Ch.Kishor Kumar

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BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

IX ADDL. DISTRICT AND SESSIONS COURT: EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, I Addl. District Judge, East Godavari, Rajamahendravaram (FAC) Judge, Family Court-Cum-IX Addl. District and Sessions Court, Rajamahendravaram.

Wednesday, the 04th day of October, 2017.

MVOP.No.399 of 2016

Between: 1.Dulla Baby, W/o.Dulla Nooka Raju, aged about 35, Housewife, resident of D.No.18-10-5, Gandhi Nagar, beside Water Tank, Samalkot 2.Dulla Nooka Raju, S/o.Veerraju, Hindu, aged about 38, resident of D.No.18-10-5, Gandhi Nagar, Water Tank, Samalkot ….Petitioners AND 1.Desetti Subrahmanyam @ Subbarao, S/o.Desetti Chinnarao, Hindu, aged 29, Driver of lorry bearing No.AP16 W 2379, resident of Ganapathinagaram village, Samalkota Mandal 2.Desetti Chinna Rao, S/o.Subbarao, owner of lorry bearing No.AP16 W 2379, resident of D.No.17-13-3/1, Pleeder Gari Thota, Samalkot, East Godavari District 3.The New India Assurance Company Limited, represented by its Divisional Manager, Rajahmundry ….Respondents

This petition coming up before me on 19.09.2017 in the presence of Smt. K.Varalakshmi and Sri V.Ramkishore, advocate

for the petitioners, Sri Y.Gurunath, advocate for R1 and R2 and

Sri P.R.S. Mithra, advocate for the 3rd respondent and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

This is a claim petition filed U/Sec.166 of Motor Vehicles Act for compensation of Rs.10,00,000/- on account of death of one Dulla

Sudheer who is the son of the petitioners in the motor vehicle accident occurred on 29.01.2011.

2. The brief averments mentioned in the claim petition are that; the 1st petitioner is the mother and the 2nd petitioner is the father of the 2 deceased Dulla Seedhar. The deceased was doing Cleaner job under the employment of the 2nd respondent and earning Rs.9,000/- per month and contribute the same to his family. On 29.01.2011 at about 02.30 P.M., the deceased Dulla Sreedhar was travelling as a clear in the lorry bearing No.AP16 W 2379 under the employment of R2 from

Samalkota with a load of Sugarcane. While the said lorry reached near

Vura Cheruvu, Siripuram village at about 05.30 P.M. as the wrong instructions given by the lorry driver the deceased climbed on the lorry and was lifting the electric wires with a wooden stick which were hanging over as to pass the lorry. At that time the lorry driver drove his lorry in a negligent manner without taking caution as such the wires came in contact with the deceased, as a result of the cleaner met with electric shock and died on the spot. Yeleswaram P.S. registered a case in Crime No.16/2011 under Sec.304-A I.P.C. and 174 Cr.P.C. The deceased was aged about 21 and used to earn Rs.9,000/- per month and contribute his entire earnings for the benefit of the petitioners. Due to sudden death of the deceased, they have lost love and affection of the deceased and financial support.

3. Respondents 1 and 2 filed counter denying all the material averments mentioned in the claim petition. These respondents submit that the deceased was working under the employment of the owner but the lorry driver was wrongly thought that the deceased was completed his work and due to that the accident was occurred. The burden lies on the R3 to pay compensation as the policy is in force at the time of accident. The claim of the petitioners is excessive and exaggerated.

Therefore, prays to dismiss the petition against these respondents.

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4. The 3rd respondent filed its written statement by denying all the material averments mentioned in the claim petition. This respondent denies mode and manner of accident stated by the claim petitioners in the claim petition. This respondent submits that the 1st respondent driver of lorry bearing No.AP16 W 2379 had no valid and effective driving licence as on the date of the accident. The crime vehicle is not insured with this respondent and the original policy is in the custody of the 2nd respondent owner. The 2nd respondent has not complied with the statutory demand under Sec.134(c) of M.V. Act by furnishing the particulars of the policy, date, time and place of accident, particulars of the injured, name of the driver and particulars of the D.L. Further this respondent denies age, occupation and earnings of the deceased. The amount of compensation claimed by the petitioners is excessive and exorbitant. Therefore, the petition is liable to be dismissed against this respondent.

5. Basing on the above pleadings, the following issues are settled for trial:- (1)Whether the death of Dulla Sudheer is caused in the motor vehicle accident occurred on 29.01.2011 due to rash and negligence on the part of the driver of lorry bearing No.AP16 W 2379?

(2)Whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents?

(3)To what relief?

6. On behalf of the petitioners, PWs.1 to 3 were examined and got marked Exs.A1 to A7 and Exs.X1 to X3. The 3rd respondent reported no oral or documentary evidence. Ex.B1 policy is marked with consent.

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8. Arguments of both sides heard.

ISSUE No.1 and 2:

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9. This claim petition is filed by the claim petitioners U/Sec.166 of

M.V. Act for compensation on account of the death of the deceased

Tuthika Lakshmana Rao. As per the pleadings and evidence adduced

before the court, 1st petitioner is the wife and 2nd and 3rd petitioners are

the sons and Petitioner No.4 is the daughter of the deceased respectively. 1st respondent is the driver, 2nd respondent is the owner- insured and 3rd respondent is the insurer of Auto bearing Regn.

No.AP37 TC 3728(hereinafter called as crime auto).

10. To prove the case, the petitioners examined 1st petitioner who is the wife of the deceased as PW.1. PW.1 deposed about the death of her deceased husband while undergoing treatment in G.G.H., Kakinada for the grievous injuries sustained in the motor vehicle accident occurred on 31.08.2015 while the deceased tried to cross the state highway road at Kovvur, the 1st respondent driver of the crime auto proceeding towards tole-gate drove it in a rash and negligent manner at high speed without blowing horn and dashed the deceased. In support of her oral evidence, PW.1 got marked attested copies of Ex.A1 F.I.R., Ex.A2 inquest report, Ex.A3 P.M. report, Ex.A4 charge sheet, Ex.A5 photostat copy of policy, Ex.A6 photostat copy of R.C. and Ex.A7 M.V.I. report.

PW.1 stated in the cross examination that she did not witness the accident.

11. To prove rash and negligent driving of the driver of the crime auto, the claim petitioners examined eyewitness as PW.2. PW.2 5 deposed that on the date of the accident i.e., 31.08.2015 morning he went to Kovvur side for the sale of mobile cloths business and after completion of sales while he was returning to his house on motorcycle and when he reached near Kovvur Bridge at about 08.30 P.M., his deceased father tried to cross the road to reach other side to catch a bus or an Auto, at the same time the first respondent driver of the crime auto proceeding towards tole-gate drove it in a rash and negligent manner with high speed without blowing horn dashed his deceased father and thereby his deceased father sustained head injury and lost his conscious and immediately his father was shifted to

Community Health Center, Kovvur and after first-aid he was shifted to

District Hospital, Rajahmundry and from there to G.G.H., Kakinada for better treatment where his father was succumbed to injuries on 01.09.2015.

12. The 3rd respondent disputed the rash and negligent on the part of the 1st respondent driver of the crime auto and that the accident took place due to negligence of the deceased and suggested the same to

PWs.1 and 2 in the cross examination, they denied the same.

13. On perusal of Ex.A1-F.I.R. shows that on the report of the 3rd petitioner, the S.H.O., Kovvur Town Police Station registered a case in

Cr.No.188/2015 against the driver of the crime auto under Sec.304-A

I.P.C. against the driver of the crime auto. In Ex.A1, the date, time and place of accident, number of the crime auto and name of the deceased are mentioned. Ex.A2 Inquest report shows that an inquest was held over the dead body of the deceased on 02.09.2015 in the presence of

Panchayatdars, blood relatives and witnesses and that Panchayatdars opined that the deceased died in the motor vehicle accident near 6

Kovvur Bridge due to rash and negligent driving of the driver of the crime-auto. Ex.A3 P.M. report shows that the Medical Officer, G.G.H,

Kakinada conducted autopsy over the dead body of the deceased on 02.09.2015 and found multiple ante-mortem injuries over the dead body and he is of the opinion that the cause of death is due to head injury. The contents of Ex.A4 charge sheet would go to show that after completion of investigation, S.I. of Police, Kovvur Town Police Station, filed charge sheet against the 1st respondent driver of the crime-auto for the offence under Secs.304-A of I.P.C. for his rash and negligent driving of the crime-auto. In the list of witnesses 3rd petitioner is shown as defacto complainant and PW.2 is shown as eyewitness in the list of witnesses of Ex.A4 charge sheet and the name of the deceased is mentioned in the body of charge sheet. Ex.A7 M.V.I. report shows that the M.V. Inspector inspected the crime auto and conducted road test and found the braking system was intact and in efficient working condition and the action is even and opined that the accident occurred was not due to any mechanical defect of the crime auto.

14. The 1st respondent driver and 2nd respondent owner of the crime lorry did not choose to contest the case by denying the case of the claim petitioners and remained exparte. The 3rd respondent did not dispute the genuineness and veracity of Exs.A1 to A5 and also did not dispute the factum of accident and involvement of the crime auto and cause of the death of the deceased in the said accident. PW.1 wife of the deceased deposed about the death of deceased due to the injuries sustained by the deceased in the motor vehicle accident occurred on 31.08.2015. PW.2 eyewitness categorically stated that on the date of accident i.e., 31.08.2015 while he was returning from Kovvur on his 7 motorcycle and when he reached the Kovvur Bridge, at that time his father tried to cross the road to catch a bus or auto and at the same time the crime auto proceeding towards tole-gate in a rash and negligent manner with high speed without blowing horn dashed the deceased, thereby the deceased sustained grievous head injury and later he succumbed to injuries while undergoing treatment in G.G.H.,

Kakinada. The 3rd respondent disputed rash and negligent on the part of the driver of the crime auto by suggesting that the accident took place due to negligence of the deceased in the cross examination of

PWs.1 and 2. The 3rd respondent examined its legal assistant as RW.1.

RW.1 stated that there is no negligence on the part of the 1st respondent and the crime auto is not involved in the accident and that the criminal case i.e., C.C.541/2015 registered against the 1st respondent driver of the crime auto ended in acquittal vide Ex.B4 and there is no rash and negligence on the part of the driver of the crime auto. There is no force in the contention of the 3rd respondent insurer because in a decision reported in 2008(2) TAC 657 (M.P.) Arif Khan

v. Madan Lal and others relied on 1994 ACJ 708(DB); 1988 ACJ

1292; 2003 ACJ 1952 (Kar) (DB) and 1999 ACJ 241 (MP)(DB), it was held that; “proceedings before the Tribunal are independent and the Tribunal is not bound by the decision of the criminal case wherein the driver of the offending vehicle was acquitted”.

15. Further it is not the evidence of RW.1 that he witnessed the accident. Moreover, RW.1 stated that he did not give any evidence in crime case i.e., C.C.541/2015. Further he stated in the cross examination that he is not the eyewitness to the accident. The driver of the crime auto is the proper person is the proper person to deny the 8 evidence of PW.2 eyewitness or to explain as to how the accident took place. In the present case, the driver of the crime auto is shown as 1st respondent but he did not choose to contest the case by denying his rash and negligent driving of the crime auto. Nothing is elicited from the cross examination of PW.2 eyewitness to disbelieve his evidence.

Ex.A4 charge sheet shows that after completion of investigation, 1st respondent driver of the crime auto was charge sheeted for his rash and negligent driving of the crime auto. The evidence of PWs.1 and 2 is duly corroborating with Exs.A1 to A5 and A7. Nothing is elicited from the cross examination of PWs.1 and 2 to show that the claim petitioners filed claim petition by colluding the respondents 1 and 2 to get compensation from the insurance company. The evidence of Pws.1 and 2 coupled with Exs.A1 to A4 and A7, clearly established that the death of the deceased was caused in the motor vehicle accident occurred on 31.08.2015 due to rash and negligent driving of the crime auto by the 1st respondent driver. This issue is answered accordingly in favour of the petitioners.

Issue No.2:

16. With regard to this issue, according to the claim petitioners the deceased was aged about 58 years by the date of accident. Further in

Ex.A2 inquest report and Ex.A3 P.M. report the age of the deceased is mentioned as 58 years. Further it is elicited from the cross examination of PW.1 that the age gap between her and her deceased husband is about 3 years. Further the evidence affidavit of PW.1 shows that she was aged about 55 years. The evidence of PW.1 coupled with Exs.A2 and A3, established the deceased was aged about 58 by the date of accident. Thus the age of the deceased is determined as 58. The evidence of PW.1 is that the deceased used to earn Rs.15,000/- by 9 selling clothes on cycles in surrounding villages and used to contribute the same for the welfare the petitioners and that they are all depending upon the earnings of the deceased husband. Due to the sudden death of the deceased, they have lost their financial support and love and affection of the deceased. The 3rd respondent disputed the earnings of the deceased in the cross examination of PW.1. The claim petitioner did not adduce any oral or documentary evidence to prove the actual earnings of the deceased. However, nowadays any unskilled labourer minimum earns Rs.5,000/- per month. Thus it is reasonable to take earnings of the deceased as Rs.5,000/- per month, which comes to

Rs.60,000/- per annum. 1/3rd is to be deducted towards personal and living expenses of the deceased. After deducting 1/3rd amount, the loss of dependency comes to Rs.40,000/- per annum. The corresponding multiplier applicable to the age of the deceased is '11'. Then the total loss of dependency would be determined as Rs.40,000/- x 11 = 4,40,000/-. Besides that an amount of Rs.1,00,000/- towards loss of consortium, Rs.10,000/- towards funeral expenses and Rs.10,000/- towards transportation and an amount of Rs.25,000/- towards loss of estate and love and affection, in total the petitioners are entitled to compensation of Rs.5,85,000/-. No medical bills are produced by the claim petitioners to show they have spent Rs.40,000/- towards medical expenses of the deceased as alleged by PW.1. As such, no amount is awarded under the head of medical expenses.

17. The learned counsel for the 3rd respondent insurer contended that 2nd respondent insurer of the crime auto violated terms and conditions of the policy by allowing the first respondent driver of the vehicle who has not possessed driving licence at all and also there is no fitness 10 certificate for the crime auto by the date of accident and, therefore, the insurance company is not liable to pay compensation. In support of its contention, the 3rd respondent examined its Legal Assistant as RW.1.

RW.1 stated that their company issued policy in respect of the crime auto of the 2nd respondent vide Ex.B1 and the same is in force by the date of the accident. He further stated that the 1st respondent driver of the crime auto has no driving licence at all as on the date of the accident and they got issued legal notice dated 17.02.2017 vide Ex.B2 to respondents 1 and 2 to produce the driving licence particulars and the same is acknowledged vide Ex.B3 postal acknowledgment, but R1 and R2 did not respond to the Ex.B2 notice. As such, the 3rd respondent is not liable to indemnify the 2nd respondent owner. RW.1 stated in the cross examination that he does not know personally whether there is a valid permit and fitness certificate to the crime vehicle and he also does not know personally whether the driver of the crime auto is having valid and proper driving licence by the date of the accident.

18. The 3rd respondent examined Senior Assistant, R.T.A., Kovvuru as

RW.2 who is authorised to give evidence vide Ex.X1 authorisation letter and he got marked Ex.X2 vehilce check report and Ex.X3 fitness certificate history of the crime auto. As seen from the evidence of RW.2 and Ex.X3 fitness certificate history, the fitness certificate of the crime auto is expired by 19.03.2015 and that subsequently, fitness certificate is issued which is valid from 06.03.2017 to 05.03.2018. The date of accident is 31.08.2015. Thus by the date of accident the fitness certificate is not in force to the crime auto. But prior and subsequent to accident there was a valid fitness certificate to the crime auto. The absence of fitness certificate by the date of accident is only technical 11 violation but not fundamental breach as there is no evidence before the court to show that the mere absence of fitness certificate leads to the accident. As such, the insurance company cannot be exonerated from its liability.

19. In a decision delivered by a Three Judge Bench, in between

Augustine V.M. v. Ayyappankutty and others reported in A.I.R.2015

Kerala 131, wherein the point for consideration arose whether the insurer can avoid its liability if validity of the fitness certificate or permit of vehicle has expired. Their lordships held that; “the insurer cannot claim exoneration from its liability to indemnify the owner of a vehicle in respect of injuries to third parties if the vehicle get involved in the accident after the expiry of period of validity of fitness certificate or permit etc., merely on account of such technical violation.”

20. The above said decision is squarely applicable to the present set of facts on hand because in the present case also, there is nothing on evidence to show that the breach alleged was fundamental breach which has contributed to the cause of accident. In the absence of any evidence to show that the alleged breach was so fundamental as to lead to the accident, the insurance company cannot be exonerated from its liability to indemnify the owner of the crime vehicle on technical violations. Moreover, Ex.B1 insurance policy shows that the 3rd respondent insurance company issued policy to the crime auto of the 2nd respondent and it is in force by the date of accident.

21. Further the 3rd respondent examined 1st respondent as RW.3. He stated that he does not know the 2nd respondent and he never worked as auto-driver under the 2nd respondent and that on the date of the accident i.e., on 31.08.2015 he did not drive the crime auto and as on 12 the date of the accident he did not possess any type of driving licence to drive the auto and till today he is not having any type of driving licence and that he purchased the crime auto Bhagyasri Auto Finance,

Rajahmundry and he got marked Ex.X4 bunch of photostat copies of the receipts. In the cross examination, RW.3 stated that till today the said crime auto is not registered in his name. Ex.X4 does not disclose on which date he purchased the crime auto. Further he did not choose to examine the person who issued Ex.X4. Further RW.3(1st respondent) did not choose to contest the case stating that he is not the driver of the crime auto as on the date of the accident and he did not drive it at the time of accident. For the first time he stated before the court that he is not the driver of the crime auto. Further RW.3 admitted in his evidence that he was charge sheeted alleging that he drove the crime auto in a rash and negligent manner and caused the accident. As such, the evidence RW.3 that he is not a driver of the crime auto at the time of accident cannot be believed. Further he admitted that he is not having driving licence at all to drive the crime auto by the date of accident.

22. The learned counsel for the petitioner contended that Ex.B1 policy issued by the 3rd respondent insurance company is in force by the date of accident and it covers the 3rd party risk and as the deceased is a third party if any violations committed by the insured, then the 3rd respondent insurer is liable to satisfy the award to the claim petitioners at the first instance and then recover the same from the owner/insured.

23. In Full Bench of Kerala High Court in Oriental Insurance Co. Ltd.

Vs. Joseph V.V. @ Johney AIR 2012 Kerala 116observed that; 13 “if there are violations of terms of policy, the question of pay and recover would arise. When the case of the deceased was not covered under the policy, question of pay and recovery does not arise."

24. Further in2013(2) ALD 233 Oriental Insurance Co., Ltd.,

Vijayawada Vs Banavathu Gopi (died) for L.Rs. and others by relying on AIR 2012 Kerala 116 cited above it was held that; "Even assuming that by the date of the accident the driver of the vehicle was not having a valid driving licence that by itself will not deprive the claimant for claiming compensation. The main purpose of the provisions of the Motor Vechiles Act is to see that 3rd parties do not became helpless victims in motor accident. The insurance company cannot disown its liability on the ground that the driver was not holding a driving licence. As there is a breach of conditions of the policy the insurance company should first indemnify the claimant and then recover the same from the owner of the vehicle."

25. 2010 ACJ 1647 Oriental Insurance Co. Ltd., Vs. Pyare Lal and others, wherein the driver of the offending vehicle admitted in his evidence that he was never holding any licence to drive any vehicle. In view of the aforesaid admission of driver of offending vehicle, it was held that; “the insurance company is entitled to recovery rights against respondent No.1 registered owner of the offending vehicle and respondent No.2 purchaser of the said vehicle”.

26. 2010 ACJ 2046 (Madras)(DB) United India Insurance Company

Ltd., Vs. S. Saravanan and another , wherein owner allowed a relative who had no driving licence to drive his motorcycle, their lordships held that as owner breached terms of the policy, insurance company is not liable to pay compensation. Further held that in view of the decisions in

New India Insurance Co. Ltd., Vs. Kamala 2001 ACJ 843 (SC), United

India Insurance Co. Ltd., Vs. Lehru 2003 ACJ 611 (SC), Skandia

Insurance Co. Ltd., Vs. Kokilaben Chandravadan 1987 ACJ 411 (SC),

Sohan Lal Passi Vs. P. Sesh Reddy 1996 ACJ 1044 (SC), National

Insurance Co. Ltd., Vs. Swarn Singh 2004 ACJ 1 (SC), National 14

Insurance Co. Ltd. Vs. Laxminarayan Dhut 2007 ACJ 721 (SC), we are of the firm opinion that the insurer must pay the amount as far as 3rd party risks are concerned and then recover the same from the insured, if so advised.

27. 2012 (1) An. W.R 153 (D.B) (ALL.) National Insurance Co. Ltd.,

Vs. Smt. Sharda Devi and others wherein it was held that "In National

Insurance Co. Ltd. Vs. Smt. Khursheeda Bano and other 2009 (1)

An.W.C 355: 2009 (3) TAC 139 a Division Bench of this court laid down as follows:

"Learned counsel has cited the judgment of the Supreme Court in National Insurance Co., Ltd. vs. Challa Bharatamma and others 2004 (8) SSC 517= 2005(1) TAC 4 to establish that the claim of the Insurance company should be secured by the owner. We have no quarrel with such proposition. What we want to say is that unless and until an appropriate application in the self same proceeding is made by the Insurance company for the purpose of recovery, the question of furnishing security by the owner cannot arise. Such situation is yet to rite . At this stage we are only concerned with the payment of compensation to the claimants which cannot be stalled and has got nothing to do with the dispute regarding liability between the owner and the insurance company. The sufferer is a 3rd party. Moreover in judgment, the Division bench of the Supreme Court has categorically held "Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability" in effect it is stop gap arrangement to satisfy the award as soon as it is passed. The judgment of three judges bench of the Supreme Court in National Insurance Co. Ltd., Vs. Swaran Singh and others 2004(3) SCC 297 also speaks in para 110 that the Tribunal can direct that the insurer is liable to be reimbursement by the insured for the compensation and other amounts which it has been compelled to pay to the 3rd party under the award of the tribunal. Therefore the intention of the legislature as well as interpretation of the Supreme Court and different High Courts as well settled to the extent that under no circumstances payment of the compensation to the claimants will be stalled." In view of the above discussion they are of the opinion that the Tribunal did not commit any illegality in directing appellant insurance company to make deposit of the amount of compensation and recover the same from the insured person”.

28. As per the latest decision 2015(3) ALT 4 (A.P) Karri Krishna 15

Mohan vs. Kuppili Gaddemma and another wherein it was held that ;

“Even though the insurance company is not liable to pay compensation, when the policy of the crime vehicle was subsisting on the date of accident and when the insured is liable to pay compensation, the insurance company shall pay compensation awarded to the third party claimant in the first instance and recover the same from the owner of vehicle/insured.”

29. Further the learned counsel for the petitioners also relied upon the decision of the Apex Court in 2017 ACJ 1362 (SC) Lal Singh Marabi v. National insurance Company Limited, where in the driver of the crime vehicle is also did not possess valid licence to drive the crime vehicle and in such case, the Apex Court held that; “Insurance company is directed to pay the compensation to the claim petitioner and recover the amount from the owner of the driver of the mini bus”.

30. As per the ratio laid down in the above said decisions it is clear that even though the insurance company is not liable to pay compensation, when the policy of the crime vehicle was subsisting on the date of accident and when the insured is liable to pay compensation, the insurance company shall pay compensation awarded to the third party claimant in the first instance and recover the same from the owner of vehicle/insured. The main purpose of the provisions of the Motor Vehicles Act is to see that 3rd parties do not became helpless victims in motor accident. The insurance company cannot disown its liability on the ground that the driver was not holding a driving licence.

31. On perusal of Ex.B1 insurance policy shows that the crime auto of the 2nd respondent is insured with 3rd respondent insurance company and it is in force by the date of accident.

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32. In the above circumstances, the 1st respondent being driver, 2nd respondent being owner/insured are jointly and severally liable to pay the above said compensation amount to the petitioners. However 3rd respondent insurance company is directed to pay amount of compensation at first instance and then recover the same from the 2nd respondent owner/insured of the crime vehicle. This issue is answered accordingly.

33. Issue No.3: In the result, the petition is allowed in part with proportionate costs awarding compensation of Rs.5,85,000/-(Rupees five lakhs eighty-five thousand only) to the petitioners.

ii) The Respondents 1 and 2 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 22.01.2016 till the date of realization. However, the 3rd respondent insurance company is directed to deposit the above said compensation amount within one month from the date of this order and then recover the same from 2nd respondent owner/insured.

The compensation amount apportioned among the claim petitioners as follows:

iii) 1st petitioner is entitled to Rs.4,35,000/- along with components of interest and costs and the petitioners 2 to 4 are entitled to

Rs.50,000/- each.

iv) On such deposit, the 1st petitioner is permitted to withdraw a sum of Rs.3,00,000/- and rest of the compensation amount shall be deposited in any Nationalised Bank for a period of 2 years and on maturity, she is entitled to withdraw her balance compensation amount along with accrued interest thereon.

v) The petitioners 2 to 4 are entitled to withdraw their respective compensation amount i.e., Rs.50,000/- each.

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

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open court this the 04 th day of October, 2017.

I ADDL. DISTRICT JUDGE,

(FAC) CHAIRMAN,

Motor Accidents Claims Tribunal Cum-IX Additional District Judge, Rajamahendravaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: Tuthika Ratna Kumari PW.2: Tuthika Sekhar

For Respondents:

RW.1: Vemula Krishna RW.2: K.John Victor RW.3: Dangala Chinaraju

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of F.I.R. Ex.A2 attested copy of inquest report Ex.A3 attested copy of P.M. report Ex.A4 attested copy of charge sheet Ex.A5 photostat copy of policy Ex.A6 photostat copy of R.C. Ex.A7 copy of M.V.I. report

For Respondents:

Ex.B1 attested copy of the policy Ex.B2 office copy of notice dated 17.02.2017 along with postal receipt Ex.B3 postal acknowledgment Ex.B4 certified copy of calendar and judgment in C.C.No.541/2015 Ex.X1 authorisation letter Ex.X2 vehicle check report Ex.X3 fitness certificate history Ex.X4 bunch of Photostat copy receipts issued by Bhagyasree Auto Finance

CHAIRMAN.

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1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

IX ADDL. DISTRICT AND SESSIONS COURT: EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District & Sessions Court, Rajamahendravaram.

Monday, the 28th day of August, 2017.

MVOP.No.263 of 2016 Between: 1.Betireddy Venkatalakshmi 2.Betireddy Anuradha 3.Betireddy Susmitha(P2 and P3 being minors represented by their mother-P1 4.Betireddy Somi Reddy(DIED) 5.Betireddy Ramalakshmi ….Petitioners

AND 1.Meddimsetti Sathibabu 2.Vanguri Durga Rao 3.National Insurance Company Limited, represented by it s Branch Manager, Rajahmundry ….Respondents

This petition coming up before me, on 24.08.2017, in the presence of Sri P.Nageswara Rao, advocate for the petitioners, R1 and R2 remained exparte and of Sri D.Sambasiva Rao, advocate for the 3rd respondent and the matter having stood over for consideration till this day, this court, delivered the following:

O R D E R

This is a claim petition filed U/Sec.166 of Motor Vehicles Act for compensation of Rs.15,00,000/- on account of death of one Betireddy

Venkata Subbareddy @ Subbareddy in the motor vehicle accident occurred on 26.08.2015.

2. The brief averments mentioned in the claim petition are that; the 1st petitioner is the wife, petitioners 2 and 3 are daughters, petitioners 4 and 5 are parents of the deceased Betireddy Venkata Subbareddy @

Subbareddy. On 26.08.2015 at about 6 A.M., the deceased left his house on motorcycle bearing No.AP05 BJ 1732 to go to Amalapuram for

Tobaco business purpose. While proceeding towards Kothapeta, when 2 he reached to opposite Sri Dhanalakshmi Tiles and Granites Shop,

Kothapeta road, Ravulapalem village, the 1st respondent drove the

Eicher Van bearing Regd.No.AP5 V 6219 coming from Kothapeta side to

Ravulapalem in opposite direction in a rash and negligent manner with high speed without blowing horn and without following traffic rules and dashed against the deceased, resulting which the deceased fell down on road from the motorcycle and sustained grievous injuries and died on the spot. Ravulapalem Police Station registered a case in

Cr.No.195/2015 under Sec.304-A I.P.C. against the driver of the Eicher

Van. The deceased was aged about 37 and he used to earn averagely

Rs.12,000/- per month on his Tobacco business and support the petitioners. Due to sudden death of the deceased all petitioners have lost their dependency and they became destitute. Hence the petition.

3. The 2nd respondent filed written statement denying all the material averments mentioned in the petition. This respondent submits that the accident was occurred due to own negligent driving of the deceased who fails to follow traffic rules and regulations and the deceased motorcyclist is a contributor of the accident. Without prejudice to his contentions, this respondent submits that 1st respondent who alleged to have driven the vehicle was holding valid driving licence to drive the transport vehicle at the time of alleged accident. It is further submits that the vehicle was duly insured with the 3rd respondent insurance company and the same is in force and subsisting as on the date of the accident. As such, the 3rd respondent is only liable to pay the compensation to the petitioner. Further this respondent denied age, occupation and earnings of the deceased. The 3 amount of compensation claimed by the claim petitioners is exorbitant and excessive. Therefore, the petition is liable to be dismissed.

4. 1St respondent filed memo adopting the written statement filed by the 2nd respondent.

5. 3rd respondent filed its written statement by denying all the material averments mentioned in the claim petition. This respondent denied mode and manner of accident stated by the claim petitioners in the claim petition. This respondent submits that the accident had occasioned due to contributory negligence of the deceased and denied the rash and negligent driving of the 1st respondent. Further this respondent denied age, occupation and earnings of the deceased. It is further denied that the 1st respondent is the driver of the Eicher Van and the 2nd respondent is the owner of the said Van and also denied the said Eicher Van is insured with this respondent by the date of accident.

It is also denied that the 1st respondent is having valid and effective driving licence to drive the Eicher Van and the Vehicle holds valid

Permit, R.C., F,.C., and Trip Sheet. The amount of compensation claimed by the petitioners is excessive and exorbitant. Therefore, the petition is liable to be dismissed.

7. Basing on the above pleadings, the following issues are settled for trial:- (1)Whether the death of the deceased Betireddy Venkata Subbareddy @ Subbareddy is caused in the motor vehicle accident occurred on 26.08.2015 due to rash and negligent driving of the Eicher Van bearing registration No.AP05 V 6219 by its driver?

(2)Whether the petitioners are entitled to compensation? If so, to what amount and from which of the respondents?

(3)To what relief?

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8. On behalf of the petitioners, PWs.1 and 2 were examined and got marked Exs.A1 to A6. No oral and documentary evidence is adduced on behalf of the respondents 1 and 2. 3rd respondent reported no oral evidence and Ex.B1 policy is marked with consent.

9. As per orders dated 07.08.2017 passed in IA.No.1025/2017 filed under Sec.170 M.V. Act, the 3rd respondent is permitted to take all the defence that are available to respondents 1 and 2.

10. Arguments of both sides heard.

ISSUE No.1 and 2:

11. This claim petition is filed by the claim petitioners U/Sec.166 of

M.V. Act for compensation on account of the death of the deceased

Betireddy Venkata Subbareddy @ Subbareddy. As per the pleadings and evidence adduced before the court, 1st petitioner is the wife and 2nd and 3rd petitioners are the daughters and petitioners 4 and 5 are the parents of the deceased. 1St respondent is the driver, 2nd respondent is the owner-insured and 3rd respondent is the insurer of Eicher Van bearing No.AP05 V 6219(hereinafter called as crime van).

12. During the pendency of the claim petition, 4th petitioner viz.

Betireddy Somireddy died on 22.02.2017 vide Ex.A6 Death certificate.

13. To prove the case, the petitioners examined 1st petitioner who is the wife of the deceased as PW.1. PW.1 deposed about the death of her deceased husband in the motor vehicle accident occurred on 26.08.2015 while he was proceeding on motorcycle due to rash and negligent driving of the driver of the crime van. In support of her oral evidence she got marked attested copies of Ex.A1 F.I.R. in

Cr.No.195/15, Ex.A2 inquest report, Ex.A3 P.M. report, Ex.A4 M.V.I.

5 report, Ex.A5 charge sheet, Ex.A6 death certificate of 4th petitioner.

PW.1 stated in the cross examination she did not witness the accident.

14. To prove rash and negligent driving of the driver of the crime van, the claim petitioners examined eyewitness i.e., Kayala Nagireddy as PW.2. PW.2 deposed that on the date the accident at about 6 A.M., he was proceeding in an Auto towards Ravulapalem to Kothapeta Road, by that time when their Auto reached after crossing of High School opposite to Dhanalakshmi, Canal Road, Ravulapalem, one motorcyclist proceeding ahead of their Auto on the left side towards Kothapeta, suddenly the crime van coming from opposite direction with high speed without following traffic rules and dashed the motorcycle. As a result of which, the driver of the motorcycle fallen on the road and sustained grievous injuries to his head and died on the spot. Immediately, on witnessing the said accident from the Auto immediately stopped the

Auto and ran to the deceased and recognized him as Betredi Venkata

Subbareddy with whom he did Tobacco business two years back. Then he informed the accident and the death of the deceased to his brother

Bethireddy Ramakrishna Reddy who rushed to the place of accident along with his relatives and intimated the accident to the Ravulapalem

Police Station.

15. The 3rd respondent disputed rash and negligence on the part of the 1st respondent driver of the crime van contending that PW.2 did not witness the accident and suggested the same to PW.2 in the cross examination. PW.2 denied the said suggestion.

16. On perusal of Ex.A1-F.I.R. shows that on the report of brother of the deceased viz. Bethireddy Ramakrishna Reddy, the S.H.O.,

Ravulapalem Police Station registered a case in Cr.No.195/2015 against 6 the driver of the crime lorry under Sec.304-A I.P.C. on the same day of the accident. In Ex.A1, the date time and place of accident, number of the crime van, name of the deceased are mentioned. Ex.A2 Inquest report shows that an inquest was held over the dead body of the deceased on 26.08.2015 in the presence of Panchayatdars, blood relatives and witnesses and Panchayatdars opined that the deceased died in the motor vehicle accident on Ravulapalem – Amalapuram road due to rash and negligent driving of the driver of the crime van. Ex.A3

P.M. report shows that the Medical Officer, Area Hospital, Kothapeta conducted autopsy over the dead body of the deceased and found ante-mortem injuries over the dead body and he is of the opinion that the cause of death is due to severe head injury sustained in RTA. Ex.A4

M.V.I. report shows that M.V. Inspector inspected the crime van and conducted road test and found that breaking system is intact and he is of the opinion that the accident occurred was not due to any mechanical defects of the crime vehicle. The contents of Ex.A5 charge sheet would go to show that after completion of investigation, S.I. of

Police, Ravulapalem Police Station, filed charge sheet against the 1st respondent driver of the crime van for the offence under Secs.304-A

I.P.C. for his rash and negligent driving of the crime lorry. The name of

PW.2 is shown as witness in the list of witnesses of Ex.A5 charge sheet and Ex.A2 inquest report.

17. The respondents 1 to 3 did not challenge the genuineness and veracity of Exs.A1 to A6 and also did not dispute the factum of accident, involvement of crime van and cause of the death of the deceased in the motor vehicle accident. According to the evidence of

PW.1 the wife of the deceased, her deceased husband died in motor 7 vehicle accident occurred on 26.08.2015 while he was proceeding on motorcycle due to rash and negligent driving of the driver of the crime van. PW.2 who is the eyewitness to the accident categorically stated that while he was proceeding in an Auto towards Ravulapalem-

Kothapeta road when their reached opposite to Dhanalakshmi Tiles

Shop, the deceased was proceeding on the motorcycle ahead to their

Auto on the left side of the road and at that time suddenly the crime van coming in opposite direction driven by its driver in a rash and negligent manner and dashed the motorcycle, resulting with the deceased died on the spot. The 3rd respondent denied rash and negligent on the part of the driver of the crime van in the cross examination of PW.2 by way of suggestion. The driver of the crime van is the proper person to deny the evidence of PW.2/eyewitness or to explain as to how the accident took place. In the present case, the driver of the crime van is shown as 1st respondent. But he did not challenge the evidence of PW.2 eyewitness with regard to rash and negligent driving of the crime van. Further he did not choose to come to witness box by denying the rash and negligent driving of the Van.

The evidence of PW.2 who is shown as witness in Ex.A2 inquest report and Ex.A5 charge sheet is duly corroborating with Exs.A1 to A5.

Moreover, Ex.A5 charge sheet shows that after completion of investigation, the 1st respondent was charge sheeted for his rash and negligent driving of the crime van. Nothing is elicited from the cross examination of PWs.1 and 2 to show that the claim petitioners filed the claim petition with false allegations by colluding with R1 and R2 in order to get compensation from R3 insurance company. No rebuttal evidence is adduced to disprove the evidence of Pws.1 and 2 and

Exs.A1 to A5. Thus the oral and documentary evidence adduced by the 8 claim petitioners clearly established that the deceased died on the spot in the motor vehicle accident occurred on 26.08.2015 due to rash and negligent driving of the crime van by the 1st respondent driver. This issue is answered accordingly in favour of the claim petitioners.

Issue No.2:

18. With regard to this issue, according to the evidence of PW.1, the deceased was aged about 37 by the date of accident. In Ex.A1-F.I.R.,

Ex.A2 inquest report, Ex.A3 P.M. report and Ex.A5 charge sheet the age of the deceased is shown as 37. The respondents did not dispute the age of the deceased, stated by PW.1 and mentioned in Exs.A1 to A3 and A5. Thus the age of the deceased is determined as 37 years by the date of the accident. According to the evidence of PW.1, the deceased used to earn averagely Rs.12,000/- per month by doing Tobacco business and used to contribute the same for the welfare of the family and they are all depending upon the earnings of the deceased and due to the sudden death of the deceased they have lost their dependency and they become destitute and she lost her consortium at early age.

19. The 3rd respondent disputed the occupation and earnings of the deceased. It is suggested to PW.1 that the deceased did not do Tobacco business and not earning Rs.12,000/- per month as alleged by her in her evidence. PW.1 denied the said suggestions but the claim petitioner did not adduce any oral and documentary evidence to show that the deceased was doing Tobacco business and used to earn averagely

Rs.12,000/- per month. Except bare statement of PW.1, there is no substantial evidence before the court, to show that the deceased was doing Tobacco business and used to earn Rs.12,000/- per month by the date of accident. Further when photostat copy of ration-card of the 9 deceased is confronted with PW.1, PW.1 identified the same as photostat copy of the ration-card of the deceased, wherein it is mentioned the occupation of the deceased as an agricultural labourer.

Nowadays an agricultural labourer minimum earns Rs.5,000/- per month. Thus it is reasonable to take earnings of the deceased as

Rs.5,000/- per month, which comes to Rs.60,000/- per annum.

20. As per the APEX Court Judgment reported in 2009 ACJ 1298

Sarla Verma & Others vs. Delhi Transport Corporation and another wherein it was held that; “the deduction towards personal living expenses of the deceased should be one-third (1/3 rd ) where the number of dependent family members is 2 to 3, one-fourth (1/4 th )where number of the dependent family members is 4 to 6, and one-fifth (1/5 th ) where the number of dependent family members exceed six”

21. As per the above said decision 1/4th is to be deducted towards personal and living expenses of the deceased. Then the loss of dependency comes to Rs.45,000/- per annum. The appropriate multiplier applicable to the age of the deceased is '15'. The total loss of dependency would be determined as 45,000/- x 15 = 6,75,000/-.

Besides that an amount of Rs.1,00,000/- towards loss of consortium,

Rs.10,000/- towards funeral expenses and Rs.2,000/- towards transportation and an amount of Rs.25,000/- towards loss of estate and love and affection, in total the petitioners are entitled to compensation of Rs.8,12,000/-.

22. The 3rd respondent filed Policy with memo dated 16.08.2017 stating that the said policy is issued in respect of the crime van of the 2nd respondent and it is in force by the date of accident and the said policy is marked as Ex.B2 with consent. On perusal of Ex.B2 insurance 10 policy shows that the crime van of the 2nd respondent is insured with 3rd respondent insurance company and it is in force by the date of accident. Therefore, 1st respondent being driver, 2nd respondent being owner-insured and 3rd respondent being insurer, they are jointly and severally liable to pay the compensation to the petitioners. This issue is answered accordingly.

23. Issue No.3: In the result, the petition is allowed in part with proportionate costs awarding compensation of Rs.8,12,000/-(Rupees eight lakhs twelve thousand only) to the petitioners.

ii) The Respondents 1 to 3 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 26.04.2016 till the date of realization and they are directed to deposit the compensation amount within one month from the date of this order.

The compensation amount apportioned among the claim petitioners as follows:

iii) 1st petitioner is entitled to Rs.4,12,000/- and the petitioners 2 and 3 are entitled to Rs.1,50,000/- each and the 5th petitioner is entitled to Rs.1,00,000/-.

iv) On such deposit, the 1st petitioner is permitted to withdraw a sum of Rs.3,00,000/- and rest of her share of compensation amount shall be deposited in any Nationalised Bank for a period of 2 years and on maturity, she is entitled to withdraw her balance compensation amount along with accrued interest thereon.

v) The petitioners 2 and 3 being minors, their entire share of compensation amount shall be deposited in any Nationalised Bank till they attains majority. On attaining majority they are entitled to 11 withdraw their respective compensation amount along with interest accrued thereon.

vi) The 5th petitioner is permitted to withdraw her entire share of compensation, vii) The claim of the 4th petitioner is abated as died.

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

Typed to my dictation by steno, corrected and pronounced by me in the open court this the 28 th day of August, 2017.

CHAIRMAN,

Motor Accidents Claims Tribunal Cum-IX Additional District Judge, Rajahmahendravaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: B.Venkata Lakshmi PW.2: Kayala Nagireddy

For Respondents: None.

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of F.I.R. in Cr.No.195/15 Ex.A2 attested copy of inquest report Ex.A3 attested copy of P.M. report, Ex.A4 attested copy of M.V.I. report Ex.A5 attested copy of charge sheet Ex.A6 death certificate of 4th petitioner.

For Respondents:

Ex.B1 copy of household card of the deceased Ex.B2 insurance policy

CHAIRMAN.

12

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

IX ADDL. DISTRICT AND SESSIONS COURT: EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District & Sessions Court, Rajamahendravaram.

Monday, the 28th day of August, 2017.

MVOP.No.263 of 2016 Between: 1.Betireddy Venkatalakshmi, W/o.(late) Venkata Subba Reddy @ Subba Reddy, aged about 29, Housewife, D.No.1-294, near Cheruvu Gattu, Ubalanka village, Ravulapalem Mandal 2.Betireddy Anuradha, D/o.(late) Venkata Subba Reddy @ Subbareddy, aged about 9, Student, D.No.1-294, near Cheruvu Gattu, Ubalanka village, Ravulapalem Mandal 3.Betireddy Susmitha, D/o.(late) Venkata Subba Reddy @ Subbareddy, aged about 5, Child, D.No.1-294, near Cheruvu Gattu, Ubalanka village, Ravulapalem Mandal (P2 and P3 being minors represented by their mother-P1) 4.Betireddy Somi Reddy, S/o.Venkat Reddy, aged about 58, Business, D.No.1-326, near Cheruvu Gattu, Ublanka village, Ravulapalem Madal (DIED) 5.Betireddy Ramalakshmi, W/o.Somireddy, aged about 50, Business, D.No.1-326, near Cheruvu Gattu, Ubalanka village, Ravulapalem Mandal ….Petitioners AND 1.Meddimsetti Sathibabu, S/o.Ganapathi Rao(late), aged about 39, Driver of Eicher Van bearing No.AP5 V 6219, D.No.8-133, Sivalayam street, Avidi village, Kothapeta Mandal 2.Vanguri Durga Rao, S/o.Satyanarayana, aged about 40, Owner of Eicher Van bearing No.AP5 V 6219, Door No.5-219/3, Ravulapalem village and mandal.

3.National Insurance Company Limited, represented by its Branch Manager, Rajahmundry ….Respondents

This petition is presented on 26.04.2016 and filed on 29.04.2016.

This is a claim petition filed U/Sec.166 of Motor Vehicles Act for compensation of Rs.15,00,000/- on account of death of one Betireddy Venkata Subbareddy @ Subbareddy in the motor vehicle accident occurred on 26.08.2015.

13

Value of the petition is Rs.15,00,000/-, on which a court fee of Rs.14,360/- is paid as per Rule 475 of A.P.M.V. Rules.

Cause of action for the petition arose on 26.08.2015 at about 6 hours opposite Sri Dhana Lakshmi Tiles and Granites Shop, Kothapeta Road, Ravulapalem village and mandal, where the accident occurred due to rash and negligent driving of R1 who drove the Eicher Van bearing Regd.No.AP5 V 6219 coming from Kothapeta side to Ravulapalem and dashed the deceased etc. and at Rajahmundry where the 3rd respondent Office is situated within the jurisdiction of this

Hon’ble Court.

This petition coming up before me, on 24.08.2017, in the presence of Sri P.Nageswara Rao, advocate for the petitioners, R1 and R2 remained exparte and of Sri D.Sambasiva Rao, advocate for the 3rd respondent and the matter having stood over for consideration till this day, this court, doth order and decree as follows: (1)that the petition be and is hereby allowed in part with proportionate costs awarding compensation of Rs.8,12,000/-(Rupees eight lakhs twelve thousand only) to the petitioners, (2)that the respondents 1 to 3 are jointly and severally do deposit the said compensation amount, as per clause(1) above, along with interest at 7.5% per annum from the date of the petition i.e., 26.04.2016 till the date of realization, within one month from the date of this order, (3)that the 1st petitioner is entitled to Rs.4,12,000/- and the petitioners 2 and 3 are entitled to Rs.1,50,000/- each and the 5th petitioner is entitled to Rs.1,00,000/-, (4)that on such deposit, the 1st petitioner be and is hereby permitted to withdraw a sum of Rs.3,00,000/- and rest of her share of compensation amount shall be deposited in any Nationalised Bank for a period of 2 years and on maturity, she is entitled to withdraw her balance compensation amount along with accrued interest thereon, (5)that the petitioners 2 and 3 being minors, their entire share of compensation amount shall be deposited in any Nationalised Bank till they attains majority and that on attaining majority they be and are hereby entitled to withdraw their respective compensation amount along with interest accrued thereon, (6)that the 5th petitioner be and is hereby permitted to withdraw her entire share of compensation, (7)that claim of the 4th petitioner is abated as died (8)that the advocate fee is fixed at Rs.1,500/-. Given under my hand and the seal of this court, this the 28 th day of August, 2017.

CHAIRMAN,

Motor Accidents Claims Tribunal Cum-IX Additional District Judge, Rajahmahendravaram.

No memo of costs is filed on either side.

CHAIRMAN.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

VIII ADDITIONAL DISTRICT AND SESSIONS COURT: EAST GODAVARI

AT RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, I Addl. District Judge, East Godavari, Rajamahendravaram (FAC) VIII Addl. District and Sessions Court, Rajamahendravaram.

Thursday, the 5th day of October, 2017.

MVOP.No.862 of 2011.

Between:

Kona Chandra Sai Muralidhar, S/o.Lakshmana Rao, Hindu, aged 17 years, Student, R/o.D.No.15-158, Gollapeta, Dowleswaram, Rajahmundry Rural; being minor represented by his father natural guardian Kona Lakshmana Rao, S/o.Chinnarao, Hindu, aged 38, R/o.D.No.1-158, Gollapeta, Dowleswaram, Rajahmundry Rural, E.G.District (Declared as Major as per orders dated 07.02.2017 in IA.65/2017) ….Petitioner AND 1.Nethala Anjaneyulu, S/o.Nagaraju, Hindu, aged 38, Driver cum Owner of Tata Ace Goods Vehicle bearing No.AP5 TA 3586, R/o.D.No.2-12, Alamuru Village and Mandal, E.G. District 2.Bajaj Allianz General Insurance Company Limited, represented by its Branch Manager, Near E-seva Centre, Prakash Nagar Park, Rajahmundry ….Respondents

This petition coming up before me on 18.09.2017 in the presence of Sri Dasari Satyanarayana Murthy, advocate for the petitioner, R1 remained exparte and Sri U.V.S.P. Avadani, advocate for R2, and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

This is a claim petition filed by the claim petitioner U/Sec.166 of

Motor Vehicles Act for compensation of Rs.3,00,000/- on account of injuries sustained by him in the motor vehicle accident occurred on 13.04.2011.

2. The brief averments mentioned in the claim petition are that on 13.04.2011 at about 7 P.M., the petitioner along with his friend Pilla

Satya Sai Murali Krishna went to Cotton-peta on his cycle for collecting 2 work book from their friend and after collecting work book, they both proceeded towards their house. Petitioner’s friend drove the cycle while the petitioner sitting on the carrier. On the way at about 07.30 P.M., when they reached in front of Government Junior College,

Dowleswaram, TATA Ace Goods Vehicle bearing No.AP05 TA 3586 which was driven by the 1st respondent in a rash and negligent manner, without blowing horn, without following traffic rules while proceeding from Vemagiri side to Dowleswaram side hit their cycle from behind and went away without stopping the vehicle. As a result of which both the petitioner and his friend had fallen on the road with their cycle and the tyre of the crime vehicle ran over the left hand fingers of the petitioner, as such the petitioner sustained grievous injuries.

Immediately the petitioner was shifted to Medicare Hospital,

Rajahmundry for treatment and the petitioner spent an amount of

Rs.1,50,000/- towards medical expenses. Dowleswaram P.S. registered a case in Crime No.63/2011, U/Secs.337 and 338 IPC against driver of the crime vehicle. Due to the injuries sustained by petitioner in the accident the petitioner became permanently disabled and he is unable to walk and unable to lift the weights. Hence this petition.

3. Respondent No.1 remained exparte.

4. The 2nd respondent filed its written statement by denying all the material averments mentioned in the claim petition. This respondent denies mode and manner of accident and rash and negligence on the part of the 1st respondent driver as stated by the claim petitioner in the claim petition. It is submitted that the 1st respondent who drove the crime vehicle was not holding a valid and effective driving license at the time of accident. This respondent denies nature of injuries sustained by 3 petitioner and also amount incurred for medicines. Without prejudice its contentions, this respondent submits that the accident took place due to wrong pedaling of cycle by rider. The compensation amount as well as the interest claimed by the claim petitioner is excessive and exorbitant. Therefore, the petition is liable to be dismissed against this respondent.

5. Basing on the above pleadings, the following issues are settled for trial:

(1)Whether the accident was occurred due to rash and negligent driving of R1 while R1 driving Tata Ace Goods bearing No.AP5 TA 3586?

(2)Whether the petitioner is entitled to any compensation?

(3)To what relief?

6. On behalf of the petitioner, PWs.1 and 2 were examined and got marked Exs.A1 to A7 and Exs.X1 and X2. On behalf of the 2nd respondent, RWs.1 and 2 were examined and got marked Exs.B1 to B4 and Exs.X3 to X5.

7. As per orders dated 14.03.2017 passed in IA.No.167/2017 filed under Sec.170 M.V. Act, the 2nd respondent is permitted to take all defence that are available to R1.

8. Arguments of both sides heard.

ISSUE No.1 :

9. This claim petition is filed by the claim petitioner U/Sec.166 of

M.V. Act for compensation on account of injuries sustained by him. The 1St respondent is driver cum owner/insured and 2nd respondent is insurer of the Tata Ace bearing No.AP05 TA 3586(herein after referred as crime vehicle).

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10. To prove the case, the petitioner examined himself as P.W1.

PW.1 deposed that on 13.04.2011 while he being a pillion rider and his being rider were proceeding on a cycle from Cottenpeta, Dowleswaram to their house at Gollapeta on the left side of the road margin cautiously by taking all road precautions. When they reached near

Government Junior college, Dowleswaram, the crime vehicle coming from Vemagiri side proceeding towards Dowleswaram driven by the 1st respondent in a rash and negligent manner with high speed and without blowing horn and dashed their cycle from their behind and thereby himself and his friend sustained grievous injuries. In support of his evidence, he got marked attested copies of Ex.A1 F.I.R.,Ex.A2 wound certificate, Ex.A3 charge sheet, Ex.A4 M.V.I. report, Ex.A5 bunch of medical bills along with prescriptions, Ex.A6 Discharge summary and Ex.A7 photo-sheet of the injuries of the petitioner.

11. The contention of the 2nd respondent is that there is no rash and negligence on the part of the crime vehicle and that the accident took place due to wrong pedaling of the cycle and suggested the same to

PW.1 in the cross examination, PW.1 denied the said suggestion.

12. On perusal of Ex.A1-F.I.R. shows that on the report of the P.W.1

Dowleswaram P.S. registered a case in Cr.No.63/2011 against the driver of the crime vehicle under Secs.337 and 338 I.P.C. In Ex.A1,

PW.1 got mentioned time, date, place of accident, number of the crime auto, rash and negligent driving of the driver of the crime vehicle and sustained of injuries. Ex.A2 wound certificate issued by Medicare

Hospital shows that PW.1 sustained 3 grievous injuries and 3 simple injuries. The contents of Ex.A3 charge sheet would go to show that after completion of investigation, the S.H.O. Dowleswaram P.S., filed 5 charge sheet against the 1st respondent under Sec.338 I.P.C. for his rash and negligent driving of the crime vehicle. Ex.A4 M.V.I. report shows that M.V. Inspector inspected the crime vehicle and opined that the accident occurred was not due to any mechanical defect of the crime vehicle.

13. The 1st respondent owner cum driver of the crime vehicle did not choose to contest the case by denying the case of the claim petitioner and remained exparte. The 2nd respondent insurer did not dispute genuineness and veracity of Exs.A1 to A4 and also did not dispute factum of accident, involvement of crime vehicle and sustained of injuries to the PW.1 in the accident occurred. PW.1 defacto complainant/eyewitness/injured categorically stated that while he was proceeding on a cycle as a pillion rider from Cottenpeta, Dowleswaram to their house at Gollapeta and when they reached near Government

Junior college, Dowleswaram, the crime vehicle coming from Vemagiri side proceeding towards Dowleswaram driven by its driver in a rash and negligent manner with high speed and without blowing horn and dashed their cycle from their behind. The 3rd respondent disputed the rash and negligent on the part of the driver of the crime vehicle by way of suggestion int eh cross examination of PW.1. The driver of the crime vehicle is the proper person to deny the evidence of PW.1/defacto complainant/eyewitness/injured or to explain as to how the accident took place. In the present case the driver of the crime vehicle is shown

as 1st respondent but he did not choose to contest the case by denying

his rash and negligent driving of the crime vehicle. Moreover, Ex.A3 charge sheet shows that after completion of investigation, the 1st respondent was charge sheeted for his rash and negligent driving of the crime vehicle. The evidence of PW.1 is duly corroborating with Exs.A1 6 to A4. Nothing is elicited from the cross examination of PW.1 to disbelieve his evidence. The evidence of PW.1 coupled with Exs.A1 to

A4 clearly established that PW.1 sustained injuries in the motor vehicle accident occurred on 13.04.2011 due to rash and negligent driving of the 1st respondent. This issue is answered accordingly in favour of the petitioner.

Issue No.2:

14. With regard to this issue, the evidence of P.W1 is that in the above said accident he sustained grievous and simple injuries in the above said accident and immediately after the accident he was shifted to Medicare Hospital, Rajahmundry and took treatment and spent an amount of Rs.1,50,000/- for treatment and medicines and due to the injuries his left hand is permanently disabled and he suffered a lot of pain and mental agony and thereby he discontinued his studies for a period of one year. The 3rd respondent disputed the nature of injuries and amount spent for treatment and medicines in the cross examination of PW.3. To prove the nature of injuries, treatment and medical expenses, the claim petitioner examined Dr.V.Ganga Kishore,

Plastic Surgeon, Medicare Hospital, Rajahmundry as PW.2. As seen from the evidence of PW.2, on 13.04.2011 PW.`1 was admitted in the hospital with injuries i.e., Deep abrasion over the radial aspect of index finger, ii)lacerated wound over radial aspect of proximal inter- phalangeal joint, iii)deep abrasion over the radial aspect of middle finger, iv)lacerated injury with loss of skin and soft tissue over the radial aspect exposing the distal inter phalangeal joint of middle finger,

v)lacerated injury over radial aspect exposing the fracture middle pharynx and dislocated distal inter-phalengeal joint of ring finger, vi)abrasion over the radial aspect of little finger. The injuries No.1, 3 7 and 6 are simple in nature and injuries No.2, 4 and 5 are grievous in nature. On 14.04.2011 PW.2 operated PW.1, index finger primary skin suturing was done. Little finger debridement and primary skin suturing was done. Ring finger debridement and K-Wire fixation was done for stabilization of I.P. Joint. Distally based transposition flap cover was done to cover the bare bones, resultant secondary defect was split skin grafted. Middle finger debridement and distally based transposition flap cover was done to cover the exposed I.P. Joint and split skin graft was done. PW.1 was discharged from hospital on 20.04.2011. PW.2 identified Ex.A1 wound certificate. Further he got marked Ex.X1 case sheet of PW.1 and Ex.X2 X-Ray, Ex.A5 discharge summary and Ex.A6 bunch of medical bills issued by Lakshmi Pharmacy attached to their hospital and prescriptions issued by him, Ex.A7 photographs taken at the time of surgery. His evidence further shows that PW.1 came to him for follow up treatment as an outpatient. PW.2 stated in the cross examination that Pw.1 took treatment in their hospital as inpatient for 6 days. Except suggestions nothing is elicited from the cross examination of PW.2 to disbelieve his evidence. The evidence of PW.2 supported by Exs.A2, A5 to A7, Exs.X1 and X2. The evidence of PW.1 is corroborating with the medical evidence of PW.2 and Exs.A2, A5 to A7,

Exs.X1 and X2. They clearly established that PW.1 sustained 3 grievous injuries and 3 simple injuries and took treatment as inpatient for 6 days in Medicare Hospital, Rajahmundry and spent Rs.48,655/-(rounded off)

Since Sl.No.10 bill for Rs.20,000/- is paid towards advance that amount is deducted from the total amount of Rs.68,655/- shown in the list.

15. In view of the nature of injuries sustained by PW.1, an amount of

Rs.45,000/- towards pain and suffering, an amount of Rs.48,655/- towards medical expenses, Rs.5,000/- towards attendant charges, 8

Rs.10,000/- towards extra nourishment, Rs.2,000/- towards transportation. In total the petitioner is entitled to compensation of

Rs.1,10,655/-.

16. The learned counsel for the 2nd respondent contended that 1st respondent violated the terms and conditions of the policy while driving the vehicle without having proper and valid driving licence and therefore the insurance company is not liable to pay any compensation.

In support of its contention, he relied upon the the following citations in the written arguments; 2011(2) ALD 6 Bajaja Allianz Central

Insurance Company v. Yenni Suryarao, ii)2007(3) ALD 138 Oriental

Insurance Company v. B.Pavan Kumar, iii)2008 SAR (Civil) 478

Oriental Insurance Company v. Zaharussina and others, iv)2008 ACJ

627 New India Assurance Company Limited v. Prabhulal, v)2010(5)

ALT 105, vi)2006 ACJ 1336 National Insurance Company v.

Kusumarai, vi)2008 ACJ 2161 New India Assurance Company Ltd. v.

Roshan Ben Rahemanshafakir and another, vii)2008 ACJ 1307

Sardhari v. Suseel Kumar and viii)2008 ACJ 213 United India

Insurance Company v. Anubhai Gopichand Thakere and others. To prove its contention, the 2nd respondent examined his Executive-Legal, as RW.1. He stated that the crime vehicle was insured with 2nd respondent insurance company under commercial vehicle package policy vide Ex.B1 and the same is in force by the date of the accident subject to terms and conditions. He further stated that the crime vehicle was registered as a Goods Carriage Light Motor Vehicle and to drive the said vehicle the driver should have driving licence of LMV

Transport. But the 1st respondent is holding Auto-Rikshaw driving licence with Transport endorsement which is valid and thereby the 1st respondent violated the terms and conditions of the policy. Further 2nd 9 respondent issued notice to 1st respondent to produce the licence particulars vide Ex.B3. 1st respondent having received Ex.B3 notice vide

Ex.B4 postal acknowledgment he failed to produce the same and, therefore, the insurance company is not liable to pay any compensation. It is elicited from the cross examination of RW.1 that the crime vehicle is a L.M.V. and 1st respondent is having driving licence. It is suggested to RW.1 that with Ex.B2 driving licence the 1st respondent is competent to drive the crime vehicle. He denied the same. The 2nd respondent examined Senior Assistant in RTA Office,

Kakinada as RW.2 who is authorised to give evidence under Ex.X3

Authorisation letter and got marked Ex.X4 RC of the crime vehicle

Ex.X5 driving licence of the 1st respondent. As per the evidence of RW.2 coupled with Ex.X4 RC extract shows that as on the date of the accident crime vehicle is in the name of the 1st respondent. Further

Ex.X5 driving licence extract shows that as on the date of the accident i.e., 14.04.2011 the 1st respondent is authorised to drive the Auto-

Rikshaw Transport and Non-Transport. RW.2 stated that 1st respondent is not authorised to drive the crime vehicle. On perusal of Ex.X4 RC extract the gross weight of the crime vehicle is 1550 Kgs. As per the provisions of MV Act the crime vehicle comes under Light Motor Vehicle.

As the 1st respondent is authorised to drive the Auto-Rikshaw Transport which comes under LMV under Ex.X5, he is competent to drive crime vehicle which is also comes under LMV Transport.

17. In this regard there are decisions reported in (2011) 1 ALD 48 (A.P) E.Rajeswari & others vs. T.S.Sekhar & another wherein it was held that; "The LMV licence issued to a driver enables him to drive the vehicle of that category. It is immaterial whether 10 such vehicle is being used as purely for private purposes, or as a transport vehicle. Admittedly, the vehicle involved in the accident was a light motor vehicle, and Ex.B1 is a LMV licence. Therefore, both the reasons assigned by the Tribunal cannot be sustained."

18. Further In2010 (2) An.W.R.365 (D.B) (Jhar.) Ajit Kumar

Jha v. Md. Raju and another it was held that "We are of the view that the Tribunal has committed serious error of law in holding that a person although authorized to drive a light motor vehicle cannot drive an Auto rickshaw which is a transport vehicle. Sec.2 (21) of MV Act 1988 defines the words light motor vehicle as "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms." From plain reading of the definition it is clear that light motor vehicle means and includes the transport vehicle."

19. Further a latest decision reported in 2014 ACJ 2873 (SC) in

Kulvanth Singh and Others vs. Oriental Insurance Co. Ltd.,

wherein it was held that "A person holding driving licence to drive 'light motor vehicle' was authorized to drive light goods vehicle."(2013 ACJ 1944 (SC) and 2008 ACJ 721 (SC) followed).

At para No.9 it was held that "We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria, 2008 ACJ 721 (SC), this court referred to the provisions of section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of 'light motor vehicle' and 'medium goods vehicle' respectively and the rules prescribing the forms for the licence, i.e., rule 14 and Form No.4. It was concluded; "(16) From what has been noticed herein before, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to, cover both 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."

20.In S. Iyyapan, 2013 ACJ 1944 (SC) the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 11 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It was observed:

"In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is a light motor vehicle, the High Court has committed grave error of law in holding that insurer is not liable to pay compensation because the driver was not holding the licence to drive a commercial vehicle. The impugned judgment is, therefore, liable to be set aside." 21. In the present case also as on the date of the accident the 1st

Respondent driver of the Crime vehicle is authorized to drive LMV. As per Ex.B2 RC extract the Crime Auto is light motor vehicle. As per the ratio laid down in the above said judgments the LMV licence issued to a driver enables him to drive the vehicle of that category it is immaterial whether such vehicle is being used as purely for private purposes or as a transport vehicle. As such the insurance company could not disown its liability. As per the latest Apex court judgment cited above 2014

ACJ 2873 (SC) in Kulvanth Singh and Others vs. Oriental

Insurance Co. Ltd., "A person holding driving licence to drive 'light motor vehicle' was authorized to drive light goods vehicle."(2013 ACJ 1944 (SC) and 2008 ACJ 721 (SC) followed)

22. The above said decisions is aopplicable to tbhe present case as in the present case alsothe 1st reaspondent is authorised to drive the Auto

Rikshaw Transport Vehicle which comes under LMV and the crime vehicle is also comes under LMV Transport vehicle. Further the decisions submitted by the learned counsel for the 2nd respondent are not helpful to its case.

23. On perusal of Ex.B1 policy shows that the crime vehicle of the 1st respondent is insured with 2nd respondent insurance company and it is in force by the date of accident. Therefore, 1st respondent owner cum 12 driver/insured and the 2nd respondent being insurer are jointly and severally liable to pay compensation to the petitioner. This issue is answered accordingly.

24. Issue No.3: In the result, the Petition is allowed in part with proportionate costs awarding compensation of Rs.1,10,655/-(Rupees one lakh ten thousand six hundred and fifty-five only) to the petitioner.

i) The Respondents 1 and 2 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 07.12.2011 till the date of realization after deducting interest for default period i.e. from 25.07.2016 to 23.01.2017 as per orders in IA.No.441/2016 and they are directed to deposit the compensation amount within one month from the date of this order.

ii) On such deposit, the petitioner is permitted to withdraw enter compensation amount along with interest accrued thereon.

iii) Advocate's fee is fixed at Rs.1,500/-.

Typed to my dictation by steno, corrected and pronounced by me in the open court this the 05 th day of October, 2017.

I Addl. District Judge,

(FAC) CHAIRMAN,

Motor Accidents Claims Tribunal Cum VIII Addl. District and

Sessions Judge,

Rajamahendravaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: Kona Chandra Sai Muralidhar PW.2: V.Ganga Kishore

For Respondents:

RW.1: S.Vasdevarao RW.2: P.Sandhya Rani 13

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of F.I.R. in Cr.No.63/2011 of Dowleswaram P.S. Ex.A2 attested copy of wound certificate Ex.A3 attested copy of charge sheet Ex.A4 attested copy of M.V.I. report Ex.A5 bunch of medical bills along with prescriptions Ex.A6 Discharge summary Ex.A7 Photo-sheet of the injuries of petitioner Ex.X1 Case-sheet of PW.1 Ex.X2 X-rays

For Respondents:

Ex.B1 attested copy of the policy along with terms and conditions Ex.B2 D.L. extract of 1st respondent Ex.B3 office copy of the letter along with postal receipt Ex.B4 postal acknowledgment Ex.X3 authorisation letter Ex.X4 R.C. of the crime vehicle Ex.X5 D.L. extract of the 1st respondent

CHAIRMAN

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL :: IX

ADDL.DISTRICT & SESSIONS JUDGE EAST GODAVARAI AT

RAJAMAHENDRAVARAM.

PRESENT: Sri Ch.Kishore Kumar, I Addl. District Judge, Rajamahendravaram, (FAC) Judge, Family Court-Cum-IX Addl. District and Sessions Court, Rajamahendravaram,

Friday, the 06th day of October, 2017.

M.V.O.P.No.345/2011

Between:

1.Reddy Venkateswarlu @ VenkateswaraRao, S/o.Bhyrava Murthy, Hindu, aged 51, Police Department, R/o.D.No.73-5-3, Narayanapuram, Rajahmundry 2.Reddy Santha Devi, W/o.Venkateswarlu @ VenkateswaraRao, Hindu, aged 45, Housewife,R/o.D.No.73-5-3, Narayanapuram, Rajahmundry 3.Reddy Sandhya Tulasi, D/o.Venkateswarlu @ VenkateswaraRao, Hindu, aged 22, Studies, R/o.D.No.73-5-3, Narayanapuram, Rajahmundry ….Petitioners

AND 1.Kallem Neeladri, S/o.Narasimham, Hindu, aged 39, Driver of lorry bearing No.AP20 V 0148, Palvancha, Presently residing at Dampet Village & Mandal, Khammam 2.The Senior Manager, Girijan Primary Co-operative Market, Dammapeta, Khammam District, Andhra Pradesh(Owner of vehicle bearing No.AP 20 V 0148) 3.The Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Innespeta, Rajahmundry

…..Respondents.

This petition coming before me for final hearing on 06-12-2016 in the presence of Sri A.K.Bala Sundar, Advocate for the petitioner and Sri D.Sambasiva Rao, Advocate for 3rd Respondent, and R1 and R2 are remained exparte, and the matter having stood over for consideration till this day, the court made the following:

ORDER

This is a claim petition filed by claim petitioners U/Sec.166 of

Motor Vehicles Act for compensation of Rs.22,00,000/- on account of death of Reddy Ravi Kumar in motor vehicle accident occurred on 10.12.2008.

2

2. The brief averments mentioned in the claim petition are that; the 1st petitioner is Father, 2nd petitioner is the mother and 3rd petitioner is the sister of the deceased Reddy Ravi kumar. The deceased is a police constable in 1st APSP Hyderabad. On 10.12.2008 at about 8:00 A.M.

the deceased along with his friend Khaja Intiyaz Hussain was going to

Kakinada SP Office on motor cycle bearing Reg. No. AP 5 AL 621 for submitting the records and when they reached Ramesampeta Junction on ADB Road at about 9:15 A.M. The 1st respondent who is the driver of the lorry bearing registration No. AP 20 V 0148 drove it in a rash and negligent manner without blowing horn and dashed their motor cycle from the back side and as a result of which the deceased who is driving the motor cycle and his friend fell down and the deceased received severe bleeding and crushed injuries on his testicles. The deceased and his friend were shifted to Government Hospital, Kakinada for treatment.

While undergoing treatment the deceased succumbed to injuries. On receipt of the information Gandepalli P.S. registered a case in

Cr.No.126/2008 U/Sec.337 IPC initially and made investigation and subsequently altered the section of law to 304-A IPC. The deceased was aged about 30 years and he is earning Rs.10,000/- per month and used to contribute his earnings for the welfare of the petitioners. Due to sudden death of the deceased they have lost their financial benefits and love and affection of the deceased. Hence, the petition.

3. 1st Respondent filed counter stating that this respondent was driving the lorry cautiously and carefully on the date of the accident.

The deceased was driving the motor cycle ahead of his lorry. An auto was proceeding in same direction ahead of the motor cycle driven by the decased. The auto as well as the motor cycle were being driven rashly in high speed. At the accident place the auto driver whose 3 driving his auto ahead of the motor cycle of the deceased suddenly applied brakes and came to halt. The deceased who was following the auto on his motor cycle in high speed could not stop his vehicle in time and dashed against the auto. This respondent who was diving the lorry and proceeding behind the motor cycle of the deceased immediately applied brakes and took his lorry to the extreme right side in order to avert to running over the deceased. Therefore the incident took place in the above manner and this respondent is not at all responsible for the accident. This respondent has a valid driving license by the date of accident. This respondent is in the course of his employment under the 2nd respondent by the date of the accident. Therefore this petition is liable to be dismissed against this respondent.

4. 2nd respondent filed counter by denying all the averments mentioned in the claim petition. This respondent is not at all responsible for the accident or death of the deceased. This respondent does not admit the avocation, age and income of the deceased. Further this respondent submits that the vehicle is duly insured with 3rd respondent and the liability if any of the respondent shall be indemnified by the 3rd respondent. Therefore this petition is liable to be dismissed against this respondent.

5. 3rd Respondent filed written statement and additional written statement by denying all material averments mentioned in the claim petition. It is true that this respondent is the insurer of the crime lorry bearing No.AP20 V 0148 and issued policy subject to terms and conditions mentioned therein and the same is in force by date of the accident. This respondent denied mode and manner of accident stated by petitioners in the claim petition. This respondent denied that the 1st 4 respondent was having valid and effective driving license and also denied that the crime lorry was having valid permit. There was no rash and negligence on the part of the 1st respondent. The accident occurred due to rash and negligent riding of the motor cycle by the deceased.

This respondent does not admit age, occupation and the earnings of the deceased. The amount of compensation claimed by the claim petitioners is excessive and exorbitant. Therefore, this petition is liable to be dismissed.

6. Basing on the above pleadings the following issues are settled.

1) Whether the accident is occurred due to rash and negligent driving of 1st respondent?

2) Whether the petitioners are entitled for compensation, if so, what amount and against which of the respondents?

3) To what relief?

7. On behalf of the petitioners, P.Ws.1 to 3 are examined and Ex.A1 to A15 are marked. R1 to R3 reported no oral evidence but Ex.B1 policy is marked with consent.

8. As per orders passed in IA.No.386/12dt.12.3.2012 the 3rd

Respondent is permitted to take all the defenses that are available to 2nd Respondent.

9. Arguments of both sides heard.

ISSUE No.1:

10. This claim petition is filed by the claim petitioners U/Sec.166 of

M.V. Act for compensation on account of the death of the Reddy Ravi

Kumar (hereinafter called as deceased). As per pleadings and evidence adduced by both parties, it is an admitted fact that the 1st petitioner is father, 2nd petitioner is mother and 3rd petitioner is the sister of the 5 deceased. It is also an undisputed fact that 1st Respondent is the driver, 2nd Respondent is the owner and 3rd Respondent is the insurer of the lorry bearing No. AP 20 V 0148 (hereinafter called as crime lorry).

11. To prove their case, the claim petitioners examined 1st petitioner who is father of the deceased as P.W.1. P.W.1 deposed about the death of his deceased son in motor vehicle accident occurred on 10.12.2008 due to rash and negligent driving of the driver of the crime lorry. He got marked Ex.A1 attested copy of the FIR, Ex.A2 attested copy of the charge-sheet, Ex.A3 attested copy of the M.V.I. Report, Ex.A4 attested copy of P.M. Report, Ex.A5 attested copy of inquest report, Ex.A6 copy of Insurance Policy, Ex.A7 attested copy of D.L. of driver of crime lorry,

Ex.A8 photostat copy of R.C. of crime vehicle, Exs.A9 to 11 are the pay slips of the deceased, Ex.A12 employment order, Ex.A13 selection order, Ex.A14 copy of death certificate, Ex.A15 copy of no objection certificate. According to his evidence he is not an eye witness to the accident.

12. To prove the rash and negligent driving of driver of the crime vehicle, the claim petitioners examined eye witness as PW.2 who is a police constable. PW.2 stated that on 10.12.2008 at about 8.00 AM he being a pillion rider and the deceased being the rider of the motorcycle were proceeding from Rajahmundry to police head quarters, Kakinada to submit records and when they crossed Ramesampeta junction at about 9.15 AM the driver of crime lorry hit their motorcycle from backside in rash and negligent manner resulting which himself and the deceased fell down and sustained severe bleeding injuries.

6 Subsequently the deceased shifted to GGH, Kakinada where he died in the hospital while undergoing treatment on the same day.

13. The contention of the respondents is that there is no rash and negligent on the part of the 1st respondent driver of the crime lorry in the accident occurred and that the accident took place due to rash and negligent driving of the deceased who is riding the motorcycle and suggested the same to P.Ws.1 and 2 in the cross-examination and they denied the said suggestions.

14. On perusal of Ex.A1 FIR shows that on the report of one Y.Siva

Krishna, SHO Gandepalli P.S. registered a case in Cr.No.126/2008

U/Sec.337 of I.P.C. initially on the same day of the accident and later section of law is altered as Sec.304-A of I.P.C. In Ex.A1 date, time, place of the accident, number of the crime lorry and name of the deceased and lying of the deceased with bleeding injuries in front of the left front wheel of the crime lorry are mentioned. The contents of Ex.A2 charge sheet would go to show that after completion of the investigation Sub-Inspector of Police, Gandepalli P.S. filed charge sheet against 1st Respondent/driver of the crime lorry U/sec.304-A of IPC for his rash and negligent driving of the crime lorry. Ex.A3 M.V.I Report shows that Motor Vehicle Inspector insepcted the crime lorry and conducted road test and found the brakes are in working condition and opined that the accident was not due to any mechanical defect of the crime lorry. Ex.A4 P.M. Report shows that the Medical Officer conducted

P.M. Examination over the dead body of the deceased and found multiple injuries over the dead body of the deceased and opined that the deceased died due to hemorrhage and shock as a result of multiple injuries. Ex.A5 Inquest report shows that an inquest was held over the 7 dead body of the deceased in the presence of the panchayathdars, blood relatives and eye witnesses etc.. The panchayathdars opined that the deceased died in motor vehicle accident occurred on 10.12.2008 due to rash and negligent driving of the driver of the crime lorry and dashed the motorcycle from its backside and thereby ran over the body of the deceased.

15. The respondents 1 to 3 did not dispute the genuineness and veracity of Exs.A1 to A5 and also did not dispute the factum of accident involvement of the crime lorry and cause of the death of the deceased in motor vehicle accident. P.W.1 the father of the deceased deposed that his deceased son died due to the injuries sustained by him due to rash and negligent driving of the driver of the crime lorry. PW.2-eye witness who accompanied the deceased at the time of accident categorically deposed that on the date of accident while he being a pillion rider and the deceased being a rider of motorcycle was proceeding from Rajahmundry to Police head quarters, Kakinada to submit the records and when they reached Ramesampet junction, the driver of crime lorry drove it in rash and negligent manner and dashed the motorcycle from backside. The respondents denied the rash and negligent driving of the crime lorry by way of suggestions in the cross examination of PWs.1 and 2. The driver of the crime lorry is proper person to deny the evidence of PW.2/eye witness or to explain as to how the accident took place. In the present case the driver of the crime lorry is shown as 1st respondent and he is contesting the same by filing his counter. But he did not come to witness box to deny the rash and negligent driving of crime lorry. Further adriver of the motor vehicle is expected to drive the vehicle by maintaining a minimum gap between the vehicles to avert accident. As seen from the contents of the counter 8 filed by the first respondent he being the driver of crime lorry was proceeding behind the motorcycle of the deceased. Admittedly the rider of the motorcycle died in that accident. If the first respondent driver of the crime lorry maintains a minimum gap would have averted the accident. It appears, as the first respondent failed to maintain a minimum gap the accident was occurred. Moreover, as per the contents of Ex.A1 FIR and Ex.A5 inquest report show that the left front wheel of the crime lorry ran over the deceased. Ex.A2 charge sheet shows that after completion of investigation, R1 was charge sheeted for his rash and negligent driving of the crime lorry. PW.2 is shown as eye witness in Ex.A.2 charge sheet and in Ex.A.5-inquest report as eye witness.

Further PW.2 stated in his evidence that R.1 was convicted in criminal case with regard to this accident. No rebuttal evidence is adduced by the respondents to disprove the evidence of PWs.1 and 2 and Exs.A1 to

A5. The evidence of PWs.1 and 2 and Exs.A1 to A5 clearly established that the deceased died in the motor vehicle accident due to rash and negligent driving of the crime lorry by the first respondent-driver. This issue is answered accordingly in favour of the claim petitioners.

ISSUE No.2:

16. According to the evidence of claim petitioners, the deceased was aged about 25 years at the time of accident. Further in Ex.A5 inquest report, Ex.A4 P.M. Report and Ex.A2 charge-sheet the age of the deceased is mentioned as 25 years. The respondents did not dispute the age of the deceased mentioned in Exs.A.2, A.4 and A.5. Thus the age of the deceased is determined as 25 years as on the date of his death. According to the evidence of PW.1 the deceased is a constable at I APSP, Hyderabad and he is earning Rs.10,000/- per month. Due to 9 the sudden death of the deceased they have lost his financial support, personal service and love and affection.

17. Further the claim petitioners examined Reserve SI of police in I battalion, Yusufguda, Hyderabad as PW.3 and got marked Ex.X.1 salary particulars of the deceased. Further the claim petitioners also filed

Exs.A.9 to A.11 pay slips of the deceased for the months of June,

September and October, 2008. The respondents did not dispute the genuineness and veracity of Ex.X.1 and Exs.A.9 to A.11. As per Ex.X.1 salary particulars for the month of November 2008, the gross salary of the deceased is Rs.9,803/-. After deducting Rs.80/- towards

Professional Tax, the net salary of the deceased is Rs.9,723/- which comes to Rs.1,16,676/- per annum. Since the annual income of the deceased is below the taxable income, no amount will be deducted towards tax. As per the decision in Sarala Varma and others v. Delhi

Transport Corporation (2009 ACJ 1298), since the deceased was a bachelor, 50% is deducted towards personal and living expenses. Then the loss of dependency comes to Rs.58,338/- per annum. Further as per the said decision 50% of the salary should be added to the salary of the deceased towards future prospects as the age of the deceased is less than 40 years. Then the loss of dependency comes to Rs.87507/- (Rs.58338/- + 29169/-) per annum. The learned counsel for 3rd respondent contended that since the deceased was a bachelor, the age of the parents of the deceased should be taken into consideration while awarding compensation but not the age of the deceased. In support of his contentions he has submitted decision in 1 st Appeal No.738/15 with

CA No.1196/2015 in 1 st Appeal No.738/2015. The learned counsel for the petitioners contended that the age of the deceased should be taken into consideration for choosing the multiplier but not the age of the 10 deceased’s parents. In this regard, the three Judges Bench decision of

Apex Court reported in 2015 ACJ 1985 (SC) between Munna Lal Jain &

another Vs. Vipin Kumar Sharma & others and ii)2014(1) ALT

512(A.P) DB Sundarrao and others v. B.Swamy and another. In the said decisions it was held that for application of multiplier the age of the deceased bachelor shall alone be taken into consideration but not the age of the dependants parents of the deceased bachelor. In the present case also the deceased was a bachelor and claimants are parents. So in view of the ratio laid down in the latest 3 Judge Bench decision of the Apex Court citied supra, the age of the deceased is taken into consideration for application of the multiplier. The appropriate multiplier applicable to the age of the deceased is ‘17’.

Then the total loss of dependency is determined as Rs.87,507/- x 17 =

Rs.14,87,619/-. Besides that an amount of Rs.10,000/- towards funeral expenses, Rs.2,000/- towards transportation and Rs.25,000/- towards love and affection and loss of estate is awarded. In total the petitioners are entitled to compensation of Rs.15,24,619/-.

18. On perusal of Ex.B1 policy shows that the crime vehicle of the 2nd

Respondent is insured with 3rd Respondent insurance company and it is in force by the date of the accident. Therefore 1st Respondent being driver, 2nd Respondent being owner/insured, and 3rd Respondent being insurer are jointly and severally liable to pay compensation to petitioners. This issue is answered accordingly in favour of the petitioners.

ISSUE No.3:

11

19. In the result, the petition is allowed in part with proportionate cost awarding compensation of Rs.15,24,619/- to petitioners.

ii) The Respondents 1 to 3 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 13.04.2011 till the date of realization by deducting the interest for the default period from 14.06.2016 to 24.11.2016 as per orders in I.A.798/2016 dated 24.11.2016, and they are directed to deposit the compensation amount within one month from the date of this order.

iii) The compensation amount is apportioned among the claim petitioners as follows:

iv) The 1st petitioner is entitled to Rs.7,00,000/- and the 2nd

Petitioner is entitled to Rs.7,24,619/- and the 3rd petitioner is entitled to Rs.1,00,000/-.

v) On such deposit, the petitioners 1 and 2 are permitted to withdraw an amount of Rs.4,00,000/- each and their balance share of compensation amount shall be deposited in any nationalized bank for a period of two years and thereafter on maturity they are entitled to withdraw their balance of compensation amount along with accrued interest thereon.

vi) The petitioner No.3 is permitted to withdraw her entire share of compensation.

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

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open court this the 06 th day of October, 2017.

I ADDL. DISTRICT JUDGE,

(FAC) CHAIRMAN, Motor Accidents Claim Tribunal cum IX Addl. District Judge, Rajamahendravaram.

12

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: Reddy Venkateswarulu PW.2: Khaji Shareef PW.3: Y.Adi Venkat

For Respondents: None.

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of the FIR Ex.A2 attested copy of the charge-sheet Ex.A3 attested copy of the M.V.I. Report Ex.A4 attested copy of P.M. Report Ex.A5 attested copy of inquest report Ex.A6 copy of Insurance Policy Ex.A7 attested copy of D.L. of driver of crime lorry Ex.A8 photostat copy of R.C. of crime vehicle Exs.A9 to 11 are the pay slips of the deceased Ex.A12 employment order Ex.A13 selection order Ex.A14 copy of death certificate Ex.A15 copy of no objection certificate.

For Respondents:

Ex.B1 Insurance policy

CHAIRMAN.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

VIII ADDL. DISTRICT AND SESSIONS COURT:

EAST GODAVARI AT RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District and Sessions Court, Rajamahendravaram.

(FAC) VIII Addl. District and Sessions Judge, Rajahmahendravaram.

Monday, the 07th day of August, 2017.

MVOP.No.315 of 2012

Between:

Geddam Ramana, S/o.Gangaraju, Hindu, aged 35,

resident of Raghudevapuram, East Godavari district ....Petitioner

AND 1.Deyyala Raj, S/o.Nookaraju, Hindu, aged 32, Driver-cum-owner of Auto bearing No.AP05 V 9193, R/o.D.No.67-21-2, Subbarao Nagar, Rajahmundry 2.United India Insurance Company Limited, represented by its Divisional Manager, Divisional Office, Rajahmundry

....Respondents

This petition coming up before me for final hearing, on 25.07.2017, in the presence of Sri D.V.Raghavulu, advocate for the petitioner, Sri Y.Bhavani Prasad, advocate for the 1st respondent and Sri D.Sambasiva Rao, advocate for the 2nd respondent and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

This is a claim petition filed by the petitioner U/Sec.166 of Motor

Vehicles Act for compensation of Rs.5,00,000/- on account of injuries sustained by him in the motor vehicle accident occurred 09.03.2009.

2.The brief averments mentioned in the claim petition are that; on 09.03.2009 at about 9 P.M., when the petitioner was returning to his house from Coolie work, the 1st respondent driver of the Auto bearing

No.AP05 V 9193 drove it rashly and negligently at high speed and dashed the petitioner near flour mill turning, Raghudevapuram. The

S.H.O., Seethanagaram P.S., registered a case in Cr.No.31/2009 under 2

Sec.338 I.P.C. against the driver of the Auto. Due to which the petitioner sustained grievous injuries. Immediately after the accident the petitioner was shifted to Government Hospital for treatment and spent Rs.25,000/- towards medical expenses. Due to the injuries sustained in the accident, the petitioner is unable to attend coolie work and thereby he lost his earnings at Rs.200/- per day. Hence the petition.

3. 1st respondent after receipt of the summons, though engaged an advocate, did not choose to file counter by denying the case of the claim petitioner.

4.2nd respondent filed counter by denying all the material averments mentioned in the claim petitioner. Further this respondent denies mode and manner of accident stated by the claim petitioner in the claim petition and also denied age, income and occupation of the claim petitioner. This respondent admits that the crime vehicle Auto is validly insured with it, by the date of alleged accident and further admits that the 1st respondent is driver cum owner of the auto. The petitioner is put to strict proof that the Auto is having valid permit, R.C.

and fitness certificate by the date of the accident. Further there is a delay 9 days in lodging the F.I.R. This respondent denied the nature of injuries and treatment taken by the claim petitioner. The petitioner as well as the first respondent who is driver and cum owner of the auto colluded together and filed the petition in order to get compensation from the insurance company. The amount of compensation claimed by the petitioner is exorbitant and excessive. Therefore, the petition is liable to be dismissed.

3

5.Basing on the above pleadings, the following issues are settled for trial:- (1)Whether the petitioner sustained injuries in motor vehicle accident on account of rash and negligent driving by the driver of Auto bearing No.AP05 V 9193?

(2)Whether the petitioner is entitled to claim of compensation? If so, to what amount and against which of the respondents?

(3)To what relief?

6. On behalf of the petitioner, PWs.1 to 3 were examined and

Exs.A1 to A6 and Exs.X1 and X2 were marked. The 2nd respondent reported no oral evidence. Ex.B1 Policy is marked with consent.

7.As per orders dated 17.04.2017 passed in IA.No.186/2017 filed under Sec.170 M.V. Act, the 2nd respondent is permitted to take all the defence that are available for the 1st respondent.

8.Arguments of both sides heard.

ISSUE No.1 and 2:

9.This claim petition is filed by the claim petitioner U/Sec.166 of

M.V. Act for compensation on account of the injuries sustained by him.

As per pleadings and evidence adduced by both parties, it is an undisputed fact that 1st Respondent is the owner cum driver, 2nd respondent is the insurer of the auto bearing No.AP05 V 9193 (hereinafter called as crime auto).

10.To prove the case, the petitioner examined himself as PW.1. He stated that on the date of accident i.e., on 09.03.2009 at 9 P.M., he was returning from the coolie work to his house and when he reached near flour mill turning point at Raghudevapuram, the driver of the crime auto drove it in a rash and negligent manner at high speed and dashed him and thereby he sustained grievous injuries all over the body. In 4 support of his oral evidence he got marked attested copies of Ex.A1

F.I.R., Ex.A2 wound certificate, Ex.A3 charge sheet, Ex.A4 rough sketch, Ex.A5 attested copy of the statement of petitioner recorded at

Government Hospital along with hospital intimation, Ex.A6 certified copy of docket order dated 07.12.2009 in C.C.No.186/2009 of II Addl.

J.F.C. Magistrate, Rajahmundry along with fine receipt.

11.The 2nd respondent contended that the crime auto was not involved in the road accident and as per the history of RTA mentioned in Ex.A2 wound certificate PW.1 was beaten by known persons and that the petitioner in collusion with 1st respondent and police got filed the claim petition in order to get compensation from the insurance company and suggested the same to PW.1 in the cross examination.

PW.1 denied the same.

12.On perusal of Ex.A1 F.I.R., Ex.A5 statement of the PW.1 with hospital intimation show that after receipt of hospital intimation, H.C.

1338 police recorded the statement of PW.1 in the hospital and the

Seethanagaram Police registered a case in Cr.No.39/2009 against the driver of the crime auto under Sec.337 I.P.C. PW.1 got mentioned in

Ex.A5 the date, time and place of accident, mode and manner of accident, rash and negligent driving of the driver of the crime auto and the injuries sustained by him. Ex.A2 wound certificate issued by the

C.A.S., District Hospital, Rajahmundry shows that immediately after the accident PW.1 was admitted in the hospital with injuries to left knee, back of left elbow, chest valve, left eyebrow. The contents of Ex.A3 charge sheet would go to show that after completion of investigation,

S.I. of Police, Seethanagaram Police Station, filed charge sheet against the 1st respondent driver of the crime auto for the offence under 5

Sec.337 I.P.C. for his rash and negligent driving of the crime auto. PW.1 is shown as defacto complainant/ injured/eyewitness in the list of witnesses of Ex.A3 charge sheet. Ex.A4 rough sketch of the scene shows that the accident occurred at the turning point of the road.

Ex.A6 docket order dated 07.12.2009 in C.C.186/2009 in Crime

No.31/2009 along with fine receipt shows that 1st respondent pleaded guilty for his rash and negligent driving of the crime auto and he was imposed a fine of Rs.700/- for the offence under Sec.337 I.P.C.

13.1st respondent driver cum owner did not choose to file counter by denying of the case of the claim petitioner inspite of sufficient time is granted. PW.1/injured/eyewitness categorically stated that while he was returning to his house from his coolie work, when he reached near

Raghudevaram village turning the 1st respondent driving of the crime auto drove it in a rash and negligent manner and dashed him. It is mentioned in Ex.A2 that the injured said to have been beaten by two known persons with stick and hands. It does not disclose that who informed the said fact to the Doctor. In Ex.A5 the hospital intimation sent by the medical officer to the police reveals that PW.1 was hit by auto-riskshaw on 09.03.2009. In the statement of PW.1 recorded by the police, PW.1 stated that the crime auto dashed him and thereby he sustined injuries. The 2nd respondent suggested to PW.1 that he in collusion with R1 and police got filed the claim petition with false allegation in order to get compensation from the insurance company.

PW.1 denied the said suggestion. The driver of the crime auto is the proper person to dispute the evidence of PW.1/injured/eye witness or to explain as to how the accident took place. In the present case the owner cum driver of the crime auto is shown as 1st respondent, but he 6 did not choose to file counter by denying involvement of his crime auto and his rash and negligent driving of the said Auto. Ex.A3 charge sheet shows that after completion of investigation, 1st respondent was charge sheeted for his rash and negligent driving of the crime auto. Further

Ex.A6 shows that the 1st respondent admitted his guilt and he was convicted for the offence under Sec.337 I.P.C., and he was sentenced to pay a fine of Rs.700/-. Except suggestions nothing is elicited from the cross examination of PW.1 to disbelieve his evidence and Exs.A1 to A6.

No rebuttal evidence is adduced by the 2nd respondent to prove its contention that PW.1 in collusion with 1st respondent and police filed the claim petition with false allegations in order to get compensation from the insurance company. The decision submitted by the learned counsel for the 2nd respondent reported in between United India Insurance

Company Limited v. G.Mallaiah and others in 2010(6) A.L.T. 643 is not applicable to the present facts of the case on hand. Moreover, in the present case 1st respondent admitted his guilt for his rash and negligent driving of the Auto vide Ex.A6. The evidence of PW.1 coupled with

Exs.A1 to A6 clearly established that PW.1 sustained injuries in the motor vehicle accident occurred on 09.03.2009 due to rash and negligent driving of the crime auto by the 1st respondent. This issue is answered accordingly in favour of the claim petitioner.

Issue No.2:

14.With regard to this issue the evidence of PW.1/injured is that in the above said accident he sustained grievous injuries all over the body.

Immediately after the accident he was admitted in District Hospital,

Rajahmundry for treatment and thereafter he was shifted to Bollineni

Hospital as the fracture was not united and he underwent surgery and spent Rs.25,000/- towards medical expenses and due to the injuries he 7 is unable to attend his coolie work and thereby he lost his earnings at

Rs.200/- per day. The 2nd respondent disputed nature of injuries and the amount incurred by him for the treatment and injuries in the cross examination of PW.1.

15.To prove the injuries and treatment, PW.1 examined Dr.P.Nalini

Mohan, C.A.S., Orthopedic Division, G.G.H., Rajahmundry as PW.2. As seen from the evidence of PW.2, PW.1 was admitted in the hospital on 09.03.2009 with injuries i.e., abrasions on left knee, left eyebrow, left elbow and backside and X-ray to right hip was taken which showed fracture to the right hip joint and conducted surgery on 18.03.2009.

The treatment was given under Aarogya Sree Scheme. PW.1 was discharged from the hospital on 14.04.2009. PW.2 identified Ex.A2 wound certificate issued by the Casualty Officer. PW.2 got marked

Ex.X1 medical report of PW.1. As per Ex.A5 accident information report, the cause of injury is due to hit by Auto. Nothing is elicited from the cross examination of PW.2 to disbelieve his evidence and Ex.A2 wound certificate and Ex.X1 medical record.

16.Further the petitioner examined Dr.G.V.Subbarao, Consultant in

Bollineni Hospital, Rajahmundry as PW.3. As seen from the evidence of

PW.3, PW.1 was admitted in the hospital on 15.10.2012 for non-reunion of the fracture of the right femur and surgery was conducted on

Aarogya Sree Scheme. Due to the above said injury, the petitioner should not sit on the ground, should not squat and should not sit cross leg. The implants are non-removable implants. Further he got marked

Ex.X2 case sheet along with X-rays. PW.3 stated in the cross examination that the above said fracture was healed. Nothing is elicited from the cross examination of PW.3 to disbelieve his evidence and 8

Ex.X2 case sheet. The evidence PW.1 is corroborated by the medical evidence of PWs.2 and 3 and Exs.A2, X1 and X2. They clearly established that PW.1 sustained one grievous injury and three simple injuries and he was treated under Aarogya Sree Scheme. Petitioner did not produce any prescriptions and medical bills to show that he spent an amount of Rs.25,000/- towards treatment and medicines.

17.In view of the nature of injuries sustained by PW.1, an amount of

Rs.40,000/- towards pain and suffering, an amount of Rs.13,500/- towards loss of earnings for 3 months during the period of treatment and healing of injuries, an amount of Rs.5,000/- towards attendant charges, an amount of Rs.5,000/- towards extra-nourishment and an amount of Rs.2,000/- towards transportation, in total the petitioner is entitled to compensation of Rs.65,500/-.

18.On perusal of Ex.B1 insurance policy shows that Ex.B1 policy is issued to the crime vehicle of the 1st respondent and it is in force by the date of accident. Therefore, 1st respondent being owner cum driver and the 2nd respondent being insurer of the crime auto they are jointly and severally liable to pay the compensation to the petitioner. This issue is answered accordingly.

19.Issue No.3: In the result, the petition is allowed in part with proportionate costs awarding compensation of Rs.65,500/-(Rupees sixty-five thousand five hundred only) to the petitioner.

ii)The Respondents 1 and 2 are jointly and severally liable to pay said compensation with interest at 7.5% per annum from the date of the petition i.e., 02.02.2012 till the date of realization, after deducting the interest for the default period i.e., from 31.12.2012 to 19.11.2015 as per orders in I.A.577/2015 dated 19.11.2015, and the respondents 9 are directed to deposit the compensation amount within one month from the date of this order.

iii) On such deposit, the petitioner is permitted to withdraw the entire compensation amount along with interest accrued thereon.

Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation by steno, corrected and pronounced by me in the open court this the 07 th day of August, 2017.

CHAIRMAN,

Motor Accidents Claims Tribunal Cum-VIII Addl. District Judge, Rajamahendravaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

PW.1: Geddam Ramana PW.2: Dr.P.Nalini Mohan PW.3: Dr.G.V.Subbarao

For Respondents: None

DOCUMENTS MARKED

For Petitioner:

Ex.A1 attested copy of F.I.R. in Cr.No.31/2009 Ex.A2 attested copy of wound certificate Ex.A3 attested copy of charge sheet Ex.A4 attested copy of rough sketch Ex.A5 attested copy of statement of petitioner Ex.A6 docket order dated 07.12.2009 in C.C.186/2009 in II Addl. J.F.C.

Magistrate, Rajahmundry along with C.C. of fine receipt

Ex.X1 medical record/report of PW.1 Ex.X2 case sheet of PW.1

For Respondents:

Ex.B1 certified true copy of insurance policy

JUDGE.

10

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM VIII

ADDITIONAL DISTRICT AND SESSIONS COURT:

EAST GODAVARI AT RAJAMAHENDRAVARAM.

Present: Sri Ch.Kishore Kumar, Judge, Family Court-Cum-IX Addl. District and Sessions Court, Rajamahendravaram. (FAC) VIII Addl. District and Sessions Judge, Rajahmahendravaram. Monday, the 07th day of August, 2017.

MVOP.No.315 of 2012

Between: Geddam Ramana, S/o.Gangaraju, Hindu, aged 35,

resident of Raghudevapuram, East Godavari district ....Petitioner

AND 1.Deyyala Raj, S/o.Nookaraju, Hindu, aged 32, Driver-cum-owner of Auto bearing No.AP05 V 9193, R/o.D.No.67-21-2, Subbarao Nagar, Rajahmundry 2.United India Insurance Company Limited, represented by its Divisional Manager, Divisional Office, Rajahmundry

....Respondents

This is a claim petition filed by the petitioner U/Sec.166 of Motor Vehicles Act for compensation of Rs.5,00,000/- on account of injuries sustained by him in the motor vehicle accident occurred 09.03.2009.

Value of the petition is Rs.5,00,000/-, on which a court fee of Rs./- is paid as per Rule 475 of A.P.M.V. Rules.

Cause of action for the petition arose on 09.03.2009 about 9 P.M., near Flour mill turning at Raghudevapuram, when R1 being driver cum over of the Auto bearing No.AP5 V 9193 dashed against the petitioner and caused grievous injuries to him etc. and at Rajahmundry whereat R1 is residing and the office of R2 is situated, within the jurisdiction of this Hon’ble Court.

This petition coming up before me for final hearing, on 25.07.2017, in the presence of Sri D.V.Raghavulu, advocate for the petitioner, Sri Y.Bhavani Prasad, advocate for the 1st respondent and Sri D.Sambasiva Rao, advocate for the 2nd respondent and the matter having stood over for consideration till this day, this court doth order and decree as follows: (1)that the petition be and is hereby allowed in part with proportionate costs awarding compensation of Rs.65,500/-(Rupees sixty-five thousand five hundred only) to the petitioner, (2)that the respondents 1 and 2 are jointly and severally do deposit the compensation amount, as per clause(1) above, within one month from the date of this order along with interest at 7.5% per annum from the date of the petition i.e., 02.02.2012 till the date of realization, after deducting the interest for the default period i.e., from 31.12.2012 to 19.11.2015 as per orders in I.A.577/2015 dated 19.11.2015, 11 (3)that on such deposit, the petitioner be and is hereby permitted to withdraw the entire compensation amount along with interest accrued thereon, (4)that advocate fee is fixed at Rs.1,000/-. Given under my hand and the seal of this court, this the 07 th day of August, 2017.

CHAIRMAN,

Motor Accidents Claims Tribunal Cum-VIII Addl. District Judge, Rajamahendravaram.

No memo of costs is filed on either side.

CHAIRMAN.