Sri A.Jagadesh Chandra Rao

1

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.393/2009 (M.V.O.P. 1382/08)

Between:

Juturi Ramanjaneyulu s/o Veeraiah @ Yogaiah, 23yrs, r/o Railway Station Road,

Vinukonda, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

Petition filed U/s.163-A, 166 and 140 of M.V.Act claiming compensation of Rs.4,00,000/- for the injuries sustained by Juturi

Ramanjaneyulu in a road traffic accident.

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth order and decree as follows:

D E C R E E

01) That the petition be and the same is hereby allowed in part with proportionate costs awarding compensation of Rs.2,59,500/- (Rupees two lakhs fifty nine thousand five hundred only) with subsequent interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization in favour of petitioner and against the respondent no.1.

2

02) That the rest of the petition claim is hereby dismissed.

03) That respondent no.2 is directed to deposit the award amount infavour of petitioner within one month from the date of this award and then to recover the same from respondent no.1.

04) That upon such deposit of the award amount petitioner is at liberty to withdraw a sum of Rs.50,000/- initially with interest and costs and the remaining amount shall be kept in Fixed Deposit in any Nationalized Bank for a period of three years, then he is at liberty to withdraw the Fixed Deposit amount.

05) That the advocate fee is fixed at Rs.1000-00

06) That respondent do pay to the petitioner a sum of Rs.2343/- towards proportionate costs of the petition and that do bear their own costs of Rs-Nil- (C.M.& F.C. not filed by respondent side)

Given under my hand and the seal of the Court, this the 27th day of April, 2012.

(Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet.

TABLE OF COSTS

SL.PARTICULARSPETITIONERRESPONDENTs NO.AwardedAwarded Rs. Rs. Vakalat2-00 Court Fee2400-00 C.M.&F.C. Not filed Process Fee110-00 by respondents Advocate Fee1000-00 Petition Stamps-- Publication charges-- Typing Charges50-00 Writing Charges50-00 Total 3612-00

Proportionate costs allowed Rs.2343/-.

(Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet 3

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.393/2009 (M.V.O.P. 1382/08)

Between:

Juturi Ramanjaneyulu s/o Veeraiah @ Yogaiah, 23yrs, r/o Railway Station Road,

Vinukonda, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth made the following:

J U D G M E N T

The petition is filed U/s.163-A, 166 and 140 of M.V.Act claiming compensation of Rs.4,00,000/- for the injuries sustained by Juturi Ramanjaneyulu in a road traffic accident.

02)The case of the petitioner in brief is that on 21.1.07 at about 6.am while the petitioner was travelling in auto rickshaw bearing 4 No.AP27W 3913 from his village to Santhamagulur, the driver of the said auto rickshaw drove the same in a rash and negligent manner with high speed hit against a lorry from opposite direction near Heritage situated on Narasaraopet to Vinukonda road within the limits of Santhamagulur Police Station. As a result petitioner sustained severe injuries and shifted to Government hospital,

Narasaraopet later shifted to Trust Hospital, Vijayawada for better treatment. The accident was reported to police who registered a case as Cr.No.3/07 u/s 337 IPC against the driver of the auto rickshaw the accident took place only due to rash and negligent driving of driver of auto-rickshaw.

Petitioner working as Vidya Volunteer in Upper Primary

School in Velchur and he is getting Rs.2,500/- per month and also student studying B.Sc Correspondence course. Petitioner under went major operations and treated as inpatient from 21.1.07 to 26.2.07. After the accident petitioner was unable to lift even normal weight with his right hand due to stiffness of right shoulder of joint and elbow joint. He was unable to sit or even stand for a while due to fracture injuries of spinal card. Petitioner also lost his good memory due to complications of brain which caused the injury. The petitioner incurred Rs.1,30,000/- towards medical expenditure.

03) 1st respondent filed written statement stating that the driver of the auto no.AP27W 3913 is having valid driving licence auto was insured with the respondent having policy cover note 528885 valid from 9.10.06 to 8.10.07. The accident was occurred in the 5 course of duration of the policy. The claim of the petitioner is excessive.

04)2nd respondent filed written statement disputing the narration of the accident, involvement of the petitioner and consequential injuries to him. The accident was caused as the opposite lorry also not followed traffic rules and responsible for causing accident. 2nd respondent also stated that the driver of the auto has no valid driving licence as on the date of the accident to drive the vehicle and the claim of the petitioner is excessive.

05. Basing on the above pleadings the following issues are framed for trial :

1) Whether the accident occurred due to rash and negligent driving of driver of AP 27W 3913 auto rickshaw?

2) Whether the petitioner is entitled for compensation, if so to what amount and from whom?

3) To what relief?

06. On behalf of the petitioner, P.Ws.1 and 2 examined and marked Exs.A1 to A8 and Ex.X1. Respondent no.1 though filed written statement did not participate in the trial. Respondent no.2 examined R.Ws.1 and 2 and marked Ex.B1 to B5 and Ex.X2 to X4.

07. ISSUE NO.1:P.W.1 reiterated the same facts in his chief affidavit that were stated by him in the petition with regard to the narration of the accident. P.W.1 stated in his cross examination that four persons travelled in the auto besides the driver at the time of accident. P.W.1 further stated that the driver of the lorry was not responsible for the accident. Ex.A1 is certified copy of FIR along with statement of petitioner. In the complaint it was mentioned that the auto driver did not observe the lorry 6 coming in opposite direction and dashed against the lorry. The lorry driver did not stop the vehicle and went away the auto turned aside and resulting multiple grevious injuries to him and other passengers also sustained injuries. The auto number was also mentioned in the complaint. The accident said to have been occurred at 5.45 a.m Ex.A2 shows police after investigation laid charge sheet against the driver of the auto. The wound certificate of petitioner Ex.A3 also shows that he was examined at 8.45 a.m on 21.1.12. The statement of P.W.1 was recorded at 9.15 a.m. by police in the hospital. So the accident was reported within 4 hours of the accident and he was also examined by the Medical Officer in the Government hospital within 4 hours of the accident. Though 2nd respondent disputed about the narration of the accident stated by P.W.1 no oral evidence is produced to prove that the accident did not occur due to rash and negligent driving of driver of auto.

Petitioner through his evidence and Ex.A1 to A3 has proved that the accident occurred due to rash and negligent driving of driver of auto bearing No.AP27W 3913 resulting injuries to P.W.1 and others who travelled in the auto bearing No.AP27W 3913. The point answered accordingly.

08.ISSUE NO.2: P.W.1 stated in his chief affidavit that he sustained injuries:-

i) Compound communicated fracture right humerus ii) Brachial plexus injury iii) Multiple rib fractures with haemorthorax right iv) compression fracture D­12.

v) Lacerated wound over the elbow, forearm and exilla He was given First aid at Government Hospital, Narasaraopet and later shifted to Trust Hospital, Vijayawada for better treatment. He underwent major operation to his right hand, he also underwent 7 surgery to his brain, steel rods and screws were inserted to his right hand above the elbow. The fracture of spinal card was treated conservatively. After discharge also he was taking treatment to his fractures, he spent Rs.1,30,000/- towards his treatment. He was unable to lift even normal weights with his right hand. He was unable to walk or even stand due to fracture injury of spinal card. He lost his good memory due to the complications of brain which occurred due to head injury. He was studying B.Sc Correspondence course working as Vidya Volunteer in Upper Primary school at Velchuru, aged 23 years, getting

Rs.2,500/- p.m at the time of accident. After the accident he was not attending any work. He is suffering with disability.

09.P.W.2 stated that he is working as Orthopedic Surgeon at

Trust Hospital. He examined P.W.1 on 21.1.07 and found injuries:-

1) Compound communited fracture right humerus

2) Brachial Plexes injury right hand

3) Multiple Rib fractures with haemothorax ­Right

4) Compression fracture. D12 vertibral body

5) Lacerated wound over the elbow ­Right

6) Lacerated wound over fore arm ­Right

7) Lacerated wound over Axilla ­Right. Injuries No.5 to 7 are simple in nature and 1 to 4 are grevious in nature. Ex.A4 was issued by him, Ex.A5 are the bunch of prescriptions issued during the treatment of P.W.1 in Trust

Hospital, Ex.A6 are bunch of medical bills issued by Trust Hospital.

The right hand is having 45% disability. Petitioner is not able to work with right hand and cannot write with his right hand. The disability is permanent and partial. The patient cannot lift even light weights with his right hand and cannot eat with right hand 8 and lost his grip to his right hand. Ex.X1 is the case sheet maintained by the Trust Hospital. P.W.2 admitted that Ex.A6 includes advance receipts and medical bills. It was only suggested to P.W.2 that the disability of petitioner stated by him is higher side. Ex.A8 is the disability certificate issued by PHC Medical

Board, District Hospital, Ongole and as per Ex.A8 petitioner is having 45% disability. As per Ex.A6 petitioner spent Rs.59,090/- for purchase of medicines.

10.P.W.1 stated that he was aged 23 years as on the date of the accident. He worked as Vidya Volunteer in Upper Primary school Velchur and getting Rs.2500/- p.m as salary but petitioner did not choose to file his salary certificate and date of birth certificate. The age of the petitioner is mentioned as 22 years in the record of Trust Hospital wound certificate Ex.A3. In the charge sheet the age of the petitioner is mentioned as 23 years. The appropriate multiplier as per II Schedule for the persons aged between 20 to 25 is '17'. In the absence of documentary evidence the income of the petitioner has to be estimated. Even if a person goes for coolie work he will get Rs.100/- per day. Petitioner has claimed that he is getting Rs.2500/- p.m, so the same can be taken into consideration. The annual income of petitioner can be estimated of Rs.30,000/-. As per Ex.A8 the disability of petitioner is at 45% but petitioner did not choose to examine any of the

Medical Officer who issued Ex.A8. So his disability is taken at 30%.

So compensation for the permanent partial disability is taken at

Rs.2500 X 12 X 17 X 30% = Rs.1,53,000/-. As per Ex.A6 petitioner has spent Rs.59,090/- towards his medical expenditure. Hence 9 petitioner is entitled to Rs.59,000/- towards medical expenditure.

As per Ex.A3 petitioner sustained four grevious injuries and three simple injuries. So petitioner is entitled to Rs.30,000/- towards pain and sufferance. Petitioner might have failed to attend his normal duties for about three months. Hence petitioner is entitled to Rs.7500/- towards loss of earnings. Petitioner also might have spent some amount towards Extra nourishment, attendant and transport charges hence petitioner is entitled to a sum of

Rs.10,000/- under these heads. So the total compensation is

Rs.2,59,500/-.

10.R.W.1 working as Development Officer at Guntur in 2nd Respondent company stated in his chief affidavit that the driver of the auto has no valid driving licence to drive the auto as on the date of the accident. Six persons were travelling at the time of accident against the seating capacity of three. A registered notice was issued to 1st respondent but the notice was returned as unserved. A notice was also issued to the driver as per the address mentioned in the charge sheet to cause production of copy of driving licence. The driver received the notice but kept quiet. So it clearly shows tat the driver has no valid licence and respondent no.1 knowingly allowed a person who has no driving licence to drive the auto and to carry more passengers than permitted and as 1st respondent violated the terms and conditions of the policy, 2nd respondent is not liable to pay compensation.

R.W.1 admitted that as per the contents of charge sheet there was no over load. He also admitted that there was no documentary evidence to show that the six persons travelled in the auto at the 10 time of accident. He also admitted that it was not mentioned either in the FIR or in the charge sheet that the driver has no driving licence and police did not file charge sheet against the driver of the auto for the offence u/s 181 of M.V.Act.

11.R.W.2 working as Junior Asst in RTA stated in his evidence that he was authorized by RTA Narasaraopet to give evidence in this case under Ex.X2. As per the records of RTA Narasaraopet

Srinivasarao Ravuri s/o Ramaiah with Date of Birth 20.7.1979 resident of 1-29, Karumanchi of Savalyapuram mandal of Guntur

Dist was issued driving licence for AIR LMV NCWG non-transport on 29.1.11 and valid upto 19.7.2029 with driving licence no.AB10720110001424. The extract of the driving licence is marked as Ex.X3. The extract of form no.24(B) of registrar of motor vehicles for the vehicle bearing NO.AP27W 3913 marked under Ex.X4 shows that the vehicle was registered in the name of 1st respondent upto 28.6.07. So the vehicle was registered in the name of 1st respondent on the date of accident. The evidence of

R.W.2 shows that Ravuri Srinivasarao s/o Ramaiah r/o Karumanchi (Driver of the offending vehicle as per charge sheet Ex.A2) obtained driving licence non-transport on 29.1.11. Ex.B2 and B3 shows that respondent No.2 issued notice to the owner and driver of the offending vehicle to produce the particulars of the driving licence of R.Srinivasarao as on the date of the accident. Ex.B4 shows that the notice sent to R.Srinivasarao to the address mentioned in Ex.A2. The notice was received by the driver of the vehicle under Ex.B5 but he did not choose to furnish the details of his driving particulars as on the date of accident. The door number 11 of the residential address of driver of the offending vehicle is not mentioned in Ex.A2 and B4. But the door number of the house is mentioned in Ex.X3.

12.The learned counsel for respondent no.2 argued that 1st respondent though filed counter did not choose to participate in the trial. The driver of the vehicle though received the notice did not furnish the particulars of his driving licence. The evidence of

R.W.2 clearly shows that the driver of the offending vehicle obtained driving licence from RTA Narasaraopet on 29.1.11. So it clearly shows that the driver of the offending vehicle has no effective driving licence as on the date of accident. Respondent no.1 did not adduce any evidence that he has no knowledge that the driver of the offending vehicle has no driving licence 1st respondent willfully violated the terms and conditions of the policy by allowing a person who has no driving licence to drive the vehicle and violated the terms and conditions of the policy. Hence 2nd respondent is not liable to pay compensation and if at all any compensation is awarded 1st respondent alone is liable to pay compensation and cited decisions

1) 2011(1) An.W.R 751 (A.P) between United India Insurance Co. Ltd., rep. by its Regional Officer, Hyderabad and another

2) 2008 (1) An.W.R 570 (SC) between Sardari and others Vs. Sushil Kumar and others 

3) 2007 (3) ALD 138 between Oriental Insurance Co., Ltd., Rajahmundry Vs. Bhimala Pavan Kumar and others. 

13.On the other hand the learned counsel for the petitioner argued that respondent no.2 did not discharge his burden that the driver of the offending vehicle has no valid and effective driving 12 licence as on the date of accident, police did not file charge sheet against the driver that he has no valid driving licence on the date of the accident. The driver of the vehicle is not prohibited from obtaining driving licence from any other RTA in the State. R.W.2 admitted in his evidence that one can get a new driving licence non-transport by applying afresh without renewing the expired driving licence. Driver of respondent no.1 might have applied for a new licence in the month of January, 2011 instead of renewing the expired old licence. Merely because R.W.2 stated that the driver of 1st respondent has obtained driving licence in the moth of January, 2011 it cannot be concluded that the driver has no driving licence prior to obtaining new licence. Petitioner's counsel further argued that as per Ex.X2 the vehicle was transferred by 1st respondent to another person after the accident. Petitioner is a third party.

Petitioner will not be in a position to recover the amount from 1st respondent who sold the auto involved in the accident and even if the driver has no driving licence. Respondent no.2 cannot escape its liability. The tribunal is competent to order the insurance company to pay compensation initially and to recover the same from the insured later and cited decisions reported in

1) 2004 ACJ 1 S.C between National Insurance Co. Ltd. Vs. Swaran Singh and others

2) 2012 ACJ 567 between Oriental Insurance Co. Ltd. Vs. Chandra Devi and others 

3) 2009 ACJ 992 between National Insurance Co. Ltd. Vs. Neelam and others

4) 2011(5) A.L.D 184 between Jayaprakash Agarwal and others Vs. Mohd.Kaleemulla and another

5) 2007 ACJ 2760 between New India Assurance Co. Ltd. Vs. Komma venkateswarlu (died) through L.Rs. and another 13

14.Respondent no.2 only proved that the driver of 1st respondent obtained a licence on 29.1.11 under Ex.X3. The evidence of R.W.2 shows that there is a possibility of obtaining new licence instead of renewing the expired licence by paying penalty. R.W.2 also admitted that there is a possibility of obtaining driving licence from any other RTA by furnishing proof of residence in that particular jurisdiction of RTA. The evidence of respondent no.2 is not at all sufficient to show that the driver of 1st respondent has no driving licence at all as on the date of accident.

Admittedly police did not file charge sheet against the driver of 1st respondent for violation of M.V.Act and Rules. Respondent no.1 though filed counter did not participate in the trial 1st respondent also did not enter into box to show that he has verified the driving licence of his driver. Ex.X3 shows that 1st respondent has transferred the vehicle on 28.6.07 after the accident. So it may become difficult for the petitioner to recover the compensation from 1st respondent. Relying upon the decisions cited by the petitioner it is just and reasonable to direct respondent no.2 to pay the compensation awarded to the petitioner initially and to recover the same from respondent no.1 without filing any separate suit.

15. ISSUE NO.3In view of the said findings and observations that the petitioner is entitled for a total compensation amount of Rs.2,59,500/- as shown below:

Pain and sufferance Rs. 30,000-00 Permanent partial disability Rs.2500X12X17X30% Rs.1,53,000-00 Medical Expenditure Rs. 59,000-00 Loss of earnings Rs. 7,500-00 Extra nourishment, attendant and transport charges Rs. 10,000-00 Total Rs. 2,59,500-00 (Rupees Two lakhs fifty nine thousand five hundred only) 14

16.In the result , this petition is allowed and the petitioner is entitled for compensation amount of Rs.2,59,500/- (Rupees two lakhs fifty nine thousand five hundred only) with subsequent interest at 7.5% P.A. on the said sum from the date of this petition till the date of realization with proportionate costs as follows.

i)The respondent no.2 shall satisfy the decree passed in favour of petitioner at first instance and entitled to recover the amount so paid to petitioner from respondent no.1 is registered owner of vehicle without filing a separate suit and by filing an execution petition and further directed to deposit the same within one month from the date of this award. Rest of the petition claim is dismissed without costs . ii) The advocate fee is fixed at Rs.1000/-.

Disbursement :On deposit of the award amount petitioner is entitled to withdraw a sum of Rs.50,000/- initially with proportionate interest and costs and the remaining amount shall be kept in Fixed Deposit in any Nationalized Bank for a period of three years.

Typed my dictation by steno-typist corrected and pronounced by me in the open court this the 27 th day of April, 2012 .

Chairman Accident claims Tribunal- -Cum-X Addl. District Judge, (F.T.C) Narasaraopet, Guntur District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERs:-

P.W.1 :- Juturi Ramanjaneyulu P.W.2: Dr.Venkata Ramana

FOR RESPONDENTS:-

R.W.1: Mekala Ramireddy R.W.2: S.Naga Maheswararao

DOCUMENTS MARKED

FOR PETITIONERs:

Ex.A1: certified copy of F.I.R in Cr.No.3/07 of Santhamagulur P.S. Ex.A2: certified copy of Charge sheet in C.C.227/07 Ex.A3: certified copy of wound certificate Ex.A4: out-patient record with discharge summary issued by Trust Hospital, Vijayawada Ex.A5: prescriptions (68 in nos.) Ex.A6: bunch of medical bills worth of Rs.59,090/- (98 bills) 15 Ex.A7: X-ray films (6 in nos.) with four covers Ex.A8: original disability certificate relating to me issued by PHC Medical Board, District Hospital, Ongole.

FOR RESPONDENT No.2:

Ex.B1: Attested copy of Insurance policy issued in favour of 1st respondent Ex.B2: office copy of register notice issued to 1st respondent dt.1.10.10 to cause production of documents Ex.B3: returned unserved notice of Ex.B2 Ex.B4: office copy of notice issued R2 office to R1 driver Ex.B5: acknowledgment of Ex.B4

Document marked in the evidence of P.W.2: Ex.X1: case sheet of P.W.1 issued by Trust Hospital

Documents marked in the evidence of R.W.2: Ex.X2: authorization given to R.W.2 to give evidence in court Ex.X3: extract of driving licence of Srinivasarao Ravuri Ex.X4: extract of form no.24-B of Registrar of Motor vehicles for the vehicle No.AP27W 3913

Chairman,

Accident Claims Tribunal

–Cum- X Addl. District Jude, (F.T.C)

Narasaraopet, Guntur District.

16 17

1

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Thursday, this the 26th day of April, 2012

M.V.O.P.No.328/2009 (Old M.V.O.P.750/07)

Between: Dasari Anand s/o Prakasarao, 37yrs, r/o Subbaiahpalem, Rompicherla Narasaraopet Mandal, Guntur Dist.

Narasaraopet DMC. ...Petitioner

And

1) S.Srinivasa reddy s/o Hanuma Reddy @ Hanumatu Reddy, r/o Mulaguntapadu, Singarayakonda, Prakasam Dist. Ongole DMC. (Owner of lorry bearing No.AP27W 4986)

2) National Insurance Co.Ltd., rep. By its Divisional Manager, Branch Office, G.T.Road, Chilakaluripet, Chilakaluripet DMC, Guntur Dist. Policy No.0802/31/06/6300001690 valid from 17.1.07 to 16.1.08

3) Thiru N.Visvamitran s/o Thiru A.Nataraj Reddiar r/o Kayalanmedu Periya Opulapuram, Gummidipoondi Tiruvullur Dist. (Onwer of Ashok Leyland lorry bearing NO.TN01/R 6355)

4) The New India Assurance Co., Ltd, Rep. By its Divisional Manager, Divisional Office 4th line, Arundelpet, Guntur. Guntur Dist. And DMC, The Vehicle was insured at Chennai Policy No.110100/31/06/01/58078967

valid from 9.1.07 to 8.1.08 ...Respondents

Petition filed U/s.163-A and 166 of M.V.Act for claiming compensation of Rs.1,00,000/- for the injuries sustained by Dasari Anand in a road traffic accident.

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.K.V.Ramana Reddy, advocate for the petitioners, and Sri G.Srinivasu, Advocate for the respondent no.2 and of Sri.T.Muralidhar, advocate for R4 and respondents no.1 and 3 remained exparte and having stood over for consideration till this day, this court doth order and decree as follows:

2

D E C R E E

01) That the petition be and the same is hereby allowed in part with proportionate costs awarding compensation of Rs.5,000/- (Rupees five thousand only) with subsequent interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization in favour of petitioner and against the respondent no.1.

02) That Respondent no.1 is directed to deposit the award amount in favour of petitioner within 30 days from today.

03) That upon such deposit of the award amount petitioner is at liberty to withdraw the same.

05) That Respondents no.2 and 4 filed petitions u/s 170(b) of M.V.Act in I.A.71/12 and I.A.218/12 the same are allowed.

04) That the advocate fee is fixed at Rs.1000-00

05) The rest of petition claim is hereby dismissed and the claim of petitioner against respondents no.2 to 4 is concerned is dismissed.

06) That respondent no.1 do pay to the petitioner a sum of Rs.25-00 towards institutional costs which includes proportionate costs of the petition and that do bear his own costs of Rs-Nil- (C.M.& F.C. not filed on either side).

Given under my hand and the seal of the Court, this the 26th day of April, 2012.

(Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet.

TABLE OF COSTS

SL.PARTICULARSPETITIONERRESPONDENT

NO.AwardedAwarded Rs. Rs. Vakalat2-00 Court Fee360-00 C.M.&F.C. Not filed Process Fee on either side Advocate Fee Petition Stamps-- Publication charges-- Typing Charges Writing Charges Total 362-00 (Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet 3

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Thursday, this the 26th day of April, 2012

M.V.O.P.No.328/2009 (M.V.O.P.750/07)

Dasari Anand s/o Prakasarao, 37yrs, r/o Subbaiahpalem, Rompicherla Narasaraopet Mandal, Guntur Dist.

Narasaraopet DMC. ...Petitioner

And

1) S.Srinivasa reddy s/o Hanuma Reddy @ Hanumatu Reddy, r/o Mulaguntapadu, Singarayakonda, Prakasam Dist. Ongole DMC. (Owner of lorry bearing No.AP27W 4986)

2) National Insurance Co.Ltd., rep. By its Divisional Manager, Branch Office, G.T.Road, Chilakaluripet, Chilakaluripet DMC, Guntur Dist. Policy No.0802/31/06/6300001690 valid from 17.1.07 to 16.1.08

3) Thiru N.Visvamitran s/o Thiru A.Nataraj Reddiar r/o Kayalanmedu Periya Opulapuram, Gummidipoondi Tiruvullur Dist. (Onwer of Ashok Leyland lorry bearing NO.TN01/R 6355)

4) The New India Assurance Co., Ltd, Rep. By its Divisional Manager, Divisional Office 4th line, Arundelpet, Guntur. Guntur Dist. And DMC, The Vehicle was insured at Chennai Policy No.110100/31/06/01/58078967

valid from 9.1.07 to 8.1.08 ...Respondents

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.K.V.Ramana Reddy, advocate for the petitioners, and Sri G.Srinivasu, Advocate for the respondent no.2 and of Sri.T.Muralidhar, advocate for R4 and respondents no.1 and 4 3 remained exparte and having stood over for consideration till this day, this court doth made the following:

J U D G M E N T

The petition is filed U/s.163-A and 166 of M.V.Act for claiming compensation of Rs.1,00,000/- for the injuries sustained by Dasari

Anand in a road traffic accident.

02)The case of the petitioner in brief is that on 30.3.07 petitioner along with his wife and his son boarded the lorry bearing No.AP27W 4986 with house-hold articles to go to

Hyderabad after paying Rs.2000/- towards fare. When they reached Kasava Raju Palli village, cross roads at about 2.30a.m the drivers of the crime vehicles drove the vehicles in a rash and negligent manner due to which both the lorries bearing No.AP27W 4986 and TN 01/R 6355 colluded each other. As a result petitioner sustained grevious injuries to the head and other multiple injuries all over the body. After the accident he was shifted to G.G.H,

Nalgonda thereafter to hospital Dr.M.Radhakrishna Murthy,

Narasaraopet and he was treated as in patient for 15 days and he spent Rs.2,000/- for medical expenses.

The accident was reported by petitioner to Thipparthy police who registered the same as Cr.No.44/07 u/s.337, 338 and 304-A IPC. The accident was occurred due to rash and negligent driving of drivers of both lorries.

Petitioner was aged 37 years as on the date of accident doing coolie working and earning Rs.5000/-p.m due to the accident petitioner become permanently disabled person.

Respondent no.1 and 3 are the owners, Respondents no.2 and 4 are insurers of lorries involved in the accident . Hence all 5 the respondents are jointly and severally liable to pay the compensation.

03. Respondent No.2 filed written statement stating that 1st respondent has insured the lorry as goods carrying commercial vehicle. The deceased and his parents were travelling in the lorry as unauthorized passengers at the time of accident. The driver of the lorry AP27W 4986 was not having valid and effective driving licence to drive the vehicle as on the date of offence. As 1st respondent violated the terms and conditions of the policy. 2nd respondent is not liable to pay compensation. 2nd respondent also disputed about the narration of the accident, involvement of the deceased and consequential death, age and the claim of petitioners is excessive.

04.Respondent no.4 filed written statement stating that the driver of 1st respondent lorry committed mistake in driving the lorry and due to his mistake only the accident took place.

Respondent no.3 and 4 are un-necessary parties. Petitioners and their family members travelled as passengers in the lorry and as there is no insurance coverage to the passengers in the lorry.

Hence they pleaded falsely that they coming with house-hold articles and travelling in the transport vehicle is purely violation of

M.V.Act. Hence they are not entitled to any compensation. The driver of the 3rd respondent vehicle does not possess a valid and effective driving licence.

05. Basing on the above pleadings the following issues are framed for trial :

1)Whether the accident happened due to rash and negligent driving of driver of Lorry bearing No.AP 27W 4986 and TN01/R 6355 lorry?

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2) Whether the petitioner is entitled to compensation and if so to what amount and against whom?

3) To what relief?

06. On behalf of the petitioner, P.W.1 examined and marked

Exs.A1 to A3. On behalf of the respondent no.2 R.W.1 examined and marked Ex.B1. On behalf of Respondent no.4 R.W.2 examined and marked Ex.B2. Respondents no.2 and 4 filed petitions in

I.A.71/12 and I.A.218/12 u/s 170(b) of M.V.Act to permit the insurers to contest the claim on all the grounds that are available to insured and the same are allowed.

07. ISSUE NO.1:P.W.1 stated in his chief affidavit that he along with his wife and his son boarded lorry at

Narasaraopet bearing No.AP27W 4986 to go to Hyderabad with house-hold articles after paying an amount of Rs.2000/- towards fare. When the lorry reached near Kasava Raju Palli at about 2.30a.m both lorries bearing No.AP27W 4986 and TN-01/R 6355 colluded with due to rash and negligent driving of both the lorry drivers, in the result of the accident he sustained grevious injuries to the head and other multiple injuries all over the body and he presented a report to Thipparthy police and the case was registered in Cr.No.44/07 and police filed charge sheet against both the drivers.

08.P.W.1 stated in his cross examination that he presented a report to the police that both the vehicles are responsible for the accident and P.W.1 further stated that the accident occurred when the vehicles were coming in opposite direction and dashed against with each other. P.W.1 further stated that he does not know the contents of complaint. P.W.1 admitted that Srinivasareddy driver of their lorry is the accused in 7 criminal case filed in connection of this accident. He admitted that he and his wife gave evidence in the criminal case. He denied the suggestion that he stated in his complaint and as well as in his 161 Cr.P.C statement that the accident occurred due to rash and negligent driving of their lorry driver but now he changed his version with a view to claim compensation against Respondent no.

4. Ex.A1 is the certified copy of FIR along with the complaint of

P.W.1. P.W.1 in his complaint stated that the accident occurred due to rash and negligent driving of the driver of AP 27W 4986.

Police after investigation filed charge sheet against the driver of

AP 27W 4986. The driver of lorry TN-01-6355 by name

Doraiswamy Sampath shown as L.W.6 in charge sheet filed against the driver of AP 27W 4986. In Ex.A2 also it was mentioned that the accident only occurred due to rash and negligent driving of the driver of lorry bearing No.AP27W 4986. Ex.A3 is certified copy of wound certificate. P.W.1 changed his version in this case and stated that the accident occurred due to rash and negligent driving of the drivers of both the vehicles. Petitioner did not examine any witness or produce any documentary evidence to show that the accident also occurred due to rash and negligent driving of the driver of TN-01/6355. In view of the contradictory versions of P.W.1 before the police and before this court about the rash and negligent driving of the driver of TN-01/6355, his evidence that the driver of the lorry TN-01/6355 also drove the vehicle in a rash and negligent manner and dashed against the lorry bearing No.AP 27W 4986 and also responsible for the accident cannot be taken into consideration. Petitioner through his 8 evidence and through Ex.A1 to A3 has proved that he and his wife sustained injuries and their son died in road traffic accident caused by the driver of the lorry bearing No.AP 27W 4986. The point answered accordingly.

09.ISSUE NO.2: P.W.1 stated that after the accident he was shifted to G.GH., Nalgonda thereafter to hospital of

Dr.M.Radhakrishna Murthy, Narasaraopet he took treatment as inpatient for a period of 15 days and spent Rs.15,000/-. He also further stated that his son died in the accident, his wife received injuries. P.W.1 admitted that his injuries were healed. He also admitted that he did not file any documentary evidence to show that he took treatment in the hospital of Dr.M.Radha Krishna

Murthy, Narasaraopet for 15 days and spent Rs.15,000/-. He also admitted that he did not file any documentary evidence to show about his monthly income and also did not file medical bills.

10.R.W.1 working as Asst. Manager in 2nd respondent company stated in his chief affidavit that deceased and petitioners were travelled as unauthorized passengers in the lorry. Hence 2nd respondent is not liable to pay compensation. R.W.1 admitted that personal luggage can be carried in the goods vehicle provided the vehicle is booked in advance. R.W.1 admitted that the driver of the offending vehicle is having valid driving licence and the insurance policy is in force as on the date of the accident.

11.R.W.2 working as Senior Asst in 4th respondent company filed chief affidavit stating that P.W.1 presented a complaint against the driver of lorry bearing No. AP 27W 4986 only police 9 after investigation filed charge sheet against the driver of lorry bearing No.AP27W 4986. So petitioners cannot claim compensation from 4th respondent. R.W.2 admitted that insurance policy is in the force as on the date of accident and the insurance policy also covers third party insurance. R.W.2 further admitted that the persons travelling in opposite vehicle are third parties to their policies. R.W.2 denied that the accident in this case is a head on collision.

12.The learned counsel for the respondent no.2 argued that petitioners and deceased travelled in the goods vehicle as unauthorized passengers R1 has not paid additional premium to

Respondent no.2 towards the liability of unauthorized persons travelling in the goods vehicle as Respondent no.1 violated the terms and conditions of the policy. Permit and provisions of motor vehicles act Respondent no.2 is not liable to pay any compensation and cited decisions reported in

i) 2007 ACJ 1043 between New India Assurance Co. Ltd. Vs.

Vedwati and others.

ii) 2007 (2) An.W.R. 687 Narational Insurance Company Ltd.

Rep. By its Divisional Manager Vs. Mashetty Vijayalakshmi and others;

iii) 2005 ACJ 721 between National Insurance Company Ltd.

Bommithi Subbhayamma and others;

iv) 2007 (2) An.W.R 36 between Anasuyamma and another Vs.

B.Narasingarao and another;

13.The learned counsel for Respondent no.4 argued that P.W.1 presented a complaint against the driver of the 1st respondent police also filed charge sheet against the driver of the 1st 10 respondent. There is no evidence on record that the driver of the lorry of 3rd respondent also drove the vehicle in a rash and negligent and responsible for the accident as driver of respondent no.3 is not at all responsible for the accident. Respondent no.4 is liable to pay compensation and cited a decision reported in

2002(6) ALD 137 (DB) between New India Assurance Company Limited,

Divisional Office, Madras Vs. B.Malla Reddy and others;

14. On the other hand the learned counsel for petitioner argued that both the vehicles of Respondents no.1 and 3 are responsible for the accident. Petitioners along with their deceased son were travelling in the lorry of Respondent no.1 with their house-hold articles, owners of the luggage are permitted to travel in the lorry. Admittedly petitioners and deceased are third parties to the lorry of Respondent no.3 hence both Respondent no.2 and 4 cannot escape their liability in payment of compensation and cited decisions reported in

i) ACJ 2008 2170 between Andhra Pradesh State Road Transport Corporation and another Vs. K.Hemalatha and others;

ii) 2012 (2) ALD 227 between P.Osuramma Vs. P.Ramachandra and

another;

iii) 2011 ACJ 855 between New India Assurance Co. Ltd. Vs. Shobha

and others;

15.P.W.1 in his complaint only stated that he along with his wife and son boarded lorry at Narasaraopet to go to Hyderabad to work as a Cook in the house of a Doctor. P.W.1 did not mention in his complaint that he boarded the vehicle with his house-hold articles by paying Rs.2000/- to the driver of the lorry. Police did not mention in charge sheet Ex.A2 that petitioner was travelling in 11 the lorry with house-hold articles. Petitioner did not choose to file certified copy of observation report or rough sketch of scene of offence to show that petitioner travelled in the lorry with the house-hold articles. Except the sole testimony of P.W.1 there is no documentary or oral evidence to show that petitioner travelled in the lorry with the house-hold articles by paying Rs.2000/- to the driver of the lorry. Petitioner cannot travel in a goods vehicle.

The contention of the petitioner that he travelled in the goods vehicle as the owner of the goods cannot be accepted without any documentary or oral evidence. If really petitioner travelled as owner of goods P.W.1 would have certainly mentioned in his complaint that he is traveling in the vehicle with his house-hold articles. As petitioner is a gratuitous passenger travelling in goods vehicle and as the owner of the vehicle did not pay premium cover for risk of the passengers travelling in the goods vehicle R2 is not liable to pay compensation.

16.P.W.1 presented a report to the police that the driver of the lorry of 1st respondent is alone responsible for the accident. Police also after investigation filed charge sheet against the driver of 1st respondent only for the offence u/ 337, 338 and 304-A IPC. The driver and Cleaner of the lorry bearing No.AP27W 4986 of 3rd respondent are shown as L.Ws.5 and 6 as injured witnesses.

Petitioner did not file rough sketch or observation reports or photographs taken at the scene of offence to show that the accident occurred due to rash and negligent driving of the drivers of both the vehicles. It was held by their lordships the decision reported in 2002(6) ALD 137 (DB) between New India Assurance 12

Company Limited, Divisional Office, Madras Vs. B.Malla Reddy and

others as ''when the petition is filed under fault liability it means that the claimants are able to establish that the driver of the motor vehicle which met with an accident was at fault. Therefore, there is no question of paying compensation by the owner of the vehicle when the driver of such vehicle had not committed any fault. For 

Example, on evidence if it is proved that there is a collusion of two vehicles and the driver of one of the vehicles was at fault and the other driver was not at fault, then the owner of the vehicle which was at fault and the insurance company with whom such vehicle was insured should be made liable to pay compensation to the legal representative of the deceased. If once the petition is filed under the fault liability the person not making any fault cannot be made liable to pay any compensation''.

17. In the absence of any documentary or oral evidence that the driver of lorry of 3rd respondent is also responsible for the accident and that there was contributory negligence on the part of driver of 3rd Respondent, petitioner is not entitled to claim compensation against respondents no.3 and 4. The evidence of

P.W.1, Ex.A1 and A2 shows that the driver of the lorry of 1st respondent allowed petitioner and his wife along with their son to travel in the cabin of the lorry as a gratuitous passengers and accident occurred on account of rash and negligent driving of driver of 1st respondent. Hence 1st respondent owner of the vehicle is liable to pay compensation awarded to the petitioner on account of tortuous act on the part of his driver. The point answered accordingly.

18. As per Ex.A3 petitioner sustained only simple injury, as

P.W.1 sustained only simple injury and as he has not filed any documentary evidence to show that he has took treatment in the private hospital by spending Rs.15,000/- petitioner is only entitled to a sum of Rs.2000/- towards pain and sufferance. Petitioner 13 might have failed to attend his normal duties for about one week as he received injury to his head, he might have spent some amount for purchase of medicines, extra nourishment, transport, attendant charges and for loss of earning so he is entitled to a consolidated sum of Rs.3000/- under these heads. Total compensation is Rs.5000/-.

19. ISSUE NO.3:Since points 1 and 2 answered in favour of petitioner that this petition is allowed.

In view of the said findings and observations that the petitioner is entitled for a total compensation amount of Rs.5,000/- as shown below :

Pain and sufferance Rs.2,000-00 Purchase of medicines, extra nourishment, Rs. 3,000-00 transport, attendant charges and loss of earnings Total Rs. 5,000-00 (Rupees Five thousand only)

20.In the result , this petition is allowed and the petitioner is entitled for compensation amount of Rs.5000/- (Rupees five thousand only) with subsequent interest at 7.5% P.A. on the said sum from the date of this petition till the date of realization with proportionate costs as follows.

i) The respondent no.1 alone liable to pay the said amount with accrued interest and proportionate costs as ordered and further directed to deposit the same within one month from the date of this award. Rest of the petition claim is dismissed and so far the claim of petitioners against respondents no.2 to 4 is concerned is dismissed without costs. ii) The advocate fee is fixed at Rs.1000/-.

Disbursement :On deposit of the award amount petitioner is entitled to withdraw the entire amount awarded to him i.e

Rs.5000/-.

Typed to my dictation corrected and pronounced by me in the open court this the 26 th day of April, 2012.

Chairman Accident claims Tribunal- 14 -Cum-X Addl. District Judge, (F.T.C) Narasaraopet, Guntur District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERs:-

P.W.1 :- Dasari Anand

FOR RESPONDENT No.2:-

R.W.1: G.V.B.Devanand

FOR RESPONDENT No.4:-

R.W.2: R.Audiseshu

DOCUMENTS MARKED

FOR PETITIONERs:

Ex.A1: certified copy of F.I.R in Cr.No.44/07 of Thipparthy P.S. Ex.A2: certified copy of charge sheet Ex.A3: certified copy of wound certificate

FOR RESPONDENT No.2:

Ex.B1: copy of policy issued in favour of 1st respondent

FOR RESPONDENT No.4:

Ex.B2: copy of insurance policy in favour of respondent no.3

Chairman,

Accident Claims Tribunal

–Cum- X Addl. District Jude, (F.T.C)

Narasaraopet, Guntur District.

15 16

1

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.394/2009 (M.V.O.P.1383/08)

Between:

Garlapati Venkateswarlu s/o Venkaiah, 53yrs, Hindu, r/o near MRO Office, Vinukonda

Post and Mandal, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

Petition filed U/s.163-A, 166 and 140 of M.V.Act claiming compensation of Rs.50,000/- for the injuries sustained by Garlapati

Venkateswarlu in a road traffic accident.

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth order and decree as follows:

D E C R E E

01) That the petition be and the same is hereby allowed in part with proportionate costs awarding compensation of Rs.5,000/- (Rupees five thousand only) with subsequent interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization in favour of petitioner and against the respondent no.1.

2

02) That the rest of the petition claim is hereby dismissed.

03) That respondent no.2 is directed to deposit the award amount infavour of petitioner within one month from the date of this award and then to recover the same from respondent no.1.

04) That upon such deposit of the award amount petitioner is at liberty to withdraw the same.

05) That the advocate fee is fixed at Rs.1000-00

06) That respondents do pay to the petitioner a sum of Rs.130/- towards proportionate costs of the petition and that do bear their own costs of Rs-Nil- (C.M.& F.C. not filed by respondents)

Given under my hand and the seal of the Court, this the 27th day of April, 2012.

(Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet.

TABLE OF COSTS

SL.PARTICULARSPETITIONERRESPONDENTs NO.AwardedAwarded Rs. Rs. Vakalat2-00 Court Fee110-00 C.M.&F.C. Not filed Process Fee66-00 on by respondents Advocate Fee1000-00 Petition Stamps-- Publication charges-- Typing Charges50-00 Writing Charges50-00 Total 1278-00

Proportionate costs Allowed: Rs.130/- (Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet 3

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.394/2009 (M.V.O.P.1383/08)

Between:

Garlapati Venkateswarlu s/o Venkaiah, 53yrs, Hindu, r/o near MRO Office, Vinukonda

Post and Mandal, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth made the following:

J U D G M E N T

The petition is filed U/s.163-A and 166 and 140 of M.V.Act claiming compensation of Rs.50,000/- for the injuries sustained by

Garlapati Venkateswarlu in a road traffic accident.

02)The case of the petitioner in brief is that on 21.1.07 at about 6.am while the petitioner was travelling in auto rickshaw bearing 4 No.AP27W 3913 from his village to Santhamagulur the driver of the said auto rickshaw drove the same in a rash and negligent manner with high speed hit against a lorry from opposite direction near Heritage situated on Narasaraopet to Vinukonda road within the limits of Santhamagulur Police Station. As a result petitioner sustained severe injuries and shifted to Government hospital,

Narasaraopet. The accident was reported to police who registered a case as Cr.No.3/07 u/s 337 IPC against the driver of the auto rickshaw. The accident took place only due to rash and negligent driving of driver of auto-rickshaw.

Petitioner used to earn Rs.100/- per day as a coolie.

Petitioner was unable to attend his regular coolie work after the accident. After the accident petitioner was unable to lift normal weights with his right hand due to loss of grip which was caused for the fracture of the right middle finger. Petitioner spent

Rs.4000/- towards medical expenses.

03) 1st respondent filed written statement stating that the driver of the auto no.AP27W 3913 is having valid driving licence auto was insured with the respondent having policy cover note 528885 valid from 9.10.06 to 8.10.07. The accident was occurred in the course of duration of the policy. The claim of the petitioner is excessive.

04)2nd respondent filed written statement disputing the narration of the accident, involvement of the petitioner and consequential injuries to him. The accident was caused as the opposite lorry also not followed traffic rules and responsible for causing accident. 2nd respondent also stated that the driver of the 5 auto has no valid driving licence as on the date of the accident to drive the vehicle and the claim of the petitioner is excessive.

05. Basing on the above pleadings the following issues are framed for trial :

1) Whether the accident occurred due to rash and negligent driving of driver of AP 27W 3913 auto rickshaw?

2) Whether the petitioner is entitled for compensation, if so to what amount and from whom?

3) To what relief?

06. On behalf of the petitioner, P.Ws.1 and 2 examined and marked Exs.A1 to A4. Respondent no.1 though filed written statement did not participate in the trial. Respondent no.2 examined R.Ws.1 and 2 and marked Ex.B1 to B5 and Ex.X1 to X3.

07. ISSUE NO.1:P.W.1 reiterated the same facts in his chief affidavit that were stated by him in the petition with regard to the narration of the accident. P.W.1 stated that four members including the driver were travelling in the auto at the time of accident. Except making some suggestions nothing was elicited from the cross examination of P.W.1 with regard to the narration of the accident stated by P.W.1. Ex.A1 is certified copy of FIR along with statement of J.Ramanjaneyulu. In the complaint it was mentioned that the auto driver did not observe the lorry coming in opposite direction and dashed against the lorry. The lorry driver did not stop the vehicle and went away the auto turned aside and resulting injuries to his right hand, driver and other passengers also sustained injuries. The auto number was also mentioned in the complaint. The accident said to have been 6 occurred at 5.45 a.m Ex.A2 shows police after investigation laid charge sheet against the driver of the auto. The case sheet of petitioner was also marked as Ex.A4 on consent. Ex.A3 and A4 shows that petitioner was examined at about 9.am on 21.1.07.

The statement of Complainant was recorded at 9.15 a.m. by police in the hospital. So the accident was reported within 4 hours of the accident and P.W.1 was also examined by the Medical Officer in the

Government hospital within 4 hours of the accident. Though 2nd respondent disputed about the narration of the accident stated by

P.W.1 no oral evidence is produced to prove that the accident did not occur due to rash and negligent driving of driver of auto.

Petitioner through his evidence and Ex.A1 to A4 has proved that the accident occurred due to rash and negligent driving of driver of auto bearing No.AP27W 3913 resulting injuries to P.W.1 and others who travelled in the auto. The point answered accordingly.

08.ISSUE NO.2: P.W.1 stated in his evidence that he sustained i) Fracture of right middle finger, ii) Injury to left leg, iii)Severe head injury on right side for which 10 sutures were put.

He was treated as inpatient for one week, plaster of paris cast was applied to the fractured middle right finger. After the accident he was unable to lift even normal weights with his right middle finger.

He used to earn Rs.100/- per day as coolie and presently he was unable to attend his regular coolie work, he was aged 50 years at the time of accident and claiming compensation of Rs.50,000/-.

P.W.1 admitted that he has not filed documentary evidence to 7 show that he took treatment for injuries sustained by him in the accident. He also admitted that he took treatment at Government hospital at free of cost. Ex.A3 wound certificate issued by the

Government Medical officer shows that petitioner sustained three simple injuries. Ex.A4 shows that petitioner was admitted on 21.1.07 at 9.05am and discharged on 4.10p.m on 22.1.07. So petitioner was treated as inpatient for one day only. As petitioner sustained 3 simple injuries he is entitled to a sum of Rs.3000/- towards pain and sufferance. Petitioner might have failed to attend to his normal duties for about one week petitioner might have spent some amount for Extra nourishment, Medical expenses, Attendant and Transport charges. So he is entitled to

Rs.2000/- under these heads. Total compensation is Rs.5000/-.

09. R.W.1 working as Development Officer at Guntur in 2nd

Respondent company stated in his chief affidavit that the driver of the auto has no valid driving licence to drive the auto as on the date of the accident. Six persons were travelling at the time of accident against the seating capacity of three. A registered notice was issued to 1st respondent but the notice was returned as unserved. A notice was also issued to the driver as per the address mentioned in the charge sheet to cause production of copy of driving licence. The driver received the notice but kept quiet. So it clearly shows tat the driver has no valid licence and respondent no.1 knowingly allowed a person who has no driving licence to drive the auto and to carry more passengers than permitted and as 1st respondent violated the terms and conditions of the policy, 2nd respondent is not liable to pay compensation.

8 R.W.1 admitted that as per the contents of charge sheet there was no over load. He also admitted that there was no documentary evidence to show that the six persons travelled in the auto at the time of accident. He also admitted that it was not mentioned either in the FIR or in the charge sheet that the driver has no driving licence and police did not file charge sheet against the driver of the auto for the offence u/s 181 of M.V.Act.

10.R.W.2 working as Junior Asst in RTA stated in his evidence that he was authorized by RTA Narasaraopet to give evidence in this case under Ex.X1. As per the records of RTA Narasaraopet

Srinivasarao Ravuri s/o Ramaiah with Date of Birth 20.7.1979 resident of 1-29, Karumanchi of Savalyapuram mandal of Guntur

Dist was issued driving licence for AIR LMV NCWG non-transport on 29.1.11 and valid upto 19.7.2029 with driving licence no.AB10720110001424. The extract of the driving licence is marked as Ex.X2. The extract of form no.24(B) of registrar of motor vehicles for the vehicle bearing NO.AP27W 3913 marked under Ex.X3 shows that the vehicle was registered in the name of

R1 upto 28.6.07. So the vehicle was registered in the name of R1 on the date of accident. The evidence of R.W.2 clearly shows that

Ravuri Srinivasarao s/o Ramaiah r/o Karumanchi (Driver of the offending vehicle as per charge sheet Ex.A2) obtained driving licence non-transport on 29.1.11. Ex.B2 and B3 shows that respondent No.2 issued notice to the owner and driver of the offending vehicle to produce the particulars of the driving licence of R.Srinivasarao as on the date of the accident. Ex.B4 shows that the notice sent to R.Srinivasarao to the address mentioned in 9 Ex.A2. The notice was received by the driver of the vehicle under

Ex.B5 but he did not choose to furnish the details of his driving particulars as on the date of accident. The door number of the residential address of driver of the offending vehicle is not mentioned in Ex.A2 and B4. But the door number of the house is mentioned in Ex.X2.

11.The learned counsel for respondent no.2 argued that 1st respondent though filed counter did not choose to participate in the trial. The driver of the vehicle though received the notice did not furnish the particulars of his driving licence. The evidence of

R.W.2 clearly shows that the driver of the offending vehicle obtained driving licence from RTA Narasaraopet on 29.1.11. So it clearly shows that the driver of the offending vehicle has no effective driving licence as on the date of accident. Respondent no.1 did not adduce any evidence that he has no knowledge that the driver of the offending vehicle has no driving licence 1st respondent willfully violated the terms and conditions of the policy by allowing a person who has no driving licence to drive the vehicle and violated the terms and conditions of the policy. Hence 2nd respondent is not liable to pay compensation and if at all any compensation is awarded, 1st respondent alone is liable to pay compensation and cited decisions

1) 2011(1) An.W.R 751 (A.P) between United India Insurance Co. Ltd., rep. by its Regional Officer, Hyderabad and another

2) 2008 (1) An.W.R 570 (SC) between Sardari and others Vs. Sushil Kumar and others 

3) 2007 (3) ALD 138 between Oriental Insurance Co., Ltd., Rajahmundry Vs. Bhimala Pavan Kumar and others. 

10

12.On the other hand the learned counsel for the petitioner argued that respondent no.2 did not discharge his burden that the driver of the offending vehicle has no valid and effective driving licence as on the date of accident. Police did not file charge sheet against the driver that he has no valid driving licence on the date of the accident. The driver of the vehicle is not prohibited from obtaining driving licence from any other RTA in the State. R.W.2 admitted that one can get a new driving licence non-transport by applying a fresh and without renewing the expired Driving licence.

Merely because R.W.2 stated that the driver of 1st respondent has obtained driving licence in the month of January, 2011 it cannot be concluded that driver has no Driving licence prior to obtaining new licence. Petitioner is a third party even if the driver has no driving licence Respondent no.2 cannot escape its liability, the tribunal is competent to order the insurance company to pay compensation initially and to recover the same from the insured later and cited decisions reported in

1) 2004 ACJ 1 S.C between National Insurance Co. Ltd. Vs. Swaran Singh and others

2) 2012 ACJ 567 between Oriental Insurance Co. Ltd. Vs. Chandra Devi and others 

3) 2009 ACJ 992 between National Insurance Co. Ltd. Vs. Neelam and others

4) 2011(5) A.L.D 184 between Jayaprakash Agarwal and others Vs. Mohd.Kaleemulla and another

5) 2007 ACJ 2760 between New India Assurance Co. Ltd. Vs. Komma venkateswarlu (died) through L.Rs. and another

13.Respondent no.2 only proved that the driver of 1st respondent obtained a licence on 29.1.11 under Ex.X3. The evidence of R.W.2 shows that there is a possibility of obtaining 11 new licence instead of renewing the expired licence by paying penalty. R.W.2 also admitted that there is a possibility of obtaining driving licence from any other RTA by furnishing proof of residence in that particular jurisdiction of RTA. The evidence of respondent no.2 is not at all sufficient to show that the driver of 1st respondent has no driving licence at all as on the date of accident.

Admittedly police did not file charge sheet against the driver of 1st respondent for violation of M.V.Act and Rules. Respondent no.1 though filed counter did not participate in the trial 1st respondent also did not enter into box to show that he has verified the driving licence of his driver. Ex.X3 shows that 1st respondent has transferred the vehicle on 28.6.07 after the accident. So it may become difficult for the petitioner to recover the compensation from 1st respondent. Relying upon the decisions cited by the petitioner it is just and reasonable to direct respondent no.2 to pay the compensation awarded to the petitioner initially and to recover the same from respondent no.1 without filing any separate suit.

14. ISSUE NO.3In view of the said findings and observations that the petitioner is entitled for a total compensation amount of Rs.5000/- as shown below:

Pain and sufferance Rs. 3,000-00 Extra nourishment, medical expenses, attendant and Rs. 2,000-00 transport charges Total Rs. 5,000-00 (Rupees five thousand only)

15.In the result , this petition is allowed and the petitioner is entitled for compensation amount of Rs.5000/- (Rupees five thousand only) with subsequent interest at 7.5% P.A. on the said sum from the date of this petition till the date of realization with proportionate costs as follows.

12

i)The respondent no.2 shall satisfy the decree passed in favour of petitioner at first instance and entitled to recover the amount so paid to petitioner from respondent no.1 who registered owner of vehicle without filing a separate suit and by filing an execution petition and further directed to deposit the same within one month from the date of this award. Rest of the petition claim is dismissed without costs . ii) The advocate fee is fixed at Rs.1000/-.

Disbursement :On deposit of the award amount petitioner is entitled to withdraw the entire amount awarded to him i.e

Rs.5000/-.

Typed my dictation by steno-typist corrected and pronounced by me in the open court this the 27 th day of April, 2012 .

Chairman Accident claims Tribunal- -Cum-X Addl. District Judge, (F.T.C) Narasaraopet, Guntur District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERs:-

P.W.1 :-Garlapati Venkateswarlu

FOR RESPONDENTS:-

R.W.1: Mekala Ramireddy R.W.2: S.Naga Maheswararao

DOCUMENTS MARKED

FOR PETITIONERs:

Ex.A1: certified copy of F.I.R in Cr.No.3/07 of Santhamagulur P.S. Ex.A2: certified copy of Charge sheet in C.C.227/07 Ex.A3: certified copy of wound certificate Ex.A4: Case sheet of petitioner

FOR RESPONDENT No.2:

Ex.B1: Attested copy of Insurance policy issued in favour of 1st respondent Ex.B2: office copy of register notice issued to 1st respondent dt.1.10.10 to cause production of documents Ex.B3: returned unserved notice of Ex.B2 Ex.B4: office copy of notice issued R2 office to R1 driver Ex.B5: acknowledgment of Ex.B4 Documents marked in the evidence of R.W.2: Ex.X1: authorization given to R.W.2 to give evidence in court Ex.X2: extract of driving licence of Srinivasarao Ravuri Ex.X3: extract of form no.24-B of Registrar of Motor vehicles for the vehicle No.AP27W 3913

Chairman,

Accident Claims Tribunal

–Cum- X Addl. District Jude, (F.T.C)

Narasaraopet, Guntur District.

13

1

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.395/2009 (M.V.O.P. 1384/08)

Between: Garlapati Nagaratnamma w/o Venkateswarlu 45yrs, Hindu, r/o near MRO Office, Vinukonda

Post and Mandal, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

Petition filed U/s.163-A and 166 and 140 of M.V.Act claiming compensation of Rs.50,000/- for the injuries sustained by Garlapati

Nagaratnamma in a road traffic accident.

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth order and decree as follows:

D E C R E E

01) That the petition be and the same is hereby allowed in part with proportionate costs awarding compensation of Rs.6,000/- (Rupees six thousand only) with subsequent interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization in favour of petitioner and against the respondent no.1.

2

02) That the rest of the petition claim is hereby dismissed.

03) That respondent no.2 is directed to deposit the award amount infavour of petitioner within one month from the date of this award and then to recover the same from respondent no.1.

04) That upon such deposit of the award amount petitioner is at liberty to withdraw the same.

05) That the advocate fee is fixed at Rs.1000-00

06) that respondents do pay to the petitioner a sum of Rs.180/- towards proportionate costs of the petition and that do bear their own costs of Rs-Nil- (C.M.& F.C. not filed by respondents).

Given under my hand and the seal of the Court, this the 27th day of April, 2012.

(Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet.

TABLE OF COSTS

SL.PARTICULARSPETITIONERRESPONDENTs NO.AwardedAwarded Rs. Rs. Vakalat2-00 Court Fee110-00 C.M.&F.C. Not filed Process Fee232-00 by respondent Advocate Fee1000-00 Petition Stamps-- Publication charges-- Typing Charges50-00 Writing Charges50-00 Total 1444-00

Proportionate costs Allowed: Rs.180/- (Sri.B.Ramarao XIII Addl. District & Sessions Judge For A.Jagadeesh Chandrarao formerly X Addl.District&Sessions Judge)

CHAIRMAN,

MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL,

-cum-X Addl. Sessions Judge, Narasaraopet 3

BEFORE THE MOTOR VEHICLE ACCIDENT CLAIMSTRIBUNAL

–CUM- X ADDL.DISTRICT JUDGE, NARASARAOPET

GUNTUR DISTRICT

PRESENT: A.Jagadeesh Chandra Rao Chairman, Accident Claims Tribunal-Cum X Addl. District Judge (F.T.C.) Narasaraopet,

Friday, this the 27th day of April, 2012

M.V.O.P.No.395/2009 (M.V.O.P. 1384/08)

Between: Garlapati Nagaratnamma w/o Venkateswarlu 45yrs, Hindu, r/o near MRO Office, Vinukonda

Post and Mandal, Guntur Dist. ...Petitioner

And

1) Korlapolu George s/o Lazar, owner of auto rickshaw (API) bearing Regn.No.AP 27W 3913 Indira Nagar, Yerragondapalem post and Mandal, Prakasam Dist. Addanki DMC.

2) The Oriental Insurance Co.Ltd., rep. By its Divisional Manager, Vijayawada -10, Divisional Office No.2, Vijayawada DMC. (Cover note No.528885, Valid from

9.10.06 to 8.10.07) ...Respondents

This case coming on 22-03-2012 for final hearing before me in the presence of Sri.Rachamalla Sanjeeva Reddy, advocate for the petitioners, and Sri Y.Prasad, Advocate for the respondent no.1 and of Sri.K.Srinivasarao, advocate for respondent no.2 and having stood over for consideration till this day, this court doth made the following:

J U D G M E N T

The petition is filed U/s.163-A and 166 and 140 of M.V.Act claiming compensation of Rs.50,000/- for the injuries sustained by

Garlapati Nagaratnamma in a road traffic accident.

02)The case of the petitioner in brief is that on 21.1.07 at about 6.am while the petitioner was travelling in auto rickshaw bearing 4 No.AP27W 3913 from his village to Santhamagulur the driver of the said auto rickshaw drove the same in a rash and negligent manner with high speed hit against a lorry from opposite direction near Heritage situated on Narasaraopet to Vinukonda road within the limits of Santhamagulur Police Station. As a result petitioner sustained injuries to left hand, face and right knee and shifted to

Government hospital, Narasaraopet. The accident was reported to police who registered a case as Cr.No.3/07 u/s 337 IPC against the driver of the auto rickshaw. The accident took place only due to rash and negligent driving of driver of auto-rickshaw.

Petitioner used to earn Rs.100/- per day as a coolie.

Petitioner was unable to attend her regular coolie work after the accident. After the accident petitioner was unable to walk properly due to injury to her right knee. Petitioner spent Rs.4000/- so far towards her medical expenses.

03) 1st respondent filed written statement stating that the driver of the auto no.AP27W 3913 is having valid driving licence auto was insured with the respondent having policy cover note 528885 valid from 9.10.06 to 8.10.07. The accident was occurred in the course of duration of the policy. The claim of the petitioner is excessive.

04)2nd respondent filed written statement disputing the narration of the accident, involvement of the petitioner and consequential injuries to him. The accident was caused as the opposite lorry also not followed traffic rules and responsible for causing accident. 2nd respondent also stated that the driver of the 5 auto has no valid driving licence as on the date of the accident to drive the vehicle and the claim of the petitioner is excessive.

05. Basing on the above pleadings the following issues are framed for trial :

1) Whether the accident occurred due to rash and negligent driving of driver of AP 27W 3913 auto rickshaw?

2) Whether the petitioner is entitled for compensation, if so to what amount and from whom?

3) To what relief?

05. On behalf of the petitioner, P.W.1 is examined and marked

Exs.A1 to A4. Respondent no.1 though filed written statement did not participate in the trial. Respondent no.2 examined R.Ws.1 and 2 and marked Ex.B1 to B5 and Ex.X1 to X3.

06. ISSUE NO.1: P.W.1 reiterated the same facts in his chief affidavit that were stated by him in the petition with regard to the narration of the accident. P.W.1 stated that 4 members including the driver were travelling in the auto at the time of accident. Except making some suggestions nothing was elicited from the cross examination of P.W.1 with regard to the narration of the accident stated by P.W.1. Ex.A1 is certified copy of FIR along with statement of J.Ramanjaneyulu. In the complaint it was mentioned that the auto driver did not observe the lorry coming in opposite direction and dashed against the lorry, the lorry driver did not stop the vehicle and went away the auto turned aside and resulting injuries to her left hand, nose, head and right knee.

driver and other passengers also sustained injuries. The auto number was also mentioned in the complaint. The accident said to 6 have been occurred at 5.45 a.m Ex.A2 shows police after investigation laid charge sheet against the driver of the auto. The case sheet of petitioner was also marked as Ex.X4 on consent.

Ex.A3 and A4 shows that petitioner was examined at about 9.am on 21.1.07. The statement of complainant was recorded at 9.15 a.m. by police in the hospital. So the accident was reported within 4 hours of the accident and she was also examined by the Medical

Officer in the Government hospital within 4 hours of the accident.

Though 2nd respondent disputed about the narration of the accident stated by P.W.1 no oral evidence is produced to prove that the accident did not occur due to rash and negligent driving of driver of auto. Petitioner through her evidence and Ex.A1 to A4 has proved that the accident occurred due to rash and negligent driving of driver of auto bearing No.AP27W 3913 resulting injuries to P.W.1 and others who travelled in the auto. The point answered accordingly.

07.ISSUE NO.2: P.W.1 stated in her evidence that she sustained injuries i) Sutured injuries to the left hand near elbow for which as many as ten sutures were put ii) Sutures injury to nose for which as many as 7 sutures were put iii) Injury to upper lip for which 4 sutures were put iv) Injury to head for which 5 sutures were put v) Injury to right knee for which 6 sutures were put.

Ex.A3 wound certificate shows that petitioner sustained four injuries and they are simple in nature. Ex.A4 shows that petitioner was discharged on 22.1.07. She also admitted that she took treatment at Government hospital at free of cost. According to

P.W.1 the documents relating to her treatment at Chilakaluripet 7 private hospital were lost. As petitioner sustained 4 simple injuries she is entitled to a sum of Rs.4000/- towards pain and sufferance. Petitioner might have failed to attend to her normal duties for about one week petitioner might have spent some amount for Extra nourishment, Medical, Attendant and Transport charges so she is entitled to Rs.2000/- under these heads. Total compensation Rs.6000/-.

08.R.W.1 working as Development Officer at Guntur in 2nd respondent company stated in his chief affidavit that the driver of the auto has no valid driving licence to drive the auto as on the date of the accident. Six persons were travelling at the time of accident against the seating capacity of three. A registered notice was issued to 1st respondent but the notice was returned as unserved. A notice was also issued to the driver as per the address mentioned in the charge sheet to cause production of copy of driving licence. The driver received the notice but kept quiet. So it clearly shows that the driver has no valid licence and respondent no.1 knowingly allowed a person who has no driving licence to drive the auto and to carry more passengers than permitted and as 1st respondent violated the terms and conditions of the policy 2nd respondent is not liable to pay compensation.

R.W.1 admitted that as per the contents of charge sheet there was no over load he also admitted that there was no documentary evidence to show that the six persons travelled in the auto at the time of accident. He also admitted that it was not mentioned either in the FIR or in the charge sheet that the driver has no 8 driving licence and police did not file charge sheet against the driver of the auto for the offence u/s 181 of M.V.Act.

09.R.W.2 working as Junior Asst in RTA, Narasaraopet stated in his evidence that he was authorized by RTA

Narasaraopet to give evidence in this case under Ex.X1. As per the records of RTA Narasaraopet Srinivasarao Ravuri s/o Ramaiah with

Date of Birth 20.7.1979 resident of 1-29, Karumanchi of

Savalyapuram mandal of Guntur Dist was issued driving licence for AIR LMV NCWG non-transport on 29.1.11 and valid upto 19.7.2029 with driving licence no.AB10720110001424. The extract of the driving licence is marked as Ex.X2. The extract of form no.24(B) of registrar of motor vehicles for the vehicle bearing

No.AP27W 3913 marked under Ex.X3 shows that the vehicle was registered in the name of R1 upto 28.6.07. So the vehicle was registered in the name of R1 on the date of accident. The evidence of R.W.2 shows that Ravuri Srinivasarao s/oRamaiah r/oKarumanchi (Driver of the offending vehicle as per charge sheet

Ex.A2) obtained driving licence non-transport on 29.1.11. Ex.B2 and B3 shows that respondent No.2 issued notice to the owner and driver of the offending vehicle to produce the particulars of the driving licence of R.Srinivasarao as on the date of the accident. Ex.B4 shows that the notice sent to R.Srinivasarao to the address mentioned in Ex.A2.The notice was received by the driver of the vehicle under Ex.B5 but he did not choose to furnish the details of his driving particulars as on the date of accident.The door number of the residential address of driver of the offending vehicle is not 9 mentioned in Ex.A2 and B4. But the door number of the house is mentioned in Ex.X2.

10.The learned counsel for respondent no.2 argued that 1st respondent though filed counter did not choose to participate in the trial. The driver of the vehicle though received the notice did not furnish the particulars of his driving licence. The evidence of

R.W.2 clearly shows that the driver of the offending vehicle obtained driving licence from RTA Narasaraopet on 29.1.11. So it clearly shows that the driver of the offending vehicle has no effective driving licence as on the date of accident. Respondent no.1 did not adduce any evidence that he has no knowledge that the driver of the offending vehicle has no driving licence 1st respondent willfully violated the terms and conditions of the policy by allowing a person who has no driving licence to drive the vehicle and violated the terms and conditions of the policy. Hence 2nd respondent is not liable to pay compensation and if at all any compensation is awarded 1st respondent alone is liable to pay compensation and cited decisions

1) 2011(1) An.W.R 751 (A.P) between United India Insurance Co. Ltd., rep. by its Regional Officer, Hyderabad and another

2) 2008 (1) An.W.R 570 (SC) between Sardari and others Vs. Sushil Kumar and others 

3) 2007 (3) ALD 138 between Oriental Insurance Co., Ltd., Rajahmundry Vs. Bhimala Pavan Kumar and others. 

11.On the other hand the learned counsel for the petitioner argued that respondent no.2 did not discharge his burden that the driver of the offending vehicle has no valid and effective driving licence as on the date of accident. Police did not file charge sheet 10 against the driver that he has no valid driving licence on the date of the accident. The driver of the vehicle is not prohibited from obtaining driving licence from any other RTA in the State. R.W.2 admitted in his evidence that one can get a new driving licence non-transport by applying afresh without renewing the expired driving licence. Driver of respondent no.1 might have applied for a new licence in the month of January, 2011 instead of renewing the expired old licence. Merely because R.W.2 stated that the driver of 1st respondent has obtained driving licence in the moth of January, 2011 it cannot be concluded that the driver has no driving licence prior to obtaining new licence. Petitioner's counsel further argued that as per Ex.X2 the vehicle was transferred by R1 to another person after the accident. Petitioner is a third party even if the driver has no driving licence Respondent no.2 cannot escape its liability. The tribunal is competent to order the insurance company to pay compensation initially and to recover the same from the insured later and cited decisions reported in

1) 2004 ACJ 1 S.C between National Insurance Co. Ltd. Vs. Swaran Singh and others

2) 2012 ACJ 567 between Oriental Insurance Co. Ltd. Vs. Chandra Devi and others 

3) 2009 ACJ 992 between National Insurance Co. Ltd. Vs. Neelam and others

4) 2011(5) A.L.D 184 between Jayaprakash Agarwal and others Vs. Mohd.Kaleemulla and another

5) 2007 ACJ 2760 between New India Assurance Co. Ltd. Vs. Komma venkateswarlu (died) through L.Rs. and another

12.Respondent no.2 only proved that the driver of 1st respondent obtained a licence on 29.1.11 under Ex.X2. The evidence of R.W.2 shows that there is a possibility of obtaining 11 new licence instead of renewing the expired licence by paying penalty. R.W.2 also admitted that there is a possibility of obtaining driving licence from any other RTA by furnishing proof of residence in that particular jurisdiction of RTA. The evidence of respondent no.2 is not at all sufficient to show that the driver of 1st respondent has no driving licence at all as on the date of accident.

Admittedly police did not file charge sheet against the driver of 1st respondent for violation of M.V.Act and Rules. Respondent no.1 though filed counter did not participate in the trial 1st respondent also did not enter into box to show that he has verified the driving licence of his driver. Ex.X3 shows that 1st respondent has transferred the vehicle on 28.6.07 after the accident. So it may become difficult for the petitioner to recover the compensation from 1st respondent. Relying upon the decisions cited by the petitioner it is just and reasonable to direct respondent no.2 to pay the compensation awarded to the petitioner initially and to recover the same from respondent no.1 without filing any separate suit.

13. ISSUE NO.3In view of the said findings and observations that the petitioner is entitled for a total compensation amount of Rs.6000/- as shown below:

Pain and sufferance Rs. 4,000-00 Extra nourishment, medical expenses, attendant and Rs. 2,000-00 transport charges Total Rs. 6,000-00 (Rupees six thousand only)

14.In the result , this petition is allowed and the petitioner is entitled for compensation amount of Rs.6000/- (Rupees Six thousand only) with subsequent interest at 7.5% P.A. on the said sum from the date of this petition till the date of realization with proportionate costs as follows.

12

i)The respondent no.2 shall satisfy the decree passed in favour of petitioner at first instance and entitled to recover the amount so paid to petitioner from respondent no.1 registered owner of vehicle without filing a separate suit and by filing an execution petition and further directed to deposit the same within one month from the date of this award. Rest of the petition claim is dismissed without costs. ii) The advocate fee is fixed at Rs.1000/-.

Disbursement :On deposit of the award amount petitioner is entitled to withdraw the entire amount awarded to her i.e

Rs.6000/-. Typed my dictation by steno-typist corrected and pronounced by me in the open court this the 27 th day of April, 2012 .

Chairman Accident claims Tribunal- -Cum-X Addl. District Judge, (F.T.C) Narasaraopet, Guntur District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERs:-

P.W.1 :-Garlapati Nagaratnamma

FOR RESPONDENTS:-

R.W.1: Mekala Ramireddy R.W.2: S.Naga Maheswararao

DOCUMENTS MARKED

FOR PETITIONERs:

Ex.A1: certified copy of F.I.R in Cr.No.3/07 of Santhamagulur P.S. Ex.A2: certified copy of Charge sheet in C.C.227/07 Ex.A3: certified copy of wound certificate Ex.A4: Case sheet of petitioner

FOR RESPONDENT No.2:

Ex.B1: Attested copy of Insurance policy issued in favour of 1st respondent Ex.B2: office copy of register notice issued to 1st respondent dt.1.10.10 to cause production of documents Ex.B3: returned unserved notice of Ex.B2 Ex.B4: office copy of notice issued R2 office to R1 driver Ex.B5: acknowledgment of Ex.B4 Documents marked in the evidence of R.W.2: Ex.X1: authorization given to R.W.2 to give evidence in court Ex.X2: extract of driving licence of Srinivasarao Ravuri Ex.X3: extract of form no.24-B of Registrar of Motor vehicles for the vehicle No.AP27W 3913

Chairman,

Accident Claims Tribunal

–Cum- X Addl. District Jude, (F.T.C)

Narasaraopet, Guntur District.

13 14

1

BEFORE THE X ADDL. DISTRICT & SESSIONS JUDGE, (F.T.C.)

GUNTUR AT NARASARAOPET

PRESENT :A.Jagadeesh Chandra Rao, X Addl. District & Sessions Judge, (F.T.C.) Guntur at Narasaraopet

Friday, this the 27th day of April, 2012

C.R.P.No.74/2008

Between: Perumalla Venkata Sivannarayana (Amended as per Orders in Crl.M.P.No.71/09 dt.25.2.09) s/o Guru Prasada Babu, Hindu, 45yrs, Prop. Amara Nagarjuna Enterprises, Dachepalli, Guntur Dist. … Revision Petitioner/ Complainant

And

1) Shaik Sabeen w/o Mahin, Muslim, 40yrs, Prop. Zubeena Traders, D.No.26-13-98, Nagarampalem, Guntur.

2) The State rep. by Public Prosecutor, Guntur.…Respondents

This case coming on 16.4.12 for final hearing before me in the presence of Sri M.Sreekrishna, Advocate for the Revision

Petitioner, and of Sri.K.Sambasivarao, advocate for respondent and having stood over for consideration till this day, this court doth made the following:

J U D G M E N T

The present revision petition filed by the Complaint for enhancement of sentence imposed by the learned I Addl. Junior

Civil Judge, Gurazala in C.C.38/98 dt.27.3.08.

02.The brief facts of the case are that: The Revision petitioner herein filed a complaint against the respondent no.1/accused for the offence U/sec.138 of N.I.Act alleging that accused purchased cotton lint valued Rs.2,05,996/-, under credit basis vide Bill No.4 dt.15.06.1997, accused issued a cheque bearing No.274561 dt.11.09.1997 for Rs.2,05,996/- drawn on U.C.O Bank, Arundelpet 2 Branch, Guntur towards payment of the cotton lint purchased by her. The cheque was dishonoured for insufficient funds. The complainant issued a Lawyer notice by registered post

U/sec.138(b) of N.I.Act. Accused refused to receive the registered notice on 30.03.1998 and also did not make any payment.

03.The trial court after considering the evidence on record found accused/1st respondent guilty for the offence U/sec.138 of

N.I.Act convicted 1st respondent for the offence U/sec.138 of

N.I.Act and sentenced her to pay a fine of Rs.10,000/- and out of which Rs.8000/- shall be paid to the Complainant as compensation and the remaining Rs.2000/- shall be paid to Court as fine and in default to pay fine amount to under go Simple imprisonment for

One month.

04.Aggrieved by judgment of trial court for not imposing sentence of imprisonment and for not imposing double the cheque amount as fine Complainant has preferred the present Revision

Petition.

05.Grounds of Revision Petition:

1) The trial court ought to have considered that 1 st respondent is doing business and not an ordinary woman.

2) The trial court ought to have considered that the cheque was issued towards discharge of a business transaction.

3) The trial court ought to have held that 1 st respondent is not entitled for any lenient view as the cheque is for huge amount of Rs.2,05,966/-.

4) The trial court ought to have held that taking lenient view in imposing sentence is against the spirit of sec.138 of N.I.Act.

5) The trial court ought to have taken into consideration that 1 st respondent did not honour the decree passed by the Civil

Court.

06.The learned I Addl. Junior Civil Judge, Gurazala held in Para no.16 at page No.8 of her judgment that ''she took a lenient view on humanitarian grounds on the ground that as accused is a 3 woman having handicapped child and nobody is there to look after the child except accused and if the court imposes imprisonment to accused that conviction of imprisonment certainly will reflect the life of the handicapped child and it might be punishment to him also and he will suffer without committing any offence in the absence of his mother assistance and also as the Complainant obtained a decree against the accused in the

Suit filed by him for the same transaction''.

07.Point for determination are :

1) Whether Revision Petition by the Complainant for enhancement of sentence of imprisonment or fine before the Sessions Court u/s 397 and 399 Cr.P.C is maintainable?

2) Whether the sentence of imposing payment of fine of Rs.10,000/- as recorded by the I Addl. Junior Civil Judge, Gurazala dt. For the cheque amount of Rs.2,05,996 is sustainable or call for any interference in this revision petition filed u/s 397 and 399 of Cr.P.C?

08.P O I N T NO.1: The learned counsel for the Revision petitioner/Complainant argued that accused/1st respondent is a

Business Woman, accused has given the cheque towards payment of Cotton lint purchased by her, imposing a fine of Rs.10,000/- for the cheque Rs.2,05,996/- is not at all sufficient. Complaint for dishonour of cheque is filed by a private person it was not prosecuted by State. Hence Revision Petition by a private party

before Sessions Court is maintainable and cited decisions

i) Between Sanjeev Mishra and another Vs. Manoj Jain reported in 2002 Crl.L.J 1704 ;

ii) Between Surasani Venkata Reddy Vs. State of Andhra Pradesh reported 

in 2011(1) ALD (Crl.) 364 (A.P);

09. On the other hand the learned counsel for the accused/ 1st respondent argued that amendment to Section 372 Cr.P.C came into force as per the amended act 2008 (Act 5 of 2009) on 31.12.09. The Revision Petition was filed into the court on 7.5.08.

So the appeal by the Victim for convicting the accused for lesser offence or imposing inadequate compensation in this case is not maintainable, as the judgment was delivered by the trial court on 27.3.08 i.e prior to the amendment and also cited a decision 4 reported in 1997 Crl.L.J 1930 between Asstt. Collector of Central Excise Vs. 

V.Krishnamoorthy.

10.As seen from the docket of this revision petition, the learned counsel for Revision Petitioner cited a decision between Paladugu 

Srimannarayana Vs. Bonu Seetha Devi and another reported in 2004 

(1) ALT (Crl.) 58 (A.P) at the time of consideration for taking the

Revision Petition on file by the Sessions Court. His lordship held in the decision supra at Para no.5 and 6 as ''This revision is filed under

Section 397 and 401 of Cr.P.C. While Section 397 of Cr.P.C. is the source of 

power of revision, Section401 Cr.P.C., provides the manner in which it is to be 

exercised. Section 397 of Cr.P.C. Confers the powers of revision on the High 

Court as well as the Court of Sessions. The similarity of the powers of the High 

Court as well as the Court of Sessions is evident from Section399 of Cr.P.C. 

They are almost identical. The High Court as well as Sessions Court are 

precluded from converting the order of acquittal into the one of conviction, in 

view of the bar contained in sub­section (3) of Section 401 Cr.P.C.

So far as the power to enhance the sentence is concerned, section377 

Cr.P.C., enables the State Government to prefer an appeal as regards 

inadequacy of sentence. Such appeals are required to be filed in the High 

Court alone. For cases other than those provided for under Section377 

Cr.P.C., one has invariably to fall back on Section397 Cr.P.C. The power 

under Section397 Cr.P.C. Vested with the High Court or Sessions Court is so 

wide that it can examine the correctness, legality or propriety of the two 

important aspects, namely, finding and sentence. If the High Court or 

Sessions Court is satisfied that the trial Court was not correct in the matter of 

finding or sentence, it can pass appropriate orders subject however, to the 

condition that an order of acquittal cannot be converted into one of 

conviction. When the conferment of these powers are similar as regards High 

Court and Sessions Court, there is no legal impediment for the petitioner to 

approach the Sessions Court, where the criminal Appeal No.224 of 2002 is 

pending''. 

11.I Humbly submit that the decision cited by the learned counsel for accused is with regard to the maintainability of the appeal by the Asst. Collector of Central Excise U/sec.377 Cr.P.C on the ground of inadequacy of sentence. Then the Hon'ble Supreme

Court held that the Public Prosecutor under the directions of the

Central Government is obliged to present an appeal to the High 5 court against the sentence on the ground of its inadequacy such power does not vest with the Complainant but in this case no appeal was filed u/s 377 of Cr.P.C. Relying upon the above decisions cited by the learned counsel for revision petitioner and facts of this case the revision petition is maintainable. The point answered accordingly.

12.P O I N T No.2: As seen from the judgment of trial court accused/R1 did not appear before the court on the date of judgment on the ground that she went to Chennai for treatment of her child and the petition filed U/sec.317 Cr.P.C to condone the absence of accused was allowed and judgment was pronounced in the absence of accused without hearing the accused about the quantum of sentence that has to be imposed on her.

13.It was held by his lordship in the decision reported in a decision between K rutti Venkata Appa Rao Vs. Kaki Uma Shankara

Rao and another reported in 2004 (1) ALT (Crl.) 31 (A.P.) in para no.5 

at page no.32 as ''Chapter­XVII of the Negotiable Instruments Act was 

introduced with an object of curbing the practice of indiscriminate issuance 

of cheques, without making necessary arrangements. The offence under that 

Section cannot be equated with those under the IPC. If a person held guilty of 

the offence under Section 138 of the Act is let off by imposing a fine of paltry 

amount, it virtually amounts to putting a premium on their misdeeds. The 

offences under Chapter­ XVII of the Act, are the best instances, where the 

discretion under sub­section (3) of Section357 Cr.P.C., be exercised. The trial 

court ought to have either imposed the sentence of imprisonment or ordered 

payment of compensation. This court feels that the order of the trial court 

does not conform to the leter and spirit of the provisions of the Negotiable 

Instruments Act and Cr.P.C.'' 

14.In this case also the cheque is for Rs.2,05,996/-. The trial court sentenced the accused to pay a fine of Rs.10,000/- on the ground that the accused is having physically disabled son. The trial court ought to have adjourned the case for hearing the accused about the quantum of sentence that has to be imposed on her. Imposing a fine of Rs.10,000/- when the dishonoured 6 cheuque amount of Rs.2,05,996/- towards business transaction is not correct. Ex.P12 judgment in O.S.43/2000 on the file of Senior

Civil Judge, Gurazala shows that accused is the proprietor of

Zubeena Traders. At page no.12 in the last sentence of paragraph no.16 in Ex.P12 it was mentioned as ''Admittedly Shaik.Sabina the wife of D.W.1 used to go out of Town for the purpose of her business. So it clearly shows that she is not a woman of ''Paradanashi''. So the contents of Ex.P12 clearly shows accused is a Business woman.

Even without hearing the accused about the quantum of sentence imposing fine is not correct.

15.Relying upon the above decisions and facts of this case I am of considered view that it is a fit case to remand the matter to trial court to pass appropriate sentence after hearing the accused.

16.In the result, Order of the Trial court in so far as it relates to sentence is set aside and the matter is remanded to the trial court for passing of fresh orders as to sentence, after giving an opportunity to the 1st respondent/accused. Both parties shall appear before I Addl. Junior Civil Judge, Gurazala on 05.06.2012.

Typed to my dictation by Steno-Typist corrected and

pronounced by me in the open court this the 27th day of April,

2012.

X Addl. District Jude (F.T.C)

Narasaraopet, Guntur District.

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