Sri.c.h.k.bhupathi

THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT L.B.NAGAR

RANGA REDDY DISTRICT

PRESENT: C.Hare Krishna Bhupathi,

Principal District Judge,

Ranga Reddy District.

Monday, the 31st day of July, 2023.

A.S.No.9 of 2023

Between:

Kandimalla Kushalava Reddy S/o.Rama Krishna Reddy, Aged about 70 years, Occ: Retd.Employee, R/o.H.No./o.H.No.3-12-92, SUN05511, Behind Mahindra Showroom, Rock Town Colony, L.B.Nagar, Ranga Reddy District. … Appellant/Plaintiff AND

1. Mogulla Raji Reddy S/o.Krishna Reddy, Aged: 48 years, Occ: Business, R/o.H.No.11-13-36, Plot No.24/V, Road No.1, Alkapuri Colony, Saroornagar, Hyderabad.

2. The Industrial Development Bank of India, Represented by its Branch Manager, Mansoorabad, Ranga Reddy District, Hyderabad, Plot Nos.15 and 28, Srinivasa Chambers, Mususurabad, Ranga Reddy District.

3.The Andhra Bank, Represented by its Branch Manager, L.B.Nagar, Hyderabad. … Respondents/Defendants

Appeal against the Judgment & Decree dated 26.10.2022 passed by the learned Principal Senior Civil Judge, Ranga Reddy District at L.B.Nagar, in;

O.S.No.24 of 2017

Between:

Kandimalla Kushalava Reddy S/o.Rama Krishna Reddy, Aged about 63 years, Occ: Retd.Employee, R/o.H.No./o.H.No.3-12-92, SUN05511, Behind Mahindra Showroom, Rock Town Colony, L.B.Nagar, Ranga Reddy District. … Plaintiff AND

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1.Mogulla Raji Reddy S/o.Krishna Reddy, Aged: 48 years, Occ: Business, R/o.H.No.11-13-36, Plot No.24/V, Road No.1, Alkapuri Colony, Saroornagar, Hyderabad.

2. The Industrial Development Bank of India, Represented by its Branch Manager, Mansoorabad, Ranga Reddy District, Hyderabad, Plot Nos.15 and 28, Srinivasa Chambers, Mususurabad, Ranga Reddy District.

3.The Andhra Bank, Represented by its Branch Manager, L.B.Nagar, Hyderabad. … Defendants

This appeal coming before me on 19.07.2023 for final hearing in the presence of Sri Kiran Palakurthi, counsel for appellant and Sri K.Sudhakar Reddy, counsel for respondent No.1, Sri V.Suresh Babu, counsel for respondent No.2, Sri V.Ravinder Reddy, counsel for respondent No.3, and upon hearing both sides, perusing the material on record and the matter having stood over for consideration till this date, this court passed the following:

JUDGMENT

1.This is an appeal preferred under Order XLI Rule 1 C.P.C., by the appellant, who is the plaintiff in O.S.No.24/2017 on the file of the Principal

Senior Civil Judge, Ranga Reddy District at L.B.Nagar (in short ‘the trial court’),

thereby challenging the legality of the Decree and Judgment dated 26.10.2022 passed by the trial court, whereunder the suit was decreed against the 1st defendant (1st respondent herein), but dismissed against the defendants 2 and 3 (respondents 2 and 3 herein).

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2.For the sake of convenience and for the better understanding of the facts, the parties to this appeal will hereinafter be referred to as arrayed in the pleadings before the trial court.

3.The case of the plaintiff (appellant herein), as averred in the plaint filed before the trial court, is briefly stated as follows:-

(i)The plaintiff and his friend G.Bhaskar Reddy (PW2) approached the 1st defendant for the purchase of a house plot to an extent of 1,117 Sq.yards in

Sy.No.63, situated at Door No.12-1-338/1 in Plot No.15 within the revenue village of Fathalguda in Uppal Mandal, Ranga Reddy District, for a sale consideration at the rate of Rs.1,350/- per Sq.Yards and, accordingly, an agreement of sale was entered into between them, thereby fixing the due date for payment of the sale consideration and for execution of the sale deed on or

before 07.03.2013.

(ii) Accordingly, the plaintiff and PW2 promptly paid the entire sale consideration to the 1st defendant and the 1st defendant, in turn, executed a sale deed vide Doc.No.1512/2013 in favour of Smt.Kandimalla Sruthi, Sathi

Reddy and three others, who are the daughters of the plaintiff, and three others, who are the relatives of PW2, but failed to hand over the link document to them.

(iii) In spite of several demands made by the plaintiff and PW2, the 1st defendant evaded to handover the link document and, subsequently, the plaintiff and PW2 came to know that the 1st defendant mortgaged the same property with the State Bank of Hyderabad, L.B.Nagar Branch and availed a

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Page 4of 17 loan for M/s.Thirumala Enterprises, for which, the 1st defendant is the

Managing Director.

(iv) The plaintiff could understand that the 1st defendant cheated the plaintiff without disclosing about that mortgage transaction with the bank and then, the plaintiff got issued a notice to the 1st defendant through his advocate one G.Sanjeeva Reddy and also sent a notice to the Credit Manager, State

Bank of Hyderabad, L.B.Nagar Branch, Hyderabad.

(v)The 1st defendant admitted the mortgage done by him with the bank in respect of the same property, but insisted the plaintiff and PW2 to extend the financial support to him, so that he would discharge the loan amount due to the bank and get back the document, so as to hand over the same to the purchasers.

(vi)The plaintiff and PW2 had no other go, except to yield to that request of the 1st defendant. Accordingly, they deposited an amount of

Rs.9,00,000/- with the State Bank of Hyderabad, L.B.Nagar Branch,

Hyderabad, where the loan account of the 1st defendant was lying and also gave an amount of Rs.1,00,000/- to the 1st defendant on 22.12.2014 to clear of the loan. The 1st defendant executed a promissory note on the same day, i.e., on 22.12.2014 for Rs.10,00,000/- in favour of the plaintiff, agreeing to repay the said amount on demand along with an interest thereon at 18% p.a.

(vii) On several demands made by the plaintiff to the 1st defendant to clear of the loan, no payment was made by the 1st defendant, but finally, he issued a cheque bearing No.120502 dated 09.10.2016 for Rs.10,00,000/-

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Page 5of 17 drawn on the 2nd defendant bank, where the 1st defendant is having a Savings

Bank Account bearing A/c.No. 1057104000028246 towards the part discharge of the amount due under the promissory note.

(viii)The plaintiff deposited the said cheque with the Andhra Bank,

Ashoknagar Branch, Miryalaguda on 29.10.2016, but the same was dishonoured due to insufficient funds in the account of the 1st defendant. At the request of the 1st defendant, the plaintiff again deposited the said cheque with the Andhra Bank, Ashoknagar Branch on 24.12.2016. On 26.12.2016, the plaintiff received a message from the 3rd defendant bank, with whom the plaintiff is having account bearing Ac.No.146810100107717, that the cheque bearing No.120502 issued by the 1st defendant was honoured and, accordingly, the amount of Rs.10,00,000/- was credited to his account. But, to the surprise of the plaintiff, on 27.12.2016, the plaintiff received second message from the 3rd defendant bank that the cheque amount of

Rs.10,00,000/’- was debited from his account due to stop payment instructions issued by the 1st defendant to the 2nd defendant bank. The plaintiff immediately approached the 3rd defendant bank and expressed his grievance, but, the 3rd defendant bank evaded to give a proper reply.

(ix) The plaintiff got issued a legal notice dated 04.01.2017 to the defendants, informing them that the plaintiff would take appropriate action against them.

(x)The 1st defendant, knowing fully well about his legal obligation to discharge the loan and despite having sufficient funds in his account failed to

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honour the chque by giving stop payment instructions to the 2nd respondent

bank and thereby he committed the offences U/s.138 of the Negotiable

Instruments Act, 1881 and U/s.420 IPC.

(xi) The 2nd defendant acted against the banking norms and violated the business rules.

(xii) The 3rd defendant, being a banker of the plaintiff, has no authority to debit the amount from the plaintiff’s account, without the consent of the account holder, when once the amount was credited to the account of the plaintiff.

(xiii)Hence, the plaintiff filed the suit, seeking a decree for the suit amount of Rs.13,65,500/- from the 1st defendant and also from the defendants 2 and 3 jointly and severally along with an interest at 24% p.a thereon from the date of the suit till the date of realization.

4. On the receipt of the summonses issued by the trial court, the 1st defendant remained ex-parte, whereas the defendants 2 and 3 filed their respective written statements, thereby resisting the claim of the plaintiff.

5.The contentions raised by the 2 nd respondent in the written statement are concisely stated as follows:-

(a)This defendant denied the liability to pay the suit amount to the plaintiff by contending that, there is no privity of contract between the plaintiff and this defendant and that there is no enforceable claim for the plaintiff against this defendant.

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(b)This defendant has also denied the allegation of the plaintiff that this defendant violated the banking norms and the rules and guidelines issued by the Reserve Bank of India.

(c)It is maintained by this defendant that this defendant acted bonafidely by honouring the instructions of the customer in relationship of banker and customer between this defendant and the 1st defendant.

With these main contentions, this defendant prayed the court to dismiss the suit with costs.

6.The contentions raised by the 3 rd defendant in the written statement are summarily stated as follows:-

(i)This defendant has also denied the liability to pay the suit amount to the plaintiff by contending that, the plaintiff has unnecessarily made this defendant as a party to the suit and that there is no legally tenable right for the plaintiff against this defendant to claim the suit amount.

(ii)It is submitted by this defendant that, the plaintiff never deposited the cheque with this defendant, but, on the other hand, the plaintiff deposited the cheque with the Andhra Bank, Ashok Nagar Branch at Miryalaguda and upon the receipt of the instructions from the 2nd defendant, the Andhra Bank,

Ashok Nagar Branch at Miryalaguda intimated this defendant about the instructions given by the 1st defendant to the 2nd defendant and, accordingly, the amount was debited from the S.B.Account of the plaintiff, since a mistaken credit entry was made.

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(iii) This defendant denied the allegation of the plaintiff that there was violation of the rules and guidelines of the Reserve Bank of India.

(iv) It is further maintained by this defendant that, this defendant had no knowledge of the communications between the 1st defendant and the 2nd defendant and also about the amounts of the 1st defendant lying with the 2nd defendant.

(v)It is pleaded by this defendant that, there is absolutely no cause of action for the plaintiff against this defendant and this defendant is no way responsible to pay the suit amount to the plaintiff.

With these main contentions, this defendant prayed the court to dismiss the suit with costs.

7.Upon the pleadings of both the parties, the following issues were settled by the trial court on 29.06.2018:-

(1) Whether the suit of the plaintiff is maintainable in the

present form?

(2) Whether the defendant No.2 and 3 are necessary

parties to the suit?

(3) Whether the plaintiff is entitled to sue for recovery of

the suit amount from defendants with interest?

(4) Whether defendants 2 and 3 are jointly liable for the

suit amount as pleaded by plaintiff?

(5) To what relief?

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8. During the course of the trial, the plaintiff examined himself as PW1 and got marked Exs.A1 to A7 on the side of the plaintiff and also examined

PW2 as the other witness for the plaintiff. The Asst.General Manager of the 2nd defendant was examined as DW1 and no document was marked for the defendants.

9.After the completion of the trial and on hearing the arguments of both sides, the trial court passed the impugned judgment dated 26.10.2022, wherein the suit was partly decreed against the 1st defendant with costs and was dismissed against the defendants 2 and 3.

10.Aggrieved by the impugned judgment of the trial court in dismissing the suit against the defendants 2 and 3, the plaintiff (appellant herein) preferred this appeal with the grounds of appeal, of which, the core of the contentions is stated as follows:-

(i)The grievance of the appellant is that, the trial court failed to take note of the purport of the legal principle U/s.72 of the Indian Contracts Act, 1872 and hence, the dismissal of the suit against the defendants 2 and 3 is bad in law.

(ii)It is also a further contention of the appellant that, the defendants did not place any document before the court and, despite the same, the trial court committed a glaring mistake in dismissing the suit claim against the defendants 2 and 3.

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(iii)It is also further contended by this appellant that, the trial court failed to see that no record is placed by the defendants to show that the amount has been reversed on the instructions of the customer and that, the defendants 2 and 3 have no such authority to make any debit entry in the account of the plaintiff, after once the credit entry was made.

With these main contentions, the appellant prayed the court to allow the appeal by setting aside the dismissal of the suit against the defendants 2 and 3 and to consequently decree the suit against them.

11.During the course of the hearing on this appeal, the learned counsel for both sides submitted their detailed arguments in reference to both oral and documentary evidence adduced during the course of the trial before the trial court and, thereafter, the appeal is coming for passing of the judgment.

12.Now, the following points arise for determination:- (1)Whether the plaintiff (appellant herein) is entitled to seek a decree against the defendants 2 and 3

(respondents 2 and 3 herein) jointly and severally

along with the 1 st defendant, against whom the suit is

already decreed, so as to recover the suit amount

from them?

(2)Whether the impugned decree and judgment dated 26.10.2022 passed by the trial court in partly

dismissing the suit against the defendants 2 and 3

(respondents 2 and 3 herein) suffered from any infirmity or irregularity or illegality and called for any interference by this court?

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13.POINT No.1: The plaintiff filed the suit against the defendants 1 to 3, seeking a decree against them jointly and severally for the recovery of the suit amount based upon Ex.A1 suit promissory note dated 22.12.2014 for

Rs.10,00,000/- executed by the 1st defendant in favour of the plaintiff.

According to the plaintiff, the 1st defendant failed to repay the amount due under Ex.A1 and also failed to honour Ex.A3 cheque issued by the 1st respondent for the partial discharge of the loan due under Ex.A1 and hence, the 1st defendant is liable to pay the suit amount to the plaintiff.

14.In so far as the claim of the plaintiff against the defendants 2 and 3 is concerned, the plea of the plaintiff is that, the 2nd defendant, being the banker of the 1st defendant, acted in accordance with the directions given by the 1st defendant to stop the payment of Ex.A3 cheque deposited by PW1 and that the 3rd defendant, being the banker of PW1, initially credited the cheque amount under Ex.A3 to the bank account of PW1 with the 3rd defendant on 26.12.2016, but immediately debited the amount on 27.12.2016 on the instructions of the 2nd defendant to that effect and thereby both the defendants 2 and 3 violated the banking norms and business rules and, accordingly, they are also jointly and severally liable to pay the amount to the plaintiff.

15.At the outset, it is an admitted fact that, the 1st defendant did not choose to honour Ex.A3 cheque issued by him and, accordingly, gave instructions to the 2nd defendant to stop the payment and, in fact, the same cheque presented earlier by PW1 in the Andhra Bank, Ashok Nagar Branch, Miryalaguda, during

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Page 12of 17 the month of October, 2016 was dishonoured due to insufficient funds in the account of the 1st defendant.

16.The plaintiff has filed Ex.A2 voucher to show that the plaintiff deposited an amount of Rs.9,00,000/- towards the loan payable by the 1st defendant in connection with a house plot already sold to the nominees of PWs.1 and 2 and, as a matter of fact, the plaintiff was successful in establishing the fact that the 1st defendant, having been indebted to the plaintiff prior to the execution of

Ex.A1 promissory note, executed Ex.A1 promissory note in favour of the plaintiff on 22.12.2014 and subsequently failed to discharge the amount due under the said promissory note to PW1.

17.The trial court was satisfied with the evidence adduced by the plaintiff in respect of the claim of the plaintiff against the 1st defendant and, accordingly, decreed the suit against the 1st defendant.

18.In so far as the claim of the plaintiff against the defendants 2 and 3 is concerned, the trial court dismissed the suit against them by holding that there is no liability for the defendants 2 and 3 to pay any amount to the plaintiff. It is also the conclusion arrived at by the trial court that, in case of any deficiency in the services of a banker, as alleged by PW1, the course open to PW1 is to agitate the same before the proper forum, i.e., the Consumer Forum or

Consumer Commission, whatever name with which the same is called, but not by way of seeking the relief in the present suit.

19.In the grounds of appeal filed by the appellant, it is the contention of the appellant that, the defendants failed to adduce any evidence in support of the

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Page 13of 17 contentions of the defendants 2 and 3, but, in fact, the said plea is not correct, as DW1 is a witness examined for the 2nd defendant and he deposed about the contentions taken up by the 2nd defendant in the written statement. DW1 is the Asst.General Manager of the 2nd defendant and he deposed that the 2nd defendant, being the banker of the 1st defendant, acted in accordance with the instructions given by the customer, i.e., the 1st defendant, and that the bank is obliged to follow the instructions given by the customer and that the 2nd defendant has no knowledge of any transactions between the plaintiff and the 1st defendant.

20.As far as the 3rd defendant is concerned, the plea of the 3rd defendant is that, Ex.A3 cheque was not presented before the 3rd defendant, but before the branch of Andhra Bank at Miryalaguda on both the occasions, i.e., in the month of October, 2016 as well as in the month of November, 2016 and the said branch of Andhra Bank acted as per the instructions of the 2nd defendant, who is the banker of the 1st defendant and acted in accordance with the instructions given by the 1st defendant.

21.The plaintiff has filed Exs.A6 and A7 to show that an amount of

Rs.10,00,000/- was credited to the S.B Account of the plaintiff with the 3rd defendant, as per the entry shown on 26.12.2016 and immediately the same was debited from the same account, as per the entry dated 27.12.2016.

22.The 3rd defendant maintained that, the said nothings were made as per the instructions given by the Ashok Nagar Branch of Andhra Bank at

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Miryalaguda as well as the 2nd defendant and that the 3rd defendant has nothing against PW1 in this regard.

23.It is further submitted by the learned counsel for the 3rd defendant that, the 3rd defendant has to act in accordance with the instructions given by the

Ashok Nagar Branch of Andhra Bank at Miryalaguda, where Ex.A3 cheque was deposited for collection, which, in fact, acted in accordance with the directions of the 2nd defendant and, therefore, no malafides can be attributed to the act of the 3rd defendant.

24.As against the argument of the learned counsel for the plaintiff that

Section 72 of the Indian Contract Act applies to the present case on hand, the learned counsel for the 3rd defendant submitted that, said Section has no application to the present case on hand, as that Section speaks about the liability to pay back the amount, which was mistakenly paid to a particular individual. This is a quasi contract created by law and, in fact, this is an exception to the general principle of ‘the doctrine of privity of contract’. There is no privity of contract between the plaintiff and the 3rd defendant in respect of the transaction under Ex.A3 and, as rightly argued by the learned counsel for the 3rd defendant, Section 72 of the Indian Contract Act has no application to the present case on hand, as the facts of the present case are not that, some amount, which ought not to be paid to a particular individual, was paid and hence, that individual is under a legal liability to pay back the amount, which was mistakenly paid. This court is in full agreement with this argument of the learned counsel for the 3rd defendant.

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25.The learned counsel for the appellant (plaintiff) has relied upon the judgment of the Hon’ble Supreme Court in ‘Iswar Bhai C.Patel & Bachi Bhai

Patel Vs. Harihar Behera and another (AIR 1999 SC page 1341)’, wherein the Apex Court held that ‘in case of a party to the suit failed to enter the witness box to speak about the facts pleaded by the party, on oath, so as to afford an opportunity to the other side to cross-examine the party on those facts and has practically shunned and eschewed the witness box, that failure on the part of the party would give raise to an adverse inference U/s.114(g) of the Indian Evidence Act, 1872, that the case of that party is not true and correct’.

26.The learned counsel for the appellant (plaintiff) prayed the court to draw that presumption against the 3rd respondent (3rd defendant), in view of the failure of the 3rd defendant to place any oral evidence on record, so as to depose on oath before the court.

27.This is a sound principle of law reiterated in a catena of judgments by the

Hon’ble Apex Court and various High Courts from time to time. But, here, the

pleas taken by the 3rd defendant in the written statement are purely the legal pleas, but not those based upon the factual aspects. It is an admitted principle of law that, there is no estoppel against law and that the principle of waiver does not operate against a legal plea, unless barred by the Law of

Limitation. Therefore, the presumption U/s.114(g) of the Indian Evidence At, 1872 cannot be applied to the present case on hand.

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28.The learned counsel for the 3rd respondent relied upon the judgment of the Apex Court in ‘Arun Bhatia Vs. HDFC Bank and others (Judgment

dated 08.08.2022 in Civil Appeal Nos.5204-5205 of 2022 arising out

of SLP (C) Nos.29765-29766 of 2019 passed by the Hon’ble Supreme

Court)’, wherein the Apex Court is of the view that ‘in case of any deficiency in the service of a banker towards the customer, the proper remedy is to avail the relevant provision under the Consumer Protection Act by filing a consumer complaint, but not that of choosing a civil court for relief’. In this case, the

Apex Court held that, all the banking services availed by the customers come under the definition of ‘consumer services’ and reversed the judgment of the

National Consumer Redressal Commission, wherein the NCDRC held that, the subject matter of the case has to be decided by the civil court and the

Consumer Forum has no jurisdiction. On a detailed discussion of the relevant aspects, the Apex Court finally set aside the orders of the NCDRC and restored the file and directed for its disposal within four months.

29.In the light of this principle of law relied upon by the learned counsel for the 3rd respondent (3rd defendant), the remedy, if any, open to the appellant/plaintiff is to take recourse to a ‘consumer complaint’ before the proper forum, i.e., the Consumer Commission, in case there is any deficiency in the services rendered by the respondents 2 and 3 (defendants 2 and 3) and in so far as the present suit is concerned, the appellant/plaintiff is not entitled to seek any relief against them, as there is practically no privity of contract between the plaintiff and any of the defendants 2 and 3 in respect of the transaction under Ex.A3 in between the plaintiff and DW1.

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30.For the reasons stated in the foregoing discussion, this court is of the considered opinion that the appellant/plaintiff is not entitled to seek a decree against the defendants 2 and 3 and, accordingly, this point is decided against the appellant/plaintiff.

31.POINT No.2: In the light of the detailed discussion under point No.1 above and the conclusions arrived at against the appellant/plaintiff in respect of the relief sought for by the appellant/plaintiff against the respondents 2 & 3/defendants 2 & 3, the judgment of the trial court in partly dismissing the suit against the defendants 2 and 3 does not call for any interference by this court and, accordingly, this point is decided against the appellant/plaintiff.

32.POINT No.3: In the result, the appeal is dismissed with costs, thereby confirming the Decree and Judgment dated 26.10.2022 in O.S.No.24/2017 passed by the Principal Senior civil Judge, Ranga Reddy District at L.B.Nagar in partly dismissing the suit against the respondents 2 & 3/defendants 2 & 3.

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me in the open court on this the 31 st day of July, 2023.

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NONE

EXHIBITS MARKED

NIL

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

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BEFORE THE CHAIRMAN, MACT-cum-PRL. DISTRICT JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: C.Hare Krishna Bhupathi, Chairman, MACT-cum- Prl.District Judge, Ranga Reddy District.

Monday, the 31st day of July, 2023.

M.V.O.P.No.229/2022

Between:

1. Smt.Chippa Madhavi W/o.Ch.Prem Kumar, Aged about 42 years, occ: Housewife,

2. Chippa Prem Kumar S/o.late Ch.Yadaiah, Aged about 47 years, Occ: Labour,

3. Kum.Ch.Varsha D/o.Ch.Prem Kumar, Aged about 20 years, Occ: Student, … Petitioners

All are R/o.H.No.13-6-917/5/1, Banjawadi, Karwan, Hyderabad, Telangana State-67. Presently c/o.R.Narsimha Reddy S/o.R.Venkat Reddy, R/o.H.No.2-1-112/1/A, Upparpally, Rajendranagar Mandal, Ranga Reddy District.

AND

1. The managing Director, APSRTC, PNBS Vijayawada Urban, Vijayawada, Krishna District, Andhra Pradesh State-520001.

(Regd.owner of the crime vehicle No.AP 16Z 0482)

2. Naga Durga Prasad S/o.Krishna Murthy, Aged about 39 years, Occ: Driver of crime vehicle, R/o.D.No.2/56, Mukkollu Village, Guduru Mandal, Krishna District, Andhra Pradesh State -521 149. … Respondents

This Petition coming before me on 14.07.2023 for final hearing in the presence of Sri M. Ramadasu, counsel for petitioners and Sri M.Prathap Reddy, counsel for respondent No.1, Sri r.B.Rama Rao, counsel for respondent No.2 and upon hearing both sides and on perusal of the material on record and the matter having stood over for consideration till this day, this Court passed the following:-

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M.V.O.P.No.229 of 2022

Dated: 31.07.2023

Page No. 2 of 14

AWARD

1. This is a claim petition filed U/s.166(1)(c) of the Motor Vehicles Act, 1988 (in short ‘the M.V.Act’) by the claimants/petitioners, praying the court for a compensation of Rs.20,00,000/- from the respondents 1 and 2 jointly and severally for the death of late Chippa Sai Prithvi Raj (hereinafter be referred to as ‘the deceased’) in a motor accident.

2. The case of the claimants/petitioners, as averred in the claim petition, is succinctly stated as follows:-

i) On 15.01.2022, the deceased along with his friends went to Chityal to attend a festival and, on 16.01.2022, they were returning on one Innova car bearing Regn.No.AP 09BP 4479 and, at about 4-30 A.M., while the said car was on a road at Dharmojigudem X Roads on NH-75, one RTC bus bearing

Regn.No.AP 16Z 0482, driven by the 2nd respondent in a rash and negligent manner, came from the rear side and hit the car and due to that, the deceased sustained fatal injuries and died on the spot. The friend of the deceased, by name, Chandu, also died of the injures, whereas the other passengers in the car sustained simple injuries.

ii) On a report lodged by the 2nd petitioner, being the father of the deceased, the police at Choutuppal P.S., registered a case against the 2nd respondent for the offences under Sections 304-A and 337 IPC and, after investigation, filed a charge sheet against him for the offences under Sections 304-A, 338 and 337 IPC.

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M.V.O.P.No.229 of 2022

Dated: 31.07.2023

Page No. 3 of 14 iii) The deceased was aged 23 years by the time of his death and by doing a private job in M/s.Reliance SMSL Limited at Attapur, Ranga Reddy

District as a Marketing Manager, he was getting a monthly salary of Rs.13,827/-, which, he was contributing to the family comprising the petitioners, being his parents and un-married sister. The 2nd petitioner herein, who is the father of the deceased, is having physical deformity and the 3rd petitioner herein, who is the sister of the deceased, is proceeding with the studies in second year decree course. On account of the sudden demise of the deceased, the petitioners suffered mental agony and pain, besides the loss of financial support earlier received from the deceased.

iv) The 1st respondent being the owner and the 2nd respondent being the driver of the RTC bus involved in the accident are jointly and severally liable to pay the compensation to the petitioners, which the petitioners estimated at

Rs.20,00,000/-. The petitioners are also entitled to seek the costs of the petition and the subsequent interest at 18% p.a on the compensation from the date of the petition till the date of realization.

3. On the receipt of the notices issued by the Tribunal, the respondents 1 and 2 made their appearance through their advocates and filed separate counters.

4. The contentions raised by the 1 st respondent in the counter are concisely stated as follows:-

(a) This respondent denied the liability to pay the compensation to the petitioners by contending that, there was negligence on the part of the driver of the car and while taking a ‘U’ turn at the accident spot, the driver of the car did

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Page No. 4 of 14 not observe the other vehicles coming on the road and that resulted in the accident.

(b) This respondent pleaded that, the petition is bad for non-joinder of necessary parties, since the owner and insurer of the car are also necessary parties to the petition.

(c) The claim of the petitioners is termed by this respondent as excessive and exorbitant.

With these main contentions, this respondent prayed the court to dismiss the petition.

5. In the counter filed by the 2nd respondent, he pleaded lack of knowledge about the accident and further contended that, the petitioners colluded with the

Police Department and got foisted a false case against him. This respondent also termed the claim of the petitioners as excessive. It is alternatively pleaded by this respondent that, in case, the petitioners are successful in establishing their claim, the 1st respondent is alone liable to pay the compensation, if any, to the petitioners. With these main contentions, this respondent prayed the court to dismiss the petition with costs.

6. Upon the pleadings of both the parties, the following issues were settled by the Tribunal on 28.11.2022:- (1) Whether the accident occurred on 16.01.2022 at about 04:30

AM at Dharmojiguda ‘X’ roads on NH-65 road, Choutuppal was on account of the rash and negligent driving of APSRTC

Bus bearing Regn.No.AP 16Z 0482 by R2 being its driver and

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Page No. 5 of 14 whether the deceased late Chippa Sai Prithvi Raj S/o.Chippa

Prem Kumar died out of the injuries sustained by him in the said accident?

(2) Whether the petition is bad for non-joinder of necessary parties?

(3) Whether the claim of the petitioners is excessive?

(4) Whether the petitioners are entitled to seek the

compensation and, if so, what amount and from whom?

(5) To what relief?

7. During the course of the enquiry, the 2nd petitioner examined himself as

PW1 and got marked Exs.A1 to A8 on the side of the petitioners. The petitioners have also examined PW2 as an eye-witness to the accident. No witness is examined and no document is marked for the respondents.

8. After the completion of the enquiry, the learned counsels for both sides submitted their arguments and the learned counsel for the petitioners also filed the written arguments, and, thereafter, the petition is coming for passing of the award.

9. ISSUE No.1: The quintessence of this issue is that of the determination of the fact as to on whose negligence the accident took place. The case of the petitioners is that the accident occurred as a result of the rashness and negligence on the part of the 2nd respondent in driving the RTC bus and that resulted in the death of the deceased out of the fatal injuries sustained in the accident. On the other hand, it is the contention of the respondents that there was negligence on the part of the driver of the Innova car wherein the deceased was travelling. Now, it is the endeavour of this court to find out which versions of

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Page No. 6 of 14 these two is correct and the said determination is made on the basis of the evidence available on record in the subsequent paras.

10. PW2, who is an eye-witness to the accident and who is also cited as listed witness NO.11 in the Charge Sheet filed by the S.I of Police, Choutuppal P.S., under the original of Ex.A2, deposed in his evidence that, while their car was proceeding cautiously, the RTC bus driven by the 2nd respondent came at a high speed in a rash and negligent manner and hit the car and that resulted in the accident. He also further deposed that, they took tea at a Dabha (bistro) near the accident spot and, soon thereafter, their car was taking a ‘U’ turn, but, at the same time, the bus came from the rear side and hit the car. He denied the suggestion put to him by the learned counsels for the respondents that there was negligence on the part of the driver of the Innova car, but not that of the 2nd respondent. PW2 further deposed that, on account of the fatal injuries sustained in the accident, the deceased died instantaneously and another person, by name, Chandu, also died and that he and others sustained injuries.

11. Besides the oral evidence of PW2, the petitioners have also placed the documentary evidence in the shape of Exs.A1 to A5 and Ex.A8 forming part of the investigation done by the S.I of Police, Choutuppal P.S., for the purpose of filing the charge sheet against the 2nd respondent under the original of Ex.A2 for the offences under Sections 304-A, 338 and 337 IPC. Ex.A1 is the certified copy of the First Information Report registered by the S.I of Police, Choutuppal P.S., on a report lodged by PW1 about the accident. Ex.A2 is the certified copy of the

Charge Sheet filed by the S.I of Police, Choutuppal P.S., against the

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Page No. 7 of 14 2nd respondent. Ex.A3 is the certified copy of the Inquest Report and Ex.A4 is the certified copy of the Postmortem Examination Certificate of the deceased. Ex.A5 is the Report issued by the Motor Vehicles Inspector, after inspecting the bus.

Ex.A8 is the certified copy of the Crime Details Form-cum-Rough Sketch prepared by the police during the course of the investigation.

12. As could be seen from the certified copy of the Charge Sheet under Ex.A2, there are categorical conclusions arrived at by the Investigating Officer, i.e., the

S.I of Police, Choutuppal P.S., after a full-fledged investigation that the accident occurred as a result of the rashness and negligence on the part of the 2nd respondent in driving the RTC bus and that the deceased died out of the injuries sustained in the accident. The respondents have not chosen to place any iota of contra evidence to prove the rival stand of the respondents and, more particularly, there is no explanation forthcoming from any of the respondents for the failure of the respondents to examine the 2nd respondent, being the driver of the RTC bus involved in the accident, who, by all means, is the material witness to the accident. This non-examination draws an adverse inference U/s.114(g) of the

Indian Evidence Act, 1872 against the case of the respondents.

13. It is a well settled principle of law reiterated in a catena of judgments of the

Supreme Court and the High Courts from time to time including the judgments in (1) ‘Bimla Devi & others Vs. Himachal Road Transport Corporation (2009 (13)

SCC 530)’, (2) ‘APSRTC Vs.Shaik Yousuf Pasha (2007(5) ALD 439) equivalent to (2007 (2) Andhra Weekly Reporter 359)’ and also in (3) ‘Anita Sharma and others Vs. New India Assurance Co.Ltd. and another (2021(1) ALT 1 (SC)’ that ‘in case of the proof of an accident in the enquiry of a motor vehicle claim, the

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Page No. 8 of 14 claimants need not establish their case beyond reasonable doubt and it would be suffice, if the case is proved on the touch stone of the preponderance of probability’. It is also the principle of law evolved in these judgments that the documents relating to the investigation done by the police for filing of the charge sheet against the driver of the crime vehicle responsible for the accident can be relied upon during the course of enquiry conducted for the motor vehicle claim without the need of the formal proof of those documents.

14. On the strength of the evidence of PW2 coupled with Exs.A1 to A5 and A8, the petitioners could establish that the accident occurred as a result of the rashness and negligence on the part of the 2nd respondent in driving the RTC bus and that resulted in the death of the deceased due to the fatal injuries sustained in the said accident. Accordingly, this issue is decided in favour of the petitioners and against the respondents.

15. ISSUE No.2: In view of the conclusions arrived at under issue No.1 above, there is no need to add the owner and the insurer of the car, wherein the deceased was travelling by the time of the accident. Therefore, there are no merits in the contention of the 1st respondent that the petition is bad for the non- joinder of the necessary parties and, accordingly, this issue is decided against the 1st respondent.

16. ISSUES No.3 & 4: As per the conclusions arrived under Issue No.1 above, the petitioners established the crucial and indispensable fact that the accident occurred as a result of the rashness and negligence on the part of the 2nd respondent in driving the RTC bus and that the deceased died out of the fatal

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Page No. 9 of 14 injuries sustained in the said accident. As such, the 1st respondent having the control over the management of TSRTC and the 2nd respondent being the driver of the RTC bus are jointly and severally liable to pay the compensation to the petitioners, which can be ascertained in a scientific manner guided by the judicial precedents from time to time and on the strength of the evidence available on record in the subsequent paras hereunder.

17. As per the settled principles of law, three essential aspects are necessary to determine the compensation payable to the dependents of the deceased in a motor accident and, they are (1) the age of the deceased (2) the income of the deceased and (3) the dependents on the deceased.

Age of the deceased:

18. The petitioners have shown the age of the deceased as 23 years and, so also, Ex.A4, which is the certified copy of the Postmortem Examination Certificate of the deceased, shows the age of the deceased as 23 years. In ‘‘Chhanno Devi

and others Vs. Ram Kewal and others (2009 (1) Andhra Weekly Reporter 130

Delhi which is equivalent to (2008) 4 ACC 583)’ it is held by the Hon’ble High

Court that ‘in the absence of any documentary proof regarding the age of the deceased, the Postmortem Report is helpful to come to the conclusion of the factum of the age of the deceased’. In view of this legal proposition and by taking the age of the deceased mentioned in Ex.A2, the age of the deceased by the time of his death is taken as 23 years. The suitable multiplier applicable to this age is that of the multiplier ‘18’ as per the guidelines given by the Hon’ble Supreme

Court in ‘Sarla Verma and others Vs.Delhi Transport Corporation and another

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Page No. 10 of 14 (2009 ACJ 1298)’ and in ‘National Insurance Co.Ltd., Vs. Pranay Sethi and others (2017 ACJ 2700)’.

Income of the deceased and loss of dependency suffered by the petitioners:

19. The petitioners have placed Ex.A7 Savings Bank Account Pass Book of the deceased with the Bank of India, Karwan Branch, so as to show that an amount of Rs.12,885/- is credited to the said account towards the salary of the deceased from the employer of the deceased, i.e., M/s.Reliance SMSL Limited.

Basing on the same, the annual income of the deceased is calculated as

Rs.1,54,620/- (Rs.12,885 X 12). As the deceased was below the age group of 40 and a self employed, 40% of the income is calculated towards future prospects and that calculation comes to Rs.61,848/- (Rs.1,54,620 X 40%). With that addition of Rs.61,848/- to the annual income of the deceased, the final figure is arrived at Rs.2,16,468/- (Rs.1,54,620 + 61,848/-).

20. As the deceased was a bachelor, half of the income is deducted towards his personal expenses and after that deduction, an amount of Rs.1,08,234/- remains as the multiplicand. By multiplying the same with the multiplier ‘18’ applicable to the age group of the deceased at 23 years, the total income of the deceased is assessed as Rs.19,48,212 (Rs.1,08,234 X 18), which is the loss of dependency suffered by the petitioners.

21. In ‘Magma General Insurance Company Limited Vs. Nanu Ram @

Chuhru Ram and others [2018 (18) SCC 130]’ the Hon’ble High Court held that ‘not only the parents, but also the siblings of the deceased are also entitled to seek consortium at Rs.40,000/-‘. In the light of this settled principle of law, each

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Page No. 11 of 14 of the petitioner is entitled to Rs.40,000/- towards consortium and thus, a total consortium of Rs.1,20,000/- is payable to the petitioners.

22. The compensation payable under the conventional heads, i.e., for the loss of estate and for the funeral expenses at Rs.15,000/- each should be awarded to the petitioners as per the directions given by the Hon’ble Supreme Court in

Pranay Sethi’s case (cited supra).

23. With the above calculations, which are enumerated in more detail in a tabular form given below, the petitioners are entitled to a total compensation of

Rs.20,98,212/-:-

1. Loss of income/dependency Rs. 19,48, 212/-

2. Loss of consortium Rs. 1,20,000/-

3. Loss of estate Rs. 15,000/-

4. Funeral expenses Rs. 15,000/-

Total: Rs. 20,98,212/-

24. The petitioners are also entitled to the costs of the petition and also the subsequent interest @ 6% p.a on the compensation payable to the petitioners from the date of the petition till the date of realization (subsequent interest is awarded at the rate of 6% p.a as per the recent judgments of the Hon’ble

Supreme Court in (1) ‘Anthony @ Anthony Swamy Vs. Managing Director,

KSRTC (2020(4) ALD 220 (SC))’, (2) ‘Chandrakanta Tiwari Vs. New India

Assurance Co.Ltd., and another (2020(4) ALD 317 (SC))’ and (3) ‘Benson

George Vs. Reliance General Insurance Co.Ltd and another (AIR 2022

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Page No. 12 of 14

Supreme Court 1216)’). As already stated above, the respondents 1 and 2 are jointly and severally liable to pay the above said compensation to the petitioners.

25. The compensation awarded to the petitioners is a little bit more than the compensation claimed by the petitioners. In ‘Smt.Anjali and others Vs.

Lokendra Rathod and others 2023 (1) ALT page 14 (SC))’, the Hon’ble Apex

Court held that the word ‘compensation’ mentioned U/s.168(1) of the M.V.Act is ‘the just compensation’, which is suitable to provide relief to the victims or their families and hence, that need not be confined to the actual amount of compensation claimed by the claimants, but, the only requirement is the payment of the court fee on the difference amount’. Therefore, the petitioners herein are liable to pay the court fee on the difference amount.

26. The compensation is determined in a scientific manner basing upon the legal pronouncements cited above. The claim of the petitioners, in fact, is less than the compensation now awarded to the petitioners and hence, there is no strength in the contention of the respondents that the compensation claimed by the petitioners is excessive and exorbitant. As stated above, the present compensation is ‘the just compensation’ U/s.168(1) of the M.V.Act. Accordingly, these two issues are decided in favour of the petitioners.

27. ISSUE No.5: In the result, the petition is allowed with costs, thereby awarding a compensation of Rs.20,98,212/- (Rupees Twenty Lakhs, Ninety Eight

Thousand, Two Hundred and Twelve only) to the petitioners along with interest thereon at 6% p.a from the date of the petition till the date of realization, payable by the respondents 1 and 2 jointly and severally. Out of this total compensation,

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Page No. 13 of 14 the petitioners are entitled to equal shares, i.e., 1/3 share each. The respondents shall deposit the total amount of compensation within 30 days from the date of the

Award, as mandated U/s.168(3) of the M.V.Act and on such deposit, the petitioners are permitted to receive 50% of their share amounts and the 2nd petitioner is also permitted to receive the total costs and the interest payable till the date of deposit. The remaining 50% of the share amounts of the petitioners shall be kept in separate fixed deposits with any Nationalized Bank for a period of three years and on the maturity of those deposits, the petitioners are entitled to receive the matured amounts in the Fixed Deposits inclusive of the interests accrued on the deposits. The petitioners shall pay the court fee on the difference amount of Rs.98,212/-, which is the difference between the claim of the petitioners and the amount awarded to the petitioners under this award, within 15 days from the date of the award, failing which, the same shall be collected from the compensation amount to be deposited by the respondents. The fee of the counsel for the petitioners is fixed at Rs.3,000/- only (Rupees Three Thousand only).

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me in the Open Court on this the 31st day of July, 2023.

CHAIRMAN,MACT-cum

PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PETITIONER:

PW-1: Chippa Prem Kumar PW-2: R.Shiva Raja Gopal Chary

ON BEHALF OF RESPONDENTS:NIL

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Page No. 14 of 14

EXHIBITS MARKED

ON BEHALF OF PETITIONER:

Ex.A1: C.C. of FIR in Cr.No.28/2022 registered by the Sub-Inspector of Police, Choutuppal P.S., for the offences U/Ss.304-A & 337 IPC

Ex.A2: C.C. of Charge Sheet filed by the Sub-Inspector of Police, Choutuppal P.S., against R2 for the offences U/Ss.304-A, 338 and 337 IPC

Ex.A3: C.C of Inquest Report dt.16.01.2022 of the deceased late Chippa Sri Prithvi Raj

Ex.A4: C.C. of Postmortem Examination Certificate of the deceased Chippa Sai Prithvi Raj

Ex.A5: C.C of Report issued by the Motor Vehicles Inspector

Ex.A6: C.C of Form No.54 prepared by the S.I of Police Choutuppal P.S

Ex.A7: Savings Bank Pass Book Account of the deceased bearing A/c.No.083510100129597 with Union Bank of India, Karwan Branch

Ex.A8: C.C of Crime Details Form-cum-Rough Sketch dt.16.01.2022 prepared by the police during the course of investigation

ON BEHALF OF RESPONDENTS: NIL

CHAIRMAN, MACT-cum-

PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

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Page No. 15 of 14

BEFORE THE CHAIRMAN, MACT-cum-PRL. DISTRICT JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: C.Hare Krishna Bhupathi, Chairman, MACT-cum- Prl.District Judge, Ranga Reddy District.

Monday, the 31st day of July, 2023.

M.V.O.P.No.263 of 2018

Between:

Eslavath Laxman S/o.E.Bojya, Aged about 28 years, Occ: Private Job, R/o.H.No.10-1-66/2/4A, Plot No.98, Raod No.4, Thapovan Colony, Lingojiguda, Saroornagar, Ranga Reddy District-35. … Petitioner

AND

1. S.Parusuram S/o.S.Sanya, Aged about 38 years, Occ: Driver of crime vehicle, R/o.H.No.6-20/3, Kondriganibodu thanda, H/o.Kadthal Village and Mandal (Amangal), Ranga Reddy District.

2. S.Bichi S/o.S.Parshuram, Aged about 20 years, Occ: Owner of crime vehicle, R/o.H.No.6-20/3, Kondriganibodu Thanda, H/o.Kadthal Village and Mandal (Amangal), Ranga Reddy District. (Regd.Owner of the crime vehicle No.AP 22AG 7640)

3. Shri Ram General Insurance Company Ltd., Represented by its authorized signatory/Manager-Legal, O/o.6th Floor, Tower-3, Indiabulls Finance Center, Senapati Bapat Marg, Elphinstone Road, Mumbai, Maharashtra-400133. (office code No.10). … Respondents (Policy No.10003/31/17/432566, valid from 10.12.2016 to 09.12.2017)

This Petition coming before me on 18.07.2023 for final hearing in the presence of Sri M.Ramadasu, counsel for petitioner and Sri P.Vijay Bhaskar

Reddy, counsel for respondent No.3, respondents 1 and 2 remained ex-parte and upon hearing the learned counsels on record and perusing the material on record and the matter having stood over for consideration till this day, this Court passed the following:-

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AWARD

1. This is a claim petition filed U/s.166(1)(a) of the Motor Vehicles Act, 1988 (in short ‘the M.V.Act’) by the claimant/petitioner, praying for a compensation of

Rs.2,00,000/- from the respondents 1 to 3 jointly and severally, for the injuries sustained by the petitioner in a motor accident.

2. The case of the petitioner, as averred in the claim petition, is succinctly stated as follows:-

(i) On 01.09.2017, the petitioner was proceeding to his village

Gharmanaik Tanda in Talakondapally Mandal on his Passion Pro motorcycle bearing Regn.No.TS 11EG 5106 from Hyderabad and at about 1300 hours, when he reached Mucherla Bridge on NH-765, one Maruti Alto LX Car bearing

Regn.No.AP 22 AG 7640, driven by the 1st respondent in a rash and negligent manner, came from the rear side and hit the motorcycle of the petitioner. The petitioner fell down and sustained fracture to his right leg and multiple injuries all over his body. He was immediately taken to SIGMA Hospitals, Dilsukhnagar,

Hyderabad for treatment and he underwent a surgery to his right leg. The petitioner was treated as inpatient in the said hospital and was discharged after five days.

(ii) On a report lodged by the brother of the petitioner, the police at

Amangal P.S., registered a case against the 1st respondent for the offence punishable U/s.337 IPC, and, on the basis of the investigation, the S.I of Police,

Kadthal P.S., filed a charge sheet against the 1st respondent for the offence punishable U/s.338 IPC before the Special Second Class Magistrate at

Kalwakurthy.

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(iii) The petitioner incurred an expenditure of Rs.20,000/- towards his treatment in the hospital and besides that, there is a requirement of an expenditure of Rs.60,000/- for the surgery suggested by the doctors for the removal of the screws and iron plates inserted in his right leg. The petitioner lost his earnings during the period he was confined to bed and as he was working as an engineer in M/s.Shivpra Cranes, Saifabad, Hyderabad, with a monthly salary of Rs.15,700/-, he lost his income for a considerable period. The petitioner was also put to severe pain and mental agony.

(iv) The 1st respondent being the driver, the 2nd being the owner and the 3rd respondent being the insurer of the car responsible for the accident are jointly and severally liable to pay the compensation to the petitioner, which the petitioner estimated at Rs.2,00,000/-. The petitioner is also entitled to seek the costs of the petition and also subsequent interest at 18% p.a on the compensation amount from the date of the petition till the date of realization.

3. The respondents 1 and 2 remained ex-parte, whereas the 3rd respondent filed a counter, thereby resisting the claim of the petitioner.

4. The contentions raised by the 3 rd respondent in the counter are concisely stated as follows:-

(a) This respondent denied the liability to pay the compensation by contending that, there was negligence on the part of the petitioner himself leading to the accident.

(b) It is also a further contention of this respondent that, there are several violations committed to the terms of the policy issued by this respondent

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Page No. 4 of 13 and, as a result, this respondent is absolved of any liability arising out of that policy.

(c) It is also the contention of this respondent that, there was a delay in lodging the report with the police by the brother of the petitioner about the accident and hence, there is a possibility of making the false implication of the insured vehicle in the accident, so as to have a wrongful gain.

(d) The claim of the petitioner is termed by this respondent as excessive and exorbitant.

With these main contentions, this respondent prayed the court to dismiss the petition with costs.

5. Upon the pleadings of both parties, the following issues were settled by the

Tribunal on 27.11.2019:-

(1) Whether the accident that occurred on 01.09.2017 at

about 13.00 hours at Mucherla bridge on NH-765 road,

under Kadthal P.S, R.R.District, was due to the rash,

negligent and high speed driving of car bearing No. AP 22

AG 7640, by its driver?

(2) Whether the petitioner is entitled to compensation and, if

so, what quantum and from whom?

(3) To what relief?

6. During the course of the enquiry, the petitioner examined himself as PW1 and got marked Exs.A1 to A8 and further examined PW2, an Orthopedic

Surgeon in SIGMA Hospitals, Dilsukhnagar, Hyderabad, as the other witness for the petitioner. The Legal Officer of the 3rd respondent/Insurance Company was examined as RW1 and Ex.B1 was marked through RW1.

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7. After the completion of the enquiry, the learned counsel for both sides submitted both oral and written arguments and, thereafter, the petition is coming for passing of the award.

8. ISSUE No.1: The quintessence of this issue is that of the ascertainment of the fact as to on whose negligence the accident took place. The case of the petitioner is that, the accident occurred as a result of the rashness and negligence on the part of the 1st respondent in driving the car and, due to that, the petitioner sustained injuries, whereas the 3rd respondent contended that there was a contributory negligence on the part of the petitioner himself leading to the accident.

9. PW1, being an injured and the eye-witness to the accident, deposed in his evidence about the manner of the occurrence of the accident. He stated that, he was proceeding from Hyderabad to Kalwakurthy and when he reached Mucherla

X Roads, the car driven by the 1st respondent came in a negligent manner from the rear side and hit his motorcycle and, due to that, he sustained injuries. He denied the suggestion put to him by the learned counsel for the 3rd respondent that there was a contributory negligence on the part of PW1 himself.

10. Besides the oral evidence of PW1, the petitioner also placed the documentary evidence in the shape of Exs.A1 to A5, which form part of the investigation done by the S.I of Police, Kadthal P.S., for the purpose of filing the charge sheet under the original of Ex.A2 and also Ex.A5, the certified copy of the

Conviction Warrant issued by the learned JFCM, Kalwakurthy against the 1st respondent, on the conviction of the 1st respondent for the offence U/s.338 IPC by a judgment dated 16.08.2018 in C.C.No.49/2018 passed by the said court.

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Ex.A1 is the certified copy of the First Information Report registered by the S.I of

Police, Amangal P.S., against the 1st respondent for the offence U/s.337 IPC on a report lodged by the brother of the petitioner about the accident. Ex.A2 is the certified copy of the Charge Sheet filed by the S.I of Police, Kadthal P.S., against the 1st respondent for the offence U/s.338 IPC. Ex.A3 is the certified copy of the

Crime Details Form-cum-Rough Sketch prepared by the police during the course of the investigation. Ex.A4 is the certified copy of the Medico Legal Case Record issued by the SIGMA Hospitals, Dilsukhnagar, Hyderabad, with regard to the injuries sustained by PW1 in the accident.

11. It is a well settled principle of law reiterated in a catena of judgments of the Supreme Court and the High Courts from time to time including the judgments in (1) ‘Bimla Devi & others Vs. Himachal Road Transport Corporation (2009 (13) SCC 530)’, (2) ‘APSRTC Vs.Shaik Yousuf Pasha (2007(5) ALD 439) equivalent to (2007 (2) Andhra Weekly Reporter 359)’ and also in (3) ‘Anita

Sharma and others Vs. New India Assurance Co.Ltd. and another (2021(1)

ALT 1 (SC)’ that ‘in case of the proof of an accident in the enquiry of a motor vehicle claim, the claimants need not establish their case beyond reasonable doubt and it would be suffice, if the case is proved on the touch stone of the preponderance of probability’. It is also the principle of law evolved in these judgments that the documents relating to the investigation done by the police for filing of the charge sheet against the driver of the crime vehicle responsible for the accident can be relied upon during the course of enquiry conducted for the motor vehicle claim without the need of the formal proof of those documents.

12. Exs.A1 to A4 coupled with Ex.A5 strongly fortify the case of PW1 with regard to the proof of the occurrence of the accident in the manner stated by PW1

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Page No. 7 of 13 and as against this, there is absolutely no iota of evidence placed by the 3rd respondent to prove the rival contention of the 3rd respondent. RW1, when confronted with Ex.A5, admitted that, the 1st respondent was convicted for the offence U/s.338 IPC, as appeared in Ex.A5.

13. On the holistic consideration of both oral and documentary evidence placed by PW1, which remained unchallenged, on account of the failure of the 3rd respondent to place any scintilla of contra evidence to prove the rival stand of the 3rd respondent, the petitioner is able to prove and establish that the accident occurred as a result of the rash and negligent driving of the 1st respondent in driving the car and that resulted in the injuries sustained by PW1. Hence, this issue is decided in favour of the petitioner and against the respondents.

14. ISSUE No.2: As per the conclusions arrived at under issue No.1 above, the petitioner is able to prove that the accident occurred as a result of the rashness and negligence on the part of the 1st respondent in driving the car and that resulted in the injuries sustained by the petitioner/PW1.

15. Ex.B1 Photostat copy of the Insurance Policy issued by the 3rd respondent to cover the risk to the insured car owned by the 2nd respondent, which was driven by the 1st respondent leading to the accident, shows that the said policy was in force as on the date of the accident. Though a bald plea is taken in the counter filed by the 3rd respondent that there are violations committed by the 2nd respondent to the terms of the Insurance Policy under Ex.B1, RW1 categorically admitted that no such violations were specifically pleaded or contended by the 3rd respondent either in the counter filed by the 3rd respondent or through the evidence of RW1. In fact, RW1 is not in a position to state about

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Page No. 8 of 13 any one of such violations allegedly committed by the 2nd respondent to the terms of Ex.B1 Insurance Policy. However, it is the plea of the 3rd respondent, of which

RW1 also deposed in his evidence, that there was a delay of 4 days in lodging the report by the brother of the petitioner with the police about the accident and hence, that delay would give an inference that the insured car was wrongly and falsely implicated in this case. When the attention of RW1 was drawn to Ex.A1, he stated that the delay in lodging the report by the brother of PW1 with the police is clearly explained in the report as well as in the relevant column of the FIR registered by the police under the original of Ex.A1. PW1 deposed in his evidence that, he was first taken to the hospital and while he was undergoing treatment, his brother went to the police station and gave the report to the police and that caused a slight delay in lodging the report with the police.

16. On a careful perusal of the entire evidence placed on record, the bald contention of the 3rd respondent so as to claim exoneration from the liability cannot be accepted. The 1st respondent being the driver, the 2nd respondent being the owner and the 3rd respondent being the insurer of the car responsible for the accident are jointly and severally liable to pay the compensation to the petitioner, which will be determined on the strength of the available evidence in the subsequent paras herein.

17. PW1 deposed in his evidence that he sustained a fracture to his right leg and hence, he was hospitalized and was treated as inpatient in SIGMA Hospitals,

Dilsukhnagar, Hyderabad, for a period of five days and even after his discharge from the said hospital, he was confined to bed for some period and hence, he incurred expenditure for his treatment and also suffered the loss of income during

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Page No. 9 of 13 the period he was confined to bed. However, PW1 admitted that he failed to place any document to show that the doctor advised him to take 5 months rest.

About the discrepancy drawn by the learned counsel for the 3rd respondent as well as RW1 in his evidence that as per Ex.A6-Discharge Summary issued by

SIGMA Hospitals, Dilsukhnagar, Hyderabad, PW1 was shown to have been admitted to the said hospital on 05.09.2017 instead of 01.09.2017, PW1 has explained not only by way of giving suggestion to RW1, but also through the arguments submitted by the learned counsel for PW1 that, PW1 was treated in the said hospital under Arogya Sree Scheme and since there was some delay in getting the approval for the benefit under the Arogya Sree Scheme, his treatment in the hospital commenced from 05.09.2017, though he was admitted to the said hospital on 01.09.2017.

18. PW2, who is an the Orthopedic Surgeon working in SIGMA Hospitals,

Dilsukhnagar, Hyderabad, deposed in his evidence that, he treated PW1 in the said hospital for a period of 5 days and that PW1 was operated on 06.09.2017 for the fracture sustained by him to his right leg and that he was discharged on 09.09.2017. PW2 further deposed that the surgery was done to PW1 by means of right leg interlocking and nailing of Tibia of the right leg. PW2 further deposed that, he was one of the Directors of the said hospital. He admitted that, Exs.A4 and A6 were issued by the said hospital. It is also the evidence of PW2 that, he advised PW1 to take 4 months rest and that a further expenditure of Rs.75,000/- is required for the removal of implants inserted in the right leg of PW1 during the course of his surgery. However, both PWs.1 and 2 admitted that the treatment was done to PW1 in the said hospital under the Arogya Sree beneficial scheme.

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19. In ‘Pathi Lakshmi Vs. K.Sunder Raj and others (2015(6) ALT page

456)’ the Hon’ble High Court held that ‘even in case of a treatment rendered to a patient in a Government Hospital for the injuries sustained by him in a motor accident, the compensation towards the expenditure incurred on extra nourishment, transport charges and on an attendant cannot be denied and such an assessment can be made on the reasonable basis by the court even in the absence of a positive evidence’. The Hon’ble High Court has also further observed that ‘it is a common knowledge that the patients receiving treatment even in Government hospitals also incur expenditure for medicines purchased from outside’.

20. In the light of the above cited case law, the petitioner/PW1 can be awarded a reasonable sum of Rs.25,000/- towards compensation for the expenditure incurred by him on the purchase of medicines, nutritious diet and towards the attendant charges.

21. In view of the evidence of PW2 on the requirement of further expenditure of Rs.75,000/- for the removal of implants inserted in the right leg of the petitioner/PW1, PW1 is also entitled to that amount of Rs.75,000/- as compensation towards future medical expenditure.

22. The petitioner/PW1 is further awarded an amount of Rs.50,000/- towards pain and suffering.

23. Then, coming to the loss of earnings, it is the plea of PW1 that he lost the salary for 5 months due to confinement to bed. In fact, PW1 has placed Exs.A7 and A8 that he was employed with M/s.Sivpra Cranes, Saifabad, Hyderabad.

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However, PW1 failed to examine anybody to prove Exs.A7 and A8 and in the absence of any such evidence, the bald plea of PW1 based upon Exs.A7 and A8 cannot be accepted. However, by considering the fact that the petitioner/PW1 needed bed rest for a considerable period after the surgery, as stated by PW2,

PW1 is awarded a sum of Rs.50,000/- towards loss of income during that period.

24. With the above calculations, which are enumerated in more detail in a tabular form given below, the total compensation payable to the petitioner is arrived at Rs.2,00,000/-.

1. Expenditure on purchase of medicines, nutritious Rs. 25,000/- diet and attendant charges

2. Future medical expenditure Rs. 75,000/-

3. Pain and suffering Rs. 50,000/-

4. Loss of income Rs. 50,000/-

Total: Rs. 2,00,000/-

25. The petitioner/PW1 is also entitled to the costs and also the subsequent interest @ 6% p.a., on the above compensation amount from the date of the petition till the date of realization (subsequent interest is awarded at the rate of 6% p.a as per the recent judgments of the Hon’ble Supreme Court in (1) ‘Anthony @ Anthony Swamy Vs. Managing Director, KSRTC (2020(4) ALD 220 (SC))’, (2) ‘Chandrakanta Tiwari Vs. New India Assurance Co.Ltd., and another (2020(4) ALD 317 (SC))’ and (3) ‘Benson George Vs. Reliance

General Insurance Co.Ltd and another (AIR 2022 Supreme Court 1216)’). As already stated above, the respondents 1 to 3 are jointly and severally liable to pay this compensation to the petitioner. Accordingly, this issue is decided in favour of the petitioner and against the respondents.

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26. ISSUE No.3: In the result, the claim petition is allowed with costs, thereby awarding a compensation of Rs.2,00,000/- only (Rupees Two Lakhs only) to the petitioner along with subsequent interest thereon @ 6% p.a from the date of the petition till the date of realization, payable by the respondents 1 to 3 jointly and severally. The respondents shall deposit this amount of compensation within 30 days from the date of the Award, as mandated U/s.168(3) of the M.V.Act and on such deposit, the petitioner is permitted to receive the entire amount including the costs and subsequent interest. The fee of the counsel for the petitioner is fixed at Rs.2,000/- only (Rupees Two Thousand only).

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me in the Open Court on this the 31st day of July, 2023.

CHAIRMAN,MACT-cum

PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PETITIONER:

PW1 - Eslavath Laxman PW2 – Dr.S.Vasudev Rao

ON BEHALF OF RESPONDENTS:

RW1 – N.Sarat Kumar, Legal Officer of 3rd respondent company

EXHIBITS MARKED

ON BEHALF OF PETITIONER:

Ex.A1 - C.C of FIR in Cr.No.317/2017 registered by the S.I of Police, Amangal P.S., for the offence U/s.338 IPC against R1

Ex.A2 - C.C of Charge Sheet in C.C.No.49/2018 on the file of the Spl.Second Class Magistrate at Kukatpally filed by the S.I of Police, Kadthal P.S., against R1 for the offence U/s.338 IPC

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Ex.A3 - C.C of Crime Details Form prepared by the police

Ex.A4 - C.C of Medico Legal Case Records issued by SIGMA Hospitals, Dilsukhnagar, Hyderabad

Ex.A5 - C.C of Conviction Warrant of R1 issued by the Principal Junior Civil

Judge, Kalwakurthy

Ex.A6 - Discharge Summary issued by SIGMA Hospitals, Dilsukhnagar, Hyderabad

Ex.A7 - Salary Certificate issued by the afcountant of M/s.Shivepra Cranes, Saifabad, Hyderabad

Ex.A8 - Letter issued by the authorized signatory of M/s.Shivepra Cranes, Saifabad, Hyderabad

ON BEHALF OF RESPONDENTS:

Ex.B1 - Attested copy of the Insurance Policy bearing No.10003/31/17/432566 issued by R3 covering the risk to the car owned by R2

CHAIRMAN, MACT-cum-

PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

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Page No. 14 of 13

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT L.B.NAGAR

RANGA REDDY DISTRICT

PRESENT: C.Hare Krishna Bhupathi,

Principal District Judge,

Ranga Reddy District.

Monday, the 31st day of July, 2023.

CMA.No.75 of 2023

Between:

Varthya Ramesh Naik, S/o.Varthya Ramulu Naik, Aged about 25 years, Occ: Student, R/o.[H.No.5-29, Padamati Thanda, Nagaram Village, Maheshwaram Mandal, Ranga Reddy District, Telangana State. … Appellant AND

1.M.Sanjeeva Reddy, S/o.Muti Reddy, Aged about 56 years, Occ: Agriculture, R/o.Nagireddypalli Village, Maheshwaram Mandal, Ranga Reddy District, Telangana State.

2.M/s.Subhash Projects, Represented by its Partner, Sri T.S.Sastry, S/o.Satyanarayana Murthy, Aged about 56 years, Occ: Business, R/o.Plot No.413, Road No.22, Jubilee Hills, Hyderabad, Telangana State. … Respondents (R2 is not necessary party to this CMA since R2 was set ex-parte before the trial court itself)

Appeal against the Decree & Order dated 14.06.2023 passed by the learned Junior Civil Judge, Ranga Reddy District at Maheshwaram, in;

I.A.No.1093 of 2022

in

O.S.No.264 of 2022

Between:

Varthya Ramesh Naik, S/o.Varthya Ramulu Naik, Aged about 24 years, Occ: Student, R/o.[H.No.5-29, Padamati Thanda, Nagaram Village, Maheshwaram Mandal, Ranga Reddy District, Telangana State. … Petitioner/Plaintiff

AND

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1.M.Sanjeeva Reddy, S/o.Muti Reddy, Aged about 55 years, Occ: Agriculture, R/o.Nagireddypalli Village, Maheshwaram Mandal, Ranga Reddy District, Telangana State.

2.M/s.Subhash Projects, Represented by its Partner, Sri T.S.Sastry, S/o.Satyanarayana Murthy, Aged about 55 years, Occ: Business, R/o.Plot No.413, Road No.22, Jubilee Hills, Hyderabad, Telangana State. … Respondents/Defendants

This Civil Miscellaneous Appeal coming before me on 18.07.2023 for final hearing in the presence of Sri M.Gopal Rao, counsel for the appellant and Sri G.Chandra Shekar Reddy, counsel for respondent No.1, and upon hearing both sides and on perusing the material on record and the matter having stood over for consideration till this date, this court passed the following:

ORDER

1.This is a Civil Miscellaneous Appeal (in short ‘the CMA’) preferred under

Order XLIII Rule (I)(r) C.P.C by the appellant, who was the unsuccessful petitioner/plaintiff before the Junior Civil Judge, Ranga Reddy District at

Maheshwaram (in short ‘the trial court’), thereby challenging the legality of the

Decree and Order dated 14.06.2023 in O.S.No.264/2022 passed by the trial court, wherein the relief of interim injunction sought for by the petitioner/plaintiff was dismissed.

2.For the sake of convenience and for the better understanding of the facts, the parties to this CMA will hereinafter be referred to as arrayed in the pleadings before the trial court.

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3.The case of the petitioner/plaintiff, as averred in the affidavit annexed to the petition as well as in the plaint filed in the main suit, is succinctly stated as follows:

(i)The petitioner/plaintiff is the absolute owner and possessor of agricultural land admeasuring Ac.4-00 guntas in Sy.No.194/Ghaa/2/1, situated at Nagaram Village, Maheshwaram Mandal, Ranga Reddy District, which is more fully described in the schedule of property annexed to the petition (hereinafter be referred to as ‘the petition schedule property’) and he acquired title to the said property under a Regd.gift Settlement Deed dated 19.01.2022 vide Doc.No.665/2022 executed by his mother Smt.Varthya Rakli.

(ii)The petitioner’s mother originally purchased Ac.6-00 guntas of land in Sy.No.194 of Nagaram Village, under a Regd.Sale Deed dated 30.05.2006 vide Doc.No.8014/2006 from her vendors and out of the total extent of

Ac.6-00 guntas, she gifted the petition schedule property of Ac.4-00 guntas to the petitioner.

(iii)The petitioner got the mutation effected on his name in the revenue records and obtained a pattadar pass book from the Revenue Department in respect of the petition schedule property.

(iv)The respondents have no manner of right over the suit schedule property, but, in the last week of July, 2022, the 1st respondent tried to make some unauthorized interference with the possession of the petitioner in the petition schedule property and the same was resisted by the petitioner with help of his parents and neighbours.

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(v)The petitioner made enquires and came to know that the 1st respondent purchased some land in Sy.No.180 of Nagireddypalli Village of

Maheshwaram Mandal, which is totally a different property and the 2nd respondent has also got created some documents in respect of the land in

Sy.No.180 of Nagireddypalli Village and that, both the respondents are trying to lay a false claim over the petition schedule property.

(vi)On 18.09.2022, the respondents made an illegal attempt to trespass into the petition schedule property and the same could be thwarted by the petitioner with the help of his parents and local persons, but the petitioner has got every apprehension in his mind that the respondents would come with more force and illegally occupy the petition schedule property, in which case, the petitioner may not be in a position to protect his possession.

Hence, the petitioner is constrained to file the suit, seeking the relief of perpetual injunction and, during the pendency of the suit, the petitioner is seeking an interim injunction to protect his possession in the petition schedule property (suit schedule property) till the disposal of the suit.

4.On 20.09.2022, the trial court, after hearing the learned counsel for the petitioner/plaintiff, ordered urgent notice to the respondents/defendants. The 1st respondent/1st defendant filed a counter affidavit, thereby resisting the claim of the petitioner, whereas the 2nd respondent/2nd defendant remained ex-parte.

5.The contentions raised by the 1 st respondent/1 st defendants in the counter are concisely stated as follows:

(a)This respondent denied the title and possession claimed by the petitioner/plaintiff over the petition schedule property and alleged that the

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Page 5 of 14 petitioner, by showing false boundaries, is trying to lay a false claim over the property of this respondent situated in Sy.No.180 of Nagireddypalli Village,

Maheshwaram Mandal.

(b)This respondent has also further denied the allegation of the petitioner that this respondent and the other respondent created false documents and made abortive attempts to trespass into the petition schedule property.

(c)It is pleaded by this respondent that, this respondent purchased

Ac.1-05 guntas of land in Sy.No.180 of Nagireddypalli Village in Maheshwaram

Mandal from Smt.Kadala Kamsamma and Smt.Kadala Kalamma under a

Regd.Sale Deed dated 19.04.2005 vide Doc.No.1598/2005. The said land is bounded on the north by Gollur Village outskirts, on the wouth by agricultural land of V.Ramulu, on the east by agricultural lanld of N.Shankarayya and on the west by agricultural land of Shantamma. By showing those boundaries to the petition schedule property, more particularly, the northern boundary as that of Gollur village outskirts, the petitioner is trying to obtain an illegal order by concocting the facts.

(d)In the title deed of the petitioner’s mother, which is the link document to the petitioner, none of the boundaries as now shown by the petitioner for the petition schedule property appear and hence, the petitioner’s claim by showing the totally different boundaries and with a wrong description of the petition schedule would not lie.

(e)The survey number given for the petition schedule property is also not part of the survey numbers mentioned in the link document of the petitioner, i.e., the title deed of his mother, and hence, the petitioner cannot

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Page 6 of 14 create a case for himself conveniently, without there being any substantial basis.

(f)The petitioner is trying to disturb the possession of this respondent in the above referred property situated in Sy.No.180 and hence, the present petition is not maintainable.

With these main contentions, this respondent prayed the court to dismiss the petition with costs.

6.During the course of the enquiry before the trial court, the petitioner/plaintiff got marked Exs.P1 to P10 (as per the orders dated 04.04.2023 in I.A.No.1093/2022 passed by the trial court, Ex.P10 was also marked, but the trial court failed to mention that document in the impugned order and also failed to show the same in the appendix of evidence appended to the impugned order and hence, that document was also called for from the trial court during the pendency of the appeal) and Exs.R1 to R4 were marked on the side of the 1st respondent.

7.After the completion of the enquiry and on hearing the arguments of both sides, the trial court passed the impugned order, whereunder the petition was dismissed.

8.Aggrieved by the said Decree and Order passed by the trial court, the appellant (petitioner/plaintiff) preferred this appeal with the grounds of appeal, of which, the core of the contentions is stated as follows:- (1) The main grievance of the appellant is that, the trial court failed to make a mention of Ex.A10 in the impugned order, despite the fact that the said

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Page 7 of 14 document was marked as an exhibit during the course of the enquiry held by the trial court.

(2)That, the trial court committed a glaring mistake by not referring to that important document, i.e., Ex.P10, and that the trial court went wrong by simply making a mention that the boundaries given to the petition schedule property do not tally with the boundaries given in the linik document and that approach of the trial court is not tenable under law.

(3)That, the trial court failed to take note of the fact that, there is a strong prima facie case in favour of the petitioner (appellant herein) and that the petitioner will be put to irreparable loss in case the petitioner is not protected by an interim injunction and the trial court has given undue importance to the documents filed by the 1st respondent.

With these main contentions, the appellant prayed the court to allow the appeal and to consequently set aside the impugned decree and order passed by the trial court.

9.During the course of the hearing on this appeal, both the parties relied upon the documents got makred by them during the course of the enquiry

before the trial court and as already referred above, Ex.P10, which could not

be referred in the impugned order and was not also included in the appendix of evidence in the impugned order, is also called for from the trial court. Besides that, the appellant filed I.A.No.1871/2023 under Order XLI Rule 27 C.P.C and as per the orders dated 13.07.2023 passed on that I.A, the petition was allowed and Ex.P11 was received as additional evidence and is marked as

additional document on behalf of the appellant. Ex.P11 is the certified copy,

whereas Ex.P10 is the normal copy of the HMDA Layout Plan.

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10.After hearing the arguments of both sides, the CMA is coming for passing of the orders.

11.Now, the following points arise for determination:-

(1) Whether the petitioner/plaintiff (appellant herein) is

entitled to seek an interim injunction in favour of the

petitioner/plaintiff and against the respondents (defendants), restraining the respondents from

interfering with the possession and enjoyment of the

petitioner/plaintiff over the petition schedule

property, pending disposal of the main suit?

(2) Whether the impugned Order and Decree dated

14.06.2023 in I.A.No.1093/2022 in O.S.No.264/2022 passed by the trial court suffered from any infirmity or irregularity or illegality and called for any interference by this court?

(3) To what result?

12.POINT No.1: The case of the petitioner/plaintiff (appellant herein), in a nutshell, is that, the petitioner/plaintiff is the absolute owner and possessor of the petition schedule property of Ac.4-00 guntas of agricultural land in

Sy.No.194/Ghaa/2/1 of Nagaram Village in Maheshwaram Mandal and he acquired title to the said property under the original of Ex.P1 Regd.Gift Deed

dated 19.01.2022 vide Doc.No.665/2022 executed by his mother Smt.Varthya

Rakli, who originally purchased a larger extent of Ac.6-00 guntas in Sy.No.194 of Nagaram Village under the original of Ex.P3 Regd.Sale Deed dated 30.05.2006 vide Doc.No.8014/2006 and the respondents, without any manner of right, are trying to trespass into the petition schedule property.

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13.On the other hand, it is the contention of the 1st respondent that, he purchased Ac.1-05 guntas of land in Sy.No.180 of Nagireddypalli village in

Maheshwaram Mandal under the original of Ex.R1 (corresponding to Ex.P4)

dated 19.04.2005 vide Doc.No.1598/2005 from his vendors Smt.Kadala

Kamsamma and Smt.Kadala Kalamma and, by giving a wrong description with the false boundaries, more especially, the northern boundary as Gollur village outskirts, the petitioner is trying to lay a false claim over the land of the 1st respondent.

14.Ex.P1 is the certified copy of the Regd.Gift Deed dated 19.01.2022 vide

Doc.No.665/2022 executed in favour of the petitioner by his mother and

Ex.P3 is its link document, which is the certified copy of Regd.Sale Deed dated 30.05.2006 vide Doc.No.8014/2006 in favour of the petitioner’s mother

Smt.Varthya Rakli. According to the petitioner, his mother purchased

Ac.6-00 guntas of land in Sy.No.194 and out of the same land, she gifted

Ac.4-00 guntas under the original of Ex.P1 to the petitioner, which is the present petition schedule property (suit schedule property).

15.As rightly pointed out by the learned counsel for the 1st respondent, except the eastern boundary, all the three other boundaries shown in Ex.P1 as well as in the present petition schedule property do not tally with the boundaries given for the land under Ex.P3. The petitioner has shown the northern boundary to the petition schedule property as Gollur village outskirts, whereas in the link document under Ex.P3, the northern boundary is the land of A.Satyanarayana. Southern boundary for the petition schedule property is shown as the land of T.Balya, V.Chavli and S.Devja, whereas the southern boundary shown in Ex.P3 is the land of Kethavath Tikya and Ganya. The

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Page 10 of 14 western boundary given to the petition schedule property is the land of neighbour without specifying the name of that neighbour, whereas in Ex.P3, the western boundary is given as the land of Kethavath Henri and Vatchya.

16.Moreover, it is not mentioned in Ex.P1 as to on which side of the total extent of the land covered by Ex.P3, this land, being shown as part of the same, was gifted to the petitioner. If a part of the land purchased the petitoner’s mother under the original of Ex.P3 was gifted to the petitioner and the remaining part is retained by her, the name of the petitioner’s mother should be shown as the owner of the land immediately existing on one side of the petition schedule property, but, curiously, the same is not the case here.

17.Ex.P4 corresponding to Ex.R1 is the certified copy of the sale deed in favour of the 1st respondent for Ac.1-05 guntas of land in Sy.No.180 of

Nagireddypalli village in Maheshwaram Mandal and the same is stated as dated 19.04.2005. This document is shown to have been executed by two vendors, namely, Smt.K.Kamsamma and Smt.Kadala Kalamma, in favour of the 1st respondent. Interestingly, the northern boundary shown to this land is that of

Gollur village outskirts, which tallies with the description given to the petition schedule property as that of the northern boundary.

18.Exs.P5 and P6 are the certified copies of the title deeds of the 2nd respondent for the land of the 2nd respondent in Sy.No.180 of Nagireddypalli village.

19.Both parties have filed the revenue records to show that both the petitioner and the 1st respondent were issued the pattadar pass books and that their names were mutated in the revenue records for the respective lands.

Ex.P2 is a copy of the pattadar pass book issued to the petitioner. Ex.R4 is a

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Page 11 of 14 copy of the pattadar pass book issued to the 1st respondent. So also, both parties have filed the mutation proceedings effected on their names and also the encumbrance certificates.

20. There is absolutely no dispute with regard to the respective titles claimed by the parties to their respective lands, but, the only dispute is with regard to the identity of the land. As already stated above, the boundaries given to the petition schedule property does not tally with the boundaries shown for a larger extent of the same in Ex.P3. Above all, the survey number shown by the petitioner as Sy.No.194/Ghaa/2/1 as that of the survey number pertaining to the petition schedule property does not find place in Ex.P3. In

Ex.P3, the survey numbers,namely, Sy.Nos.194/AA, 194, 194/46 and 194/10/AA are mentioned for the extents of Ac.1-25 guntas, Ac.2-32 guntas,

Ac.1-03 guntas and Ac.0-20 guntas respectively for a total extent of Ac.6-00 guntas and the petition survey number of 194/Ghaa/2/1 is conspicuously absent.

21.The learned counsel for the appellant vehemently argued that, as per

Exs.P10 and P11, the land, as claimed by the 1st respondent, is not shown under an approved layout issued by the HMDA and hence, the claim of the 1st respondent cannot be accepted. However, the 1st respondent has placed the documents to show the possession and incidental title to the land of Ac.1-05 guntas in Sy.No.180 of Nagireddypalli village and since the petitioner is claiming the petition schedule property with different boundaries, which do not tally with the boundaries given in the link document of the petitioner, as already pointed out above, it is for the petitioner to prove and establish the actual identity of the petition schedule property on ground. The petitioner,

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Page 12 of 14 having failed to prove a prima facie case in favour of the petitioner, which is a sine qua non for grant of interim injunction, is not entitled to seek the relief of interim injunction against the respondents, especially against the 1st respondent. Accordingly, this point is decided against the appellant (petitioner/plaintiff).

22.POINT No.2: In the light of the detailed discussion under point No.1 above, the impugned order of the trial court in dismissing the petition for the relief of interim injunction does not call for any interference by this court. No doubt, the trial court failed to make any reference of Ex.P10 and, in fact, has not included the same in the appendix of evidence shown in the impugned order and hence, the same was called for during the course of the appeal. The appellant cannot solely rely upon Ex.P10 without there being a substantial prima facie case for the appellant (petitioner/plaintiff) and hence, the order of the trial court cannot be found fault with. Accordingly, this point is decided against the appellant (petitioner/plaintiff).

23.POINT No.3: Points 1 and 2, which are the major points, are decided against the appellant.

In the result, the CMA is dismissed without costs, thereby confirming the

Order and Decree dated 14.06.2023 in I.A.No.1093/2022 in

O.S.No.264/2022 passed by the Junior Civil Judge, Ranga Reddy District at

Maheshwaram.

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me in the open court on this the 31 st day of July, 2023.

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

PDJ, RRD

C.M.A .No.75/2023

Dated 31.07.2023

Page 13 of 14

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NONE

EXHIBITS MARKED

On behalf of the petitioner/plaintiff before the trial court:

Ex.P1 - Copy of Gift Deed dated 19.01.2022 vide Doc.No.665/2022 executed by the mother of the petitioner Smt.Varthya Rakli in favour of the petitioner, which is issued under RTI Act, 2005

Ex.P2 - Copy of Pattadar Pass Book on the name of the petitioner

Ex.P3 - C.C of Sale Deed dated 30.05.2006 vide Doc.No.8014/2006 of the petitioner’s mother

Ex.P4 - C.C of Sale Deed dated 19.04.2005 vide Doc.No.1598/2005 executed by Smt.Kadala Kamsamma and Smt.Kadala Kalamma in favour of 1st respondent

Ex.P5 - C.C of Sale Deed dated 03.10.2008 vide Doc.No.9012/2008 executed by M/s.Venkata Raju Projects (P) Ltd., and another in favour of M/s.Subash Projects (2nd respondent)

Ex.P6 - C.C of Sale Deed dated 03.10.2008 vide Doc.No.9013/2008 executed by M/s.Venkata Raju Projects (P) Ltd., and another in favour of M/s.Subash Projects (2nd respondent)

Ex.P7 - Photographs (2 in no.) with corresponding CD

Ex.P8 - Online copy of Encumbrance Certificate from 01.01.1983 to 25.08.2022 in respect of land in Sy.No.180

Ex.P9 - Photographs (2 in no.) with corresponding Pendrive

Ex.P10 - Copy of Layout Plan approved by HMDA

On behalf of the appellant/petitioner before the Appellate Court:

Ex.P11 - C.C of Layout Plan approved by HMDA

On behalf of the 1 st respondent before the trial court:

Ex.R1 - C.C of Sale Deed dated 19.04.2005 vide Doc.No.1598/2005 executed by Smt.Kadala Kamsamma and Smt.Kadala Kalamma in favour of the 1st respondent

PDJ, RRD

C.M.A .No.75/2023

Dated 31.07.2023

Page 14 of 14

Ex.R2 - Copy of ROR Proceedings No.D/39/2006, dated 17.01.2006

Ex.R3 - Copy of Copy of Dharani Integrated Land Records Management System Patta Pass Book on the name of the 1st respondent

Ex.R4 - Copy of Pattadar Pass Book on the name of the 1st respondent

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT L.B.NAGAR

RANGA REDDY DISTRICT

PRESENT: C.Hare Krishna Bhupathi,

Principal District Judge,

Ranga Reddy District.

Monday, the 31st day of July, 2023

G.O.P.No. 39 of 2023

Between :

Smt.Kona Rajeshwari W/o.late Kona Rama Kishore, Aged about 44 years, Occ: Housewife, R/o.H.No.HIG-57, Block-4, Phase-5, Ward-37, Kukatpally, Ranga Reddy District. … Petitioner

AND

All concerned. ... Respondents

This petition coming before me on 27.07.2023 for final hearing in the presence of Sri C.Vijay Kumar, counsel for petitioner and no objections received from the respondents/All concerned and upon hearing the learned counsel for the petitioner and on perusal of the material on record and the matter having stood over for consideration till this day, this court passed the following:

ORDER

1.This is a petition filed U/s. 8 (2) of the Hindu Minority and

Guardianship Act, 1956 read with Section 29 of the Guardians and Wards

Act, 1890, by the petitioner, seeking the permission of the court to the petitioner to alienate the share of her minor son, namely Master Kona Surya

Sri Raghav (in short ‘the minor’) in the petition schedule property to third parties, for the welfare and in the best interests of the minors.

2.The case of the petitioner, as averred in the petition, is briefly stated as follows:-

The husband of the petitioner, by name, late Kona Rama Kishore (in short ‘the deceased’) was the absolute owner of an open plot bearing Plot

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 2 of 6

No.28 in Sy.No.89, admesuring 200 Sq.yards in Sai Pavan Hills, situated at

Koheda Village and Gram Panchayath, Hayathnagar Revenue Mandal, Ranga

Reddy District, which is more fully described in the schedule appended to the petition (hereinafter be referred to as ‘the petition schedule property’), having purchased the same under a Regd.Sale Deed dated 19.03.2004 vide

Doc.No.2990/2004 from one Y.V.Krishna Rao.

(i)The deceased died intestate on 23.07.2019, leaving behind him, the petitioner and her two children including the minor herein as his only legal heirs to inherit the said property. The petitioner along with her two children obtained a decree of legalheirship on 29.09.2021 by filing

O.S.No.138/2020 on the file of V Addl.Junior Civil Judge, Ranga Reddy

District at Kukatpally.

(ii)The petitioner intends to alienate the petition schedule property to meet the higher educational expenses of her children and, furthermore, she is facing difficulty in protecting the said property from the illegal occupation of unsocial elements.

(iii)The petitioner submitted that she has no adverse interest against the minor and that she would utilize the sale proceeds pertaining to the share of the minor only for the education and welfare of the minor.

With these main contentions, the petitioner is praying the court to permit her to alienate the share of the minor in the petition schedule property to prospective purchasers.

3.On the registration of this petition, a due public notice was ordered by way of publication in ‘Megha Jyothi’ Telugu daily newspaper circulated in

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 3 of 6

Ranga Reddy District calling for the objectors, if any, and also for causing the publication displayed in the offices of the Collector and the M.R.O., concerned. The said publication was duly made. The objectors were called absent.

4.During the course of the enquiry, PWs.1 and 2 were examined and

Exs.A1 to A7 were marked on behalf of the petitioner.

5.After the completion of the enquiry, the learned counsel for the petitioner submitted the arguments and, thereafter, the petition is coming for passing of the orders.

6.Now, the point for consideration is “whether the petitioner is

entitled for grant of permission to alieante the share of the minor in

the petition schedule property, as prayed for by the petitioner?”.

7.POINT: PW1, who is the petitioner herein, deposed in her evidence that late Kona Rama Kishore is her husband, as evidenced by Ex.A3 Aadhar

Card of PW1. PW1 further deposed that her husband late Kona Rama Kishore was the absolute owner of the petition schedule property, having purchased the same under Ex.A1Regd.Sale Deed dated 19.03.2004 vide

Doc.No.2990/2004 and he died intestate on 23.07.2019, as evidenced by

Ex.A2 Death Certificate, leaving behind him, PW1/wife and her two sons as his only legal heirs to inherit the said property and she along with her two children also obtained a decree of legalheirship to that effect under the original of Ex.A5 Judgment dated 29.09.2021 in O.s.No.138/2020 passed by the V Addl.Junior Civil Judge, Ranga Reddy District at Kukatpally. PW1 deposed that her mother-in-law late Smt.Kona Raghava Kumari is no more and she died in the year 2006. PW1 further deposed that, out of her two

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 4 of 6 sons, her elder son attained majority and the younger son Kona Surya Sri

Raghav is still a minor, as evidenced by Ex.A4 Birth Certificate issued by the Registrar of Births and Deaths, Rajahmundry. PW1 also placed Exs.A6 and A7 Encumbrance Certificate and Market Value Certificate respectively relating to the petition schedule property. PW1 deposed that, she is in need of money to meet the educational and welfare expenses of her two children and except the sale of the petition schedule property, she has no other option to raise the funds and that she has no adverse interest against the minor and that she would utilize the sale proceeds pertaining to the share of the minor only for the benefit and best interests of the minor.

8. The evidence of PW2, who is a third party witness, is on the same lines of the evidence of PW1 and he further deposed that PW1, being the mother and natural guardian of the minor, has no adverse interest against the minor and the proposed alienation of the petition schedule property is intended solely for the benefit of the minor only.

9.In the light of the circumstances stated by PWs.1 & 2 coupled with the documentary evidence under Exs.A1 to A7, it is a fit case to permit the petitioner, being the mother of the minor, to alienate the share of the minor in the petition schedule property, subject to the mandatory conditions imposed by the court, to safeguard the interests and also to protect the rights of the minor. Accordingly, the point is answered in favour of the petitioner.

10. In the result, the petition is allowed, thereby permitting the petitioner, being the mother of the minor Master Kona Surya Sri Ragahva, to alienate the share of the minor in the petition schedule property

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 5 of 6 consisting of an open plot bearing Plot No.28 in Sy.No.89, admeasuring 200

Sq.yards in Sai Pavan Hills, situated at Koheda Village and Gram Panchayat,

Hayathnagar Revenue Mandal, Ranga Reddy District, to third parties for a sale consideration not below the market value of the lands prevailing in that area and as per the Government records. The petitioner shall deposit the entire sale proceeds pertaining to the share of the minor in the petition schedule before this court within one week from the date of the sale, and on such deposit, the same shall be kept in a fixed deposit on the name of the minor in any nationalized bank, till the minor attains the majority. The petitioner is entitled to withdraw the interest for every three months out of the amount kept in the fixed deposit. In case of any need for some more amount for the education and welfare of the minors, the petitioner is permitted to withdraw the amount required, by producing the fee receipts, etc. After the minor attains the majority, he can withdraw the entire amount kept in the fixed deposit. The petitioner shall file a certified copy of the sale deed before this court, within 15 days from the date of the sale.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 31 st day of July, 2023.

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITNSSES EXAMINED

ON BEHALF OF PETITIONER: ON BEHALF OF RESPONDENTS:

PW1 : Smt.Kona Rajeshwari NONE PW2 : Kotha Srikanth Reddy

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 6 of 6

EXHIBITS MARKED

FOR PETITIONER

Regd.Sale Deed vide Doc.No.2990/2004 executed by Sri Y.V.Krishna Rao in favour of late Kona Rama Kishore Ex.A1 19.03.2004 (husband of petitioner) in respect of petition schedule property

Death Certificate of late Kona Rama Kishore (husband Ex.A2 16.08.2019 of petitioner) issued by the Registrar of Births and Deaths, Circle-II, GHMC

Ex.A3 Aadhar Card of the petitioner

Birth Certificate of the minor Master Kona Surya Sri Ex.A4 04.07.2007 Raghava issued by the Registrar of Births and Deaths, Rajahmundry

C.C of Judgment in OS.No.138/2020 passed by the V Addl.Junior Civil Judge, Kukatpally, declaring the Ex.A5 29.09.2021 petitioner and her minor sons as the legal heirs of late Kona Rama Kishore

Encumbrance Certificate issued by the Sub-Registrar, Ex.A6 Pedda Amberpet in respect of petition schedule property

Ex.A7 08.02.2023 Market Value Certificate issued by the Sub-Registrar, Pedda Amberpet, Ranga Reddy District

FOR RESPONDENTS: NIL

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

PDJ, RRD

GWOP No.39 of 2023 Dt.31.07.2023 Page 7 of 6