B.S.Jagjeevan Kumar

MVOP 494 of 2008 Injury Claim

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

PRESENT: SRI B.S. JAG JEEVAN KUMAR, B.Sc., LL.M.,

I ADDITIONAL DISTRICT JUDGE

FAC II ADDITIONAL DISTRICT JUDGE (FTC)

Tuesday, January 19, 2015

MVOP NO.494 OF 2008

BETWEEN:

Bollaram Sayamma W/o Chinna Poshanna, 45 years, Washerwoman and running dry cleaning and cloth ironing shop, R/o Yanampally village, Dichpally Mandal, Nizamabad District

.. Petitioner

A N D

1)Chakali Chinnulu S/o Chakali Ashanna, major, owner-cum-driver of auto No.AP25V5290, R/o H.No.2-118/3, Yanampally village, Dichpally Mandal, Nizamabad District

2) ICICI Lombard General Insurance Company Limited represented by its Branch Manager, Branch Office, 6-3-352/1, Osman Plaza, Road No.1, Banjara Hills, Opp.HDFC Bank, Hyderabad [Cover note No.TPCVE/4884643 valid from 17.3.2007 to 16.3.2008] … Respondents

Counsel for Petitioner: Sri Azar Kishan Rao, Advocate, Nizamabad.

Counsel for Respondent No.1: Sri G.Prakash, Advocate, Nizamabad.

Counsel for Respondent No.2: Sri V.Bhasker, Advocate, Nizamabad

This petition coming on 20.11.2014 for final hearing before me in the presence of the counsel on record and having stood over to this day for consideration, this Tribunal made the following:

ORDER

1.The petitioner claims compensation of Rs.1 lakh from the owner and the insurer of auto No.AP25V52901 under Section 163A of the Motor

Vehicles Act alleging - 1See copy of cover note, Ex.A8, and copies of insurance policy and RC of the auto, Exs.B1 and B5.

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a)that on 24.8.2007 at about 9.00 am on NH7 at

Sadashivnagar village shivar, unknown Tata Sumo being driven in rash and negligent manner dashed the auto from behind as a result the auto went off the road, hit a road side tree and turned turtle;

b)that she and other inmates of the auto including the driver sustained injuries;

c)that the police of Sadashivnagar registered a case in crime

No.102 of 2007 under Sections 337 and 338 IPC and investigated into the case;

d)that she suffered fracture left clavicle, fracture left humerus, fracture ribs left side, fracture left leg and injuries to head, hands, legs and other parts of her body;

e)that she was shifted to GH, Kamareddy, and the doctors referred her to Nizamabad;

f)that later she was shifted to Sri Sai Tirumala Orthopedic

Hospital, Nizamabad, whereat Dr.R.Bhupathi Reddy,

Orthopedic Surgeon, and other doctors treated and did operations to her;

g)that she incurred expenditure of Rs.60,000/- for her treatment and continued treatment with private doctors;

h)that she was aged 45 years and was earning Rs.10,000/- per month by working as washerwoman and by running dry cleaning and ironing shop; and

i)that on account of the injuries, she got permanent disability and her income was badly affected.

2.The 1st respondent admitted the accident but pleaded that the 2nd respondent alone is liable to pay compensation as the insurance policy was in force and the auto driver had valid driving licence.

3.The 2nd respondent denied the petition allegations, pleaded that no accident occurred with the auto and the auto was falsely involved, that as on the date of the accident the auto driver was not having

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driving licence and the auto, a valid permit, that the auto was overloaded with ten persons, and denied its liability to pay compensation to the petitioner. It alternatively pleaded that the compensation claimed is excessive.

4.On the basis of the above pleadings, the following issues were framed for trial:

1)Whether the accident took place due to rash and negligent driving of auto No.AP25V5290 by its driver?

2)Whether the petitioner is entitled for compensation? If so, to what just amount and against whom?

3)To what relief?

Initially, the petition was filed under Section 166 of the Motor Vehicles

Act. By order dated 2.2.2010 in IA No.56 of 2010, the petitioner was permitted to amend the petition and the petition was converted into a petition Section 163A of the Motor Vehicles Act. In view of the said amendment, issue No.1 has to be recast and it shall now read as under:

1)Whether the accident arose out of use of auto No.AP25V5290?

5.The petitioner, to prove her case, examined herself as P.W.1 and examined Dr.R.Bhoopathi Reddy as P.W.2. Ex.A8 is copy of cover note of the auto. Copies of FIR, final report and injury certificate were filed as Exs.A1 to A3. Prescriptions, lab reports, X-Ray film and discharge summary were filed as Exs.A5 and A6, A7, A9 and A4 respectively. It was represented that Ex.A4 does not pertain to the petitioner and, therefore, it is rejected. Ex.A10 is copy of injury certificate attested by the SI, PS Sadashivnagar.

6.On the other hand, the 1st respondent did not adduce any

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evidence. The 2nd respondent examined its Legal Manager,

N.Chandramoulishwer, as R.W.1 and P.Raghunath Rao, Junior Assistant,

Office of the Deputy Transport Commissioner and Secretary, RTA,

Nizamabad as R.W.2. Ex.B1 is copy of insurance policy of the auto,

Ex.B5 is copy of RC of the auto and Ex.B6 is extract of driving licence of the auto driver/1st respondent. Ex.B2 is office copy of notice dated 9.9.2010 said to have been issued to the 1st respondent to furnish copies of documents of the auto and driving licence, Ex.B3 is postal receipt, and Ex.B4 is postal acknowledgment of the 1st respondent.

Through R.W.2, Exs.X1 and X2 were marked. Ex.X1 is letter dated 3.5.2014 of the DTC deputing R.W.2 to give evidence on his behalf and

Ex.X2 is extract of driving licence of the 1st respondent.

FINDINGS

7.The crime record, Exs.A1 and A2, which is not disputed, establishes that the police, after investigation, filed final report as UN stating that on 24.8.2007 at about 9.00 am on NH7 at Sadashivnagar village shivar the petitioner and nine others traveling in the auto sustained injuries as unknown Tata Sumo driven in rash and negligent manner dashed the auto from behind and one of the injured Poshanna succumbed to the injuries on 21.12.2007.

8.P.W.1 spoke of the manner of the accident as pleaded. She was cross-examined. She stated that on the date of the accident they were proceeding to Chukkapur from Yanampur to attend funeral. The auto belonged to the 1st respondent. Bollaram Chakali Sailu gave complaint.

Only herself, Gangavva and Narsubai were traveling in the auto. The

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1st respondent was driving the auto. She denied that no accident occurred with the Tata Sumo, that they were not traveling in the auto, that the auto was falsely involved and that Exs.A1 to A3 were created by managing with the police.

9.Nothing was brought on record to disbelieve the testimony of

P.W.1. R.W.1 did not speak anything about the accident. The 1st respondent was not examined. None of the persons who were allegedly traveling in the auto was examined to show that the auto was not hit by unknown Tata Sumo and no auto passenger sustained injuries and that the auto was falsely involved. In the circumstances and in view of the crime record and the evidence of P.W.1, it must be held that the accident arose out of use of the auto and the petitioner traveling in the auto sustained injuries.

10.Exs.B1 and B5 show the seating capacity as '4'. R.W.1 stated that as per Ex.A1, 10 persons including the driver were traveling in the auto at the time of the accident, that OP Nos.493, 495 and 652 of 2008 and 75 of 2010 were filed and, therefore, the 2nd respondent is not liable to pay compensation.

11.P.W.1 stated that only herself, Narsu Bai and Gangu Bai were traveling in the auto and that Bollaram Chakali Sailu, Manjula, Syavva,

Chakali Balamani @ Laxmi, Laxmi W/o Bhoomaiah, Pochanna and Sailu did not travel in the auto. She denied that more than 10 persons were traveling in the auto at the time of the accident.

12.As per Exs.A1 and A2, the petitioner and 9 others traveling in the

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auto sustained injuries and Chakali Gangavva succumbed to the injuries.

It is not the case of the 2nd respondent that due to overload in the auto the accident occurred. The Hon'ble Supreme Court in B.V.Nagaraju v.

Oriental Insurance Company Limited2 held that mere carrying more passengers in a vehicle cannot be said to be a fundamental breach and the insurer cannot use the same as a weapon for avoiding liability.

13. The liability of insurance company in case of overloaded vehicle was considered by the Hon'ble Supreme Court in National Insurance Co.

Ltd., v. Anjana Shyam3 and the Court held:

“... the insurance taken out for the number of permitted passengers can alone determine the liability of the insurance company in respect of those passengers. In terms of Section 149 of the Act, the duty of the insurer is only to satisfy judgments and awards against persons insured in respect of the third party risk. Obviously, this is to the extent the third party risk is coverable and is covered. Section 149 of the Act speaks of judgment or award being obtained against any person insured by the policy and the liability of the insurer to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable there under subject to any claim the insurer may have against the owner of the vehicle. Section 149 could not be understood as compelling an insurance company to make payment of amounts covered by decrees not only in respect of the number of persons covered by the policy itself but even in respect of those who are not covered by the policy and who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute.”

Considering the question how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself, the Court observed:

21996 ACJ 1178. 32007(2) An.W.R.338(SC)

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“.... the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.”

14.In view of the decision in Anjana Shyam4, the 2nd respondent shall have to be directed to deposit higher of the three awards in all the claims arising out of the accident and the petitioner shall be at liberty to recover the balance amount from the 1st respondent.

The 2nd respondent disowns its liability on the ground that the auto 15.

is passenger carrying transport vehicle and that the auto driver did not 4Supra 3.

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possess licence to drive transport vehicle. It relied upon the evidence of

R.Ws.1 and 2 and Exs.B1 and B6/X2 and the decisions in Bajaj Allianz

General Insurance Company Limited v. Yenni Surya Rao5 and Bajaj

Allianz General Insurance Company Limited v. Gandam Somulamma6.

16.The counsel for the petitioner submitted that as per Ex.B6/X2, as on the date of the accident the auto driver was having licence to drive auto non-transport. He relied on a decision in S.Iyyappan v. M/s United

India Insurance Company Limited7 and submitted that the 2nd respondent cannot escape from its liability.

17.Ex.A8/B1 shows that the auto was insured as passenger carrying vehicle and the policy is package policy. As per Exs.B1 and B5, the auto's seating capacity is '4'. Ex.B6/X2 shows that the auto driver/1st respondent was authorized to drive MCWG/LMV/AR non transport. It is the evidence of R.Ws.1 and 2 that as on the date of the accident, the auto driver was not authorized to drive auto transport.

18.Can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the licence to drive light motor vehicle used as commercial vehicle, came up for decision before the

Hon'ble Supreme Court in S.Iyyapan's case, relied upon by the counsel

for the petitioner, and the Court held: “... the insurer cannot disown its

liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as 5MANU/AP/0793/2010. 6Judgment dated 21.1.2014 of the High Court of Judicature at Hyderabad in MACMA No.1505 of 2012. 7III (2013) ACC 19 (SC).

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commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.”

19.In the case on hand, the auto driver possessed LMV/AR non transport driving licence. In the circumstances and in view of the decision of the Hon'ble Supreme Court in Iyyapan's case8, the insurer cannot disown its liability to pay compensation on the ground that the auto driver was not holding licence to drive the auto, a passenger carrying vehicle.

20.It was next argued by relying on the evidence of R.W.1 that without valid permit the auto was plied on the road and the 1st respondent contravened the provisions of the Motor Vehicles Act and the

Rules made thereunder and breached the terms and conditions of the policy and, therefore, the 2nd respondent is not liable to pay compensation to the petitioner.

21.Through R.W.1, the 2nd respondent filed notice copy, postal receipt and postal acknowledgment of the 1st respondent, Exs.B2 to B4.

The 1st respondent remained absent. Exs.B2 and B4 show that having received the notice, the 1st respondent did not produce copy of permit of the auto.

22.The policy in Ex.B1 covers use only under a permit within the 8Ibid.

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meaning of the Motor Vehicle Act 1988 or such a carriage falling under

Sub Section (3) of Section 66 of the Motor Vehicle Act, 19889.

23.No transport vehicle can be used in a public place without a valid permit. Section 66(1) the Motor Vehicles Act reads:

“No owner of the motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place, whether or not such vehicle is carrying any passengers or goods save in accordance with the conditions of permit granted or counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.”

24.In National Insurance Company Limited v. Chella Bharathamma10 which related to an auto rickshaw which was being driven without a permit, the High Court took the view that since there was no permit the question of violation of any condition thereof did not arise. The Hon'ble

Supreme Court did not approve the reasoning of the High Court and held that when a vehicle was being plied without a permit defence under

Section 149(2) of the Act was available to the insurer. The relevant portion of the judgment reads:

“12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable."

25.In the case on hand, the evidence on record shows that at the time of the accident the auto was plied with passengers on a public place without permit and therefore in view of the clause relating to 9See 'Limitation as to use' in Ex.B1 10 2004 AIR (SC) 4882

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limitations as to use in Ex.B1 and in view of the decision in Chella

Bharathamma's case, the insurance cover is not available to the insured since there is fundamental breach of the insurance contract. The 2nd respondent issued Ex.B1 policy covering risk of three passengers.

Further, the Motor Vehicles Act is a beneficial legislation. In the circumstances, the 2nd respondent has to first satisfy the award and then recover the amount from the 1st respondent.

26.As regards the injuries, there is oral evidence of P.W.1 and the medical evidence. P.W.1 denied that she did not receive any injuries in the accident and she did not spend Rs.60,000/- for her treatment and that medical record filed was created in collusion with the doctor.

27.The police, during the course of investigation, collected the original of Ex.A3/A10 from P.W.2 and filed final report stating that the petitioner sustained injuries in the accident. Ex.A3/A10 shows that the petitioner received three grievous injuries: (1) fracture clavicle left side, (2) fracture humerus left, and (3) fracture ribs left side. In Ex.A3/A10, the signature of P.W.2 is not available.

28.P.W.2 admitted that he did not put his signature, did not mention the name of the patient, did not mention the dates of admission and discharge of the patient and did not mention about X-Rays in

Ex.A3/A10, but deposed that on 24.8.2007, the petitioner came to his hospital with the above said injuries. The injuries are due to RTA and are grievous in nature. The petitioner was admitted on the same day and was discharged on 27.8.2007. He issued Exs.A3, A5 and A6 and

X-Ray in Ex.A9 and lab tests in Ex.A7 were taken on his advice. The

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petitioner came for follow up for two years. He maintained inpatient record and produced the case-sheet, Ex.C1, which is now marked as

Ex.X3.

29.In the cross-examination, P.W.2 denied that the petitioner did not sustain any grievous injuries in RTA, that he never treated the petitioner, that he issued Exs.A3, A5, A6, A7, A9, A10 and C1/X3 and deposed false to help the petitioner.

30.Ex.A3 shows that on the reverse of the requisition of the police,

P.W.2 mentioned the injuries found on the petitioner. Further, the evidence of P.W.2 and the other documents on record clearly shows that the petitioner suffered three grievous injuries and the petitioner was hospitalized till 27.8.2007 for treatment to the said injuries. The nature of the injuries justifies for grant of Rs.15,000/- to the petitioner for pain, suffering and trauma.

31.As regards occupation and income pleaded, there is only self- serving statement of P.W.1. P.W.1 denied that she was not earning

Rs.10,000/- per month by washing and ironing clothes. No record was filed to show that the petitioner was running dry cleaning and ironing shop and was earning Rs.10,000/- per month. The accident is of the year 2007. In the absence of satisfactory evidence, the petitioner's income is estimated at Rs.3,000/- per month as washerwoman.

32.Hospital bills and medical bills were not filed. Only prescriptions, lab reports and X-Ray film/s were filed. But the medical evidence on record shows that for 4 days, the petitioner was treated as inpatient.

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P.W.2 said the petitioner came for follow up for 2 years. The petitioner must have spent considerable amounts doctor's fee, hospital bills, medicines, transportation, etc., and the same are estimated at

Rs.15,000/-.

33.The fractures would have taken 3 – 4 months to unite. During that period, the petitioner must have lost her earnings and loss of her earnings are estimated at Rs.10,000/-.

34.Disability was pleaded. No disability certificate was filed. P.W.2 did not say that the fractures did not unite properly and the petitioner is having any disability. In the circumstances, the petitioner is not entitled for any amount under the head 'disability'.

35.For the foregoing reasons, it must be held that the accident arose out of use of the auto and that the petitioner is entitled to claim compensation as under:

Heads Amount Rs. Pain, suffering and trauma15000 Medical expenses15000 Loss of earnings10000 Total:40000

The 2nd respondent shall first pay the compensation amount and recover the same from the 1st respondent. The issues are accordingly decided.

36.IN THE RESULT, the petition is partly allowed. The compensation payable to the petitioner is determined at Rs.40,000/-. The petitioner shall be paid the compensation with proportionate costs and pending

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and future interest at 7.5% per annum, within a month from this day.

The 2nd respondent shall deposit into the Court higher of the three awards in all the claims arising out of the accident with proportionate costs and interest and the amount shall be distributed proportionately among the claimants including the petitioner and recover the same from the 1st respondent by following the procedure as laid down in Chella

Bharatamma's case. On deposit, the petitioner is at liberty to withdraw the entire amount. Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation, corrected and pronounced by me in open Court on this the 19th day of January 2015.

II ADDITIONAL DISTRICT JUDGE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

P.W.1 Smt.B.Sayamma R.W.1 Sri N.Chandramoulishwer P.W.2 Dr.R.Bhoopathi Reddy R.W.2 Sri P.Raghunath Rao

EXHIBITS MARKED FOR PETITIONER

Ex.A1Copy of FIR

Ex.A2 Copy of Final report

Ex.A3 Copy of injury certificate

Ex.A4 Discharge summary (rejected)

Ex.A5Prescriptions

Ex.A6Lab reports

Ex.A7Lab reports

Ex.A8Copy of cover note of auto

Ex.A9X-Ray film

Ex.A10 Copy of injury certificate

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EXHIBITS MARKED FOR RESPONDENTS

Ex.B1Copy of insurance policy of auto Ex.B2Copy of notice dated 9.9.2010 Ex.B3Postal receipt Ex.B4Postal acknowledgment Ex.B5Copy of RC of auto Ex.B6Extract of driving licence of R1

EXHIBITS MARKED FOR THIRD PARTY

Ex.X1Letter dated 3.5.2014 of DTC Ex.X2Extract of driving licence of R1 Ex.X3Case-sheet

JUDGE

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SC 328 of 2009 1 / 13

IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE (FTC)

AT NIZAMABAD

Friday, this the 20 th day of June 2014

PRESENT: SRI B.S. JAG JEEVAN KUMAR, B.Sc., LL.M.,

I ADDITIONAL SESSIONS JUDGE

FAC: III ADDITIONAL SESSIONS JUDGE (FTC)

SC NO.328 of 2009

[On committal by the Court of I AJMFC, Nizamabad in PRC No.42 of 2009 in crime No.143 of 2009 of PS Town III Nizamabad]

1)Name of complainant : The State represented by the Circle Inspector of Police, Nizamabad Town

2)Name of accused Chityagala Narayana @ Naresh @ Nagesh S/o Yellaiah, 45 years, Mudhiraju, Wall Painter, R/o Kanteshwargutta, Nizamabad

3)Charge/s:Under Section 302 IPC

4) Plea of accused: Accused pleaded not guilty

5)Finding of Judge:Accused is found not guilty

6)Prosecution :Sri P.Ravi Raj, Additional Public conducted byProsecutor, Nizamabad

7)Accused defended by : Sri M.Sanjay Goud, Advocate, Nizamabad

8) Sentence/Order : Accused is found not guilty and is acquitted, under Section 235(1) CrPC, of the offence punishable under Section 302 IPC. His bail bonds shall stand canceled.

This case coming on 12.5.2014 for hearing before me; upon hearing both the parties and considering the evidence on record and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

The accusation against the accused is that on 15.6.2009 at 1.00 am he quarreled with his wife, Chandrakala, in his house at Kanteshwar in connection with the issue of his developing illegal intimacy with one

Jaya. He and Chandrakala were in angry mood. Chandrakala poured

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kerosene on her body and on seeing it, he set fire to her. Chandrakala died of burn injuries.

2.This Court, after hearing both the parties and considering the case record and the documents submitted therewith, framed charge under

Section 302 IPC against the accused. The accused abjured his guilt and claimed trial.

3.The prosecution, in order to establish its case, examined ten witnesses, P.Ws.1 to 10, and marked ten documents, Exs.P1 to P10. The accused marked through P.W.3 a portion of his statement to police as

Ex.D1. He was examined under Section 313 CrPC. He denied the incriminating material put to him and pleaded that he has no connection with the offence. He examined his neighbour, J.Siddeshwar, as D.W.1.

4.Nagamma (P.W.1) is the mother of the deceased and she is the informant to the police. On receiving complaint, Ex.P8, from P.W.1 on 16.6.2009 at about 2.00 pm, N.S.Prasad, the then ASI, PS Town III

Nizamabad (P.W.9) registered a case in crime No.143 of 2009 under

Section 174 CrPC, issued FIR, Ex.P9, recorded statement of P.W.1, proceeded to the scene, recorded statement of Bhoomaiah (P.W.2) at the scene, conducted scene of offence panchanama, Ex.P2, and prepared rough sketch of the scene, Ex.P3, in the presence of Shyam (P.W.6), proceeded to GHH, Nizamabad, recorded statements of Sravanthi,

Srikanth (P.W.3), Ramu (P.W.4) and Manjula and conducted inquest panchanama, Ex.P4, over the dead body of the deceased in the presence of P.W.6, Ramaswamy and Laxmi. The SI, PS Town III Nizamabad, collected copy of dying declaration of the deceased (in Ex.P7), issued

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memo, Ex.P10, altering the section of law to Section 302 IPC and sent express FIR to all the officers concerned. K.Purushotham, the then

Inspector of Police, Nizamabad Town (P.W.10) took up investigation, proceeded to the scene of offence and observed it, recorded statements of Shobha (P.W.5), Sarajana and Naresh, collected PME report, Ex.P5, and other papers and filed charge-sheet against the accused.

5.P.W.6 corroborated P.W.9 by stating that in his presence the police conducted the panchanamas in Exs.P2 and P4 and drew rough sketch of the scene, Ex.P2.

6.M.Srikanth Reddy, CAS, GHH, Nizamabad (P.W.7), on requisition from the SHO, PS Town III Nizamabad, conducted PME on the dead body of the deceased on 16.6.2009 at the GHH, found 100% burns and issued

PME report, Ex.P5, opining that the cause of death is 100% burns and that the approximate time of death is 28 to 32 hours.

7.P.W.1 stated that the deceased had two daughters through her first husband, Ganga Seenu, and two daughters through her second husband,

Ramesh. Ramesh went to Dubai and did not return. The deceased started living with her along with her children. The deceased went along the accused and they were leading marital life and were residing at

Nizamabad. She learnt that the accused and the deceased used to quarrel now and then. After the death of the deceased, the accused phoned to her. She went to GHH, Nizamabad and found the dead body of the deceased in the mortuary room. It was 1 year 2 months back.

The accused and Ramu informed her that the accused, Siddulu, Katke

Rajender, Ramulu and the deceased consumed toddy and later the

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accused took the deceased to his house, laid her in the house, poured kerosene on her and set fire to her.

8.P.W.2 is resident of Kanteshwar. He deposed that he and the deceased are tenants in the house of Chinna Gangaram. The accused and the deceased were happy. On the date of incident he was sleeping on the terrace of the house. In the midnight he noticed smoke coming out of the portion of the deceased. He informed his neighbourer. He and other persons broke open the door and put off the flames with water and shifted the deceased to hospital. On the next day, the deceased died.

9.P.W.3 is the son of the deceased through Ramesh. On coming to know about the death of the deceased, he went to the GHH and found the deceased with burn injuries. He said he did not know whether there were any disputes between the accused and the deceased and he did not enquire from P.W.1 about the cause of the death of the deceased. The

Additional Public Prosecutor cross-examined him. He admitted that he

stated to the police as in Ex.P11. In the cross-examination by the accused, he admitted that he stated to the police as in Ex.D12.

10.P.W.4 is the brother of the accused. He deposed that the deceased and the accused were happy. After consuming liquor and having dinner at his house on the date of incident, the accused and the deceased went to their house. One of the neighbourers of the deceased informed him that the deceased was in flames. He went to the house of the deceased 1మ అమమ చందరకళ ఆమ భరత నరయణలు బయయం వషయంల సంసరం వషయంల గడవ పడనటుట తలసనద 2ఆమత (చందరకళ త) మక అంతంత మతరమ సంభందలు ఉననవ. నను చనన నట నుండ మ చననమమ అగు పటర శభ గర వదదన పరగ పదదవడ నైనను. మ అమమత ఎకకవ సంభందలు లవ. ఎపపడ ఒకకకక సర వచచ పలుకరంచద. ఆమ ఆలచన లకండ ఆవశంల పరవరతంచద, ఆమ తలల కలుల తరగుడక అలవటు పడ, కలుల బటట, రడ పై, ఇంటవదద గడవలు పడదన తలసనద. ఆమ ఎవర మట వనరకం కదు. తనక ఇషటం వచనటుల పరవరతంచద.

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and found the deceased with burn injuries. The deceased was shifted to

GHH, Nizamabad.

11.P.W.5 is the younger sister of the deceased. Her version is that the deceased informed her on phone that the accused developed illegal intimacy with one Jaya and the accused threatened her to kill her.

Madhu informed her on phone that the deceased died and the dead body was in the GHH. She went and found the deceased died due to burn injuries. There was a rumor in the public that on the date of incident the deceased poured kerosene on her body and the accused set fire to the deceased.

12.Ch.Panchakshari, the then Special JMFC (Mobile), Nizamabad is said to have recorded dying declaration of the deceased. He was examined as P.W.8. He deposed that on 15.6.2009 at 4.04 am he received requisition, Ex.P6, from the police booth of the GHH,

Nizamabad, through HC 750 of PS Town I Nizamabad, to record statement of the deceased who was admitted in the hospital. He proceeded to the hospital along with his attender, Mohd. Younus, and reached the hospital at 4.19 am. He proceeded to the Burns Ward and with the help of duty doctor he identified the deceased. He commenced the proceedings at 4.20 am. He took certificate from the duty doctor about the consciousness, coherency and state of mind of the deceased.

He put preliminary questions to know the mental condition, consciousness and understanding capacity of the deceased after taking certificate from the duty doctor. From the answers given by the deceased, he was satisfied that the deceased was in fit state of mind,

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conscious and coherent to give statement. Then, he recorded the statement given by the deceased, read it over to her and obtained her thumb impression. Again he obtained the certificate of the duty doctor about the consciousness, coherency and state of mind of the deceased during the period of recording the statement. He concluded the proceedings at 4.42 am. At the time of recording statement of the deceased, except himself, his attender, nurse and the duty doctor, no other was present. Ex.P7 is the dying declaration.3

13.The deceased is said to have made the following statement to

P.W.8: Her husband Narayana was having intimacy with another lady.

Having developed such intimacy, he abused her. Yesterday night he asked her to die by pouring kerosene on her body. He developed intimacy with one Jaya. Jaya was also residing at Kanteshwar. At the time of incident, she and her husband were in the house. He came in the night, quarreled with her and asked her to die. He said he would go to Jaya and he quarreled with her saying she should leave the house. She went into the kitchen, brought kerosene and poured it on her body. She told her husband that she poured kerosene on her body. Saying that she had no such scene, her husband set fire to her with match stick. He did not ask her why she poured kerosene. After setting fire to her, he sat watching. Since 3 years her husband had been having intimacy with

Jaya. She did not know who brought her to the hospital.4 3Ex.P7 statement reads: మ ఆయన అయన నరయణక ఇంకక ఆమత సంభందం ఉంద. సంభందం పటుటకన ననున తటటండ. గయస నూన పసుకన చచచప అన తటటనడ. ననన రజ రతర జయ అన ఆమత సంభందం పటుటకననడ. జయ అన సతర కడ కనటశవర లన ఉంటుంద. ఇటట సంఘటన జరగనపడ ఇంటల నను మరయు న భరత అయన నరయణ ఉననము. రతర ఇంటక వచచ నత గడవపడ, ననున చన పమమన తటటనడ. నను అకకడక అంట జయ దగగరక వళళపతను, ననున ఇంటల కళళ వళళప అన గడవపటుట కననడ. వంటంట నుండ గయస నూన తచుచకన మద పసుకననను. నను గయస నున పసుకననను అన న భరత త చపపత నక అంత సన లదు అన అననడ న భరత అయన నరయణ. ఆయనన అగగపలలత అంటూ పటటండ. కన ఎందుక పసుకననవ అన అడగలదు. అంటుపటట చూసుకంటూ కరుచననడ. మ అయన గత మూడ సంవతసరల నుండ జయత సంభందం పటుటకననడ. ననున దవఖన క ఎవరు తచచర నక తలయదు. 4English translation of Ex.P7.

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14.The Additional Public Prosecutor submitted that from the evidence of P.W.8, it is clear that the dying declaration in Ex.P7 is voluntary and truthful and was made in a conscious state of mind and without being influenced by any person and conviction can be based on Ex.P7. In support of his submission, he relied upon a decision in Parbin Ali v. State of Assam5. Per contra, the counsel for the accused submitted that P.W.7, who performed autopsy on the dead body of the deceased, stated that there were 100% burns over the dead body of the deceased. In the cross-examination, he stated that 100% burns means from scalp to toe.

In Ex.P7, LTI is appearing. There is no explanation for appearance of

LTI in Ex.P7 when the deceased received 100% burns. Ex.P7 has to be disbelieved and the accused has to be acquitted. To accept his submission, he relied upon a decision in State of Punjab v. Gian Kaur6.

15.The case of the prosecution rests on Ex.P7 and the point for determination is: Whether Ex.P7 is voluntary and truthful and is free from any doubt?

16.In Mafabhai Nagarbhai Raval v. State of Gujarat7, the Hon'ble

Supreme Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration.

The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns.

He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development 5AIR 2013 SC 542. 6AIR 1998 SC 2809. 7AIR 1992 SC 2186.

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of such shock from the very beginning, was the ground on which the Trial

Court had disbelieved the medical evidence available. The Hon'ble

Supreme Court held, that the doctor who had conducted her post mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the Court could not have substitute its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made, were found by the

Hon'ble Supreme Court to be worthy of reliance, as the same had been

made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon.

17.In Laxman v. State of Mahrashtra8, the Hon'ble Supreme Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and 8AIR 2002 SC 2973.

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where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the Court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.

18.In Koli Chunilal Savji v. State of Gujarat9, the Hon'ble Supreme

Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon.

19.In Laxmi v. Om Prakash10, the Hon'ble Apex Court held, that if the

Court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it.

20.In Govindappa v. State of Karnataka11, it was argued that the

Executive Magistrate, while recording the dying declaration, did not get any certificate from the medical officer regarding the condition of the 9AIR 199 SC 3695 10 AIR 2001 SC 2383. 11 (2010) 6 SCC 533

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deceased. The Hon'ble Supreme Court held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

21.In State of Punjab v. Gian Kaur12, an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial Court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. The Hon'ble Apex Court gave the situation the benefit of doubt.

22.The law on the issue was summarized by the Hon'ble Supreme

Court in State of MP v. Dal Singh13 thus: “The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the 12 AIR 1998 SC 2809. 13 http://indiankanoon.org/doc/34666777/

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Court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity.”

23.So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e., of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.

24.In the case on hand, no suggestion was put to P.W.8 whether any part of the LTI of the deceased had skin on it or not. No suggestion was given to him as to why P.W.8 would depose against the accused.

Inasmuch as P.W.8 and the duty doctor found the deceased to be in a fit state of mind to make a statement, there exists no reason to disbelieve the same and then, the contention that 100% burnt person cannot make a dying declaration or cannot put a thumb impression cannot be accepted.

25.P.W.2 and D.W.1 are neighborers. D.W.1 deposed that 1 week or 15 days prior to the incident the deceased attempted to commit suicide and was taken to the GHH, Nizamabad and on his enquiry, the deceased told him that she attempted suicide as the toddy shop owner was not willing to sell toddy on credit and once she said in the street that it was better to die as her brother's children scolded her. P.W.2 did not speak about the alleged incidents. No criminal case was registered against

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the deceased. In the circumstances, it is difficult to believe the said version of D.W.1.

26.From Exs.D1 and P814, it is clear that the deceased was addicted to toddy and when drunk she used to quarrel at the toddy shop, on the road and in the locality and that she was temperamental. The panchas opined in Ex.P2 that the deceased committed suicide disgusted with her life. It has come in the evidence of P.Ws.2 and 4 and D.W.1 that the accused and others broke open the door, put off the flames and shifted the deceased to GHH, Nizamabad. Then, it is difficult to conclude that the dying declaration is truthful and is free from doubt.

27.For the foregoing reasons, the accused is found not guilty and is acquitted, under Section 235(1) CrPC, of the offence punishable under

Section 302 IPC. His bail bonds shall stand canceled.

Prepared and pronounced by me in the open Court on this 20th day of June 2014.

I ADDITIONAL DISTRICT JUDGE

FAC III ADDITIONAL SESSIONS JUDGE

APPENDEX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1 : Smt.Boggula Nagamma PW2 : Sri Perka Bhumaiah PW3 : Sri Boggula Srikanth PW4 : Sri Chityagala Ramu PW5 : Sri Kotari Shoba 14న (P.W.1) కతురు చందరకళ మరయు ఆమ భరత నరయణలు తరగ గలల ల గన ఇంటల గన నూయసనస చసుకనవరు. న కతురు పరత చనన వషయనక ఆవశ పడతూఆలచన లకండ పరవరతంచద. న కతురు కలులక బనసై కలుల తరగన నపపడ కలుల దుకణంల వరు ఉంటునన వధల అందరత గడవ పటుటకనద. తరవత నగగంచుకన ఆలచనల ఉండద. ఆవశంల ఉననపపడ ఎవర మట వనద కదు. తను ఇషటం వచనటుల పరవరతంచద.

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PW6 : Sri Kalegunta Shyam PW7 : Dr.M.Srikanth Reddy, CAS PW8 : Sri Ch.Panchaksari, JFCM PW9 : Sri N.S.Prasad, ASI PW10:Sri K.Purushotham, CI

FOR DEFENCE:

DW1 : Sri J.Siddeshwar

Exhibits Marked for prosecution

Ex.P1A portion in Section 161 CrPC statement of P.W.3

Ex.P2Scene of offence panchanama dated 15.6.2006

Ex.P3Rough sketch

Ex.P4Inquest panchanama dated 15.6.2009

Ex.P5PME report dated 16.6.2009

Ex.P6Requisition dated 15.6.2009

Ex.P7Dying declaration dated 15.6.2009

Ex.P8Complaint dated 15.6.2009

Ex.P9FIR dated 15.6.2009

Ex.P10Section alteration memo dated 30.6.2009

Exhibits marked for defence

Ex.D1 A portion in Section 161 CrPC statement of P.W.1

MOs marked

Nil

JUDGE

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MVOP 271 of 2007 Grievous Injury

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

PRESENT: SRI B.S. JAG JEEVAN KUMAR, B.Sc., LL.M.,

I ADDITIONAL DISTRICT JUDGE

FAC II ADDITIONAL DISTRICT JUDGE

Monday, February 2, 2015

MVOP NO.271 OF 2007

BETWEEN:

Ravi Jayanendra S/o Ravi Subba Rao, 38 years, Agriculturist, R/o H.No.6-44/3, Dharmaram (B) village, Dichpally Mandal, Nizamabad District … Petitioner

AND

1)Gundaneni Subba Rao S/o Kishtaiah, major, owner of tractor No.AP25M6446, R/o Dharmaram (B) village, Dichpally Mandal, Nizamabad District [died, per LR respondent No.3]

2)ICICI Lombard General Insurance Company Limited represented by its Manager, ICICI Branch Tower, Bandia-Kurla complex, Mumbai 400 051 [Policy No.3008/1079/343/00/000 valid from 11.5.2006 to 10.3.2007]

3)Smt.Gundaneni Roja W/o Gundaneni Subba Rao, major, Household, R/o Dharmaram (B) village, Dichpally Mandal, Nizamabad District [Impleaded as per orders dated 29.3.2011 in IA No.159 of 2011] … Respondents

Counsel for Petitioner : Sri Azar Kishan Rao, Advocate, Nizamabad

Counsel for Respondent No.2: Sri V.Bhasker, Advocate, Nizamabad

Respondent No.3 remained ex parte

This petition coming on 4.12.2014 for final hearing before me in the presence of the counsel on record and after hearing the counsel and having stood over to this day for consideration, this Tribunal made the following:

ORDER

1.The petitioner claims compensation of Rs.2 lakh from the owner and the insurer of tractor No.AP25N64461 under Section 166 of the

Motor Vehicles Act.

1See copy of insurance policy, Ex.B1.

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MVOP 271 of 2007 Grievous Injury

2.The petitioner alleged that on 17.12.2006 at about 2.30 pm at

Dharmaram village, when he sat on Punna Rao's field bund, the tractor being driven in rash and negligent manner dashed him and ran over his legs resulting in crush injury left leg and foot, fracture both bones left leg and grievous injuries to head, back and other parts of his body. The police of Dichpally registered a case in crime No.283 of 2006 and investigated into the case. He was shifted to Amrutha Laxmi Multi

Speciality Hospital, Nizamabad, whereat he was treated as inpatient. He incurred expenditure of Rs.60,000/- for his treatment. After discharge from the hospital, he continued treatment with other private doctors.

He was doing agriculture and milk business and was earning

Rs.10,000/- per month. On account of the injuries, he got permanent disability and his income is badly affected. The respondents are, jointly and severally, liable to pay him the compensation claimed.

3.The 3rd respondent remained ex parte. The 2nd respondent denied the case of the petitioner, pleaded that there was no rashness and negligence on the part of the tractor driver and that as on the date of the accident the tractor driver did not possess valid and effective driving licence and the tractor was not having valid permit to ply on the road and, therefore, it is not liable to pay any compensation to the petitioner. Alternatively, it pleaded that the compensation claimed is excessive.

4.Based on the above pleadings, the following issues were framed for trial:

1)Whether the driver drove tractor No.AP25M6446 in rash and negligent manner due to which the accident occurred or not?

2)Whether the petitioner is entitled for an amount of

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Rs.2,00,000/- as compensation with interest?

3)Whether the respondents are liable to pay the compensation amount to the petitioner jointly and severally?

4)To what relief?

5.The petitioner, to prove his case, examined himself as P.W.1 and filed Exs.A1 to A9. Dr.Jaya Prakash, Orthopedic Surgeon of Amrutha

Laxmi Hospital, Nizamabad, was examined as P.W.2. Copies of FIR, charge-sheet, accident register (injury certificate) and letter of the

Superintendent, Gandhi Hospital furnishing opinion about the injuries were filed as Exs.A1 to A4. IP case record, prescriptions, medical bills, discharge summary and final bill of Amrutha Laxmi Hospital were filed as Exs.A9, A7, A8, A5 and A6 respectively.

6.On the other hand, the 2nd respondent examined its Legal

Manager, B.Bhoja Raju, as R.W.1 and another Legal Manager,

Chandramoulishwer, as R.W.4. The tractor driver, G.Venkateshwar Rao, was examined as R.W.2 and G.K.Kamalakanth, AMVI, Nizamabad, as

R.W.3. Copy of insurance policy of the tractor was filed as Ex.B1.

Exs.B2 and B5 are copies of notice dated 25.6.2010 addressed to the 1st respondent and the tractor driver requiring them to produce copies of vehicle documents and driving licence. Exs.B3 and B6 are postal receipts and Exs.B4 and B7 are returned postal covers. Copies of examination of the tractor driver under Section 251 CrPC and judgment

dated 28.6.2010 of the Court of JMFC (Special Mobile), Nizamabad, in

CC No.374 of 2009 (Crime No.283 of 2006 of PS Dichpally) were filed as

Exs.B8 and B9 respectively. Ex.X1 is letter dated 21.9.2013 of the

Deputy Transport Commissioner and Secretary, RTA, Nizamabad

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informing that no driving licence was issued to the tractor driver and

R.W.3 would represent on behalf of the Licensing Authority, Nizamabad.

FINDINGS

7.The crime record, Exs.A1 to A4, which is not disputed, and the judgment of conviction in Ex.B9, clearly establish that on 17.12.2006 at about 2.30 pm at Dharmaram village shivar, the tractor driver,

Gundapaneni Venkateshwar Rao (R.W.2), caused grievous injuries to the petitioner by rash and negligent driving of the tractor.

8.P.W.1 spoke of the manner of the accident and sustaining injuries in the accident as pleaded. He was cross-examined. He stated that he studied upto Class X. His son lodged complaint in the PS after 5 days of the accident. He took treatment in Amrutha Laxmi Hospital from 17.12.2006 to 18.12.2006. In the complaint, the name of the tractor driver is mentioned as Chinthapally Rajeshwar. At the time of the accident, Chinthapally Rajeshwar was driving the tractor. Gundapaneni

Venkateshwar Rao is the son of the 1st respondent. He denied that he did not met with accident by the tractor, that neither Chinthapally

Rajeshwar nor Gundapaneni Venkateshwar Rao drove the tractor, that there was no negligence on the part of the tractor driver, that he did not sustain the injuries to his left leg due to accident by the tractor, that he sustained injuries by falling on the ground while he was grazing cattle and that a false complaint was lodged in collusion with the 1st respondent to claim compensation against the 2nd respondent.

9.Nadendla Venkat Rao and Kotagiri Shanker were cited in the charge-sheet, Ex.A2, as eyewitnesses. On the strength of the statements of the said Venkat Rao and Shanker, the police, during the course of investigation, deleted the name of Rajeshwar. It is not in

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dispute that the police, after investigation, filed charge-sheet against

R.W.2. R.W.2 also admitted that the police filed charge-sheet against him. He did not say that he did not drive the tractor and did not cause the accident and that he was falsely implicated in the criminal case. In the circumstances, it must be held that R.W.2 drove the tractor at the time of the accident.

10.From Exs.B8 and B9, filed through R.W.4, it is clear that R.W.2 admitted his guilt and was convicted and sentenced by the criminal

Court for causing grievous injuries to the petitioner by rash and negligent driving of the tractor. No satisfactory evidence was adduced to show that no accident occurred with the tractor and the tractor was falsely involved. In the circumstances and in view of the evidence of

P.W.1 and Exs.A1 to A4, B8 and B9, it must be held that the accident occurred due to rash and negligent driving of the tractor by R.W.2 and the petitioner sustained grievous injuries in that accident.

11.As regards age, occupation and income of the petitioner, there is only self-serving statement of P.W.1. No land revenue record was filed to show that the petitioner was having agricultural lands and was deriving any income therefrom. No satisfactory evidence was adduced to show that the petitioner was doing milk business and his income from all sources was Rs.10,000/- per month. The accident is of the year 2006. In Ex.A2, his age is mentioned as 54 years and his occupation, as agriculturist. In the circumstances, the income of the petitioner is estimated at Rs.4,000/- per month.

12.P.W.2 was examined to prove the injuries and to prove the medical record filed. He testified that on 17.12.2006 he examined the petitioner who was alleged to have met with an RTA. He found

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16 cm x 12 cm laceration over left leg exposing fracture both bones with gross contamination of wound. Corresponding X-Rays showed comminuted fracture tibia middle third. The petitioner was treated by debridement. On the next day, the petitioner was referred to

Hyderabad for further treatment. He issued Exs.A5 and A6. Exs.A7 to

A9 pertain to the treatment of the petitioner. He opined that the injury is grievous in nature.

13.In the cross-examination, P.W.2 stated that he informed the police on the same day of the petitioner coming to his hospital. He denied that he did not inform the police, that the petitioner did not sustain injuries in RTA and that he falsely issued Exs.A5 to A9 to help the petitioner.

14.There is nothing on record to disbelieve the testimony of P.W.2 and doubt the genuineness of Exs.A5 to A9. The police collected Exs.A3 and A4 from Gandhi Hospital during investigation. Ex.A3 shows that the petitioner sustained crush injury left leg, fracture shaft of tibia. In

Ex.A4, the Superintendent, Gandhi Hospital opined that the injury is grievous in nature. It is not in dispute that the criminal Court found the tractor driver guilty of causing grievous injuries to the petitioner.

15.The medical evidence on record shows that the petitioner received one grievous injury. He was hospitalized till 27.12.2006 for treatment to the injury. The nature of the injury justifies for grant of

Rs.35,000/- to the petitioner for pain, suffering and trauma.

16.The hospital bill, Ex.A6, is for Rs.6,000/-.The medical bills are for Rs.11,579/-, the total of which comes to Rs.17,579/-, which if rounded off comes to Rs.17,600/-. Therefore, the petitioner is entitled for payment of Rs.17,600/- under the head 'medical expenses'.

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MVOP 271 of 2007 Grievous Injury

17.Fracture would have taken at least 2 – 3 months to unite. During the treatment period, the petitioner must have lost his earnings and must have spent considerable amounts for transportation, extra nourishment and attendant charges. Loss of his earnings are estimated at Rs.12,000/- and the other expenses at Rs.11,000/-.

18.Disability was pleaded. There is only self-serving statement of

P.W.1 on that aspect. Disability certificate was not filed. P.W.2 did not speak of any disability. No other evidence was produced. In the circumstances, the plea of disability is rejected.

19.In view of the above discussion, the compensation payable to the petitioner has to be assessed as under:

Sl.No. Heads Calculation

Rs.

1)Pain, suffering and trauma35000

3)Medical expenses17600

4)Loss of earnings12000

5)Transportation,extra 11000 nourishment and attendant charges

Total:75600

20.The 2nd respondent, by relying on the evidence of R.Ws.1 to 4 and Exs.B1 to B6 and X1, disowns its liability on the ground that the tractor driver, Gandapaneni Venkateshwar Rao, was not having valid driving licence to drive the vehicle.

21.In case it is found that the offending vehicle was driven by driver who was either holding no licence or a fake licence, then it amounts to violation of terms and conditions of the policy and no liability can be fastened upon the insurance company.2 22007(4) SCALE 36; 2011(5) SCALE 494; 2013(3) TAC 29 (SC).

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MVOP 271 of 2007 Grievous Injury

22.The petitioner's counsel submitted that in Kishan Gopal v. Lala3 it is held that non-possession of valid driving licence by the driver of the offending vehicle does not affect the claim of the petitioner and that in

Brihaspathy Sarkar @ E.R.Gurusarkar v. M.B.Ajit4, the appeal was allowed and the claim was enhanced even though 'no driving licence' was established.

23.In both the decisions relied upon by the counsel for the petitioner, the insurance company did not appear to have proved that the driver of the offending vehicle did not possess valid and effective driving licence. Therefore, the decisions are of no help to the petitioner.

24.From Ex.X1 and the evidence of R.W.3, it is clear that the tractor driver/R.W.2 was not issued any driving licence from the Office of the

DTC/RTA/LA, Nizamabad.

25.R.W.2 admitted that the police filed charge-sheet against him but stated that he was not summoned to the Court, that he had driving licence from the RTA, Nizamabad, that the police took copy of driving licence and money from him and that he lost the original driving licence while shifting his house.

26.Ex.A2 shows that the tractor driver was charge-sheeted for driving the vehicle without driving licence. Exs.B8 and B9, filed through

R.W.4, show that R.W.2 appeared before the Criminal Court, pleaded guilty and was convicted and sentenced for the offence of driving the vehicle without driving licence.

27. It was suggested to R.W.4 that Exs.B8 and B9 were created and filed into the Court to avoid the liability of the 2nd respondent. Exs.B8 3Judgment dated 26.8.2013 of the Hon'ble Supreme Court in CA No.7137 of 2013. 4Judgment dated 17.12.2013 of the Hon'ble High Court of Karnataka in MFA No.2410 of 2012 (MV).

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MVOP 271 of 2007 Grievous Injury

and B9 are certified copies. Nothing was brought on record to conclude that Exs.B8 and B9 are created documents.

28.By producing Exs.B2 to B7, R.W.1 stated that in spite of the 2nd respondent's notice to produce the vehicle documents and the driving licence, the 1st respondent and the tractor driver did not comply with the notice and it can be presumed that the tractor driver did not possess valid driving licence and and the tractor was not having fitness certificate.

29.Ex.B4, postal cover, was returned with an endorsement that the addressee expired. Therefore, one cannot draw a presumption that the tractor was not having fitness certificate.

30.Ex.B7, postal cover, was returned with an endorsement that the addressee refused. If R.W.2 had driving licence issued by the RTA,

Nizamabad, he would not have suffered the judgment of conviction for the offence under Section 181 of the Motor Vehicles Act and would not have refused to receive the notice sent in Ex.B7/B5 and would not have failed to comply with the notice.

31.In view of Exs.A2 and B5 to B9 and the evidence of R.Ws.3 and 4, it must be held that the 2nd respondent proved that as on the date of the accident the tractor driver/R.W.2 did not have driving licence to drive the vehicle and the 1st respondent breached the driver's clause in

Ex.B1.

32.For the foregoing reasons, it must be held that the accident occurred due to rash and negligent driving of the tractor by R.W.2 and that the petitioner is entitled to claim compensation of Rs.75,600/-

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MVOP 271 of 2007 Grievous Injury

from the assets of the 1st respondent lying in the hands of the 3rd respondent. The issues are accordingly decided.

33.IN THE RESULT, the petition is dismissed against the 2nd respondent and is partly allowed against the 3rd respondent. The compensation payable to the petitioner by the 3rd respondent is determined at Rs.75,600/-. Within a month from this day, the 3rd respondent shall deposit into the Court the said compensation amount of

Rs.75,600/- with proportionate costs and pending and future interest at 7.5% per annum, failing which the petitioner is at liberty to realize the compensation amount from the assets of the 1st respondent lying in the hands of the 3rd respondent. On deposit, the petitioner is at liberty to withdraw the entire amount. Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation by the PA, corrected and pronounced by me in the open Court on this the 2nd day of February 2015.

II ADDITIONAL DISTRICT JUDGE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

P.W.1Sri Ravi JayanendraR.W.1 Sri B.Bhoja Raju P.W.2Dr.Jaya PrakashR.W.2 Sri G.Venkateshwar Rao R.W.3 Sri G.K.Kamalakanth R.W.4 Sri Chandramoulishwer

EXHIBITS MARKED FOR PETITIONER

Ex.A1Copy of FIR Ex.A2 Copy of charge-sheet Ex.A3 Copy of accident register Ex.A4 Copy of letter of the Superintendent, Gandhi Hospital Ex.A5Discharge summary Ex.A6Final bill of Amrutha Laxmi Hospital Ex.A7Prescriptions Ex.A8Medical bills Ex.A9IP case record

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MVOP 271 of 2007 Grievous Injury

EXHIBITS MARKED FOR RESPONDENTS

Ex.B1Copy of insurance policy of tractor Ex.B2Copy of notice dated 25.6.2010 Ex.B3Postal receipt Ex.B4Returned postal cover Ex.B5Copy of driving licence Ex.B6Postal receipt Ex.B7Returned postal cover Ex.B8Copy of examination under Section 251 CrPC of the Court of JMFC (Special Mobile), Nizamabad, in CC No.374 of 2009 Ex.B9Copy of judgment dated 28.6.2010 of the Court of JMFC (Special Mobile), Nizamabad, in CC No.374 of 2009

EXHIBITS MARKED FOR THIRD PARTY

Ex.X1Letter dated 21.9.2013 of the DTC

JUDGE

Feb 2, 2015 11 / 11 II ADJ, NZB

MVOP 715 of 2009 Grievous Injury

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

PRESENT: SRI B.S. JAG JEEVAN KUMAR, B.Sc., LL.M.,

I ADDITIONAL DISTRICT JUDGE

FAC II ADDITIONAL DISTRICT JUDGE

Thursday, January 22, 2015

MVOP NO.715 OF 2009

BETWEEN:

Mohd.Ghouse S/o Mohd.Haneef, 38 years, Scrap Business, R/o Opposite to Brundavan Talkies, Kamala Nehru Colony, Armoor, Nizamabad District … Petitioner

AND

1)Narender Juttu S/o Narayana, major, owner of auto No.AP01V8019, R/o H.No.4-18-12 Kuntala village, Adilabad District

2)ICICI Lombard General Insurance Company Limited represented by its Branch Manager, Branch Office:6-3-352/1, Osman Plaza, Road No.1, Banjara Hills, Opp.HDFC Bank, Hyderabad [Certificate-cum- policy No.3004/53933134/00/000 valid from 14.4.2008 to 13.4.2009] … Respondents

Counsel for Petitioner : Sri Algote Ravinder, Advocate, Nizamabad

Counsel for Respondent No.2: Sri V.Bhasker, Advocate, Nizamabad

Respondent No.1 remained ex parte

This petition coming on 21.11.2014 for final hearing before me in the presence of the counsel on record and after hearing the counsel and having stood over to this day for consideration, this Tribunal made the following:

ORDER

1.The petitioner claims compensation of Rs.2.5 lakh from the owner and the insurer of auto No.AP01V80191 under Section 166 of the

Motor Vehicles Act.

1See copy of insurance policy, Ex.A15/B1.

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MVOP 715 of 2009 Grievous Injury

2.In his petition, the petitioner alleged that on 17.12.2008 at about 4.30 pm in front of Ratnam RTA Agent office, Ambedkar Chowrastha,

Armoor, while he was going by walk towards Ambedkar Chowrastha, the auto being driven in rash and negligent manner dashed against him as a result he sustained injuries. The police of Armoor registered a case in crime No.457 of 2008 under Section 337 IPC and investigated into the case. He sustained fracture 5 ribs left side and 3 ribs right side, fracture right shoulder and grievous injuries to head, lips, left hand, left foot, waist, back, abdomen liver rupture and other parts of his body. He was shifted to MJ Hospital, whereat he was treated as inpatient from 17.12.2008 to 4.1.2009 and underwent operations and incurred expenditure of Rs.50,000/- for his treatment. He was doing scrap business and was earning Rs.20,000/- per month. On account of the injuries, he got permanent disability and his income is badly affected.

The respondents are, jointly and severally, liable to pay him the compensation claimed.

3.The 1st respondent remained ex parte. The 2nd respondent pleaded that the petitioner met with accident as he moved on the road without observing vehicular traffic, that no accident occurred with the auto and the petitioner falsely involved the auto in collusion with the 1st respondent and that as on the date of the accident, the auto driver did not possess valid and effective driving licence and the auto was not having valid permit and fitness certificate to ply on the road. It denied the other petition allegations and pleaded that it is not liable to pay any compensation to the petitioner. It also pleaded that the compensation claimed is excessive.

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MVOP 715 of 2009 Grievous Injury

4.Based on the above pleadings, the following issues were framed for trial:

1)Whether the accident took place on 17.12.2008 at 4.30 pm in front of Ratnam RTA Agent Office, Armoor, due to rash and negligent driving of auto No.AP01V8019 by its driver?

2)Whether the petitioner is entitled for compensation? If so, to what just amount and against whom?

3)To what relief?

5.The petitioner, to prove his case, examined himself as P.W.1 and filed Exs.A1 to A15. Prescriptions dated 19.1.2011 and 7.2.2011,

Ex.A7, do not pertain to RTA injuries and are, therefore, rejected.

Ex.A15 is copy of insurance policy. Copies of charge-sheet, FIR, injury certificate, scene of offence panchanama and rough sketch of the scene were filed as Exs.A1 to A5. Ex.A14 is photos of the petitioner taken during treatment. Report and image of ultrasonographic examination of total abdomen, lab reports, X-Ray films, medical bills, X-Ray bills, discharge card and hospital bill were filed as Exs.A9, A8, A13, A11, A12,

A6 and A10 respectively. Dr.Madhushekhar, Consultant Surgeon, who is running MJ Hospital, Armoor, was examined as P.W.2.

6.On the other hand, the 2nd respondent examined its Legal

Retainer, Mohammed Babu, as R.W.1 and its Manager (Legal),

Chandramoulishwer, as R.W.3. Auto insurance policy copy was filed as

Ex.B1. Copies of two notices dated 29.1.2011 issued to the 1st respondent and the auto driver, Anumala Devidas, requiring them to produce copies of vehicle documents and driving licence, and two postal receipts, were filed through R.W.1 as Exs.B2, B4, B3 and B5 respectively. Copy of judgment dated 26.11.2012 of the Court of

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MVOP 715 of 2009 Grievous Injury

AJMFC, Armoor, in CC No.98 of 2011 was filed through R.W.3 as Ex.B6.

Md.Zaheeruddin, MVI/ALA, Nirmal was examined as R.W.2.

FINDINGS

7.The crime record, Exs.A1 to A5, which is not disputed, and the judgment of conviction in Ex.B6, clearly establish that on 17.12.2008 at about 4.30 pm near Ambedkar Chowrastha, Armoor, the auto driver,

Anumala Devidas, caused grievous injuries to the petitioner by rash and negligent driving of the auto.

8.P.W.1 spoke of the manner of the accident as pleaded. He was cross-examined. He stated that the auto was coming from Nizamabad side towards Ambedkar Chowrastha. His wife lodged the complaint

before the police. He did not state to the police that while he was

proceeding on his cycle from Ambedkar Chowrastha towards his house, the auto came in opposite direction and dashed against his cycle. There was a divider on the main road Brundavan talkies – Ambedkar

Chowrastha. He denied that he was proceeding from Ambedkar

Chowrastha towards his house on wrong side and due to his fault only, the accident occurred. He also denied that he did not sustain any injuries in the accident.

9.Nothing was elicited from P.W.1 to disbelieve his testimony.

R.W.1 spoke of the defence of the 2nd respondent but he is not eyewitness. From Ex.B6, filed through R.W.3, it is clear that the auto driver, after full trial, was convicted and sentenced for causing grievous injuries to the petitioner by rash and negligent driving of the auto. No satisfactory evidence was adduced to show that no accident occurred with the auto and the auto was falsely involved. In the circumstances and in view of the evidence of P.W.1 and Exs.A1 to A5 and B6, it must

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be held that the accident occurred due to rash and negligent driving of the auto by its driver and the petitioner sustained grievous injuries in that accident.

10.As regards age, occupation and income of the petitioner, there is only self-serving statement of P.W.1. In Ex.A1, his age is mentioned

as 44 years and his occupation, as scrap business. No satisfactory

evidence was adduced to show that the petitioner was earning

Rs.20,000/- per month from his business. The accident is of the year 2008. The petitioner is not income tax assessee. He did not produce his accounts. In the absence of such evidence, the income of the petitioner is estimated at Rs.4,000/- per month.

11.P.W.2 was examined to prove the injuries and to prove the medical record filed. He testified that on 17.12.2008 he examined the petitioner and found 5 injuries: (1) laceration occipital area, (2) abrasion over front of chest, (3) abrasion on epigastric region, (4) tenderness over left side of lower chest, and (5) distension of abdomen. X-Ray chest revealed fracture 6th, 7th, 8th, 9th and 10th ribs on left side and 5th, 6th and 7th ribs on right side and fracture of left clavicle.

Ultrasound examination showed haemoperitoneum. Injury Nos.1 to 3 are simple in nature and injury Nos.4 and 5 are grievous in nature. The petitioner was treated as inpatient. Laparotomy and spleenectomy with distal pancreatectomy was done. On 4.1.2009 the petitioner was discharged. He issued Exs.A3 and A6. Exs.A7 to A9 were issued from his hospital. Exs.A11 and A13 pertain to the treatment of the petitioner.

The petitioner came for follow up on 9.1.2009 and 19.1.2009. The injuries mentioned in Exs.A3 and A6 were sustained by the petitioner in

RTA.

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12.In the cross-examination, P.W.2 admitted that IP number is not mentioned in Exs.A3, A6 and A10 and he did not bring the case-sheet of the petitioner and that the injuries mentioned in Ex.A3 are possible by fall on a hard surface from a height. He denied that the petitioner did not sustain any injuries in RTA, that he did not treat the petitioner at any time, that he mentioned injury Nos.4 and 5 in Ex.A3 as grievous without any basis and that he issued Exs.A3 and A6 to A13 and deposed false to help the petitioner as he is his regular patient.

13.The police collected Ex.A3 from P.W.2 during investigation. The accident is of the year 2008. P.W.2 was not required to bring case- sheet and IP register. It is not in dispute that the criminal Court found the auto driver guilty of causing grievous injuries to the petitioner.

There is nothing on record to disbelieve the testimony of P.W.2. In the circumstances, the medical evidence on record has to be believed.

14.The medical evidence on record shows that the petitioner received two grievous injuries and three simple injuries. For about 18 days he was hospitalized and underwent surgery. He was on follow up till 19.1.2009. The nature of the injuries justifies for grant of

Rs.56,000/- to the petitioner for pain, suffering and trauma.

15.The hospital bill, Ex.A10, is for Rs.40,950/-, which if rounded off comes to Rs.41,000/-.The medical bills are for Rs.13,654/-, which if rounded off comes to Rs.14,000/-. Therefore, the petitioner is entitled for payment of Rs.55,000/- under the head 'medical expenses'.

16.During the treatment period, the petitioner must have lost his earnings and must have spent considerable amounts for transportation, extra nourishment and attendant charges. Loss of his earnings are estimated at Rs.8,000/- and the other expenses at Rs.10,000/-.

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17.Disability was pleaded. Disability certificate was not filed. P.W.2 did not speak of any disability. In the circumstances, the plea of disability is rejected.

18.In view of the above discussion, the compensation payable to the petitioner has to be awarded as under:

Sl.No. Heads Calculation

Rs.

1)Pain, suffering and trauma56000

3)Medical expenses55000

4)Loss of earnings8000

5)Transportation,extra 10000 nourishment and attendant charges

Total:129000

19.The 2nd respondent, by relying on the evidence of R.Ws.1 to 3 and Exs.B1 to B6, disowns its liability on the ground that the auto driver, Anumala Devidas, was not having valid driving licence to drive the vehicle.

20.In case it is found that the offending vehicle was driven by driver who was either holding no licence or a fake licence, then it amounts to violation of terms and conditions of the policy and no liability can be fastened upon the insurance company.2

21.As per Ex.A15/B1, the auto was insured as passenger carrying vehicle. Ex.A1 shows that the auto driver was charge-sheeted for driving the vehicle without driving licence.

22.Copy of judgment in CC No.98 of 2011, Ex.B6, filed through

R.W.3, shows that the charge-sheet in Ex.A1 was taken on file by the

Court of AJMFC, Armoor and that after full trial, the auto driver was 22007(4) SCALE 36; 2011(5) SCALE 494; 2013(3) TAC 29 (SC).

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convicted and sentenced for the offence of driving the vehicle without driving licence.

23.R.W.3 denied that the auto driver was having valid driving licence, that the police did not ask the driver to produce his driving licence, that the driver was charge-sheeted without proper investigation and that Ex.B6 would not help the 2nd respondent in proving its case that the driver had no driving licence as on the date of the accident.

24.If the auto driver was having driving licence, he would have produced it before the Criminal Court. From Ex.B6, it is evident that the auto driver did not produce any driving licence.

25.By producing Exs.B2 to B5, copies of notices and postal receipts,

R.W.1 stated that in spite of the notices, the 1st respondent and the auto driver did not produce copy of driving licence. The 2nd respondent did not file postal acknowledgments of the 1st respondent and the auto driver. In the absence of the postal acknowledgments, it is difficult to conclude that the notices in Exs.B2 and B4 were served on the 1st respondent and the auto driver and they failed to comply with the notices.

26.R.W.2 was summoned to prove that the auto driver was not issued any driving licence. As per Exs.A1 and B6, the auto driver is resident of Kuntala village.

27.It is not in dispute that Kuntala village and Mandal falls within the jurisdiction of R.W.2. The evidence of R.W.2 is that after receiving summons he verified the record and found that the auto driver,

A.Devidas S/o Ashanna, 38 years, R/o Kuntala village, was not issued

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MVOP 715 of 2009 Grievous Injury

any driving licence from their office on and prior to 17.12.2008, the date of accident.

28.In the cross-examination R.W.2 admitted that he did not bring the record pertaining to issuance of licences, that he did not verify the name and other particulars of A.Devidas by going to the village and that persons with voter card, ration card or aadhar card can apply for issue of driving licences to the ALA of the area where they reside.

29.It is not expected from R.W.2 to go to the village and verify the name and other particulars of the auto driver. R.W.2 said the record pertaining to the issuance of driving licences was computerized and it cannot be brought to the Court. Inasmuch as the record pertaining to issuance of driving licences is computerized, one cannot expect production of such record. R.W.2 denied that he did not verify the record and that the auto driver was issued driving licence. If driving licence was applied for and was obtained by the auto driver either from the Office of R.W.2 or from any other ALA, the auto driver would not have suffered the judgment of conviction for the offence under Section 181 of the Motor Vehicles Act.

30.In view of Ex.B6 and the evidence of R.W.2, it must be held that the 2nd respondent proved that as on the date of the accident the auto driver did not have driving licence to drive the vehicle and the 1st respondent breached the driver's clause in Ex.B1.

31.For the foregoing reasons, it must be held that the accident occurred due to rash and negligent driving of the auto by its driver and that the petitioner is entitled to compensation of Rs.1,29,000/- from the 1st respondent only. The issues are accordingly decided.

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MVOP 715 of 2009 Grievous Injury

32.IN THE RESULT, the petition is dismissed against the 2nd respondent and is partly allowed against the 1st respondent. The compensation payable to the petitioner by the 1st respondent is determined at Rs.1,29,000/-. Within a month from this day, the 1st respondent No.1 shall deposit into the Court the said compensation amount of Rs.1,29,000/- with proportionate costs and pending and future interest at 7.5% per annum. On deposit, the petitioner is at liberty to withdraw the entire amount. Advocate fee is fixed at

Rs.1,000/-.

Partly typed to my dictation by the PA and partly prepared by me, corrected and pronounced by me in the open Court on this the 22nd day of January 2015.

II ADDITIONAL DISTRICT JUDGE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

P.W.1Sri Mohd.GhouseR.W.1 Sri Mohammed Babu P.W.2Dr.MadhushekharR.W.2 Sri Md.Zaheeruddin R.W.3 Sri Chandramoulishwer

EXHIBITS MARKED FOR PETITIONER

Ex.A1Copy of charge-sheet Ex.A2 Copy of FIR Ex.A3 Copy of injury certificate Ex.A4 Copy of scene of offence panchanama Ex.A5Copy of rough sketch of scene Ex.A6Discharge card Ex.A7Prescriptions (rejected) Ex.A8Lab reports Ex.A9Report and image of ultrasonographic examination of total abdomen Ex.A10 Hospital bill Ex.A11 Medical bills Ex.A12 X-Ray bills Ex.A13 X-Ray films Ex.A14 Photos of petitioner Ex.A15 Copy of insurance policy

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MVOP 715 of 2009 Grievous Injury

EXHIBITS MARKED FOR RESPONDENTS

Ex.B1Copy of insurance policy of auto Ex.B2Copy of notice dated 29.1.2011 Ex.B3Postal receipt Ex.B4Copy of notice dated 29.1.2011 Ex.B5Postal receipt Ex.B6Copy of judgment dated 26.11.2012 of the Court of AJMFC, Armoor, in CC No.98 of 2011

JUDGE

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MV OP 67 of 2010 1/10

Grievous injury

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[VIII ADDITIONAL DISTRICT JUDGE] AT NIZAMABAD

PRESENT: SRI B.S. JAG JEEVAN KUMAR, B.Sc., LL.M.,

I ADDITIONAL DISTRICT JUDGE

FAC: VIII ADDITIONAL DISTRICT JUDGE

Friday, the 20th day of June, 2014

MV OP NO.67 OF 2010

BETWEEN:

Puli Mohan S/o Devanna, 22 years, Agriculturist, R/o Kosli village, Navipet Mandala, Nizamabad District … Petitioner

AND

1) Shaik Moinuddin S/o Moulana, major, Owner of auto No.AP-25-V- 9894, R/o H.No.5-54/1, Kosli village, Navipet Mandal, Nizamabad District

2) M/s Shriram General Insurance Company Limited represented by its Branch Manager, Corporate Office, E-8, EPIP, RIICO, Sitapura, Jaipur, Rajasthan State [Policy No.00000885/1589 valid from 29.9.2008 to 28.9.2009] … Respondents

Counsel for Petitioner : Sri Azar Kishan Rao, Advocate, Nizamabad Counsel for Respondent No.2 : Sri P.Narsing Rao, Advocate, Nizamabad Respondent No.1 remained ex parte

This petition coming on 14.5.2014 for final hearing before me in the presence of the counsel on record and after hearing the counsel and having stood over to this day for consideration, this Tribunal made the following:

ORDER

The petitioner claims compensation of Rs.3 lakh from the owner and the insurer of auto No.AP-25-V-98941 under Section 166 of the

Motor Vehicles Act alleging -

a)that on 22.11.2008 at about 8.00 am near water tank, Navipet 1 See copy of cover note, Ex.A11, and copy of insurance policy, Ex.B1.

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MV OP 67 of 2010 2/10

Grievous injury village, the auto while overtaking a bullock cart was driven in rash and negligent manner and dashed lorry No.RJ-01-7174 coming in opposite direction as a result the petitioner traveling in the auto sustained injuries;

b)that he suffered closed head injury with bi-frontal contusion, behavioural disability, fracture right wrist and injuries to hands and legs and other parts of his body;

c)that the police of Navipet registered a case in crime No.216 of 2008 against the auto driver for the offence punishable under

Section 337 IPC;

d)that he was shifted to GHH, Nizamabad in ambulance and after first aid, he was referred to Hyderabad;

e)that he was shifted to Gandhi Hospital, Secunderabad and after 15 days' treatment there, he was shifted to KIMS, Hyderabad;

f)that he incurred expenditure of Rs.1 lakh for his treatment and is still undergoing treatment with private doctors;

g)that he was earning Rs.10,000/- per month by doing agriculture; and

h)that on account of the injuries, he got permanent disability and is unable to attend to his works and his income is badly affected.

2. The 1st respondent remained ex parte. The 2nd respondent filed counter denying the petition allegations and pleaded that there was no rashness and negligence on the part of the auto driver. It also pleaded that the lorry driver was not having licence to drive the vehicle. The compensation may be apportioned basing on contributory negligence on

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MV OP 67 of 2010 3/10

Grievous injury the part of the drivers of both the vehicles. Alternatively, it pleaded that the compensation claimed is excessive.

3. On the basis of the above pleadings, the following issues were framed:

1)Whether accident took placedue to rash and negligent driving of auto No.AP-25-V-9894 by its driver?

2)Whether the petitioner is entitled for compensation? If so, to what just amount and against whom?

3)To what relief?

4. For proving his case, the petitioner examined himself as P.W.1 and examined Dr.A.Krishna Reddy, Consultant Surgeon, KIMS,

Secunderabad, as P.W.2. He filed copies of FIR, charge-sheet and medical certificate as Exs.A1 to A3. Ex.A11 is copy of cover note.

Ex.A13 is case-sheet of the Gandhi Hospital. Copy of case-sheet, discharge summary, receipts, medical bills and hospital bill of the KIMS were marked as Exs.A12, A4, A6, A8 and A7 respectively. Ex.A5 is medical prescription, Ex.A9 is lab reports and Ex.A10 is X-Ray film. On the other hand, the contesting respondent examined its Legal Officer,

B.A.L.N.Hari Krishna as R.W.1 and P.Raghunath Rao, Junior Assistant,

Office of the DTC and RTA, Nizamabad, as R.W.2. Ex.B1 is copy of insurance policy of the auto and Ex.B2 is particulars of driving licence of the auto driver, Moinuddin. Ex.X1 is letter dated 27.3.2014 of the DTC and RTA authorizing R.W.2 to produce extract of driving licence of the auto driver, Ex.X2, and to represent him.

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Grievous injury

FINDINGS

5. ISSUE NO.1:

5.1 On this issue, there is oral evidence of P.W.1 and the crime record,

Exs.A1 to A3. The crime record is not disputed. The auto driver/the 1st respondent was charge-sheeted for causing grievous injuries to the petitioner and two others by his rash and negligent driving.

5.2 P.W.1 spoke of the manner of the accident as pleaded in the petition. He was cross-examined. He said three persons were traveling in the auto. The owner of the auto drove the auto. One bullock cart was going ahead of the auto and one lorry was coming in opposite direction and while overtaking the bullock cart, the auto driver dashed the lorry.

He denied that he filed false case against the auto driver.

5.3 Nothing was brought on record to disbelieve the testimony of

P.W.1. No rebuttal evidence was adduced. In the circumstances and in view of the crime record, it must be held that the accident occurred due to rash and negligent driving of the auto by the 1st respondent. The issue is accordingly decided.

6. ISSUE NO.2:

6.1 As regards the injuries received by the petitioner, the treatment taken for the injuries and the expenditure made for the treatment, there is oral evidence of P.W.1 and medical evidence.

6.2 Exs.A3, A4, A6 to A8 and A10 are proved through P.W.2. It is the evidence of P.W.2 that the petitioner was admitted in their hospital on

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Grievous injury 9.12.2008 with alleged history of RTA occurred on 22.11.2008. While traveling in an auto, the petitioner was hit by a lorry. After 15 days treatment at Gandhi Hospital, Secunderabad, the petitioner was brought to their hospital. At the time of admission, the petitioner was disoriented, irrelevant talk present. His right hand and wrist had 4” sutured wound. The petitioner was investigated of CT scan brain twice at Gandhi Hospital and once in their hospital. The initial scan done at

Gandhi Hospital showed bi-frontal contusion and small areas of haemorrhage which was improved in the subsequent scan. The petitioner was treated conservatively with medication and was discharged on 12.12.2008. The injury to the brain is serious and is grievous. At the time of discharge, the petitioner was stable but he was in altered sensorium GCS 13/15. Normally this sort of injury requires few weeks to recover and in an number of patients it may leave residual neurological problems.

6.3 P.W.2 was cross-examined. It was elicited from him that there is no evidence of further follow up treatment after discharge on 12.12.2008. There is no report of scan in respect of bi-frontal contusion and small areas of haemorrhage. He denied that the petitioner did not suffer bi-lateral frontal contusion and small areas of haemorrhage, that he was not treated in their hospital and that Exs.A3,

A4, A6 to A8 and A10 are not correct.

6.4 The medical evidence on record shows that the petitioner sustained one grievous injury. He had to take treatment in two

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Grievous injury hospitals. Exs.A13, A12 and A4 show that he was hospitalized till 12.12.2008 (20 days). The nature of the injuries justifies for grant of

Rs.25,000/- to the petitioner for pain, suffering and trauma.

6.5 None connected with Exs.A5 and A9 was examined. Therefore, the plea that the petitioner continued treatment in private hospital is rejected.

6.6 The hospital bill, Ex.A7, is for Rs.12,806/-. The medical bills in

Ex.A8 are for Rs.3,464/-2. Therefore, the petitioner is entitled for payment of Rs.16,270/-3 under the head 'medical expenses'.

6.7 As per the crime record and medical record, the petitioner was aged 22 years as on the date of the accident. As regards his occupation and income, there is only his self-serving statement. In the charge-sheet, Ex.A2, the petitioner's occupation is mentioned as labourer. No record is filed to show that the petitioner owned and possessed any agricultural lands and was doing agriculture. In the circumstances, the petitioner's income as labourer is estimated at

Rs.4,000/- per month.

6.8 P.W.2 stated that the injury suffered by the petitioner may require few weeks to recover. For about 1 – 2 months, the petitioner must not have attended to his works and he lost his earnings during that period and he must have spent considerable amounts for transportation, extra nourishment and attendant charges and the same 2 Rs.2250+695+519. 3 Rs.12806+3464.

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Grievous injury are estimated at Rs.18,000/-.

6.9 No medical evidence was produced to show that the petitioner is suffering from any neurological problems. He appeared before the Court and gave evidence. Therefore, the plea of disability is rejected.

6.10 The insurer disowns its liability on the ground that the auto driver possessed driving licence for auto non-transport and he was not eligible to drive the auto transport. It relied upon the evidence of

R.Ws.1 and 2 and the decisions in New India Assurance Company

Limited v. Prabhu Lal4, Bajaj Allianz General Insurance Company Limited v. N.M.Rajaprakash5, New India Assurance Company Limited v.

G.Sampoorna6 and Ramkumar v. Mangal Chand7.

6.11 The auto was insured as passenger carrying vehicle.

Ex.B2/X2 shows that the driver was authorized to drive MCWG/LMV/T&T non-transport from 8.9.2008 and T&T/MTL from 27.12.2011. It is the evidence of R.Ws.1 and 2 that the auto driver was not authorized to drive transport vehicle as on the date of the accident.

6.12 Can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the licence to drive light motor vehicle used as commercial vehicle, came up for decision before the

Hon'ble Supreme Court recently in S.Iyyapan v. United India Insurance

4 2008(1)SCC 696. 5 2010 ACJ 2706 (Karnataka). 6 2010(5) ALT 105 (AP). 7 MANU/RH/1407/2013.

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Grievous injury

Co. Ltd.,8 and the Court held: “... the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.” 6.13 In the case on hand, the auto driver possessed auto non- transport driving licence. In view of the decision of the Hon'ble

Supreme Court in Iyyappan's case9, the insurer cannot disown its liability to pay compensation on the ground that the auto driver was not holding licence to drive the auto, a transport vehicle.

6.14 For the foregoing reasons, it must be held that the respondents are liable to pay to the petitioner Rs.59,270/-10 as compensation. The issue is accordingly decided.

7. ISSUE NO.3:

In view of the findings on issue Nos.1 and 2, the petition has to be partly allowed.

8.IN THE RESULT, the petition is partly allowed. The compensation 8 III (2013) ACC 19 (SC). 9 Ibid. 10 Rs.25000+16270+18000.

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Grievous injury payable to the petitioner by the respondents, jointly and severally, is determined at Rs.59,270/-. The respondents shall deposit into the

Court, within a month from this day, the compensation amount with proportionate costs with pending and future interest at 7.5% per annum. On deposit, the petitioner is at liberty to withdraw the entire amount. Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 20th day of June 2014.

VIII ADDITIONAL DISTRICT JUDGE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER FOR RESPONDENTS

P.W.1 Sri P.Mohan R.W.1 Sri B.A.L.N. Hari Krishna P.W.2 Dr.A.Krishna Reddy R.W.2 Sri P.Raghunatha Rao

EXHIBITS MARKED FOR PETITIONER

Ex.A1 Copy of FIR Ex.A2 Copy of charge-sheet Ex.A3 Copy of medical certificate Ex.A4 Discharge summary of KIMS Ex.A5 Medical prescriptions dated 17.1.2009 and 11.8.2009 of Dr.B.Keshavulu Ex.A6 Receipts issued by KIMS Ex.A7 Hospital bill of KIMS Ex.A8 Medical bills of KIMS Ex.A9 Lab report of KIMS Ex.A10 X-Ray film Ex.A11 Copy of cover note of auto Ex.A12 Case-sheet of KIMS Ex.A13 Case-sheet of Gandhi Hospital

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EXHIBITS MARKED FOR RESPONDENTS

Ex.B1 Copy of insurance policy of auto Ex.B2 Particulars of driving licence of auto driver

EXHIBITS MARKED FOR THIRD PARTY

Ex.X1 Letter dated 27.3.2014 of the DTC and RTA Ex.X2 Extract of driving licence of auto driver

JUDGE

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