Sri B.Syam Sunder

1

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.Nos. 22 of 2011 and 23 of 2011

Between:- ( OP. 22 of 2011 );

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D

1. The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J-3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ).

3. T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH- 06/J-3694 as per accident report ).

...... Respondents.

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.4,00,000/- for the death of Ganji Laxmaiah in motor vehicle accident.

Between ( OP 23 of 2011 ):-

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D 1 The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J- 3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

2

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.2,00,000/- for the death of Ganji Naveneetha in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

C O M M O N -O R D E R

1. These two petitions arising out of same accident can be disposed of by a common order. These petitions are filed U/s 166 of M.V Act,1988 R/w Rule 475 of

M.V.Rules claiming compensation of Rs.4,00,000/- and Rs.2,00,000/- by the petitioner who is wife of the deceased-Ganji Laxmaiah and mother of another deceased Ganji Navaneetha who died in motor vehicle accident that occurred on 12-6-2009 at about 5.15 pm on H.No.7 road within the limits of Moosapet village.

2. The case of the petitioner in both petitions in brief is that that on 12-6-2009, her husband Ganji Laxmaiah along with others boarded an auto-rickshaw bearing

No. AP-22-V-7485 and at about 5-15 pm, when the driver of the auto was waiting for taking turning towards Moosapet village on N.H.7 road, R-3 came with his Car from

Kurnool side at high speed, in a rash and negligent manner and dashed the said auto-rickshaw on back side, due to which, her husband, her daughter and other inmates of the auto fell down and sustained grievous injuries. It is the contention of the petitioner that her husband succumbed to the injuries on 12-6-2009 due to the injuries sustained by him in the motor vehicle accident. The petitioner submits that on a complaint lodged before police, a case in Cr. No. 80 of 2009 registered against

R-3 and after due investigation, police filed charge sheet. She submits that prior to the accident, her husband was hale and healthy, aged 35 years and was earning

Rs.200/- per day and contributing the same for the maintenance of the family. Due to sudden and untimely death of her husband and also her only daughter aged 5 3 months old, she subjected mental agony and sustained huge loss and claimed compensation of Rs.4-00 lakhs for the death of her husband and Rs. 2-00 lakhs for the death of her minor daughter in the said motor vehicle accident against R-1 who is owner as per insurance policy, against R-2 insurer and also against R-3 who is owner-cum-driver of the Car as per accident report.

3.The 1st respondent and 3rd respondent remained exparte and not chosen to contest the case.

4.The second-respondent/Insurance company filed counter denying the accident, manner in which it was occurred, age and income of the deceased-

G.Laxmaiah prior to the accident. It is the contention of respondent No.2 that R-1 entrusted the vehicle to R-3 who did not possess valid and effective driving license thereby violated terms and conditions of the policy. They submits that the unfortunate accident not took place due to negligence of driver of alleged crime vehicle and same was took place due to entire negligence of the driver of the auto bearing No. AP-22-V-7485 as its driver did not possess any valid and effective driving license to drive such vehicle and the said auto-rickshaw was over loaded and tried to cross the road without observing the vehicular traffic on either side of the road. They also stated that the amount of compensation claimed by the petitioner on various heads is highly excessive. Even if petitioner is entitled to claim compensation, it has to be restricted under the provisions of M.V. Act basing on contributory negligence and prays to dismiss the petition.

5.On the basis of above pleadings, the following issues have been settled for trial in OP 22 of 2011:-

1. Whether the accident dated 12-6-2009 was due to rash and negligent driving of the driver of Car bearing no. MH.06-J/3694 and that the husband of the claimant died in that accident?

2. Whether the driver of auto bearing No. AP-22-V-7485 was rash and negligent in driving his vehicle and as such the owner and insurance company of the auto are the proper and the non-joinder is fatal?

3. Whether the claimant is entitled for compensation from the respondents and if so to what extent and from whom?

4. To what relief?

4

6.On the basis of above pleadings, the following issues have been settled for trial in OP 23 of 2011:-

1. Whether the accident dated 12-6-2009 was due to rash and negligent driving of the driver of Car bearing no. MH.06-J/3694 and that the daughter of the claimant died in that accident?

2. Whether the driver of auto bearing No. AP-22-V-7485 was rash and negligent in driving his vehicle and as such the owner and insurance company of the auto are the proper and the non-joinder is fatal?

3. Whether the claimant is entitled for compensation from the respondents and if so to what extent and from whom?

4. To what relief?

5.As both petitions arising out of same accident, the learned advocate for petitioner filed a memo to club OP 22 of 2011 in OP 23 of 2011 and common evidence is recorded in both the petitions. On behalf of petitioner, PW-1 and PW2 were examined, Ex.A-1 to Ex.A-8 were marked. On behalf of respondent No.2,

RW-1 is examined and Ex.B-1 copy of insurance policy marked. Respondent No.2 also filed petition U/Sec.170 of M.V. Act and the same is allowed.

6. I have heard both sides.

7.The learned advocate for petitioner argued that the petitioner in both the cases is third party to the policy, due to that, she is entitled to claim compensation from any one of the wrongdoer. He argued that R-2/insurance company failed to establish any violation of conditions of the policy either by R-1 or by R-3. He prays to allow the petition.

8.The learned Advocate R-2 argued that R-3 had no transport driving license to drive passenger carrying vehicle thereby R-1 violated terms and conditions of the policy,due to that their company is not liable to pay compensation to the petitioner.

9.ISSUE Nos. 1 and 2 on both petitions:- PW1- G. Manemma, who is petitioner in both petitions, has stated on oath in her chief-examination-affidavit about averments in the petition. The chief-examination-affidavit of PW-1 is replica of contents of the petition. She deposed that her husband was earning Rs.200/- per day as mason and was contributing the same to the family and claimed 5 compensation of Rs.4-00 lakhs. She also claimed compensation of Rs.2-00 lakhs for the death of her minor daughter in the motor vehicle accident. Ex.A-1 CC of FIR,

Ex.A-2 CC of charge sheet, Ex.A-3 CC of PME report of G. Laxmaiah, Ex.A-4 CC of inquest report of G.Laxmaiah, Ex.A-5 CC of PME report of G. Navaneetha, Ex.A-6

CC of inquest report of G.Manemma, Ex.A-7 CC of MVI report and Ex.A-8 photo- stat copy of insurance policy marked in her evidence. In cross-examination, she has stated that she was also present in the said auto-rickshaw at the time of accident, but she has not preferred any complaint to police with regard to the accident. She further admitted that at the time of accident, herself, her daughter, her husband and two other passengers and driver were proceeding in the said vehicle and the accident occurred on N.H. 7 road. She denied suggestion that the accident occurred due to negligence of the driver of the auto-rickshaw as he suddenly turned the vehicle while proceeding on national highway. She further denied suggestion that the driver of offending car had no driving license at the time of accident. However, she admitted that she has not filed any record to show that her husband was doing masonry work and earning money.

10.PW-2 M. Venkat Ramulu said to be an eye witness to the accident, has deposed about manner in which accident occurred and stated that when the auto- rickshaw was waiting for taking turning towards Moosapet village on N.H.7 road, a

Car bearing No. MH-06-J-3694 came from Kurnool side driven by its driver at high speed, in a rash and negligent manner and dashed the auto-rickshaw on its back side. He further stated that G. Laxmaiah and his daughter G. Navaneetha and other inmates of the auto fell down and sustained injuries. In cross-examination, he admitted that he was not travelling in the auto-rickshaw at the time of accident and he also not preferred any complaint to police immediately after the accident.

11.Against the aforesaid evidence of petitioner, Mr. Venkatswamy (RW-1)

Administrative officer of R-2-company, has stated on oath in his chief-examination affidavit that the insurance police was in force for R-1, R-3 vehicle at the time of 6 accident. He deposed that the accident took place due to the negligence of the driver of the auto-rickshaw wherein the deceased were travelling due to that the owner and insurer of the auto-rickshaw are also proper and necessary parties to this petition and they alone are liable to pay compensation to the petitioner. He further stated that

R-3 is the alleged owner-cum-driver of Car had no valid driving license as he was authorized to drive L.M.V non-transport vehicle, but the offending vehicle is a transport vehicle thereby R-1, R-3 violated terms and conditions of the policy. Ex.B-1 copy of policy marked in his evidence. In cross-examination, he denied suggestion that the offending vehicle is a light motor vehicle though admitted that R-3 is having

LMV non-transport driving license. He also denied suggestion that person who is holding non-transport light motor vehicle driving license can also driver transport light motor vehicle.

12.After perusing the evidence on both sides which shows that admittedly RW-1 is not an eye witness to the accident. The evidence of RW-1 is only based on records which is replica of contents of their petition. Whereas it is the evidence of

PW-1 who travelled in the auto-rickshaw at the time of accident that R-3 came in a car at high speed and dashed the auto on his back side. The evidence of PW-1 is also supported by the evidence of PW-2 independent witness. Even the criminal case records and police investigation supports the contention of the petitioner with regard to manner in which accident occurred. In Motor Vehicle Accident Claims, strict proof of the accident caused in particular manner may not be possible to be done by the claimants as the claimants are merely to establish their case on touch stone of preponderance of probability and standard of reasonable doubt could not have been applied. Further, though proof of negligence is a sine-quo-non to maintain a petition U/Sec.166 of Motor Vehicles Act when criminal case records proved on record, if remain unrebutted and unchallenged can be taken to be sufficient to establish the rash and negligence on the part of the driver of the offending vehicle.

Even when any party wants the Court to believe that there was contributory 7 negligence on the part of the victim, it has to prove the same by adducing cogent evidence and Court cannot substitute its own judgment with that of a witness. In the present case, though R-2 pleaded contributory negligence or negligence on the part of driver of auto-rickshaw, they have not chosen to examine R-3 to explain manner which accident was occurred. Even otherwise, it is not the contention of R-2 that there was contributory negligence on the part of the deceased and they pleaded contributory negligence on the part of the driver of the auto-rickshaw. In such circumstances, it is beneficial quote to decision of Hon'ble Apex court. which it is held that in the case of composite negligence, the victim of motor vehicle accident, has got option to proceed against any one of the wrongdoer as per the ratio laid down by the Hon'ble Apex Court in T.O. Anthony Vs. Karvarnan and others,2008

ACJ 1165, where composite negligence and contributory negligence is explained as under at para 6 quoted as under;-

6. ’Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence”.

13. In Mahesh Krishna and others Vs. A. Sabrik Krishna and others, 2012 TAC 119 (M.P), it is held that ' no contributory negligence can be attributed to the person travelling in the vehicle and the victim of motor accident has got option to proceed against any one of the wrongdoer. Para 5 of the judgment is quoted as under:

8 “ After taking into consideration all the facts and circumstances of the case and keeping in view the fact that truck driver remained ex-parte before learned Tribunal and also before this court and no other evidence was adduced to prove that in what circumstances the accident occurred, this court is of the view that learned Tribunal committed error in apportioning the liability to the extent of 40% between the respondents and driver, owner and insurance company of the offending tractor who were not impleaded as party. Apart from this, since the appellant was travelling in the tractor which was loaded with Soyabean, there was no justification on the party of learned Tribunal to hold the driver , owner and insurance company of the tractor liable who were not impleaded as part. In the matter of T.O Anthony Vs. Karvarnan, 2008 A.C.J. 1165: 2008 (3) T.,A.C 193 (SC), Hon'ble Apex court held that where a person is injured as a result of negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of entire damages and the injured has choice of proceeding against all or any of them”.

14.In Jagdish Prasad Agarwal Vs. Upendra Singh and others, 2012 (1) T.A.C 208 ( Gauhati .),it is held that ' in a case of composite negligence, victim of motor vehicle accident has got option to proceed against each wrong doer jointly and severally and each wrongdoer is jointly and severally liable to the injured for payment of the entire damages'.

15.As per the ratio laid down in the above referred decisions of Hon'ble Apex court, and Hon'ble High Court the petitioner has got option to proceed against any one of the wrongdoer. However, in the present case, R-1, R-3 have not chosen to contest the case to explain manner in which accident occurred and police investigation which is unchallenged, supports the contention of the petitioner. So, the petitioner able to prove that the accident occurred due to rash and negligent driving of driver of R-3 wherein her husband and minor daughter died. As the petitioner being third party to R-2 insurance policy, she can proceed against any one of the wrongdoer, due to that the petitioner is not bad for non-joinder of owner and insurer of auto-rickshaw. Hence, these issues are answered in favour of the petitioner and against the respondents.

11.ISSUE No. 3 in OP 22 of 2011 :- It is the contention of the petitioner that her husband was aged 35 years and was earning Rs. 200/- per day by doing masonry 9 work. However, PW-1 admitted in her evidence that she has not filed any record that her husband was earning by doing masonry work. It is also not suggested to

PWs 1 and 2 in cross-examination that the deceased G.Laxmaiah was not earning any amount. After considering the age of the deceased G. Laxmaiah as 35 years, one can easily assess that his income per annum cannot be less than Rs.

36,000/-,per annum out of which 1/3 has to be deducted towards personal and living expenses. The reminder a sum of Rs.24,000/- is the contribution to the dependent family. As the age of the deceased G. Laxmaiah is not in dispute, which is shown as 35 years, proper multiplier for arriving loss to the dependent family is multiplier '16'. When loss of contribution to the dependent family multiplied with multiplier '16', which gives loss of dependency to the family i.e., Rs.24,000/- x 16 =

Rs.3,84,000/-. Further the petitioner being wife of the deceased is entitled to claim a sum of Rs.5,000/- towards loss of consortium, Rs.5,000/- towards loss of estate and a sum of Rs.3,000/- towards funeral expenses. In total petitioner in OP 22 of 2011 is entitled to claim compensation of Rs. 3,97,000/- for the death of her husband G.

Laxmaiah in the motor vehicle accident.

12.Issue No.3 in OP 23 of 2011:- It is the contention of the petitioner that her minor daughter was aged 5 months at the time of her death and claimed compensation of Rs.2-00 lakhs. In a case of minor who was admittedly five months at the time of her death and after considering the age of the deceased, and after taking into consideration the notional come of the deceased as Rs. 15,000/- per annum and out of which, half of the income has to be deducted towards personal and living expenses, the reminder is Rs.7,500/-. After applying multiplier '20', which gives loss of dependency to the petitioner, which comes to Rs.7,500/- x 20 =

Rs.1,50,000/-. The petitioner is also entitled to claim Rs. 5,000/- towards loss of estate and a sum of Rs.3,000/- towards funeral expenses. In total the petitioner in

OP 23 of 2011 is entitled to Rs.1,58,000/- for the death of her minor daughter in the

motor vehicle accident.

10

13.It is the contention of R-2 that R-3 had LMV non-transport driving license only, but the offending vehicle is passenger carriage vehicle due to that R-1, R-3 violated terms and conditions of the policy. But R-2 failed to file any record to show that R-3 had driving license to drive LMV non-transport only and they failed to prove any violation of conditions of the policy either by R-1 or by R-3. As Ex.B1 policy stands in the name of R-1, valid from 21-7-2008 to 20-7-2009.Whereas the accident occurred on 12-6-2009. So the policy was in force on the date of accident. The petitioner being third party to the policy, can claim compensation from all the respondents who are liable to pay compensation to the petitioner jointly and severally. Hence, this issue is answered in favour of the petitioner and against the respondents.

18.ISSUE No.4 in OP 22 of 2011:- In the result, the petition is allowed in part, awarding compensation of Rs. 3,97,000/- (Rupees three lakhs ninety seven thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The Respondents 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 97,000/- with proportionate interest and costs and her rest of compensation amount of Rs.3,00,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.2,000/-.

19. ISSUE No.4 in OP 23 of 2011:- In the result, the petition is allowed in part, awarding compensation of Rs. 1,58,000/- (Rupees One lakh, fifty eight thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The Respondents 1 to 3 are directed to deposit the 11 compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the entire amount shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Personal Asst., transcribed by him, corrected and pronounced

by me in the open Court this the 17th day of April, 2013.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER:- FOR THE RESPONDENTS:-

P.W.1 Ganji Manemma RW-1 Venkat Swamy, PW-2 M.Venkat ramulu

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A-1 CC of F.IR., Ex.A-2 CC of Charge sheet, Ex.A-3 CC of PME report of G.Laxmaiah, Ex.A-4 CC of inquest report, of G. Laxmaiah. Ex.A-5 CC of PME report of G.Navaneetha. Ex.A-6 CC of inquest report of G. Navaneetha, Ex.A-7 CC of MVI report, Ex.A-8 Copy of insurance policy.

FOR THE RESPONDENTS:-

 Ex.B­1 Copy of Insurance policy,

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

12

DECREE

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. OP. 22 of 2011

Between:-

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D

1. The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH- 06/J-3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

13 Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.4,00,000/- for the death of Ganji Laxmaiah in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

3,97,000/- (Rupees three lakhs ninety seven thousand only) to the petitioner payable by the Respondents No.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on till the date of realization.

2. The Respondents 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 97,000/- with proportionate interest and costs and her rest of compensation amount of Rs.3,00,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed.

3.That the Respondents No.1 to 3 do also pay a sum of Rs.5,430/- (Rupees five thousand four hundred and thirty only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.2,000/-.

Given under my hand and the seal of the Court on this the 17th day

April, 2013.

IV-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.3,360-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.2,000-00- 14 (fixed by the Court)

8. Miscellaneous --- Proportionate Costs: Rs.5,430-00 Rs.2-00

IV-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.

DECREE

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 23 of 2011

Between

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D 1 The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J- 3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

15

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.2,00,000/- for the death of Ganji Naveneetha in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

1,58,000/- (Rupees One lakh, fifty eight thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on till the date of realization.

2. The Respondents No. 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the entire amount shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed

3.That the Respondents No.1 to 3 do also pay a sum of Rs.2,648/- (Rupees two thousand six hundred forty eight only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.1,500/-.

Given under my hand and the seal of the Court on this the 17th day

April, 2013.

IV-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.1,360-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.1,500-00- (fixed by the Court) 16

8. Miscellaneous --- Proportionate Costs: Rs.2,648-00 Rs.2-00

IV-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.

1

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.Nos. 22 of 2011 and 23 of 2011

Between:- ( OP. 22 of 2011 );

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D

1. The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J-3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ).

3. T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH- 06/J-3694 as per accident report ).

...... Respondents.

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.4,00,000/- for the death of Ganji Laxmaiah in motor vehicle accident.

Between ( OP 23 of 2011 ):-

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D 1 The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J- 3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

2

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.2,00,000/- for the death of Ganji Naveneetha in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

C O M M O N -O R D E R

1. These two petitions arising out of same accident can be disposed of by a common order. These petitions are filed U/s 166 of M.V Act,1988 R/w Rule 475 of

M.V.Rules claiming compensation of Rs.4,00,000/- and Rs.2,00,000/- by the petitioner who is wife of the deceased-Ganji Laxmaiah and mother of another deceased Ganji Navaneetha who died in motor vehicle accident that occurred on 12-6-2009 at about 5.15 pm on H.No.7 road within the limits of Moosapet village.

2. The case of the petitioner in both petitions in brief is that that on 12-6-2009, her husband Ganji Laxmaiah along with others boarded an auto-rickshaw bearing

No. AP-22-V-7485 and at about 5-15 pm, when the driver of the auto was waiting for taking turning towards Moosapet village on N.H.7 road, R-3 came with his Car from

Kurnool side at high speed, in a rash and negligent manner and dashed the said auto-rickshaw on back side, due to which, her husband, her daughter and other inmates of the auto fell down and sustained grievous injuries. It is the contention of the petitioner that her husband succumbed to the injuries on 12-6-2009 due to the injuries sustained by him in the motor vehicle accident. The petitioner submits that on a complaint lodged before police, a case in Cr. No. 80 of 2009 registered against

R-3 and after due investigation, police filed charge sheet. She submits that prior to the accident, her husband was hale and healthy, aged 35 years and was earning

Rs.200/- per day and contributing the same for the maintenance of the family. Due to sudden and untimely death of her husband and also her only daughter aged 5 3 months old, she subjected mental agony and sustained huge loss and claimed compensation of Rs.4-00 lakhs for the death of her husband and Rs. 2-00 lakhs for the death of her minor daughter in the said motor vehicle accident against R-1 who is owner as per insurance policy, against R-2 insurer and also against R-3 who is owner-cum-driver of the Car as per accident report.

3.The 1st respondent and 3rd respondent remained exparte and not chosen to contest the case.

4.The second-respondent/Insurance company filed counter denying the accident, manner in which it was occurred, age and income of the deceased-

G.Laxmaiah prior to the accident. It is the contention of respondent No.2 that R-1 entrusted the vehicle to R-3 who did not possess valid and effective driving license thereby violated terms and conditions of the policy. They submits that the unfortunate accident not took place due to negligence of driver of alleged crime vehicle and same was took place due to entire negligence of the driver of the auto bearing No. AP-22-V-7485 as its driver did not possess any valid and effective driving license to drive such vehicle and the said auto-rickshaw was over loaded and tried to cross the road without observing the vehicular traffic on either side of the road. They also stated that the amount of compensation claimed by the petitioner on various heads is highly excessive. Even if petitioner is entitled to claim compensation, it has to be restricted under the provisions of M.V. Act basing on contributory negligence and prays to dismiss the petition.

5.On the basis of above pleadings, the following issues have been settled for trial in OP 22 of 2011:-

1. Whether the accident dated 12-6-2009 was due to rash and negligent driving of the driver of Car bearing no. MH.06-J/3694 and that the husband of the claimant died in that accident?

2. Whether the driver of auto bearing No. AP-22-V-7485 was rash and negligent in driving his vehicle and as such the owner and insurance company of the auto are the proper and the non-joinder is fatal?

3. Whether the claimant is entitled for compensation from the respondents and if so to what extent and from whom?

4. To what relief?

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6.On the basis of above pleadings, the following issues have been settled for trial in OP 23 of 2011:-

1. Whether the accident dated 12-6-2009 was due to rash and negligent driving of the driver of Car bearing no. MH.06-J/3694 and that the daughter of the claimant died in that accident?

2. Whether the driver of auto bearing No. AP-22-V-7485 was rash and negligent in driving his vehicle and as such the owner and insurance company of the auto are the proper and the non-joinder is fatal?

3. Whether the claimant is entitled for compensation from the respondents and if so to what extent and from whom?

4. To what relief?

5.As both petitions arising out of same accident, the learned advocate for petitioner filed a memo to club OP 22 of 2011 in OP 23 of 2011 and common evidence is recorded in both the petitions. On behalf of petitioner, PW-1 and PW2 were examined, Ex.A-1 to Ex.A-8 were marked. On behalf of respondent No.2,

RW-1 is examined and Ex.B-1 copy of insurance policy marked. Respondent No.2 also filed petition U/Sec.170 of M.V. Act and the same is allowed.

6. I have heard both sides.

7.The learned advocate for petitioner argued that the petitioner in both the cases is third party to the policy, due to that, she is entitled to claim compensation from any one of the wrongdoer. He argued that R-2/insurance company failed to establish any violation of conditions of the policy either by R-1 or by R-3. He prays to allow the petition.

8.The learned Advocate R-2 argued that R-3 had no transport driving license to drive passenger carrying vehicle thereby R-1 violated terms and conditions of the policy,due to that their company is not liable to pay compensation to the petitioner.

9.ISSUE Nos. 1 and 2 on both petitions:- PW1- G. Manemma, who is petitioner in both petitions, has stated on oath in her chief-examination-affidavit about averments in the petition. The chief-examination-affidavit of PW-1 is replica of contents of the petition. She deposed that her husband was earning Rs.200/- per day as mason and was contributing the same to the family and claimed 5 compensation of Rs.4-00 lakhs. She also claimed compensation of Rs.2-00 lakhs for the death of her minor daughter in the motor vehicle accident. Ex.A-1 CC of FIR,

Ex.A-2 CC of charge sheet, Ex.A-3 CC of PME report of G. Laxmaiah, Ex.A-4 CC of inquest report of G.Laxmaiah, Ex.A-5 CC of PME report of G. Navaneetha, Ex.A-6

CC of inquest report of G.Manemma, Ex.A-7 CC of MVI report and Ex.A-8 photo- stat copy of insurance policy marked in her evidence. In cross-examination, she has stated that she was also present in the said auto-rickshaw at the time of accident, but she has not preferred any complaint to police with regard to the accident. She further admitted that at the time of accident, herself, her daughter, her husband and two other passengers and driver were proceeding in the said vehicle and the accident occurred on N.H. 7 road. She denied suggestion that the accident occurred due to negligence of the driver of the auto-rickshaw as he suddenly turned the vehicle while proceeding on national highway. She further denied suggestion that the driver of offending car had no driving license at the time of accident. However, she admitted that she has not filed any record to show that her husband was doing masonry work and earning money.

10.PW-2 M. Venkat Ramulu said to be an eye witness to the accident, has deposed about manner in which accident occurred and stated that when the auto- rickshaw was waiting for taking turning towards Moosapet village on N.H.7 road, a

Car bearing No. MH-06-J-3694 came from Kurnool side driven by its driver at high speed, in a rash and negligent manner and dashed the auto-rickshaw on its back side. He further stated that G. Laxmaiah and his daughter G. Navaneetha and other inmates of the auto fell down and sustained injuries. In cross-examination, he admitted that he was not travelling in the auto-rickshaw at the time of accident and he also not preferred any complaint to police immediately after the accident.

11.Against the aforesaid evidence of petitioner, Mr. Venkatswamy (RW-1)

Administrative officer of R-2-company, has stated on oath in his chief-examination affidavit that the insurance police was in force for R-1, R-3 vehicle at the time of 6 accident. He deposed that the accident took place due to the negligence of the driver of the auto-rickshaw wherein the deceased were travelling due to that the owner and insurer of the auto-rickshaw are also proper and necessary parties to this petition and they alone are liable to pay compensation to the petitioner. He further stated that

R-3 is the alleged owner-cum-driver of Car had no valid driving license as he was authorized to drive L.M.V non-transport vehicle, but the offending vehicle is a transport vehicle thereby R-1, R-3 violated terms and conditions of the policy. Ex.B-1 copy of policy marked in his evidence. In cross-examination, he denied suggestion that the offending vehicle is a light motor vehicle though admitted that R-3 is having

LMV non-transport driving license. He also denied suggestion that person who is holding non-transport light motor vehicle driving license can also driver transport light motor vehicle.

12.After perusing the evidence on both sides which shows that admittedly RW-1 is not an eye witness to the accident. The evidence of RW-1 is only based on records which is replica of contents of their petition. Whereas it is the evidence of

PW-1 who travelled in the auto-rickshaw at the time of accident that R-3 came in a car at high speed and dashed the auto on his back side. The evidence of PW-1 is also supported by the evidence of PW-2 independent witness. Even the criminal case records and police investigation supports the contention of the petitioner with regard to manner in which accident occurred. In Motor Vehicle Accident Claims, strict proof of the accident caused in particular manner may not be possible to be done by the claimants as the claimants are merely to establish their case on touch stone of preponderance of probability and standard of reasonable doubt could not have been applied. Further, though proof of negligence is a sine-quo-non to maintain a petition U/Sec.166 of Motor Vehicles Act when criminal case records proved on record, if remain unrebutted and unchallenged can be taken to be sufficient to establish the rash and negligence on the part of the driver of the offending vehicle.

Even when any party wants the Court to believe that there was contributory 7 negligence on the part of the victim, it has to prove the same by adducing cogent evidence and Court cannot substitute its own judgment with that of a witness. In the present case, though R-2 pleaded contributory negligence or negligence on the part of driver of auto-rickshaw, they have not chosen to examine R-3 to explain manner which accident was occurred. Even otherwise, it is not the contention of R-2 that there was contributory negligence on the part of the deceased and they pleaded contributory negligence on the part of the driver of the auto-rickshaw. In such circumstances, it is beneficial quote to decision of Hon'ble Apex court. which it is held that in the case of composite negligence, the victim of motor vehicle accident, has got option to proceed against any one of the wrongdoer as per the ratio laid down by the Hon'ble Apex Court in T.O. Anthony Vs. Karvarnan and others,2008

ACJ 1165, where composite negligence and contributory negligence is explained as under at para 6 quoted as under;-

6. ’Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence”.

13. In Mahesh Krishna and others Vs. A. Sabrik Krishna and others, 2012 TAC 119 (M.P), it is held that ' no contributory negligence can be attributed to the person travelling in the vehicle and the victim of motor accident has got option to proceed against any one of the wrongdoer. Para 5 of the judgment is quoted as under:

8 “ After taking into consideration all the facts and circumstances of the case and keeping in view the fact that truck driver remained ex-parte before learned Tribunal and also before this court and no other evidence was adduced to prove that in what circumstances the accident occurred, this court is of the view that learned Tribunal committed error in apportioning the liability to the extent of 40% between the respondents and driver, owner and insurance company of the offending tractor who were not impleaded as party. Apart from this, since the appellant was travelling in the tractor which was loaded with Soyabean, there was no justification on the party of learned Tribunal to hold the driver , owner and insurance company of the tractor liable who were not impleaded as part. In the matter of T.O Anthony Vs. Karvarnan, 2008 A.C.J. 1165: 2008 (3) T.,A.C 193 (SC), Hon'ble Apex court held that where a person is injured as a result of negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of entire damages and the injured has choice of proceeding against all or any of them”.

14.In Jagdish Prasad Agarwal Vs. Upendra Singh and others, 2012 (1) T.A.C 208 ( Gauhati .),it is held that ' in a case of composite negligence, victim of motor vehicle accident has got option to proceed against each wrong doer jointly and severally and each wrongdoer is jointly and severally liable to the injured for payment of the entire damages'.

15.As per the ratio laid down in the above referred decisions of Hon'ble Apex court, and Hon'ble High Court the petitioner has got option to proceed against any one of the wrongdoer. However, in the present case, R-1, R-3 have not chosen to contest the case to explain manner in which accident occurred and police investigation which is unchallenged, supports the contention of the petitioner. So, the petitioner able to prove that the accident occurred due to rash and negligent driving of driver of R-3 wherein her husband and minor daughter died. As the petitioner being third party to R-2 insurance policy, she can proceed against any one of the wrongdoer, due to that the petitioner is not bad for non-joinder of owner and insurer of auto-rickshaw. Hence, these issues are answered in favour of the petitioner and against the respondents.

11.ISSUE No. 3 in OP 22 of 2011 :- It is the contention of the petitioner that her husband was aged 35 years and was earning Rs. 200/- per day by doing masonry 9 work. However, PW-1 admitted in her evidence that she has not filed any record that her husband was earning by doing masonry work. It is also not suggested to

PWs 1 and 2 in cross-examination that the deceased G.Laxmaiah was not earning any amount. After considering the age of the deceased G. Laxmaiah as 35 years, one can easily assess that his income per annum cannot be less than Rs.

36,000/-,per annum out of which 1/3 has to be deducted towards personal and living expenses. The reminder a sum of Rs.24,000/- is the contribution to the dependent family. As the age of the deceased G. Laxmaiah is not in dispute, which is shown as 35 years, proper multiplier for arriving loss to the dependent family is multiplier '16'. When loss of contribution to the dependent family multiplied with multiplier '16', which gives loss of dependency to the family i.e., Rs.24,000/- x 16 =

Rs.3,84,000/-. Further the petitioner being wife of the deceased is entitled to claim a sum of Rs.5,000/- towards loss of consortium, Rs.5,000/- towards loss of estate and a sum of Rs.3,000/- towards funeral expenses. In total petitioner in OP 22 of 2011 is entitled to claim compensation of Rs. 3,97,000/- for the death of her husband G.

Laxmaiah in the motor vehicle accident.

12.Issue No.3 in OP 23 of 2011:- It is the contention of the petitioner that her minor daughter was aged 5 months at the time of her death and claimed compensation of Rs.2-00 lakhs. In a case of minor who was admittedly five months at the time of her death and after considering the age of the deceased, and after taking into consideration the notional come of the deceased as Rs. 15,000/- per annum and out of which, half of the income has to be deducted towards personal and living expenses, the reminder is Rs.7,500/-. After applying multiplier '20', which gives loss of dependency to the petitioner, which comes to Rs.7,500/- x 20 =

Rs.1,50,000/-. The petitioner is also entitled to claim Rs. 5,000/- towards loss of estate and a sum of Rs.3,000/- towards funeral expenses. In total the petitioner in

OP 23 of 2011 is entitled to Rs.1,58,000/- for the death of her minor daughter in the

motor vehicle accident.

10

13.It is the contention of R-2 that R-3 had LMV non-transport driving license only, but the offending vehicle is passenger carriage vehicle due to that R-1, R-3 violated terms and conditions of the policy. But R-2 failed to file any record to show that R-3 had driving license to drive LMV non-transport only and they failed to prove any violation of conditions of the policy either by R-1 or by R-3. As Ex.B1 policy stands in the name of R-1, valid from 21-7-2008 to 20-7-2009.Whereas the accident occurred on 12-6-2009. So the policy was in force on the date of accident. The petitioner being third party to the policy, can claim compensation from all the respondents who are liable to pay compensation to the petitioner jointly and severally. Hence, this issue is answered in favour of the petitioner and against the respondents.

18.ISSUE No.4 in OP 22 of 2011:- In the result, the petition is allowed in part, awarding compensation of Rs. 3,97,000/- (Rupees three lakhs ninety seven thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The Respondents 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 97,000/- with proportionate interest and costs and her rest of compensation amount of Rs.3,00,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.2,000/-.

19. ISSUE No.4 in OP 23 of 2011:- In the result, the petition is allowed in part, awarding compensation of Rs. 1,58,000/- (Rupees One lakh, fifty eight thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The Respondents 1 to 3 are directed to deposit the 11 compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the entire amount shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Personal Asst., transcribed by him, corrected and pronounced

by me in the open Court this the 17th day of April, 2013.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER:- FOR THE RESPONDENTS:-

P.W.1 Ganji Manemma RW-1 Venkat Swamy, PW-2 M.Venkat ramulu

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A-1 CC of F.IR., Ex.A-2 CC of Charge sheet, Ex.A-3 CC of PME report of G.Laxmaiah, Ex.A-4 CC of inquest report, of G. Laxmaiah. Ex.A-5 CC of PME report of G.Navaneetha. Ex.A-6 CC of inquest report of G. Navaneetha, Ex.A-7 CC of MVI report, Ex.A-8 Copy of insurance policy.

FOR THE RESPONDENTS:-

 Ex.B­1 Copy of Insurance policy,

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

12

DECREE

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. OP. 22 of 2011

Between:-

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D

1. The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH- 06/J-3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

13 Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.4,00,000/- for the death of Ganji Laxmaiah in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

3,97,000/- (Rupees three lakhs ninety seven thousand only) to the petitioner payable by the Respondents No.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on till the date of realization.

2. The Respondents 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 97,000/- with proportionate interest and costs and her rest of compensation amount of Rs.3,00,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed.

3.That the Respondents No.1 to 3 do also pay a sum of Rs.5,430/- (Rupees five thousand four hundred and thirty only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.2,000/-.

Given under my hand and the seal of the Court on this the 17th day

April, 2013.

IV-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.3,360-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.2,000-00- 14 (fixed by the Court)

8. Miscellaneous --- Proportionate Costs: Rs.5,430-00 Rs.2-00

IV-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.

DECREE

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Wednesday the 17th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 23 of 2011

Between

Smt. Ganji Manemma W/o late Ganji Laxmaiah, 30 years, occu; house-wife R/o Thunkinipur village of Addakal mandal, Mahabubnagar District. …. Petitioner. A N D 1 The Manager, Jal Auto Hirers, Ashishwangh, New Karajat – Khapoli RD., Gunge, Karjat, Dist: Raigad, Maharashtra State ( owner of the Car bearing No. MH-06/J- 3694- as per policy)

2. The New India Assurance Co.Ltd., Rep. by through its Senior Branch Manager, Branch office, Opp: Modern High School, Mahabubnagar ( Policy No.111800/31/08/01/00001759 , valid from 21-7-2008 to 20-7-2009 ). 3 T. Srinvas Rao S/o T.Sobhanadri, 48 years, Chief State Manager, CRI(BHCO R/o 704 B, Sri Rama Apartments, Anandnagar, Hebbal, Bangalore, Karnataka State ( owner cum driver of the Car bearing No. MH-06/J-3694 as per accident report ).

...... Respondents.

15

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 R/w Rule 475 of M.V.Rules claiming compensation of Rs.2,00,000/- for the death of Ganji Naveneetha in motor vehicle accident.

@ @ @

These MVOPs are coming up for final hearing before me on 12-4-2013 in the presence of Sri A.Satish Goud, Advocate for the Petitioners in both the OPs and Sri V.Vignaneshwara Sharma, Advocate for the Respondent No.2 in both the OPs and the Respondent Nos.1 & 3 remained exparte in both the petitions and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

1,58,000/- (Rupees One lakh, fifty eight thousand only) to the petitioner payable by the Respondent Nos.1 to 3 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on till the date of realization.

2. The Respondents No. 1 to 3 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the entire amount shall be kept in fixed deposit in any Nationalized bank for a period of three years. Rest of the claim of the petitioner is dismissed

3.That the Respondents No.1 to 3 do also pay a sum of Rs.2,648/- (Rupees two thousand six hundred forty eight only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.1,500/-.

Given under my hand and the seal of the Court on this the 17th day

April, 2013.

IV-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.1,360-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.1,500-00- (fixed by the Court) 16

8. Miscellaneous --- Proportionate Costs: Rs.2,648-00 Rs.2-00

IV-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.

1

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

IV-ADDL. DISTRICT JUDGE, AT MAHABUBNAGAR.

Friday day the 12 th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 40 of 2011

Between:-

1. Vislavath Bal Singh @ Balu S/o Teekya Naik, 30 years,Agril,

2. Vislavath Kistamma W/o Islavath Bal Singh @ Bablu, 28 years, house-wife, Both R/o Vadenna Cheruvu thanda H/o Ankilla village, Koilkonda mandal, Mahabubnagar.

…. Petitioner. A N D

1. V.Pool Singh S/o V. Chendriya Naik, age; Major, occu; owner of Tractor and Trailer bearing No. AP-22-V-5768 and A.P.-22-V/5770 R/o Vadenna cheruvu thanda, Ankilla village, Koilkonda mandal, Mahabubnagar District. ( Policy No. 61150131100100000293, Valid from 19-4-2010 to 18-4-2011 ).

2. The New India Assurance Company Ltd., Rep., by its Manager, Mahabubnagar BO ( 611501 ) 2-2-2/D, Opp: Modern High School, Mahabubnagar.

..... Respondents.

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 r/w Rule 455 of M.V. Rules claiming compensation of Rs.2,50,000/- for the death of the deceased Vislavath Prakash Pawar in a Motor Vehicle Accident.

@ @ @

This MVOP is coming up for final hearing before me on 4-4-2013 in the presence of Sri G.Gopal, Advocate for the Petitioner and Sri S.Govind Raj, Advocate

for the Respondent No.2 and the Respondent No.1 remained exparte and upon

perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

O R D E R

1. This is a petition filed U/Sec. 166 of M.V. Act,1988 claiming compensation of

Rs.2,50,000/- by the parents of the deceased- Vislavath Prakash Prakash Pawar, who died in a motor vehicle accident that occurred on 8-5-2010 at about 5-30 pm near

Ankilla Pedda vagu Bridge in Koilkonda mandal.

2. The case of the petitioners in brief is that that on 8-5-2010, the deceased-boy went along with his father for hair cutting at Koilkonda village. After hair cutting,the 2 father of the deceased got the minor boy boarded into a tractor-cum-trailer bearing No.

AP-22-V/5768 and AP-22-V/5770 of his relative to send the minor boy to his village.

The deceased minor-boy was sitting along with one Ramulu, Arun, Kathalaiah and

Pushpalatha in the trailer of the tractor which was loaded with bricks and was proceeding to the Thanda of the petitioners. When the tractor reached near Ankilla

Pedda vagu Bridge and when the vehicle proceeding in up-gradient, the driver of the tractor raised escalator in a negligent manner, due to which, the tractor came in reverse direction and then the trailer went and hit to a bridge and then turned turtle, due to that the bricks fell on the minor boy, due to that, the son of the petitioners died on the spot. It is alleged that the accident occurred due to negligent driving of driver of the tractor, for which the first-petitioner lodged a report before police and the police registered a case U/s 304-A and 337 of IPC. It is the contention of the petitioners that prior to the accident,their son was hale and healthy and was studying in 4th class and he was a brilliant student, but due to sudden death of their son, they subjected to much mental pain and suffering and claimed compensation of Rs. 2,50,000/- on various heads against R-1,R-2, who are owner and insurer of the tractor.

3.The first-respondent owner of the vehicle remained exparte and not chosen to contest the case.

4. The second-respondent filed counter denying the accident, manner in which it was occurred, the rash and negligent driving of the driver of the tractor. It is the contention of R-2 that as per contents of the petition itself shows that the deceased was travelling as an unauthorized passenger in a goods vehicle which amounts to violation of policy conditions, due to that their company is not liable to pay any compensation to the petitioners. They further submits that the claim of the petitioners is excessive and exorbitant and prays to dismiss the petition.

5.On the basis of above pleadings, the following issues have been settled for trial:- 3

1. Whether the accident dated 8-5-2010 was due to rash and negligent driving of the Tractor and Trailer bearing No.AP-22-V/5768-5770 by its driver and that the son of the claimants died in that accident?

2. Whether the claimants are entitled for compensation from the respondents and if so to what extent and from whom?

3. Whether the deceased was an unauthorized passenger in the goods vehicle?

4. To what relief?

5.On behalf of petitioners, PW-1 and PW2 were examined, Ex.A-1 to Ex.A-9 were marked. On behalf of respondent No.2, RW-1 was examined and Ex.B1 marked .

Respondent No.2 also filed petition U/Sec.170 of M.V. Act and the same is allowed.

6. I have heard both sides. The learned Advocate for R-2 filed written arguments.

7.The learned Advocate for petitioners argued that though the deceased boy travelling as a passenger in a tractor, as the policy was in force on the date of accident, R-2/insurance company is liable to pay compensation to the petitioners. He relied a decision in The New Indian Insurance Company Vs. Darshana Devi and Ors., in Appeal (civil) 1232 of 2008.

8.The learned Advocate for R-2 argued that admittedly the deceased-boy travelled in a goods carriage vehicle, for which there is no carriage of policy to the risk of the unauthorized passengers travelling in a goods carriage vehicle, due to that their company is not liable to pay compensation to the petitioners.

9.ISSUE No.1:- PW1 Vislavath Bal Singh @ Balu, first-petitioner/father of the deceased boy, has stated on oath in his chief-examination-affidavit about averments in the petition. The chief-examination-affidavit of PW-1 is replica of contents of the petition. Ex.A1 CC of FIR, Ex.A-2 CC of inquest report, Ex.A-3 CC of autopsy report,

Ex.A-4 CC of MVI report, Ex.A-5 CC of charge sheet, Ex.A-6 photo-stat copy of insurance policy, Ex.A-7 photo-stat copy of registration certificate of tractor, Ex.A-8 photo-stat copy of registration certificate of trailer, and Ex.A-9 CC of crime details form marked in his evidence. In cross-examination, he admitted that his son boarded trailer of the tractor of R-1 as passenger, for which he also gave Rs. 10/- towards fare 4 to be paid to the driver of the tractor. However, he admitted that he was not an eye witness to the accident. He also admitted that he was not the owner of the brick load in the tractor.

10.PW-2 Ramulu, who said to be travelled in the trailer of the tractor on the date of the accident, has deposed that the deceased-boy sat along with them in the trailer and at that time, there was brick load in the trailer of the tractor. He has stated that when the tractor reached near Ankilla Pedda vagu Bridge and when the vehicle proceeding in up-gradient road, the driver raised escalator in a negligent manner due to which the tractor came in reverse direction and then the trailer went and hit to a bridge, due to that, the trailer turned turtle and bricks fell on the deceased who died on the spot. In cross-examination, he admitted that on the date of the accident, six persons boarded the trolley of the tractor and they all travelled as passengers in the trolley. He denied suggestion that there was no negligence on the part of the driver of the tractor.

11.Against the aforesaid evidence of petitioners, Mr. Venkatswamy (RW-1)

Administrative officer of R-2's company, has stated on oath in his chief-examination- affidavit that as per 'B' register of the offending vehicle which is meant for commercial use and it is a goods vehicle but admittedly the deceased boy travelled as a passenger in the commercial vehicle which amounts to violation of the conditions of the policy and also motor vehicles Act, due to that, their company is not liable to pay compensation to the petitioners. Ex.B-1 copy of insurance policy marked in his evidence. In cross-examination, he admitted that at the time of accident, the deceased boy was travelling in the trolley of the tractor. After perusal of the evidence on both sides, which shows that PW-1 has deposed that he got his minor son boarded in the trailer of the tractor at Koilkonda on 8-5-2010. The evidence of PW-2 supports the contention of the petitioners manner in which accident occurred. Ex.A-1 CC of FIR, which was lodged immediately after the accident shows manner in which accident occurred. Even the police investigation supports the contention of the petitioners with 5 regard to rash and negligent act of the driver of R-1 vehicle. Ex.A-4 MVI report shows that the accident occurred is not due to any mechanical defect of the vehicle. In Motor

Vehicle Accident Claims, strict proof of the accident caused in particular manner may not be possible to be done by the claimants as the claimants are merely to establish their case on touch stone of preponderance of probability and standard of reasonable doubt could not have been applied. Further, though proof of negligence is a sine-quo- non to maintain a petition U/Sec.166 of Motor Vehicles Act when criminal case records proved on record, if remain unrebutted and unchallenged can be taken to be sufficient to establish the rash and negligence on the part of the driver of the offending vehicle.

Even when any party wants the Court to believe that there was contributory negligence on the part of the victim, it has to prove the same by adducing cogent evidence and

Court cannot substitute its own judgment with that of a witness. In the present case also, the criminal case records are unchallenged,which supports the contention of the petitioners manner in which accident occurred. Even otherwise, RW-1 has not stated in his evidence that the accident occurred not due to the rash and negligent driving of the driver of R-1 vehicle. So the petitioners able to prove that the accident occurred due to rash and negligent driving of the driver of the tractor bearing No. AP-22-V/5768 and trailer bearing No. AP-22-V-5770. Hence, this issue is answered in favour of petitioners and against the respondents.

11.ISSUE Nos. 2 and 3 :- It is the contention of the petitioners that while their minor son aged about 10 years travelling in the trailer of the tractor which turned turtle and brick load fell on the deceased-boy, due to that, he sustained injuries and died on the spot. Ex.A-2 CC of inquest report and Ex.A-3 autopsy report supports the contention of the petitioners that the deceased boy died in a motor vehicle accident.

The petitioners being parents of the deceased boy are entitled to claim compensation for the death of their minor son in the motor vehicle accident. Exs.A-2, A-3 also shows that the minor boy was aged 9 years at the time of his death. As the minor boy was not earning person, his notional income can be taken as Rs.15,000/- per annum. Further, 6 as the minor boy is below 15 years of age, as per II Schedule to M.V.Act, if the age of the deceased is upto 15 years, proper multiplier is '20'. After deducting personal and living expenses as Rs.5,000/- per annum, balance of Rs.10,000/- per annum is considered to be the contribution to the dependent family constitutes multiplicand.

When the contribution to the dependent family multiplied with multiplier '20', which gives loss of dependency to the family i.e., Rs. 10,000/- x 20 = Rs.2,00,000/-. The petitioners are also entitled to claim Rs.10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. In total the petitioners are entitled to Rs.2,15,000/- for the death of their minor son in the motor vehicle accident. The compensation amount is apportioned between the petitioners as follows:-

1) First-petitioner - Father - Rs.1,00,000/-.

2) Second-petitioner - Mother – Rs.1,15,000/-.

12.The main contention of R-2 company is that though policy was in force on the date of the accident, admittedly the deceased boy travelled in a goods vehicle as an unauthorized passenger thereby R-1 violated the terms and conditions of the policy due to that, their company is not liable to pay compensation to the petitioners. The learned advocate for petitioners argued that though the deceased travelled in the tractor-cum-trailer, when the policy was in force on the date of the accident, the 2nd respondent can pay compensation to the petitioners and recover the same from R-1.

13.In New Indian Insurance Company Vs.Dashana Devi and others in Appeal (civil ) 1232 of 2008, the Hon'ble Apex Court elaborately discussed with regard to risk of passengers travelling in a goods labour and held at para 26 of the judgment, which is quoted as under:-

26. In view of the changes in the relevant provisions in the 1988 Act vis-‘a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle 7 to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. ”

14.In the said decision as the deceased was labourer he also used to deal in

Safeda wood which was being transported in the vehicle, the Hon'ble Apex court decline to interfere with the order of the Tribunal and the Hon'ble High Court awarding compensation to the petitioners therein fixing the liability on insurance company also but directed insurance company can recover amount from the owner of the vehicle.

The said decision is no way helpful to the case of the petitioners as it is admitted by

PW-1 in his evidence that his son travelled as passenger in the tractor-cum-trailer on the date of the accident. He also admitted that he was not the owner of brick load of the trailer. On perusal of Ex.A-7 copy of registration certificate of the tractor which shows that the offending vehicle is LMV transport vehicle wherein seating capacity is shown as one. Further Ex.A-8 copy of registration certificate of trailer shows that it is for commercial use LMV vehicle and there was no seating capacity. On perusal of

Ex.B1 copy of policy which will not shows that extra premium is paid to cover the risk at least coolies travelled in the offending vehicle. Ex.B-1 also shows that type of vehicle is agricultural vehicle not rateable. So Ex.B-1 policy not covers the risk of any passenger or no extra premium is paid to cover the risk of any coolies travelled in the tractor- cum-trailer. Admittedly the deceased boy travelled in the trailer along with brick load and he was not the owner of said brick load. In the said circumstances, it can be said that the deceased was an unauthorized passenger in transport goods vehicle. As per

Sec. 2 (47) of M.V. Acrt,1988, 'transport vehicle' means a public service vehicle, a good carriage, educational institution bus,or a private service vehicle. In the present case, the offending vehicle is a goods carriage vehicle as Ex.A7 and Ex.A-8 copies of registration certificates shows that there is no seating capacity in the trailer and in the tractor the seating capacity is only one. In similar circumstances, the Hon'ble High

Court of A.P., United Indian Insurance Co.Ltd., Vs. Balaswamy and others, 2012 (1)

ALT Page 273, wherein it is held that when no extra premium is paid to cover the risk 8 of the persons travelling in the tractor, the insurance company is not liable to pay compensation for the death of the persons travelling in the tractor-cum-trailer. In the present case also, admittedly the deceased boy travelled as a passenger in a goods vehicle whose risk is not covered under Ex.B1 policy though policy was in force on the date of the accident, due to that, R-2/insurance company is not liable to pay compensation to the petitioners for the death of their son in the motor vehicle accident.

However, R-1, who remained exparte and not chosen to contest the case, is vicariously liable to pay compensation to the petitioners for the acts of his driver.

Hence, these issues are answered accordingly.

15.ISSUE No.4:- In the result, the petition is allowed in part, awarding compensation of Rs. 2,15,000/- (Rupees two lakhs fifteen thousand only) to the petitioners payable by the Respondents No.1 alone with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The first- respondent is directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the first-petitioner is permitted to withdraw a sum of

Rs.50,000=00 with proportionate interest and entire costs. The second-petitioner is permitted to with Rs. 50,000/- with proportionate interest and their rest of compensation amount with proportionate interest shall be kept in fixed deposit in any nationalized bank for a period of 3 years. Rest of the claim of the petitioners and claim against R-2/insurance company is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.2,000/-.

Dictated to the Personal Asst., transcribed by him, corrected and pronounced by

me in the open Court this the 12 th day of April, 2013.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER:- FOR THE RESPONDENTS:-

9 P.W.1 Vilavath Balsingh @ Balu. RW-1 Venkatswamy, PW2. I. Ramulu.

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A-1 Certified Copy of First Information Report, Ex.A-2 Certified Copy of Inquest report, Ex.A-3 Certified Copy of Autopsy report, Ex.A-4 CC of MVI report. Ex.A-5 CC of Charge sheet, Ex.A-6 Copy of insurance policy. Ex. A-7 Copy of Registration certificate of Tractor, Ex.A-8 Copy of Registration certificate of Trailer, Ex.A-9 CC of Crime details form,

FOR THE RESPONDENTS:-

 Ex.B­1 Insurance policy.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

10

DECREE

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

I-ADDL. DISTRICT JUDGE, AT MAHABUBNAGAR.

Monday the 25th day of February, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

FAC I Addl.District Judge, Mahabubnagar

M.V.O.P.No. 9 of 2009

Between:- Pagadakula Narayana S/o late Ramalingam, 24 years, occu; weaver R/o Amarchinta village of Atmakur mandal, Mahabubnagar District., presently residing at Kothakota village and mandal,Mahabubnagar District. …. Petitioner. A N D

1. Sonaji Raju S/o Venkata Swamy, age; major, owner of the Eicher Van bearing No. AP-09-W-9659, R/o H. No. 15-4-296/A, Osmanshah, Gowliguda, Hyderabad.

2. The National Insurance Co.Ltd., rep., by its Branch Manager branch office at 2nd floor, 15-1-503/8/28, Ashok market, Feel Khana, Osman gunj, Hyderabad.

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988, claiming compensation of Rs.3,00,000/- for the injuries sustained by the petitioner in a Motor Vehicle Accident.

@ @ @

This MVOP is coming up for final hearing before me on 29-1-2013 in the presence of Sri N.Ramachandra Bhoopal, Advocate for the Petitioner and Sri M.Jagannatha Reddy, Advocate for the Respondent No.2 and the Respondent No.1 remained exparte and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

91,000/- (Rupees Ninety one thousand only) to the petitioner payable by the

Respondents No.1 and 2 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., 7-1-2009 till the date of realization.

2. The Respondents No.1 and 2 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 41,000/- with proportionate interest and costs and his rest of compensation amount of Rs.50,000/- with proportionate interest shall be kept in fixed deposit in any

Nationalized bank for a period of two years.

11

3. That the Respondents No.1 and 2 do also pay a sum of Rs.2,440/- (Rupees two thousand four hundred forty only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.1,500/-.

Given under my hand and the seal of the Court on this the 25th day

February, 2013.

I-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.2,360-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.8-00-

4. Publication Charges--

5. Stamp on Process Rs.214-00-

6. Commissioner Fee--

7. Advocate FeeRs.1,500-00- (fixed by the Court)

8. Miscellaneous --- TOTAL: Rs.4,084-00 Rs.2-00 Proportionate Costs: Rs.2,440-00

I-ADDL. DISTRICT JUDGE (MACT)

(FTC), MAHABUBNAGAR.

1

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Thursday the 4th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 228 of 2011

Between:- Vadde Parandamulu S/o Bheemaiah,17 years, occu; student and private tuitions, minor under the guardianship of his natural father, Bheemaiah S/o Veerappa, 48 years, occu; Agril, R/o Ananthasagar village of Kulkacherla mandal, Ranga reddy district, presently residing at Christianpally village, Mahabubnagar District . …. Petitioner. A N D

1. N.Srinivas Rao S/o Venkateshwar Rao, age; Major, occu; owner of Lorry bearing No. A.P 16.TY.3136, R/oD.No. 6-102, 1st street, Seetharampuram, Jaggaiahpet,Krishna District.

2. The National Insurance Co. Ltd., , rep., by its Divisional Manager, Divisional Office No.1, Bank street, Koti, Hyderabad. ( Policy No.0295248 valid from 17-7-2010 to 16-7-2011 ).

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 claiming compensation of Rs.1,00,000/- for the injuries sustained by petitioner in motor vehicle accident.

@ @ @

This MVOP is coming up for final hearing before me on 2-4-2013 in the presence of Sri V.Gopal Yadav, Advocate for the Petitioner and Sri P.Pulla Reddy, Advocate for the Respondent No.2 and the Respondent No.1 remained exparte and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

O R D E R

1. This is a petition filed U/Sec. 166 of M.V. Act,1988 claiming compensation of

Rs.1,00,000/- by the minor-petitioner represented by his father, who sustained injuries in the motor vehicle accident that occurred on 10-2-2011 at about 8.30 pm on the road leading from Kalwakurthy to Jadcherla in the limits of Gangapur village.

The petitioner filed a petition in I.A. 69 of 2013 to declare him as a major and the same is allowed on 18-2-2013.

2. The case of the petitioner in brief is that that on 10-2-2011 at about 8-30 pm, when he was proceeding in an auto-rickshaw along with others after attending 'Jathara' at Gangapur village, when the said auto-rickshaw was proceeding on the 2 left side of the road leading from Kalwakurthy to Jadcherla in the limits of Gangapur village, a lorry bearing No.AP-16-TY-3136 came in their opposite direction and also came towards right side of the road i.e., left side of the auto-rickshaw and dashed the said auto-rickshaw wherein he was travelling, due to that, he sustained injuries. The petitioner submits that the accident occurred due to rash and negligent driving of driver of the lorry, for which police registered a case in Cr.No.49/2011 U/s 337. It is the contention of the petitioner that prior to the accident, he was quite hale and healthy, aged about 17 years and was brilliant student and he was also earning Rs.

2,000/- per month as a private tutor but in the accident he sustained fracture of zygomatic buttress site, fracture of EZ and and other multiple injures all over the body. He submits that immediately after the accident, he was shifted to SVS hospital, Mahabubnagar where he was treated as inpatient from 11-2-2011 to 19-2- 2011 and underwent surgery and spent a sum of Rs.50,000/- towards medical treatment. Therefore, he claimed compensation of Rs.1-00 lakh on various heads from R-1 and R-2 being owner and insurer of the offending lorry.

3.The first-respondent owner of the vehicle remained exparte and not chosen to contest the case.

4. The second-respondent filed counter denying the accident, manner in which it was occurred, age and income of the petitioner prior to the accident. It is the contention of respondent No.2 that the driver of R-1 had no valid driving license thereby R-1 violated terms and conditions of the policy, due to that their company not liable to pay compensation to petitioner. They further submits that the unfortunate accident not took place due to negligence of driver of alleged crime vehicle and the same was took place due to entire negligence of the driver of auto bearing No. AP- 28-TB-2166 only as its driver did not possess any valid and effective driving license to drive such vehicle and the vehicle was also over loaded and as such, petitioner can claim compensation from the owner and insurer of auto-rickshaw who are also proper and necessary parties to this petition. They have stated that the claim of the 3 petitioner is highly excessive and even if petitioner is entitled to claim any compensation, it has to be restricted under provisions of motor vehicles Act after apportioning contributory negligence. Hence, they prays to dismiss the petition.

5.On the basis of above pleadings, the following issues have been settled for trial:-

1. Whether the accident dated 10-2-2011 in the limits of Gangapur village was due to rash and negligent driving of the driver of Lorry bearing No. AP-16-TY-3136 and that the petitioner suffered injuries in that accident?

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

3. Whether the driver of auto bearing No. AP-28-TB-2166 was responsible for the accident and that therefore, the owner and insurance company of the auto are the proper and necessary parties and that the non-joinder is fatal?

4. To what relief?

5.On behalf of petitioner, PW-1 examined, Ex.A-1 to Ex.A-7 were marked. On behalf of respondent No.2, no oral evidence is adduced. Copy of policy marked as

Ex.B-1 with consent. Respondent No.2 also filed petition U/Sec.170 of M.V. Act and the same is allowed.

6. I have heard both sides.

7.ISSUE Nos .1 and 3:- PW1- Vadde Parandhamulu, petitioner/injured has stated on oath in his chief-examination-affidavit about averments in the petition. The chief-examination-affidavit of PW-1 is replica of contents of the petition. He claimed compensation of Rs.1-00 lakh on various heads. Ex.A1 CC of FIR, Ex.A-2 CC of wound certificate, Ex. A-3 CC of charge sheet, Ex.A-4 discharge summary, Ex.A-5 medical bills ( 21 ) in number, Ex.A-6 medical prescriptions and Ex. A-7 photo-stat copy of insurance policy marked in his evidence. In cross-examination, he admitted that at the time of accident, five passengers were travelling in the auto-rickshaw, which is seven seater auto-rickshaw. He denied suggestion that at the time of accident, twenty persons were travelling in the said auto-rickshaw and there was no headlight to the said auto wherein he was travelling. He further denied suggestion that the owner and driver of auto-rickshaw are necessary parties to this petition and 4 the accident occurred due to negligence of the driver of auto-rickshaw. It is also denied by PW-1 that he took treatment under Government medical scheme called as ' Arogyasri'. However, he admitted that at the time of accident he was studying in a college at Mahabubnagar, though denied suggestion that he created medical bills to claim more compensation. He further admitted that now he is not taking any treatment and his injuries are cured.

8.Against the aforesaid evidence of petitioner, R-2 has not chosen to adduce any oral evidence. PW-1 who travelled in auto-rickshaw as a passenger at the time of accident, has categorically stated manner in which accident occurred in his evidence. Further Ex.A1 CC of FIR shows that R-1 lorry came at high speed, while overtaking a bus, dashed the auto-rickshaw by driving the vehicle on wrong side.

The criminal case records are unchallenged. In the case of composite negligence, the victim of motor vehicle accident, has got option to proceed against any one of the wrongdoer as per the ratio laid down by the Hon'ble Apex Court in T.O. Anthony

Vs. Karvarnan and others,2008 ACJ 1165, where composite negligence and contributory negligence is explained as under at para 6 quoted as under;-

6. ’Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence”.

5

9. In Mahesh Krishna and others Vs. A. Sabrik Krishna and others, 2012 TAC 119 (M.P), it is held that ' no contributory negligence can be attributed to the person travelling in the vehicle and the victim of motor accident has got option to proceed againt any one of the wrongdoer. Para 5 of the judgment is quoted as under:

“ After taking into consideration all the facts and circumstances of the case and keeping in view the fact that truck driver remained ex-parte before learned Tribunal and also before this court and no other evidence was adduced to prove that in what circumstances the accident occurred, this court is of the view that learned Tribunal committed error in apportioning the liability to the extent of 40% between the respondents and driver, owner and insurance company of the offending tractor who were not impleaded as party. Apart from this, since the appellant was travelling in the tractor which was loaded with Soyabean, there was no justification on the party of learned Tribunal to hold the driver , owner and insurance company of the tractor liable who were not impleaded as part. In the matter of T.O Anthony Vs. Karvarnan, 2008 A.C.J. 1165: 2008 (3) T.,A.C 193 (SC), Hon'ble Apex court held that where a person is injured as a result of negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of entire damages and the injured has choice of proceeding against all or any of them”.

10.In Jagdish Prasad Agarwal Vs. Upendra Singh and others, 2012 (1) T.A.C 208 ( Gauhati .),it is held that ' in a case of composite negligence, victim of motor vehicle accident has got option to proceed against each wrong doer jointly and severally and each wrongdoer is jointly and severally liable to the injured for payment of the entire damages'.

11.After following the ratio laid down in the above referred decisions of Hon'ble higher courts, in the present case also it is not the contention of R-2 that there was contributory negligence on the part of petitioner and they also pleaded that there was contributory negligence on the part of driver of auto-rickshaw, for which petitioner has got option to proceed against any one of the wrongdoer and each wrongdoer is jointly and severally liable to pay compensation. So in a case of composite negligence, the petitioner has got option to proceed against any one of the wrongdoer. However, in the presence case, R-2 has not adduced any evidence to prove the alleged contributory negligence on the part of the driver of the auto- 6 rickshaw. Even PW-1 has categorically deposed that he was travelling in seven seater auto-rickshaw and at that time, five passengers were travelling in the vehicle.

The criminal case records also support the contention of the petitioner manner in which accident occurred. Further police after due investigation filed charge sheet against the driver of R-1 vehicle. So the petitioner is able to prove that the accident occurred due to rash and negligent driving of driver of R-1 vehicle and there is no necessity for the petitioner to implead the driver, owner and insurer of the auto- rickshaw in the present petition. Hence, these issues are answered in favour of the petitioner and against the respondents.

11.ISSUE No. 2 :- It is the contention of the petitioner that in a motor vehicle accident, he sustained fracture of zygomatic buttress site and fracture of EZ and other multiple bleeding injuries. On perusal of Ex.A2 CC of wound certificate which shows that the petitioner sustained fracture of left zygomatic bone , which is grievous in nature. Ex.A-4 discharge summary of SVS hospital supports the contention of the petitioner with regard to the nature of injuries and treatment given to the petitioner in the said hospital. On perusal of Ex.A-2 and Ex.A-4, which clearly shows that the petitioner has sustained injury on left zygomatic bone which is grievous in nature and was also in patient in the hospital for a period of one week. The petitioner who sustained injuries in the motor vehicle accident, is entitled to claim compensation under following heads;- [i] Pain and Suffering as a consequence of injuries; [ii] Medical Expenses; [iii] Transportation and Extra Nourishment; [iv] Loss of earnings' [v] Partial Permanent Functional Disability if any .

12. On perusal of Ex.A2, Ex.A-4 medical records which shows that the petitioner has sustained fracture of left zygomatic which is grievous in nature, due to that, the petitioner certainly must have suffered a lot of trauma as a consequence of injuries. Therefore, a sum of Rs.30,000/- is awarded as compensation under head of 7 pain and suffering as a consequence of injuries. Further, the petitioner file medical bill to show that he spent Rs. 12,842-40 ps towards medical expenses. It is suggested to PW1 in cross-examination that he created medical bills to claim more compensation. However, it is not the contention of R-2 that the petitioner has not taken any treatment and not spent any amount at S.V.S hospital, Mahabubnagar.

After considering the nature of injuries and period of treatment, a sum of Rs.12,000/- is awarded as compensation to the petition under head of medical expenses. Further the petitioner who was inpatient in the hospital for a period one week, is entitled to claim compensation of Rs. 5,000/- under head of transportation and extra- nourishment. However, the petitioner was admittedly a student studying intermediate course at the time of accident and no record is filed to show that the petitioner was earning a sum of Rs.2,000/- per month as a private tuitor, but the injuries sustained by the petitioner in the motor vehicle accident, he certainly must have suffered some inconvenience in prosecuting his studies though injuries are completely cured.

Therefore, a sum of Rs.3,000/- is awarded as compensation towards loss of amenities to the life of the petitioner during the period of treatment. However, the petitioner has not filed any certificate to show that due to injuries sustained in the accident, he is suffering from permanent disability. It is also the contention of the petitioner that now he is not taking any treatment and his injured are completely cured. In total, petitioner is entitled to claim compensation of Rs.50,000/- for the injuries sustained by him in the motor vehicle accident.

13.It is the contention of the petitioner that R-1 vehicle was insured with R-2 company and the policy was in force on the date of the accident. On perusal of Ex.B1 filed by R-2 which shows that the policy for offending vehicle stands in the name of

R-1 valid from 17-7-2010 to 16-7-2011, whereas the accident took place on 10-2-2011. So policy was in force on the date of accident. Therefore, both the respondents are jointly and severally liable to pay compensation. Hence, this issue is answered in favour of the petitioner and against the respondents.

8

18.ISSUE No.4:- In the result, the petition is allowed in part, awarding compensation of Rs. 50,000/- (Rupees fifty thousand only) to the petitioner payable by the Respondents No.1 and 2 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization. The

Respondents No.1 and 2 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award. On such deposit of the compensation amount, the petitioner is permitted to withdraw a sum of Rs. 25,000/- with proportionate interest and entire costs and his rest of compensation amount of Rs.25,000/- with proportionate interest shall be kept in fixed deposit in any Nationalized bank for a period of two years. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs.

Advocate fee is fixed at Rs.1,500/-.

Dictated to the Personal Asst., transcribed by him, corrected and pronounced

by me in the open Court this the 4th day of April, 2013.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER:- FOR THE RESPONDENTS:-

P.W.1 V.Parandamulu - None-

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A-1 CC of F.IR., Ex.A-2 Certified Copy wound certificate, Ex.A-3 CC of charge sheet, Ex.A-4 Discharge summary. Ex.A-5 Medical bills (21) in number. Ex.A-6 Medical prescriptions., Ex.A-7 Copy of insurance policy,

FOR THE RESPONDENTS:-

 Ex.B­1 Copy of Insurance policy,

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

9

DECREE

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

I-ADDL. DISTRICT JUDGE, AT MAHABUBNAGAR.

Monday the 25th day of February, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

FAC I Addl.District Judge, Mahabubnagar

M.V.O.P.No. 538 of 2009

Between:- G.Srinivasulu Goud S/o G. Laxmaiah goud, 25 years, Salesman in Johan Deere Trctor shown Room and owner of Bajaj Platina Motor cycle bearing No.A.P22/L-1336 R/o Chinna Dharpally village of Hanwada mandal, Mahabubnagar District. …. Petitioner. A N D 1.B.Sreenivas Reddy S/o B. Narayana reddy, age; not known but major, owner of the Tipper bearing No. AP-22-W-9603 R/o Wanapatla village of Hanwada mandal, Mahabubnagar District.

2. M/s ICICI Lombard General Insurance Company Ltd., rep. Through its authorised officer, D. No. 2-42/1 to 8, GBR Towers, 3rd floor, Chaitanyapuri, Dilsukhnagar, Hyderabad ( Certificate cum Policy No. 3008/54460814/00/000 valid from 11-7-2008 to 10-7-2009).

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 r/w Rule 475 of M.V Rules claiming compensation of Rs.70,000/- for special damages.

@ @ @

This MVOP is coming up for final hearing before me on 29-1-2013 in the presence of Sri B. Krishna Reddy, Advocate for the Petitioner and Sri G.Raja Narender Reddy, Advocate for the Respondent No.2 and the Respondent No.1 remained exparte and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:-

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

32,500/- (Rupees Thirty two thousand and five hundred only) to the petitioner 10 payable by the Respondents No.1 and 2 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on 20-10-2009 till the date of realization.

2. The Respondents No.1 and 2 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the petitioner is permitted to withdraw his entire amount of compensation.

3.That the Respondents No.1 and 2 do also pay a sum of Rs.1,573/- (Rupees one thousand five hundred seventy three only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.1,500/-.

Given under my hand and the seal of the Court on this the 25th day

February, 2013.

I-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.1-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.1,500-00- (fixed by the Court)

8. Miscellaneous --- TOTAL: Rs.1,574-00 Rs.2-00 Proportionate Costs: Rs.1573-00

I-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.

1

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Friday the 12 th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 626 of 2011

Between:- Rachala Raghava Reddy S/o Sai Reddy, 65 years, occu; Agril, R/oThomalapally village of Pebbair mandal, Mahabubnagar District, now residing at T.D. Gutta, Mahabubnagar. …. Petitioner. A N D

1. T. Vijaya Raj S/o Not known, Major, H. No.6-3-628/8/1, Anandnagar colony, Khairtabad, Hyderabad – 500 331, AP, [ owner of Car bearing No. AP-13-K-9297].

2. The Reliance General Insurance Company Ltd., Sagar Plaza, 4th Floor, Abids, Hyderabad. ( Policy No.180172311001689 valid from 22-6-2011 to 21-6-2012 ).

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 claiming compensation of Rs.2,00,000/- for the death of three she-buffaloes in motor vehicle accident.

@ @ @

This MVOP is coming up for final hearing before me on 4-4-2013 in the presence of Sri S.Ravi, Advocate for the Petitioner and Sri K.Narasimha Reddy, Advocate for the Respondent No.2 and the Respondent No.1 remained exparte and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, till this day the Court delivered the following:-

O R D E R

1. This is a petition filed U/Sec. 166 of M.V. Act,1988 claiming compensation of

Rs.2,00,000/- for the death of his three she-buffaloes in a motor vehicle accident that occurred on 25-8-2011 within the limits of Thomalapally village.

2. The case of the petitioner in brief is that on 25-8-2011, he took his she- buffaloes for grazing and at about 5 pm, while he was returning to his house with his she-buffaloes, when he was proceeding by the side of the road, one Car bearing No.

AP-13-K-9297 driven by its driver in a rash and negligent manner came from Kurnool side and while proceeding towards Hyderabad, dashed the she-buffaloes while in an attempt to avert a major accident, due to which, two she-buffaloes of petitioner died on the spot and another she-buffalo who sustained grievous injuries, died while 2 undergoing treatment. It is the contention of the petitioner that the accident occurred due to rash and negligent driving of R-1 who is owner and driver of the car for which he lodged a report before police, which is registered as a case in Cr. No. 143/2011

U/s 279 of IPC and filed charge sheet by the police. The petitioner also stated that the Veterinary Assistant Surgeon conducted autopsy over the she-buffaloes and issued certificate. It is the contention of the petitioner is that the cost of his she- buffaloes is Rs.55,000/- each and he used to draw milk from the buffaloes and earn

Rs.500/- per day, but due to sudden death of his buffaloes, he sustained huge loss and claimed compensation of Rs.2-00 lakhs from R-1, R-2, who are owner and insurer of the offending vehicle.

3.The first-respondent owner of the vehicle remained exparte and not chosen to contest the case.

4. The second-respondent filed counter denying the accident, manner in which it was occurred and cost of the she-buffaloes mentioned in the petition. It is the contention of respondent No.2 that even if policy was in force for offending vehicle on the date of accident, their liability is limited to an extent of Rs.6,000/- as per M.V.

Act. They also submits that R-1 entrusted his vehicle to a person who had no driving license thereby violated the terms and conditions of the policy. It is the contention of

R-2 that the unfortunate accident not took place due to negligence of the driver of alleged crime vehicle and the same was took place due to entire negligence of the petitioner only, as such, the petitioner is not entitled to claim any compensation from their company. Even it is the contention of R-2 that the claim of the petitioner is highly excessive and even if petitioner is entitled to claim any compensation, it has to be restricted under the provisions of the M.V.Act basing on the contributory negligence and prays to dismiss the petition.

5.On the basis of above pleadings, the following issues have been settled for trial:- 3

1. Whether the accident dated 25-8-2011 at about 5.30 pm was due to rash and negligent driving of the driver of Car bearing No.AP-13-K- 9297 and that she buffaloes of the petitioner in ( 3) numbers died in that accident ?

2. Whether the claimant is entitled to claim compensation from the respondents and If so, to what amount and from whom?

3. To what relief?

4.On behalf of petitioner, PW-1 examined, Ex.A-1 to Ex.A-9 were marked. On behalf of respondent No.2, no oral evidence is adduced but Ex.B1 copy of policy was marked with consent. Respondent No.2 also filed petition U/Sec.170 of M.V. Act and the same is allowed.

5. I have heard both sides.

6.The learned advocate for petitioner argued that the evidence of PW-1 and criminal case records supports the contention of the petitioner that the accident occurred due to rash and negligent driving of R-1, for which there is no rebuttable evidence adduced by R-2. He further submitted that the cost of she-buffaloes is

Rs.50,000/- each, which is assessed in Ex.A-8 panchanama and Ex.B-1 policy shows that the limits of liability towards damage of third party property is Rs.

7,50,000/-.

7.The learned advocate for R-2 argued that the petitioner failed to adduce any evidence to show that the value of she-buffaloes who died in a motor vehicle accident.

8.ISSUE No.1:- PW1 Rachala Raghava Reddy, petitioner, has stated on oath in his chief-examination-affidavit about averments in the petition. The chief- examination-affidavit of PW-1 is replica of contents of the petition. He claimed compensation of Rs.2-00 lakhs for the death of his three she-buffaloes in a motor vehicle accident. Ex.A1 CC of FIR, Ex.A-2 CC of Charge sheet, Ex.A-3 CC of crime details form, Ex.A-4 to Ex.A-6 postmortem examination certificates of she-buffaloes,

Ex.A-7 copy of insurance policy, Ex. A-8 CC of panchanama and Ex.A-9 three 4 positive photos of she-buffaloes marked in his evidence. In cross-examination, he admitted that the road on which he was proceeding with his she-buffaloes is a national highway and so many vehicles used to pass in the said road. He further admitted that one has to cross the national highway only after observing the vehicles on either side of the road. He denied suggestion that he tried to cross the road with his she-buffaloes without observing the vehicular traffic, due to his negligence the accident occurred. He denied suggestion that he created false valuation of she- buffaloes to claim more compensation though she-buffaloes worth Rs.10,000/- each and R-2/insurance company is liable to an extent of Rs.6,000/- as per policy.

9.Against the aforesaid evidence of petitioner, R-2 /insurance company has not chosen to examine any witnesses on their behalf. Admittedly PW-1 was an eye witness to the accident and the accident occurred on national highway near the village of the petitioner. Further, Ex.A-3 CC of crime details form shows that the accident occurred on national highway and there is a BT road leading to Shakapur village connecting national highway. During the course of enquiry, R-2 has not denied the accident, the involvement of R-1 vehicle and death of the she-buffaloes in the accident. But, they have suggested to PW-1 that due to his negligence only the accident occurred. So the contention of R-2 is that there was contributory negligence on the part of the petitioner for the cause of the accident. However, the evidence of

PW-1 which also supported by criminal case records shows that the accident occurred due to rash and negligent driving of R-1, who is owner and driver of the offending vehicle. But, R-1 remained exparte and not chosen to contest the case and explain manner in which accident occurred. Even R-2 has not chosen to examine any witnesses on their behalf to prove that there was contributory negligence on the part of the petitioner. Further, though proof of negligence is a sine-quo-non to maintain a petition U/Sec.166 of Motor Vehicles Act when criminal case records proved on record, if remain unrebutted and unchallenged can be taken to be sufficient to establish the rash and negligence on the part of the driver of the 5 offending vehicle. Even when any party wants the Court to believe that there was contributory negligence on the part of the victim, it has to prove the same by adducing cogent evidence and Court cannot substitute its own judgment with that of a witness. In the present case, though PW-1 admitted that the accident occurred on national highway but he has not stated that he tried to cross the road with his she- buffaloes without observing the vehicular traffic, due to that, the accident occurred.

There is no evidence on behalf of R-2 to prove the alleged contributory negligence on the part of the petitioner. So, the petitioner able to prove that the accident occurred due to rash and negligent driving of the driver of R-1 vehicle wherein three she-buffaloes died. Hence, this issue is answered in favour of the petitioner and against the respondents.

11.ISSUE No.2 :- It is the contention of the petitioner that his three she-buffaloes died in the accident and Ex.A-4 to A-6 postmortem reports of she-buffaloes and criminal case records supports his contention. It is the contention of the petitioner that the cost of his she-buffaloes is Rs.55,000/- each, which is mentioned in panchanama. However, Ex.A-4 to A-6 shows that she-buffaloes are aged 6 years, 6 ½ years and 3 years respectively. The value of the she-buffaloes is not mentioned in

Ex.A-4 to A-6. Further, Ex.A-8 CC of panchanama conducted on 27-8-2011 at 7 am.

The panchanama was conducted over the dead bodies of one she-buffalo, who sustained injuries and died later, wherein the value of the she-buffalo is mentioned as Rs.50,000/-. Except that the petitioner has not chosen to examine any person to prove the value of the she-buffaloes and that he was selling milk in the village. The petitioner has also not produced any record to show that he was supplying milk to any milk centre. However, it is also the contention of R-2 that the petitioner was not getting any milk from the said three she-buffaloes. After considering the over all facts and circumstances of the case, this court is of an opinion that the cost of she- buffaloes cannot be less than Rs. 25,000/- each, due to that, the petitioner is entitled to claim compensation of Rs. 75,000/- for the death of his three she-buffaloes in a 6 motor vehicle accident.

12.It is the contention of R-2 in their counter and also suggested to PW-1 in cross-examination that their liability is only Rs.6,000/- as per M.V.Act. On perusal of

Ex.B-1 which shows that R-1 vehicle was insured with R-2 company, the policy was in force from 22-6-2011 to 21-6-2012, whereas the accident occurred on 25-8-2011.

So the policy was in force as on the date of accident, which covers the risk of third party property damage and limits of liability is Rs. 7,50,000/-. As the policy was in force on the date of accident and R-2 failed to prove any violation of policy by R-1, both the respondents are jointly and severally liable to pay compensation to the petitioner. Hence, this issue is answered in favour of the petitioner and against the respondents.

13.ISSUE NO.3 :- In the result, the petition is allowed in part, awarding compensation of Rs. 75,000/- (Rupees seventy five thousand only) to the petitioner payable by the Respondents No.1 and 2 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition till the date of realization.

The Respondents No.1 and 2 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the petitioner is permitted withdraw his entire compensation amount with proportionate interest and costs. Rest of the claim of the petitioner is dismissed, but in the circumstances of the case, no order as to costs. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Personal Asst., transcribed by him, corrected and pronounced

by me in the open Court this the 12 th day of April, 2013.

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER:- FOR THE RESPONDENTS:-

P.W.1 Rachala Raghava Reddy -None- 7

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A-1 CC of F.IR., Ex.A-2 Certified Copy Charge sheet, Ex.A-3 CC of Crime details form, Ex.A-4 to Ex.A-6 are postmortem certificates of she-baffaloes. Ex. A-7 Attested copy of insurance policy, Ex.A-8 CC of panchanama EX..A-9 Three positive photos of she-buffaloes.

FOR THE RESPONDENTS:-

 Ex.B­1 Copy of Insurance policy,

IV-ADDL. DISTRICT JUDGE (MACT),

MAHABUBNAGAR.

8

DECREE

9

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

IV-ADDL. DISTRICT JUDGE (FTC), AT MAHABUBNAGAR.

Friday the 12 th day of April, 2013.

Present:- Sri B.Syam Sunder, B.Com., LL.B.,

MACT-cum-IV-Addl. District Judge (FTC),

Mahabubnagar.

M.V.O.P.No. 626 of 2011

Between:- Rachala Raghava Reddy S/o Sai Reddy, 65 years, occu; Agril, R/oThomalapally village of Pebbair mandal, Mahabubnagar District, now residing at T.D. Gutta, Mahabubnagar. …. Petitioner. A N D

1. T. Vijaya Raj S/o Not known, Major, H. No.6-3-628/8/1, Anandnagar colony, Khairtabad, Hyderabad – 500 331, AP, [ owner of Car bearing No. AP-13-K-9297].

2. The Reliance General Insurance Company Ltd., Sagar Plaza, 4th Floor, Abids, Hyderabad. ( Policy No.180172311001689 valid from 22-6-2011 to 21-6-2012 ).

Sub:- Claim Petition filed U/Sec.166 of M.V. Act, 1988 claiming compensation of Rs.2,00,000/- for the death of three she-buffaloes in motor vehicle accident.

@ @ @

This MVOP is coming up for final hearing before me on 4-4-2013 in the presence of Sri S.Ravi, Advocate for the Petitioner and Sri K.Narasimha Reddy, Advocate for the Respondent No.2 and the Respondent No.1 remained exparte and upon perusing the material on record, upon hearing the arguments and the matter having stood over for consideration, this COURT DOTH ORDER AND DECREE as follows:- 10

1. That the claim petition be and hereby is allowed partly, awarding a sum of Rs.

32,500/- (Rupees Thirty two thousand and five hundred only) to the petitioner payable by the Respondents No.1 and 2 jointly and severally with proportionate costs and interest at 7.5% per annum from the date of petition i.e., on 20-10-2009 till the date of realization.

2. The Respondents No.1 and 2 are directed to deposit the compensation amount as well as interest and proportionate costs within one month from the date of this award.

On such deposit of the compensation amount, the petitioner is permitted to withdraw his entire amount of compensation.

3.That the Respondents No.1 and 2 do also pay a sum of Rs.1,573/- (Rupees one thousand five hundred seventy three only) towards proportionate costs of the petitioner which includes the Advocate fee of Rs.1,500/-.

Given under my hand and the seal of the Court on this the 25th day

February, 2013.

I-ADDL.DIST. JUDGE (MACT)

MAHABUBNAGAR.

PARTICULARS OF COSTS

For petitioner/s Amount For Respondent No.2

1. Stamp on Claim Petition Rs.1-00-

2. Stamp on VakalatRs.2-00Rs.2-00

3. Stamp on ExhibitsRs.5-00-

4. Publication Charges--

5. Stamp on Process Rs.66-00-

6. Commissioner Fee--

7. Advocate FeeRs.1,500-00- (fixed by the Court)

8. Miscellaneous --- TOTAL: Rs.1,574-00 Rs.2-00 Proportionate Costs: Rs.1573-00

I-ADDL. DISTRICT JUDGE (MACT)

MAHABUBNAGAR.