A.Mary Gracekumari,scst court Judge

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IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL

(BEFORE THE IV ADDL. DISTRICT JUDGE, ANANTHAPURAMU)

Present:- Smt A.Mary Grace Kumari, Chairman-cum-VIII Addl. District Judge, Ananthapuramu FAC IV Additional District Judge, (FTC) Anantapuramu.

Monday, the 8th day of October, 2018.

M.V.O.P. No.367/2013

Between:-

1. Pikkili Kamakshi

2. Pikkili Nagarathnamma

3.Pikkili Suryanarayana… Petitioners

And

1. Kanuri Venkataramana

2. The Divisional Manager, Oriental Insurance Co. Ltd., Ananthapuramu.

3. T. Bala Gampaiah

4. The Manager, Legal Cell, Shriram General Insurance Co. Ltd., Jaipur, Rajasthan State.

5. A. Seenu (R5 added as per orders in IA No.141/15, dt.09.03.2016) … Respondents

This petition coming on 18.09.2018 for final hearing before me in the presence of Sri P. Chenna Reddy, advocate for the petitioners and the respondents No.1 and 3 having been called absent and set exparte and Sri M.Suresh Kumar, advocate for respondent No.2, Sri T. Ramakrishna, advocate

for respondent No.4 and Sri B. Narayana Reddy, advocate for respondent No.5

and the matter stood over for consideration till this day, the court made the following:-

O R D E R

This petition is filed U/sec.140 & 163(A) of Motor Vehicles Act, 1988 and Rule 455 of APMV Rules, 1989 by Pikkili Kamakshi, Pikkili Nagarathnamma and Pikkili

Suryanarayana (herein after referred to as petitioners 1, 2 and 3 whenever they required) claiming for compensation of Rs.5,00,000/- for the death of one Pikkili

Adinarayana @ Adi (hereinafter referred to as deceased) in Motor Vehicle accident.

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2.The brief facts of the petition and neat copy of petition are as follows:-

On 26.07.2012 at about 8.00 pm the deceased by name Adinarayana @ Adi along with cleaner left his mini lorry bearing No.AP-02-TA-2843 from Vijayawada with a load of Nudels packets to go to Anantapur for unloading. While the said mini lorry was proceeding on the way and after passing Narasaraopet town and near to reach at Uppalapadu Village, while at about 11.00 pm one lorry bearing No.AP-16-TA-4410 came from opposite side in a rash and negligent manner and dashed against the deceased vehicle. Due to that impact both the vehicle drivers received injuries and also both the vehicles were badly damaged. Then immediately shifted them to Govt.

Hospital, Narasaraopet in 108 ambulance for medical treatment, where the deceased died while undergoing treatment. Then the same is informed to his relatives and owner of the mini lorry. Then the petitioners and their relatives came there and saw the dead body of the deceased. The duty doctor at Govt. Hospital,

Narasaraopet conducted autopsy of the deceased dead body. There is no negligence on the part of the deceased.

A case was registered in Cr.No.148/2012 U/secs. 337 and 304-A IPC by

Narasaraopet Police against the driver of Eicher mini lorry bearing No.AP-02-TA-2843.

The 1st respondent being owner of lorry bearing No.AP-16-TU-4410, 2nd respondent being the insurer of lorry bearing No.AP-16-TU-4410, 3rd respondent being owner of the mini lorry bearing No.AP-02-TA-2843, 4th respondent being insurer of the mini lorry bearing No.AP-02-TA-2843 and 5th respondent being driver of the mini lorry bearing No.AP-02-TA-2843 are jointly and severally liable to pay the compensation.

During the pendency of O.P proceedings, Petitioner No.1 wife of deceased and petitioner Nos.2 and 3 are parents of the deceased. All the petitioners claiming compensation for the death of deceased. The deceased was aged about 23 years and he was hale and healthy at the time of accident. He was working as driver and getting monthly earnings of Rs.6,000/-. All his family members are depending upon his earnings. Due to the sudden demise of the deceased, all the petitioners have lost their love and affection and also financial support. The deceased is only son of the 3 petitioners Nos. 2 and 3. Therefore, the petitioners are entitled for compensation of

Rs.5,00,000/-. Hence, the petition.

3.The learned counsel for petitioner filed a memo that the petition claim restricted to the earnings of deceased as Rs.40,000/- per annum under Sec.163-A of

M.V. Act.

4.Respondent Nos.1 and 3 remained exparte.

5.The respondent Nos.2, 4 and 5 filed their respective counters denying the allegations mentioned in the petition and prays the court to dismiss the petition.

6.The material averments of the counter of R2 in brief, are as follows:

At the time of accident the lorry bearing No.AP16-TU-4410 was not insured with this respondent and the policy was not in force. If the petitioners proved that the policy was in force, the liability of this respondent is only subject to terms and conditions, exceptions and limitations of the policy. The petitioners are not entitled to get compensation under Section 163-A of MV Act on the ground that income of the deceased is more than Rs.40,000/-. The accident occurred only due to rash and negligent driving of the deceased and Case was also registered against the deceased, hence the petition is not maintainable and liable to be dismissed. There is no negligence on the part of the driver of the lorry. At the time of accident the driver of lorry did not have licence and Respondent No.1/owner had no permit to run his lorry at the scene of offence, but knowing the same, Respondent No.1 allowed the driver to drive the lorry. In any angle the petition is not maintainable, as such this respondent is not liable to pay any compensation.

7.The material averments of the counter of R4 in brief, are as follows:

The petitioners have to prove that they are legal heirs of the deceased. The petition is not maintainable on the ground for want of jurisdiction. The deceased who is driver of Eicher Mini Lorry bearing No.AP02-TA-2843 was not holding valid and effective driving licence at the time of accident. Knowing the same the 3rd respondent/owner of the Eicher van allowed the deceased to drove the Van. Hence, 3rd respondent, who is employer of deceased, is alone liable to pay compensation to the petitioners. The accident caused to the rash and negligent driving of the 4 deceased himself and a case in Cr.No.148/2012 was registered against the deceased by Narasaraopet Rural PS. The petitioners put to strict proof of the same with documentary evidence regarding the age, income and avocation of the deceased.

The claim of the petitioners is excessive.

8. The material averments of the counter of R5 in brief, are as follows:

There was no negligence on his part on the date of accident as drove the lorry slowly, cautiously by following traffic rules. The accident occurred only due to rash and negligent driving of deceased himself. The lorry bearing No.AP02-TU-4410 driven by him is belongs to R1 and the lorry having proper permit to run within the state of AP. He is having Driving Licence No.3693FDL2001 issued on 21.11.2001 by

RTA, Anakapalli which is valid up to 4.2.2019. He is only employee under

Respondent No.1. Hence, he is not liable to pay any compensation.

9. Basing on the pleadings of both parties, the Predecessor of this Court framed the following issues for trial:-

1. Whether the deceased Pikkili Adinarayana @ Adi, S/o

Suryanarayana died on 26.7.2012 in the Motor Vehicle Accident near

Uppalapadu village, Narasaraopet Mandal, Guntur District due to rash and

negligent driving of Lorry No.AP02-TA-2843 by its driver?

2. Whether the petitioners herein are the legal heris of the

deceased Pikkili Adinarayana @ Adi, if so, whether they are entitled for

compensation as prayed for, if so, from which respondent?

3. To what relief?

10. During the trial, on behalf of the petitioners, Ist petitioner examined herself as P.W.1 and one B.Adi Kumar, who is eye witness to the incident examined as P.W.2 and Exs.A.1 to A.5 are marked. On behalf of the respondent No.2, one

K.Ramgopal, Administrative Officer of R.2/Insurance company examined as R.W.1 and Exs.B.1 and B.2 marked, on behalf of Respondent No.3, one D.Ramanjaneylu,

Legal Executive examined as R.W.2 and Exs.B.3 and B.4 marked and one P.Gowri

Shankar, Record Asst., of RTO office, Anantapuramu examined as R.W.3 and Exs.X.1 to X.4 are marked.

11.Issue No.1::-

Heard both sides and perused the material on record.

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12.It is the contention of the learned counsel for the petitioners that, on the date of accident the deceased being driver of the lorry bearing No.AP02-TA-2843 along with Pw2 were proceeding from Vijayawada to Anantapur town for unloading nudles packets, when they reached near Uppalapadu village, the lorry bearing

No.AP16-TU-4410 came from opposite side in a rash and negligent manner and dashed against the mini lorry, due to which the deceased as well as opposite lorry driver (R5) sustained injuries and deceased while undergoing treatment succumbed to the injuries. Though it is a head on collision, both the drivers are responsible for the accident, the petitioners, who are victims, who lost their earning member in the

Motor vehicle accident, they have got liberty to choose their option either Workmen compensation Act Tribunal or Motor Accident Tribual due to the injuries and death caused in their course of their employment. Hence, the respondents are liable to pay the compensation to the petitioners. In support of his contention the learned advocate for petitioner relied on the following decisions:

1. 2016 (1) An.W.R page 688 (AP.High Court, Hyderabad)

2. 2015 An.W.R. page No.880 (SC)

3. 2008 (4) ALT page No.521 (A.P High court Hyderabad0

4. 2012 ACJ page 107 (HC of Rajasthan, Jodhpur)

5. 2015 (2) An.W.R. 1014 (AP High court, Hyderabad)

6. 2016 (1) An.W.R. page No.728, (A.P.High court, Hyderabad).

In support of their respective contentions, the learned counsels for the

Petitioners and Respondents 2 and 4 submitted their written arguments along with citations.

13.It the contention of the learned counsel for the Respondent No.2 that the claim of the petitioners U/sec.163-A of MV Act, 1988 is not maintainable as the income of the deceased is more than Rs.40,000/- per annum and there is no fault on the part of the driver of the vehicle bearing No.AP16-TU-4410 and on the other hand the accident is caused only due to the rash and negligent driving of the driver (deceased) of Mini lorry bearing No.AP02-TA-2843 and a crime was also registered 6 against the deceased. In support of his contention he relied on the following decisions:

1. 2018 AAC page 1239 (Raj)

2. 2016 (1) An.W.R page 91 (P & H)

3. 2015 AAC page 2782 (TRI)

4. 2011 (2) An.W.R page 723 (P&H)

5. 2011 (2) An.W.R page 735 (P&H)

6. 2012 (1) An.W.R page 501 (SC)

7. 2018 (1) An.W.R page 467 (HP)

8. 2016 AAC page 499 (Raj)

9. 2016 AAC page 2514 (KAR)

10. 2012 (2) An.W.R page 447 (AP)

11. 2016 AAC page 768 (HP)

14.It is the contention of the learned counsel for the Respondent No.4 that as per the evidence of P.Ws.1 and 2 the accident caused due to rash and negligent driving of driver of opposite lorry bearing No.AP16-TU-4410, hence this respondent is not liable to pay compensation. The deceased died while driving the vehicle i.e., in the course of his employment, the petitioners sought relief only under Workmen compensation, but not before this Tribunal. The petitioners who are the legal heirs of the deceased driver because of his negligence the accident occurred, as such they cannot file this petition for compensation, if they wants to file petition before this

Tribunal, they have to implead the legal heirs of driver of other vehicle and they will be placed as respondents. There are violations of conditions of the policy, as the deceased had no valid driving licence at the time of accident and the same was established from the evidence of R.W.3, as such the respondent/insurance company is not liable to pay any compensation to the petitioners.

15.In support of the contention of the petitioners, the wife of the deceased examined herself as Pw1 and reiterated the contents that are mentioned in her chief affidavit. During cross examination it is elicited that she is not eye witness to the accident and her husband was driving Eicher van involved in the accident and he 7 died in the course of his employment. Further as per final report, that the deceased was responsible for the accident. Nothing was elicited from the evidence of P.W.1 that, her husband had no driving licence and the Eicher Vehicle has no valid records on the date of accident, as such the insurance company/R4 is not liable to pay compensation.

16.In support of her contention, P.W.1 examined P.W.2, who is eye witness to the accident and he deposed that, due to sole negligence on the part of opposite vehicle driver the accident occurred as a result the deceased died. It is not elicited from the evidence of P.W.2 that the accident occurred due to negligence of R.3’s driver and he has no driving licence at the time of accident.

17. It is the evidence of R.W.1 that as per Ex.B.2 policy, at the time of accident the policy of the lorry bearing No.AP16-TU-4410 was in force, the deceased is third party to the policy and there was a collusion of two vehicles against each other. Nothing was elicited from R.W.1 that the accident occurred due to negligence of the lorry driver bearing No.AP-16-TU-4410 only and he is deposing false evidence for the purpose of this case.

18.As per the evidence of R.W.2, the policy was in force at the time of accident and it is a package policy as per Ex.B.3, which covers the risk of driver and cleaner, two vehicle involved in the accident and as per his investigation there was negligence only on the part of the driver of lorry bearing No.AP16-TU-4410. R.W.2 is not a direct eye witness to the accident and he deposed evidence only basing on records.

19.In support of their contention, the respondents examined Record

Assistant of RTO Office as R.W.3, who deposed that as per their records the driver/deceased of the Mini Vehicle bearing No.AP02-TA-2843 has not obtained DL from RTO office, Anantapuramu and as per Exs.X.2 to X.4 records the above said vehicle got permit and fitness certificate at the time of accident.

20.Therefore the evidence relied by the petitioners i.e. Pw2 coupled with

Exs.A1 to A5 documents, it is established that, due to the rash and negligent driving of driver of Mini Lorry bearing No.AP02-TA-2843 driven by its driver/deceased the 8 accident occurred. The evidence of P.W.2 cannot be solely relied on in view of the

Exs. A1 to A5 documents relied by the petitioners itself that the accident occurred due to the negligence of driver of the Mini lorry. Since the petitioners has taken shelter under Sec.163-A of M.V. Act to claim compensation, the petitioners need not establish for whose negligence the accident occurred.

Accordingly this point is answered.

21.Issue No.2::-

In view of elaborate discussion on Issue No.1, it is established that the petitioner No.1 is the wife, Petitioners 2 and 3 are parents of the deceased and they are depending on the income of the deceased. Though P.W.1 deposed in her evidence that, her husband was earning Rs.6,000/- per month as a driver under the third respondent, but no proof relied b the petitioners to establish the said earnings of the deceased. Since the petitioners are claiming compensation U/S 163-A of M.V.

Act and they restricted the earnings of the deceased as Rs.40,000/- per annum. It is needless to discuss, the evidence relied by the petitioners regarding the income of the deceased.

22.Regarding quantum of compensation to the petitioners, it is observed by the Hon’ble Apex Court in a reported decision decided between Sarla Verma & others Vs Delhi Transport Corporation & another reported in 2009 ACJ 1298 Hon'ble Apex Court observed in para “9” of the Judgment mentioned about the method of calculation of compensation in a claim basing on death in a motor accident. As per the observations of the Hon'ble Apex Court in this authority and the settled practice, under first step the Court shall ascertain the multiplicand by adverting to the occupation and income of the deceased and the Court can also add the possibility of progression in the income and deduct amount upto 1/2, 1/3, 1/4 or 1/5 depending on number of Dependants of the deceased. Under second step, the Court shall select the appropriate multiplier by referring to the age of the deceased or claimant depending upon the facts and circumstances of the case and by referring to Para 19 Col. 4 of the 9 authority referred above (i.e., Sarla Verma's case). In the third step, the

Court shall make calculation of loss of income/loss of estate by applying the multiplier to the multiplicand ascertained and thereafter the Court can add a conventional amount upto Rs.10,000/- towards funeral expenditure and another sum of Rs.10,000/- towards loss of consortium if one of the claimants is the spouse of the deceased.

23.Taking into consideration of the claim U/sec.163-A of MV Act, the income of the deceased determined as on the date of his death at Rs.40,000/- per annum only, out of which deduction should be made in respect of the amount derived by way of personal and living expenses of the deceased by deducting 1/3rd amount, where the numbers of dependent family members is 2 to 3. Here in the present case three family members are depending on the income of the deceased, hence, it comes to Rs.13,333/- per annum which is the actual amount contributing for his personal expenses. Hence, the income of the deceased would have been contributed to the petitioners can be taken as Rs.26,667/- per annum and the same can be considered as Multiplicand. Therefore, Rs.26,667/- is considered as

Multiplicand. As per the evidence of P.W.1, the deceased was aged about 23 years as on the date of his death. Since the petitioners did not rely on any proof about the age of the deceased, thereby the documents under Exs.A.2 and A3 Inquest report and PM report, the age particulars of the deceased mentioned as 23 years, thereby this court considered the age of the deceased as 23 years. Hence, the age group of 23, multiplier provided under Sarala Verma’s case viz., 2009 ACJ 1298 is ‘18’.

Hence the same is adopted for calculating the entitlement of petitioners for compensation.

24.Multiplier 18 x multiplicand Rs.26,667/- = Rs.4,80,006/-. The Petitioner

No.1 is awarded an amount of Rs.25,000/- towards loss of consortium, petitioners are awarded an amount of Rs.15,000/- towards Funeral expenses, Rs.15,000/- towards transport charges and Rs.25,000/- towards loss of love and affection. In total the petitioners can be awarded an amount of Rs.5,60,006/-.

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25.To this sum, interest of 9% p.a., is awarded to this amount from the date of filing of the claim till the date of realization following the ruling of the

Hon’ble Supreme Court in Municipal Corporation of Delhi Vs. Association of Victims

of Uphaar Tragedy and others 2012 ACJ 48 SC.

26.Now the question here is who is liable to pay the compensation. It is observed while answering issue No.1 that there was negligence on the part of the drivers of both the vehicles bearing Nos.AP-02-TA-2843 and AP-16-TU-4410. The vehicle bearing No.AP-02-TA-2843 owned by Respondent No.3 found insured with

R.4/Insurance Company and the policy was in force from 8.3.2011 to 7.3.2013 and the accident was occurred on 26.07.2012. In the present case the deceased who was driver of the crime vehicle and also he was negligent at the time of accident and he succumbed to the injuries.

It is well settled principle of law as per the decision relied by the learned counsel for the petitioners that claim filed by a person who sustained injury when the bus turned turtle, insurance company contended that the injured was not a passenger but was driving the bus at the time of accident, which was accepted by the Tribunal, Sec.147 mandates that Insurance policy of the vehicle must cover liability towards a person engaged in driving the vehicle, but coverage restricted to one arising under Workmen’s compensation act, Sec.167 confers power on the

Tribunal under MV Act to deal with cases arising under Workmen’s compensation Act also, this remedy can be availed by the injured/deceased by instituting proceedings under MV Act decided between Oriental Insurance Co., Ltd., Vs Syed Yusuf and others 2007 ACJ 1851.

Hence, the respondent Nos.3 and 4 and deceased are jointly and severally liable to pay the compensation. Hence, the compensation amount divided into 1:3 ratio, which comes to Rs.1,86,668/- each. Hence by deducting the share of self negligence of deceased for the alleged accident, the compensation amount to be awarded to the petitioners comers to Rs.3,73,336/-. Accordingly, this point is answered.

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27.Issue No.3::-

In the result, this petition is allowed in part by awarding total compensation of

Rs.3,73,336/- to the petitioners against the respondents 3 and 4 with Proportionate costs with interest at the rate of 9% per annum from the date of petition till the date of realization. Respondents 3 and 4 are jointly and severally liable to pay the compensation to the petitioners. R.4 being the insurer is at first instance directed to deposit the said amount into the Court within one month from the date of this award and shall recover of the same from owner/R3 of the crime vehicle. The petitioner

No.1 being wife of the deceased is awarded an amount of Rs.1,73,336/- including consortium and Petitioners 2 and 3 being parents of the deceased are awarded an amount of Rs.1,00,000/- each respectively. On such deposit, the petitioner No.1 is permitted to withdraw half of the compensation amount with accrued interest and costs at present and remaining amount shall be kept in Fixed Deposit in any

Nationalised Bank for a period of two years. The entire compensation amount awarded to the petitioners 2 and 3, who are parents of the deceased are permitted to withdraw entire compensation amount with accrued interest and costs thereon on once. Advocate’s fee is fixed at Rs.4,000/-. The claim against respondents 1, 2 and 5 is dismissed without costs. Office is directed to verify whether any exemption was taken for payment of court fee at the time of filing of petition. Petitioners are entitled for copy of decree, subject to clearance of court fee dues if any.

Dictated to Stenographer transcribed by her, corrected and pronounced by

me in the open court, on this the 8th day of October, 2018.

Chairman, MACT-Cum- VIII Addl. District Judge,

FAC IV ADJ (FTC)

Ananthapuramu.

Appendix of evidence Witnesses examined for

Petitioners :Respondent No.2 : P.W.1 : P. KamakshiR.W.1: Kurugodu Rama Gopal P.W.2 : B. Adi Kumar 12

Respondent No.4 :Respondent No.5 : R.W.2 : D. Ramanjineyulu-Nil- R.W.3 : P. Gowri Shankar

Exhibits marked on behalf of the petitioners Ex.A.1 : Attested copy of FIR in Cr.No.148/2012 of Narasaraopet P.S. Ex.A.2 : Attested copy of Inquest Report Ex.A.3 : Attested copy of P.M.E. Report Ex.A.4 : Attested copy of M.V.I. Report Ex.A.5 : Attested copy of Final Report

Ex.B1 : Xerox copy of Rough Sketch

Exhibits marked on behalf of Respondent No.2

Ex.B2 : True copy of Insurance Policy of vehicle bearing No.AP-16-TU-4410

Exhibits marked on behalf of Respondent No.4

Ex.B3 : True copy of Insurance policy of vehicle bearing No.AP-02-TA-2843 Ex.B4 : Office copy of the notice sent to R3.

Ex.X1 : Authorization letter issued by RTO, Ananthapuramu Ex.X2 : B-Register extract of vehicle bearing No.AP-02-TA-2843 Ex.X3 : Permit copy of vehicle bearing No.AP-02-TA-2843 Ex.X4 : Fitness Certificate of vehicle bearing No.AP-02-TA-2843

FAC: MACT-IV A.D.J.

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IN THE COURT OF THE MOTOR ACCIDENTS’ CLAIMS TRIBUNAL

(BEFORE THE IV ADDL. DISTRICT JUDGE, ANANTAPURAMU)

Present: Smt A.Mary Grace Kumari,

MACT – Cum - VIII Addl. District Judge, Anantapuamu. FAC IV Additional District Judge, FTC, Anantapuramu. Wednesday, the 3rd day of October, 2018.

ORIGINAL PETITION No.453/2016

Between:

Boya Nallamma @ Balasubbigari Nallamma … Petitioner.

And

1. Y. Narayana Swamy

2. The Manager, Shriram General Insurance Co. Ltd., Ananthapuramu. … Respondents.

This petition is coming on 25.09.2018 for final hearing before me in the presence of Sri D. Raju and Sri N. Nagendra Prasad, Advocates for the petitioner and of Sri S. Baba Fakruddin, Advocate for the Respondent No.1 and Sri Y. Rameswara Reddy, Advocate for the Respondent No.2 and on perusing the material papers on record and the matter having stood over for consideration till this day, this Tribunal made the following;

ORDER

This petition filed U/Secs.140 and 166 of A.P Motor Vehicles Act and Rule 455 of A.P M.P. Rules 1989 claiming compensation of Rs.3,00,000/- for the permanent disability caused due to the injuries sustained by the petitioner in a

Motor Vehicle Accident.

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

On 26.06.2015 at about 6.00 am, while the injured was boarded an Auto bearing No.AP-02-TA-3953 along with others in Singanamala, in order to attend coolie work at Neelaredypalli Village and the auto was proceeding near Sivalayam turning in Neelareddypalli Village at about 7.30 am, the driver drove the same in a rash and negligent manner with high speed and lost control over the same, as such the auto slightly touched the two wheeler and fell into road side ditch. In the said accident the petitioner has sustained injuries i.e. fracture of right superior and inferior pubic rami commuted fracture, fracture of left superior pubic 2 rami undisplaced and lacerated injury on left leg and 8 sutures injury on left knee and other injuries. Soon after accident the petitioner has been shifted to Pavani hospitals, Ananthapuramu and she took treatment as in-patient and incurred heavy medical expenses, attendant and transportation expenses. Even today she is taking treatment.

A case was registered in Cr.No.118/2015 U/Secs.337 and 338 IPC by B.K.

Samuram Police against the driver of Auto/crime vehicle.

The 1st respondent being the driver-cum-owner and 2nd respondent being the insurer of the of the crime vehicle and both are liable to pay compensation.

Hence, both the respondents are jointly and severally liable to pay the compensation.

The petitioner is aged about 23 years on the date of accident and she was with good health and industrious person and earning an amount of Rs.7,500/- per month through coolie works and contributing the same to the family and leading decent life in the society. Due to fracture injuries the petitioner became permanent disabled person and unable to attend her day to day coolie works and lost earnings and landed into financial troubles. She is unable to sit, stand, walk and run and lost her amenities of life. Therefore, the petitioner is entitled for claiming modulate compensation of Rs.3,00,000/-. Hence, the petition.

3.The respondent Nos.1 and 2 filed their respective counters denying the allegations mentioned in the petition and prays the court to dismiss the petition.

4The material averments of the counter of R1, in brief, are as follows:

The petitioner has to prove the age, income and avocation with documentary proof. On the date of accident the Insurance policy was in force and this respondent has insured with R.2. The crime vehicle got relevant records with regard to permit and fitness certificate and they are in force. The 3 compensation claimed by the petitioner is highly excessive and abnormal by any means keeping with no income.

5.The material averments of the counter of R2, in brief, are as follows:

The petition is neither just nor maintainable either in law or on facts of the case. The liability of this respondent is subject to policy terms, conditions, exceptions and limitations of the alleged policy. On the date of accident the driver-cum-owner of the crime vehicle allowed more passengers than its seating capacity and thereby violated the terms and conditions of the policy. The petition is bad for non joinder of necessary parties viz., owner and insurer of two wheeler. The petitioner is put to strict proof of age, income and avocation as well as the treatment with cogent and documentary evidence. The driver who is no other than owner of the crime vehicle did not possess the valid driving license, permit and fitness certificate as on the date of accident. The petitioner sustained only simple injuries. The compensation claimed by the petitioner is too excessive. The liability of this respondent is strictly subject to the terms, conditions, limitations and exceptions of the alleged policy and subject to the compliance of Sec.64-VB of Insurance Act, 1938. Even in case of any award, the interest cannot exceed @ 6% p.a., as per the decision of Hon’ble Supreme Court.

6.Basing on the pleadings of both parties, the following issues are settled for trial:-

1. Whether the petitioner Boya Nallamma @ Balasubbigari

Nallamma received injuries in motor vehicle accident occurred on

26.06.2015 at about 7.30 am near Neelareddypalli Village,

B.K.Samudram Mandal, due to rash and negligent driving of driver of

crime Auto bearing No.AP-02-TA-3953?

2. Whether the petitioner is entitled to receive compensation, if so to what extent and from whom? Which of the respondent?

3. To what relief?

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7. In order to establish her claim, the petitioner examined herself as

P.W.1 and examined Dr. M. Mohana Krishna and Dr. A.Jagannath as P.Ws.2 and 3 and Exs.A.1 to A.17 and Ex.X.1 are marked. On behalf of contesting Respondent

No.1 did not adduce any evidence and the Respondent No.2, Rw1 D.

Ramanjineyulu and Rw2 B.Gowri Sankar are examined and Ex.B.1 and Exs.X2 to

X4 are marked.

8.Issue No.1::-

Heard both sides and perused the material on record.

9.It is the contention of the learned counsel for the petitioner that due to rash and negligent driving of the driver of the crime vehicle, the accident occurred,resulting the petitioner sustained injuries and permanent disability. The evidence of P.Ws.1 to 3 coupled with Exs.A.1 to A.7 and Exs.X.1 documents established the case of the petitioner that she is entitled for compensation as prayed for. In support of the contention of the petitioner, the learned counsel relied the following decisions with regard to the liability of respondent/Insurance company and entitlement of compensation by the claimants for injury claims would be higher than in death cases, viz.,

1. 2018 (1) An.W.R page No.586 (SC)

2. 2018 (2) An.W.R.5 (Ker)

10.On the other hand, the learned counsel for the Ist respondent contended that the crime vehicle was insured with R.2 Insurance company and it has got valid permit and fitness certificate and they are in force, hence, the 2nd respondent is liable to pay the compensation.

11.On the other hand, the learned counsel for the 2nd respondent contended that, the petitioner is not entitled for any compensation basing on

Exs.A.1 to A7 and Ex.X1 documents and the claim of the petitioner is excessive.

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The liability against the respondent/Insurance Company is purely governed by the terms, conditions, limitations and exceptions of the policy.

12.A perusal of evidence of P.W.1 she has categorically deposed that on 26.06.2015 at about 6.00 am, while she was boarded an Auto bearing No.AP-02-

TA-3953 along with others in Singanamala, in order to attend coolie work at

Neelaredypalli Village and the auto proceeding near Sivalayam turning in

Neelareddypalli Village at about 7.30 am, the driver drove the same in a rash and negligent manner with high speed and lost control over the same, as such the auto slightly touched the two wheeler and fell into road side ditch, as a result, she has sustained fracture injuries and shifted to Pavani hospitals,

Ananthapuramu and she took treatment as in-patient.

It is elicited during the cross-examination of P.W.1 that crime vehicle belongs to R1 and he is residence of her village, she sat by back side of the driver seat, two persons were sat on either side of the driver seat, after the accident her father gave complaint.

Nothing was elicited from the evidence of P.W.1 that, she sustained simple injuries, she did not suffer disability, she fabricated the bills for the purpose of compensation and there is no negligence on the part of the driver of the crime auto bearing No.AP02-TA-3953 and driver of the vehicle had no valid DL and hence R2/Insurance company is not liable to pay compensation.

13.In support of his contention, P.W.1 examined P.W.2 Dr M.Mohan Krishna, who examined P.W.1 and issued Ex.A.2 wound certificate. He deposed that P.W.1 admitted in their hospital on 26.6.2015 due to RTA, the injuries sustained by

P.W.1 are grievous in nature, Ex.A.5 are medical bills issued by Pavani Hospital, the petitioner has got difficulty in attending her daily activities. During cross- examination P.W.2 stated that the treatment given to P.W.1 is also available in

Government General Hospital Anantapur and he denied that the patient sustained 6 simple injuries and the medical bills issued by their hospital are excessive in order to help the patient.

14.In support of her contention, P.W.1 examined Dr A.Jagannath as

Pw3 who issued Ex.A.4 Disability certificate deposed that on 26.4.2017 he along with other members of the Medical Board examined P.W.1 and issued Disability ability certificate @ 35% permanent in nature, due to which the patient has got difficulty for standing on right lower limb and for doing labour work. During cross-examined by the learned counsel for the R2, he denied that he sustained disability in excessive in order to help the petitioner.

15.On the other hand, on behalf of Respondent No.2, R.Ws.1 and 2 are examined. R.W.1 reiterated his contention as stated by him in his chief examination affidavit. During cross-examination, he deposed that as on the date of accident, Ex.B.1 was in force, the petitioner is 3rd party to the Ex.B.1/policy, which covers 3rd party. It is not elicited from R.W.1 that the driver of auto had non-transport driving licence as on the date of accident and the accident due to the negligence of the driver of the motor bike.

16.R.W.2 who is Record Assistant of DTC Office deposed that he is deposing basing on Exs.X.1 to X.4 records, which shows that crime vehicle is auto rickshaw passenger vehicle and the RC and Driving Licence stands in the name of

Respondent No.1, who is owner cum driver of the said vehicle. During cross- examination by the learned counsel for the petitioner, he admitted that as on the date of accident, the RC of crime vehicle was in force, R1 had DL with non transport auto rickshaw, and driving skills of transport and non transport auto rickshaw is one and the same and the crime vehicle is LMV vehicle. He denied that the driver who possessed non transport auto rickshaw DL is also permitted to drive the transport auto rickshaw.

7

17.Considering the facts and circumstances of the case, it is relevant to discuss the following case laws decided in between regarding the liability:

1. Divisional Manager, New India Assurance Company Limited, Cuddapah Vs Acchigari Prasad (2014) 0 Supreme (AP) 40374 wherein it has been held that: “Accident caused due to the rash and negligent driving of driver of

tipper, driver was not holding any driving licence of his own, Motor

vehicles must be driven by a person having a driving licence, Tribunal

held that Insurance Company is liable to satisfy decree along with

owner, but owner has obligation to take adequate care and see that

driver had appropriate licence to drive vehicle. Appellant/2nd

respondent Insurance company directed to first pay awarded amount to

respondents/petitioners and then recover the same from the owner of

the vehicle.

2. United India Insurance company Limited Vs Lehru and others (2003 (3) ALD 20 (SC), wherein it is held that:

“Insurance Company cannot escape its liability to third parties on

the ground that the licence of the driver of the insured vehicle is found

to be a faked one, even if it is within the knowledge of the insured,

Insurance company cannot escape its liability to third parties, it may

however in such cases recover the compensation paid by it from the

insured.”

3. Amrit Paul Singh Vs Tata Aig General Insurance Co., Ltd., (2018) AIR SC 2662, wherein it is held that:

“Offending vehicle not having any permit, plying the vehicle

without permit, Fundamental statutory infraction, cannot be equated

with absence of licence or a fake licence or a licence for different kind of

vehicle, or, violation of a condition of carrying more number of

passengers, onus cannot be cast on insurer, courts below rightly directed

insurer to pay compensation in the first instance and recover it from

owner and driver.” 8

It is settled preposition of law that liability shall joint and severally be fastened on the insurer, in addition to the owner and driver as per the decision of

Hon’ble Supreme Court decided in between Jagdish Kumar and United India

Insurance Co., Ltd., and others (2018 (1) An.W.R.586 (SC), by relying on the above settled preposition of law the Insurance Company has to pay the awarded amount to the petitioner and then recover the same from the owner of the vehicle, though the driver of the offending vehicle not holding valid driving licence for transport auto rickshaw.

18.The documents under Exs.A.4 to A7 established the contention of the petitioner that she sustained fracture, which is grievous in nature.

19.As per the case law relied by the learned counsel for the petitioner regarding the compensation, reported in between Syed Ghouse Basha Vs Roop lata and another (2014 (1) ALT 115) wherein it is observed by the Hon’ble

High court in para No.9 that:

“By taking consideration of the injuries sustained by the claimant,

the treatment undergone, pain and sufferance, an amount of Rs.6,000/-

for the left frontal region for scalp, Rs.2,000/- each for the abrasion over

right knee and abrasion over right leg at maxille region and Rs.2000/-

for medical expenses and in all Rs.12,000/- is just and reasonable to

award.”

In another case between Lakshmidevi Vs K.V Paameswaran and others (2018 (2) An.W.R.5 (Ker.) wherein it is held that “When the compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account and compensation for injury claims would be higher than that in death cases.

20.Here in the present case in hand, the petitioner sustained three grievous injuries, 1. Right superior and interior pubic rami comminuted fracture and left superior pubic rami undisplaced fracture, which are grievous injuries and lacerated injury at right knee and leg, which is simple in nature. Basing on the 9 circumstances of the present case in hand, award compensation at the rate of 15,000/- for each fracture, i.e., Rs.30,000/- and Rs.2,000/- for simple injury, which is just and reasonable regarding the circumstances of the case. According to P.W.2, the petitioner taken treatment in their hospital and underwent operation and they issued Exs.A.5 to A7 and X.1 medical bills for the treatment as well as medicines. To show her bonafides the petitioner filed Medical bills and prescriptions, X-ray films and Case sheet that she has taken treatment at Pavini

Hospital for surgery. By considering the injuries sustained by her, she is awarded an amount of Rs.6,700/- towards medical expenses. The petitioner is awarded an amount of Rs.10,000/- towards pain and sufferance, Rs.5,000/- towards transport expenses and Rs.10,000/- towards attendant and nutrition food. As per the evidence of P.W.2 the petitioner sustained 35% disability. It is the contention of the petitioner that she is attending to coolie work and getting income of Rs.7,500/- per month. To show her bonafides, the petitioner has not filed any documents to that effect. Taking in to consideration of the age of petitioner as 25 years as per Disability Certificate issued by Medical Board,

Anantapuramu, the income of the petitioner taken as Rs.4,000/- per month. As per Ex.A.4 disability certificate, the petitioner having 35% disability. The annual income of the petitioner is Rs.4,000 x 12 = 48,000/-. The suitable multiplier in this case is 18. The above multiplier is applied, the loss of earnings of the petitioner is assessed Rs.48,000 x 18 = 8,64,000/- out of that 35 % of disability of petitioner is calculated at Rs.3,02,400/-. To this sum, interest of 9% p.a., is awarded to this amount from the date of filing of the claim till the date of realization following the ruling of the Hon’ble Supreme Court in Municipal

Corporation of Delhi Vs Association of Victims of Uphaar Tragedy and others 2012 ACJ 48 SC. In total the petitioner is entitled compensation of

Rs.3,66,100/-. As per the decision of Hon’ble High court (Compensation 10

Enhanced decision), though the petitioner claimed Rs.3,00,000/-, she is

entitled for Rs.3,66,100/- by applying the principle of law to the present

facts and circumstances of the case.

21.Therefore, by relying on the above settled preposition of law the Insurance

Company has to pay the awarded amount to the petitioner and then recover the same from the owner of the vehicle, though the driver of the offending vehicle not holding valid driving licence.

22.Now the question is who is liable to pay compensation? It is observed while answering issue No.1 that there was negligence on the part of the driver of the crime vehicle and the vehicle driven by R.1 belonging to him is found insured with R.2. The accident was occurred on 26.6.2015 and the Insurance policy was in force from 22.12.2014 to 21.12.2015. As per the settled preposition of law, driver was not holding any valid driving licence of his own, Motor vehicles must be driven by a person having a driving licence, Insurance Company is liable to satisfy decree along with owner, but owner has obligation to take adequate care and see that driver had appropriate licence to drive vehicle, Insurance company directed to first pay awarded amount to petitioner and then recover the same from the owner of the vehicle.

23.Therefore, the evidence relied by the petitioner established his contention that the accident was occurred due to the rash and negligent driving of the crime vehicle and as the date of accident, there was insurance coverage to the crime vehicle, thereby the respondents viz., driver/owner and insurer are jointly and severally liable to pay compensation to the petitioner

Accordingly the Issues No.1 and 2 are answered in favour of the petitioner.

11

24. The evidence relied by the petitioner and basing on Exs.A.2 to A7, it is just and reasonable to award compensation to the petitioner under different heads:

1. Grievous Injury (Fractures):Rs. 30,000-00

2. Simple injury:Rs. 2,000-00

3. Pain and Sufferance:Rs. 10,000-00

4. Transport Expenses:Rs. 5,000-00

5. Medical Expenses:Rs. 6,700-00

6. Attendant and Nutrition:Rs. 10,000-00

7. Disability:Rs.3,02,400-00 --------------------- Total:Rs.3,66,100-00 ---------------------

Accordingly, the Issues No.1 and 2 are answered.

23.Issue No.3::-

In the result, this petition is allowed in part by awarding compensation of

Rs.3,66,100/- to the petitioner against the respondents 1 and 2 with costs with interest at the rate of 9% per annum from the date of petition till the date of realization. Respondents 1 and 2 are jointly and severally liable to pay the compensation to the petitioner. R.2 being the insurer is directed to deposit the said amount into the Court within one month from the date of this award and shall recover the same from the owner of the crime vehicle. On such deposit, the petitioner is permitted to withdraw half of the compensation amount with accrued interest and costs thereon at present and the remaining amount of compensation shall be kept in any Nationalised Bank for a period of three years. The petitioner 12 is entitled for decree of Award on payment of excess court-fee for the enhanced compensation amount awarded to her. Advocate’s fee is fixed at Rs.3,000/-.

Directly typed to my dictation by Stenographer, Gr.I, corrected and

Pronounced by me in open Court this the 3rd day of October, 2018.

Chairman, MACT-Cum VIII Addl. District Judge, Anantapur. FAC IV ADJ (FTC), Anantapuramu.

Appendix of evidence

Witnesses examined for

Petitioner Respondent No.2

P.W.1: B. NallammaR.W.1 : D. Ramanjineyulu P.W.2: Dr. M. Mohana KrishnaR.W.2 : B. Gowri Sankar P.W.3: Dr. A.Jagannath. Exhibits marked on behalf of the petitioner

Ex.A1 :Attested xerox copy of FIR in Cr.No.118/2015 of B.K. Samudram PS.

Ex.A2 :Attested xerox copy of Wound certificate.

Ex.A3 :Attested xerox copy of Charge Sheet.

Ex.A4 :Disability Certificate issued by District Medical Board, Ananthapuramu.

Ex.A5 :Bunch of medical bills issued by Pavani Hospital, Ananthapuramu for Rs.6,626/-

Ex.A6 :Bunch of medical prescriptions

Ex.A7 :One X-Ray film

Ex.X1 :Case Sheet

Exhibits marked on behalf of Respondent No.2

Ex.B1 :Copy of Insurance Policy.

Ex.X2 :Attested copy of Authorization letter dt.23.08.2018

Ex.X3 :Extract of R.C. of the crime vehicle

Ex.X4 :Driving licence extract of the driver

FAC IV A.D.J

1

IN THE COURT OF THE MOTOR ACCIDENTS’ CLAIMS TRIBUNAL

(BEFORE THE III ADDL. DISTRICT JUDGE, ANANTAPURAMU)

Present: Smt A.Mary Grace Kumari,

MACT – Cum - VIII Addl. District Judge, Anantapuamu. FAC III Additional District Judge (FTC). Anantapuramu. Wednesday, the 10th day of October, 2018.

ORIGINAL PETITION No.481/2015

Between:

Konakondla Neelaveni … Petitioner.

And

1. K. Viswanatha Reddy

2. The Manager, Legal Cell, Cholamandalam Gen. Insurance. Co. Ltd., Chennai

3. Dommara Chalapathi … Respondents.

This petition is coming on 10.10.2018 for final hearing before me in the presence of Sri P. Chenna Reddy, Advocate for the petitioner and of Sri G.Seetha Rama Rao, Advocate for the respondent No.2 and the Respondents 1 and 3 having been called absent and set exparte and on perusing the material papers on record and the matter having stood over for consideration till this day, this Tribunal made the following;

O R D E R

This petition filed U/Secs.140 and 166 of Motor Vehicles Act claiming compensation of Rs.3,00,000/- for the permanent disability caused due to the injuries sustained by the petitioner in a Motor Vehicle Accident.

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

On 17.07.2015 at about 8.30 am., the petitioner along with her husband were proceeding in a motor cycle bearing No.AP-02AA-0029 from Beluguppa

Village to go to Karutla Palli Village for seeing her in laws. While they were proceeding on the midway through Atmakur Village and passing

P.Narayanapuram Village cross, the petitioner was being pillion rider and her husband was the rider of the motor cycle, while they reached near to

Chalivendram on the left side of the road the offending vehicle/Eicher van bearing 2

No.AP-02-TC-1430 came from opposite side in a rash and negligent manner and dashed against the two wheeler, for which the petitioner and her husband fell on the road and sustained grievous and simple injuries and immediately they were shifted to Government General Hospital, Ananthapuramu for treatment. Her husband was shifted to Bangalore for better treatment and he was succumbeed to injuries. The petitioner was admitted Dr.Y.S.R Hospital Ananthapuramu for better treatment and she was treated for a period of one month. The petitioner sustained fracture injury to her left leg knee and also multiple injuries and she was operated and inserted steel rods to her left leg. She was incurred

Rs.60,000/- towards medical and other expenses. After discharge she is in follow-up treatment regularly. Due to said accident she unable to sit and walk normally. The accident occurred due to the sole negligence and the part of the

Eicher van driver only.

Basing on the said accident, a case in Cr.No.72/2015 of Kuderu police registered under sections 337 and 304(A) IPC against the driver of the crime

Eicher van bearing No.AP02-TC-1430.

The 1st respondent is owner, 2nd respondent is the insurer and 3rd respondent is driver of the crime vehicle. Hence, all the respondents are jointly and severally liable to pay the compensation to the petitioner.

The petitioner is a housewife and earning a sum of Rs.5,000/- per month.

The petitioner is hale and healthy and aged about 40 years at the time of accident. Due to accident, the petitioner is unable to attend her works, all her family member are depending upon the earning and services of the petitioner.

Hence, the petition.

3.The respondent Nos.1 and 3 remained exparte.

4.The respondent No.2 filed counter denying the allegations mentioned in the petition and prays the court to dismiss the petition.

5.The material averments of the counter, in brief, are as follows:

3

The mishap had occasioned owing to sheer rash and negligent riding of the motor cycle by the husband of the petitioner, but not due to driver of the alleged offending vehicle. This respondent does not admit the nature of injuries alleged to have been sustained by the petitioner, hospitalization, period of treatment, expenditure involved and disability for work and they are exaggerated with a view to make fantastic claim against this respondent. The petitioner did not suffer from any permanent disability or deformity. The petitioner is called upon to prove the nature of avocation and the use of the disabled part of the body in his profession and the petitioner is also called upon to prove the earning capacity and the earning capacity depending on the anatomical and functional disability, the nature of work and injuries sustained, by way of oral and documentary evidence. The liability against this respondent insurance company is purely governed by the terms and conditions and endorsement of the polity and subject to Sec.145 (b) & (d), 146, 147, 149 of M.V.Act and Sec.64 VB of the insurance

Act. The drive of the crime vehicle should invariably possess valid, genuine and subsisting “Driving Licence” at the time of accident U/S.3, 4 & 9 of M.V.Act or else it tantamount to violation of said Sections/Rules Under M.V.Act and this respondent insurance company need not be fastened with liability. The owner of the crime vehicle should hold valid and subsisting permit U/S.66 if M.V.Act at the time of accident, otherwise it is an infraction under M.V.Act and the terms and conditions of the policy of insurance if at all issued.

The respondent insurance company is not aware of the involvement of crime vehicle, registering of criminal case against the alleged driver under relevant panel Section under IPC and hence the petitioner is called upon to prove them with strict proof by way of oral and documentary evidence, neither the driver nor the insured has complied the statutory demand U/S.134 of MV Act.

The police did notp comply with the statutory demand as required U/S.158 (6) of

MV Act. The petitioner claim is highly excessive. The respondent prays to accord permission of this Hon’ble tribunal to take all the defenses those are available to the owner of the crime vehicle under Sec.170 (a) or (b) of M.V.Act and to contest the case apart from those specified U/S.149 (2) of M.V.Act. The interest has to 4 be paid in accordance with the directions issued by RBI under Banking regulations Act 1949 and as the rate of interest of FDRs is lowered, the

Nationalized Banks are now granting interest @ 5 to 6% only.

6.Basing on the pleadings of both parties, the following issues are settled for trial:-

1. Whether the petitioner Konakondla Neelaveni, received

injuries in motor vehicle accident on 17.07.2015 at about 8.30 am., near

P.Narayanapuram Cross on Kuderu to Atmakuru Road, Ananthapuramu

District., due to rash and negligent driving of the driver of Eicher van

bearing No.AP02-TC-1430?

2. Whether the petitioner is entitled to receive compensation, if so to what extent and from whom?

3. To what relief?

7. In order to establish her claim, the petitioner alone examined as

P.W.1 and examined and Exs.A.1 to A.6 documents are marked. On behalf of contesting Respondent No.2, The Asst.Manager (Legal) of the Insurance

Company is examined as Rw1 and Ex.B1 marked.

8.Issue No.1::-

Heard both sides and perused the material on record.

9.It is the contention of the learned counsel for the petitioner that, the evidence of P.Ws.1 and Exs.A.1 to A.6 documents established the case of the petitioner that, on the date of accident due to the rash and negligent driving of driver of the crime vehicle, the accident occurred as a result the husband of the petitioner died and the petitioner sustained grievous and simple injuries. Further she was admitted in Dr.YSR, Hospital, Ananthapuramu and under went treatment and she spent Rs.60,000/-, due to the injuries and she unable to attend regular work and also she unable to render services to her family members. The petitioner is attending follow-up treatment and there are in plants to remove.

Thereby the petitioner is entitled for the petition claim.

10. On the other hand, the learned counsel for the Respondent No.2/Insurer contended that the evidence of P.W.1 is not established the case of 5 the petitioner. On the date of accident, the driver of the crime vehicle had no valid Driving Licence and as such it is policy violation, the petitioner got managed the police and got registered the case against the driver of the crime vehicle.

Though, the accident was occurred due to the negligence of the rider of the motor vehicle i.e, the husband of the petitioner. Further the learned counsel contended that, the petitioner received only simple injuries on the date of accident and she is attending her regular work. Further the petitioner managed the Medical Officer and obtained Medical prescription and bills covered under

Ex.A5 and A6 only to get compensation.

11.A perusal of evidence of P.W.1 she has categorically deposed that,

On 17.07.2015 at about 8.30 am., she along with her husband were proceeding in a motor cycle bearing No.AP-02AA-0029 from Beluguppa Village to go to

Karutla Palli Village for seeing her in laws, while they were proceeding on the midway through Atmakur Village and passing P.Narayanapuram Village cross, while they reached near to Chalivendram on the left side of the road the offending vehicle/Eicher van bearing No.AP-02-TC-1430 came from opposite side in a rash and negligent manner and dashed against the two wheeler, for which they fell down on the road and sustained grievous and simple injuries and shifted to GGH, Ananthapuramu for treatment, her husband was succumbed to injuries.

She was incurred Rs.60,000/- towards medical and other expenses. After discharge she is in follow-up treatment regularly. Due to said accident she unable to sit and walk normally. The accident occurred due to the sole negligence and the part of the Eicher van driver only.

12.A perusal of Exs.A1 to A4 documents i.e, FIR, altered FIR, wound certificate and charge sheet, the contents mentioned in the said document or corroborated with the oral testimony of Pw1 who is a direct eye witness to the accident, that the accident occurred only due to sole negligence of the driver of the crime vehicle, but there is no negligence on the part of the rider of the motor cycle.

6

Nothing was elicited from the cross examination of Pw1 that, no accident took place and she was not sustained any injuries as mentioned in Ex.A3, as per

Ex.A3 Pw3 sustained one grievous injury i.e., fracture of left knee. The evidence of Pw1 and Ex.A1 to A4 documents clinchingly established the case of the petitioner that, due to the rash and negligent driving of the driver of the crime vehicle only the accident occurred. Admittedly, Rw1 the Asst. Manager of R2’s company is not a direct eye witness to the accident and he deposed evidence only basing on the record i.e., the crime record in Cr.No.72/2015 of Kuderu PS.

Accordingly this point is answered.

13.Issue No.2::

In view of my elaborate discussion Issue No.1, it is established by the petitioner that, on 17.07.2015 the accident was occurred due to the rash and negligent driving of the driver of the crime vehicle/R3 the accident was occurred and the 1st respondent is the owner of the said crime vehicle. As deposed by

Rw1 in his evidence Ex.B1 policy was in force as on the date of accident, the said policy of the crime vehicle is a package policy and covered the 3rd party risk.

Therefore, all the respondents are jointly and severally liable to pay compensation to the petitioner. Though, the 2nd respondent contended that, the driver of the crime vehicle/R3 had no valid driving licence as on the date of accident but no proof relied by the respondent to establish the said fact.

As per the observations of the Hon’ble Apex court relied by the learned counsel for petitioner in reported case Laws in between S.Iyyappan Vs

M/S.United India Insurance Co. Ltd., and another 2013 (2) An.W.R 297

(SC) where in it has been observed that, “the insurer cannot disown liability

on the ground, driver though had licence to drive light motor vehicle,

obtained no endorsement in licence to drive such a vehicle used as

commercial vehicle, U/S.149 it is mandatory for the insurer to satisfy the

award against the persons insured in respect of 3 rd party risk”.

14.Here in the present case in hand Pw1 deposed in her evidence that, her husband had driving licence as on the date of accident. Rw1 not relied on any proof to show that, 1st respondent who was driver of the crime vehicle had no 7 valid driving licence to drive the crime vehicle. The 2nd respondent not even examined RTA to support its contention in the absence of any contra proof relied by the 2nd respondent, the contention that, the driver of the crime vehicle had no driving licence as on the date of accident is not tenable.

It is observed in a reported case law of Hon’ble Appex Court in between

Divisional Manager, New India Assurance Company Limited, Cuddapah

Vs Acchigari Prasad (2014) 0 Supreme (AP) 40374 wherein it has been held that:

“Accident caused due to the rash and negligent driving of driver of

tipper, driver was not holding any driving licence of his own, Motor

vehicles must be driven by a person having a driving licence, Tribunal

held that Insurance Company is liable to satisfy decree along with

owner, but owner has obligation to take adequate care and see that

driver had appropriate licence to drive vehicle. Appellant/2nd

respondent Insurance company directed to first pay awarded amount to

respondents/petitioners and then recover the same from the owner of

the vehicle.

Therefore, by relying on the above settled preposition of law the Insurance

Company has to pay the awarded amount to the petitioner and then recover the same from the owner of the vehicle, though the driver of the offending vehicle not holding valid driving licence.

15.As per the Exs.A.3 Wound Certificate it is established the contention of the petitioner that she sustained fracture to her left leg knee, which is grievous in nature.

16.As per the case law regarding the compensation reported in between

Syed Ghouse Basha Vs Roop lata and another (2014 (1) ALT 115) wherein it is observed by the Hon’ble High court in para No.9 that:

8 “The injuries sustained by the claimant, the treatment undergone,

pain and sufferance, an amount of Rs.6,000/- for the left frontal region

for scalp, Rs.2,000/- each for the abrasion over right knee and abrasion

over right leg at maxille region and Rs.2000/- for medical expenses and

in all Rs.12,000/- is just and reasonable to award.”

17.Here in the present case in hand, the petitioner sustained fracture injury to her left leg knee, which is grievous in nature. Basing on the circumstances of the present case in hand, award compensation at the rate of 15,000/- for fracture injury is just and reasonable regarding the circumstances of the case. According to the petitioner she has taken treatment at Dr.Y.S.R.

Hospital, Ananthapuramu and incurred Rs.9,893/- as per Ex.A5 medical bills and

Ex.A6 medical prescriptions. Though the petitioner failed to examine the person, who issued Ex.A.5 and A6, she is awarded Rs.9,900/- by making it round figure from Rs.9,893/- towards medical bills submitted by her for the treatment taken by her in YSR Hospital.

By considering the injury sustained by Pw1 she is awarded an amount of

Rs.10,000/- towards pain and sufferance, Rs.5,000/- towards nutrition and diet, Rs.5,000/- towards attendant charges, Rs.5,000/- towards transport charges and Rs.5,000/- for loss of income being Manager of the family as she is house wife and rendering services to her family members and due to the accident she failed to attend her regular duties and rendering services to her family members.

20.Therefore, by relying on the above settled preposition of law the

Insurance Company has to pay the awarded amount to the petitioner and then recover the same from the owner of the vehicle, though the driver of the offending vehicle not holding valid driving licence.

21.Now the question is who is liable to pay compensation? It is observed while answering issue No.1 that there was negligence on the part of the driver of the crime vehicle and the vehicle belonging to R.1 is found insured with 9

R.2 driven by R.3. As on the date of accident, the crime vehicle covered with

Ex.B1 policy and 3rd party risk. Thereby all the respondents are jointly and severally liable to pay compensation to the petitioner.

As per the settled preposition of law, driver was not holding any driving licence of his own, Motor vehicles must be driven by a person having a driving licence, Insurance Company is liable to satisfy decree along with owner, but owner has obligation to take adequate care and see that driver had appropriate licence to drive vehicle, Insurance company directed to first pay awarded amount to petitioner and then recover the same from the owner of the vehicle.

The evidence relied by the petitioner and basing on Exs.A.5 and A6, it is just and reasonable to award compensation to the petitioner under different heads as shown below.

1. Grievous Injury (fracture):Rs. 15,000-00

2. Pain and Sufferance:Rs. 10,000-00

4. Transport Expenses:Rs. 5,000-00

5. Nutrition and Diet :Rs. 5,000-00

6. Attendant Charges:Rs. 5,000-00

7. Loss of Income:Rs. 5,000-00

7. Medical Expenses:Rs. 9,900-00 ---------------------

Total:Rs. 54,900-00 ---------------------- 10

24.Issue No.3::-

In the result, this petition is allowed in part by awarding compensation of Rs.54,900/- (Rupees Fifty four thousand and Nine Hundred only)to the petitioner and against the respondents 1 to 3 with proportionate costs with interest at the rate of 9% per annum from the date of petition till the date of realization. Respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioner. R.2 being the insurer is directed to deposit the said amount into the Court within one month from the date of this award and shall recover the same from the owner of the crime vehicle. On such deposit, the petitioner is permitted to withdraw entire compensation amount at once. The rest of the claim of the petitioner is dismissed without costs. Advocate’s fee is fixed at Rs.500/-.

Directly typed to my dictation by Stenographer, Gr.I, corrected and

Pronounced by me in open Court this the 10th day of October, 2018.

Chairman, MACT-Cum-VIII Addl. District Judge, Anantapuramu. FAC III ADJ Court, (FTC), Anantapuramu.

Appendix of evidence Witnesses examined for Petitioner Respondents.

P.W.1: K. Neelaveni R.W.1: J. Rajesh

Exhibits marked on behalf of the petitioner

Ex.A.1 : Attested xerox copy of FIR in Cr.No.72/2015 of Kuderu PS.

Ex.A.2: Attested xerox copy altered from U/S.337 IPC to U/S.304-A IPC.

Ex.A.3: Attested xerox copy of Wound Certificate.

Ex.A.4: Attested xerox copy of Charge sheet.

Ex.A.5: Bunch of medical bills for Rs.9,893/-

Ex.A.6: Bunch of medical prescriptions issued by Dr.YSR Hospital, Anantapur.

Exhibits marked on behalf of Respondent No.2

Ex.B1: Copy of Insurance policy pertains to Eicher van bearing No.AP-02- TC-1430.

FAC III A.D.J.

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IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL

(BEFORE THE IV ADDL. DISTRICT JUDGE, ANANTHAPURAMU)

Present:- Smt A.Mary Grace Kumari, Chairman-cum-VIII Addl. District Judge, Ananthapuramu FAC IV Additional District Judge, (FTC) Anantapuramu.

Tuesday, the 25th day of September, 2018.

M.V.O.P. No.540/2015

Between:-

1. Kapadam Naramma

2. Kapadam Sangalappa

3. Kapadam Katamaiah

4. Kapadam Bhagya Lakshmi … Petitioners

And

1. Boyapati Anjaneyulu

2. The Manager, Legal Cell, L & T Insurance Co. Ltd., Hyderabad.

3. V. Obilesu … Respondents

This petition coming on 30.08.2018 for final hearing before me in the presence of Sri P. Chenna Reddy, advocate for the petitioners and respondents

No.1 and 3 having been called absent and set exparte and Sri T. Rama Krishna, advocate for respondent No.2 and the matter stood over for consideration till this day, the court made the following:-

O R D E R

1.This petition is filed U/sec.140 & 166 of Motor Vehicles Act, 1988 and

Rule 455 of APMV Rules, 1989 by Kapadam Naramma, Kapadam Sangalappa,

Kapadam Katamaiah and Kapadam Bhagya Lakshmi (herein after referred to as petitioners 1, 2, 3 and 4 whenever they required) claiming for compensation of

Rs.6,00,000/- for the death of one Kapadam Kristaiah (hereinafter referred to as deceased) in Motor Vehicle accident.

2.The case of petitioners in brief is that, on 11.08.2015 at about 5.00 a.m., the deceased along with his villagers by name Narasimhulu Naidu and

Sreeramulu were walking on the road for calls of nature at the out skirts of

Katiganikaluva and near to reach at Old age Ashram, in the mean time the offending vehicle (T & T) bearing No.AP-02-X-7474 and 7476 came from opposite side in a rash and negligent manner and dashed against the deceased. As a result of which he fell down on the road and then the said vehicle wheel ran over

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on his head and brain come out from the head and died on the spot. Then immediately his villagers by name Narasimhulu Naidu and Sreeramulu who were accompanying with him and saw the accident, informed the same to his wife and his villagers. After the accident the offending vehicle driver left the vehicle at the accident place and fled away. On information his wife and their relatives went there and saw the dead body of the deceased. Subsequently the Ananthapuramu police seized the offending vehicle at the accident place. Then the

Ananthapurramu police held inquest and the duty doctor conducted autopsy of the deceased dead body. Then the hospital authorities handed over the dead body of the deceased to the petitioners.

A case was registered in Cr.No.148/2015 U/sec.304-A IPC by

Ananthapuramu Rural Police against the driver of crime vehicle. The 1st respondent being R.C. owner, 2nd respondent being the insurer and 3rd respondent being driver of the crime vehicle are jointly and severally liable to pay the compensation.

During the pendency of O.P proceedings, Petitioner No.1 wife of deceased.

Petitioner Nos.2 and 3 are sons of deceased and Petitioner No.4 is daughter of deceased. All the petitioners claiming compensation for the death of deceased.

The deceased was aged about 49 years and he was hale and healthy at the time of accident. He was having 10 acres of land and doing cultivation and seasonal business and getting monthly earnings of Rs.10,000/-. The deceased was maintaining his family in a decent standered of life. Due to sudden demise of the deceased, the life of petitioners becomes miserable as they lost earning member as well as his love and affection. Therefore, the petitioner is entitled for compensation of Rs.6,00,000/-. Hence, the petition.

3.Respondent No.1 and 3 are remained exparte.

4.2nd respondent / insurer filed counter denying the allegations mentioned in the petition and prays the court to dismiss the petition.

5.The material averments of the verified counter of R.2, in brief, are as follows:

The driver of tractor and trailer bearing No.AP-02-X-7474 and 7476 was not holding driving licence at the time of accident and violated the provisions of

Sec.3(1) of M.V. Act. The 1st respondent willfully and knowingly handed over the

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possession of the vehicle to the driver who had no valid driving licence and contravened Sec.5 of M.V. Act. This respondent seeks protection U/S 147, 149 and 170 of M.V. Act. 1st respondent who is owner of the crime vehicle has not complied the provisions U/S 134(c) of M.V. Act and not furnished the particulars of policy, date, time and place of accident and the name of the driver and his driving licence particulars and also violated the provisions U/S 158(6) of M.V. Act without forwarded relevant documents to the concerned insurer within 30 days from the date of accident. The petitioners are put to strict proof regarding the age and income of the deceased as on the date of accident and that the petitioners are the sole legal heirs of the deceased. The accident took place only due to sole negligence of the deceased who suddenly across the tractor and trailer bearing

No.AP-02-X-7474 and 7476 without noticing the same and a false case been foisted against the driver of the said vehicle only for the purpose of compensation and suppressed the real facts. The petitioners 2 and 3 are majors and self earnings members. 4th petitioner is married daughter of the deceased and such they are not entitled for compensation. The petition claim is excessive.

The rate of interest has to be paid in accordance with the Banking Regulations

Act, 1949. The petitioners are not entitled to claim any interest on non pecuniary damages. In view of the violations of the policy, this respondent is not liable to pay compensation to the petitioners.

6.Basing on the above pleadings, the following issues are settled for trial:

(1)Whether the deceased Kapadam Kristaiah received injuries in motor vehicle accident on 11.08.2015 at about 5.00 am at Katiganikaluva village on Ananthapuramu to Bukkacherla road, due to rash and negligent driving of driver of Tractor and Trailer bearing No.AP-02-X-7474 and 7476?

(2)Whether the petitioners are entitled to receive compensation, if so to what extent and from whom?

(3)To what relief?

7.During the trial, on behalf of the petitioners, 1st petitioner was examined herself as P.W.1 in support of her case, she examined one

S.Sreeramulu, who is eye witness to the incident as Pw2 and Exs.A1 to A.5

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marked on her behalf. On behalf of the respondent No.2, no evidence adduced,

Ex.B1 policy of the offending vehicle marked by consent.

8.Heard both sides. Perused the material on record.

9.It is the contention of the learned counsel for the petitioners that due to rash and negligent driving of the driver of the crime vehicle, the accident occurred,resulting the deceased died. The evidence of P.Ws.1 and 2 coupled with

Exs.A.1 to A.5 documents established the case of the petitioners that the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners as prayed for.

10.On the other hand, the learned counsel for the 2nd respondent contended that, the driver of the crime vehicle does not have valid driving licence as on the date of accident and thereby he violated the terms and conditions of the policy. Further due to the contributory negligence of the deceased who was crossing the road the accident was occurred and there was no negligence on the part of the drivr of the crime vehicle for the said accident. The learned counsel further contended that the age and income of the deceased not proved by the petitioners with documentary proof and they suppressed the true facts and come to the court with unclean hands thereby the petitioners are not entitled to claim any compensation.

11.Issue No.1::-

As per the evidence of P.W.1 who is wife of the deceased, she categorically deposed in her evidence that as on the date of accident her husband was aged about49 years and he was quite hale and healthy person and doing cultivation apartment from that he was also doing seasonal business and getting income of

Rs.10,000/- peer month. All the petitioners are depending on the earnings of the deceased.

12.The evidence of P.W.2 who is directed eye witness to the incident, he categorically deposed in his evidence that, on the date of accident he along with deceased and one Narasimhulu Naidu together proceeding on walk to attend calls of nature near orphan home on the extreme road side. By that time the offending vehicle tractor and trailer came opposite in a rash and negligent manner and dashed against the deceased, resulting he fell down and sustained

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head injury thereby he died on the spot. The driver of the offending vehicle stopped the vehicle fled away.

Nothing was elicited from cross examination of Pw2 that the accident was occurred due to the negligence of deceased and there was no negligence on the part of the driver of the offending vehicle and caused for the accident. Admittedly the evidence of Pw2 corroborated with that of the documents relied by the petitioners i.e. Exs. A1 to A5 that the deceased died in the road accident and a case was registered against the driver of offending vehicle tractor and trailer vide

Cr.No.148/2015 U/S 304-A IPC wherein Pw2 was cited as Lw6 by mentioning that he is direct eye witness to the accident. When the evidence of Pw 2 coupled with

Exs. A1 to A5 the petitioners established their case that only due to the negligence driving of the driver of the crime vehicle the accident occurred and there was no negligence on the part of the deceased in the accident.

13.The 2nd respondent except denied the case of the petitioners no contra proof relied by the 2nd respondent to support their contention that due to the self negligence of the deceased the accident occurred. As per the aforesaid discussion it is clearly established by the petitioners that the accident occurred and the deceased sustained grievous head injury and only due to the sole rash and negligence of the driver of the crime vehicle the deceased died on the spot.

Accordingly this point is answered in favour of the petitioners.

14.Issue No.2::-

The 1st respondent is owner, 2nd respondent is insurer and 3rd respondent is driver of the crime vehicle. In view of elaborate discussion on Issue No.1, it is established by the petitioners that the deceased died in the accident due to the negligence driving of the 3rd respondent. The petitioner No.1 is the wife and

Petitioner Nos.2 to 4 are children of the deceased and they are depending on the income of the deceased.

15.Regarding the proof of age and income of the deceased, Pw1, who is wife of deceased she deposed that her husband was aged about 49 years as on the date of accident and he was getting an income of Rs.10,000/- per month out of cultivation and seasonal business, but no proof relied by the petitioners to establish the said age and income of the deceased. As per the documents that are relied by the petitioners covered under Ex.A3 P.M. Certificate of the deceased

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mentioned as assessed by medical officer 50 years. As per Exs.A2 and A5 Inquest

Report and Charge Sheet also contains the age of the deceased as 50 years.

Therefore the age of the deceased as per the said documents considered as 50 years, but not 49 years as per the version of Pw1. Regarding the income of deceased no authenticated document relied by the petitioners to believe the version of Pw1 that the deceased was earning Rs.10,000/- per month on cultivation and seasonal business. Therefore this Court taken consideration

Rs.5,000/- as monthly income of deceased basing on his age and other circumstances which is reasonable for calculation of compensation.

16.Regarding quantum of compensation to the petitioners, it is observed by the Hon’ble Apex Court in a reported decision decided between

Sarla Verma & others Vs Delhi Transport Corporation & another reported in 2009 ACJ 1298 Hon'ble Apex Court observed in para “9” of the

Judgment mentioned about the method of calculation of compensation in a claim basing on death in a motor accident. As per the observations of the

Hon'ble Apex Court in this authority and the settled practice, under first

step the Court shall ascertain the multiplicand by adverting to the occupation and income of the deceased and the Court can also add the possibility of progression in the income and deduct amount upto 1/2, 1/3, 1/4 or 1/5 depending on number of Dependants of the deceased. Under second step, the Court shall select the appropriate multiplier by referring to the age of the deceased or claimant depending upon the facts and circumstances of the case and by referring to Para 19 Col. 4 of the authority referred above (i.e., Sarla Verma's case). In the third step, the Court shall make calculation of loss of income/loss of estate by applying the multiplier to the multiplicand ascertained and thereafter the Court can add a conventional amount upto Rs.10,000/- towards funeral expenditure and another sum of

Rs.10,000/- towards loss of consortium if one of the claimants is the spouse of the deceased.

17.Though, the petitioner pleaded and deposed that the deceased was was doing cultivation and business and getting income of Rs.10,000/- per month.

In support her contention, she did not file any proof to that effect. But taking into consideration of the income of the deceased determined as on the date of

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his death at Rs.5,000/- per month (annual income of Rs.60,000/-) out of which deduction should be made in respect of the amount derived by way of personal and living expenses of the deceased by deducting 1/3rd amount, it comes to

Rs.40,000/- per annum which is the actual amount contributing for his personal expenses. Hence, the income of the deceased would have been contributed to the petitioners can be taken as Rs.40,000/- per annum and the same can be considered as Multiplicand. Therefore, Rs.40,000/- is considered as Multiplicand.

As per the evidence of P.W.1, the deceased was aged about 48 years as on the date of his death. Since the petitioner No.1 did not rely on any proof about the age of the deceased, thereby the documents under Exs.A.2, A3 and A5 viz.,

Inquest and Postmortem report and Charge Sheet, the age particulars of the deceased mentioned as 50 years, thereby this court considered the age of the deceased as 50 years. For the age group of 50, multiplier provided under Sarala

Verma’s case viz., 2009 ACJ 1298 is ‘13’. Hence the same is adopted for calculating the entitlement of petitioners for compensation.

18.Multiplier 13 x multiplicand Rs.40,000/- = Rs.5,20,000/-. The petitioner No.1 is awarded an amount of Rs.15,000/- towards loss of consortium,

Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of love and affection. In total the petitioners can be awarded an amount of Rs.5,55,000/-.

19.To this sum, interest of 9% p.a., is awarded to this amount from the date of filing of the claim till the date of realization following the ruling of the

Hon’ble Supreme Court in Municipal Corporation of Delhi Vs Association of

Victims of Uphaar Tragedy and others 2012 ACJ 48 SC.

20.Now the question here is who is liable to pay the compensation?

It is observed while answering issue No.1 that there was negligence on the part of the driver of the crime vehicle and the vehicle belonging to R.1 is found insured with R.2. The accident in this case had occurred on 11.08.2015. As per

Ex.B1 the policy is in force as on the date of accident. Therefore, the respondent

No.1 who is owner of crime vehicle, Respondent No.2 who is Insurance Company and Respondent No.3 who is driver of the crime vehicle are jointly and severally liable to pay the compensation to the petitioners.

Accordingly, this point is answered.

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21.Issue No.3::-

In the result, this petition is partly allowed by awarding total compensation of Rs.5,55,000/- to the petitioners against the respondents 1 to 3 with proportionate costs with interest at the rate of 9% per annum from the date of petition till the date of realization. Respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioners. R.2 being the insurer is directed to deposit the said amount into the Court within one month from the date of this award. The petitioner No.1 is awarded an amount of Rs.4,00,000/-,

Petitioners 2 and 3 are awarded an amount of Rs.50,000/- each and the petitioner

No.3 is awarded an amount of Rs.55,000/-. On such deposit, the petitioner No.1 is permitted to withdraw half of the compensation amount with accrued interest and costs and remaining amount of compensation shall be kept in Fixed Deposit in any Nationalised Bank for a period of one year. The petitioners 2 to 4 are permitted withdraw their compensation amount at once. The rest of the claim of the petitioners is dismissed. Advocate’s fee is fixed at Rs.5,000/-.

Dictated to Stenographer transcribed by her, corrected and pronounced by

me in the open court, on this the 25th day of September, 2018.

Chairman, MACT-Cum- VIII Addl. District Judge,

FAC IV ADJ (FTC)

Ananthapuramu.

Appendix of evidence Witnesses examined for

Petitioners Respondent No.2 P.W.1: K. Naramma - Nil - P.W.2: S. Sreeramulu

Exhibits marked on behalf of the petitioners Ex.A.1 : Certified copy of FIR in Cr.No.148/2015 of Ananthapuramu Rural P.S. Ex.A.2: Certified copy of Inquest report of deceased K. Kristaiah Ex.A.3: Certified copy of P.M. Certificate of deceased K. Kristaiah Ex.A.4: Certified copy of M.V.I. Report Ex.A.5: Certified copy of Charge Sheet

Exhibits marked on behalf of Respondent No.2

Ex.B1 – Insurance policy of Tractor and Trailer bearing No.AP-02-X-7474 and 7476

FAC: MACT-IV A.D.J.

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In the Court of the III Addl. District Judge, (FTC) Ananthapuramu.

PRESENT: Smt A.Mary Grace Kumari,

Spl. Judge for trail of SCs/STs Cases (POA) Act-cum-VIII Addl. District Judge, Ananthapuramu.

FAC III Addl. District Judge, (FTC) Ananthapuramu.

Wednesday, the 10th day of October, 2018.

Civil Miscellaneous Appeal No.28/2016

BETWEEN:

1. B.A.Rambhupal

2. B. Sreeramulu … Appellants.

And

Bulle Aruna Kumari ... Respondent.

On Appeal against the Order and decreetal order, dt.12.09.2016 passed in

I.A.1552/2016 in O.S.No.630/2016 on the file Prl. Junior Civil Judge, Ananthapuramu made in between:-

Bulle Aruna Kumari … Petitioner/plaintiff.

And

1. B.A.Rambhupal

2. B. Sreeramulu ... Respondents/defendants.

This Civil Miscellaneous Appeal is coming on 26.09.2018 for final hearing before me in the presence of Sri R. Rama Kumar, Advocate for the appellants and of

Sri N.R.K.Mohan, Advocate for respondent and upon perusing the material available on record and the matter having stood over till this day for consideration, this court passed the following :-

O R D E R

1.Challenge in this Civil Miscellaneous Appeal is against the Orders, dt.12.09.2016 passed in I.A.1552/2016 in O.S.No.630/2014 on the file of Principal Junior Civil Judge,

Ananthapuramu.

2.Appellants are the respondent/defendants before the court below and suffered against the order passed by the Pr.Junior Civil Judge, Ananthapuramu in IA.1552/2016 in OS630/2016, Dt:12.09.2016.

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3.For the sake of convenience, parties herein will be referred to as

Petitioner/plaintiff and Respondents/defendants with reference to their status in the I.A and also as and how they are arrayed in the proceedings before the court below.

4.The material averments of the affidavit of the petitioner/plaintiff appended to the petition are as follows:

The petitioner who is plaintiff file the suit against respondents who are defendants, for mandatory injunction for removal of constructions made in EFGH portion of the plaint plan and to grant permanent injunction not to made any further constructions in ‘EFGH’ plaint plan . The petitioner is the absolute owner of the house shown as ‘ABCD’ in the plaint plan, the same was purchased by her from one Dasari

Puchurappa for valuable consideration of Rs.7,80,000/- under a registered sale deed

dt:29.01.2009 and took delivery of possession of the said property. Since the date of

purchase the petitioner is in exclusive possession and enjoyment of the said property by paying house tax, water tax to the Municipal Corporation. The petitioner also obtained electrical service connection to the property and she is paying electricity consumption charges. There is only rasta and the western side of the said house, the petitioner have to pass through the said rasta to reach the main rasta located on the northern side.

There are residential houses belongs to third parties, they are also using the said rasta to reach the main road.

5.The 1st respondent house is situated on northern side of petitioner’s house shown as DCIJ and the house of 2nd respondent shown as ‘KLMN’ in the plaint plan.

The respondents 1 and 2 are brothers and they are without any manner of right, title the 1st respondent high handedly encroached into the said ‘EFGH’ rasta of the plaint plan, 2nd respondent encroached the said rasta and constructed bathrooms and caused much inconvenience to the petitioner and others to reach the main rasta from the ‘EFGH’ rasta. The petitioner made complaint to the commissioner Ananthapuramu

Municipality on 16.06.2006 regarding the said illegal constructions but no action taken for removal of said illegal constructions. As the respondents are very powerful backup 3 by the political leaders. Inspite of protext made by the petitioner the respondents bent upon to go on with their construction work. The prima facie case and balance of convenience is in favour of the petitioner, if the respondents allow to complete the illegal construction and the rasta the petitioner will put irreparable loss and hardship. Hence the petition.

6.The 1st respondent filed counter denying the allegations mentioned in the affidavit appended to the petition where as the 2nd respondent adopted the counter of 1st respondent and prays the court to dismiss the petition.

7.The material averments of the counter, in brief are as follows:

The house of 1st respondent is abating the main road towards north. The vendor of the grand father of 1st respondent namely Bhadrampalli Mahaboob Bee, W/o. Chinna

Fakruddin purchased the house under registered sale deed dt:22.03.60 an extent of 3 cents with measurements 18 ½ feet towards east-west, 71 feet towards North-South with specific boundaries mentioned in the counter. The grand father of the 1st respondent purchased the very same property under a registered sale deed dated 16.05.1964 with specific boundaries mentioned in the counter. After the death of their grand father the respondent succeeded the said property. There is no rasta in the said property as per the said documents since 1960. The old house that existed in 185 ½

X31 feet site was removed as it was old and not habitable. After removal of the old house 1st respondent obtained approval building plan from Municiapl Corporation in online and started constructing house 16 feet 9 inches width East-West, 30 feet North-

South. The petitioner not shown any measurement to show the extent of rasta alleged to be encroached by the respondents. The 2nd respondent is residing in the house shown as ‘KLMN’ in the plaint plan, which was purchased by him under registered sale deed dt:24.03.1971. the vendor left only one feet 4 inches on East to go to southern side. There is no rasta as per the documents more than the said measurements.

Actually, there was a open place of 5 feet and the southern side of ‘ABCD’ site shown in the plaint plan. The same used as rasta by the dwellers of ‘ABCD’ site of plaint plan.

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The said site was encroached by the said dwellers. Both the respondents left 3 feet width rasta in between ‘KLMN’ and ‘CDIJ’. The town planning Supervisor Inspected and gave the approval online for construction of house to the 1st respondent after made enquiry. Though the respondents not encroached any site of rasta, the petitioner proclaimed that, she will file a suit and stall the construction of 1st respondent to cause inconvience as such 1st respondent filed caveat petition. The petitioner came to the court with false allegations and she suppressed the material facts. There are no grounds to grant temporary injunction in favour of the petitioner. The petitioner has no prima facie case, balance of convenience in her favour. The balance of convenience is in favour of the respondents. Even if injunction is not granted the petitioner will not sustained loss. This petition is devoid merits.

8.The Lower Court dismissed the petition in its Order in I.A.1552/2016 in

O.S.630/2016, Dt.12.09.2016. Aggrieved by the Orders passed by the court below, the

present CMA is filed by the petitioners/plaintiffs on the following grounds:

I.The order and decreetal order of the lower court is against law, weight of evidence and probabilities of the case;

II. The trial court should have dismiss the petition, as respondents not placed any material to show prima facie case, balance of convenience in favour of the respondent and irreparable loss to the respondent if injunction is not granted in her favour.

III. The trial court should have seen that there is no material to show that there exists rasta in the place in belongs to the appellants shown as EFGH in the plaint plan and to see that 18 ½ feet East-West, and 31 feet North-South was purchased to the appellant in title, respondent has no rasta within the said place.

IV.The trial court should see that there is no recital in Ex.R2 document that a road is left on the western side to reach road situated on Northern side, as such trial court came to conclusion that vendor of Ex.R2created convenient in Ex.R2 on

Macharlappa is not correct and the trial court have to seen that even in Ex.R3 no about leaving rasta.

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V. The trial court wrongly concluded that there exists a recital in Exs.R2 and R3 regarding rasta on western side of appellants 18 ½ X 31 feet plot and the trial court failed to consider that no rasta rights were created in favour of

Bhadrampalli Mahaboob Bee in Exs.R2 and R3.

VI. The trial court finding that, there is rasta on western side of both the houses of ‘ABCD’ and ‘EFGH’ plaint plan is not correct.

VII. The trial court should have seen that no 3rd party affidavit are served on the appellant considering such 3rd party affidavit which were not served on the appellant caused in justice and the observation that appellant encroached ‘EFGH’ portion of plaint plan which is rasta not based on material documents.

VIII. The trial court should have seen that convenient would not run with the property, it will be between persons who entered into contract and the trial court should have seen that the appellant has not encroached any rasta and the appellant is within 16 ½ X 31 feet East – West and North – South.

IX. The reasoning given by Learned Junior Civil Judge for granting injunction is not correct and not on sound principals of law.

9. Now the points that arose for determination in this appeal are that :-

1. Whether the petitioners have got prima facie case and balance of convenience?

2. Whether the lower court committed any error in dismissing the

I.A.1552/2016 in O.S.No.630/2016 and whether the Order and

decreetal order requires any interference of this appellate court

in such findings?

3. To what relief?

10.Point No.1::-

It is the contention of the learned counsel for the Appellants/Respondents that, the respondent plaintiff have no prima facie case and balance of convenience in her favour to obtain temporary injunction in her favour, as against the respondents. Exs.R1 to R4 coupled with the contents that are mentioned in the counter filed by the respondents established the contention of the respondent that, the 1st respondent is constructing house within the measurements of his sale deed after obtained approval from the Ananthapuramu Municipality. There is no existing rasta as alleged by the plaintiff in ‘EFGH’ plaint plan. The petitioner with an intension to harass the defendants 6 filed the suit without any bonafidies. No irreparable loss will be caused to the petitioner, if the injunction is denied. Further the petitioner not relied any documents to show that, she is having a rasta as shown in the ‘EFGH’ plaint plan and the respondents encroached any extent of site which was left for rasta. The learned counsel further contended that, the trial court without appreciating the documents relied by the respondents simply allowed the petition and it is fit case to set aside the orders passed by the trial court.

11.On the other hand it is the contention of the learned counsel for petitioner that, the documents relied by the petitioner appended to the plaint established her case that there is existence of ‘EFGH’ rasta shown in the plaint plan and the 1st respondent without any manner of right encroached the rasta site and constructing house which causes much inconvenience to the petitioner and the near by dwellers of the respective houses to reach the main road through EFGH plaint plan rasta. The trial court rightly appreciated the documents relied by the both parties and gave correct findings and this court need not interfere with the findings of the trial court.

12. In view of contentions of the both counsels, I have perused the material available on record and also I have gone through the judgment passed by the lower court.

13. In the relief of temporary injunction, the petitioner has to establish the prima facie case balance of convenience in his favour and if temporary injunction is not granted in his favour irreparable loss will be caused to the petitioner.

14. A perusal of the documents that are relied by the petitioner appended to the plaint which are not marked by the learned Junior Civil Judge clearly established the existence of house of the petitioner towards southern side of the house of 1st respondent. As per the rough plan appended to the plaint coupled with the measurements that are mentioned in the sale deed of petitioner and respondents clearly established the fact that, there is existence of rasta, towards western side of the houses of plaintiff and 1st defendant and the said rasta is towards eastern side of the house of 7 2nd respondent. The door ways of the plaintiffs are situated towards western side of the house and it is only the rasta to the plaintiff for ingress and egress to reach the main road situated towards northern side. Further the door ways of the houses of respondents 1 and 2 are situated towards northern side of the said houses and the 1st respondent need not utilize the said rasta in view of a door way opened towards northern side i.e., adjacent to the main road. As per to the sale deed of the plaintiff, there are residential houses towards eastern side and the house of one Subba Raidu is situated towards eastern side of the house of plaintiff. Therefore the petitioner is only the way utilizing the rasta as mentioned in the plaint rough plan i.e., ‘EFGH’ rasta.

15. A perusal of the documents that are relied by the 1st respondent covered under

Exs.R1 and R2 documents the 1st respondent got house property an extent of 18 feet towards East-West and 31 feet towards North-South. The said measurements of the property own by the 1st defendant is ½ feet less than the measurements of petitioner towards East-West i.e., petitioner have measurements of 18 ½ feet. Further the 1st defendant land measurement towards North-South 31 feet whereas the petitioner have land an extent of 43 feet towards North-South. Therefore the 1st respondent have no land towards his western side more than that of the extent own by the petitioner.

16. As per the recitals mentioned in the sale deed of the petitioner towards western side there is a clear rasta for ingress and egress to reach the main road situated towards north. A perusal of Ex.R4/online approval building plan dt:19.7.2016 shows the existing rasta abating the house of 1st respondent towards its northern side that is the rasta shown by the petitioner towards western side as mentioned in ‘EFGH’ plain plan.

The documents that are relied by both parties clearly shows the prima facie case of the petitioner that, ‘EFGH’ rasta is the only rasta to the petitioner to reach the main road from her house. The photographs with CD relied by the petitioner prima facie established the contention of the petitioner that, due to the extension of constructions by the 1st respondent towards its northern side there is every possibility to restrict the plaintiff for her ingress and egress to reach the main road. It is not the stage to decide 8 removal of the constructions made by the 1st respondent by encroaching the said ‘EFGH’ site and it will be decided during the course of trial. The prima facie material relied by the petitioner clearly shows that, the right of petitioner for her ingress and egress was restricted by the 1st defendant if he is allowed to continue further constructions in the ‘EFGH’ site. Therefore it is fit case to restrain the 1st respondent not to made further constructions in the said site. The prima facie case and balance of convenience in the favour of the petitioner and much injury or irreparable loss will be caused to the petitioner if, the 1st respondents not restricted for making further constructions by way of temporary injunction.

Accordingly this point is answered in favour of the petitioner.

Point No:2

17. In view of the elaborate discussion in point No.1 the petitioner established her case that, the 1st respondent made constructions in the place mend for rasta which is existing since long time and the same is reflected in the sale deeds of both the parties.

The trial court rightly allowed the petition and granted the relief in favour of petitioner and I do not found any reasonable ground to interfere with the findings of the learned

Prl. Junior Civil Judge, Ananthapuramu.

Accordingly this point is answered.

18.Point No.3::- In the result, the Civil Miscellaneous Appeal is dismissed and confirmed the order and decreetal order passed by the learned Prl Junior Civil Judge, Ananthapuramu in

I.A.1552/2016 in O.S.No.630/2016, dt.12.09.2016. In the circumstances of the case, each party do bear their own costs.

Dictated to Personal Assistant transcribed and corrected and pronounced by me in the

open court, this the 10th day of October, 2018.

Spl. Judge-Cum-VIII Addl. District Judge, Ananthapuramu. FAC III Addl.Dist.Judge (FTC), Ananthapuramu.

Appendix of Evidence -Nil-

FAC III ADJ.

9

Copy to Senior Civil Judge, Kadiri along with Lower Court records in I.A.319/2015 in

O.S.No.169/2015.