Sri. Ch.K.Durga Rao

BEFORE THE PRINCIPAL MOTOR ACCIDENTS CLAIMS' TRIBUNAL: NELLORE

Present: CH.K.DURGA RAO Chairman

Principal Motor Accidents Claims Tribunal

Nellore

Friday, the 22nd day of April, 2016

M.V.O.P.No.946/2011

&

M.V.O.P.No.947/2011

M.V.O.P.946/2011

1. Vallepu Chenchaiah

2. Vallepu Lakshamma .. Petitioners

Vs.

1. Ch.Venkateswara Rao (Died)

2. The New India Assurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, G.T. Road, Opp: to Nellore Bus-stand, Ongole.

3. Chalasani Padmavathi

4. Chalasani Sri Rama Chodawari .. Respondents

[Respondents 3 and 4 are added as L.Rs. of the deceased 1st Respondent As per orders in I.A.No.13/2015

Dated 29.6.2015]

A N D

M.V.O.P.No.947/2011

Vallepu Siva Prasad .. Petitioner

Vs.

1. Ch.Venkateswara Rao (Died)

2. The New India Assurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, G.T. Road, Opp: to Nellore Bus-stand, Ongole.

3. Chalasani Padmavathi

4. Chalasani Sri Rama Chodawari .. Respondents

[Respondents 3 and 4 are added as L.Rs. of the deceased 1st Respondent As per orders in I.A.No.12/2015

Dated 29.6.2015]

These petitions coming on 29.3.2016 for final hearing before me, in the presence of Ms G.V.L.Nagamani – advocate for the petitioners, and of Sri N.Kodanda Rami Reddy – advocate for the 2nd respondent, and the respondents 3 and 4 having remained ex parte in both the petitions, and -: 2 :- the matter having stood over for consideration till this day, the Court made the following: -

COMMON ORDER

Both the petitioners in M.V.O.P.No.946/2011, who are the parents of the deceased Vallepu Subbalakshmi, filed the petition under

Section 166 of the Motor Vehicles’ Act (for short ‘the Act’), claiming compensation of Rs.15,00,000/- for the death of the deceased in the accident occurred on 20.9.2011.

(i) The sole petitioner in M.V.O.P.No.947/2011, who is no other than the brother of the deceased in M.V.O.P.No.946/2011, filed the petition under Section 166 of the Act, claiming compensation of Rs.1,50,000/- for the injuries sustained by him in the very same accident.

2. The contentions of the petitioners in both the petitions, in brief, are as follows: -

(i) On 20.9.2011, after completion of her duty at Venkatagiri as

Assistant Beat Officer, Vallepu Subbalakshmi (the deceased in

M.V.O.P.No.946/2011) returned to Nellore by Narayanadri Express, got down at Nellore Railway Station, and was proceeding on foot from the

Railway Station to her house, along with her brother Vallepu Siva Prasad (the petitioner in M.V.O.P.No.947/2011), and at about 9.45 p.m. when they reached near Simhapuri Hotel, Railway Station Road, Nellore, one Mahindra

Jeep bearing registration No.AP-16-TB-4242, being driven in a rash and negligent manner and without blowing horn, came and hit both of them and fled away from the spot. Due to the said impact both of them fell down on the road and sustained severe injuries, and were shifted to Bollineni

Hospital, Nellore, and the deceased succumbed to the injuries at 11.45 p.m.

on the same day.

-: 3 :-

(ii) The petitioner in M.V.O.P.No.947/2011, aged about 30 years, took treatment for two months and spent Rs.10,000/- towards medical expenses, and he also sustained loss of income of Rs.80,000/- since he was running Juice Shop in A.P.S.R.T.C. Atmakur Bus-stand, Nellore, by paying rent of Rs.15,000/- and earning Rs.40,000/- per month.

(iii) The matter was reported to the Station House Officer, North

Traffic Police Station, Nellore, who registered a case in Crime No.58/2011 for the offences under Sections 304-A and 337 I.P.C. against the driver of the said jeep.

(iv) The deceased was aged about 24 years and was unmarried. She was working as Assistant Beat Officer, earning Rs.11,707/- per month towards salary and contributing the same for the maintenance of the family.

Both the claimants in M.V.O.P.No.946/2011, who are the parents of the deceased, filed the petition claiming compensation, since the sister and brother of the deceased were married and were living separately.

(v) The petitioners in both the petitions are entitled to claim compensation against the 1st respondent, who is the owner of the jeep and under whose employment the driver was working, and the 2nd respondent, who is the insurer of the vehicle, jointly and severally. As the 1st respondent died, leaving behind him his wife and son, who are the respondents 3 and 4 as his heirs to succeed to his estate, and also the offending vehicle, they have been impleaded as such, as per orders dated 29.6.2015 in

I.A.No.13/2015 in M.V.O.P. No.946/2011 and I.A.No.12/2015 in

M.V.O.P.No.947/2011, and they are jointly and severally liable to pay compensation.

3. The 1st respondent who remained ex parte, died, and the respondents 3 and 4, who were subsequently impleaded as his legal-heirs, also remained ex parte.

-: 4 :-

4. The 2nd respondent insurance company filed separate counters in both the petitions, admitting that the 1 st respondent is the owner of the

Jeep, and also taking place of the accident, but contending inter alia as follows: -

(i) There was no negligence on the part of the driver of the Jeep, and the accident had occurred while the deceased and her brother (the petitioner in M.V.O.P.No.947/2011) tried to cross the road abruptly without giving any signal and, therefore, the accident took place due to their own negligence. The driver of the jeep had no valid and effective driving license.

The compensation claimed is highly excessive and exorbitant. The petitions are liable to be dismissed with costs.

5. As per order dated 1.4.2014, on the joint memo, both the petitions were clubbed and common evidence is recorded in M.V.O.P.

No.946/2011.

6. I.A.No.360/2014 filed by the 2nd respondent in M.V.O.P.

No.946/2011 was allowed by an order dated 11.4.2014.

7. Now, the points that arise for determination are: -

(1) Whether the accident took place due to the rash and negligent

driving of the Mahindra Jeep bearing registration No.AP-16-TB-

4242, and whether the deceased/injured had also contributed in

taking place of the accident?

(2) Whether the petitioners are entitled to claim any compensation?

If so, how much amount and from which of the respondents?

To what relief? (3)

8. The 1st petitioner in M.V.O.P.No.946/2011 and the sole petitioner in M.V.O.P.No.947/2011 got themselves examined as PWs 1 and 2 respectively and got marked Exhibits A-1 to A-10.

(i) The Administrative Officer of the 2nd respondent has been examined as RW-1 and Exhibits B-1 to B-4 have been marked.

-: 5 :-

9. Both sides’ filed written-arguments. Perused the same.

10. POINT No.(1) (1) Whether the accident took place due to the rash and negligent driving of the Mahindra Jeep bearing registration No.AP-16-TB-4242, and whether the deceased/injured had also contributed in taking place of the accident?

(i) Taking place of the accident on 20.9.2011 at about 9.45 p.m.

near Simhapuri Hotel, Railway Station Road, Nellore involving the Mahindra

Jeep bearing registration No.AP-16-TB-4242, sustaining of injuries by the deceased and PW-2, and succumbing to the said injuries by the deceased, are not in dispute. The only contention of the 2nd respondent is that the deceased and PW-2 were crossing the road abruptly without observing the traffic and without giving any signals and, therefore, they are solely responsible and contributed in taking place of the accident. So, the evidence of PW-2, who is the injured-cum-eyewitness, is crucial.

(ii) PW-2 in his chief affidavit testified to their version as pleaded in both the petitions. It is pertinent to note that except giving a suggestion that due to their sudden crossing of the road the accident took place and the driver of the Jeep was not at fault, which has been emphatically denied, no contra evidence could be elicited. So, the evidence of PW-2 as to the manner of taking place of the accident remained un-contradicted.

(iii) A perusal of Exhibit A-1, which is attested photocopy of F.I.R.

in Crime No.58/2011 of North Traffic Police Station, Nellore, registered for the offences under Sections 304-A and 337 I.P.C. against the driver of the said jeep, shows that it was registered within five hours after the accident basing on the report of PW-2. In this earliest report he stated that the Jeep which was coming from their behind in a rash and negligent manner and at high speed gave dash to them. Exhibit A-2, which is attested photocopy of inquest report of the deceased, and Exhibit A-3, which is attested -: 6 :- photocopy of postmortem report of the deceased, show that the deceased aged about 24 years died due to sustaining of injuries in the said accident.

Exhibit A-4, which is attested photocopy of charge-sheet shows that the police, after due investigation, filed charge-sheet against the driver of the said Jeep for the offences under Sections 304-A and 338 I.P.C. for causing the death of the deceased and grievous injuries to PW-2 due to his rash and negligent driving of the said Jeep. Exhibit A-5, which is attested photocopy of M.V.I. Report, shows that there were no mechanical defects in the vehicle and the accident was not due to any mechanical defects of the crime vehicle, and the M.V.I. inspected the vehicle on 1.10.2011. So, Exhibits A-1 to A-5 also corroborate the evidence of PW-2. There is no contra evidence.

(iv) Therefore, the evidence of PW-2, coupled with Exhibits A-1 to

A-5, clinchingly establishes that the accident had occurred due to the rash and negligent driving of the Jeep bearing registration No.AP-16-TB-4242, and the deceased and PW-2 did not contribute in taking place of the accident. Accordingly, the point is answered.

11. POINT No.(2) (2) Whether the petitioners are entitled to claim any compensation? If so, how much amount and from which of the respondents?

(i) Now, I consider whether both the petitioners in M.V.O.P.

No.946/2011, who are the parents of the deceased Vallepu Subbalakshmi, are entitled to claim compensation of Rs.15,00,000/-.

(ii) It is pertinent to note that the evidence of the 1st petitioner in

M.V.O.P.No.946/2011, as PW-1, that the deceased was aged about 24 years at the time of her death and she was working as Assistant Beat Officer and was drawing salary of Rs.11,707/- per month, and Exhibit A-6 is the salary certificate of the deceased issued by the Forest Department, remained un- contradicted and unchallenged by giving any suggestions to the contra.

-: 7 :-

In Exhibit A-2 inquest report, Exhibit A-3 postmortem report, and

Exhibit A-4 charge-sheet, the age of the deceased is mentioned as 24 years.

The said age has not been disputed by giving any suggestions to the contra.

Even in the chief-affidavit of the Administrative Officer of the 2nd respondent insurance company, he has not stated anything disputing the version of the petitioners and also the evidence of PW-1 in regard to the designation and salary of the deceased as per Exhibit A-6 salary certificate issued for the month of August, 2011 by the Forest Range Officer, Venkatagiri on 28.10.2011. In the cross-examination of PW-2 it is elicited that his deceased sister Subbalakshmi was working as Assistant Beat Officer, Forest Range

Office, Venkatagiri since about two years prior to her death, and her declaration of probation was due since she fell short of one week. There is no contra evidence. In view of the same, though none is examined and though no document is produced with regard to the date of birth of the deceased, and none is examined in proof of Exhibit A-6 salary certificate, they are being taken into consideration.

Therefore, I hold that the deceased was aged about 24 years as on the date of the accident. As per the schedule given in “Sarla Verma & Others Vs.

Delhi Transport Corporation & Another”,1 the multiplier applicable for the age- group of persons between 21 and 25 is “18”. So, the relevant multiplier applicable to the facts of the instant case is “18”.

(iii) A perusal of Exhibit A-6 salary certificate shows that it was issued for Pay and Allowances for the month of August 2011, and the deceased was drawing Rs.11,707/- towards Gross-salary comprising of pay of Rs.7,740/-, D.A. of Rs.2,319/-, H.R.A. of Rs.929/-, Additional H.R.A. of

Rs.619/- and Dhobi Allowance of Rs.100/-, with deductions of Rs.1,671/- comprising of CPS at Rs.1,006/-, Festival Advance at Rs.300/-, G.I.S. at

Rs.15/-, A.P.G.L.I. at Rs.250/-, and Profession Tax at Rs.100/-, making a net salary of Rs.10,036/-.

1 3(2009) ACC 708 (SC) -: 8 :-

In “National Insurance Co. Ltd., Vs. Indira Srivastava and Others”,2Hon’ble

Apex Court held that the amounts which were liable to be paid to the deceased by his employer by way of perks should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contra-distinguished to the ones which were for his benefit. From out of the said amount of income, the statutory amount of tax payable thereupon must be deducted. It was also held that if the dictionary meaning of the word ‘income’ is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of Income-Tax or Profession-Tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. It was further held that medical reimbursement which provides for a slab and which, keeping in view the terminology used, would mean reimbursement for medical expenses on production of medical bills and thus, the same would not come within the purview of the aforementioned category i.e., (1) Reimbursement of Rent would be equivalent to H.R.A. (2) Bonus is payable as a part of salary and (3) Contribution to the Provident Fund. It is, thus, evident that income of salaried employees means Gross-salary minus Statutory- deductions like Profession-Tax and Income-Tax and other benefits which are provided to the employee by the employer, and which do not stand to the benefit of the family, like conveyance-allowance, travelling-allowance, allowances for newspaper or periodicals, telephone, servant, club-fee, car maintenance, etc. by virtue of his avocation, and claim for medical reimbursement.

In view of the above principles, monthly income of the deceased can be taken as Rs.11,242/-, after deducting Rs.465/- (Dhobi Allowance of

Rs.100/-, G.I.S. of Rs.15/-, A.P.G.L.I. of Rs.250/-, and P. Tax of Rs.100/-) from the gross salary of Rs.11,707/-. Thus, her net income, which comes to

Rs.11,242/- per month, has to be considered for the purpose of computing compensation.

2 2008 ACJ 614 (SC) -: 9 :-

(iv) Since the deceased was unmarried, and the petitioners (in

M.V.O.P.No.946/2011) are her parents, 50% of her income has to be deducted towards her personal and living expenses, in view of the principles laid down in Sarla Verma’s case (supra).

(v) In view of the principles rendered in Sarla Verma’s Case (supra) to the effect that an addition of 50% of actual salary to the actual salary income of the deceased be adopted towards future prospects, where the deceased had a permanent job and was below 40 years, and in view of the fact that the deceased is a government servant, this Court is of the view that future-prospects of the deceased at 50% can be taken into consideration.

(vi) In view of the principles laid down in various case-laws, including the one in “Rajesh and Others v Rajbir Singh and Others”3, income-tax has to be deducted at the rate of 30%.

(vii) Following the principles laid down in the above decisions, the income of the deceased, with future-prospects is calculated as under:

Amount DESCRIPTION Calculation (Rs.) Income Per Month 11,242.00 Income Per Annum 11242 x 12 1,34,904.00 Less: Income Tax (30%) 134904 x 30% 40,471.00 Annual Income After Deduction of Income Tax 134904 – 40471 94,433.00 Add: Future Prospects on Actual Income After 94433 x 50% 47,217.00 Tax (50%) Actual Income 94433 + 47217 1,41,650.00 Less:Personal & Living Expenses (50%) 141650 x 50% 70,825.00 Contribution to Family 141650 – 70825 70,825.00 Multiplier 18 Compensation on applying multiplier 70825 x 18 12,74,850.00 Funeral Expenses 20,000.00 Transport Expenses 5,000.00

COMPENSATION PAYABLE 12,99,850.00

In view of my foregoing discussion, I hold that the petitioners in M.V.O.P.

No.946/2011 are entitled for compensation of Rs.12,99,850/-.

12. The evidence of PW-2 (the petitioner in M.V.O.P.No.947/2011), coupled with Exhibit A-7 which is attested photocopy of wound certificate 3 2013 ACJ 1403 -: 10 :- said to have been issued by the Casualty Medical officer, Bollineni Super

Specialty Hospital, Nellore, shows that the petitioner sustained the following injuries:

(1) 8 x 2 x ½ cm Fresh Lacerated Wound on Middle of Head 1 C.T. Brain shows Normal (2) Right Forearm Posterior Abrasions all over (3) Scratch abrasions whole left-side back (4) 4 x 1 x 1 cm Lacerated Wound below Right Eye (5) 10 x 4 cm Scratch Abrasion Lateral to Left Thigh.

It is also shows that PW-2 sustained 1 (one) grievous injury and 4 (four) simple injuries. In view of the nature of injuries sustained by PW-2, and the places where they are sustained, it would be just to grant Rs.15,000/- for one grievous injury, and Rs.8,000/- for four simple injuries @ Rs.2,000/- per each injury, making in all a sum of Rs.23,000/- towards pain and suffering.

(i) PW-2 in the cross-examination admitted that he took treatment for one day in Bollineni Super Specialty Hospital, Nellore, and, though he also stated that thereafter he took treatment in Nellore Hospital, he has not produced any documents. The evidence of PW-2, coupled with Exhibit A-9 bunch of medical bills, and Exhibit A-10 bunch of three prescriptions shows that he spent Rs.5,078/- towards medical expenses. Considering the nature of injuries sustained by PW-2, he can be granted an amount of Rs.5,000/- towards reimbursement of medical expenses.

(ii) In proof of his contention that PW-2 took treatment and rest for a period of two months and he sustained loss earnings for two months at the rate of Rs.40,000/- per month i.e., Rs.80,000/- in all, since he was running a

Juice Shop in A.P.S.R.T.C. Atmakur Bus-stand, Nellore, by taking it on lease, he produced Exhibit A-8 photocopy of lease agreement along with receipt for

Rs.15,316/- towards rent for the month of November 2011 besides electrical charges. The said documents prima-facie show that he was running Juice

Shop in A.P.S.R.T.C. Atmakur Bus-stand by taking some space/shop on -: 11 :- lease by paying monthly rental of Rs.15,316/-. There is no document showing the income being earned by him. There is also no documentary evidence to show that he was advised two months’ bed-rest and in fact he took two months bed-rest. In the circumstances, a reasonable amount may be awarded towards loss of earnings for the period during which the petitioner took treatment, and it is assessed at Rs.10,000/-.

(iii) Thus, the petitioner in M.V.O.P.No.947/2011 (PW-2) is entitled for total compensation of Rs.38,000/- (Rs.23,000/- towards pain and suffering + Rs.5,000/- towards reimbursement of medical expenses +

Rs.10,000/- towards loss of earnings).

13. It is the contention of the 2nd respondent that the driver of the jeep had no valid driving license as on the date of the accident. To substantiate the same, the Administrative Officer of the 2nd respondent insurance company has been examined as RW-1, and Exhibits B-2 to B-4 have been marked. The evidence of RW-1 shows that they addressed

Exhibits B-2 and B-3 – office copies of letters dated 29.2.2012 and 9.5.2014, calling upon the 1 st respondent to produce vehicle documents and also the

Driving License of the driver, but they were returned unserved. It appears, in view of the same, they obtained Driving License Extract of D.Siva Kumar and produced the same through RW-1, and got it marked as Exhibit B-4.

(i) The evidence of RW-1, coupled with Exhibit B-4, shows that the said person was given LMV Non-Transport license on 4.2.1995 which was renewed upto 3.2.2015; he was also given LMV Transport license on 13.1.1999 which was renewed upto 19.6.2011; he was also given HTV

Transport license on 10.4.2007 which was renewed upto 19.6.2011; and he was also given MCWG Non-Transport license on 10.4.2007 which was renewed upto 3.2.2015, with Badge No.19408. Thus, from the said evidence it can be said that the driving license of the said person for LMV Transport had expired by 19.6.2011, and the said license was not renewed -: 12 :- subsequently, since Exhibit B-4 extract was obtained on 28.8.2014, though he was having LMV Non-Transport license valid till 3.2.2015.

(ii) In the cross-examination RW-1 admitted that the vehicle involved in the accident is LMV-Transport, that the driver was having driving license to drive LMV-Transport even prior to the date of the accident, and it is true that in his chief-examination he stated that the said driver was having driving license for LMV Non-Transport. He further admitted that there is no difference in driving of LMV Transport and LMV Non-Transport vehicles.

(iii) From the above evidence of RW-1, coupled with his admissions and Exhibit B-4 Driving License Extract, it is evident that the driver of the offending vehicle was having Driving License for LMV Non-Transport valid from 4.2.1995 to 3.2.2015, and he also possessed Driving License for HTV and LMV Transport which license had expired on 19.6.2011. He continued to have LMV Non-Transport license by the date of the accident. In view of the same, and also in view of the admissions of RW-1 that there is no difference in driving LMV Transport and LMV Non-Transport vehicles, and in the absence of any categorical and positive evidence that the accident took place due to non-possessing of valid driving license for Transport, and in the absence of any evidence that there has been fundamental breach which contributed to the cause of the accident, it can be said that the 2nd respondent cannot avoid its liability.

(iv) In this view of the matter, and in view of the latest pronouncements in “Chakali Swaroopa and Others v. Mohd. Ghouse and Another”,4 to the effect that when the driver possesses driving license to drive LMV and when he drives same class of vehicle, and when the driving skill required to drive LMV Non-Transport and LMV-Transport is one and the same, and when there is no material to show that proximate cause for the accident was not having a valid and effective driving license, mere absence of necessary 4 2016 ACJ 383 -: 13 :- endorsement/badge on the license by itself would not amount to fundamental breach of the policy so as to absolve the insurance company from its liability, it cannot be said that insurance company can avoid its liability. In “New India

Assurance Co. Ltd., v. K.Devi & Others”,5 it was held that due to lapse of few days in getting renewal of the driving license it cannot be said that the driver will lose his capacity to drive the vehicle and he was incompetent to drive the vehicle. It was also held that when insurance company adduced no evidence to show that non-renewal of driving license contributed to the cause of the accident, insurance company is liable. It was also held that denial of compensation to victims of motor accident by the insurance company on the ground of breach of policy is not justified.

14. The evidence of RW-1 coupled with Exhibit B-1, which is copy of insurance policy for the vehicle bearing registration No.AP-16-TB-4242 issued in favour of Ch.Venkateswara Rao (the deceased 1st respondent) valid from 16.4.2011 to 15.4.2012, proves that the said policy has been in force as on the date of the accident, which took place on 20.9.2011. In view of the same, and in view of my aforesaid discussion, the respondents 2 to 4 are jointly and severally liable to pay the compensation. Accordingly, the point is answered.

15. POINT No.(3)To what relief? (3)

(i) In the result, the petition in M.V.O.P.No.946/2011 is allowed in part with proportionate costs in favour of the petitioners and against the respondents jointly and severally, awarding compensation of

Rs.12,99,850/- with interest thereon at the rate of 7.5% per annum from the date of the petition till the date of deposit. Out of the said amount, the 1st petitioner being the mother of the deceased is entitled to Rs.7,99,850/-, and the 2nd petitioner being the father of the deceased is entitled to

Rs.5,00,000/-. The respondents shall deposit the said amount within a 5 2013 ACJ 249 -: 14 :- period of one month. On such deposit, the 1st petitioner is permitted to withdraw a sum of Rs.49,850/-, and the 2nd petitioner is permitted to withdraw a sum of Rs.25,000/-, and the balance amount of their respective shares shall be kept in fixed deposit in any nationalized bank for a period of three years. Rest of the claim of the petitioners is dismissed without costs.

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

(ii) In the result, the petition in M.V.O.P.No.947/2011 is allowed in part with proportionate costs in favour of the petitioner and against the respondents jointly and severally, awarding compensation of Rs.38,000/- with interest thereon at the rate of 7.5% per annum from the date of the petition till the date of deposit. The respondents shall deposit the said amount within a period of one month. On such deposit, the petitioner is permitted to withdraw the entire amount. Rest of the claim of the petitioner is dismissed without costs. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 22nd day of April, 2016.

Sd/- (CH.K.DURGA RAO)

Chairman

Principal Motor Accidents Claims Tribunal

NELLORE

APPENDIX OF EVIDENCE

(RECORDED IN M.V.O.P.No.946/2011)

WITNESSES EXAMINED

FOR PETITIONERS

PW-1 : Sri Vallepu Chenchaiah (1st petitioner in M.V.O.P.946/2011) PW-2 : Sri Vallepu Siva Prasad (Petitioner in M.V.O.P.947/2011)

FOR 2 ND RESPONDENT

RW-1 : Sri P.Malyadri (Administrative Officer of the 2nd Respondent)

DOCUMENTS MARKED

FOR PETITIONERS

Ex.A1 Attested photocopy of F.I.R. dated 21.9.2011 in Crime 21.9.2011 No.58/2011 of Nellore Traffic North Police Station, under Sections 304-A & 337 I.P.C. registered against the driver of the Mahindra Jeep bearing registration No.AP-16-TB-4242, along with report.

-: 15 :-

Ex.A2 Attested photocopy of Inquest Report of the deceased Vallepu 21.9.2011 Subbalakshmi (concerned in M.V.O.P.No.946/2011)

Ex.A3 Attested photocopy of Postmortem Report of the deceased 21.9.2011Vallepu Subbalakshmi (concerned in M.V.O.P.No.946/2011).

Ex.A4 Attested photocopy of charge sheet filed before the II Additional

Judicial Magistrate of First Class, Nellore, in connection with

Crime No.58/2011 of Nellore Traffic North Police Station, under Sections 304-A & 338 I.P.C. against Dasari Siva Kumar - the driver of the Mahindra Jeep bearing registration No.AP-16-TB- 4242.

Ex.A5Attested photocopy of M.V.I. Report in Crime No.58/2011 of Nellore Traffic North Police Station.

Ex.A6Salary Certificate of Kum V.Subbalakshmi for the month of August, 2011 issued by the Forest Range Officer, Forest Department, Venkatagiri. (concerned in M.V.O.P.No.946/2011)

Ex.A7 Attested photocopy of wound certificate dated 14.10.211 issued 14.10.2011 by the C.M.O., Bollineni Super Specialty Hospital, Nellore, pertaining to the petitioner in M.V.O.P.No.947/2011 (PW-2).

Ex.A8Photocopy of lease agreement (deed of license) dated 18.10.2010 along with receipt for Rs.15,316/- towards rent for the month of November, and also electrical charges. (concerned in M.V.O.P.No.947/2011)

Ex.A9Bunch of medical bills for Rs.5,078/- pertaining to the petitioner in M.V.O.P.No.947/2011.

Ex.A10Bunch of three medical prescriptions relating to the deceased in M.V.O.P.No.946/2011 and injured in M.V.O.P.No.947/2011.

FOR 2 ND RESPONDENT

Ex.B1True copy of insurance policy issued by the 2nd respondent in favour of the 1st respondent valid from 16.4.2011 to 15.4.2012 in respect of Mahindra & Bolero.

Ex.B2 Office copy of the letter dated 29.2.2012 issued by the 2nd 29.2.2012 respondent to the 1st respondent calling upon to produce documents of the vehicle and driving license particulars of D.Siva Kumar.

Ex.B3 Office copy of the letter dated 9.5.2014 issued by the 2nd 9.5.2014 respondent to the 1st respondent calling upon to produce documents of the vehicle and driving license particulars of D.Siva Kumar.

Ex.B4 Driving License Extract of D.Siva Kumar issued by Additional 28.8.2014 Licensing Authority, Nellore.

Sd/- (CH.K.DURGA RAO)

Chairman

Principal Motor Accidents Claims Tribunal

NELLORE

BEFORE THE PRINCIPAL MOTOR ACCIDENTS CLAIMS' TRIBUNAL: NELLORE

Present: CH.K.DURGA RAO Chairman

Principal Motor Accidents Claims Tribunal

Nellore

Friday, the 22nd day of April, 2016

M.V.O.P.No.946/2011

&

M.V.O.P.No.947/2011

M.V.O.P.946/2011

1. Vallepu Chenchaiah

2. Vallepu Lakshamma .. Petitioners

Vs.

1. Ch.Venkateswara Rao (Died)

2. The New India Assurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, G.T. Road, Opp: to Nellore Bus-stand, Ongole.

3. Chalasani Padmavathi

4. Chalasani Sri Rama Chodawari .. Respondents

[Respondents 3 and 4 are added as L.Rs. of the deceased 1st Respondent As per orders in I.A.No.13/2015

Dated 29.6.2015]

A N D

M.V.O.P.No.947/2011

Vallepu Siva Prasad .. Petitioner

Vs.

1. Ch.Venkateswara Rao (Died)

2. The New India Assurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, G.T. Road, Opp: to Nellore Bus-stand, Ongole.

3. Chalasani Padmavathi

4. Chalasani Sri Rama Chodawari .. Respondents

[Respondents 3 and 4 are added as L.Rs. of the deceased 1st Respondent As per orders in I.A.No.12/2015

Dated 29.6.2015]

These petitions coming on 29.3.2016 for final hearing before me, in the presence of Ms G.V.L.Nagamani – advocate for the petitioners, and of Sri N.Kodanda Rami Reddy – advocate for the 2nd respondent, and the respondents 3 and 4 having remained ex parte in both the petitions, and -: 2 :- the matter having stood over for consideration till this day, the Court made the following: -

COMMON ORDER

Both the petitioners in M.V.O.P.No.946/2011, who are the parents of the deceased Vallepu Subbalakshmi, filed the petition under

Section 166 of the Motor Vehicles’ Act (for short ‘the Act’), claiming compensation of Rs.15,00,000/- for the death of the deceased in the accident occurred on 20.9.2011.

(i) The sole petitioner in M.V.O.P.No.947/2011, who is no other than the brother of the deceased in M.V.O.P.No.946/2011, filed the petition under Section 166 of the Act, claiming compensation of Rs.1,50,000/- for the injuries sustained by him in the very same accident.

2. The contentions of the petitioners in both the petitions, in brief, are as follows: -

(i) On 20.9.2011, after completion of her duty at Venkatagiri as

Assistant Beat Officer, Vallepu Subbalakshmi (the deceased in

M.V.O.P.No.946/2011) returned to Nellore by Narayanadri Express, got down at Nellore Railway Station, and was proceeding on foot from the

Railway Station to her house, along with her brother Vallepu Siva Prasad (the petitioner in M.V.O.P.No.947/2011), and at about 9.45 p.m. when they reached near Simhapuri Hotel, Railway Station Road, Nellore, one Mahindra

Jeep bearing registration No.AP-16-TB-4242, being driven in a rash and negligent manner and without blowing horn, came and hit both of them and fled away from the spot. Due to the said impact both of them fell down on the road and sustained severe injuries, and were shifted to Bollineni

Hospital, Nellore, and the deceased succumbed to the injuries at 11.45 p.m.

on the same day.

-: 3 :-

(ii) The petitioner in M.V.O.P.No.947/2011, aged about 30 years, took treatment for two months and spent Rs.10,000/- towards medical expenses, and he also sustained loss of income of Rs.80,000/- since he was running Juice Shop in A.P.S.R.T.C. Atmakur Bus-stand, Nellore, by paying rent of Rs.15,000/- and earning Rs.40,000/- per month.

(iii) The matter was reported to the Station House Officer, North

Traffic Police Station, Nellore, who registered a case in Crime No.58/2011 for the offences under Sections 304-A and 337 I.P.C. against the driver of the said jeep.

(iv) The deceased was aged about 24 years and was unmarried. She was working as Assistant Beat Officer, earning Rs.11,707/- per month towards salary and contributing the same for the maintenance of the family.

Both the claimants in M.V.O.P.No.946/2011, who are the parents of the deceased, filed the petition claiming compensation, since the sister and brother of the deceased were married and were living separately.

(v) The petitioners in both the petitions are entitled to claim compensation against the 1st respondent, who is the owner of the jeep and under whose employment the driver was working, and the 2nd respondent, who is the insurer of the vehicle, jointly and severally. As the 1st respondent died, leaving behind him his wife and son, who are the respondents 3 and 4 as his heirs to succeed to his estate, and also the offending vehicle, they have been impleaded as such, as per orders dated 29.6.2015 in

I.A.No.13/2015 in M.V.O.P. No.946/2011 and I.A.No.12/2015 in

M.V.O.P.No.947/2011, and they are jointly and severally liable to pay compensation.

3. The 1st respondent who remained ex parte, died, and the respondents 3 and 4, who were subsequently impleaded as his legal-heirs, also remained ex parte.

-: 4 :-

4. The 2nd respondent insurance company filed separate counters in both the petitions, admitting that the 1 st respondent is the owner of the

Jeep, and also taking place of the accident, but contending inter alia as follows: -

(i) There was no negligence on the part of the driver of the Jeep, and the accident had occurred while the deceased and her brother (the petitioner in M.V.O.P.No.947/2011) tried to cross the road abruptly without giving any signal and, therefore, the accident took place due to their own negligence. The driver of the jeep had no valid and effective driving license.

The compensation claimed is highly excessive and exorbitant. The petitions are liable to be dismissed with costs.

5. As per order dated 1.4.2014, on the joint memo, both the petitions were clubbed and common evidence is recorded in M.V.O.P.

No.946/2011.

6. I.A.No.360/2014 filed by the 2nd respondent in M.V.O.P.

No.946/2011 was allowed by an order dated 11.4.2014.

7. Now, the points that arise for determination are: -

(1) Whether the accident took place due to the rash and negligent

driving of the Mahindra Jeep bearing registration No.AP-16-TB-

4242, and whether the deceased/injured had also contributed in

taking place of the accident?

(2) Whether the petitioners are entitled to claim any compensation?

If so, how much amount and from which of the respondents?

To what relief? (3)

8. The 1st petitioner in M.V.O.P.No.946/2011 and the sole petitioner in M.V.O.P.No.947/2011 got themselves examined as PWs 1 and 2 respectively and got marked Exhibits A-1 to A-10.

(i) The Administrative Officer of the 2nd respondent has been examined as RW-1 and Exhibits B-1 to B-4 have been marked.

-: 5 :-

9. Both sides’ filed written-arguments. Perused the same.

10. POINT No.(1) (1) Whether the accident took place due to the rash and negligent driving of the Mahindra Jeep bearing registration No.AP-16-TB-4242, and whether the deceased/injured had also contributed in taking place of the accident?

(i) Taking place of the accident on 20.9.2011 at about 9.45 p.m.

near Simhapuri Hotel, Railway Station Road, Nellore involving the Mahindra

Jeep bearing registration No.AP-16-TB-4242, sustaining of injuries by the deceased and PW-2, and succumbing to the said injuries by the deceased, are not in dispute. The only contention of the 2nd respondent is that the deceased and PW-2 were crossing the road abruptly without observing the traffic and without giving any signals and, therefore, they are solely responsible and contributed in taking place of the accident. So, the evidence of PW-2, who is the injured-cum-eyewitness, is crucial.

(ii) PW-2 in his chief affidavit testified to their version as pleaded in both the petitions. It is pertinent to note that except giving a suggestion that due to their sudden crossing of the road the accident took place and the driver of the Jeep was not at fault, which has been emphatically denied, no contra evidence could be elicited. So, the evidence of PW-2 as to the manner of taking place of the accident remained un-contradicted.

(iii) A perusal of Exhibit A-1, which is attested photocopy of F.I.R.

in Crime No.58/2011 of North Traffic Police Station, Nellore, registered for the offences under Sections 304-A and 337 I.P.C. against the driver of the said jeep, shows that it was registered within five hours after the accident basing on the report of PW-2. In this earliest report he stated that the Jeep which was coming from their behind in a rash and negligent manner and at high speed gave dash to them. Exhibit A-2, which is attested photocopy of inquest report of the deceased, and Exhibit A-3, which is attested -: 6 :- photocopy of postmortem report of the deceased, show that the deceased aged about 24 years died due to sustaining of injuries in the said accident.

Exhibit A-4, which is attested photocopy of charge-sheet shows that the police, after due investigation, filed charge-sheet against the driver of the said Jeep for the offences under Sections 304-A and 338 I.P.C. for causing the death of the deceased and grievous injuries to PW-2 due to his rash and negligent driving of the said Jeep. Exhibit A-5, which is attested photocopy of M.V.I. Report, shows that there were no mechanical defects in the vehicle and the accident was not due to any mechanical defects of the crime vehicle, and the M.V.I. inspected the vehicle on 1.10.2011. So, Exhibits A-1 to A-5 also corroborate the evidence of PW-2. There is no contra evidence.

(iv) Therefore, the evidence of PW-2, coupled with Exhibits A-1 to

A-5, clinchingly establishes that the accident had occurred due to the rash and negligent driving of the Jeep bearing registration No.AP-16-TB-4242, and the deceased and PW-2 did not contribute in taking place of the accident. Accordingly, the point is answered.

11. POINT No.(2) (2) Whether the petitioners are entitled to claim any compensation? If so, how much amount and from which of the respondents?

(i) Now, I consider whether both the petitioners in M.V.O.P.

No.946/2011, who are the parents of the deceased Vallepu Subbalakshmi, are entitled to claim compensation of Rs.15,00,000/-.

(ii) It is pertinent to note that the evidence of the 1st petitioner in

M.V.O.P.No.946/2011, as PW-1, that the deceased was aged about 24 years at the time of her death and she was working as Assistant Beat Officer and was drawing salary of Rs.11,707/- per month, and Exhibit A-6 is the salary certificate of the deceased issued by the Forest Department, remained un- contradicted and unchallenged by giving any suggestions to the contra.

-: 7 :-

In Exhibit A-2 inquest report, Exhibit A-3 postmortem report, and

Exhibit A-4 charge-sheet, the age of the deceased is mentioned as 24 years.

The said age has not been disputed by giving any suggestions to the contra.

Even in the chief-affidavit of the Administrative Officer of the 2nd respondent insurance company, he has not stated anything disputing the version of the petitioners and also the evidence of PW-1 in regard to the designation and salary of the deceased as per Exhibit A-6 salary certificate issued for the month of August, 2011 by the Forest Range Officer, Venkatagiri on 28.10.2011. In the cross-examination of PW-2 it is elicited that his deceased sister Subbalakshmi was working as Assistant Beat Officer, Forest Range

Office, Venkatagiri since about two years prior to her death, and her declaration of probation was due since she fell short of one week. There is no contra evidence. In view of the same, though none is examined and though no document is produced with regard to the date of birth of the deceased, and none is examined in proof of Exhibit A-6 salary certificate, they are being taken into consideration.

Therefore, I hold that the deceased was aged about 24 years as on the date of the accident. As per the schedule given in “Sarla Verma & Others Vs.

Delhi Transport Corporation & Another”,1 the multiplier applicable for the age- group of persons between 21 and 25 is “18”. So, the relevant multiplier applicable to the facts of the instant case is “18”.

(iii) A perusal of Exhibit A-6 salary certificate shows that it was issued for Pay and Allowances for the month of August 2011, and the deceased was drawing Rs.11,707/- towards Gross-salary comprising of pay of Rs.7,740/-, D.A. of Rs.2,319/-, H.R.A. of Rs.929/-, Additional H.R.A. of

Rs.619/- and Dhobi Allowance of Rs.100/-, with deductions of Rs.1,671/- comprising of CPS at Rs.1,006/-, Festival Advance at Rs.300/-, G.I.S. at

Rs.15/-, A.P.G.L.I. at Rs.250/-, and Profession Tax at Rs.100/-, making a net salary of Rs.10,036/-.

1 3(2009) ACC 708 (SC) -: 8 :-

In “National Insurance Co. Ltd., Vs. Indira Srivastava and Others”,2Hon’ble

Apex Court held that the amounts which were liable to be paid to the deceased by his employer by way of perks should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contra-distinguished to the ones which were for his benefit. From out of the said amount of income, the statutory amount of tax payable thereupon must be deducted. It was also held that if the dictionary meaning of the word ‘income’ is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of Income-Tax or Profession-Tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. It was further held that medical reimbursement which provides for a slab and which, keeping in view the terminology used, would mean reimbursement for medical expenses on production of medical bills and thus, the same would not come within the purview of the aforementioned category i.e., (1) Reimbursement of Rent would be equivalent to H.R.A. (2) Bonus is payable as a part of salary and (3) Contribution to the Provident Fund. It is, thus, evident that income of salaried employees means Gross-salary minus Statutory- deductions like Profession-Tax and Income-Tax and other benefits which are provided to the employee by the employer, and which do not stand to the benefit of the family, like conveyance-allowance, travelling-allowance, allowances for newspaper or periodicals, telephone, servant, club-fee, car maintenance, etc. by virtue of his avocation, and claim for medical reimbursement.

In view of the above principles, monthly income of the deceased can be taken as Rs.11,242/-, after deducting Rs.465/- (Dhobi Allowance of

Rs.100/-, G.I.S. of Rs.15/-, A.P.G.L.I. of Rs.250/-, and P. Tax of Rs.100/-) from the gross salary of Rs.11,707/-. Thus, her net income, which comes to

Rs.11,242/- per month, has to be considered for the purpose of computing compensation.

2 2008 ACJ 614 (SC) -: 9 :-

(iv) Since the deceased was unmarried, and the petitioners (in

M.V.O.P.No.946/2011) are her parents, 50% of her income has to be deducted towards her personal and living expenses, in view of the principles laid down in Sarla Verma’s case (supra).

(v) In view of the principles rendered in Sarla Verma’s Case (supra) to the effect that an addition of 50% of actual salary to the actual salary income of the deceased be adopted towards future prospects, where the deceased had a permanent job and was below 40 years, and in view of the fact that the deceased is a government servant, this Court is of the view that future-prospects of the deceased at 50% can be taken into consideration.

(vi) In view of the principles laid down in various case-laws, including the one in “Rajesh and Others v Rajbir Singh and Others”3, income-tax has to be deducted at the rate of 30%.

(vii) Following the principles laid down in the above decisions, the income of the deceased, with future-prospects is calculated as under:

Amount DESCRIPTION Calculation (Rs.) Income Per Month 11,242.00 Income Per Annum 11242 x 12 1,34,904.00 Less: Income Tax (30%) 134904 x 30% 40,471.00 Annual Income After Deduction of Income Tax 134904 – 40471 94,433.00 Add: Future Prospects on Actual Income After 94433 x 50% 47,217.00 Tax (50%) Actual Income 94433 + 47217 1,41,650.00 Less:Personal & Living Expenses (50%) 141650 x 50% 70,825.00 Contribution to Family 141650 – 70825 70,825.00 Multiplier 18 Compensation on applying multiplier 70825 x 18 12,74,850.00 Funeral Expenses 20,000.00 Transport Expenses 5,000.00

COMPENSATION PAYABLE 12,99,850.00

In view of my foregoing discussion, I hold that the petitioners in M.V.O.P.

No.946/2011 are entitled for compensation of Rs.12,99,850/-.

12. The evidence of PW-2 (the petitioner in M.V.O.P.No.947/2011), coupled with Exhibit A-7 which is attested photocopy of wound certificate 3 2013 ACJ 1403 -: 10 :- said to have been issued by the Casualty Medical officer, Bollineni Super

Specialty Hospital, Nellore, shows that the petitioner sustained the following injuries:

(1) 8 x 2 x ½ cm Fresh Lacerated Wound on Middle of Head 1 C.T. Brain shows Normal (2) Right Forearm Posterior Abrasions all over (3) Scratch abrasions whole left-side back (4) 4 x 1 x 1 cm Lacerated Wound below Right Eye (5) 10 x 4 cm Scratch Abrasion Lateral to Left Thigh.

It is also shows that PW-2 sustained 1 (one) grievous injury and 4 (four) simple injuries. In view of the nature of injuries sustained by PW-2, and the places where they are sustained, it would be just to grant Rs.15,000/- for one grievous injury, and Rs.8,000/- for four simple injuries @ Rs.2,000/- per each injury, making in all a sum of Rs.23,000/- towards pain and suffering.

(i) PW-2 in the cross-examination admitted that he took treatment for one day in Bollineni Super Specialty Hospital, Nellore, and, though he also stated that thereafter he took treatment in Nellore Hospital, he has not produced any documents. The evidence of PW-2, coupled with Exhibit A-9 bunch of medical bills, and Exhibit A-10 bunch of three prescriptions shows that he spent Rs.5,078/- towards medical expenses. Considering the nature of injuries sustained by PW-2, he can be granted an amount of Rs.5,000/- towards reimbursement of medical expenses.

(ii) In proof of his contention that PW-2 took treatment and rest for a period of two months and he sustained loss earnings for two months at the rate of Rs.40,000/- per month i.e., Rs.80,000/- in all, since he was running a

Juice Shop in A.P.S.R.T.C. Atmakur Bus-stand, Nellore, by taking it on lease, he produced Exhibit A-8 photocopy of lease agreement along with receipt for

Rs.15,316/- towards rent for the month of November 2011 besides electrical charges. The said documents prima-facie show that he was running Juice

Shop in A.P.S.R.T.C. Atmakur Bus-stand by taking some space/shop on -: 11 :- lease by paying monthly rental of Rs.15,316/-. There is no document showing the income being earned by him. There is also no documentary evidence to show that he was advised two months’ bed-rest and in fact he took two months bed-rest. In the circumstances, a reasonable amount may be awarded towards loss of earnings for the period during which the petitioner took treatment, and it is assessed at Rs.10,000/-.

(iii) Thus, the petitioner in M.V.O.P.No.947/2011 (PW-2) is entitled for total compensation of Rs.38,000/- (Rs.23,000/- towards pain and suffering + Rs.5,000/- towards reimbursement of medical expenses +

Rs.10,000/- towards loss of earnings).

13. It is the contention of the 2nd respondent that the driver of the jeep had no valid driving license as on the date of the accident. To substantiate the same, the Administrative Officer of the 2nd respondent insurance company has been examined as RW-1, and Exhibits B-2 to B-4 have been marked. The evidence of RW-1 shows that they addressed

Exhibits B-2 and B-3 – office copies of letters dated 29.2.2012 and 9.5.2014, calling upon the 1 st respondent to produce vehicle documents and also the

Driving License of the driver, but they were returned unserved. It appears, in view of the same, they obtained Driving License Extract of D.Siva Kumar and produced the same through RW-1, and got it marked as Exhibit B-4.

(i) The evidence of RW-1, coupled with Exhibit B-4, shows that the said person was given LMV Non-Transport license on 4.2.1995 which was renewed upto 3.2.2015; he was also given LMV Transport license on 13.1.1999 which was renewed upto 19.6.2011; he was also given HTV

Transport license on 10.4.2007 which was renewed upto 19.6.2011; and he was also given MCWG Non-Transport license on 10.4.2007 which was renewed upto 3.2.2015, with Badge No.19408. Thus, from the said evidence it can be said that the driving license of the said person for LMV Transport had expired by 19.6.2011, and the said license was not renewed -: 12 :- subsequently, since Exhibit B-4 extract was obtained on 28.8.2014, though he was having LMV Non-Transport license valid till 3.2.2015.

(ii) In the cross-examination RW-1 admitted that the vehicle involved in the accident is LMV-Transport, that the driver was having driving license to drive LMV-Transport even prior to the date of the accident, and it is true that in his chief-examination he stated that the said driver was having driving license for LMV Non-Transport. He further admitted that there is no difference in driving of LMV Transport and LMV Non-Transport vehicles.

(iii) From the above evidence of RW-1, coupled with his admissions and Exhibit B-4 Driving License Extract, it is evident that the driver of the offending vehicle was having Driving License for LMV Non-Transport valid from 4.2.1995 to 3.2.2015, and he also possessed Driving License for HTV and LMV Transport which license had expired on 19.6.2011. He continued to have LMV Non-Transport license by the date of the accident. In view of the same, and also in view of the admissions of RW-1 that there is no difference in driving LMV Transport and LMV Non-Transport vehicles, and in the absence of any categorical and positive evidence that the accident took place due to non-possessing of valid driving license for Transport, and in the absence of any evidence that there has been fundamental breach which contributed to the cause of the accident, it can be said that the 2nd respondent cannot avoid its liability.

(iv) In this view of the matter, and in view of the latest pronouncements in “Chakali Swaroopa and Others v. Mohd. Ghouse and Another”,4 to the effect that when the driver possesses driving license to drive LMV and when he drives same class of vehicle, and when the driving skill required to drive LMV Non-Transport and LMV-Transport is one and the same, and when there is no material to show that proximate cause for the accident was not having a valid and effective driving license, mere absence of necessary 4 2016 ACJ 383 -: 13 :- endorsement/badge on the license by itself would not amount to fundamental breach of the policy so as to absolve the insurance company from its liability, it cannot be said that insurance company can avoid its liability. In “New India

Assurance Co. Ltd., v. K.Devi & Others”,5 it was held that due to lapse of few days in getting renewal of the driving license it cannot be said that the driver will lose his capacity to drive the vehicle and he was incompetent to drive the vehicle. It was also held that when insurance company adduced no evidence to show that non-renewal of driving license contributed to the cause of the accident, insurance company is liable. It was also held that denial of compensation to victims of motor accident by the insurance company on the ground of breach of policy is not justified.

14. The evidence of RW-1 coupled with Exhibit B-1, which is copy of insurance policy for the vehicle bearing registration No.AP-16-TB-4242 issued in favour of Ch.Venkateswara Rao (the deceased 1st respondent) valid from 16.4.2011 to 15.4.2012, proves that the said policy has been in force as on the date of the accident, which took place on 20.9.2011. In view of the same, and in view of my aforesaid discussion, the respondents 2 to 4 are jointly and severally liable to pay the compensation. Accordingly, the point is answered.

15. POINT No.(3)To what relief? (3)

(i) In the result, the petition in M.V.O.P.No.946/2011 is allowed in part with proportionate costs in favour of the petitioners and against the respondents jointly and severally, awarding compensation of

Rs.12,99,850/- with interest thereon at the rate of 7.5% per annum from the date of the petition till the date of deposit. Out of the said amount, the 1st petitioner being the mother of the deceased is entitled to Rs.7,99,850/-, and the 2nd petitioner being the father of the deceased is entitled to

Rs.5,00,000/-. The respondents shall deposit the said amount within a 5 2013 ACJ 249 -: 14 :- period of one month. On such deposit, the 1st petitioner is permitted to withdraw a sum of Rs.49,850/-, and the 2nd petitioner is permitted to withdraw a sum of Rs.25,000/-, and the balance amount of their respective shares shall be kept in fixed deposit in any nationalized bank for a period of three years. Rest of the claim of the petitioners is dismissed without costs.

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

(ii) In the result, the petition in M.V.O.P.No.947/2011 is allowed in part with proportionate costs in favour of the petitioner and against the respondents jointly and severally, awarding compensation of Rs.38,000/- with interest thereon at the rate of 7.5% per annum from the date of the petition till the date of deposit. The respondents shall deposit the said amount within a period of one month. On such deposit, the petitioner is permitted to withdraw the entire amount. Rest of the claim of the petitioner is dismissed without costs. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 22nd day of April, 2016.

Sd/- (CH.K.DURGA RAO)

Chairman

Principal Motor Accidents Claims Tribunal

NELLORE

APPENDIX OF EVIDENCE

(RECORDED IN M.V.O.P.No.946/2011)

WITNESSES EXAMINED

FOR PETITIONERS

PW-1 : Sri Vallepu Chenchaiah (1st petitioner in M.V.O.P.946/2011) PW-2 : Sri Vallepu Siva Prasad (Petitioner in M.V.O.P.947/2011)

FOR 2 ND RESPONDENT

RW-1 : Sri P.Malyadri (Administrative Officer of the 2nd Respondent)

DOCUMENTS MARKED

FOR PETITIONERS

Ex.A1 Attested photocopy of F.I.R. dated 21.9.2011 in Crime 21.9.2011 No.58/2011 of Nellore Traffic North Police Station, under Sections 304-A & 337 I.P.C. registered against the driver of the Mahindra Jeep bearing registration No.AP-16-TB-4242, along with report.

-: 15 :-

Ex.A2 Attested photocopy of Inquest Report of the deceased Vallepu 21.9.2011 Subbalakshmi (concerned in M.V.O.P.No.946/2011)

Ex.A3 Attested photocopy of Postmortem Report of the deceased 21.9.2011Vallepu Subbalakshmi (concerned in M.V.O.P.No.946/2011).

Ex.A4 Attested photocopy of charge sheet filed before the II Additional

Judicial Magistrate of First Class, Nellore, in connection with

Crime No.58/2011 of Nellore Traffic North Police Station, under Sections 304-A & 338 I.P.C. against Dasari Siva Kumar - the driver of the Mahindra Jeep bearing registration No.AP-16-TB- 4242.

Ex.A5Attested photocopy of M.V.I. Report in Crime No.58/2011 of Nellore Traffic North Police Station.

Ex.A6Salary Certificate of Kum V.Subbalakshmi for the month of August, 2011 issued by the Forest Range Officer, Forest Department, Venkatagiri. (concerned in M.V.O.P.No.946/2011)

Ex.A7 Attested photocopy of wound certificate dated 14.10.211 issued 14.10.2011 by the C.M.O., Bollineni Super Specialty Hospital, Nellore, pertaining to the petitioner in M.V.O.P.No.947/2011 (PW-2).

Ex.A8Photocopy of lease agreement (deed of license) dated 18.10.2010 along with receipt for Rs.15,316/- towards rent for the month of November, and also electrical charges. (concerned in M.V.O.P.No.947/2011)

Ex.A9Bunch of medical bills for Rs.5,078/- pertaining to the petitioner in M.V.O.P.No.947/2011.

Ex.A10Bunch of three medical prescriptions relating to the deceased in M.V.O.P.No.946/2011 and injured in M.V.O.P.No.947/2011.

FOR 2 ND RESPONDENT

Ex.B1True copy of insurance policy issued by the 2nd respondent in favour of the 1st respondent valid from 16.4.2011 to 15.4.2012 in respect of Mahindra & Bolero.

Ex.B2 Office copy of the letter dated 29.2.2012 issued by the 2nd 29.2.2012 respondent to the 1st respondent calling upon to produce documents of the vehicle and driving license particulars of D.Siva Kumar.

Ex.B3 Office copy of the letter dated 9.5.2014 issued by the 2nd 9.5.2014 respondent to the 1st respondent calling upon to produce documents of the vehicle and driving license particulars of D.Siva Kumar.

Ex.B4 Driving License Extract of D.Siva Kumar issued by Additional 28.8.2014 Licensing Authority, Nellore.

Sd/- (CH.K.DURGA RAO)

Chairman

Principal Motor Accidents Claims Tribunal

NELLORE

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: NELLORE

Present: CH.K.DURGA RAO

Principal District Judge, Nellore

Monday, the 25th day of April, 2016

APPEAL SUIT No.25/2013

Kakuturu Bhakthavatsala Reddy .. Appellant

Vs.

1. Kakuturu Dayasagar Reddy

2. Eduru Ramamohan Reddy

3. Burla Venkata Padmanabha Reddy

4. Sunkara Seenaiah

5. Mungamuru Nageswara Rao .. Respondents

On appeal against the decree and judgment dated 6.12.2012 of the Principal

Junior Civil Judge, Nellore, in—

O.S.No.22/2011

Kakuturu Dayasagar Reddy .. Plaintiff

Vs.

1. Kakuturu Bhakthavatsala Reddy

2. Eduru Ramamohan Reddy

3. Burla Venkata Padmanabha Reddy

4. Sunkara Seenaiah

5. Mungamuru Nageswara Rao .. Defendants

This appeal coming on 13.4.2016 for final hearing before me, in the presence of Sri D.Phani Rathnam - advocate for the appellant, and of Sri

R.Satyanarayana - advocate for the 1st respondent, and the respondents 2 to 5 having remained ex parte, and the matter having stood over for consideration till this day, the Court delivered the following: -

J U D G M E N T

Aggrieved by the decree and judgment dated 6.12.2012 in

O.S.No.22/2011 on the file of the Principal Junior Civil Judge, Nellore,

whereby and whereunder the suit for the relief of permanent injunction is decreed without costs, the 1st defendant alone preferred this appeal.

(i) The parties as arrayed in the suit are hereinafter referred to as such, for convenience sake.

-: 2 :-

2. The 1st respondent/plaintiff filed the suit for permanent injunction restraining the defendants 1 to 5 from interfering with his peaceful possession and enjoyment of the suit schedule property, which is

Ac.3.36 Cents of Dry-land in Survey No.52 of Muthukur village, contending that originally their mother K.Anasuyamma purchased Ac.11.18 Cents of dry- land in Survey No.52 of Muthukur village under a registered sale deed dated 30.5.1966 and she was in possession and enjoyment of the same till her death on 8.8.1979, and later their father Raghava Reddy came in possession and enjoyment of the said property, and during the life time of their father the said property was orally partitioned in the year 1980 by him among his three children viz., Bhaskar Reddy - eldest, Bhaktavatsala Reddy (the 1 st defendant), and Dayasagar Reddy (the plaintiff), and in the said partition 1/3 rd share thereof i.e., the suit schedule property of Ac.3.36 Cents fell to the plaintiff’s share and the remaining property fell to the share of the 1 st defendant and the family members of Bhaskar Reddy – since he was no more by the time of partition. It is further contended that since the time of said partition, the plaintiff has been in possession and enjoyment of the said property by doing personal cultivation and by paying land revenue. It is further contended that the 1 st defendant is no other than the elder brother of the plaintiff, and is residing at Chennai, the 2 nd defendant is no other than the eldest son-in-law of the plaintiff and he is a local political leader having very much influence with Police and Revenue Officials, and he was also Mandal

President on behalf of Telugu Desam Party till the said party was in power, and he is now Mandal Leader of Congress Party after the said party came into power, and the defendants 3 to 5 are close associates of the 2 nd defendant. It is further contended that due to increase of prices of lands because of developmental activities of Krishnapatnam Port and other Projects, the defendants 1 and 2 have been trying their best to get some share in the lands of the plaintiff by hook or crook and, both of them in connivance, filed

O.S.No.9/2010 on the file of the VI Additional District Judge’s Court, Nellore

-: 3 :- against the plaintiff and others, and it is pending, and in the said suit, the 1 st defendant made an averment that the plaintiff is in possession and enjoyment of the properties, including the plaint schedule property. It is further contended that the defendants 1 and 2 have been indulging in criminal activities by humiliating and threatening the plaintiff, and by demanding huge share in the properties, and there are also criminal cases, and that it is the plaintiff who raised groundnut crop in the plaint schedule property in the second week of January, and the crop will be ripe for harvesting in April 2011, and the defendants are openly proclaiming that they would harvest the crop forcibly, and the 1 st defendant also filed Caveat in this Court and also in the Court of the Senior Civil Judge, Nellore and, therefore, the plaintiff is constrained to file the present suit.

(i) The 1st defendant/appellant filed written-statement denying the contentions of the plaintiff, and contending that as per the oral partition, the plaint schedule property fell to his share, and since then he is in possession and enjoyment of the same and he has been cultivating the said land by raising groundnut crop every year under the supervision of his farm-servants, and the standing crop in the plaint schedule property is raised by him by spending huge amount, and apart from the plaint schedule properties some other properties are not yet partitioned between him (the 1 st defendant), his brother (the plaintiff) and the legal-heirs of Bhaskar Reddy in spite of demands and, therefore, he filed suit O.S.No.9/2010 seeking for partition of his 1/3 rd share in the plaint schedule property of the said suit which is being contested by the plaintiff herein, and to avoid future complications and technicalities and as an abundant caution he included the property of their mother Anasuyamma in the said suit, even though the said item was orally partitioned, and the documents filed by the plaintiff do not relate to the suit schedule property and they belong to some other property, and the plaintiff filed the suit misrepresenting the facts and with a view to harass him with a mala-fide intention and, therefore, it is liable to be dismissed.

-: 4 :-

(ii) The defendants 2 to 5 remained ex parte.

(iii) On the above pleadings, the following issues were settled for trial: -

[1] Whether the plaintiff is in possession and enjoyment

of the suit schedule property or not?

[2] Whether the plaintiff is entitled for permanent

injunction as prayed for?

[3] To what relief?

(iv) The plaintiff got himself examined as PW-1 and also got examined P.Balaiah, alleged to be the lessee of the suit schedule property, as PW-2, and got marked Exhibits A-1 to A-9.

The 1st defendant got himself examined as DW-1, and got examined

P.Narayana, who claims to be the Head Farm-servant of the 1st defendant, as DW-2, and got marked Exhibit B-1.

(v) On appreciation of the oral and documentary evidence, the learned trial Judge held that the plaintiff has proved that he has been in possession and enjoyment of the suit schedule property and is entitled for the relief of permanent injunction and, therefore, decreed the suit without costs as prayed for.

(vi) Assailing the correctness of the said decree and judgment, the 1st defendant alone preferred this appeal showing the plaintiff as 1st respondent, and the defendants 2 to 5 who remained ex parte in the suit as respondents 2 to 5.

3. The respondents 2 to 5 remained ex parte in the present appeal also.

4. Learned counsel for the appellant/1st defendant has argued that the trial Court has failed to consider whether the plaintiff has got prima- facie right and title over the plaint schedule property, though it has to be gone -: 5 :- into incidentally even in a suit for injunction simplicitor. He has also argued that the trial Court, without considering the pendency of O.S.No.9/2010 filed for partition, came to wrong conclusions in respect of the rights of the parties, and the trial Court has also failed to consider the documentary evidence produced by the plaintiff in proper perspective and came to wrong conclusions in respect of possession of the property, and that the evidence of PW-2 does not establish possession of the plaintiff over the suit schedule property as on the date of the suit, and that the trial Court, without properly appreciating the contentions of the 1 st defendant, erroneously decreed the suit and, therefore, the impugned decree and judgment are liable to be set aside.

5. Per contra, the learned counsel for the 1st respondent/plaintiff has supported the judgment of the trial Court, stating that the trial Court has properly appreciated the oral and documentary evidence in proper perspective and has come to right conclusions and decreed the suit, and there are no grounds to set aside the same.

6. The points that arise for determination are: -

Whether the 1 st respondent/plaintiff has failed to prove that he

(1)

has been in possession and enjoyment of the suit schedule

property as of right and is entitled to the relief of permanent

injunction as contended by the appellant/1 st defendant?

(2) Whether the impugned decree and judgment are liable to be set

aside?

(3) To what relief?

7. POINT No.(1)

Whether the 1 st respondent/plaintiff has failed to (1) prove that he has been in possession and enjoyment of the suit schedule property as of right and is entitled to the relief of permanent injunction as contended by the appellant/1 st defendant?

(i) Admittedly, the plaintiff, the 1st defendant and one Bhaskar

Reddy are brothers and sons of K.Raghava Reddy and Anasuyamma. It is also an admitted fact that the said Raghava Reddy got properties, some of -: 6 :- which are said to be ancestral properties and some others are said to be acquired by him. It is also an admitted fact that Ac.11.18 Cents of land in

Survey No.52 of Muthukur village belongs to Anasuyamma - who is the wife of Raghava Reddy and mother of the plaintiff, the 1st defendant and Bhaskar

Reddy. Exhibit A-1, which is registered sale deed dated 30.5.1966 also proves that the said land is that of Anasuyamma. It is further admitted that

Anasuyamma died on 8.8.1979. Though there is no categorical pleading by both the parties whether she died intestate or not it is pertinent to note that the learned counsel for the 1st defendant elicited in the cross-examination of

PW-1 that their mother died intestate and it remained unchallenged. So it is clear that the mother Anasuyamma died on 8.8.1979 intestate.

(ii) Irrespective of the fact whether all the legal-heirs are equally entitled for the property of Anasuyamma or not, it is the consistent case of the plaintiff that after the death of their mother intestate their father Raghava

Reddy divided the said property into three equal shares among all his three sons i.e., the plaintiff, the 1 st defendant, and the family members of Bhaskar

Reddy - since Bhaskar Reddy died in the year 1978, and each has got

Ac.3.36 Cents, and it was partitioned with separate boundaries.

(iii) It is pertinent to note that the 1st defendant has taken inconsistent and self-contradictory stand in regard to the said partition of their mother’s land of Ac.11.18 Cents into three equal shares among their three brothers during the life time of their father, by initially stating in

O.S.No.9/2010 that it was the joint family property though kept in the name

of their mother and, therefore, the said property was also included in the said suit seeking for partition of his 1/3 rd share, and subsequently by filing written-statement in the present suit, initially admitting partition of said

Ac.11.18 Cents among himself, the plaintiff and their another brother Bhaskar

Reddy, without referring anything as to the nature of acquisition of said land, and later stating that it was not yet partitioned and finally he concluded -: 7 :- stating that it was included in O.S.No.9/2010 as an abundant caution though it was orally partitioned.

(iv) It is also pertinent to note that, in the cross-examination of

PW-1, the 1st defendant got elicited that after the death of their mother he (the plaintiff) used to look after the property of their mother i.e., Ac.11.18

Cents acquired by way of sale deed and also tax-affairs, and their another brother Bhaskar Reddy died in 1978, and after the death of their mother, their father partitioned the property of their mother to him (the plaintiff), the 1 st defendant and legal-heirs of the deceased Bhaskar Reddy, and each sharer has got Ac.3.36 Cents, and each share has separate boundaries. The 1st defendant, as DW-1, has also admitted the above version of the plaintiff when put to him in his cross-examination.

(v) Therefore, virtually the 1st defendant has been admitting the case of the plaintiff as pleaded by him that originally the entire extent of

Ac.11.18 Cents of land in Survey No.52 of Muthukur village belongs to their mother and after the death of their mother in 1979, their father partitioned the said property in 1980 into three equal shares and the plaintiff has got Ac.3.36

Cents with specific boundaries. In view of the same, it cannot be said that the plaintiff has not made out any case with regard to his right and title over the said property.

8. It appears, having realized the situation, the 1st defendant has changed his stand and has come forward with a changed version contending that the suit schedule property of Ac.3.36 Cents is the 1/3 rd share from out of the Ac.11.18 Cents of their mother that fell to his share. Since the 1st defendant has been claiming the suit schedule property as the property that fell to his share in the oral partition of their mother’s property, and claims to be in possession and enjoyment of the same, it is for the plaintiff to substantiate his contention that the said property is the property that fell to -: 8 :- his share and not to the share of the 1st defendant and that he has been in possession and enjoyment of the same.

9. Here it may be stated that though the 1st defendant has come- forward with a specific version that the suit schedule property has been in his physical possession and enjoyment and that he has been getting the land cultivated personally through his farm-servants, he could produce only

Exhibit B-1, which is land-revenue receipt.

(i) A perusal of Exhibit B-1 shows that it is in the name of the 1st defendant in respect of 10 items of landed properties in 10 different survey numbers, including the suit survey No.52. It also shows that the Village

Munsif, who said to have issued the said receipt, put the date “3.3.1980” below the signature, whereas the date in the first column of the said receipt meant for noting the “Date of Issue, is mentioned as “3.4.1980”. So, there is difference in the date when it was issued. None is examined in proof of said land-revenue receipt.

(ii) Moreover, DW-1 in the cross-examination admitted that Exhibit

B-1 pertains to 1389 Fasali and his father paid cist under Exhibit B-1 for the total extent of the family properties in his (DW-1’s) name. DW-1 also admitted that by that time the Village Revenue Officer was Eduru Pattabhirami Reddy, who is the father of the 2 nd defendant. A suggestion was given to him that

Exhibit B-1 was not issued by said Pattabhirami Reddy and it was fabricated by him.

(iii) In view of the discrepancy in the date of issuance of Exhibit B-1 and also the date when actually the amount was said to have been paid and collected after partition in the year 1980, unless somebody connected with the said receipt is examined it cannot be said that it is proved and can be taken into consideration. Moreover, it is of no avail, inasmuch as, it was not obtained by the 1st defendant by payment of land-revenue by him for

Ac.3.36 Cents of land in Survey No.52 of Muthukur village said to have -: 9 :- fallen to his share in the oral partition, showing the said extent. As seen from the contents of Exhibit B-1 and also the admissions of DW-1, the land- revenue was paid by their father for the total extent of their family properties.

(iv) Though the 1st defendant has examined P.Narayana as DW-2, stating that he is his Head Farm-servant, at the outset, it may be stated that the 1st defendant did not plead his name as his Head Farm-servant. Though

DW-2 stated that the plaint schedule property was personally cultivated by the 1 st defendant, he is unable to give the boundaries of the suit schedule property. In the cross-examination he stated that the suit schedule property is 3 ½ Acres in extent in Survey No.52, that he knows the boundaries of the schedule land, that on East, West and North land of somebody is situated, but he does not know the names of the said persons, and on South there is ‘Donka’.

He was aged only 29 years in 2012, and personal knowledge of the things from 1980 in respect of partition and cultivation of the suit schedule land of Ac.3.36 Cents cannot be claimed by him. In view of the same, much credence need not be given to his testimony to prove as to who is in possession and enjoyment of the suit schedule property since the time of partition in the year 1980, and as on the date of filing of the suit. In view of the same, by Exhibit B-1, it cannot be said that the 1st defendant has substantiated his case that he has been in possession and enjoyment of the suit schedule property by paying land-revenue.

10. In support of his contention that he has been in possession and enjoyment of the suit schedule property, the plaintiff has produced Exhibits

A-2 to A-9. Exhibit A-2 is land-revenue receipt dated 4.5.1983 issued in the name of the plaintiff for the lands in six survey numbers, including the one in Survey No.52. Exhibit A-3 is certified copy of 1-B Namuna (ROR) and it shows that Ac.3.36 Cents in Survey No.52 is in the name of the plaintiff, whereas the remaining Ac.7.82 Cents is in the name of Kunkala -: 10 :-

Ramachandraiah. Exhibit A-4 is certified copy of No.3 Adangal for Fasali 1419 corresponding to 2009-2010 and it shows that Ac.3.36 Cents from out of Ac.11.18 Cents in Survey No.52 of Muthukur is in possession of the plaintiff, and he has also been shown as ‘Pattadar”, whereas Kunkala

Ramachandraiah is shown to be in possession of Ac.7.82 Cents. So, the evidence of PW-1, coupled with Exhibits A-2 to A-4 clinchingly establishes that it is the plaintiff who has been in possession and enjoyment of his share of Ac.3.36 Cents from out of Ac.11.18 Cents in Survey No.52 of

Muthukur.

(i) Exhibit A-5, which is copy of Caveat filed by the 1st defendant,

Exhibit A-6, which is copy of plaint in O.S.No.9/2010 on the file of the VI

Additional District Judge, Nellore, and Exhibit A-7, which is copy of written-

statement filed by the plaintiff herein as the 1st defendant in the said suit, show that it is the 1st defendant herein, who has been taking inconsistent stand as already stated in the preceding paragraphs. Moreover, in a way, he admitted possession of the suit schedule land by the plaintiff, inasmuch as, in the said earlier proceedings he categorically pleaded that after the death of their father, the plaintiff herein came into possession of the properties and has been managing the same.

(ii) When the 1st defendant has not been able to substantiate his case that he has been in possession and enjoyment of his share of Ac.3.36

Cents of land by paying land-revenue, and the plaintiff has been able to produce documentary evidence in proof of his possession of the same, and when the version of the 1st defendant is inconsistent and self-contradictory, it is quite probable to believe the version of PW-1. Moreover, the documentary evidence produced by the plaintiff also substantiates his contention.

11. Admittedly, the mother of the plaintiff, the 1st defendant and

Bhaskar Reddy got Ac.11.18 Cents in Survey No.52 of Muthukur under

Exhibit A-1 registered sale deed. It is also an admitted fact that after the -: 11 :- death of the mother, the said property was partitioned among the said three brothers by their father. Exhibit A-9, which is registration extract of the sale deed dated 8.2.2006 produced by the plaintiff shows that Kakuturu Surya

Pratap Reddy, who is son of Bhaskar Reddy, sold Ac.7.82 Cents from out of

Ac.11.18 Cents. So, it appears, under the said document, the shares that fell to the branches of two brothers were sold. The 1st defendant did not choose to examine said Kakuturu Surya Pratap Reddy, who is no other than the son of his elder-brother, or anybody connected with the said document, or any member of their family, to show that said Ac.7.82 Cents covered by

Exhibit A-9 does not include his (the 1st defendant’s) share. So, there is lack of evidence in this regard. For his own reasons, may be due to existence of

Exhibit A-9, the 1st defendant appears to have come-forward with inconsistent versions in regard to possession and enjoyment of Ac.3.36

Cents fell to his share, and has also not been able to substantiate his possession by producing any documentary evidence, much less reliable oral evidence.

12. On the other hand, the plaintiff got examined PW-2 P.Balaiah, who said to have cultivated the suit schedule land for one year from 30.3.1998 to 29.3.1999 by taking the same on lease under Exhibit A-8 registered lease deed. The evidence of PW-2, in regard to the said lease and cultivation of the land as a lessee, has not been seriously disputed, though it has been confronted that there is no evidence to show that he has delivered back the possession of the land to the plaintiff after expiry of said lease. PW-2 categorically testified that after completion of one year period of lease, he handed over possession of said property to the plaintiff, and since then the plaintiff is in possession and enjoyment of the suit property. So, the evidence of PW-1 that he has been in possession and enjoyment of the suit property has also been corroborated by PW-2. As already stated, the evidence of PW-1 has also been corroborated by the documentary evidence, especially Exhibits A-2 to A-4. Moreover, it is also pertinent to note that in -: 12 :-

Exhibit A-9 sale deed in respect of Ac.7.82 Cents from out of Ac.11.18

Cents, the Western boundary is mentioned as the land of the plaintiff. In view of the same, it has to be held that the plaintiff has been able to substantiate his contention that he has been in possession and enjoyment of the suit schedule property as of right, and there is threat of interference by the 1st defendant.

13. In view of my foregoing discussion, I hold that the plaintiff has been able to substantiate his contention that he has been in possession and enjoyment of the suit schedule property as of right, and there is threat of interference by the 1st defendant. So also I hold that the 1st defendant has failed to substantiate his case to the contra, besides failing to prove that he has been in possession and enjoyment of the suit schedule property.

Accordingly, Point No.1 is answered.

14. POINT No.(2) (2) Whether the impugned decree and judgment are liable to be set aside?

The trial Court has properly appreciated the oral and documentary evidence, keeping in view the contentions of the parties in proper perspective, and has come to right conclusions, and there are no grounds to interfere with the impugned decree and judgment. Accordingly,

Point No.2 is answered.

15. POINT No.(3)To what relief? (3)

In the result, the appeal is DISMISSED. The impugned decree and judgment of the trial Court are confirmed in Toto. NO COSTS.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 25th day of April, 2016.

Sd/- (CH.K.DURGA RAO)

Principal District Judge

NELLORE

-: 13 :-

APPENDIX OF EVIDENCE

----NIL----

Sd/- (CH.K.DURGA RAO)

Principal District Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: CH.K.DURGA RAO

Principal Sessions Judge, Nellore

Friday, the 22nd day of April, 2016

Crl.M.P.No.334/2016

(Crime No.5/2014 of I Town Police Station, Kavali)

Shaik Arif (A-10) .. Petitioner/Accused

Vs.

State: S.H.O., Kavali I Town Police Station

Now, Rep. by Dy.S.P., C.I.D., Nellore .. .. Respondent/Complainant

This petition coming on this day for hearing before me, in the presence of Sri Y.Siva Prasad – advocate for the petitioner, and of Smt

M.Vijaya – in-charge Additional Public Prosecutor for the respondent, the

Court made the following: -

O R D E R

The sole petitioner, who is A-10 in Crime No.5/2014 of Kavali I

Town Police Station registered for the offences under Sections 420, 406, 120-B, 114, 201, 202, 212 r/w 34 I.P.C. and Section 5 of A.P. Protection of

Depositors of Financial Establishments Act, 1999 (for short ‘the APPDFE

Act’), filed this petition under Section 439 Cr.P.C. for grant of bail. He was remanded to judicial custody on 26.3.2016, when produced on P.T.

Warrant.

2. It is the contention of the petitioner that he was an employee of the company and is in no way connected with the crime, that he has been cooperating with the Investigating Agency, that the Directors of the company were released on bail and investigation was already completed and, therefore, he may be enlarged on bail.

3. This is resisted by the respondent/State by filing detailed counter mainly contending that the petitioner has to be examined and -: 2 :- interrogated, and searches have to be conducted to identify the movable and immovable properties in the name of the firm and its sister companies, and if the petitioner is enlarged on bail he would fabricate the evidence and sell away the properties and, hence, the petition is liable to be dismissed in the interests of justice.

4. Now, the point for determination is whether the petitioner is entitled to be enlarged on bail?

5. P O I N T

(i) Learned counsel for the petitioner submits that the petitioner and some others were already granted bail in Crime No.66/2014 of SR Puram

Police Station, and the respondent/police got the judicial custody of the petitioner by producing them on P.T. Warrant in other crimes, and, except filing of charge-sheet, the entire investigation is over and, therefore, the petitioner may be enlarged on bail.

(ii) The petitioner, who is A-10, is said to be an employee of the company. In “Tmt. Prasannadevi v. State of Tamil Nadu rep. b Deputy Superintendent of Police, (Economic Offence Wing), Cuddalore, Cuddalore District”,1 relied-on by the learned counsel for the petitioner, it was held by the Hon’ble Madras High

Court that to invoke penal provisions under Section 5 of the Tamil Nadu Protection of

Interest of Depositors Act, 1997 (which is said to be in para-materia with the A.P.

Protection of Depositors of Financial Establishments Act, 1999), one should shoulder the responsibility of managing the affairs of the financial firm or company, and a person who merely manages the affairs of a firm or company viz., clerks, accountants, office-assistants, who are just paid-servants, would not be responsible for the management, in the sense that they are not answerable to the claim made against the financial firm. What is required under Section 5 of the Act is that the person charged should have been responsible for the management of the affairs of the institution, and the persons who simply manage the 1 Criminal Revision Case No.591 of 2009 and M.P.No.1 of 2009 (Madras High Court)

Dated 4.8.2009

-: 3 :- affairs of the financial institution as paid-servants fall out of the ambit and scope of the aforesaid provision of law. How far the crimes alleged against the petitioner attract is in question.

(iii) Admittedly, eight crimes were registered against the petitioner and some others for similar offences. The petitioner herein and some others were granted bail in Crime No.66/2014 of SR Puram Police Station. A-1 was in judicial custody in other crimes for 70 days, which is more than the statutory period of 60 days for filing charge-sheet, and A-2 was in judicial custody for more than four months. It is not even the case of the respondent/police that the petitioner is likely to jump bail in case he is enlarged on bail or that his presence cannot be secured in case he is released on bail. It is also not their case that the petitioner has not been cooperating with the investigating agency. Moreover, the petitioner is in judicial custody for about 27 days. In the circumstances, this Court is of the view that the petitioner can be enlarged on bail on certain conditions.

Accordingly, the point is answered.

6. In the result, the petition is ALLOWED. The petitioner/A-10 shall be enlarged on bail on his bond for Rs.1,00,000/-, with two sureties each for a like sum. The petitioner shall not leave India without prior permission of the Court. The petitioner shall also report before the Deputy

Superintendent of Police, C.I.D., R.O., Tirupati, on every Tuesday and

Saturday, between 10.00 a.m. and 5.00 p.m. for a period of One Month or till filing of charge-sheet, whichever is earlier, and shall cooperate with the

Investigating Agency. If the petitioner fails to comply with the said conditions, the respondent is at liberty to move the Court for cancellation of bail.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 22nd day of April, 2016.

Sd/- (CH.K.DURGA RAO)

Principal Sessions Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: CH.K.DURGA RAO

Principal Sessions Judge, Nellore

Friday, the 22nd day of April, 2016

Crl.M.P.No.335/2016

(Crime No.6/2014 of Rural Police Station, Kavali)

1. Pannem Sudhakar (A-4)

2. Shaik Arif (A-10) .. Petitioners/Accused

Vs.

State: S.H.O., Kavali Rural Police Station

Now, Rep. by Dy.S.P., C.I.D., Nellore .. .. Respondent/Complainant

This petition coming on this day for hearing before me, in the presence of Sri Y.Siva Prasad – advocate for the petitioners, and of Smt

M.Vijaya – in-charge Additional Public Prosecutor for the respondent, the

Court made the following: -

O R D E R

Both the petitioners, who are A-4 and A-10 in Crime No.6/2014 of Kavali Rural Police Station registered for the offences under Sections 420, 406, 120-B I.P.C. and Section 5 of A.P. Protection of Depositors of Financial

Establishments Act, 1999 (for short ‘the APPDFE Act’), filed this petition under Section 439 Cr.P.C. for grant of bail. They were remanded to judicial custody on 26.3.2016, when produced on P.T. Warrant.

2. It is the contention of the petitioners that the 1 st petitioner/A-4 was already granted Anticipatory Bail by the Hon’ble High Court of

Judicature at Hyderabad in two related crimes, and the 2 nd petitioner/A-10 was an employee of the company and is in no way connected with the crime, that investigation was already completed and the properties of the company were already attached, and filing of charge-sheet is only mere formality.

3. This is resisted by the respondent/State by filing detailed counter mainly contending that the petitioners have to be examined and -: 2 :- interrogated, and searches have to be conducted to identify the movable and immovable properties in the name of the firm and its sister companies, and if the petitioners are enlarged on bail they would fabricate the evidence and sell away the properties and, hence, the petition is liable to be dismissed in the interests of justice.

4. Now, the point for determination is whether the petitioners are entitled to be enlarged on bail?

5. P O I N T

(i) Learned counsel for the petitioners submits that the petitioners and some others were already granted bail in Crime No.66/2014 of SR Puram

Police Station, and the respondent/police got the judicial custody of the petitioners by producing them on P.T. Warrant in other crimes, and, except filing of charge-sheet, the entire investigation is over and, therefore, the petitioners may be enlarged on bail. He also argued that in

Crl.M.P.No.11585/2014, the Hon’ble High Court, by its order dated

19.9.2014, directed the Investigating Officer to treat the complaint in Crime

No.6/2014 (the present crime) as statement under Section 161 Cr.P.C. and to proceed in accordance with Law. Perused copy of the said order filed by him along with a memo.

(ii) Admittedly, eight crimes were registered against the petitioners and some others for similar offences. The petitioners herein and some others were granted bail in Crime No.66/2014 of SR Puram Police Station. A-1 was in judicial custody in other crimes for 70 days, which is more than the statutory period of 60 days for filing charge-sheet, and A-2 was in judicial custody for more than four months. It is not even the case of the respondent/police that the petitioners are likely to jump bail in case they are enlarged on bail or that their presence cannot be secured in case they are released on bail. It is also not their case that the petitioners have not been cooperating with the investigating agency. Moreover, the petitioners are -: 3 :- in judicial custody for about 27 days. In the circumstances, this Court is of the view that the petitioners can be enlarged on bail on certain conditions.

Accordingly, the point is answered.

6. In the result, the petition is ALLOWED. The petitioners/A-4 and A-10 shall be enlarged on bail on their bonds for Rs.1,00,000/- each, with two sureties each for a like sum. The petitioners shall not leave India without prior permission of the Court. The petitioners shall also report

before the Deputy Superintendent of Police, C.I.D., R.O., Tirupati, on every

Tuesday and Saturday, between 10.00 a.m. and 5.00 p.m. for a period of

One Month or till filing of charge-sheet, whichever is earlier, and shall cooperate with the Investigating Agency. If the petitioners fail to comply with the said conditions, the respondent is at liberty to move the Court for cancellation of bail.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 22nd day of April, 2016.

Sd/- (CH.K.DURGA RAO)

Principal Sessions Judge

NELLORE