Smt.c.ratna Padmavathi

1 A.S.No.184 of 2018

IN THE COURT OF THE XXVI ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT AT HYDERABAD

Present: SMT. C. RATNA PADMAVATHI, XXVI Additional Chief Judge, City Civil Court, Hyderabad.

Wednesday, the 24th day of April, 2019.

A.S.No.184 of 2018

Between: Smt. Maryam Zamani, W/o. Late Syed Jalal, Aged about 64 years, Occ: Household, R/o.H.No.16-4-248/A/1, Chanchalguda, Hyderabad. … Appellant/Plaintiff.

AND

The Principal Accountant Genral (Civil Audit), General and Social Sector Audit A.G. Office Audit, Saifabad, Hyderabad. … Respondent /Defendant

APPEAL AGAINST THE JUDGMENT AND DECREE DATED 24.07.2018

IN O.S.NO.2406 of 2017 PASSED BY THE LEARNED

XX JUNIOR CIVIL JUDGE, CITY CIVIL COURT, AT HYDERABAD

O.S.NO.2406 of 2017

Between: Smt. Maryam Zamani, W/o. Late Syed Jalal, Aged about 64 years, Occ: Household, R/o.H.No.16-4-248/A/1, Chanchalguda, Hyderabad. … Plaintiff.

AND

The Principal Accountant General (Civil Audit), General and Social Sector Audit A.G. Office Audit, Saifabad,

Hyderabad. ...Defendant.

This Appeal suit is coming on 27.03.2019 before me for final hearing in the presence of Sri Amol Rajeshwarkar, Advocate for the Appellant/Plaintiff and of Sri P. Narayana, Advocate for Respondent/Defendant and upon hearing and the matter having stood over for consideration till this day, the Court delivered the following:- 2 A.S.No.184 of 2018

J U D G M E N T

1.This is an appeal preferred by the appellant/plaintiff against the Judgment and Decree dated 24.07.2018 in O.S.No.2406 of 2017 of the learned XX Junior

Civil Judge, City Civil Court, Hyderabad.

2.For the sake of convenience the parties are arrayed as plaintiff and defendant as arrayed in the lower court.

3.The plaintiff filed the main suit seeking for the relief to declare her as the legally wedded wife of Syed Jalal and to direct the defendant for sanction of family pension of late Syed Jalal in favour of the plaintiff.

4.The brief averments in the plaint are that the plaintiff is legally wedded wife of Syed Jalal and their marriage was solemnized on 23.05.1998 as per the customs and traditions prevailed in Islam Religion at Chanchalguda, Hyderabad which was performed by Murshid(Religious Priest) by name Syed Dilawar

Maqssood Zamani and attended by the other relatives and the said marriage was recorded by a Qazi in the presence of attesting witnesses and thereafter the marriage certificate was issued by Anjuma Mahadavia and thereafter a separate marriage certificate was issued by A.P. State Wakf Board, Hyderabad. The 1st wife of Syed Jalal by Smt. Kadbano died on 18.02.1997 and out of the 1st wedlock Syed Jalal had two children namely Syed Zainulabideen(son) and

Farah Sultana(daughter) and when those children are young Syed Jalal married the plaintiff. While so, Syed Jalal retired from Central Government service in the office of the defendant and took voluntary retirement on 30.11.2008 one month before attaining the age of superannuation and he received all his 3 A.S.No.184 of 2018 retirement benefits and he was also drawing the pension and he died on 16.04.2010 in a road accident. After the death of Syed Jalal, plaintiff made a representation to the defendant office for granting of family pension and thereafter the defendant office issued a letter dated 11.01.2011 asking the defendant to furnish the information about the 1st marriage of Syed Jalal and also about his first wife by name Kadbano and accordingly the plaintiff furnished the copy of death certificate of Kadbano to the defendant office. But, as the plaintiff’s husband did not obtain CGHS card after his retirement, the plaintiff also made an application to the Tahsildar, Charminar Mandal for issuance of family members certificate and after due enquiry Tahsildar Charminar issued a family member certificate to plaintiff duly reflecting the name of the plaintiff and son and daughter of plaintiff as legal heirs of Syed Jalal.

5.The plaintiff submitted a report to the defendant on 19.06.2013 along with family member certificate issued by Tahsildar and also the marriage certificate issued by Tahsildar, Charminar along with death certificate of 1st wife of Syed

Jalal and the defendant office verified the above referred documents and got enquired into the genuinity of those documents and found that all docuemnts as genuine and are issued by the competent authority, but rejected the claim of the plaintiff for claim of family pension through their letter dated 20.12.2013 on the ground that the name of the plaintiff is not mentioned by Syed Jalal in the list of family members during his service (or) after his retirement and merely on the ground that Syed Jalal out of ignorance (or) carelessness (or) due to over sight has not mentioned the plaintiff’s name in the service record is not a 4 A.S.No.184 of 2018 reason/ground for rejection of the family pension to the plaintiff when the plaintiff has established her marriage with Syed Jalal. Aggrieved by the rejection of her claim the plaintiff filed O.A.No.183 of 2014 on the file of Central

Administrative Tribunal, Hyderabad for quashing of rejection order issued by the defendant dated 20.11.2013 but the same was dismissed on 10.11.2015 and aggrieved by the said order the plaintiff field writ petition No.40789 of 2015

before the Hon’ble High Court of Judicature at Hyderabad, wherein the Hon’ble

High Court advised the plaintiff to approach the competent civil court to establish the marriage of the plaintiff with Syed Jalal. Hence the suit.

6.The defendant resisted the suit by filing written statement admitted that plaintiff has submitted a marriage certificate issued by the Wakf Board and thereupon the office of the defendant requested the A.P. State Wakf Board vide letter dated 29.01.2013 to confirm the genuineness of the certificate and also requested to send a joint photograph of Syed Jalal and the plaintiff and thereupon the Wakf Board vide letter dated 08.03.2013 stated that the certificate was issued by them and further stated that their office is not having any joint photograph of Syed Jalal and plaintiff. Further admitted that the plaintiff has submitted her marriage certificate and death certificate of Smt. Kad Banu. The defendant further admitted that the plaintiff has submitted the family members certificate issued by Tahsildar, Charminar and the genuineness of marriage certificate and family members certificate was also verified to which the

Tahsildar Charminar under vide letter dated 12.07.2013 stated that the family members certificate was issued by him but it is not known on what strength the 5 A.S.No.184 of 2018 said family members certificate was issued as the Tahsildar, Charminar vide memo dated 20.02.2012 initially addressed to the plaintiff that her name was not mentioned in the health card and ration card and asked to produce the family member particulars or any other Government issued Identity Card containing the joint photograph of the plaintiff and Syed Jalal but the plaintiff in her reply

dated 19.06.2013 stated that she does not have any government issued identity

proof. The defendant further contended that the said Syed Jalal took voluntary retirement on 03.11.2008 F.N, while submitting pension forms, he has not intimated this office regarding his second marriage with Smt.Maryam Zamani on 23.05.1998 and he has not given his spouse name for sanction of family pension. The defendant also set forth the rules governing sanction of family pension in their written statement and further contended that her request for family pension has not considered as her name was never mentioned in the list of family members during the service (or) after the retirement of Syed Jalal and has not disputed the orders of the Central Administrative Tribunal in

O.A.No.183 of 2014 and also the orders of the Hon’ble High Court in the writ petition No.40789 of 2015. The defendant further contended that for the consequential relief the plaintiff failed to pay the proper court fee for the said relief and further contended that the suit is bad for non-joinder and mis-joinder of parties and prayed for dismissal of the suit.

7.Basing on the respective pleadings of the parties, the trial court framed the following issues:

6 A.S.No.184 of 2018

1.Whether the plaintiff has proved her marriage with deceased Sri Syed Jalal by way of oral and documentary evidence beyond all reasonable doubt?

2.Whether the plaintiff is entitled to receive family pension of deceased Sri Syed Jalal from defendants office?

8.During the course of trial, on behalf of the plaintiff, PW.1 is examined and

Exs.A.1 to A.15 are marked. Whereas, on behalf of the defendant, DW.1 is examined and Exs.B.1 to B.5 are marked.

9.After considering the oral and documentary evidence on record, the court below has dismissed the suit without costs by its Judgment and Decree dated 24.07.2018.

10.Being aggrieved by the Judgment and Decree of the court below, the plaintiff preferred the present appeal on various grounds which are as follows:

1.The court below erred in dismissing the suit.

2.The finding of the court below that PW.1 is not having any document to connect with Syed Jalal which clearly shows non-performance of their marriage is perverse as Exs.A.3, A.8, A.12, A.13 to A.15 clearly connects PW.1 with her husband Syed Jalal and their marriage is proved.

3.Mere non intimation of their marriage by Syed Jalal in defendant’s office cannot be a ground for dismissal when once the plaintiff has proved her marriage by way of documentary evidence and the lower court erred in observing the election card is not filed. The appellant’s electoral card is filed and the same is marked as Ex.A.15.

4.The court below erred in coming to a conclusion that no Government documents are filed to connect the deceased Syed Jalal as Exs.A.14 and A.15 are issued by the Government only which directly connects PW.1 with late Syed Jalal and court below failed to consider Exs.A.12 and A.13 which are the admitted documents issued by the competent authority. The court below did not observe that 7 A.S.No.184 of 2018 there is no counter claim for family pension as in the cross examination DW.1 clearly admitted that the defendant office has not received any other claim for family pension of late Syed Jalal except PW.1. The non-availability of the joint photograph of appellant and late Syed Jalal cannot be and should not be fatal for appellant’s case.

5.The trial court given finding that Tahasildar, Charminar and CEO Wakf Board was not examined though the defendant office in writing confirming the issuance of the marriage certificate and the family members certificate by the competent authority and issuance of the same is admitted by the concerned authorities. The court below did not appreciate the fact that because Syed Jalal excluded the appellant name which resulted in filing of the suit and the said exclusion of appellant’s name cannot take away the right of appellant in seeking suit relief when the marriage of the appellant with Syed Jalal is proved.

6.The court below based it findings on mere surmises and conjuctures. The finding of the court below that the children of the 1st wife are not made as party and dismissed the suit on that ground is perverse as there was no pleading in the written statement of the defendant to that effect, but the court below committed error in giving sole importance to joint photograph of Appellant with late Syed Jalal by ignoring the documentary evidence i.e Exs.A.3, A.8, A.12, A.13 to A.15.

7.The court below wrongly observed that PWs.2 to 4 are interested witnesses but PW.3 is a priest who performed the marriage and not connected with the appellant at all.

8.The court below did not observe that the appellant and Syed Jalal was at advance age performed their marriage and in those circumstances, there is no performance of marriage with grand manner and the Judgment and decree of the court below is erroneous and is liable to be set aside.

11.In appeal, no evidence was adduced by either party and no documents are marked.

12.Considering the contentions of both the parties, the following point is framed for determination.

“ Whether the Decree and Judgment of the court below suffers from any illegality and warrants any interference (or) not?” 8 A.S.No.184 of 2018

13. POINT:-

The case of the plaintiff is that she is the legally wedded wife of Syed

Jalal and their marriage was performed on 23.05.1998 as per the customs and traditions prevailed in Islam Religion at Chanchalguda, Hyderabad after the death of the first wife of Syed Jalal by name Smt. Kadbano, who died on 18.02.1997. The said Syed Jalal took voluntary retirement in the year 2008 while working as Senior Assistant in the office of the defendant and thereafter died on 16.04.2010 in the road accident and thereafter the plaintiff submitted an application to the defendant for sanction of family pension but the defendant di- rected her to furnish information about the first marriage of Syed Jalal for con- sidering her application for grant of family pension and on that she furnished copy of the death certificate of 1st wife of Syed Jalal and also submitted the family member certificate issued by Tahsildar and also the marriage certificate issued by the said Wakf Board. The further case of the plaintiff is that the defendant after enquiry about the genuineness of the documents declined for sanction of family pension on the ground that her name is not shown in the list of family members by Syed Jalal during his service and after his retirement and aggrieved by the said rejection she filed OA.No.183 of 2014 on the file of

Central Administrative Tribunal, Hyderabad, but the same was dismissed on 10.11.2015 on the ground that there is no valid proof for their marriage. Being aggrieved by the said order she also filed a writ petition No.40789 of 2015 be- fore the Hon’ble High Court of Judicature at Hyderabad, wherein the Hon’ble

High Court has directed the plaintiff to approach the competent civil court to 9 A.S.No.184 of 2018 establish her marriage with Syed Jalal and hence sought for declaring her as the legally wedded wife of Syed Jalal.

14.On the other hand, the defendant contended that upon receipt of the mar- riage certificate from the plaintiff, the genuineness of the same was confirmed as the Wakf Board in its reply dated clearly stated that the said marriage certificate was issued by them and though a request was made for sending a joint photograph of Syed Jalal and plaintiff they stated they could not furnish the same as the office of the Wakf Board is not having joint photograph of

Syed Jalal and the plaintiff and though the family members certificate was also submitted by the plaintiff, but on what strength the family members certificate was issued was not known and the plaintiff failed to produce any identity proof like ration card, bank pass book joint account and as such, the identity of the plaintiff as 2nd wife of Syed Jalal is not established and her name was never mentioned in the list of family members during the service or after the retire- ment of Syed Jalal and in those circumstances, prayed for dismissal of the suit.

15.During the course of advancing the arguments the learned counsel for the appellant vehementally argued that merely on the ground that the name of the plaintiff is not shown by Syed Jalal in the list of the family members while he was in service and after his retirement is not a ground to disbelieve the marriage in between the plaintiff and Syed Jalal and to disbelieve her status as the legally wedded wife of Syd Jalal. If the name of the plaintiff is already mentioned in the list of family members during the service of Syed Jalal (or) after his retirement then there is no need or necessity for the plaintiff to knock the doors 10 A.S.No.184 of 2018 of the court of law and as the deceased has failed to intimate the same to the defendant the plaintiff is constrained to approach the court of law for a declaration to declare her as the legally wedded wife of Syed Jalal but the court below erroneously held that due to want of any joint photographs of the Syed

Jalal and the plaintiff and due to want of any government documents and due to want of any marriage photos, wedding card and non-inclusion of her name in the list of family members disbelieved the marriage in between the plaintiff and the Syed Jalal and drawn a wrong inference that the oral and documentary evidence produced by PW.1 have not proved the marriage which is erroneous and is liable to be set aside.

16.In support of the case of the plaintiff, the plaintiff herself is examined as

PW.1 and she reiterated the averments in the plaint and thereby deposed in support of her case.

17.The testimony of PW.1 clearly reveals that her marriage was performed with Syed Jalal on 23.05.1998 and the same was performed by the religious priest by name “Syed Dilawar Maqsood Zamani” and attended by the other relatives and the said marriage was recorded by a quazi after administering the oath in the presence of attesting witness and thereafter marriage certificate was issued by Anjuman Mahdavia and thereafter marriage certificate was issued by

A.P. State Wakf Board, Hyderabad. In that regard PW.1 relied upon Ex.A.3 confirmation letter issued by the Quazi and also relied upon Ex.A.12 original

Nikhanama and Ex.A.13 original marriage certificate issued by the State Wakf

Board. The testimony of PW.1 further reveals that the 1st wife of the Syed Jalal 11 A.S.No.184 of 2018 by name Kadbanu died on 18.02.1997. In that regard the PW.1 got marked the death certificate of Kadbanu as Ex.A.7 and whereas the death certificate of

Syed Jalal was marked as Ex.A.4. PW.1 further deposed that she even made an application to the Tahsildar, Charminar for issuance of family members certificate and after due enquiry, the Tahsildar Charminar issued the family members certificate to the plaintiff and PW.1 got marked Attested copy of family members certificate issued by Tahsildar, Charminar to the plaintiff dated 18.02.2012 as Ex.A.8. PW.1 further relied upon the attested copy of Aadhar card of plaintiff and attested copy of the voters identity card of plaintiff

Exs.A.14 and A.15 and on perusal of the same it is evident that those attested copies are marked after comparing the same with the original documents. PW.1 further deposed about the other facts which are pleaded in the plaint and about declining of family pension to her by the defendant on the ground that her name was not shown in the list of family members during the service (or) after the retirement of Syed Jalal despite of producing the relevant documentary evidence by her to prove that she is the legally wedded wife of Syed Jalal. On perusal of Ex.A.3 which is the confirmation letter given by Quazi by name

Syed Dilawar Maqsood Jamani it clearly reveals that he performed the marriage of the plaintiff that Syed Jalal on 23.05.1998 at Chanchalguda,

Hyderabad. Whereas, Ex.A.12 original Nikhanama which is in Urdu along with the translated copy reveals that the marriage of Syed Jalal was performed with the plaintiff on 23.05.1998 at Chanchalguda, Hyderabad and performed by the

Syed Dilawar Maqsood Zamni and the same is even attended by two witnesses 12 A.S.No.184 of 2018 who are no other than the own brothers of Syed Jalal. Whereas, Ex.A.13 marriage certificate issued by Wakf Board also clearly reveals that the marriage in between Syed Jalal and the plaintiff was performed on 23.05.1998 and whereas Exs.A.14 and A.15 which are the attested copies of Aadhar card and voter identity card which are marked after comparing with the originals reveals the husband’s name of the plaintiff as Syed Jalal and the place of residence of the plaintiff is the same address as mentioned in her chief affidavit. Therefore, the documentary evidence that is relied upon by the plaintiff is in support of her case. Thus PW.1 relied upon Exs.A.3, A.12, A.13 to A.15 to prove that she is the legally wedded wife of Syed Jalal. During the course of cross-examination of PW.1 the correctness of Exs.A.2, A.12 and A.13 to A.15 are no where denied or disputed.

18. On the other hand, in the written statement as well as in the chief affidavit of DW.1, it is clearly mentioned that the marriage certificate that was issued under Ex.A.13 by the A.P. State Wakf Board and the genuineness of the same is confirmed by the A.P. State Wakf Board upon the letter addressed by the defendant to A.P. State Wakf Board. So also the family member certificate that was issued by Tahsildar, Charminar is even admitted by the defendant in the written statement and as well as in the chief affidavit of DW.1 itself and the genuineness of the said family member certificate was confirmed by the

Tahsildar Charminar. Therefore, the defendants in their written statement itself clearly admitted that the genuineness of Exs.A.13 and A.8 are verified by the office of the defendant by addressing letters to the concerned who in turn 13 A.S.No.184 of 2018 intimated that those documents are issued by them only. Even DW.1 during the course of his cross examination categorically admitted as follows:

“It is true that ExsA.8 and A.13 genuineness if verified by the defendant by addressing letters to the issuing authorities and our office has reasonably confirmed the issuance of Ex.A.8 and A.13 by them.”

DW.1 further admitted that as follows:

“It is true that as per the directions under Ex.A.5 PW.1 produced Exs.A.7, A.12 and A.13 documents.”

Therefore the above said admissions of PW.1 lends support to the case of the plaintiff.

19.However, in order to prove the documents and also to prove her marriage with Syed Jalal, she examined the owner brothers of Syed Jalal who are the attesting witnesses to Ex.A.12 original Nikhanama as PWs.2 and 4 and both of them deposed on the same lines. The testimony of PWs.2 and 4 reveals that the deceased Syed Jalal is their brother and the 1st wife of Syed Jalal died on 18.02.1997 and after her death Syed Jalal married the plaintiff on 23.05.1998 at

Chanchalguda, Hyderabad which was attended by few people only as it was second marriage and the marriage was performed by Syed Dilawar Maqssood

Zamani and they have personally attended the marriage and signed on the marriage certificate (or) original Nikhanama issued by Anjuman Mahdavia i.e.

Ex.A.12. While cross-examining PWs.2 to 4 nothing material was elicited so as to disbelieve the testimony and the relationship in between PWs.2 and 4 and

Syed Jalal were not denied or disputed. So also the fact that PWs.2 and 4 attended the marriage of Syed Jalal and the plaintiff was not denied or disputed.

Thus the testimony of PWs.2 and 4 clearly establishes that they even personally 14 A.S.No.184 of 2018 attended the marriage of Syed Jalal with the plaintiff and even signed as witnesses which further lends support to the case of the plaintiff.

20.Further the plaintiff also examined the marriage priest as PW.3 and he clearly deposed that he performed the marriage of the plaintiff with Syed Jalal on 23.05.1998 at Chanchalguda, Hyderabad as per Muslims customs and rites and his name appears in the marriage certificate issued by Anjuman Mahdavia i.e Ex.A.12 and he also deposed about the issuance of confirmation letter under

Ex.A.3. While cross-examining PW.3 the fact that PW.3 is a marriage priest is no where denied or disputed and it was suggested to PW.3 that he never performed the marriage of Syed Jalal with plaintiff but the same was denied by him. Therefore, the testimony of PW.3 proves Exs.A.3, A.12 and so also the testimony of PWs.2 and 4 proves Ex.A.12. It is pertinent to note that the issuance of marriage certificate by the A.P. State Wakf Board in respect of marriage with Syed Jalal with plaintiff is not in dispute and the genuineness of the same is not in dispute. Therefore, it further lends support to Ex.A.12 and despite of cross-examination of PWs.1 to 4, nothing can be elicited so as to discredit the testimony of PWs.1 to 4. Therefore, the testimony of PWs.1 to 4 coupled with Exs.A.3, A.12, A.13 to A.15 and also Ex.A.8 clearly establishes the marriage in between the plaintiff and Syed Jalal. As admittedly the 1st wife of Syed Jalal is no more and she died long back on 18.02.1997 the plaintiff herein proved to be the legally wedded wife of Syed Jalal. Despite of producing abundant oral and documentary evidence the court below wrongly held that in the absence of any marriage photographs (or) wedding cards 15 A.S.No.184 of 2018 and in the absence of video it gives a suspicion about the marriage of the plaintiff with Syed Jalal is untenable, when once the marriage in between Syed

Jalal and the plaintiff is the 2nd marriage of Syed Jalal and he performed the same at late age and in a simple manner. Moreover the testimony of PWs.2 and 4 clearly reveals that the marriage was performed in a simple manner and only 15 persons attended the marriage. Therefore, merely on the ground of want of photographs, videos, wedding card and the name of the function hall is not a ground to disbelieve the factum of marriage in between Syed Jalal and the plaintiff. As it being a second marriage of Syed Jalal and late marriage, he got his marriage performed with plaintiff without any pomp and that itself is not ground to discard the oral and documentary evidence that is placed by the plaintiff.

22.Merely on the ground that the name of the plaintiff is not mentioned in the list of the family members by Syed Jalal while he was in service and after his retirement cannot be a ground to discard the abundant documentary evidence that is placed by the plaintiff and when once the genuineness of the said documentary evidence particularly Exs.A.13 and A.8 are even admitted by the defendants after due confirmation o their genuineness. Further the persons who attended the marriage and who are no other than the own brothers of Syed

Jalal and who signed as witnesses on Ex.A.12 Nikhanama deposed to prove the marriage in between Syed Jalal and the plaintiff herein and their names clearly reflects in Ex.A.12 as witnesses to the marriage. Further, the marriage priest who performed the marriage and even issued Ex.A.3 confirmation certificate to 16 A.S.No.184 of 2018 that effect even clearly deposed regarding performance of marriage in between the plaintiff and Syed Jalal. Therefore, the oral and documentary evidence on record clinchingly proves that the plaintiff herein is the legally wedded wife of

Syed Jalal. Therefore, the observations and findings of the court below are improper and erroneous. The court below ought to have considered the oral and documentary evidence that is placed by the plaintiff in proof of her marriage but the court below have ignored the same and came to a wrong conclusion that the very performance of marriage is suspicious in view of want of photos and videos and other identity proofs issued by Government Department by ignoring the fact that Exs.A.14 and A.15 are nothing but Aadhar card and voter

I.D card which are issued by the Government department only which further probalizes the case of the plaintiff. Thus the findings of the court below are erroneous and is not in accordance with law and warrants interference in this regard. Hence, the impugned judgment to that extent is liable to be set aside.

23.However, the plaintiff also sought for the consequential relief of directing the defendant for sanction of family pension in favour of the plaintiff which is beyond the scope of civil court as per Section 2(q) and 3(q) of Administrative

Tribunals Act, 1985. The cases relating to grant of pension, family pension and other related matters are to be dealt with by the tribunal. In those circumstances, the plaintiff is not entitled for the said consequential relief as it is beyond the scope of civil court. However the plaintiff is at liberty to approach the defendant for sanction of family pension basing on the relief of declaration that is granted by this court declaring her as the legallywedded wifeof 17 A.S.No.184 of 2018

Syed Jalal. In those circumstances, the Judgment and Decree of the court be- low is liable to be set aside only to the extent of the relief of declaration that is sought by the plaintiff to declare her as legally wedded wife of Syed Jalal.

24. In the result, the appeal is allowed partly declaring that the plaintiff/ appellant as the legally wedded wife of late Syed Jalal by setting aside the

Judgment and Decree dated 24.07.2018 in O.S.No.2406 of 2017 passed by the learned XX Junior Civil Judge, City Civil Court, Hyderabad to that extent and the rest of the claim is dismissed.

No order as to costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on Wednesday, the 24th day of April, 2019.

Sd/-

X XVI Additional Chief Judge City Civil Court, Hyderabad.

APPENDIX OF EVIDENCE:

-Nil-

Sd/-

XXVI Additional Chief Judge City Civil Court, Hyderabad.

IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, AT SECUNDERABAD.

Present : Smt. C.Ratna Padmavathi,

XXVII Addl. Chief Judge

DATED THIS THE 04th DAY OF OCTOBER, 2023

O.S.NO. 66 OF 2019

Between:

1. Smt.Y.Krishna Kumari, W/o.Late Sri.Y.Shyam Sundar, D/o.Late Sri.K.P.Rajaiah, aged about 75 years, Occ:Retd. Government Employee, R/o.Flat No.1404, 14th foor, Elite Apartments, J.P.Nagar, Bangalore.

2. Smt.Dr.K.Susheela, W/o.K.C.Srinivasulu, D/o.Late Sri.K.P.Rajaiah, aged about 72 years, Occ:Retd.Government Employee, R/o.Flat No.1, Aditya Apartments, Krishnapuri Colony, West Marredpally, Secunderabad.

3. Smt.E.Usha Kumari, W/o.Sri.E.D.Sarovaram, D/o.Late Sri.K.P.Rajaiah, aged about 60 years, Occ:Retd. Government Employee, R/o.H.No.1-7-506, Bakaram, Musheerabad, Hyderabad.--Plaintifs A N D

1. K.Prem Kumar, S/o.Late Sri.K.P.Rajaiah, aged about 73 years, Occ:Retd.Govt. Employee, R/o.HIG No.268, KPHB Colony, Phase 6, Kukatpally, Hyderabad – 500 072.

2. K. Achyut Kumar, S/o.Late Sri.K.P.Rajaiah, aged about 70 years, Occ:Retd.Govt. Employee, R/o.Plot No.46, Jalvayu Vihar Colony, Kukatpally, Hyderabad – 500 072.

3. Smt.K.Laxmi Devi, W/o.Late Sri.K.Vijay Kumar (Since died on 16.6.2023 the daughter being legal heir of defendant

No.3 Is on record as defendant No.4) (Amended as per memo dt.13.07.2023).

4. Ms.K.Veena Rajeswari, D/o.Late Sri.K.Vijay Kumar, aged about 38 years, Occ:Govt.Employee.

Both defendants No.3 & 4 are R/o.H.No.6-1-149/11, Walker Town, Padma Rao Nagar, Secunderabad – 500017. --Defendants

This suit is coming on this day before me for fnal hearing in the presence of Sri. V.Srihari, Advocate for the plaintifs and of Sri. G.Anand Kumar, Advocate for Defendants No. 1 & 2, and Sri.B.Rama Subramanyam, Advocate for defendant No.4 and defendant No.3 died, and the matter having been heard and stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

1.This is a suit fled by the plaintifs seeking for the relief of partition of the plaint schedule proeprty into six equal shares and for allotment of 1/6th share each to the plaintifs No.1 to 3 and for perpetual injunction restraining the defendants from alienating any portion of the plaint schedule property.

2.The brief averments in the plaint are as follows :

That the plaintifs No.1 to 3 and as well as defendants No.1 & 2 and their brother Late Sri.K.Vijay Kumar are the children of one “Late Sri.K.P.Rajaiah and Smt.K.Lalitha”. The said Late

Sri.K.P.Rajaiah during his life time purchased an open plot admeasuring 504.0 sq.yards in Sy.No.28 at Padmaraonagar,

Secunderabad under a registered sale deed dt.25.04.1963. Later he obtained permission from Municipal Corporation, Hyderabad vide permission No.39/E of 1963-64 dt.13.11.1963 for construction of house on the said plot and accordingly constructed a house therein which was assigned door No.6-1-149/11 i.e. the plaint schedule property. The said Late Sri.K.P.Rajaiah subsequently died intestate on 01.10.1978 leaving behind his wife, the plaintifs and his three sons i.e. defendants No.1 & 2 and one K.Vijay Kumar as his legal heirs to succeed his estate. Subsequent thereto, the wife of Late

Sri.K.P.Rajaiah by name “Smt.K.Lalitha” died on 05.02.2002.

Whereas his younger son “Sri.K.Vijay Kumar” died on 06.02.1999 by leaving behind the defendants No.3 & 4 as his legal heirs.

It is further asserted in the plaint that in view of the death of their brother “Sri.K.Vijay Kumar”, the defendants No.3 & 4 who are his wife and daughter were permitted to stay in the schedule property for reasonable period till they become normal from the loss of said “Sri.K.Vijay Kumar” and later to divide the schedule property into six equal shares as such they are deemed to be in joint possession and enjoyment of the schedule property. Later the defendants No.1 & 2 and as well as defendants No.3 & 4 are not coming forward for partition despite of the request made by the plaintifs in the past two years for partition of the schedule property, but of no avail. Hence the plaintifs got issued legal notice on 02.02.2018 calling upon the defendants for partition of the plaint schedule property, but the defendants failed to comply the demand.

Hence the suit.

3.The defendants No.1 & 2 fled their separate written statement. Whereas the written statement fled by defendant No.3 was adopted by defendant No.4.

4.The defendants No.1 & 2 are sailing with the plaintifs and fled the admitted written statement admitting the claim of the plaintifs for allotment of 1/6th share each to the parties in the schedule property.

Whereas the defendant No.3 in her written statement admitted the relationship in between the parties and further admitted that “Late Sri.K.P.Rajaiah” during his life time initially purchased a house plot admeasuring 504.0 sq.yards and subsequently constructed a house therein i.e. the suit schedule property and paying the taxes.

The defendant No.3 further admitted that said Late

Sri.K.P.Rajaiah died on 01.10.1978 and his wife died on 05.02.2002 and his younger son Sri.K.Vijay Kumar died on 06.02.1999.

They mainly contended that after the death of “Sri.K.Vijay

Kumar” the defendant No.1 performed the marriage of defendant

No.4 and at that time the defendants No.1 & 2 stated in the presence of Sri.Gangaiah and Smt.Suganda that all the gold ornaments and silver are shared to plaintifs No.1 to 3.

They further contended that defendants No.3 & 4 are staying in the suit schedule property and regularly paying the property tax and water tax etc., and having adverse possession over the same and as such there is no cause of action for the suit and the court fee paid by the plaintifs is insufcient and prayed for dismissal of the suit.

5.During the pendency of the suit the defendant No.3 died being survived by defendant No.4 as sole surviving legal heir and the same is accordingly recorded and neat copy of the plaint is fled.

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

1) Whether the plaintifs are entitled for preliminary decree for partition of the plaint schedule property as prayed for ?

2) Whether the plaintifs are entitled for

consequential injunction as prayed for ?

3) Whether the court fee paid by plaintifs is

insufcient as contended by defendant No.3 ?

4) To what relief?

7. During the course of trial, on behalf the plaintifs, PW.1 is examined and Ex.A1 to Ex.A10 are marked. Whereas on behalf of the defendants, Dws.1 to 4 are examined and Ex.B1 to Ex.B22 are marked.

8.Heard both sides.

The learned counsel for the plaintifs submitted that admittedly the plaintifs as well as the defendants No.1 & 2 and their brother “Sri.K.Vijay Kumar” are the children of Late

Sri.K.P.Rajaiah and the plaint schedule property is the self acquired property of their father Late Sri.K.P.Rajaiah who died intestate on 01.10.1978 and his wife died on 05.02.2002. Consequently the plaintifs No.1 to 3 being the daughters of said Late Sri.K.P.Rajaiah are entitled for equal share over the plaint schedule property as per

Section 8 of Hindu Succession Act, 1956 and thereby there are entitled for 1/6th share therein and the cause of action for the suit arose from the date of issuance of legal notice. He further submitted that the claim of the defendants No.3 & 4 is devoid of proof and the documentary evidence that is relied upon by the defendants i.e.

Ex.B1 to Ex.B19 only stands in the name of Late Sri.K.P.Rajaiah and as such the said documentary evidence is no way helpful to establish the exclusive possession and enjoyment of defendants

No.3 & 4 by excluding the plaintifs as well as defendants No.1 & 2 and as such they are deemed to be in joint and constructive possession of the schedule property and are entitled for the suit relief.

On the other hand the learned counsel for the defendants

No.3 & 4 mainly submitted that the defendants No.3 & 4 are in possession and enjoyment of the schedule property and made it habitable and also regularly paid the property taxes till date and besides that the husband of defendant No.3 Sri.K.Vijay Kumar and as well as defendants No.3 & 4 rendered countless services to his parents and the plaintifs as well as the defendants No.1 & 2 never bothered about the welfare of their parents and after the lapses of more than 30 years and after the death of their father Late

Sri.K.P.Rajaiah, they made the present claim as there is hike of prices of the immovable properties and as such their claim is not justifed after lapse of 30 years and prayed for dismissal of the suit.

The learned counsel for defendants No.3 & 4 also argued if the property is liable for division then more share is to be allotted to defendant No.4 being the daughter of Sri.K.Vijay Kumar for the services rendered by her father i.e. Sri.K.Vijay Kumar during his life time besides paying the property taxes regularly which needs to be considered while disposing the present suit.

9.ISSUE NO.1: Whether the plaintifs are entitled for

preliminary decree for partition of the plaint schedule

property as prayed for ?

The plaintifs herein are seeking for partition of the plaint schedule property and for allottment of 1/6th share each therein by contending that the plaint schedule property is the self acquired

property of their father Late Sri.K.P.Rajaiah who died

intestate on 01.10.1978 leaving behind his wife and children as his surviving legal heirs and their mother also died subsequently on 05.02.2002 and their brother “Sri.K.Vijay Kumar” also died on 06.02.1999, consequently the schedule property is liable for partition.

On the other hand, the defendants No.1 & 2 are sailing with the plaintifs and admitting the claim of the plaintifs.

Whereas defendants No.3 & 4 who are the wife and daughter of the deceased “Sri.K.Vijay Kumar” are contending that they are in possession and enjoyment of the schedule property since long time and having adverse possession over the same and denied the claim of the plaintifs. In view of the respective contentions of the parties, it is for the plaintifs to establish their case by virtue of oral and documentary evidence as Section 101 and 102 of Indian Evidence

Act, 1872.

10.In support of the case of the plaintifs, the plaintif No.2 is examined as PW.1, and Ex.A1 to Ex.A10 are marked on behalf of the plaintifs.

There is no dispute with regard to the relationship in between the parties and admittedly the plaintifs and the defendants

No.1 & 2 and their brother “Sri.K.Vijay Kumar” are the

children of Late Sri.K.P.Rajaiah.

PW.1 during the course of her chief examination reiterated the plaint averments and her entire chief examination is nothing but mere replica of the plaint averments.

11.As per the plaint pleadings and as per the evidence of PW.1, their father Late Sri.K.P.Rajaiah originally purchased open plot admeasuring 504.0 sq.yards in Sy.No.28, at Padmaraonagar,

Secunderabad under a registered sale deed dt.25.04.1963 and subsequently he obtained permission from MCH and constructed a house therein i.e. plaint schedule property. Therefore the plaint schedule property is the self acquired property of Late

Sri.K.P.Rajaiah. In support of the same, PW.1 relied upon Ex.A1/CC of the sale deed dt.25.04.1963 which stands in the name of Late

Sri.K.P.Rajaiah.PW.1furtherrelieduponEx.A8&

Ex.A9/Encumbrance certifcates to shows that the schedule property is free from encumbrances.

In this context the material admissions of DW.2(defendant

No.4) are relevant. DW.2 during the course of her cross examination categorically admitted as follows:

“It is true that the suit schedule property is the self acquired property of my grandfather”

“Originally my grandfather purchased open land and

subsequently constructed a house therein”.

Thus the said material admissions of DW.2 lends support to the case of the plaintifs. Even DW.1 who is no other than the defendant No.1 and brother of the plaintifs in his evidence admitted the claim of the plaintifs which further lend support to the evidence of PW.1.

12. The testimony of PW.1 further reveals that the wife of “Late

Sri.K.P.Rajaiah” by name Smt.K.Lalitha, who is no other than the mother of the plaintifs and that of the defendants No.1 & 2 died on 05.02.2002 and got marked her death certifcate as Ex.A3. As per her testimony their younger brother Sri.K.Vijay Kumar died on 06.02.1999 and she got marked Ex.A4 the death certifcate of

Sri.K.Vijay Kumar in proof of the said fact. Thus it is evident from the oral and documentary evidence on record that the father of the plaintifs Late Sri.K.P.Rajaiah died intestate by leaving behind the schedule property which is his self acquired property.

13. In this context even DW.2 clearly admitted during the course of her evidence as follows:

“My grandfather has not executed any Will Deed during his life time “

“The suit schedule property was not partitioned among

the children of Late Sri.K.P.Rajaiah”.

The said material admissions of DW.2 lend support to the case of the plaintifs and is sufcient to establish that the plaintifs

and defendants No.1 & 2 and their younger brother

“Sri.K.Vijay Kumar” succeeded the plaint schedule property

from their father Late Sri.K.P.Rajaiah, being the class-I legal

heirs as per Section 8 of the Hindu Succession Act, 1956.

Therefore the property is liable for partition among the

children of Late Sri.K.P.Rajaiah as he died intestate.

The defendants No.3 & 4 though contended that they are in possession and enjoyment of the suit schedule property and acquired adverse possession over the same, but the plea of adverse possession is not sustainable against the other co-sharers when particularly the property in question still stands in the name of “Late

Sri.K.P.Rajaiah” and Ex.B1 to Ex.A19 relied upon by DW.2 probablizes the said fact.

14.On the other hand the plea of the plaintifs is that the defendants No.3 & 4 are staying in the schedule property in view of the demise of their younger brother Sri.K.Vijay Kumar to stay for a reasonable time. In this context the material admission made by

DW.2 is relevant which is as follows:

“It is true that after the death of our father, the

plaintifs No.1 & 2 permitted me and my mother to stay in

the schedule property”

The said material admission of DW.2 itself nullifes their plea and clearly establishes the contention of the plaintifs that the defendants No.3 & 4 are permitted to stay in the schedule property.

Therefore they cannot assert any exclusive possession over

the schedule property to the exclusion of the other sharers

and their plea is not tenable.

15.During the course of evidence, the defendants No.3 & 4 have set forth a plea that after the death of Sri.K.Vijay Kumar, the defendant No.1 stated before the elders that the schedule property belongs to three brothers only and examined DW.3 & DW.4 in this regard. They deposed in one voice that the defendants No.1 & 2 at the time of marriage of defendant No.4 made a oral promise that the schedule property will be divided among the three brothers and 1/3rd share will be allotted to defendant No.4 who is the only daughter of “Sri.K.Vijay Kumar”. But DW.1 who is no other than the defendant No.1 clearly denied the same and denied the alleged oral promise. The said plea set up by DW.4 appears to be an after thought as there is no pleading to that efect in the written statement. Even other wise, the plaintifs No.1 to 3 who are

no other than the daughters of Late Sri.K.P.Rajaiah never

relinquished their rights over the schedule property by

virtue of any registered document. Consequently the alleged promise if any made by defendant No.1 will not withstand.

Therefore the testimony of DW.3 & DW.4 is of no help to defendant

No.4.

16.The learned counsel for defendants No.3 & 4 submitted that

Sri.K.Vijay Kumar and his family i.e. defendants No.3 & 4 used to take care of the mother of Sri.K.Vijay Kumar by nursing her and he even took the responsibility of plaintif No.3 and in view of the services rendered by Sri.K.Vijay Kumar and his family members, the defendant No.4 who is no other than the only daughter of Sri.K.Vijay

Kumar is entitled for extra share in the schedule property as they kept the schedule property in a habitable condition by taking over the responsibility of the said house property.

On the other hand the learned counsel for the plaintifs submitted that the defendants No.3 & 4 are permitted to stay in the property without paying rents and there is absolutely no evidence on record to prove that they rendered services to the mother of the plaintifs during her last days and merely on the ground of rendering services they cannot make any claim for an extra share in the schedule property as the parties are governed by Section 8 of the Hindu Succession Act, 1956. I fnd force in the submission of the plaintifs counsel and the plaintifs as well as the defendants

No.1 & 2 and their younger brother Sri.K.Vijay Kumar who are the children of Late Sri.K.P.Rajaiah are entitled for equal share in

the schedule property by virtue of Section 8 of the Hindu

Succession Act, 1956. Hence the submissions of the defendants counsel holds no substance.

17.For the foregoing reasons there is no hesitation to hold that the schedule property is liable for partition and the plaintifs are entitled for equal share therein i.e. 1/6th share each on par with defendants No.1 & 2 and the defendant No.4 who is the surviving legal heir of defendant No.3 is also entitled for 1/6th share being the share of her deceased father Sri.K.Vijay Kumar. Accordingly this issue is decided.

18.ISSUE NO.2: Whether the plaintifs are entitled for consequential injunction as prayed for ?

The plaintifs sought for the relief of injunction restraining the defendants from alienating any portion of the schedule property which is in the nature of an interim relief. Moreover the law is

well settled that no injunction can be granted against the

co-sharer. Therefore no injunction can be granted in favour of the plaintifs. Accordingly this issue is decided.

19.ISSUE NO.3: Whether the court fee paid by plaintifs is insufcient as contended by defendant No.3 ?

The other contention of defendants No.3 & 4 is that they are in possession and enjoyment of the suit schedule property and as such the court fee paid U/Section 34(2) of APCF & SV Act, is not sufcient (adopted by Telangana State). On the other hand the plaintifs are contending that the plaintifs being the co-sharers are deemed to be in joint and constructive possession of the schedule property and as such the court fee is properly paid.

Admittedly the plaintifs are the co-sharers, therefore the possession of one of the co-sharer will be deemed to be the possession of the other co-sharers and the other co-sharers are deemed to be in constructive possession of the schedule property.

Therefore the suit is properly valued and the court fee is properly paid U/Section 34 (2) of the APCF and SV Act. Accordingly this issue is decided.

20.ISSUE NO.4: To what relief ?

As issues No.1 to 3 are decided in favour of the plaintifs, the plaintifs are entitled for the relief of partition of the plaint schedule property and for allotment of a share therein i.e. 1/6th share each.

21.In the result the suit is preliminarily decreed in part in favour of the plaintifs and the plaintifs No.1 to 3 are entitled for 1/6th share each in the plaint schedule property on par with defendants

No.1 & 2 and defendant No.4 (being the sole surviving legal heir of defendant No.3 and Late K.Vijay Kumar) is also entitled for 1/6th share in the suit schedule property.

Rest of the claim for the relief of injunction is dismissed.

The parties shall bear their own costs.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 04th day of October, 2023.

Sd/-

XXVII Addl. Chief Judge,

City Civil Court, Secunderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS :

PW.1 : Dr.K.Susheela

FOR DEFENDANTS :

DW1 : K.Prem Kumar

DW2 : K.Veena Rajeswari

DW3 : N.Ramadevi

DW4 : M.Suguna

DOCUMENTS MARKED

FOR PLAINTIFFS:-

Ex.A1 -Certifed copy of the sale deed dt.25.04.1963 vide doc.No.632/1963.

Ex.A2 -Death certifcate of K.P.Rajaiah issued on 19.12.2018.

Ex.A3 -Death certifcate of Smt.Lalitha issued on 07.02.2019.

Ex.A4 -Death certifcate of K.Vijay Kumar issued on 22.12.2018.

Ex.A5 -Ofce copy of the legal notice dt.02.02.2018.

Ex.A6 -Postal receipts (4 in numbers)

Ex.A7 -Postal acknowledgment (4 in numbers)

Ex.A8 -Encumbrance certifcate dt.01.12.2018.

Ex.A9 -Encumbrance certifcate dt.15.02.2019.

Ex.A10 -Market value certifcate dt.08.02.2019.

FOR DEFENDANTS :

MARKED THROUGH DW.2:

Ex.B1 -Mee seva copy of property tax receipt dt.30.11.2002

Ex.B2 -Property tax receipt dt.22.07.2006.

Ex.B3 -Property tax demand notice dt.14.08.2008.

Ex.B4 -Mee seva copy of property tax receipts dt.08.10.2008.

Ex.B5 -Property tax demand notice dt.22.06.2009.

Ex.B6 -Mee seva copy of property tax receipts dt.07.08.2009.

Ex.B7 -Property tax receipt dt.27.08.2010.

Ex.B8 -Property tax demand notice for the year 2012-2013

Ex.B9 -Property tax payment receipt for the year 2012-2013 dt.16.08.2012.

Ex.B10 -Property tax payment receipt for the year 2017-2018 dt.22.02.2018.

Ex.B11 -Property tax payment receipt for the year 2018-2019 dt.11.03.2019.

Ex.B12 -Mee seva copy of property tax receipts dt.10.05.2022.

Ex.B13 -Disconnection notice dt.01.12.1999

Ex.B14 -Demand notice dt.20.01.2001 issued by HMWS & SB.

Ex.B15 -Water tax payment receipt dt.03.08.2002.

Ex.B16 -Water tax payment receipt dt.01.09.2002.

Ex.B17 -Water tax payment receipt dt.24.08.2003

Ex.B18 -Electricity consumption bill dt.06.11.2002.

Ex.B19 -Electricity consumption bill dt.03.06.2016.

Ex.B20 -Death certifcate of K.Vijay Kumar.

Ex.B21 -True copy of Aadhar card of defendant No.3(verifed with original)

Ex.B22 -True copy of Aadhar card of defendant No.4 (verifed with original)

Sd/-

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

// TRUE COPY //

BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-

COURT OF THE XXVII ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT,

AT SECUNDERABAD.

Present : Smt. C.Ratna Padmavathi,

Chairman MACT-cum-XXVII ACJ

DATED THIS THE 04th DAY OF SEPTEMBER, 2023

M.V.O.P. NO. 737 OF 2019

Between:

Enja Jacob S/o.E.Mallaiah, aged about 54 years, Occ: Mechanic in TSRTC, R/o.H.No.3-5/24, Bollaram, Secunderabad. --Petitioner

A N D

1. A.P.Titus, S/o.A.S.Prasangi, aged:Major, Occ:Driver. R/o.H.No.6-4, Sowbagya Nilayam, Near Gandhi Chowk, Jadcharla, Mababubnagar, Telangana – 509301.

2.Doddi Satya Vineela, D/o AP Moses, aged:Major, Occ:Business, R/o.H.No.1-29/6/C, Baba Nagar, Jadcherla, Mahabubnagar, Telangana – 509301.

3. M/s HDFC ERGO General Insurance Co. Ltd. Rep. by its General Manager, Opp: Jalagam Vengal Rao Park, Road No.1, Upper Floor of Scatia Bank, Banjara Hills, Hyderabad - 500034. --Respondents

Counsel for Petitioner :Sri P.Srinivas, Advocate

Respondents No.1 and 2 :Remained Exparte

Counsel for Respondent No.3 :Sri M.Madhava Reddy, Advocate

This petition coming for fnal hearing before me in the presence of the above counsels on record and after hearing them and the matter having stood over to this day for consideration, this Tribunal has made the following:-

O R D E R

1.This is a claim petition fled by the petitioner under Sec.166 of

Motor Vehicles, Act, 1988 seeking for compensation of Rs.4,00,000/- (Rupees Four Lakhs only) for the injuries he received in motor vehicle accident that took place on 17.09.2017 near Moulali, Malkajgiri.

2. The brief averments in the petition are as follows:-

That on 17.09.2017, the petitioner/injured alongwith his wife was proceeding from HB colony, Moulali towards ZTC on their motor cycle bearing No.TS-08-ET-8974 as rider and pillion rider and when they reached near Eveready Battery Company, Moulali, then the driver of Car bearing No. TS-06-ED-0277 drove the same in a rash and negligent manner with high speed and dashed against their motor cycle, due to which they fell down and sustained grievous injuries all over his body. Immediately, they were shifted to “Praja Sai Hospital”

Ashok Nagar, Hyderabad where he was treated as inpatient and undergone surgeries. Thereupon, PS Malkajgiri registered a case in

Crime No.715/2017 for ofence under Sec.337 IPC and Section 338 IPC.

Hence, the present claim was made by the claimant seeking for compensation of Rs.4,00,000/- from Respondents No.1 to 3, who are the Driver, Owner and Insurer of the crime vehicle on the ground that he sustained grievous injuries all over the body. He was working as

Mechanic in TSRTC and drawing salary of Rs.30,000/- per month, and he contributed the said amount entirely to his family, but due to the said accidental injuries and consequences he became permanently disabled person. Hence, the petition.

3.Respondents No.1 and 2, who are driver and owner of the crime vehicle remained exparte.

4.Whereas, Respondent No.3/Insurer contested the claim petition by fling its counter denying the material averments in the claim petition by contending that the driver of the ofending vehicle was not having any valid and efective driving license at the time of the accident and the accident occurred solely due to the rash and negligent driving of the rider of the motor cycle bearing No.TS-08-ET- 8974. The petition is not maintainable for non-joinder of necessary parties i.e. owner and insurer of the motor cycle. The further contention of the respondent No.3 is that the compensation amount claimed by the petitioner is excessive and prayed for dismissal of the petition.

The Respondent No.3/Insurance Company also fled a petition under Sec.170(b) of the Motor Vehicles Act, in I.A.No.1391 of 2023 and is permitted to raise all the defences that are available to the owner of the crime vehicle i.e. Respondent No.2.

5. Basing on the respective pleadings of the parties, the

following issues were settled for trial by my Predecessor-in-

Ofce :-

1) Whether the petitioner sustained injuries in the

road trafc accident due to rash and negligent

driving of CAR bearing No.TS-06-ED-0277 by its

driver ?

2) Whether the petitioner is entitled for

compensation on account of injuries sustained

by him, if so, to what amount and against whom

?

3) To what relief ?

6.During the course of trial, on behalf of the petitioner, PWs 1 and 2 were examined and Ex.A1 to Ex.A7 are marked. Whereas, on behalf of the Respondent No.3, no witnesses are examined but

Ex.B1 is marked with consent.

7.Heard both sides.

8. ISSUE NO.1 :- Whether the petitioner sustained injuries

in the road trafc accident due to rash and negligent driving

of CAR bearing No.TS-06-ED-0277 by its driver ?

To answer this issue, the petitioner, who is the injured cum eye witness is examined as PW1. He during the course of his chief- examination reiterated the averments in the petition and thereby deposed in support of his case.

The testimony of PW1 reveals that on 17.09.2017 while he along with his wife was proceeding from HB colony, Moulali towards

ZTC on their motor cycle bearing No.TS-08-ET-8974 and when they reach near Eveready Battery Company then the driver of Hyundai

Car bearing No.TS-06-ED-0277 drove the same in a rash and negligent manner with high speed and dashed against their vehicle.

Due to which, they fell down and he sustained grievous injuries all over his body. Immediately, they were shifted to “RTC hospital”,

Tarnaka and thereafter to “Praja Sai hospital” and treated as inpatient.

PW1 further deposed that PS Malkajgiri registered a case in

Crime No.715/2017 for ofence under Sec.337 IPC and Section 338

IPC. Thus, as per the testimony of PW1, he sustained

“ grievous injuries” only as a result of the accident that

occurred on 17.09.2017 due to the rash and negligent

driving of the ofending vehicle by its driver i.e. Respondent

No.1.

9. In this regard, PW1 relied upon Ex.A1 and Ex.A2 to substantiate his case. Among them, Ex.A1 is the certifed copy of FIR alongwith the complaint and Ex.A2 is the certifed copy of Charge Sheet and

Ex.A3/CC of crime details form.

On perusal of Ex.A1/FIR, the same clearly reveals that the accident occurred only due to the rash and negligent driving of the ofending vehicle by its driver. So also Ex.A2 which is the certifed copy of charge sheet wherein the investigation done by the police clearly reveals that it is “Non-fatal road accident” occurred only due to the rash and negligent driving of the crime vehicle by its driver and charge sheet was fled against the driver of the crime vehicle i.e.

Respondent No.1 for the ofence under Section 337 IPC, 338 IPC .

Hence Ex.A1 and Ex.A2 lends support to the testimony of PW1.

Whereas Ex.A3/CC of crime details form which probabilizes the occurance of accident on 17.09.2017.

10.It is pertinent to note that Respondents No.1 & 2 who are the driver and owner of the ofending vehicle remained ex parte and did not choose to deny (or) dispute the claim of the petitioner.

Respondent No.1 being the driver of the ofending

vehicle is the proper and the best person to deny (or)

dispute the rashness and negligence on his part in driving

the crime vehicle. But he failed to deny the same as he

remained exparte. Therefore, the said material fact remained

undisputed by the driver of the ofending vehicle, which is

sufcient to resolve this issue.

11.Whereas, respondent No.3/insurance company in its counter denied the rashness and negligence on the part of the driver of the ofending vehicle and even fled a petition under Sec.170 (b) of the

Motor Vehicles Act, vide I.A.No.1391 / 2023 and is permitted to raise all the defences that are available to the owner of the crime vehicle i.e. Respondent No.2 vide Orders dated 13.07.2023.

During the course of cross-examination of PW1, it is suggested to PW.1 that there is no negligence on the part of the driver of the ofending vehicle which is denied by PW.1. Except formal cross examination nothing material was elicited during the course of cross examination of PW.1. Thus the testimony of PW.1 remained unshattered and there is no reason to disbelieve his testimony.

12.Further, the contents in Ex.A2/CC of Charge remained uncontroverted, which lends enough support of the testimony of

PW1.

13.Further as stated supra, Respondent No.1/Driver of the ofending vehicle did not choose to contest the claim petition as stated above and failed to deny the rashness and negligence

on his part in driving the crime vehicle which tantamount to

an admission on his part of the said material fact. Hence, no further proof is required in this regard “as admitted facts needs

not be proved by virtue of Sec.58 of the Indian Evidence Act,

1872”. Hence the plea of the Respondent No.3/insurance company in this regard is no longer sustainable.

The oral evidence of PW1 coupled with overwhelming documentary evidence produced by petitioner i.e. Ex.A1 and Ex.A2 amply proves that the Respondent No.1 is solely responsible for the accident.

14.On the other hand, the Respondent No.3/Insurance Company failed to adduce any evidence on its behalf and thereby failed to rebutt the testimony of PW1 and Ex.A2 on record.

15.Thus, the oral and documentary evidence on record and the admissions on record as stated supra clearly established that the accident occurred only due to the rash and negligent driving of the crime vehicle by its driver i.e. Respondent No.1. Accordingly this issue is answered in favour of the petitioner.

16. ISSUE NO.2 :- Whether the petitioner is entitled for

compensation on account of injuries sustained by him, if so,

to what amount and against whom ?

In this regard, the main contention of the Respondent

No.3/Insurance Companyis that the driver of the crime vehicle is not having valid driving license as on the date of the accident and as such there is breach of the terms and conditions of the policy and its liability does not arise. Therefore, it is for the respondent

No.3/Insurance company to prove the same in terms of Sec.149 of

Motor Vehicles Act, 1988 to disown its liability.

17.On behalf of the Respondent No.3/Insurance Company, no evidence was adduced to substantiate its plea except got marking

Ex.B1/attested copy of policy with consent. Hence respondent No.3, failed to prove its plea that there is breach (or) violation of the Ex.B1/

Policy (marked with consent).

18.On the other hand, PW1 relied upon Ex.A2/CC of charge sheet wherein the concerned police after completion of investigation fled the charge sheet only for the ofence under section 337 IPC & 338

IPC only and the driver of the crime vehicle was not charge sheeted for the ofence under 181 of Motor Vehicle Act. If at all the driver of the crime vehicle is not having valid driving license as on the date of the accident certainly the charge sheet, would have been fled by the concerned police under Sec. 181 of Motor Vehicle Act also.

Thus, Respondent No.3 utterly failed to prove that there is any breach (or) violation of terms and conditions of Ex.B1/Policy, which is in force as on the date of accident. In those circumstances, the liability of Respondent No.3 arises to pay compensation to the petitioner for the injuries sustained by him during the course of the said accident.

19. Now the quantum of compensation payable to the petitioner which is just and reasonable is to be assessed and fxed having regard to the nature of injuries and disability if any sufered by the injured.

Just compensation is to be determined on the

foundation of fairness, reasonableness and equitably on

acceptable legal standards as loss of life and limb can never

be compensated in an equal measure, but the provisions

under the Motor Vehicles Act are meant to compensate the

claimant to a reasonable extent for the loss sufered by him.

In the case on hand, the contention of the petitioner is that he sustained grievous injuries during the course of accident that occurred on 17.09.2017.

20.PW1 during the course of his chief-examination reiterated the same and clearly deposed about the injuries sustained by him during the course of the above said accident. He further deposed that he undergone treatment as inpatient in “Praja Sai Hospital”, and incurred an amount of Rs.1,50,000/- towards medical expenses and extra nourishment.

In this regard, PW1 relied upon Ex.A2/ CC of Charge Sheet and also on Ex.A4/CC of MLC and Ex.A5/Discharge Summary.

21.On perusal of Ex.A2/CC of charge sheet (undisputed document), it reveals that the charge sheet was fled for the ofence under Section 338 IPC & 337 IPC and PW.1 (LW.2) received grievous injuries. Whereas, Ex.A4/CC of MLC also clearly reveals that the petitioner sustained grievous injury i.e. fracture of both bones of right leg. Whereas, Ex.A5/Discharge Summary and Ex.A7/X- ray flms lends support to Ex.A4 and Ex.A2. The above said documents Exs.A2, Ex.A4, ExA5 and Ex.A7 lends enough support to the oral evidence of PW.1.

22.However to substantiate his case and to prove Ex.A4 to Ex.A7, the petitioner also examined the treated doctor as PW.2. He categorically deposed that he is an Othopedic surgeon and worked from 2013-2022 and the petitioner was admitted in their hospital with the history of RTA and found the following injuries:

1. Fracture of both bones right leg (Tibia and Fibula) with open wound.

2. Abrasion over right elbow.

He further deposed that the patient undergone surgery on 18.09.2017 and the frst injury was “Grievous in nature” and the second injury is “simple in nature” and discharged from hospital on 21.09.2017 with follow up in OPD after 10 days and advised medicines and after 10 days he came for suture removal i.e.

on 27.09.2017 and later on 21.10.2017 for another review in OPD.

He was advised bed rest for three months Ex.A4/MLC and

Ex.A5/discharge summary are issued by their hospital.

He further deposed that the petitioner requires another surgery for removal of implant which costs Rs.40,000/- to Rs.50,000/-.

During the course of cross examination the material facts that

PW.2 is the treated doctor and the petitioner sustained grievous injuries and has undergone treatment as inpatient in “Praja sai hospital” and has undergone surgery remained uncontraverted and as such there is no reason to disbelieve the medical on record.

Hence Ex.A4, Ex.A5 can be relied upon as they are proved in accordance with law. Thus Ex.A2, Ex.A4 and Ex.A5 coupled with the oral evidence of PW.1 & 2 proved that the petitioner sustained “Grievous injury” i.e. fracture of both bones of right leg and undergone surgery. Hence it is just and reasonable to award an amount of Rs.1,00,000/- to the petitioner for the grievous injury (fracture of both bones of right leg) sustained by him.

23.Further, the evidence that is available on record i.e. oral evidence of PW1 & 2 coupled with Ex.A2, Ex.A4 & Ex.A5 clearly established that the petitioner sustained “grievous injury” and even undergone surgery. Hence, for pain, suferance and

trauma sufered by PW1 due to the “grievous injury”, it is

just and reasonable to award an amount of Rs.50,000/-.

24.The further contention of the petitioner is that he undergone treatment in “Praja Sai Hospital”, as inpatient i.e. from 17.09.2017 to 21.09.2017 and incurred medical expenditure to a tune of

Rs.1,50,000/- but the petitioner failed to produce any fnal bill of “Praja Sai hospital”, in support of his claim.

Further during the course of cross examination, PW.1 made a crucial admission which is as follows:

“It is true that I have not fled any document showing that I spend Rs.1,50,000/- towards my treatment.

It is true that I was treated freely as I am employee in

TSRTC”.

Thus in view of own admission by PW.1, the treatment is free of cost. Hence no amount can be awarded towards medical expenses.

25.The further contention of the petitioner is that he was advised bed rest on account of the injuries sufered by him during the course of the accident and there is loss of income during the said period. In this regard the testimony of PW.2 (treated doctor) clearly reveals that the petitioner was advised bed rest for three months which is not disputed (or) denied. Hence certainly there will be loss of income during the said period of three months.

In this context the income of the petitioner as on the date of accident is relevant but the petitioner failed to produce any documentary evidence in proof of his income except asserting that he is earning Rs.41,000/- per month. In the absence of the same, his income is to be assessed notionally as Rs.15,000/- per month as he was admittedly an employee in RTC. Hence the loss of income for three months is Rs.15,000/- x 3 = Rs.45,000/- .

26.In light of facts and circumstances of the present case, it is just and reasonable to award an amount of Rs.10,000/- towards his transportation.

27.So also it is just and reasonable to award an amount of

Rs.20,000/- towards extra nourishment.

28.Further it would be just and reasonable to award an amount of

Rs.15,000/- towards loss of amenities. Accordingly the petitioner is entitled for compensation as follows.

29. The total compensation arrived is shown as follows:-

Sl.No. Head Calculation

1.For grievous injuries Rs.1,00,000/-

2.For pain and suferance and traumaRs.50,000/- sufered by petitioner

3.Loss of income for three monthsRs.45,000/- @Rs.15,000/- x 3 4TransportationRs. 10,000/-

5.For extra nourishment Rs.20,000/-

6.Loss of amenitiesRs. 15,000/-

Total compensation Rs.2,40,000/-

Hence the petitioner is entitled for compensation of

Rs.2,40,000/- which is just and reasonable. Therefore, the

Respondents 1 to 3 are jointly and severally liable to pay the same.

Accordingly this issue is answered in favour of the petitioner.

30. ISSUE NO.3:- To what relief ?

As issues 1 and 2 are decided in favour of the petitioner. The petitioner is entitled for compensation of Rs.2,40,000/- with interest.

31.In the result, the petition is allowed partly by granting compensation of Rs.2,40,000/- (Rupees Two Lakhs Forty Thousand only) with proportionate costs and interest @ 7.5% per annum from the date of fling of the petition till the date of realization. The

Respondents 1 to 3 are directed to deposit the said amount within one month from the date of this order and on such deposit, the petitioner is permitted to withdraw the entire amount.

Advocate fee is Rs.3,000/- (Rupees Three thousand only).

Typed to my dictation corrected and pronounced by me in open Court on 04th day of September, 2023.

CHAIRMAN

MACT-CUM-XXVII ACJ, CCC,

SECUNDERABAD.

APPENDIX OF EVIDENCE

Witnesses Examined.

FOR PETITIONER:-

PW.1 : E.Jacob

PW.2 : Dr.B.Subhash

FOR RESPONDENT NO.3:-

- None -

DOCUMENTS MARKED

FOR PETITIONER:-

Ex.A1 :Certifed copy of FIR alongwith complaint

Ex.A2 :Certifed copy of Charge Sheet

Ex.A3 :Certifed copy of Crime Details Form

Ex.A4 :Certifed copy of MLC

Ex.A5 :Original discharge summary

Ex.A6 :Original medical prescriptions and reports

Ex.A7 :Original X-ray flms

FOR RESPONDENT NO.3:-

Ex.B1 :Attested copy of policy (marked with consent)

CHAIRMAN

MACT-CUM-XXVII ACJ, CCC,

SECUNDERABAD.

1 A.S.No.340 of 2014

IN THE COURT OF THE XXVI ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT AT HYDERABAD

Present: SMT. C. RATNA PADMAVATHI, XXVI Additional Chief Judge, City Civil Court, Hyderabad.

Wednesday,the 24th day of April, 2019.

A.S.No.340 of 2014

Between:

1.M/S. FOODCERT INDIA PVT. LTD., Presently having its office at Quality House, 1st Floor, Plot No.69, H.No.8-2-248/1/7/69/1, Sree Nagarjuna Co-operative Society, Panjagutta, Hyderabad-500082,Rep. by Mr. Kotela Srihari, Director.

2. Kotela Srihari, Director, M/s. Foodcert India Pvt. Ltd., Quality House, 1st Floor, Plot No.69, H.No.8-2-248/1/7/69/1, Sree Nagarjuna Co-operative Society, Panjagutta, Hyderabad … Appellants/Defendants.

AND

M/S. SRI SAI TEJAS TRAVELS AND TOURS PVT. LTD., Having its office at Sapphire Complex (Opp. Khan Lateef Khan Complex) Block E Ground Fllor, Door No.5-9-881/1, 88/2, Corporation Bank Building, Chapel Road, Hyderabad-500001(Telangana)India, Represented by its Executive Director S.B.C.M. Rao. … Respondent/Plaintiff.

APPEAL AGAINST THE JUDGMENT AND DECREE DATED 07.10.2014

IN O.S.NO.427 OF 2013 PASSED BY THE LEARNED

III JUNIOR CIVIL JUDGE, CITY CIVIL COURT, AT HYDERABAD

O.S.NO.427 OF 2013

Between: M/S. SRI SAI TEJAS TRAVELS AND TOURS PVT. LTD., Having its office at Sapphire Complex (Opp. Khan Laterrf Khan Complex) Block E Ground Fllor, Door No.5-9-881/1, 88/2, Corporation Bank Building, Chapel Road, Hyderabad-500001(Telangana)India, Represented by its Executive Director S.B.C.M. Rao.

… Plaintiff. AND 2 A.S.No.340 of 2014 1.M/S. FOODCERT INDIA PVT. LTD., Having Office at Quality House, 8-2-601/P/6, Road No.10, Panchavati Colony, Banjara Hills, Hyderabad-500034, Rep. by Mr. Kotela Srihari.

2. Kotela Srihari, authorized representative of M/s. Foodcert India Pvt. Ltd., Quality House, 8-2-601/P/6, Road No.10, Panchavati Colony, Banjara Hills, Hyderabad-500034. …Defendants.

This Appeal suit is coming on 15.04.2019 before me for final hearing in the presence of Sri Suraj Narain Prasad, Advocate for the Appellants/ Defendants and of Sri J. Ananth Ram, Advocate for Respondent/Plaintiff and upon hearing and the matter having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1.This is an appeal preferred by the Appellants/Defendants against the

Judgment and Decree dated 07.10.2014 passed by the III Junior Civil Judge,

City Civil Court, Hyderabad in O.S.No.427 of 2013.

2.For the sake of convenience the parties are arrayed as plaintiff and defendant as arrayed in the lower court.

3. The Respondent/plaintiff filed the main suit seeking for recovery of a sum of Rs.89,335/- with interest.

4.The brief averments in the plaint are as follows:

That the plaintiff is engaged in the business of providing all travel related services like Air Tickets, Train Tickets and Tour packages etc. While so the defendant approached the plaintiff to provide travel related services i.e. Air tickets and initially the defendant has created good impression by making prompt payments on purchased air tickets but all of a sudden the defendant 3 A.S.No.340 of 2014 stopped payment and is liable to pay the outstanding amount of Rs.81,838/- .

The defendant failed to pay the said amount inspite of repeated demands made by the plaintiff and postponed the same. Thereupon the plaintiff even got issued legal notice dated 11.12.2012 calling upon the defendant to pay the outstanding amount. The defendant having received the notice on 18.12.2012, failed to pay any amount. Hence, the suit.

5.The defendant resisted the suit by filing written statement wherein the defendant denied the material allegations in the plaint and contended that they are not liable to pay any amount much less the suit amount and further contended that the plaintiff failed to furnish the documents along with the plaint so as to enable this defendant to go through the contents of the documents and further contended that as per the ledger account maintained by the defendant duly audited by the Chartered Accountant it is evident that the defendant is not liable to pay the alleged amount as the entire amount in respect of the purchase of tickets was already paid by way of cheques as per the ledger account.

Hence, the claim made by the plaintiff is not maintainable and the suit is liable to be dismissed.

6.Basing on the respective pleadings of the parties, the trial court framed the following issues:

1.Whether the plaintiff is entitled to recover an amount of Rs.89,335/- with future interest @ 18% per annum from the defendants?

2.To what relief?

4 A.S.No.340 of 2014

7.During the course of trial, on behalf of the plaintiff, PW.1 is examined and

Exs.A.1 to A.5 are marked. Whereas on behalf of the defendant, DW.1 is examined and Exs.B.1 to B.3 are marked.

8.After considering the oral and documentary evidence, the court below has decreed the suit in favour of the plaintiff.

9.Being aggrieved by the Judgment and Decree dated 07.10.2014 in

O.S.No.427 of 2013 of the court below, the defendants in the suit preferred the

present appeal on various grounds which are follows:

1.The court below failed to comprehend that the claim of the respondent is illegitimate and the court below did not render proper reasoning as to why the appellant is denied with proper justice.

2.The court below failed to consider the contention of the appellant and the court below is biased and basing on the assumptions decreed the suit.

3.The Judgment of the court below is erroneous and is liable to be set aside.

10.In appeal, no evidence was adduced by either party and no documents are marked.

11.Considering the contentions of both the parties, the following points is framed for determination.

Whether the Decree and Judgment passed by the court below

suffers from any illegality and warrants any interference or

not?

12.POINT:-

The case of the plaintiff is that the plaintiff is engaged in the business of 5 A.S.No.340 of 2014 providing all travel related services like Air Tickets, Train Tickets and Tour packages etc and the defendant approached the plaintiff for providing travel related services i.e Air tickets and accordingly the plaintiff has provided services to the defendant and initially defendant has created good impression by making the payments promptly on purchased air tickets, but later the defendant stopped payment and he is liable to pay an understanding amount of Rs.81,838/- and the defendant failed to repay the said amount despite of the demands made by the plaintiff by way of legal notice also and as per the plaint averments the cause of action for the suit arose from 22.07.2010 onwards from which the defendants started purchasing air tickets and as such the claim of the plaintiff is in time and seeking for recovery of the suit amount with interest.

13.On the other hand, the plea of the defendant is that as per the ledger account maintained by the defendant, the defendant is not liable to pay the suit amount and the entire amount for purchasing of tickets is already been paid by the defendant by way of cheques and thereby denied his liability to pay the suit amount. As the defendant is asserting that the entire amount in respect of purchase of tickets was already paid by the defendant by way of cheques and is no more liable to pay any amount to the plaintiff, it is for the defendant to prove the same as he no where denied the purchase of air tickets by availing the travel related services rendered by the plaintiff. At this juncture, it is necessary to refer

Section 102 of the Evidence Act, 1872, as it squarely applies in view of the pleadings on record, Section 102 of the Evidence Act lays down as follows:

6 A.S.No.340 of 2014

Burden of proving fact especially within knowledge :- “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.

Though the burden of proof lies upon the defendant to prove that the amounts due in respect of purchase of air tickets is already paid by the defendants by way of cheques to the plaintiff but however, the plaintiff even adduced evidence in support of his case by examining PW.1.

PW.1 is no other than the Managing Director of the plaintiff company.

PW.1 relied upon Ex.A.5 letter of authorization wherein PW.1 who is the

Managing Director of the plaintiff company is authorized to sign the plaint, affidavits etc. and also to give evidence on behalf of the plaintiff company.

PW.1 during the course of his chief examination reiterated the averments in the plaint and thereby deposed in support of the case of the plaintiff. The testimony of PW.1 reveals that the plaintiff in the name and style of “Sri Sai Tejas Travels and Tours Pvt. Limited” is engaged in the business of providing travel related services like Air Tickets, Train Tickets and Tour packages etc and the defendant approached the plaintiff for providing travel related services like air tickets and accordingly the plaintiff provided services to the defendant and the defendant by making the payments on purchase of air tickets has created good impression in the mind of the plaintiff. The testimony of PW.1 further reveals that later the defendant stopped the payment and an amount of Rs.81,838/- is outstanding due from the defendant but the defendant failed to pay the same despite of demands made by the plaintiff by way of legal notice also.

7 A.S.No.340 of 2014

14.In support of his oral evidence PW.1 got marked Exs.A.1 to A.5. Among them Ex.A.1 is the outstanding statement of account. Ex.A.2 is 67 invoices with

E-tickets and E-mails. Ex.A.3 is Office copy of the legal notice dated 11.12.2012. Ex.A.4 is the reply notice dated 19.12.2012. Ex.A.5 is the authorization dated 02.07.2013 and dated 10.12.2012(2 Nos).

15.On perusal of Ex.A.1 which is outstanding statement of account a sum of

Rs.88,961/- is shown as outstanding due from the defendant. The plaintiff also relied upon Ex.A.2 invoices in respect of purchase of air tickets for the defendant from time to time. During the course of cross-examination it was elicited that the documents which are filed by the plaintiff does not bear the signatures of the defendant and it was further elicited that the accounts pertaining to the plaintiff company were not filed. Though it was suggested to

PW.1 that the documents filed by PW.1 does not bear the signatures of the defendant but however it is of no help to the defendant, when once the plea of the defendant is that he already repaid the amounts in respect of the purchase of air tickets. Moreover, the correctness of Ex.A.2 invoices is no where denied or disputed and not even a suggestion was made in that regard. It is further pertinent to note that though the plea of the defendant is that the entire amounts are already paid to the plaintiff in respect of the purchase of flight tickets by way of cheques, but nothing was suggested to that effect in support of the plea of the defendant and there is no cross-examination at all on those lines. Thus, nothing material was elicited from out of the cross-examination of PW.1. Though the authority of the PW.1 to depose on behalf of the plaintiff company was denied 8 A.S.No.340 of 2014 but as Ex.A.5 letter of authorization is already filed by PW.1 suggestion that was given to PW.1 denying the authority of PW.1 to depose is not tenable and acceptable. Therefore, the testimony of PW.1 coupled with Exs.A.1 and A.2 is in support of the plaintiff’s claim.

16.However, in the case on hand as stated supra the initial burden of proof is on the defendant to prove the payment of the amounts towards purchase of tickets by way of cheques. Therefore, it is to be seen whether the evidence adduced by defendant is sufficient to discharge the burden of proof or not. If he fails to prove his contention then automatically the plaintiff claim would succeed.

Here in the case on hand, on behalf of the defendant, one Assistant

Accountant is examined as DW.1 and he reiterated the averments in the written statement during the course of his chief-examination. DW.1 further reiterated in his chief-examination that as per the ledger account maintained by the defendant, the entire amount for purchasing of tickets is already paid by way of cheques and the defendant is not liable to pay the suit amount. In support of his oral evidence DW.1 got marked Exs.B.1 to B.3. Among them, Ex.B.1 is authorization letter and Ex.B.2 is the ledger account. Ex.B.3 is the balance sheet.

It is pertinent to note that though the plea of the defendant is that the amounts are paid towards purchase of tickets i.e flight tickets from the plaintiff by way of cheques but the defendant has no where mentioned about the particulars of cheques. Further the defendant did not choose to examine any official of the concerned Bank to prove that the cheques issued by the defendant were all 9 A.S.No.340 of 2014 encashed by the plaintiff. Though the concerned banker is a material witness and is the best evidence available to the defendant to prove his contention but for the reasons best known to the defendant he did not choose to examine the concerned banker to prove the payment of amounts to the plaintiff by way of cheques. During the course of cross-examination DW.1 clearly admitted that he cannot say how many tickets were purchased by the defendant from the plaintiff company.

17.DW.1 further clearly deposed that he is working as Assistant Accountant in the defendant company since 2001.Whereas one “Sunil” of their company who is in the reception used to purchase tickets from the plaintiff and prior to him one Ambika used to purchase tickets and the “manager of by name Kiran” of their company used to pay the amounts for purchase of tickets and whereas the work of DW.1 in the company is data entry with regard to payments so made.

18.DW.1 further deposed that Ex.B.2 data is prepared by Kiran and also admitted that the chartered Accountant prepared Ex.B.2 but the defendant did not choose to examine the Manager Kiran and as well as the Chartered

Accountant who said to have prepared Ex.B.2 to prove the entries therein though they are material witnesses. Further the account books and the original ledger being maintained by the defendant during the regular course of business were even not produced in support of Ex.B.2. Therefore, non-examination of the Manager Kiran and the said Chartered Accountant who said to have prepared

Ex.B.2 and non-production of account books and the original ledger is nothing 10 A.S.No.340 of 2014 but amounts to suppression of material evidence. Hence, adverse inference can be drawn against the defendant under Section 114 of the Evidence Act, 1872 for withholding the said material evidence.

19.In those circumstances, mere filing of Ex.B.2 itself is not sufficient to discharge the burden of proof which is cast upon the defendant. The defendant ought to have filed the account books and original ledger audited by the income tax authorities (or) the sale tax authorities for the relevant years so as to prove its contention, but the defendant has failed to do so.

20.During the course of cross examination DW.1 clearly admitted as follows:

“It is true that in Ex.B.2 all the paid amounts are mentioned but,

there is no mention about the due amounts to the plaintiff.”

During the course of DW.1 further admitted as follows:

“It is true in Ex.A.1 it is specifically mentined about the purchase of

tickets, number and date.”

Therefore, the defendant ought to have produced the original account books and the ledgers pertaining to the said transaction as specified in Ex.A.1 so as to prove his contention. In view of the details given in Ex.A.1 the defendant ought to have examined the concerned bank in respect of the encashment of the cheques which are alleged to have been issued to the plaintiff towards the flight ticket charges. Therefore, the defendant failed to produce the relevant documentary evidence and failed to examine the material witnesses as stated supra. In those circumstances Ex.B.2 is not proved in accordance with law.

11 A.S.No.340 of 2014

Thus the defendant utterly failed to prove his contention that he already paid the amounts to the plaintiff by way of chques in respect of the purchase of flight tickets. Consequently, the claim of the plaintiffs succeeds.

21.So far as the aspect of limitation is concerned it is specifically pleaded in the plaint that the cause of action for the suit arose on 22.07.2010 on which date the defendants started purchasing the air tickets and whereas the suit was filed on 19.02.2013 i.e within three years from the date on which the defendant started availing the travel services of the plaintiff. On the other hand the defendant no where denied the same and no where pleaded that the suit claim is not within time. In those circumstances the suit claim is well within time.

Therefore, the observation and findings of the court below are in a proper prospective and the court below has rightly came to the conclusion that the plaintiff is entitled for the suit amount. In this regard it is pertinent to note that the plaintiff claimed interest @ 18% per annum on the suit amount. In this regard on perusal of Ex.A.2 invoices at the bottom of each invoice the terms and conditions are clearly stipulated where under it is clearly mentioned that interest @ 24% will be charged on outstanding payments after due date and there is no dispute with regard to the correctness of Ex.A.2 invoices as stated supra. But the plaintiff herein only claimed interest @ 18% interest and accordingly the court below has granted the same which is found to be just and reasonable.

Hence, the Decree and Judgment of the court below does not warrant any interference and is liable to be confirmed for the reasons stated above.

12 A.S.No.340 of 2014

22.In the result, the Appeal is dismissed with costs confirming the Judgment and Decree dated 07.10.2014 in O.S.No.427 of 2013 of the learned III Junior

Civil Judge, City Civil Court, Hyderabad.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on Wednesday, the 24th day of April, 2019.

Sd/-

XVI Additional Chief Judge City Civil Court, Hyderabad.

APPENDIX OF EVIDENCE:

-Nil-

Sd/-

XXVI Additional Chief Judge City Civil Court, Hyderabad.

BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-

COURT OF THE XXVII ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT,

AT SECUNDERABAD.

Present : Smt. C.Ratna Padmavathi,

Chairman MACT-cum-XXVII ACJ

DATED THIS THE 04th DAY OF SEPTEMBER, 2023

M.V.O.P. NO. 730 OF 2019

Between:

E.Upendra, W/o E. Jacob, aged about 46 years, Occ:Business, R/o.H.No.3-5/24, Bollaram, Secunderabad. --Petitioner A N D

1. A.P.Titus, S/o.A.S.Prasangi, aged:Major, Occ:Driver. R/o.H.No.6-4, Sowbagya Nilayam, Near Gandhi Chowk, Jadcharla, Mababubnagar, Telangana – 509301.

2.Doddi Satya Vineela, D/o AP Moses, aged:Major, Occ:Business, R/o.H.No.1-29/6/C, Baba Nagar, Jadcherla, Mahabubnagar, Telangana – 509301.

3. M/s HDFC ERGO General Insurance Co. Ltd. Rep. by its General Manager, Opp: Jalagam Vengal Rao Park, Road No.1, Upper Floor of Scatia Bank, Banjara Hills, Hyderabad - 500034. --Respondents

Counsel for Petitioner :Sri P. Srinivas, Advocate

Respondents No.1 and 2 :Remained Exparte

Counsel for Respondent No.3 :Sri M. Madhava Reddy, Advocate

This petition coming for fnal hearing before me in the presence of the above counsels on record and after hearing them and the matter having stood over to this day for consideration, this Tribunal has made the following:-

O R D E R

1.This is a claim petition fled by the petitioner under Sec.166 of

Motor Vehicles, Act, 1988 seeking for compensation of Rs.4,00,000/- (Rupees Four Lakhs only) for the injuries she received in motor vehicle accident that took place on 17.09.2017 near Moulaali.

2. The brief averments in the petition are as follows:-

That on 17.09.2017, the petitioner alongwith her husband was proceeding from HB colony, Moulaali towards ZPT on their motor cycle bearing No. TS-08-ET-8974 and when they reached near Eveready

Battery Company, then the driver of Car bearing No. TS-06-ED 0277 drove the same in a rash and negligent manner with high speed and dashed against their vehicle. Due to which, they fell down and sustained grievous injuries all over his body. Immediately, they were shifted to RTC hospital, Tarnaka and thereafter to “Praja Sai Hospital” and treated as inpatient Thereupon, PS Malkajgiri registered a case in

Crime No.715/2017 for ofence under Sec.337 IPC. Hence, the present claim was made by the claimant seeking for compensation of

Rs.4,00,000/- from Respondents No.1 to 3, who are the Driver, Owner and Insurer of the crime vehicle on the ground that she sustained grievous injuries all over the body. She was running bangle store and thereby earning Rs.20,000/- per month, which she used to contribute to the family, but due to the said accident, she has spent more than

Rs.1,00,000/- towards medical expenses and the petitioner and her family sufered fnancial loss and also mental shock. Hence, the petition.

3.Respondents No.1 and 2, who are driver and owner of the crime vehicle remained exparte.

4.Whereas, Respondent No.3/Insurer contested the claim petition by fling its counter denying the material averments in the claim petition by contending that the driver of the ofending vehicle was not having any valid and efective driving license at the time of the accident and the accident occurred solely due to the rash and negligent riding of the rider of the Motor Cycle bearing No. TS-08-

ET-8974. The petition is not maintainable for non-joinder of necessary parties i.e. owner and insurer of the motor cycle. The further contention of the Respondent No.3 is that the compensation amount claimed by the petitioner is excessive and prayed for dismissal of the petition.

The Respondent No.3/Insurance Company also fled a petition under Sec.170 (b) of the Motor Vehicles Act, in I.A.No.1390 of 2023 and is permitted to raise all the defences that are available to the owner of the crime vehicle i.e. Respondent No.2.

5. Basing on the respective pleadings of the parties, the

following issues were settled for trial by my Predecessor-in-

Ofce :-

1) Whether the accident occurred was due to rash

and negligent driving of the ofending vehicle

by R1?

2) Whether the petitioner is entitled to

compensation, if so, to what quantum and from

whom?

3) To what relief?

6.During the course of trial, on behalf of the petitioner, PWs 1 and 2 were examined and Ex.A1 to Ex.A6 are marked. Whereas, on behalf of the Respondent No.3, no witnesses are examined but

Ex.B1 is marked with consent.

7.Heard both sides.

8. ISSUE NO.1 :- Whether the accident occurred was due

to rash and negligent driving of the ofending vehicle by R1?

To answer this issue, the petitioner, who is the injured cum eye witness is examined as PW1. She during the course of her chief- examination reiterated the averments in the petition and thereby deposed in support of her case.

The testimony of PW1 reveals that on 17.09.2017, while she alongwith her husband was proceeding from HB Colony, Moulali towards ZPT on their Motor Cycle bearing No.TS-08-ET-8974 and when they reached near Eveready Battery Company, then the driver of Car bearing No. TS-06-ED-0277 drove the same in a rash and negligent manner with high speed and dashed against their vehicle.

Due to which, they fell down and sustained grievous injuries all over his body. Immediately, they were shifted to “RTC hospital”, Tarnaka and thereafter to “Praja Sai Hospital” and treated as inpatient. PW1 further deposed that PS Malkajgiri registered a case in Crime

No.715/2017 for ofence under Sec.337 IPC and Section 338 IPC.

Thus, as per the testimony of PW1, she sustained “injuries”

only as a result of the accident that occurred on 17.09.2017

due to the rash and negligent driving of the ofending

vehicle by its driver i.e. Respondent No.1.

9. In this regard, PW1 relied upon Ex.A1 and Ex.A2 to substantiate her case. Among them, Ex.A1 is the certifed copy of FIR alongwith the complaint and Ex.A2 is the certifed copy of Charge Sheet and

Ex.A3/CC of crime details form.

On perusal of Ex.A1/FIR, the same clearly reveals that the accident occurred only due to the rash and negligent driving of the ofending vehicle by its driver. So also Ex.A2 which is the certifed copy of charge sheet wherein the investigation done by the police clearly reveals that it is “Non-fatal road accident” occurred only due to the rash and negligent driving of the crime vehicle by its driver and charge sheet was fled against the driver of the crime vehicle i.e.

Respondent No.1 for the ofence under Section 337 IPC, 338 IPC .

Hence Ex.A1 and Ex.A2 lends support to the testimony of PW1.

Whereas Ex.A3/CC of crime details form probabilizes the occurance of accident on 17.09.2017.

10.It is pertinent to note that Respondents No.1 and 2, who are the driver and owner of the ofending vehicle remained ex parte and did not choose to deny (or) dispute the claim of the petitioner.

Respondent No.1 being the driver of the ofending

vehicle is the proper and the best person to deny (or)

dispute the rashness and negligence on his part in driving

the crime vehicle. But he failed to deny the same as he

remained exparte. Therefore, the said material fact remained

undisputed by the driver of the ofending vehicle, which is

sufcient to resolve this issue.

11.Whereas, respondent No.3/insurance company in its counter denied the rashness and negligence on the part of the driver of the ofending vehicle and even fled a petition under Sec.170 (b) of the

Motor Vehicles Act vide I.A.No.1390/2023 and is permitted to raise all the defences that are available to the owner of the crime vehicle i.e.

Respondent No.2 vide Orders dated 13.07.2023.

During the course of cross-examination of PW1, it is suggested to PW.1 that there is no negligence on the part of the driver of the ofending vehicle which is denied by PW.1. Except formal cross examination nothing material was elicited during the course of cross examination of PW.1 Thus the testimony of PW.1 remained unshattered and there is no reason to disbelieve her testimony.

Further, the contents in Ex.A2/CC of Charge remained uncontroverted, which lends enough support of the testimony of PW1 and negates the plea of respondent No.3.

Further as stated supra, Respondent No.1/Driver of the ofending vehicle did not choose to contest the claim petition as stated above and failed to deny the rashness and negligence

on his part in driving the crime vehicle which tantamounts

to an admission on his part of the said material fact. Hence, no further proof is required in this regard “as admitted facts

needs not be proved by virtue of Sec.58 of the Indian

Evidence Act, 1872”. Hence the plea of the Respondent

No.3/insurance company in this regard is no longer sustainable.

The oral evidence of PW1 coupled with overwhelming documentary evidence produced by petitioner i.e. Ex.A1 and Ex.A2 amply proves that the Respondent No.1 is solely responsible for the accident.

12.On the other hand, the Respondent No.3/Insurance Company failed to adduce any evidence on its behalf and thereby failed to rebutt the testimony of PW1 and Ex.A2 on record.

13.Thus, the oral and documentary evidence on record and the admissions on record as stated supra clearly established that the accident occurred only due to the rash and negligent driving of the crime vehicle by its driver i.e. Respondent No.1. Accordingly, this issue is answered in favour of the petitioner.

14. ISSUE NO.2 :- Whether the petitioner is entitled to compensation, if so, to what quantum and from whom?

In this regard, the main contention of the Respondent

No.3/Insurance Companyis that the driver of the crime vehicle is not having valid driving license as on the date of the accident and as such there is breach of the terms and conditions of the policy and its liability does not arise. Therefore, it is for the respondent

No.3/Insurance company to prove the same in terms of Sec.149 of

Motor Vehicles Act, 1988 to disown its liability.

15.On behalf of the Respondent No.3/Insurance Company, no evidence was adduced to substantiate its plea except got marking

Ex.B1/attested copy of policy with consent. Hence respondent No.3 failed to prove its plea that there is breach (or) violation of the Ex.B1/

Policy (marked with consent).

16.On the other hand, PW1 relied upon Ex.A2/CC of charge sheet wherein the concerned police after completion of investigation fled the charge sheet only for the ofence under Sec.337 IPC and Sec.338

IPC only and the driver of the crime vehicle was not charge sheeted for the ofence under 181 of Motor Vehicle Act. If at all the driver of the crime vehicle is not having valid driving license as on the date of the accident certainly the charge sheet, would have been fled by the concerned police under Sec. 181 of Motor Vehicle Act also.

Thus Respondent No.3 utterly failed to prove that there is any breach (or) violation of terms and conditions of Ex.B1/Policy, which is in force as on the date of accident. In those circumstances, the liability of Respondent No.3 arises to pay compensation to the petitioner for the injuries sustained by her during the course of the said accident.

17. Now the quantum of compensation payable to the petitioner which is just and reasonable is to be assessed and fxed having regard to the nature of injuries and disability if any sufered by the injured.

Just compensation is to be determined on the

foundation of fairness, reasonableness and equitably on

acceptable legal standards as loss of life and limb can never

be compensated in an equal measure, but the provisions

under the Motor Vehicles Act are meant to compensate the

claimant to a reasonable extent for the loss sufered by him.

In the case on hand, the contention of the petitioner is that she sustained grievous injuries during the course of accident that occurred on 17.09.2017.

PW1 during the course of her chief-examination reiterated the same and clearly deposed about the injuries sustained by her during the course of the above said accident. She further deposed that she undergone treatment as inpatient in “Praja Sai Hospital”, and incurred an amount of Rs.1,00,000/- towards medical expenses and extra nourishment.

In this regard, PW1 relied upon Ex.A2/ CC of Charge Sheet and also on Ex.A4/Discharge Summary..

On perusal of Ex.A2/CC of charge sheet (undisputed document), it reveals that the charge sheet was fled for the ofence under Sec.338 IPC and Sec.337 IPC and PW.1 (LW.3) received simple injuries. Whereas, Ex.A4/Discharge Summary and Ex.A6/X- ray flms lends support to Ex.A2. The above said documents I.e.

Exs.A2 & Ex.A4, lends enough support to the oral evidence of PW.1.

18.However to substantiate her case and to prove Ex.A4, the petitioner also examined the treated doctor as PW.2. He categorically deposed that he is an Othopedic Surgeon and worked from 2013-22 and the petitioner was admitted in their hospital with the history of RTA and found the following injuries :-

1. Abrasion over right shoulder

2. Abrasion of Right Wrist

3. Abrasion of Right Scalp

He further deposed that the third injury is “Grievous in nature” and the other two injuries are “simple in nature“ and treated the patient conservatively and discharged on 21.09.2017 and Ex.A4/discharge summary was issued by their hospital.

During the course of cross examination the material fact that

PW.2 is the treated doctor and the petitioner sustained injuries and undergone treatment conservatively in “Praja Sai hospital” remained uncontraverted.

However there is no documentary evidence like medico legal record (or) wound certifcate to prove that the third injury i.e.

abrasion on the right scalp is a grievous injury.

Whereas Ex.A2/CC of charge sheet (undisputed document) clearly reveals that PW.1 sustained “Simple injury“. In the absence of any medico legal record (or) injury certifcate of PW.1, Ex.A2/CC of charge sheet, which is an undisputed document can be relied upon which clearly establishes that PW.1 sufered “simple injuries”.

Hence it is just and proper to award an amount of Rs.40,000/- to

the petitioner towards the simple injuries received by PW.1.

19.Further, the evidence that is available on record i.e. oral evidence of Pws.1 and 2 coupled with Ex.A4/Discharge summary clearly established that the petitioner sustained simple injuries and treated conservatively. Hence, for pain, suferance and trauma

sufered by PW1 due to the simple injuries, it is just and

reasonable to award an amount of Rs.10,000/-.

20.The further contention of the petitioner is that she undergone treatment in “Praja Sai Hospital”, as inpatient i.e. from 17.09.2017 to 21.09.2017 and incurred medical expenditure to a tune of

Rs.1,00,000/- but the petitioner failed to produce any fnal bill of “Praja Sai hospital”, in support of her claim. In the absence of any documentary evidence in support of her claim no amount can be awarded towards medical expenses.

21.In light of facts and circumstances of the present case, it is just and reasonable to award an amount of Rs.8,000/- towards transportation.

22.So also it is just and reasonable to award an amount of

Rs.10,000/- towards extra nourishment.

23.Further it would be just and reasonable to award an amount of

Rs.8,000/- towards loss of amenities. Accordingly the petitioner is entitled for compensation as follows.

24. The total compensation arrived is shown as follows:-

Sl.No. Head Calculation

1.For simple injury Rs.40,000/-

2.For pain and suferance and traumaRs.10,000/- sufered by petitioner

3.TransportationRs. 8,000/-

4.For extra nourishment Rs.10,000/-

5.Loss of amenitiesRs. 8,000/-

Total compensation Rs.76,000/-

Hence the petitioner is entitled for compensation of

Rs.76,000/-which is just and reasonable. Therefore, the

Respondents 1 to 3 are jointly and severally liable to pay the same.

Accordingly this issue is answered in favour of the petitioner.

25. ISSUE NO.3:- To what relief ?

As issues 1 and 2 are decided in favour of the petitioner. The petitioner is entitled for compensation of Rs.76,000/- with interest.

26.In the result, the petition is allowed partly by granting compensation of Rs.76,000/- (Rupees Seventy six Thousand only) with proportionate costs and interest @ 7.5% per annum from the date of fling of the petition till the date of realization. The

Respondents 1 to 3 are directed to deposit the said amount within one month from the date of this order and on such deposit, the petitioner is permitted to withdraw the entire amount.

Advocate fee is Rs.2,000/- (Rupees Two thousand only).

Typed to my dictation corrected and pronounced by me in open Court on 4th day of September, 2023.

CHAIRMAN

MACT-CUM-XXVII ACJ, CCC,

SECUNDERABAD.

APPENDIX OF EVIDENCE

Witnesses Examined.

FOR PETITIONER:-

PW.1 : E. Upendra

PW.2 : Dr.B.Subhash

FOR RESPONDENT NO.3:-

- None -

DOCUMENTS MARKED

FOR PETITIONER:-

Ex.A1 :Certifed copy of FIR alongwith complaint

Ex.A2 :Certifed copy of Charge Sheet

Ex.A3 :Certifed copy of Crime Details Form

Ex.A4 :Original Discharge Summary

Ex.A5 :Original Medical Prescriptions and Receipts

Ex.A6 :X-rays

FOR RESPONDENT NO.3:-

Ex.B1 : Attested copy of policy (marked with consent)

CHAIRMAN

MACT-CUM-XXVII ACJ, CCC,

SECUNDERABAD.