Sri. C.Vijaya Saradhi Acharyulu

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS

TRIBUNAL (I-ADDITIONAL DISTRICT JUDGE) WARANGAL.

Tuesday, this the 2nd day of April, 2013

PRESENT:C.Vijayasaradhi Acharyulu, Chairman, Motor Accidents Claims Tribunal, (I-Additional District Judge), Warangal.

M.V.O.P.NO.1650 OF 2007

BETWEEN:

Perumandla Veeraswamy...Petitioner

AND

1.Aalthi Suresh

2.The New India Assurance Company Limited, rep. by its Manager, R/o # 9-3-143, 1st Floor, Old Club Road, Near Vinod Theatre, Khammam.

3.The New India Assurance Company Limited, rep. by its Divisional Manager, Hanamkonda Chowrasta, Hanamkonda,

Warangal....Respondents

This petition is coming before me for final hearing on 7.2.2013 in the presence of Sri G.Srinivas, Advocate for the petitioner and of Smt.K.R.Manjula,

Advocate for the respondent No.3 and the respondent Nos.1 and 2 having remained ex-parte and having perused the material papers and having been stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

1.This petition is filed under Section 166 of M.V. Act 1988 r/w Rule 455 of

A.P.M.V. Rules, 1989 and the brief allegations are as follows:

i)The petitioner is working as cleaner in Bhaskara Lorry Transport and on 17.4.2007, the petitioner and the driver of the lorry bearing No.KA01 A-5553 were proceeding towards Ramavaram and the driver of the said lorry drove the same in a rash and negligent manner, due to which, he lost control and the lorry went down side of the road and hit a tree, due to which both the legs of the

MVOP No.1650 of 20072 petitioner were broken and he was shifted to MGM Hospital, Warangal and his right leg was amputated and steel rods were inserted to the left leg and he was discharged on 29.6.2007 and the petitioner incurred Rs.75,000/- towards medical expenses and extra-nourishment and on 17.4.2007, the father of the petitioner gave complaint to the police Kodakandla and a case in Cr.No.31/2007 was registered and the petitioner was only earning member of the family and he was depending on the income as cleaner of the lorry and the petitioner is claiming

Rs.6,00,000/- against the respondent No.1, the owner of the lorry and the respondent No.2, the insurance company and the respondent No.3 is the local office of the respondent No.2 Therefore, an award be passed for Rs.6,00,000/- with interest.

2.The respondent Nos.1 and 2 remained ex-parte.

3.The respondent No.3 filed counter and the brief allegations are as follows:

i)The allegations made in the petition are false and denied. It is denied that the vehicle was driven in a rash and negligent manner. It is denied that the petitioner was aged 23 years and he was earning Rs.4,500/- per month as cleaner. It is denied that the insurance policy was issued for the vehicle bearing

No.KA01 A-5553 and the petitioner has to prove that the lorry was having valid permit and registration and the accident was not reported to the insurance company, due to collusion and the petitioner was traveling as an unauthorized passenger along with other passengers and the compensation claimed is excessive and the petition be dismissed.

4.On the basis of above said pleadings, the following issues were framed by this Court:

1) Whether the accident took place on account of rash and negligent driving of the Tarus Trailer

Lorry bearing No.KA 01 A 5553?

MVOP No.1650 of 20073

2) Whether the petitioner is entitled to receive any compensation? If so, to what amount and from whom?

3) To what relief?

5.The petitioner to prove his claim examined himself as PW1 and also examined PW2-Dr.K.Ramkumar Reddy and PW3-P.Parsharamulu and got marked Exs-A1 to A6 and Ex-X1. The respondent No.3 examined RW1-

G.Krupakar and got marked Exs-B1 to B3.

6.Heard both sides.

7.ISSUE NO.1:The petitioner is the claimant and he claims that he was working as lorry cleaner and on 17.4.2007, he and the driver of the lorry bearing No.KA01 A-5553 were proceeding towards Pakhal and at about 10.00 a.m., at Ramavaram village, the driver of the lorry drove the same in a rash and negligent manner, due to which, the lorry dashed one tree and the lorry was damaged and the petitioner received fracture of right leg both bones and fracture of left leg both bones and he was shifted to MGM Hospital, Warangal, and where he was treated. He denied that he was traveling in the vehicle as gratuitous passenger and he also denied that Srinivas had no driving license.

8.PW2 is the doctor, who treated PW1. PW3 is the cleaner along with PW1.

9.Now, coming to the documentary evidence, Ex-A1/certified copy of FIR shows that complaint was lodged on 17.4.2007 at 1.30 p.m., wherein, it was clearly mentioned that PW1 was working as cleaner on vehicle bearing No.KA01

A-5553 and the said lorry met with an accident, wherein, PW1 was received injuries and the driver is Srinivas. Ex-A2 is the certified copy charge sheet, wherein, the driver was charge-sheeted by the police for causing accident.

10.From the above evidence, it is clear that the lorry in which the petitioner was traveling lost control and the lorry got down from the road and dashed to a

MVOP No.1650 of 20074 tree and the fact that the lorry came off the road and dashed the tree, resulting in the accident, where PW1 received injuries itself shows that the lorry was being driven in a rash and negligent manner with high speed by the driver of the said vehicle. Therefore, I hold that this issue is answered in favour of the petitioner.

11.ISSUE NO.2:As per PW1, he received fractures to h the legs and he was earning Rs.4,500/- per month, and due to fracture, his right leg was amputated and steel rods were inserted to the left leg and he became 100% disabled person and he is seeking compensation of Rs.6,00,000/-. In the cross- examination, he stated that he is unable to do any kind of work and his employer used to note down the salary paid to him and he has not filed the trip-sheet of the vehicle and Srinivas had driving license and he obtained Ex-A5 for the purpose of securing pension and he denied that he received simple injuries.

12.PW2 speaks the fact that he is working as Assistant Professor in MGM

Hospital, Warangal, and on 17.4.2007, PW1 came to MGM Hospital, Warangal with grade 3 compound fracture of both bones of left leg and rheumatic amputation of below knee of right leg and he was operated and right leg was treated revision amputation and on 14.6.2007 a second operation was conducted for skin grafting and on 29.6.2007 he was discharged and he attended on various dates for follow-up treatment and Ex-A3 issued by MGM Hospital, Warangal. Ex-

A4 was also issued by MGM Hospital, Warangal and Ex-A6 relates to the expenses incurred by the petitioner for medicines. He is one of the Members of the Medical Board and he examined PW1 on 29.6.2007 and assessed disability permanently and partially @ 65% and issued certificate under Ex-A5 and the petitioner cannot climb, it is difficult for him to work as cleaner and Ex-X1 is the case-sheet. He states that the nature of injury was not recorded in Ex-A3. He treated the patient as one of the Members of team of doctors and the treatment

MVOP No.1650 of 20075 provided in MGM Hospital, Warangal, is free of cost. Ex-A5 was issued for the purpose of concessional benefit in the public transport. The bills under Ex-A6 do not refer his name as reference doctor and some of the bills under Ex-A6 do not bear the name of the petitioner.

13.PW3 speaks the fact that the petitioner worked as cleaner in Bhaskara

Lorry Transport and he also worked as lorry cleaner in the said transport and they were paid Rs.4,500/- per month. In the cross-examination, he stated that he has no documents to show that he was drawing salary of Rs.4,000/- per month.

He stated that the petitioner is not working at present.

14.From the above evidence, it is clear that the petitioner suffered two grievous injuries, fracture to the left leg and fracture to the right leg, which resulted in amputation. The petitioner admittedly was working as cleaner and because of the amputation to the right leg, the petitioner cannot move, as he was moving before the accident as a cleaner and he lost his right leg up to knee level.

Therefore, though, the disability was assessed at 65%, as per Ex-A5, but the functional disability is 100%, so far as, the cleaner job is concerned, but it does not preclude the petitioner to do any other job other than cleaner, such as watchman or other petty jobs. Therefore, I take the disability as assessed under

Ex-A5 as 65%.

15.It is one of the contentions of the insurance company that the lorry driver was not having driving license and the petitioner was traveling as a gratuitous passenger and the said lorry was driven by one Srinivas. In the cross- examination, RW1 stated that the insurance policy/Ex-B1 was in-force and it covers driver and cleaner and the notices were issued to the owner and driver under Ex-B2 and Ex-B3 were not served and they have not obtained certificate from RTA Office to show that the driver was not having valid driving license.

MVOP No.1650 of 20076

16.Here, the burden is on the insurance company to establish that the driver has no valid driving license. The insurance company has issued notices on 29.3.2011 to the owner and driver, though the accident took place on 17.4.2007 and the insurance company had put up appearance in the present case on 29.1.2008 and why the insurance company waited till three years to issue notices to ascertain as to whether the owner of the lorry had any permit or the driver had any valid driving license by issuing notices and after lapse of several years, the mere issuance of notices does not absolve the insurance company to escape its liability by stating that the driver of the lorry was not having valid driving license.

Therefore, I am not inclined to accept the version of the respondent.

17.The petitioner though claimed that he was earning Rs.4,000/- and odd, no documentary evidence is placed to show that he was earning Rs.4,500/- per month as cleaner. Therefore, I take the salary @ Rs.3,000/- per month before the accident and the annual income would be Rs.36,000/- and the same should be multiplied with percentage of disability, the relevant multiplier will be “18”, since the petitioner was aged between 20-25 years, the total amount arrived at

Rs.4,21,200/- (Rs.36,000/- X 65% X 18 divided by 100). Apart from it, I award

Rs.30,000/- towards pain and suffering for loss of right limb; Rs.15,000/- towards pain and suffering for the fracture of left leg. The petitioner underwent treatment for two months, the loss of income for two months would be Rs.6,000/- (Rs.3,000/- X 2). I also award Rs.5,000/- towards nutritious food and

Rs.12,600/- towards costs of medicines, as per Ex-A6 and Rs.3,000/- towards transport charges, the total would be Rs.4,92,800/-. This is the compensation amount payable to the petitioner by the respondents jointly and severally.

Accordingly, this issue is answered.

18.ISSUE NO.3:IN THE RESULT, the petition is partly allowed with proportionate costs for Rs.4,92,800/- (Rupees four lakhs ninety two thousand

MVOP No.1650 of 20077 and eight hundred only) with subsequent interest @ 6% p.a. on the said amount from the date of petition till the date of deposit against the respondent

Nos.1 to 3 jointly and severally and the respondent Nos.1 to 3 are granted one month time to deposit the same.

On deposit, the petitioner is permitted to withdraw an amount of

Rs.50,000/- and the remaining balance amount shall be kept in fixed deposit for a period of three years. The petitioner is entitled for proportionate costs.

The petitioner is entitled to withdraw periodical interest.

Advocate fee is fixed at Rs.2,000/-.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 2nd day of April, 2013).

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENTS:

PW1:Perumandla Veera SwamyRW1: G.Krupakar PW2:Dr.K.Ramkumar Reddy PW3:Perumandla Parsharamulu

EXHIBITS MARKED

FOR PETITIONER:

Ex-A1 is the C.C. of FIR along with complaint. Ex-A2 is the C.C. of charge sheet. Ex-A3 is the C.C. of medical certificate Ex-A4 is the original discharge card. Ex-A5 is the original disability certificate. Ex-A6 are the bunch of medical bills.

Ex-X1 is the case-sheet.

MVOP No.1650 of 20078

FOR RESPONDENTS:

Ex-B1 is the copy of policy. Ex-B2 is the office of notices issued to the owner and driver of the crime vehicle. Ex-B3 is the un-served registered post (returned) sent to the driver.

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS

TRIBUNAL (I-ADDITIONAL DISTRICT JUDGE) WARANGAL.

Tuesday, this the 2nd day of April, 2013

PRESENT:C.Vijayasaradhi Acharyulu, Chairman, Motor Accidents Claims Tribunal, (I-Additional District Judge), Warangal.

M.V.O.P.NO.1333 OF 2006

BETWEEN:

1.Nomula Manemma

2.Nomula Shoban...Petitioners

AND

1.Maduri Vittal

2.Domala Sujatha

3.The New India Assurance Company Limited, rep. by its Branch Manager, Khammam.

4.The New India Assurance Company Limited, rep. by its Divisional Manager, Warangal.

5.Nomula Mallikamba (added as per Orders in

I.A.No.161/2010, dated 24.6.2010)....Respondents

This petition is coming before me for final hearing on 15.2.2013 in the presence of Sri P.Ravi, Advocate for the petitioners and of Sri Ch.Linga

Murthy, Advocate for the respondent No.4 and of Sri S.Sunil, Advocate for the respondent No.5 and the respondent Nos.1 to 3 having remained ex-parte and having perused the material papers and having been stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

1.This application is filed under Section 166(1)(c) of M.V. Act 1988 r/w Rule 455 of A.P.M.V. Rules, 1989, and the brief allegations are as follows:

i)The deceased-Nomula Satyanarayana is the husband of petitioner No.1 and father of petitioner No.2 and he was running a tailor shop at Narsampet under the name and style of “GAYLORDS TAILORS” and he was earning

Rs.6,000/- per month and on 23.1.2006 the deceased and others boarded an

MVOP No.1333 of 20062

Auto bearing No.AP36 W-1005 at Papaiahpet and proceeding towards

Narsampet and at about 7.45 p.m., the auto reached the outskirts of Papaiahpet and at that time, the driver of the auto drove the said auto in a rash and negligent manner, due to which the auto got over-turned and the deceased and other passengers received injuries and the deceased died at about 9.30 p.m., while undergoing treatment in Government Hospital, Narsampet and the police

Chennaraopet registered a case in Cr.No.7/2006 against the driver of the auto and the petitioners seek compensation of Rs.6,00,000/- against the respondent

No.1, the driver of the auto, the respondent No.2, the owner of the auto and the respondent Nos.3 and 4 are the insurance companies, which insured the auto.

The respondent No.5 is the mother of the deceased-N.Satyanarayana and a sum of Rs.6,00,000/- be awarded to the petitioners and respondent No.5. Hence, the petition.

2.The respondent Nos.1 to 3 remained ex-parte.

3.The respondent No.5 filed counter and the brief allegations are that she is mother of the deceased-N.Satyanarayana and the respondent No.5 claimed that she be awarded part of the compensation.

4.The respondent No.4 filed counter and the brief allegations are as follows:

i)The allegations made in the petition are false and denied. It is denied that the deceased was aged 42 years, working as tailor and earning Rs.6,000/- per month. The insurance company was not informed about the accident. The compensation claimed is excessive. It is denied that the accident occurred in the manner, as alleged. It is denied that the auto was insured with this respondent.

It is denied that the person, who was driving the auto was having valid driving license and permit to ply the auto. The auto was over-loaded with five passengers, which is more than the seating capacity and the owner of the auto

MVOP No.1333 of 20063 had violated the terms of the policy. Therefore, this respondent is not liable to pay any compensation. Hence, the petition be dismissed.

5.On the basis of above said pleadings, the following issues were framed by this Court:

1) Whether the accident that occurred on 23.1.2006 was due to rash and negligent driving by the driver of Auto bearing No.AP 36 W 1005 over turned near curve, resulting in death of Nomula Satyanarayana @ Sathaiah?

2) Whether the petitioners are entitled to compensation? If so, to what amount and from whom?

3) To what relief?

6.The petitioners to prove the claim examined PW1-Nomula Manemma,

PW2-P.Samuel, PW3-D.Srinivas and got marked Exs-A1 to A10. The respondents did not adduce any evidence, but got marked Ex-B1/copy of policy by way of consent.

7.Heard both sides.

8.ISSUE NO.1:The case of the petitioners is that the deceased-

Nomula Satyanarayana was working as tailor and having tailoring shop known as “GAYLORDS TAILORS” at Narsampet and he was earning Rs.6,000/- per month and on 23.1.2006 the deceased boarded into an auto bearing No.AP36 W-1005 and he was proceeding from Papaiahpet to Narsampet and at about 7.45 p.m., the auto was driven in a rash and negligent manner and at the outskirts of the village, the auto got over-turned and the deceased fell down and the deceased received injuries along with other occupants and ultimately succumbed to injuries.

9.PW1 is the wife, she speaks with regard to the occurrence of the accident and she got marked Ex-A1/certified copy of FIR, Ex-A2/certified copy inquest

MVOP No.1333 of 20064 report, Ex-A6/registration certificate, Ex-A7/driving license, Ex-A8/insurance policy, Ex-A9/tax receipt for the tailoring shop and Ex-A10/date of birth certificate.

In the cross-examination, PW1 stated that she was not traveling in the auto and she did not witness the accident and she did not lodge the complaint.

10.PW2 is one of the witnesses and injured and he speaks that the auto was driven in a rash and negligent manner, due to which it got over-turned near a curve of the road and the deceased and other occupants including PW2 fell down and received injuries and the deceased died. In the cross-examination, he stated that only three persons were traveling in the auto. He denied the suggestion that five persons were traveling and he states that he received injuries in the accident and one person died. This is the evidence on record.

11.The complaint was lodged on 23.1.2006 at about 9.30 p.m. This complaint was lodged by one Yakaiah. Ex-A2 is the inquest report. Ex-A4 is the charge sheet, which shows that the driver of the auto was the charge-sheeted by the police, wherein four persons were injured other than the deceased. Ex-A5 is the accident report of the MVI and the damages shown are wind screen was broken. He also opined that the accident was not due to any mechanical defect.

12.In the present case, even assuming that the auto was over loaded unless it is driven with high speed and a sharp turn had been taken by the driver, the auto would not have got over-turned. The fact that the auto got over-turned itself shows that the auto driven with high speed unmindful of sharp curve at the end of the road. Therefore, it amply proves that the driver of the auto had negligently driven the vehicle. Accordingly, this issue is answered.

13.ISSUE NO.2:It is the case of the petitioners that the deceased was running a tailoring shop known as “GAYLORDS TAILORS” at Narsampet, and he engaged three workers and the deceased was earning Rs.6,000/- per month

MVOP No.1333 of 20065 on tailoring. PW1 in the cross-examination stated the deceased used to pay

Rs.2,000/- each to the workers and three workers were engaged and she filed a certificate from Gram Panchayat to show the income of the deceased. She stated that her mother-in-law is alive.

14.PW3 speaks the fact that he is working as tailor at Hyderabad and he knows the deceased-N.Satyanarayana and he was a skilled tailor and he was having tailoring shop at Narsampet and earlier PW3 worked as tailor in Gaylords

Tailors, which belongs to the deceased till his death and he used to pay

Rs.5,000/- as salary and the deceased was earning Rs.6,000/- per month. In the cross-examination, he stated that there are no records to show that he was working with the deceased.

15.Ex-A9 is the tax receipt issued by Gram Panchayat, Narsampet, which shows that the license fee for tailoring shop was collected by the Municipality, but it does not show the income of the deceased. From this one can safely say that the deceased was a tailor. When there is no proof with regard to the income of the deceased, I take his income notionally @ Rs.3,000/- per month. The deceased was said to be 43 years, as per Ex-A10, the date of birth certificate at the time of his death. Ex-A3/PME report shows that he was aged about 45 years. Therefore, I take the age of the deceased as 45 years and the relevant multiplier will be “14”. The deceased annual income after deducting 1/3rd is

Rs.24,000/- (Rs.36,000/- X 2/3) and if the same is multiplied with “14”, the total amount payable is Rs.3,36,000/- (Rs.24,000/- X 14). Apart from this, I award

Rs.10,000/- towards loss of estate; Rs.5,000/- towards consortium; Rs.2,000/- towards funeral expenses. Now, the total compensation amount comes to

Rs.3,53,000/-. This is the amount payable by the respondents jointly and severally. The respondent No.4 filed Ex-B1, which is copy of policy under which the vehicle was insured.

MVOP No.1333 of 20066

Accordingly, this issue is answered.

16.ISSUE NO.3:IN THE RESULT, the petition is partly allowed with proportionate costs for Rs.3,53,000/- (Rupees three lakhs fifty three thousand only) with subsequent interest @ 6% p.a. on the said amount from the date of petition till the date of deposit against the respondent Nos.1 to 4 jointly and severally and the respondent Nos.1 to 4 are granted one month time to deposit the same.

On deposit, the petitioner No.1 is entitled to Rs.2,00,000/-, the petitioner

No.2 is entitled to Rs.1,00,000/- and the respondent No.5 is entitled to

Rs.53,000/-. The petitioners are entitled for proportionate costs.

Out of their shares, the petitioner Nos.1 and 2 are entitled to withdraw

Rs.25,000/- each and their remaining amounts shall be kept in fixed deposit for a period of three years in their names.

The respondent No.5 is entitled to withdraw entire amount with interest.

Advocate fee is fixed at Rs.2,000/-.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 2nd day of April, 2013).

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW1:Nomula Manemma- None - PW2:P. Samuel PW3:Deekonda Srinivas

EXHIBITS MARKED

FOR PETITIONERS:

MVOP No.1333 of 20067

Ex-A1 is the C.C. of FIR along with complaint. Ex-A2 is the C.C. of Inquest report. Ex-A3 is the C.C. of PME report. Ex-A4 is the C.C. of charge sheet. Ex-A5 is the C.C. of MVI report. Ex-A6 is the attested copy of registration certificate of crime vehicle. Ex-A7 is the attested copy of driving license. Ex-A8 is the attested copy of insurance policy. Ex-A9 is the original tax receipt issued by Gram Panchayat, Narsampet. Ex-A10 is the original date of birth certificate issued by H.M., ZPSS Lohitha

FOR RESPONDENTS:

Ex-B1 is the copy of policy (with consent)

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS

TRIBUNAL (I-ADDITIONAL DISTRICT JUDGE) WARANGAL.

Monday, this the 1st day of April, 2013

PRESENT:C.Vijayasaradhi Acharyulu, Chairman, Motor Accidents Claims Tribunal, (I-Additional District Judge), Warangal.

M.V.O.P.NO.186 OF 2007

BETWEEN:

Ramadasu Sambaiah...Petitioner

AND

1.M. Uppalaiah

2.National Insurance Company Limited, rep. by its Branch Manager, Office at Wyra Road, Khammam District.

3.National Insurance Company Limited, rep. by its Branch Manager, Office

at J.P.N. Road, Warangal....Respondents

This petition is coming before me for final hearing on 19.2.2013 in the presence of Sri P.Sanjeeva Reddy, Advocate for the petitioner and of Sri

K.Sreenath, Advocate for the respondent No.3 and the respondent Nos.1 and 2 having remained ex-parte and having perused the material papers and having been stood over for consideration till this day, this Court delivered the following:

:: J U D G M E N T ::

1.This application is filed under Section 166(i)(a) of M.V. Act 1988 r/w Rule 455 of A.P.M.V. Rules, 1989 and the brief allegations are as follows:

i)The petitioner is a businessman and earning Rs.5,000/- per month, on 3.1.2006 the petitioner boarded an auto bearing No.AP36 W-3022 at Kamaram to go to Kothaguda and at 6.00 p.m. when the auto reached near Gangaram crossroad, the auto driver drove the said auto in a rash and negligent manner with high speed, due to which the auto got over-turned and the petitioner and two others received injuries along with the driver. Therefore, the petitioner received

MVOP No.186 of 20072 injuries and was shifted to Ganesh Orthopedic Hospital, Hanamkonda and he was operated for the grievous injuries received by him and he was in-patient till 15.1.2006 and since last five months he has been following up treatment and the petitioner incurred Rs.40,000/- towards treatment and extra-nourishment and the petitioner is suffering with permanent disability and he is unable to lift weights and the disability is to the extent of 40%. On a complaint lodged by

Md.Bashamiya, the Police Kothaguda registered a case in Cr.No.2/2006 against the auto driver. Therefore, the petitioner is claiming compensation of

Rs.2,50,000/- against the respondent No.1, the owner of the auto and the respondent No.2, the insurance company which insured the said auto.

Therefore, an award of Rs.2,50,000/- be passed. Hence, the petition.

2.The respondent No.3 filed counter, since the respondent Nos.1 and 2 remained ex-parte and the brief allegations are as follows:

i)It is denied that the accident took place in the manner, as alleged. It is denied that the petitioner received grievous injuries. It is denied that the auto was driven in a rash and negligent manner, as claimed, by the petitioner. It is denied that the respondent No.3 issued insurance policy for the auto bearing

No.AP36 W-3022. This respondent is not liable to pay any compensation. The respondent No.1 is the registered owner and it is to be established that the auto was driven without violating terms of policy and the driver was holding valid driving license. The compensation claimed is excessive. Therefore, the petition be dismissed.

3.On the basis of above said pleadings, the following issues were framed by this Court:

1) Whether the accident that occurred on 3.1.2006 was due to rash and negligent driving on Auto bearing No. AP 36 W 3022 by its driver resulting in injuries to the petitioner?

MVOP No.186 of 20073

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

3) To what relief?

4.The petitioner to prove his claim examined himself as PW1 and also examined PW2-Dr.S.Laxminarayana and PW3-Dr.P.Surender Reddy and got marked Exs-A1 to A10. The respondents did not examine any witnesses, but got marked Ex-B1/copy of policy.

5.Heard both sides.

6.ISSUE NO.1:It is the case of the petitioner that on 3.1.2006 he boarded an auto bearing No.AP36 W-3022 to proceed to Kothaguda and at 6.00 p.m. at Gangaram crossroad, the driver of the auto drove the same in a rash and negligent manner with high speed and lost control and the auto got over turned, due to which the petitioner received fracture of right humerous; un-displaced fracture of medial malleolus; abrasion over right leg and left knee.

7.The petitioner as PW1 stated the same fact and also got marked Ex-

A1/certified copy of FIR, Ex-A3/certified copy of charge sheet. In the cross- examination, he stated that there were two more passengers along with him, who also received injuries. He denied the suggestion that there were five persons as passengers and the accident occurred due to over loading of the auto.

8.Now, coming to the documentary evidence filed by the petitioner, Ex-

A1/FIR, which shows, the complaint was lodged on 4.1.2006 at 6.00 p.m., wherein, it was stated that the petitioner, one Yakub Pasha and B.Damoder

Reddy were traveling in the ill-fated auto, which met with an accident, as it was driven with high speed, due to which, the auto got over turned and in the said accident, the driver of the auto and the above said persons received injuries.

The name of the petitioner is also mentioned as one of the occupants. Ex-A3 is

MVOP No.186 of 20074 the charge sheet, under which the driver of the auto was charge-sheeted by the police. If the evidence of PW1 and the above documentary evidence is considered, the fact that the auto got over turned itself indicates that it was driven in a rash and negligent manner, resulting in the accident in which the petitioner received injuries. Therefore, this issue is answered in favour of the petitioner.

9.ISSUE NO.2:As per PW1, in the said accident, he received two grievous injuries and two simple injuries and they are closed fracture of right humerous; un-displaced fracture of medial malleolus and two abrasions and after the accident he was taken to Ganesh Orthopedic Hospital, Hanamkonda, where, he underwent treatment. The petitioner as PW1 got marked Ex-A2/certified copy of medical certificate, Ex-A6/discharge card, Ex-A7/discharge bill and Ex-

A9/original disability certificate.

10.PW3 is the doctor, who was running Ganesh Orthopedic Private Nursing

Home and as per his evidence, PW1 came to his hospital on 3.1.2006 at 9.00 p.m. and he was admitted and found (1) comminuted supra condylar fracture humerous of right elbow; (2) fracture medial melleolus of right ankle; (3) abrasion of right leg and (4) abrasion of left knee. He further stated that he treated injury

No.1 with surgery and for injury No.2 he applied POP. PW1 was discharged on 15.1.2006. In the cross-examination, he admits that the patient has not taken treatment prior to his admission into his hospital.

11.PW1 states that he suffered with disability to the extent of 40% and to prove this aspect, he examined PW2-Dr.S.Laxminarayana, who was working as

Assistant Professor of Department of Orthopedics and also Member of Regional

Medical Board and he examined PW1 on 18.12.2006 and noticed post operative communited intra-articular fracture of humerous on right elbow with a gross restricted movements of elbow and the disability was assessed at 40%, as per

MVOP No.186 of 20075

Ex-A9. He denied the suggestion that it is a temporary disability. He stated that the disability may be reduced, if he undergoes proper physiotherapy and at present the disability of the petitioner is about 30%. From the evidence of this witness, the disability suffered by PW1 is 30%, since the restriction to the right hand is impaired, the petitioner is a businessman and his right hand movement is impaired and the disability assessed by PW2 that at present is at about 30% is to be taken into consideration.

12.The petitioner has not placed any material to show about his income.

Therefore, I take the income of PW1 @ Rs.3,000/- per month and his annual income would be Rs.36,000/- (Rs.3,000/- X 12) and the percentage of disability was suffered by him is about 30%. The petitioner was aged 44 years at the time of accident, as per Ex-A9 and the relevant multiplier is “14”. Therefore, the annual income X percentage of disability X relevant multiplier divided by 100 (Rs.36,000/- X 30 X 14/100) is Rs.1,51,200/-. I award Rs.22,300/- towards treatment and other medical charges, as the petitioner spent that amount, as evident from Ex-A7 and Ex-A8. Apart from this, I also award Rs.20,000/- towards two grievous injuries suffered by PW1 and towards pain and suffering and for other two simple injuries, I award Rs.2,000/- each totaling to Rs.4,000/- and also I award Rs.3,000/- towards loss of income, as the petitioner must have taken rest at least for one month and I also award Rs.2,000/- towards nutritious food. Now, the total compensation amount payable is Rs.2,02,500/- to the petitioner by the respondent Nos.1 to 3.

Accordingly, this issue is answered.

13.ISSUE NO.3:IN THE RESULT, the petition is partly allowed with proportionate costs for Rs.2,02,500/- (Rupees two lakhs two thousand and five hundred only) with subsequent interest @ 6% p.a. on the said amount from the date of petition till the date of deposit against the respondent Nos.1 to 3

MVOP No.186 of 20076 jointly and severally and the respondent Nos.1 to 3 are granted one month time to deposit the same.

On deposit, the petitioner is permitted to withdraw Rs.50,000/- and the remaining amount shall be kept in fixed deposit for a period of three years. The petitioner is entitled for proportionate costs.

Advocate fee is fixed at Rs.2,000/-.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 1st day of April, 2013).

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENTS:

PW1:Ramadasu Sambaiah- None - PW2:Dr.S.Laxminarayana PW3:Dr.P.Surender Reddy

EXHIBITS MARKED

FOR PETITIONER:

Ex-A1 is the C.C. of FIR along with complaint. Ex-A2 is the C.C. of medical certificate. Ex-A3 is the C.C. of charge sheet. Ex-A4 is the copy of insurance cover note. Ex-A5 is the copy of registration certificate of crime vehicle. Ex-A6 is the original discharge card. Ex-A7 is the original discharge bill. Ex-A8 is the bunch of medical bills. Ex-A9 is the original disability certificate. Ex-A10 are the X-ray films (3).

FOR RESPONDENTS:

Ex-B1 is the copy of policy.

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

MVOP No.186 of 20077

(I-ADDL. DISTRICT JUDGE)

WARANGAL

IN THE COURT OF THE I-ADDITIONAL DISTRICT JUDGE, WARANGAL

Monday, this the 1st day of April, 2013

PRESENT:C.Vijayasaradhi Acharyulu, I-Additional District Judge, Warangal.

APPEAL SUIT NO.165 OF 2010

BETWEEN:

Rachakonda Prameela...Appellant

AND

1.The State of A.P. rep. by District Collector, Warangal.

2.To whom-so-ever it may concerned....Respondents

This Appeal Suit is preferred by the appellant, aggrieved by the

Order and Decree passed in S.R.No.929 of 2010, dated 28.10.2010 on the

file of Junior Civil Judge, Parkal.

BETWEEN:

Rachakonda Prameela...Plaintiff

AND

1.The State of A.P. rep. by District Collector, Warangal.

2.To whom-so-ever it may concerned....Defendants

This appeal coming on 19.2.2013 for final hearing before me in the presence of Sri D. Satya Sagar, Advocate for the appellant and of Sri

G.Sanjeeva Reddy, Government Pleader for the respondent No.1 and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

This Appeal is preferred against the Order of the Junior Civil Judge,

Parkal, in S.R.No.929/2010, dated 28.10.2010, wherein, the learned Junior Civil

Judge rejected the plaint filed by the plaintiff/appellant. Now, the present appeal

is filed challenging the findings of the trial Court.

AS No.165 of 20102

2.Before the trial Court, the plaintiff filed the suit to pass a decree and relief of declaration declaring that the plaintiff is the legal-heir in view of being legally wedded wife of late Rachakonda Satyanarayana and to award costs. In the said plaint, it was claimed by the plaintiff that she is wife of late R.Satyanarayana, who died on 22.3.2010 leaving behind the plaintiff as his legal-heir and her marriage took place with the deceased-R.Satyanarayana in the year 1970 and they lead marital life for about 12 years and thereafter when her husband neglected to maintain, she filed M.C.No.1/1999 before JFCM, Parkal, and maintenance was granted and later on, it was enhanced to Rs.2,000/- and revision was filed before the Hon’ble High Court of Andhra Pradesh and the Hon’ble High Court in

Cr.R.C.No.1756/2006 confirmed the same and the deceased was working in B.C.

Hostel, Kothagudem of Khammam District as a cook and on 28.2.2008 he retired and on 22.3.2010 he died and the plaintiff got issued legal notice on 30.3.2010 to the defendants to avoid wrong claims and there are no other legal heirs except the plaintiff. The plaintiff approached the defendants, the defendants demanded the plaintiff to produce legal heir certificate. Therefore, the suit is filed for declaration that the plaintiff is the legally wedded wife of late R.Satyanarayana.

This suit was rejected by the trial Court even before numbering on 28.10.2010.

3.The learned Counsel for the appellant contends that the trial Court erred in holding that the plaintiff is not entitled for declaration and the findings of the trial

Court that it has no jurisdiction to entertain the declaration of marital status and the plaintiff is under obligation of mentioning retirement benefits, family pension, etc., and to implead the officials, who disputed the right to succeed the said benefits and the suit was notionally valued at Rs.5,000/- and the Court has no territorial jurisdiction to entertain the present suit and also it has no pecuniary jurisdiction and the suit was undervalued. Therefore, it was rejected.

AS No.165 of 20103

4.Now, the point that arises for consideration is “whether the trial

Court was justified in rejecting the plaint under Order VII Rule 11

of CPC”?

5.POINT:A reading of Order VII Rule 11(a) of CPC, which shows that plaint be rejected, if it does not disclose the cause of action and Order VII Rule 11(b) CPC – lays down that the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time fixed by the

Court, fails to do so and as per Order VII Rule 11(d) CPC - the suit appears from the statement in the plaint to be barred by law.

6.Now, coming to the allegations made in the plaint it shows that the plaintiff claims to be legally wedded wife of Rachakonda Satyanarayana and she is seeking declaration to that effect against the defendant No.1, the Government and the defendant No.2, all concerned. It is the case of the plaintiff that the deceased-R.Satyanarayana worked as a cook in B.C. Hostel, Kothagudem, which is under the control of defendant No.1 and after his retirement, he died.

7.The trial Court has raised number of objections in the Order. The first objection of the trial Court is that the plaintiff is seeking for declaration that she is legally wedded wife and legal-heir of R.Satyanarayana and it is only a mere declaratory relief and there was no schedule attached to the plaint and no individual was cited as defendant and it is not an application under Succession

Act and the Court has no jurisdiction to entertain the suit for declaration of marital status. I am unable to agree with this finding, because, Section 34 of Special

Relief Act, 1963 states that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need

AS No.165 of 20104

not in such suit ask for any further relief. There is a proviso that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

8.In the present case, the plaintiff is asking for only declaration that she is legally wedded wife of R.Satyanarayana, it is a suit to declare that she is entitled to a legal character that she is legally wedded wife of the deceased-

R.Satyanarayana. When such is the case, it is not known how the trial Court came to conclusion that the Court has no power to declare the marital status of a person, when Section 34 of the Specific Relief Act, 1963, clearly provides.

9.It is stated by the trial Court that the plaintiff is under obligation to mention the retirement benefits and family pension and to implead the individuals or officials, who disputed her right to succeed the retirement benefits and family pension of the deceased-R.Satyanarayana. This reasoning is also not correct, because, is the trial Court felt that the suit was undervalued, it ought to have given time under Order VII Rule 11(b) of CPC to correct the valuation. The plaintiff is a woman and unless the calculation made by the Government officials with reference to the relevant G.Os., the retirement benefits cannot be assessed by her and the Court always has got power to direct the plaintiff to pay Court fee on the amount ascertained by the Court. Therefore, the objection taken by the trial Court is also not correct.

10.It is true that the plaintiff has not prayed any ancillary relief that the plaintiff is only interested to be declared as legally wedded wife of the deceased-

R.Satyanarayana and nothing else and when the plaintiff does not pray for any other relief, the Court also should not ask her as to pray ancillary reliefs to the relief of declaration. The trial Court has not stated as to why, it came to conclusion that it has no territorial jurisdiction or pecuniary jurisdiction. The plaintiff has shown that she is residing at Shayampet and in the plaint, she stated

AS No.165 of 20105

that cause of action arose at Shayampet, as her marriage took place with the deceased-R.Satyanarayana at that place. Therefore, when the plaintiff has stated so, that she is resident of Shayampet and there the cause of action took place, in view of the death of her husband and also in view of the performance of her marriage in Shayampet, the trial Court was not correct in holding that it has no territorial jurisdiction.

11.Therefore, under these circumstances, I allow the appeal and set-aside the Order of the trial Court.

According, this point is answered.

12.IN THE RESULT, the Appeal Suit is allowed and the Order and Decree of

Junior Civil Judge, Parkal, passed in S.R.No.929/2010, dated 28.10.2010 is set- aside and there is no order as to costs. The trial Court is directed to number the plaint, if it is otherwise, in order.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 1st day of April, 2013).

I-ADDITIONAL DISTRICT JUDGE,

WARANGAL.

To The Junior Civil Judge, Parkal.

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS

TRIBUNAL (I-ADDITIONAL DISTRICT JUDGE) WARANGAL.

Monday, this the 1st day of April, 2013

PRESENT:C.Vijayasaradhi Acharyulu, Chairman, Motor Accidents Claims Tribunal, (I-Additional District Judge), Warangal.

E.P.NO.164 OF 2010

IN

M.V.O.P.NO.146 OF 2001

BETWEEN:

1.Nemarugommula Sukrutha

2.Nemarugommula Sowmya

3.Nemarugommula Navya...Decree Holders

AND

1.N. Prasad

2.The United India Insurance Company Limited, Rep. by its Divisional Manager, Pochamma Maidan, Warangal....Judgment Debtors

This petition coming before me for final hearing on 18.2.2013 in the presence of Sri M.Ajay Kumar, Advocate for the decree holders and of Sri

B.Ramesh Goud, Advocate for the judgment debtor No.2, and the matter having stood over for consideration till date, this Court made the following:

:: O R D E R ::

The decree holders seek depositing of compensation of Rs.4,90,601/- by attaching the movable properties of the J.Dr.No.2, which is an insurance company.

2.The J.Dr.No.2 deposited a sum of Rs.4,04,816/-. As per the decree holders, there is balance amount of Rs.85,785/- to be deposited into the Court, for which the Counsel for the J.Dr.No.2 states that the income tax was deducted

E.P.No.164 of 20102

from the total compensation and the remaining amount was deposited into the

Court. Therefore, he prayed that EP be closed.

3.Whereas, the learned Counsel for the decree holders states that the insurance company has no power to deduct income tax and the J.Dr.No.2 is bound to deposit income tax amount also.

4.In this regard, the Hon’ble High Court of Gujarat reported in 2004(2)

TAC 717, between United India Insurance Co., Ltd., Valsad Vs. Mitaben

Dharmeshbhai Shah and others, held that “as per Income Tax Act, the deduction of tax at source by the Insurance Company on the interest on the awarded amount. It was held that the Insurance Company was bound to deduct the tax at source payable towards income tax on the interest of the awarded amount”.

5.In view of the said decision, the Insurance Company is bound to deduct the income tax on the interest amount awarded in respect of compensation payable by the Insurance Company. No contrary decision has brought to the notice of this Court, which prohibits the Insurance Company or exempts the claimants from payment of compensation on the interest component of the compensation amount payable under Motor Vehicles Act. Since, the entire amount is deposited, the EP is closed.

6.IN THE RESULT, the Execution Petition is closed, recording full satisfaction.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 1st day of April, 2013).

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

E.P.No.164 of 20103

FOR DECREE HOLDERS: FOR JUDGMENT DEBTORS:

- None - - None -

EXHIBITS MARKED

FOR DECREE HOLDERS: FOR JUDGMENT DEBTORS:

- Nil -- Nil -

CHAIRMAN

M.V.ACCIDENTS CLAIMS TRIBUNAL

(I-ADDL. DISTRICT JUDGE)

WARANGAL