Sri G.Anwar Basha

1 MVOP.No.61 of 2010

THE MOTOR ACCIDENTS CLAIMS TRIBUNAL JUDGE-CUM- II ADDL.

DISTRICT JUDGE OF KADAPA AT PRODDATUR.

Present: Sri G. Anwar Basha, Chairman, Motor Vehicle Accidents Claims Tribunal-Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

Friday, this the 08th day of December, 2017

M.V.O.P.No. 61 / 2010

1. Balla Chandrakala, W/o Peddi Reddy, aged 25 years, Hindu, Housewife

2. Balla Lakshmi Devi, D/o Peddi Reddy, aged 12 years, Hindu, Minor.

3. Balla Maheswara Reddy, S/o Peddi Reddy, 8 years, Hidu, Minor.

4. Balla Lakshumma, W/o Chinna Subba Reddy, aged 60 years, Hindu, Housewife.

Petitioner Nos.2 and 3 are minors, represented by their natural guardian mother who is the claimant No.1 herein.

All are residents of Viswanathapuram village, Chapadu mandal, Kadapa District.

... Petitioners/Claimants

Vs.

1. B. Gurivi Reddy, S/o Obula Reddy, aged 35 years, Hindu, Owner of the new tractor bearing No.AP04-DTR-9502 (Engine and Chasis No.NLB 5537) resident of Viswanathapuram village, Chapadu mandal, Kadapa District.

2. ICICI Lombard General Insurance Company Limited, represented by its Manager, Osman Plaza, 6-3-352/1, Road No.1, Banjara Hills, Hyderabad.

... Respondents

This petition coming on 05-12-2017 for final hearing before me in the presence of Sri E.V. Sudhakar Reddy and Sri M. Rama Subba

Reddy, Advocate for the Petitioners/Claimants and of Sri D.

Rajasekhar Reddy, Advocate for Respondent No.2, and the respondent

No.1 was called absent and set exparte, after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a claim petition filed U/s.166 of M.V. Act r/w. Rules 475/476 of AP.M.V. Rules by the legal heirs of Balla Peddi Reddy claiming compensation of Rs.4,50,000/- for the untimely death of Balla Peddi 2 MVOP.No.61 of 2010

Reddy in a motor vehicle accident that occurred on 06.11.2006 at 4.40 p.m. near Badripalli cross road on Proddatur – Mydukur main road and sought for an Award against respondent Nos.1 and 2 jointly and severally.

1.The case of the petitioners is that on 06.11.2006 at about 4.30 p.m., the deceased, Bala Chinni Reddy, Yenugula Bali Reddy and Vundela

Gurivi Reddy started int eh respondent No.1’s Tractor and Trailor bearing

T.R.No. AP04-DTR-9502 from their village Viswanathapuram to

Tippireddipalli to bring Sand to the house of Bala Chinni Reddy. The driver of 1st respondent tractor and trailor allowed the deceased to travel in the tractor by sitting by the side of his seat, hence, the deceased sat by his side and other coolies sat in the trailor. The driver of the respondent No.1’s tractor and trailor was driving the vehicle at high speed in rash and negligent manner and when the tractor reached

Badripalli cross-road at about 4.40 p.m., the driver lost control over the vehicle and dashed to a culvert as a result of which the deceased was fallen between the tractor engine and trailor and received grievous head injuries and immediately shifted to Dr. Badvel Subbarayudu hospital and then to Govt. General Hospital, Kurnool and on the way to Kurnool the deceased succumbed to injuries. All the petitioners are the dependants on the deceased. Hence, this petition claiming compensation of

Rs.4,50,000/-.

2.There are two respondents in this case. The respondent No.1 has remained exparte. The respondent No.2 filed written statement. The brief averments made in the written statement are that the petitioners must prove that the deceased died in the accident which occurred on 06.11.2006 at 4.40 p.m., due to rash and negligent driving of driver of the Tractor and Trailor bearing T.R.No. AP04-DTR-9502 belonging to the 3 MVOP.No.61 of 2010 respondent No.1 by filing documentary evidence. The tractor involved in the accident is a goods carriage vehicle and at that time the vehicle was carrying unauthorized passengers. On the date of contract of insurance, the insured vehicle was expressly or impliedly not covered by a permit to carry any persons/passengers. There was a specified condition in the policy which excluded the use of vehicle for carriage of any passenger.

The vehicle was used in breach of specified condition and this respondent is not liable to pay any amount of compensation. The seating capacity of tractor was only one which was meant for driver and the deceased was unauthorized passenger. The age, occupation and income of the deceased is denied and the claim of the claimants is highly excessive. Hence, the petition is liable to be dismissed.

3.Basing on the above above said pleadings, my learned predecessor-in-office framed the following issues for trial:

1) Whether the deceased by name Balla Peddi Reddy died in a vehicular accident that took place on 06.11.2006 at about 04.40 p.m., near Badripalli cross road on Proddatur –

Mydukur main road, due to the rash and negligent driving of driver of the Tractor bearing No.AP04-DTR-9502 belonging to respondent No.1 insured with respondent No.2 ?

2) Whether the petitioners as legal heirs of the deceased by name Balla Peddi Reddy are entitled to receive compensation amount from the respondents as prayed for?

3) To what relief?

4. On behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.

A.1 to A.4 were filed. On behalf of respondent No.2 insurance company,

RWs.1 and 2 were examined and Ex.B.1 to B.5 were filed.

4 MVOP.No.61 of 2010

ISSUE Nos.1 and 2:

5.The burden of proving these issues is on the petitioners. The petitioners are claiming Rs.4,50,000/- compensation on the ground that the deceased died in a motor vehicle accident that occurred on 06.11.2006 due to negligent driving of tractor by the driver of respondent No.1.

6.The contention of the petitioners is that the defacto complainant travelled in the tractor as a coolie to bring sand to the house of Bala

Chinni Reddy. To prove the case of the petitioners, P.Ws.1 and 2 were examined and Ex.A.1 to A.4 were filed. P.W.1, B. Chandrakala, is the wife of deceased. P.W.2, B. Chinni Reddy, is the younger brother of deceased. Ex.A.1, is the certified copy of F.I.R. Ex.A.2, is the certified copy of inquest report. Ex.A.3, is the certified copy of Postmortem certificate. Ex.A.4, is the certified copy of charge sheet.

7.The learned counsel for the petitioners contended that the deceased travelled in the tractor as a coolie to bring sand to the house of

B. Chinni Reddy and that coolies are covered under the insurance policy and the petitioners are entitled to compensation as the petitioners have proved that the accident was occurred due to negligent driving of tractor belonging to respondent No.1.

8.The learned counsel for the respondent No.2 insurance company contended that the seating capacity of tractor was only one and it was clear from the registration certificate and that the deceased travelled in the tractor as unauthorized passenger and there was no relationship of employee and employer between respondent No.1 and deceased.

9.The petitioners have examined P.Ws.1 and 2 and filed Ex.A.1 to

A.4 to establish that due to negligent driving of the tractor, the accident 5 MVOP.No.61 of 2010 was occurred in which the deceased was injured and succumbed to injuries. From the evidence of P.Ws.1 and 2 and Exs.A.1 to A.4, it is clear that the accident was occurred due to negligent driving of the driver of tractor and that the deceased was injured in the said accident and succumbed to injuries.

10.The insurance company is disputing its claim on the ground that the deceased by sitting on the mudguard of the tractor travelled as unauthorized passenger and that it amounts to violation of policy conditions and the insurance company is not liable to pay compensation.

On this point he relied on a decision in United Insurance Company

Limited v. Serjerao and others 2008 ACJ, 254 (S.C.) wherein the

Hon’ble Supreme Court held that :-

“8. So far as the question of liability regarding labourers travelling in trolleys is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd., v. Brij Mohan 2007 A.C.J. 1909 (S.C.) and it was held that insurance company has no liability. In view of the aforesaid two decisions of this court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matter afresh in the light of what has been stated by this Court in Yallwwa’s case 2007 ACJ 1934 (SC) and Brij Mohan Case, 2007 ACJ, 1909 (S.C.).”

In the said case, the insurance company took the stand that it has no liability in respect of persons travelling in the trolly and the owner of the tractor was liable to pay compensation.

11.In National Insurance Company Limited v. Bommithi

Subbhayamma, 2005 ACJ 721 (SC), the Hon’ble Apex Court held as follows:- 6 MVOP.No.61 of 2010 “Although the owner of the goods or his authorized representative would now covered by the policy of the insurance in respect of the goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.”

12.R.W.1 has admitted that as on the date of accident policy was in force and it was issued for commercial purpose and that they had collected Rs.150/- towards legal liability to the coolie under IMT/39.

Ex.B.2 also goes to show that Rs.150/- was collected towards legal liability to coolie under IMT/39. It is not the case of the insurance company that the deceased was not travelling as coolie, but he was gratuitous passenger. In the absence of such plea and in view of collecting of Rs.150/- towards legal liability to the coolie, the insurance company cannot be allowed to disown its liability towards the coolie when it has collected premium for that.

13.The petitioners are claiming that the deceased was 45 years age working as coolie and earning Rs.150/- per day. The age of the deceased is mentioned as 45 years in Ex.A.2 and Ex.A.3. Hence, the age to be taken as 45 years and the multiplier applicable is ‘14’. The income being earned by the deceased is less than minimum income and the income of

Rs.6000/- to be taken into consideration. If 1/4th amount is deducted towards the personal expenses, the income comes to Rs.4,500/-. As such the petitioners are entitled to following amounts under different heads:- 7 MVOP.No.61 of 2010

1. Transport charges: Rs. 5,000-00

2. Funeral expenses: Rs. 5,000-00

3. Loss of consortium: Rs. 15,000-00

4. Loss of love and affection : Rs. 15,000-00

5. Loss of future dependency : Rs.3,95,000-00 (as claimed)

Total: Rs.4,35,000-00

14.Therefore, in all the petitioners are awarded compensation amount of Rs.4,35,000/-. There are no violations of policy conditions established by the respondents. Hence, respondent Nos.1 and 2 are jointly and severally liable to pay the above said compensation. These issues are found accordingly.

Issue No.3:- 15In view of the findings recorded in the above said issues, the petitioners are entitled to the compensation of Rs.4,35,000/- with future interest and costs.

16.In the result, the petition is partly allowed with proportionate costs and an amount of Rs.4,35,000/- (Rupees four lakhs and thirty five thousand only) is awarded to the petitioners against respondent Nos.1 and 2. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. By virtue of contractual obligation respondent No.2 is liable to indemnify respondent No.1. The respondent No.2 is directed to deposit the amount of Rs.4,35,000/- within 30 days from the date of this

Judgment. The petitioners are entitled to interest at the rate of 9% per annum from the date of petition to the date of deposit. The petitioner

No.1 is entitled to receive Rs.2,00,000/-; petitioner Nos.2 and 3 being minors are entitled to receive Rs.1,00,000/- each and the petitioner

No.4, being the mother of deceased is entitled to receive Rs.35,000/-.

8 MVOP.No.61 of 2010

The petitioner No.1 is entitled to costs of the petition. On depositing the above said amount, the petitioner Nos.1 and 4 are permitted to withdraw the entire amount apportioned to them with accrued interest and costs.

The share of the petitioner Nos.2 and 3 shall be kept in the fixed deposit till they attain majority. Thereafter, the petitioner Nos.2 and 3 are at liberty to withdraw the said amounts with accrued interest. Advocate fee is fixed at Rs.3,000/- (Rupees three thousand only).

Typed to my dictation by the Grade-III Stenographer, corrected and

pronounced by me in the open court this the 08th day of December,

2017. Sd/- G. Anwar Basha

CHAIRMAN,

Motor Accidents Claims Tribunal

Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

Appendix of evidence.

Witness examined for

Petitioner. Respondents.

PW.1: Bala Chandrakala.R.W.1 : M.D. Babu.

PW.2: B. Chinni Reddy.R.W.2 : Y.V. Ramana Murthy. Exhibits marked for Petitioner/Claimant:

Ex.A1: Certified copy of FIR.

Ex.A2: Certified copy of Inquest Report.

Ex.A3: Certified copy of postmortem certificate.

Ex.A4: Certified copy of Charge sheet.

Exhibits marked for Respondents:

Ex.B1: Authorisation. Ex.B2: True copy of insurance policy. Ex.B3: Authorisation letter issued by RTO, Proddatur. Ex.B4: Attested copy of Form – 24. Ex.B5: Attested copy of driving licence of Guru Bhaskar Reddy.

Sd/- G. Anwar Basha

CHAIRMAN,

Motor Accidents Claims Tribunal

Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

1 MVOP.No.134 of 2008

THE MOTOR ACCIDENTS CLAIMS TRIBUNAL JUDGE-CUM- II ADDL.

DISTRICT JUDGE OF KADAPA AT PRODDATUR.

Present: Sri G. Anwar Basha, Chairman, Motor Vehicle Accidents Claims Tribunal-Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

Friday, this the 8th day of December, 2017

M.V.O.P.No. 134 / 2008

1. Varra Rami Reddy, S/o Gangi Reddy, aged 45 years, Hindu, Employee.

2. Varra Sakunthala Devi @ Sakunthalamma, W/o Rami Reddy, aged 40 years, Hindu, Employee.

3. Varra Neelambara Devi, D/o Rami Reddy, aged 20 years, Hindu, Student.

All are resident of I.C.L. Quarters, Yerraguntla village and mandal, Kadapa District.

... Petitioners/Claimants

Vs.

1. B. Chandra Kaladara Reddy, S/o Radhakrishna Reddy, aged about 35 years, Hindu, owner of the motor cycle bearing No.AP22-J-1426, resident of 1-1-91/2, Ganjipeta mandal, Mahaboob Nagar District.

2. Bajaj Allianz General Insurance Company Limited, represented by its Manager, Far East Plaza, II Floor, 3-6-111/8, Street 18 main road, Himayathnagar, Hyderabad.

... Respondents

This petition coming on 05-12-2017 for final hearing before me in the presence of Sri E.V. Sudhakar Reddy and Sri S. Noorulla,

Advocates for the Petitioners/Claimants and of Sri D. Rajasekhar

Reddy, Advocate for Respondent No.2 and the respondent No.1 was called absent and set exparte, after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a claim petition filed U/s. 163-A of Motor Vehicles Act and

Rule 455 of A.P. M.V. Rules by the legal heirs of Varra Pavan Kumar

Reddy claiming compensation of Rs.5,00,000/- and sought for an Award against respondent Nos.1 and 2 jointly and severally.

2 MVOP.No.134 of 2008

1.The case of the petitioners is that on 23.04.2007 in the morning the deceased left Hyderabad by respondent No.1’s motor cycle bearing

No.AP22-J-1426 in order to go to Kadapa as he received telephonic message from his parents and on the way at Jadcherla, one S. Naga Raju boarded the motor cycle as pillion rider to go to his village Kothapeta and the deceased was riding the motor cycle. At about 12.00 noon, when they reached Darravagu Gutta on N.H.17, the deceased was overtaking a vehicle, lost control over the vehicle and fallen into a ditch, as a result of which the deceased sustained serious injuries and pillion rider sustained injuries and both were shifted to Govt. Hospital, Mahaboobnagar where the deceased succumbed to injuries at 1.30 p.m. The pillion rider

Nagaraju lodged a complaint with police concerned and a case was registered in Cr.No.30 of 2007. The deceased was a diploma holder in

L.C.E. and the petitioners have lost their estate. Hence, the petition claiming compensation of Rs.5,00,000/-.

2.There are two respondents in this case. Respondent No.1 has remained exparte. Respondent No.2 insurance company has filed written statement. The brief averments made in the written statement are that it is pertinent to note that one S. Nagaraju, gave complaint, and

Peddamandadi Police Station registered Cr.No.30 of 2007 against the deceased Pavan Kumar Reddy. The recitals of F.I.R. clearly establishes that the deceased Pavan Kumar Reddy was rider of motor cycle bearing

No.AP22-J-1426 belonging to respondent No.1 and the deceased was riding the motor cycle in a rash and negligent manner at high speed, lost control over the motor cycle and fallen on the road side pit and it is very clear that the accident was occurred due to own fault of deceased. The present petition is not maintainable before this Court against respondent

No.2 and it is clear that the panchayatdars and eye witnesses 3 MVOP.No.134 of 2008 participated in the inquest and opined that the accident was occurred due to rash and negligent driving of deceased. The deceased borrowed motor cycle from the respondent No.1 and riding the motor cycle as a joy rider at high speed in rash and negligent manner, lost control and fallen from the motor cycle. As such it is very clear that the deceased died due to his own fault. In fact the deceased Pavan Kumar Reddy was wrong doer, as such the claimants are not entitled to any compensation. That

U/s.163-A of M.V. Act, income is upto Rs.40,000/- per annum, as such the petitioner is maintainable only in respect of victims of motor accident having annual income upto Rs.40,000/-. In case the income of the victim is more than that Rs.40,000/- per annum it is not maintainable before tribunal. The respondent is not aware that the deceased was aged 21 years and used to earn Rs.8,000/- per month and the petitioners are put to strict proof. The amount claimed by the petitioners is excessive.

Hence, the petition is liable to be dismissed with costs.

3.Basing on the above said pleadings, my learned predecessor-in- office framed the following issues for trial:-

1) Whether the deceased died in a motor accident that occurred on 23.04.2007 at 12.00 noon due to rash and negligent driving of motor cycle bearing No.AP22-J-1426 by its driver?

2) Whether the petitioners are entitled to compensation as prayed for?

3) To what relief?

4.As the first issue was not framed properly, it is recast as follows:-

1) Whether the deceased died in a motor vehicle accident that occurred on 23.04.2007 at 12.00 noon near Darravagu gutta on N.H.17 or not?

4 MVOP.No.134 of 2008

5.On behalf of the petitioners, P.W.1 was examined and Exs.A.1 to

A.5 were filed. On behalf of respondent No.2/insurance company, R.W.1 was examined and Exs.B.1 to B.3 were marked and petition U/s.170 of

M.V. Act was filed.

Issue Nos.1 and 2:-

6.The burden of proving these issues is on the claim petitioners.

The claim petitioners are claiming compensation of Rs.5,00,000/- under different heads on the ground that the deceased V. Pavan Kumar Reddy was met with an accident on 23.04.2007 and died due to sustaining of injuries in the motor vehicle accident. The petitioners have filed this petition U/s. 163-A of Motor Vehicles Act under which the compensation is to be granted according to structured formula.

Compensation under Sec. 163-A :-

A compensation payable u/s.163-A is almost based on relevant criteria for determining the compensation, such as annual income, age of the victim and multiplier to be applied. In addition to the figure which is arrived on the basis of said criteria, schedule also provides that amount of compensation shall not be less than Rs.50,000/-. It provides for fixed amount of general damage in case of death such as

1. Rs.2,000/- for funeral expenses.

2. Rs.5,000/- for loss of consortium if beneficaty is the spouce.

3. Rs.2,500/- for loss of estate.

4. Medical expenses supported by the bills and vouchers not exceeding Rs.15,000/-.

Similarly for disability in non-fatal accidents, para No.5 of the schedule provides for determination of compensation on the basis of permanent disability. Para No.6 provides for notional income for those who had no income prior to accident at Rs.15,000/- per annum. There is 5 MVOP.No.134 of 2008 also provision for deduction of 1/3rd amount of compensation on the assumption that the victim would have incurred the said amount to maintain himself had he been alive.

The purpose of this section and the Schedule-II is to avoid a long drawn litigation and delay in payment of compensation to the victims or their legal heirs who are in dire need of relief.

7.The learned counsel for the petitioner contended that a claim petition is maintainable U/s. 163-A of M.V. Act even though there was negligence on the part of the deceased. On this point he relied on a decision in National Insurance Company Limited v. Sinitha and others 2012 ACJ (1) wherein the Hon’ble Supreme Court held that :- “13… The object for incorporating sub section (2) of Sec.163-A of the Act is that burden of pleading and establishing proof of wrongful act or neglect or default would not rest on the shoulders of the claimant. The absence of a provision similar to sub section (4) of Sec.140 of the Act from Sec.163-A of the Act is for shifting the onus of proof on the grounds of wrongful act or neglect or default on the shoulders of defence (owner or insurance company). A claim which can be deputed on the basis of any of the aforesaid considerations, regulated under the fault liability principle. We have no hesitation, therefore to conclude that

Sec.163-A of the Act is founded on the fault liability principle.”

8.He also relied on a decision in Shahazadi Bee and others v.

Managing Director, APSRTC and another, 2004 ACJ (173), wherein the Hon’ble High Court held that :- “12… Further, the Motor Vehicles Act was amended and Sec.163-A was introduced by amending Act 54 of 1994 and the same came 6 MVOP.No.134 of 2008 into force on 14.11.1994. As per the said section, the claimants need not prove rash and negligence of the vehicle. It is sufficient if he proves that the accident has taken place while the vehicle is being used on road.”

9.The learned counsel respondent No.2 insurance company contended that a claim petition filed by the legal representatives of deceased U/s.163-A was not maintainable and a person driving a vehicle after borrowing it from the owner, steps into the shoes of the owner and he is not entitled to compensation. On this point he relied on a decision in Ningamma and another v. United India Insurance Ltd., 2009

ACJ 2020 (S.C.), wherein the Hon’ble Supreme court held that :- “19. We have already extracted Sec.163-A of the M.V.A. herein

before. A bare perusal of the said provision would make it

explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle, in that event the liability to make payment of compensation is on the insurance company or the owner, as the case may be as provided u/s. 163-A. But if it is proved that the driver is the owner of motor vehicle, in that case, the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of

Sec.163-A of the M.V.A. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle would not have claimed compensation U/s.163-

A of M.V.A.” 7 MVOP.No.134 of 2008

The above said Judgment is squarely applicable to the facts of the present case.

10.In the present case the deceased V. Pavan Kumar Reddy is the borrower of motor cycle and he had stepped into the shoes of owner of the motor cycle, hence, the petitioners are not entitled to claim compensation U/s. 163-A of M.V. Act. These issues are found accordingly.

11.In the result, the claim petition is dismissed without costs.

Typed to my dictation by the Grade-III Stenographer, corrected and

pronounced by me in the open court this the 08th day of December,

2017. Sd/- G. Anwar Basha

CHAIRMAN,

Motor Accidents Claims Tribunal

Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

Appendix of evidence.

Witness examined for

Petitioner. Respondents.

PW.1: G. Rami Reddy.R.W.1 : P. Raghavendra.

Exhibits marked for Petitioner/Claimant:

Ex.A1: Attested copy of FIR in Cr.No. 30/2007 of Pedddamandadi P.S.

Ex.A2: Attested copy of Inquest Report.

Ex.A3: Attested copy of postmortem certificate.

Ex.A4: Salary Certificate of deceased issued by Excon Instruments Company, Hyderabad.

Ex.A5: Driving licence (marked subject to proof of filing original).

Exhibits marked for Respondents: Ex.B1: True copy of insurance policy.

Ex.B2: Office copy of legal notice, dated 05.08.2008.

Sd/- G. Anwar Basha

CHAIRMAN,

Motor Accidents Claims Tribunal

Cum- IV Addl. District Judge, Kadapa FAC II Additional District Judge, Kadapa at Proddatur.

1

IN THE COURT OF IV ADDITIONAL SESSIONS JUDGE, KADAPA.

Present: Sri G. ANWAR BASHA,

IV ADDITIONAL SESSIONS JUDGE, KADAPA.

Tuesday, this the 10th day of April, 2018

Crl.R.P.No.4 of 2018

(in Crl.M.P.No.2755 of 2017 in C.C.No.24 of 2016 on the file of II AJMFC, Kadapa).

1.From what Court the appeal is II Additional Judicial .Magistrate of 1st Class, Kadapa. preferred

2.Number of the case in the lower CourtCrl.M.P.No.2755 of 2017 in C.C.No.24of 2016

3. Name and description of the applicantGnanagari Pavithra d/o G. Udaya Kumar w/o T. Srikanth, aed about 28 years, residin at D.No.46-108-9-1, Upst airs, Sattar Colony, R.V.Nagar Post, Kadapa.

..Revn.Petitioner/petitioner/ Defacto-complainant

1) T. Sreekanth , s/o T. Narasimhulu, aed about 33 years, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

2) T. Narasimhulu s/o late T. Nagaraja, aged about 62 years, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

3) T. Lakshmi Devi w/o T. Narasimhulu, aged about 55 yerrs, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

4) State: SHO, Women U/G PS., rep.by Public Prosecutor, Kadapa.

...Respondents/Respondents/

Accused/State.

4.The sentence and law under which it --- was imposed in the lower Court

5. Whether confirmed, modified or Reversed reversed and if modified the modification order.

6.Date of presentation04.1.2018

7.Date of filing09.1.2018

8.Date of notice issued by the Court to 09.2.2018 appear

9.Date of bail bond if appellant has been -- let out on bail.

10.Date of appellant ordered to appear--

11. Date of hearing06-4-2018

12. Date of judgment or order10-4-2018

This appeal is coming on 06.4.2018 for hearing before me in the presence of Sri M. Suresh Kumar, advocate for petitioner and Sri K.

Venkateswara Reddy, advocate for 1st respondent and upon perusing 2 record and having stood over for consideration till this day, this Court delivered the following:

O R D E R

This is a Criminal Revision Petition filed by the complainant under

Sections 397 and 399 of Cr.P.C. against the order dated: 8.12.2017 passed in Crl.M.P.No.2755 of 2017 in C.C.No. 24 of 2016 by II Additional

Judicial Magistrate of First Class, Kadapa.

2. The Revision Petitioner filed a petition Crl.M.P.No.2755 of 2017 in

C.C.No.24 of 2016 under Section 231 of Cr.P.C. seeking permission to file

DVD containing three videos, statement of account, GPF Account slip, original pass book, certified copy of FIR in C.C.No.260 of 2016, certified copy of deposition of T. Srikanth in DVC No.20 of 2015, CC of deposition of

T. Srikanth in FCOP No.112 of 2014 and deposition of T. Srikanth in MC 28 of 2015. The case of the petitioner is that due to over sight the prosecution has not filed the documents mentioned in the petition at the time of examination of PW1 and those documents are material piece of evidence to prove the case of the prosecution.

3. The respondents/accused filed counter stating that it not the case of the investigating agency that it has secured documents during the course of examination and the prosecution has filed documents to show that father of PW1 incurred amount to purchase the fridge. The appearance of A1 and in the presence of PW1 and family members in video is only dramatic. The bank statement showing transfer of amount of

Rs.17,000/- from the account to the account of PW1 has no relevancy.

The attested copy of GPF account slip is inadmissible in evidence. The

FIR and charge sheet in C.C.No.260 of 2016 is totally irrelevant. The 3 prosecution is not expected to lead so-called facts and conflicting statements made by A1 in some other proceedings. Hence, the petition is liable to be dismissed.

4. The learned II Additional Judicial Magistrate of First Class,

Kadapa, after hearing both sides, dismissed the petition on 8.12.2017 stating that the reliefs in those cases were independent, so also the defences.

5. The petitioner aggrieved by the order of trial Court has filed this

Revision Petition to decide legality of the order passed by the trial Court in

Crl.M.P.No. 2755 of 2017 in C.C.No.24 of 2016 dt. 8.12. 2017.

6. The learned counsel for both sides did not appear to advance their arguments.

7. Now the point for determination is:

Whether there is any illegality in the order passed by II Additional

Judicial Magistrate of First Class, Kadapa or not?

P O I N T:- 8.The petitioner it appears has filed a case under Section 498-A of IPC against the respondents in C.C.No.24 of 2016. While the matter was coming up for further evidence of prosecution a petition under Section 231 of Cr.P.C. was filed to receive certain documents. In fact Section 231 of Cr.P.C. deals with evidence for prosecution in Sessions Cases. The procedure relating to evidence for prosecution in warrant cases is mentioned in Section 242 of Cr.P.C. Section 242 of Cr.P.C. says that— (1) If the accused refuses to plead, or does not plead, or claims to be tried or the Magistrate does not convict the accused under 4

Section 241, the Magistrate shall fix a date for the examination of witnesses; (Proved that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police).

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing; (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

9. The above said provision has to be read with

Section 311 of Cr.P.C. which deals with power to summon material witness or examine person present. Section 311 of Cr.P.C. says that – “Any Court may, at any stage of enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

10. The object of above Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Power is exercised and evidence 5 examined with an object of getting the evidence in aid of a just decision and to uphold the truth. The power of the Court is plenary to summon or even recall any witness at any stage of the case, if the Court considers it necessary for a decision. The above said provisions do not contemplate that evidence which was not mentioned in charge sheet or complaint should not be received and that the object of criminal trial is to arrive at a just decision and for that purpose the criminal Court has got every power to take all such evidence necessary for just decision of the case. A complaint or a First Information Report is not an encyclopaedia to include everything. Hence, the order passed by the trial Court is illegal and it is liable to be set-aside. This point is answered in favour of the revision petitioner.

11. In the result, the Criminal Revision Petition is allowed by setting aside the order of learned II Additional Judicial Magistrate of First

Class, Kadapa, in Crl.M.P.No.2755 of 2017 passed on 8.12.2017.

Consequently, the Crl.M.P.No.2755 of 2017 stands allowed.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court this, the 10th day of April, 2018.

Sd/- G. Anwar Basha

10/4/2018 IV Additional Sessions Judge, Kadapa.

Copy to II Additional Judicial Magistrate of First Class, Kadapa, 6

1

IN THE COURT OF IV ADDITIONAL SESSIONS JUDGE, KADAPA.

Present: Sri G. ANWAR BASHA,

IV ADDITIONAL SESSIONS JUDGE, KADAPA.

Tuesday, this the 10th day of April, 2018

Crl.R.P.No.3 of 2018

(in Crl.M.P.No.3044 of 2017 in C.C.No.24 of 2016 on the file of II AJMFC, Kadapa).

1.From what Court the appeal is II Additional Judicial .Magistrate of 1st Class, Kadapa. preferred

2.Number of the case in the lower CourtCrl.M.P.No.3044 of 2017 in C.C.No.24of 2016

3. Name and description of the applicantGnanagari Pavithra d/o G. Udaya Kumar w/o T. Srikanth, aed about 28 years, residin at D.No.46-108-9-1, Upst airs, Sattar Colony, R.V.Nagar Post, Kadapa.

..Revn.Petitioner/petitioner/ Defacto-complainant

1) T. Sreekanth , s/o T. Narasimhulu, aed about 33 years, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

2) T. Narasimhulu s/o late T. Nagaraja, aged about 62 years, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

3) T. Lakshmi Devi w/o T. Narasimhulu, aged about 55 yerrs, residing at D.No.42-357-1, Bhagya Nagar Colony, Kadapa.

4) State: SHO, Women U/G PS., rep.by Public Prosecutor, Kadapa.

...Respondents/Respondents/

Accused/State.

4.The sentence and law under which it --- was imposed in the lower Court

5. Whether confirmed, modified or Reversed reversed and if modified the modification order.

6.Date of presentation04.1.2018

7.Date of filing09.1.2018

8.Date of notice issued by the Court to 09.2.2018 appear

9.Date of bail bond if appellant has been -- let out on bail.

10.Date of appellant ordered to appear--

11. Date of hearing06-4-2018

12. Date of judgment or order10-4-2018

This appeal is coming on 06.4.2018 for hearing before me in the presence of Sri M. Suresh Kumar, advocate for petitioner and Sri K.

Venkateswara Reddy, advocate for 1st respondent and upon perusing record and having stood over for consideration till this day, this Court delivered the following:

O R D E R

This is a Criminal Revision Petition filed by the complainant under Sections 397 and 399 of Cr.P.C. against the order dated: 8.12.2017 passed in

Crl.M.P.No.3044 of 2017 in C.C.No. 24 of 2016 by II Additional Judicial

Magistrate of First Class, Kadapa.

2. The Revision Petitioner filed a petition Crl.M.P.No.3044 of 2017 in

C.C.No.24 of 2016 under Section 231 of Cr.P.C. seeking permission to file certified copy of order in FCOP 112 of 2014 and certified copy of order in MC

No.28 of 2015. The case of the petitioner is that the Hon’ble Family Court,

Kadapa was pleased to deliver judgment in FCOP No.112 of 2014 dt. 28.8.2017 filed by A1 against the deface-complainant and MC No.28 of 2015 filed by defacto-copmplainant against A1 on 28.8.2017. These documents are material piece of evidence to prove the case of the prosecution. As the judgments in the above cases were pronounced on 28.8.2017, the prosecution was filing them with this petition.

3. The respondents/accused filed counter stating that it was true that

F.C.O.P. No. 112 of 2014 filed by 1st respondent (A1) against PW1 was dismissed by the Family Court, Kadapa on 28.8.2017 and M.C. No.28/2015 filed by PW1 against R1 was allowed. The orders passed against 1st respondent were totally different proceedings. The findings of Family Court are independent and they have no nexus with the present case on hand. Hence, the petition is liable to be dismissed.

4. The learned II Additional Judicial Magistrate of First Class, Kadapa, after hearing both sides, dismissed the petition on 8.12.2017 stating that the reliefs in those cases were independent, so also the defences.

5. The petitioner aggrieved by the order of trial Court has filed this

Revision Petition to decide legality of the order passed by the trial Court in

Crl.M.P.No.3044of 2017 in C.C.No.24 of 2016 dt. 8.12. 2017.

6. The learned counsel for both sides did not appear to advance their arguments.

7. Now the point for determination is:

Whether there is any illegality in the order passed by II Additional

Judicial Magistrate of First Class, Kadapa or not?

P O I N T:-

8. The petitioner it appears has filed a case under Section 498-A of IPC against the respondents in C.C.No.24 of 2016. While the matter was coming up for further evidence of prosecution a petition under Section 231 of Cr.P.C. was filed to receive certain documents. In fact Section 231 of Cr.P.C. deals with evidence for prosecution in Sessions Cases. The procedure relating to evidence for prosecution is in warrant acases mentioned in Section 242 of Cr.P.C. Section 242 of Cr.P.C. says that— (1) If the accused refuses to plead, or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the

Magistrate shall fix a date for the examination of witnesses;

(Proved that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police).

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing; (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;

Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

9. The above said provision has to be read with Section 311 of

Cr.P.C. which deals with power to summon material witness or examine person present. Section 311 of Cr.P.C. says that – “Any Court may, at any stage of enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

10. The object of above Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Power is exercised and evidence examined with an object of getting the evidence in aid of a just decision and to uphold the truth. The power of the Court is plenary to summon or even recall any witness at any stage of the case, if the Court considers it necessary for a decision. The above said provisions do not contemplate that evidence which was not mentioned in charge sheet or complaint should not be received and that the object of criminal trial is to arrive at a just decision and for that purpose the criminal Court has got every power to take all such evidence necessary for just decision of the case. A complaint or a First Information Report is not an encyclopaedia to include everything. Hence, the order passed by the trial Court is illegal and it is liable to be set-aside. This point is answered in favour of the revision petitioner.

11. In the result, the Criminal Revision Petition is allowed by setting aside the order of learned II Additional Judicial Magistrate of First Class,

Kadapa, in Crl.M.P.No.3044 of 2017 passed on 8.12.2017. Consequently, the

Crl.M.P.No.3044 of 2017 stands allowed.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court this, the 10th day of April, 2018.

Sd/- G. Anwar Basha

10/4/2018 IV Additional Sessions Judge, Kadapa.

Copy to II Additional Judicial Magistrate of First Class, Kadapa,

1

In the Court of IV Additional District Judge, Kadapa

Present:- Sri G. Anwar Basha,

Monday, this the 09th day of April, 2018

Civil Miscellaneous Appeal No.18 of 2017

Polu Pitchi Reddy ...Appellant/petitioner/Plaintiff

Versus

1. Dara Sundara Raj

2. Bathena Lakhumma (died)

...Respondents/Respondents/Defendants

On appeal against the order and decree dated: 04.9.2017 made in

I.A.No.142 of 2015 in O.S.No.109 of 2006 by the Additional Senior Civil

judge, Kadapa in

Between:

Polu Pitchi Reddy ...Petitioner/Plaintiff

A n d

1. Dara Sundara Raj

2. Bathena Lakshumma ...Respondents/Defendants

This appeal coming before me for hearing on 06.4.2018 in the presence of Sri G. Krishna Kumar, Advocate for Appellant and of Sri L.

Rama Sanjeeva Reddy, advocate for 1st respondentt and the 2nd respondent having died, and having stood over for consideration, this

Court delivered the following:-

O R D E R

This is a Civil Miscellaneous Appeal filed under Order 43 Rule 1 read with Sections 104, 107 and 151 of C.P.C. by the unsuccessful petitioner against the order and decree dt. dated: 04.9.2017 made in 2

I.A.No.142 of 2015 in O.S.No.109 of 2006 by the Additional Senior Civil

judge, Kadapa.

2. The appellant herein is the petitioner in I.A.No.142 of 2015 in

O.S.No.109 of 2006 on the file of Additional Senior Civil Judge, Kadapa.

The case of the petitioner is that he has filed a petition U/O.9 Rule 9 to restore I.A. No.87 of 2010 in O.S.No.109 of 2006. The case of the petitioner is that he filed suit to declare his right and title over ‘B’ Schedule property which is part and parcel of ‘A’ schedule property and to direct the 1st defendant to deliver the possession of ‘B’ schedule property. Originally the suit was instituted before PrincipalSenior Civil Judge, Kadapa and later it was made over to Additional Senior Civil Judge and in view of absence of regular officer the matter undergone number of adjournments. In fact, he had filed an application in IA No.87/2010 on 28.7.2010 seeking amendment of plaint pleadings and the said matter was pending. Unless and until the said application was disposed by this Court the trial wound not commence. While so, recently on 15.6.2015 I.A.No. 87 of 2010 was called and dismissed for default as the petitioner called absent and no representation. The suit was posted for trial to 24.6.2015 and the same was called on 24.6.2015 and the suit was dismissed for default as there was no representation as the suit related to 2006. In fact presiding officer, was not there and he was under impression that the matter was adjourned to some other date as usual. But recently when he contacted his advocate and he informed that the I.A.No.87 of 2010 was dismissed on 15.6.2015 for default likewise suit was dismissed on 24.6.2015 and further informed that the bundle was misplaced and due to that when the matter was called there was no representation on his behalf, so the Hon’ble Court dismissed the amendment petition for default. Hence, it has become just and 3 essential to file this application seeking to set-aside the dismissal order made in I.A.No.87 of 2010 on 15.6.2015.

3. No counter was filed by respondent No.1.

4. The learned Additional Senior Civil Judge, Kadapa opined that if the suit is restored there was every chance of delay in commencing trial and dismissed the petition. Hence, this Civil Miscellaneous Appeal.

5. The contention of the appellant is that the lower Court dismissed the suit on the grounds that the suit related to 2006 and there would be delay in commencing trial ignoring the very nature of the suit which is not permissible in law.

6. Now the point for consideration is:

Whether the petitioner is entitled to the relief of restoration of

I.A.No.87 of 2010 in O.S.No.109 of 2006 or not?

P O I N T:

7. The appellant/plaintiff had filed the suit for declaration of title over ‘B’ schedule property which was part and parcel of ‘A’ schedule property and for delivery of possession of ‘B’ schedule property. He had also filed I.A.No.87 of 2010 for amendment of plaint and the same was dismissed for default on 15.6.2015. Then the appellant had filed

I.A.No.142 of 2015 for restoration of the said petition on 16.7.2015. The said petition was dismissed by the learned Additional Senior Civil Judge,

Kadapa observing that “it is nowhere mentioned by petitioner that case bundle was traced out. This matter is pertaining to the year 2006, it is submitted by petitioner that case bundle was misplaced by them, if the suit 4 is restored, there is every chance of causing delay in commencing trial.

Except the above reason, no other valid reason shown by the petitioner.”

8. In the affidavit filed by the petitioner it was mentioned that there was no regular officer and the matter had undergone number of adjournments. It appears that a regular officer had assumed charge in the month of June, 2015 and the petition was dismissed on 15.6.2015. It appears that sufficient opportunity was not given to the appellant’s counsel to argue the petition filed for amendment of plaint. Further, the reason that the suit pertains to the year 2006 and that misplacement of bundle in the office of advocate would cause delay in commencing trial is not at all sustainable. Hence, the appellant is entitled to restoration of IA No.87 of 2010. This point is answered in favour of the appellant.

9. In the result, the Civil Miscellaneous Appeal is allowed, setting aside the order and decree passed in I.A.No. 142 of 2015 in O.S.No.109 of 2006 dated: 04.9.2017 and I.A.142/2015 allowed. Consequently, I.A.

No.87 of 2010 stands restored to its file.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court this, the 09th day of April, 2018.

Sd/- G. Anwar Basha,

9/4/2018. IV Additional District Judge, Kadapa,

Appendix of Evidence

Sd/- G. Anwar Basha,

9/4/2018. IV Addl.Dist.Judge, Kadapa.

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