 to drive the vehicle in question.

5.Basing on the pleadings, the following issues were settled for trial:

(1)Whether the accident occurred due to rash or negligent driving of Maruthi Wagon R DUO Car bearing

No.AP37BX 7099, by the 1st Respondent?

5 (2)Whether the Petitioner is entitled for compensation?

And if so, for what amount and from which of the

Respondents?

(3)To what relief?

6.During the trial, on behalf of the petitioner, the petitioner himself was examined as P.W.1 and examined one Dr. V Naga Sankar as

P.W.2; Dr. Ch.C. Ratna Manmohan as P.W.3; Dr. V Siva Kumar as P.W.4 and Dr. A.V.R. Mohan as P.W.5 and petitioner got Ex.A.1 attested copy of

F.I.R.; Ex.A.2 discharge summary issued by Raghavendra Hospitals,

Guntur; Ex.A.3 attested copy of M.V.I. report; Ex.A4 wound certificate issued by V.R.L.S. Memorial Neuro Hospital, Vijayawada; Ex.A.5 charge sheet; Ex.A.6 driving license and pan card of petitioner; Ex.A.7 disability certificate of petitioner; Ex.A.8 bunch of 93 medical bills; Ex.A.9 certificate of registration of lorry bearing No.AP37W 0099; Ex.A.10 discharge summary issued by Sri Sai Hospitals, Guntur; ExA.11 X-rays copies and

Ex.X.1 case sheet, marked on his behalf. The respondents did not choose to lead any oral evidence, but copy of policy was marked as Ex.B.1.

7.Written arguments were filed on behalf of petitioner and 2nd respondent.

8.The arguments of counsel for the petitioner is that, the petitioner is the sole bread winner for the entire family, due to the tragic accident, petitioner became completely disabled and petitioner has incurred medical expenditure of Rs.2,49,500/-. The disability of petitioner is 90%. The insurance company failed to prove the violations of any kind.

Therefore, the petitioner is entitled for more compensation than what he claimed and petitioner is prepared to pay the additional court fee.

6

9.The learned advocate for the petitioner relied on the following cases:

1) G. Ravindranath @ R. Chowdary, Vs., E. Srinivas and another, reported in 2013(6) ALD, 79 (SC) for considering the various heads, under which compensation can be awarded in a claim for compensation, in case of personal injuries.

2) R. Venkata Ramana and another, Vs., United India Insurance

Company Limited and Others, reported in 2013 ACJ 2641 for considering the gravity of injury quadriplegia, where there was loss of all functions of four limbs despite undergoing tracheotomy and other surgeries and where the injured can move only on a wheel chair.

3) National Insurance Company Limited, Vs, Banda Ashok and

Another, reported in 2012 ACJ 900, rendered by the Hon’ble High Court of Andhra Pradesh for the proposition of Law, where Workmen was unable to walk and squat and where there was no possibility of driving a vehicle in future, his disability can be taken at 100%.

4) Minu Rout and Another, Vs., Satya Pradyumna Mohapatra and

Others, reported in 2013 ACJ 2544, for the proposition of Law as to adding 30% to the proved income towards the future prospects and possibility of progression in the income

5) Laxman, Vs., Divisional Manager, Oriental Insurance Company

Limited and Another, reported in 2012 ACJ 191, rendered by the Hon’ble

Apex Court for the proposition of Law that there is no bar in Motor Vehicles

Act for awarding more compensation than what claimed in appropriate cases.

7

10.The learned counsel for the petitioner has also relied on the

G.O. issued by the Government of Andhra Pradesh for the purpose of taking the basic wage at Rs.6,067-25 ps., for a heavy vehicle driver as the minimum wage.

11.Arguments for the 2nd respondent insurance company is that, negligence on the part of the petitioner cannot be ignored. Petitioner failed to prove the negligence of 1st respondent and occupation and income of petitioner and the medical record produced by the petitioner is a created one. The evidence of doctors is aimed to help petitioner on sympathetic basis and the petitioner is not entitled for any compensation and in any event, the quantum of compensation claimed is excessive and 2nd respondent is not liable to pay any compensation.

12.Pleadings of both sides, evidence adduced, i.e., oral evidence of P.Ws.1 to 5, recitals in documents Exs.A.1 to A.11, Ex.X.1 case sheet and Ex.B.1 insurance policy are all carefully perused. Thoughtful consideration is given to the arguments advanced on behalf of both sides.

13.Finding of this court issue wise are as follows:

14. Issue No.1:

1) Whether the accident occurred due to the rash or negligent driving of Maruthi Wagon R DUO Car bearing No.AP37BX 7099, by the 1st

Respondent?

15. Petitioner as P.W.1 categorically stated that on 13.06.2012, when he was travelling on his motorcycle near Jagadamba Hotel Center on Eluru road, Tadepalligudem, West Godavari District, at about 6 P.M., one Maruthi Wagon R DUO Car bearing No.AP37BX 7099 came from behind in a rash and negligent manner and dashed his motorcycle, as a 8 result of which, he fell down on road along with his motorcycle and sustained bleeding injuries.

16.During cross-examination, except suggesting that the accident occurred due to negligence of the petitioner, nothing more is elicited.

P.W.1 is the witness for the accident. 1st respondent, who drove the crime vehicle did not choose to take the witness stand. 2nd respondent insurance company also did not evince any interest to examine any other witness to discredit the testimony of P.W.1 with regard to nature of accident and negligence on the part of the driver of the car.

17.Ex.A.1 F.I.R. was registered against the driver of the car.

Ex.A.3 M.V.I. report is indicating the involvement of the car owned by 1st respondent. Ex.A.5 charge sheet was laid against the 1st respondent who was driving the crime vehicle, i.e., Maruthi Wagon R DUO Car bearing

No.AP37BX 7099 at relevant time. With the evidence of P.W.1 and recitals in Exs.A.1, A.3 and A.5 and by taking the conduct of 1st respondent remaining absent from taking witness stand and by considering the lapse of 2nd respondent in adducing any evidence, this court finds that the petitioner is able to prove that, the pleaded accident has occurred due to rash and negligent driving of Maruthi Wagon R DUO Car bearing

No.AP37BX 7099 by 1st respondent. Issue No.1 is accordingly decided in favour of the petitioner.

18. Issue No.2:

Whether the Petitioner is entitled for compensation? And if so, for what amount and from which of the Respondents?

19.Petitioner sustained injuries in the motor vehicle accident.

There is no evidence to believe that there was either negligence or 9 contributory negligence on the part of the petitioner. On the contrary, there is positive evidence placed by petitioner to show that the 1st respondent, the driver of Maruthi Wagon R DUO Car bearing No.AP37BX 7099 was negligent in driving the car and responsible for the accident.

Violations of conditions of policy are neither pleaded nor established.

Policy Ex.B.1 was in force from 18.02.2012 to 17.02.2013. The accident has occurred on 13.06.2012. So, it can be safely taken that the policy

Ex.B.1 was in force as on the date of accident. The only irresistible conclusion possible is that the 1st respondent is liable in view of the negligence and 2nd respondent is liable in view of policy Ex.B.1 as the fact situation is that, the petitioner suffered injuries in the accident caused by 1st respondent using the motor vehicle, i.e., Maruthi Wagon R DUO Car bearing No.AP37BX 7099 owned by 1st respondent and insured with 2nd respondent.

20.The only point remains for consideration and determination is quantum of compensation to which the petitioner is entitled.

21.As per the observations of the Hon’ble Apex Court in G.

Ravindranath @ R. Chowdary, Vs., E. Srinivas and another, reported in 2013(6) ALD, 79 (SC) referred above, compensation in case of personal injuries can be awarded under the following heads:

(A) Pecuniary Damages (Special Damages).

(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.

(ii)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the 10 period of treatment and (b) Loss of future earnings on account of permanent disability.

(iii)Future medical expenses.

(B) Non-pecuniary damages (General Damages).

(iv)Damages for pain, suffering and trauma as a consequence of the injuries.

(v)Loss of amenities ( and/or loss of prospects of marriage).

(vi)Loss of expectation of life (shortening of normal longevity).

22.(i) Expenses relating to treatment, hospitalization,

medicines, transportation, nourishing food and miscellaneous

expenditure.

23.Petitioner as P.W.1 stated that he has incurred an expenditure of Rs.2,49,500/- towards medicines. Ex.A8 are original medical bills (93 numbers) issued by Raghavendra Hospitals, Guntur; V.R.L.S. Memorial

Neuro Hospitals, Vijayawada and Sai Hospitals, Guntur, standing for

Rs.1,88,896/- (as per summary submitted by the petitioner). There is clear evidence that petitioner was treated in three hospitals.

24.P.W.2 Dr. Naga Sankar stated that on 20.07.2012, petitioner was joined in his hospital and the petitioner was discharged on 01.08.2012. During cross-examination, P.W.2 stated that the medical bills covered on Ex.A.8 are not excessive.P.W..4 Dr. Siva Kumar stated that he is a Consultant Neuro Surgeon and petitioner was admitted in his hospital on 13.06.2012. P.W.5 Dr. A.V.R. Mohan stated that he is a Civil Assistant

Surgeon and he has examined the petitioner on 04.07.2013.

25.When the total evidence is seen, shifting petitioner to V.R.L.S.

Memorial Hospitals, Vijayawada; Sri Sai Hospitals, Guntur; Prasad 11

Hospitals, Tadepalligudem and Raghavendra Hospitals, Guntur can be believed. During chief-examination itself, petitioner as P.W.1 stated that besides the amount paid by the Government under Rajiv Arogya Sri

Scheme, he has incurred an expenditure of Rs.2,49,500/-.

26.It is settled proposition of Law for awarding compensation and special damages, there shall be clear evidence. As per Ex.A.8, the amount covered is Rs.1,88,896/-. However, by considering the surrounding circumstances and nature of treatment etc., under the present head, an amount of Rs.2,00,000/- awarded to the petitioner as compensation.

27.(ii) Loss of earnings (and other gains) which the injured

would have made had he not been injured, comprising: (a) Loss of

earning during the period of treatment:

Petitioner claimed that he was earning Rs10,000/- per month by way of working as driver and Rs.30,000/- by way of leasing out the lorry. Income on the lorry may not get diminished. For the purpose of believing the income of the petitioner, the petitioner relied on the Minimum

Wages G.O. issued by the Government of Andhra Pradesh. As per

G.O.Ms.No.83, dt.22.112006, the minimum wages payable is fixed at

Rs.4,319/-. To the said amount, D.A. is added at Rs.1,748/-, the total is

Rs.6,067/-.

28.By considering the G.O. and certificate issued by the Assistant

Commissioner of Labour, the income of the petitioner is accepted at

Rs.6,000/- per month. Accident occurred in the month of June, 2012.

According to the evidence, the petitioner was in hospital till August, 2012.

The evidence of the petitioner that his disability is total, although it is 12 mentioned as 90% in the disability certificate. The period of three months can be taken for awarding compensation under the head of loss of income during hospitalization period hence under the said head, an amount of

Rs20,000/- can be awarded to the petitioner towards loss of earnings during the period of treatment.

29.(b) Loss of future earnings on account of permanent disability:

Petitioner as P.W.1 has categorically stated that he is unable to do any work and he became totally disabled. P.W.2 Dr. V. Naga Sankar also stated that the petitioner cannot sit or walk by himself due to weakness of hands and legs and petitioner cannot carry his regular profession, i.e., driving. P.W.4 also confirmed the same. P.W.5 Dr.

A.V.R.Mohan, Civil Assistant Surgeon and member of Medical Board,

West Godavari District, Eluru has stated that the disability certificate is issued to the petitioner assessing the disability at 90%. Ex.A.7 is the disability certificate issued by the Medical Board, wherein the disability is shown at 90% and the same is permanent in nature. By taking the same into consideration, the loss of income to the petitioner can be taken at 100% since with 90% disability, he cannot do the driving work. Therefore, loss of income to the petitioner can be taken at Rs.6,000/- per month, which will comes to Rs.72,000/- per annum.

30.Petitioner is aged 52 years as per the petition and his date of birth is shown as 08.07.1961 in the notarized pan card. But, in the disability certificate, his age is shown as 50. By considering the variations in the different documents, the age of petitioner can be taken as 55 years.

For the age group of around 55 years, the multiplier provided under the 13

Motor Vehicles Act is 8. Hence, the same is applied. 1st the loss of income of Rs.72,000/- is multiplied with 8, total loss of income to the petitioner under the head of permanent disability will comes to Rs.5,76,000/-.

Hence, the same is awarded to the petitioner as compensation under the head of permanent disability.

31.(iii) Future medical expenses:

There is no specific evidence quantifying the future medical necessities of the petitioner. However, the doctors stated that the petitioner will require further treatment. Upon considering the total evidence available on record, an amount of Rs.50,000/- is awarded to the petitioner under the head of future medical needs.

32.(iv) Damages for pain, suffering and trauma as a consequence of the injuries:

Petitioner undergone surgeries and petitioner was under treatment for a period of around two months and he was shifted to several hospitals. His four limbs were said to be unfunctional at the time of examination of doctors. Wound certificate Ex.A.4 is reflecting that the petitioner has sustained cervical spine injuries, C56 extruded disc with cervical cord compression. The opinion is that wounds are grievous in nature Upon considering the nature of injuries, period of treatment,

Rs.75,000/- is awarded notionally to the petitioner under the head of pain and suffering.

33.(v) Loss of amenities ( and/or loss of prospects of marriage):

Petitioner requires the attendance of somebody since his disability is 90%. Therefore, under the head of loss of amenities, an 14 amount of Rs.25,000/- is awarded notionally to the petitioner as compensation.

34.(vi) Loss of expectation of life (shortening of normal longevity):

There is no specific evidence to show that to what extent, the life expectation has been decreased in case of petitioner. However, by considering the nature of injuries and the disability certificate issued by the

Doctor, under this head, an amount of Rs.50,000/- is awarded to the petitioner as compensation.

35.In the light of the discussion made and conclusions drawn above, total amount awarded to the petitioner under various heads is concluded as follows:

i. Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure...Rs.2,00,000-00 ii (a)Loss of earnings during hospitalization...Rs. 20,000-00 ii (b)Loss of earnings due to permanent disability. ..Rs.5,76,000-00 iii. Future medical expenses...Rs. 50,000-00 iv. Damages for pain, suffering and trauma as a consequence of the injuries...Rs. 75,000-00 v. Loss of amenities...Rs. 25,000-00 vi. Loss of expectation of life...Rs. 50,000-00 --------------------- Total: Rs.9,96,000-00 ---------------------

36.For the reasons stated above, issue No.2 is decided in favour of the petitioner concluding that the petitioner is entitled for compensation of Rs.9,96,000/- and both the respondents are liable to 15 pay the same, however, 2nd respondent is liable in view of the insurance policy.

37.ISSUE No.3: In the result, this petition is partly allowed.

COMPENSATION AWARDED: Rs.9,96,000/- (Rupees Nine Lakhs and Ninety-six Thousand only) with interest at 7.5% p.a. from the date of petition till deposit or realization.

DISBURSEMENT:

By considering the medical expenditure incurred and necessity of future medical expenses, petitioner is permitted to withdraw

Rs.4,96,000/-, total interest and costs interest leaving the balance of

Rs.5,00,000/- which shall be kept in fixed deposit in any nationalized bank for a period of three years.

COSTS: Proportionate costs are awarded.

LIABILITY: Respondent Nos.1 and 2 are liable, however, Respondent

No.2 is liable to pay the compensation in view of insurance policy.

Advocate fee is fixed at Rs.2,500/-.

Time for deposit – 30 days.

Rest of the claim of the petitioner is dismissed without costs.

The decree shall be supplied to petitioner after verification by

Office as to payment of Court fee and exemption, if any, sought at the time of filing of the case and on clearance of Court fee Dues, if any.

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

pronounced by me in open Court, this the 5th day of February, 2014.

Sd/-A. Hariharanatha Sarma.

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II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

P.W.1Velagaleti Ramakrishna.-None- P.W.2 Dr. V. Naga Sankar. P.W.3Dr. Ch.C. Ratna Manmohan. P.W.4Dr. V. Siva Kumar. P.W.5Dr. A.V.R. Mohan.

DOCUMENTS MARKED

For Petitioner:

Ex.A-117.06.2012Attested copy of FIR.

Ex.A-2--Discharge Summary issued by Raghavendra Hospitals, Guntur.

Ex.A-319.06.2012Attested copy of M.V.I. report.

Ex.A-408.11.2012Attested copy of Wound Certificates issued by VRLS Memorial Neuro Hospital, Vijayawada. Ex.A-5--Attested copy of charge sheet. Ex.A-6--Notarized copy of driving license and Pan Card.

Ex.A-704.07.2013Disability certificate issued by Medical Board, W.G. District, Eluru.

Ex.A-8--Bunch of 93 medical bills. Ex.A-9--Notarized copy of Certificate of Registration. Ex.A-1005.07.2012Discharge summary issued by Sai Hospitals, Guntur. Ex.A-11--Bunch of X-rays (2 in number).

For Respondents:

Ex.B.1/--Copy of Insurance Policy.

For Respondents:

Ex.X.1/--Case sheet.

Id/-.A.H.H.S.

II ADDL. DISTRUCT JUDGE, W.G., ELURU

FAC: CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL,

17

( I ADDL. DISTRICT JUDGE, W.G.,) ELURU.