Smt.G.Archana

1 MVOP No.1142/2018 III A.D.J. Court

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

III ADDL. DISTRICT JUDGE, GUNTUR

PRESENT: SMT. G. ARCHANA,

CHAIRMAN

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

III ADDL. DISTRICT JUDGE

Wednesday, the 3rd day of April, 2024

M.V.O.P.No.1142/2018

Between:

Rekapalli Anand Baji Baba @ Anand Baji S/o. Murali Krishna, aged about 21 years, Door no.20-18-588/1, Nimmalapet, Koneru road, R. Agraharam,

Guntur. ... Petitioner

-And-

1. Bandla Nageswara Rao S/o. Bandla Hanumaiah, Door No.7-246, Ganga Mahal Road, Nimmathota Bazar, Piduguralla.(Owner of the vehicle bearing No. APO7TJ 0679)

2. Seela Nagendra Babu 10-592 Railway station road, Nadikudi post, Dachepalli Mandal, Guntur.(Driver of the vehicle bearing No. APO7TJ 0679)

3. Cowdari Rama Rao S/o. Venkateswara Rao, Rentachintala village and Mandal, Guntur.

4. New India Assurance Co., Ltd., Sukuru Complex, Door no.12-11-32, R.R.Appa Rao street, Vijayawada.

... Respondents

This petition came up on 6.3.2024 before me for hearing in the presence of Sri G. Mallikarjuna Rao, advocate for petitioner; Sri. N. Srinivasa Rao, advocate for 1st respondent and Sri. A. Anjaneya Prasad, Advocate for 2nd respondent and Sri. O. Lakshmi Naga Raja, Advocate for 3rd respondent and Sri. G. Srinivasulu, advocate for 4th respondent and upon perusing the material available on record, this court made the following:

O R D E R

The present petition is filed for seeking compensation of Rs.5,00,000/- for the injury caused to the petitioner in the accident and with subsequent interest and costs.

2. The brief averments of the petition are as follows:

On 13.1.2018 night the petitioner and Veeramallu Manoj Kumar (deceased) and his brother Veeramallu Sai Ganesh went to Budampadu 2 MVOP No.1142/2018 III A.D.J. Court village, to attend a birth day function of their friend on Bike bearing No. AP 07 C Z 2659. After completion of the function they all returned to Guntur by triple riding, driven by Veeramallu Manoj Kumar and while they were proceeded to Pedakakani side from Guntur side for petrol, and while they reached Vasavi Nagar at 1.10 a.m. on 14.1.2018, an unknown lorry driven by unknown driver, came with high speed without blowing horn with rash and negligent manner from Guntur side to Pedakakani, dashed the bike on its back, all of them fell down, the lorry tires crushed the head of Veeravallu

Manoj Kumar and he died on the spot due to head injury, the petitioner sustained a fracture on the left leg bone (Femurer) at the thigh and also received injuries on his left elbow and on other parts of his body. After the accident, the lorry again hit a person who is going on the road by walk to

Mourya Bar and Restaurant, and he died on the spot due to lorry ran over him.

The petitioner was shifted to Government General Hospital, Guntur for treatment. While the petitioner was taking treatment, S.I. of Police

Pedakakani, recorded the statement from Baji Baba and registered the same as a case in crime No.140/2018 for the offence under sections 304-A and 337 of Indian Penal Code. The S.I. of police Pedakakani arrested respondent’s no.2 and 3 and they were remanded to judicial custody. 2nd respondent is the driver of the lorry, 3rd respondent is the cleaner of the lorry who drove the lorry as per the version of the police at the time of accident.

As on the date of accident petitioner was hale and healthy, and he was studying Bachelor of Engineering and Technology, and he was selected as Engineer in Ashok Leyland Company in Campus selection in Kallam

Haranadha Reddy Institution of Technology, Guntur and granted to pay

Rs.15,000/- per month towards training period of 3 months. The petitioner is 3 MVOP No.1142/2018 III A.D.J. Court not able to join in the job due to accident for three months. Due to accident, he sustained heavy loss and indebted to others and he is not able to move freely and is in need of assistance. Thus, he is claiming Rs.5,00,000/- towards damages for loss of dependency and support, loss of earnings and medical and other expenses.

1st respondent is the owner of the lorry bearing No. AP 077 TJ 0679, 2nd respondent is the driver and 3rd respondent is cleaner of the lorry who drive the vehicle at the time of the accident. The 4th respondent is insurer of the offending vehicle. As such all the respondents are vicariously liable for the negligent act of the respondent no.2 and 3 and are liable to pay compensation to the petitioner. In spite of several requests made by the petitioner, no compensation was paid by respondents. Hence, the petition.

3. After registering of the present petition, notice was served on respondents. Respondents no.1 to 3 filed separate written statements but the contents of their written statements are one and the same. 4th respondent filed separate written statement.

4. The Brief averments of Written statement of the respondents no.1 to 3 are as follows :

Respondents no.1 to 3 denied all the material allegation made in the petition and submitted that 1st respondent is the owner of the lorry bearing

No. AP 07 TJ 0679, and the alleged accident was never occurred due to hit of 1st respondent’s lorry to the motor cycle which was driven by Veeramallu

Manoj Kumar who is the brother of the petitioner. In fact, on the date of alleged accident i.e. on the intervening night of 13/14 -1-2018 at about 1.10 a.m. the lorry bearing No. AP 07 T 0679 was not proceeded on the Guntur

RTC bus stand to Auto Nagar road. As per FIR, the petitioner who is pillion 4 MVOP No.1142/2018 III A.D.J. Court rider along with the defacto complainant on the motor cycle bearing No. AP 07 CZ 2659 have stated that they have attended a birth day party. In the postmortem report of Veeramallu Manoj Kumar it was clearly established that he took alcohol before driving the motor cycle. The deceased Manoj

Kumar drives the Motor cycle under the influence of Alcohol and did not possess any valid license. As such it can be safely presumed that the persons on the motor cycle including driver of the motor cycle were under the influence of Alcohol and unable to balance the vehicle as this petitioner and another rider also sat on it and caused the accident. The triple riding on the Motor cycle is not at all permissible and it is against the rules under M.V.

Act. Drunk and driving is also an offence under law.

As per averments in the petition, by the time the petitioner and deceased reached RTC bus stand there was no fuel in the motor bike and for refilling the motor bike, there is no necessity for the deceased and other 2 pillion riders to go all the way to auto Nagar. There are more than 10 petrol bunks in between the RTC bus stand and Auto Nagar which were kept opened and working round the clock. Further petitioner and deceased and his brother are the resident of R-Agraharam and Sampath Nagar which are situated in opposite direction to the RTC bus stand to Auto Nagar road and there are 4 petrol bunks in between RTC bus stand to R-Agraharam and

Sampath Nagar which also runs round the clock. The contention of the SHO

Peda Kakani is that the cleaner of the lorry confessed to the police after long lapse of nearly 10 days that he himself caused the accident is absolutely unbelievable. As they could not able to trace out the vehicle which caused the accident, they intentionally planted the lorry of 1st respondent with a malicious and dishonest intention to help the petitioner and others to get compensation wrongfully. The petitioner cooked up a false story with the help of police for the death of deceased and falsely implicated the 5 MVOP No.1142/2018 III A.D.J. Court respondent no.2 and 3 in the criminal case for the purpose of filing this false claim. The above facts themselves proves that the lorry of 1st respondent was falsely implanted and brought into existence to somehow get compensation by petitioner and others unlawfully at the costs of the 1st respondent and his insurer. Since the owner and insurer of the motor cycle bearing No. AP 07 CZ 2659 in which petitioner, deceased and another person was proceeding was not made a party to this claim. Hence, this petition is was bad for non-joinder of necessary party. The lorry of this respondent never involved in the alleged accident on 14.1.2018 at 1.10 a.m. as such 1st respondent is not all liable to pay any compensation to the petitioner. The lorry was duly insured with 4threspondent vide policy no.62140031170100004424 valid from 26.5.2017 to 27.6.2018. The said policy was in force as on the date of alleged accident. 1st respondent entrusted the lorry to 2nd respondent to proceed from J. P. Cements

Gamalapadu to JP cements Vepagunta, and 2nd respondent has possessed a valid and effective driving license No.400172004OD along with badge

No.14620 which was valid upto 28.6.2023. The 1st respondent never entrusted the lorry to 3rd respondent and 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta. On 13.1.2018 by 11-00 p.m itself the 2nd respondent passed away the RTC bus stand to Pedakakani road. As there is no violation of the policy terms and conditions by 1st respondent, he is not at all liable to pay any compensation to the petitioner. If the Court finds that cleaner of the lorry drove the lorry at the time of accident then also no liability rests on him since the lorry was entrusted to 2nd respondent who possessed valid and effective driving license at the time of accident. If the

Court intends to pass any award, it may be passed against 4th respondent only as there is valid insurance policy issued by 4th respondent company.

6 MVOP No.1142/2018 III A.D.J. Court

It is further submitted that respondents denied the avocation of the petitioner as on the date of the accident. They came to know petitioner is a vagabond and addicted to bad vices. The compensation claimed by the petitioner is highly excessive and exorbitant. The injuries allegedly sustained by the petitioner are simple in nature. The petitioner never made any demand for any compensation against this respondent either in writing or oral as mentioned in the petition. As such petitioner is not entitled any interest from the date of accident till the date of realization. Hence, the petition is liable to be dismissed with costs.

5. The Brief averments of Written statement of the 4 th respondent are as follows :

This respondent denied the entire material allegation made in the petition. It is submitted that they does not admit factum and manner of the alleged accident and the petitioners are put to strict proof of the same. They denied the age, avocation, income, injuries of the deceased as alleged by the petitioner. The petitioners never made any demand for any compensation against this respondent either in writing or orally as mentioned in the application and as such the petitioner are not entitled to any costs and interest from the date of accident till the date of realization.

There was no rash and negligence on the part of the driver of the lorry bearing No. AP 07 TJ 0679 at the time of accident. Hence, they are not liable to pay any compensation to the petitioner. The driver of the lorry in question have no valid and effective driving licence to drive the vehicle and the alleged vehicle has no valid Registration Certificate at the time of the accident which is an infringement of specified conditions of the insurance policy. Therefore they are not liable to pay any compensation. The owner of the lorry intentionally and knowingly violated the terms and conditions of the 7 MVOP No.1142/2018 III A.D.J. Court policy and provisions of M.V. Act by allowing a person who has no driving license to drive the lorry at the time of accident. Unless and until it is proved that the vehicle alleged to be involved in the accident is insured with this respondent company at the time of accident, this respondent company is not liable to pay any compensation to the petitioner. Police failed to comply with section 158(6) of Motor Vehicle Act. As per section 134 (c ) of Motor Vehicle

Act 1988, it is mandatory duty of the insured/1st respondent to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving license but 1st respondent has not complied with statutory demand.

There was no rash and negligence on the part of the driver of the lorry and the accident if any occurred only due to the rash and negligent and fault of the rider of the motor bike. Hence, 4th respondent company is not liable to pay any compensation to the petitioner. The injured was hit by one unknown lorry but not the lorry bearing No. AP 07 TJ 0679, the petitioner in collusion with police and the 1st respondent, foisted a false case against the driver of the lorry bearing No. AP 07 TJ 0679 for unlawful gain. At the time of accident, three persons were travelling on the motor cycle bearing no. AP 07 CZ 2659 against the seating capacity of 2 and as such the rider of the motor cycle unable to control the motor cycle and caused the accident.

The petitioner sustained only simple injuries and there is no permanent disability and petitioner can perform his normal duties as usual and there is no loss of earning capacity. The liability of this respondent is only subject to the terms and conditions of the policy if any issued to the 1st respondent. This respondent seeks protection under section 170 of the M.V.

Act to defend the proceedings if 1st respondent colluded with the petitioner and remains exparte. The claim of the petitioner is highly excessive and exorbitant. As such the interest may be awarded at 6% per annum that too 8 MVOP No.1142/2018 III A.D.J. Court from the date of award. Hence, the present petition is liable to be dismissed.

6. Basing on the above pleadings, my learned predecessor in office had framed the following issues for trial:

1. Whether the petitioner namely Rekapalli Anand Baji Baba @ Anand Baji sustained injuries in the road accident occurred on 14.1.2018 at about 1.10 a.m. near Vasavi Nagar, Pedakakani due to rash and negligent driving of the lorry bearing AP 07 TJ 0679?

2. Whether the petitioner is entitled to compensation, if so, to what amount and against whom?

3. To what relief?

7. During trial, the petitioner got examined PW1 & PW2 and marked documentary evidence as Exs.A1 to Ex.A6, and Ex.X1 to Ex.X4 documents are marked. On behalf of the respondents, RW1 and RW2 are examined and documentary evidence of Ex.B1 is marked.

8. Heard both side arguments. Perused the entire material on record.

ISSUE NO.1 :

9. In a claim petition filed under sections 166 of the M.V. Act, onus is on the claimant/petitioner to prove that he suffered injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.

10. In proof of the case of the petitioner, he himself examined as PW1 and he filed his evidence affidavit by reiterating the contents of the petition. He got marked documentary evidence of Ex.A1 to A6. Ex.A1 is the certified copy of FIR in Crime No.142/2018 of Pedakakani Police station. Ex.A2 is the certified copy of charge sheet in C.C. No. 188/2019 on the file of VI AJCJ,

Court, Guntur. Ex.A3 is the certified copy of wound certificate dated 9 MVOP No.1142/2018 III A.D.J. Court 27.2.2018. Ex.A4 is the certified copy of M.V.I. report. Ex.A5 is the consolidated mark list, issued by JNTU, Kakinada for completing B. Tech in month July, 2022. Ex.A6 is the provisional certificate dated 12.9.2022 issued by JNTU, Kakinada.

11. 4th respondent has examined their Assistant Manager as RW1. He filed evidence affidavit stating that their company has issued commercial vehicle package policy in favour of 1st respondent for the lorry bearing No. AP 07 TJ 0679. The period of policy is from 28.6.2017 to 27.6.2018. There was no rash and negligence on the part of the driver of the lorry and accident was occurred purely due to the rash and negligent and fault of the rider of the

Motor cycle on which the petitioner was travelling as a pillion rider. Three persons were travelling on the Motor cycle at the time of accident and due to over loading, the rider of the motor cycle unable to control bike and caused the accident. The cleaner of the lorry who was not having driving license, driven the lorry at the time of accident and police filed charge sheet against the cleaner of the lorry. Police has also filed charge sheet under section 181 of Motor Vehicle Act. 1st respondent being owner of the lorry, intentionally and knowingly violated the terms and conditions of policy by allowing the person who has no valid and effective driving license to drive the lorry bearing No. AP 07 TJ 0679 by the time of accident. Ex.B1 is the attested copy of insurance policy.

12. 4th respondent also got summoned RTA authority for cause production of driving license of Choda Rama Rao/R3. RTO deputed M. Nageswara Rao to appear before the this court and he produced authorization letter dated 2.1.2024 which is marked as Ex.X2. Attested copy of driving licence particulars showing that DL was issued to 3rd respondent on 31.1.2011 10 MVOP No.1142/2018 III A.D.J. Court which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle. Ex.X3 is the attested copy of driving license particulars of Chowda

Rama Rao. He also brought the attested copy of Form-6 driving licence of above said person contains his photo image which is marked as Ex.X4. As per Ex.X3 the transport heavy vehicle license was issued to the driver on 24.10.2018 and he applied for license after the accident.

13.In this case respondents no.1 to 3 have taken plea that their lorry is not at all involved in the accident. According to 1st respondent, he entrusted his lorry bearing No.AP 077J 0679 to his driver /2nd respondent to proceed from J.P. Cements, Gamalapadu to JP cements, Vepagunta, and 2nd respondent is having valid and effective driving license no.400172004OD along with badge no.14620 which was valid upto 28.6.2023. Moreover, his lorry was not proceeded on the Guntur RTC bus stand to Auto Nagar road, at the time of accident, on the intervening night of alleged accident i.e.

13/14-1-2018 at about 1.10 a.m. Likewise 3rd respondent had also pleaded that 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta.

On 13.1.2018 by 11.00 p.m. itself 2nd respondent passed away the RTC bus stand to Padakakani road. Though they had pleaded in the above said manner to say that their lorry was not involved in the accident but no positive evidence is placed by them to support their contention. On the contrary Ex.A1-FIR and Ex.A2-charge sheet shows that the lorry is very much involved in the accident. The defence raised by 4th respondent insurance company is that as per charge sheet 3rd respondent being cleaner of the lorry drove it at the time of accident, and 2nd respondent was also not having driving license. As such, in view of infringement of terms and conditions of the Insurance policy, 4th respondent is not liable to pay compensation to the petitioners.

11 MVOP No.1142/2018 III A.D.J. Court

14. In this case a specific details are given by 1st respondent stating that he is the owner of the lorry bearing No. AP 077J 0679 and he had entrusted his lorry to his driver/2nd respondent who is possessing valid driving license no.400172004OD along with badge no.14620. Though 4th respondent has denied possession of valid driving license by 2nd respondent in their written statement but they had not taken any step to support their contention and to disprove the stand taken by respondents no.1 & 2 regarding possessing valid license by 2nd respondent. Whereas 4th respondent has examined their legal officer as RW1 and they also got summoned RTC authority calling them for cause production of license particulars of 3rd respondent. RW2 has submitted the registration extract of driving license particulars of 3rd respondent showing that on the date of accident 3rd respondent was possessing driving license issued on 31.1.2011 which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle.

15. According to 4th respondent, as per Ex.A2 charge sheet at the time of accident 3rd respondent was driving lorry. Except contents of charge sheet there is no evidence to support the said contention. Even the alleged confession statement of 3rd respondent said to be recorded by police is not filed into the Court. Moreover, it is not admissible in evidence. However, even if we consider for a moment, at the time of accident 3rd respondent drove the lorry, but he was possessing licence for driving for transport vehicles. So, in either case it shows that petitioner has placed sufficient oral and documentary evidence in proof of their contention that accident was occurred due to rash and negligent driving of the driver of the lorry bearing

No. AP 077J 0679 which is owned by 1st respondent. Thus, the available positive evidence proved the involvement of lorry owned by 1st respondent 12 MVOP No.1142/2018 III A.D.J. Court in the accident.

16. It is also pertinent to note that insurance company cannot take advantage of the situation mention in the FIR and charge sheet that 3rd respondent was driving lorry at the time of accident and cannot claim on that basis that there is a breach of terms and conditions of the insurance policy because no defence can be taken by Insurance company unless there is fault on the part of the insured because it was held by Hon’ble Supreme

Court that unless it will be proved that owner of the Truck had fault , the insurance company cannot be escaped from their liability. Moreover, Similar situation was dealt with by the Supreme Court in Skandia Insurance

Company Limited Vs. Kokilaben chandravadam and others 1 , and in

Kashiram Yadava Vs. Oriental Fire and General Insurance Company

2 . Wherein it was laid down as follows:

“ We affirm and reiterated the statement of liability laid down in the above case. We may also state that without knowledge of the

Insured, if by divers acts or omissions, others, meddle with vehicle and cause accident, insurer would be liable to be indemnify the insured. The insurer in such case cannot take advantage of breach of conditions in a certificate of insurance.”

17. So, in the present case in hand also as per charge sheet , 2nd respondent is the lorry driver to whom lorry was entrusted by 1st respondent and it is said that 2nd respondent handed over the lorry to 3rd respondent and while driving the lorry by 3rd respondent an accident was occurred. So, in such circumstances the insurance company cannot take defence of breach of terms and conditions of the insurance policy as there is no fault on the part of the 1st respondent. As such in that case 4th 1 AIR 1987 SC 1184 2 1987 ACJ 1078 SC 13 MVOP No.1142/2018 III A.D.J. Court respondent will liable to indemnify the 1st respondent/insured.

18. Regarding the rash and negligent act of the driver of the offending vehicle in a judgment of Hon’ble Supreme Court in KAUSHNUMMA

BEGUM AND ORS. VS. NEW INDIA ASSURANCE CO. LTD 3 .,held that “the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 and 140 of the Act.”

19. In BASANT KAUR AND ORS. VS. CHATTAR PAL SINGH & ORS 4 it was observed that “ Registration of criminal case against the driver of the offending vehicle was enough to record a finding that the owner of the offending vehicle was responsible for causing the accident.

20. Similarly, in NATIONAL INSURANCE CO. LTD. VS. PUSHPA

RANA 5, it was held that “In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. It is also settled law that the terms rashness and negligence has to be 3 2001ACJ421SC, 4 2003 ACJ 369 MP (DB) 5 2009 ACJ, 287 14 MVOP No.1142/2018 III A.D.J. Court construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code.

This is because the chapter in the Motor Vehicle Act dealing with compensation is benevolent legislation and not a penal one.”

21. In a judgment of the Supreme Court BIMLA DEVI AND ORS.

VS. HIMACHAL ROAD TRANSPORT CORPORATION AND ORS 6 ,

wherein it was held as under:

" In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

22. On considering all the facts and circumstances in the present case and the dictum laid down in the above cited judgments, it is established that respondent No.2 was driving the offending vehicle in a rash and negligent manner.

23. Issue No.1 is, thus, decided in favour of the petitioner and against the respondents.

ISSUE NO.2:

24. The case of the petitioner is that due to rash and neglect acts of the driver of the lorry bearing No. AP 077 TJ 0679, the petitioner sustained a fracture on the left leg bone (Femurer) at the thigh and also received injuries on his left elbow and received injuries on other parts of his body.

6(2009) 13 SC 530 15 MVOP No.1142/2018 III A.D.J. Court

25. Doctor P. Sriramchandra Murthy who treated the petitioner was summoned to give evidence in respect of treatment given to the petitioner and disability caused to him. He stated that two X-rays and case sheet confronted to him are related to their hospital which is marked as Ex.X1. He examined the petitioner and he is able to walk, fracture is completely united but there is terminal restriction of his hip and knee joint of left leg which may comes to 10% disability. The petitioner may or may not face difficulty to attain a job bending to the floor. During cross-examination he stated that there will be no difficulty to attend any clerical job.

26. In this case there is no dispute relating to the injury caused to the petitioner. Admittedly, the injury sustained by him is due to the accident occurred on 14.1.2018. Prior to the accident he was hale and healthy and he was studying Bachelor of Engineering and Technology, and petitioner was selected as Engineer in Ashok Leyland Company in Campus selection in

Kallam Haranadha Reddy Institution of Technology, Guntur and agreed to pay Rs.15,000/- per month towards training period of 3 months. But there is no documentary evidence to show that he is selected as Engineer in Ashok

Leyland Company. Even he did not examine any authorized person belongs to Ashok Leyland company. So, in the absence of any such convincing evidence placed by the petitioner and by considering the education qualification reflecting in Ex.A5 and Ex.A6 it shows that he was meritorious student having capacity to get job to his qualification and may not be able to get it due to injury caused to him in accident. So, in the given facts and circumstances and on reasonable hypothesis, monthly earnings of the petitioner can be determined as Rs.9,000/- per month.

16 MVOP No.1142/2018 III A.D.J. Court

27. The petitioner claiming of Rs.1,00,000/- towards medicines and other expenses. Petitioner stated that after the accident he was admitted in St.

Joseph’s General Hospital, Guntur where he was treated as inpatient for 10 days under N.T.R. Vaidya Seva Scheme on free of costs, in spite of that it is known fact that even if treatment is taken on free of costs, there will be some other necessity to spent money for medicines and special diet as he received fracture injury to his leg. Similarly, he might have met with conveyance charges for travelling from his house to hospital. Though there is no documentary evidence on record with regard to money spent by the petitioner toward medicines, special diet and conveyance. However, on considering nature of the injury and treatment undergone by him, the petitioner is found entitled for total amount of Rs.15,000/- towards medical expenses, extra nourishment and convenience.

28. The petitioner claimed of Rs. 2,00,000/- under the head of permanent disability and loss of earning capacity stating prior to the accident he was studying Bachelor of Engineering and Technology, and he was selected as

Engineer in Ashok Leyland Company in Campus selection in Kallam

Haranadha Reddy Institution of Technology, Guntur and granted to pay

Rs.15,000/- per month towards training period of 3 months. There is no dispute that petitioner is an educated person and completed Bechalor of

Engineering from Jawaharlal Nehru Technological University, Kakinada. The petitioner has filed Ex.A4- consolidated marks memo in proof of his education and it was also reflecting that he is a brilliant student, having every opportunity to get job in future. But due to the disability caused to him in the accident dated 14.1.2018. He further stated that disability of 10% caused to his left leg (Femurer) at the thigh and also received injuries all over the body which was treated in St. Joseph’s Hospital, Guntur and the 17 MVOP No.1142/2018 III A.D.J. Court doctor who treated him is also examined as PW2. Wherein PW2 has stated petitioner is able to walk, and fracture is completely united but there is terminal restriction of his hip and knee joint of left leg which may comes to 10% disability. The petitioner may or may not face difficulty to attain a job bending to the floor. There is no difficulty for him to attend any clerical job.

So, injury caused to him shows that he may not get opportunities to attain a job bending to the floor, for which he is eligible basing on his education. So, in such circumstances, it shows that petitioner has suffered with disability to enjoy his life by doing job at par with his education which can be considered

as 10% disability.

29. For calculating his future income basing on the notional income, multiplier method can be adopted as prescribed by the Hon’ble Apex Court in the judgment between Sarla Verma and others Vs. Delhi Transport

Corporation and Another on 15 th April, 2009.

30. In this case the petitioner has stated that as on the date of accident he was aged about 21 years. Though the respondent has denied the age of petitioner, but no evidence is placed by the respondent by challenging the age of the petitioner nor they elicited out anything during the cross examination of petitioner. It is the version of petitioner that he was 21 years old, as on the date of accident. In all the crime records and medical records i.e., in Ex.A.2 & Ex.A.3, age of the deceased is mentioned as 21 years. As such the age of the petitioner can be considered as 21 years as on the date of accident. After perusal of entire record placed by petitioner and on considering evidence of PW1 and PW2, the permanent disability can be assessed as 10% of whole body of the petitioner for calculation of compensation. Hence, the compensation to which the petitioner is entitled 18 MVOP No.1142/2018 III A.D.J. Court under the head of loss of earnings is to be determined by the multiplier method and as per evidence of petitioner, he was aged about 21 years as on the date of accident. The proper multiplier is fixed as “18”, monthly income is determined as Rs.9,000/- per month. The functional disability is assessed by the tribunal as 10% on the basis of evidence. Thus the calculation of compensation will be as follows :

a) The annual income prior to the accident: Rs. 1,08,000/-

b) Loss of future earning per annum (10% of the prior annual income) : Rs. 10,800/-

c) Multiplier applicable to age : 18

d) Loss of future earning : (10,800 x 18) : Rs.1,94,400/-

31. Regarding loss of past earnings, in the present case admittedly there was no income to the petitioner as on the date of accident as he had been studying B. Tech course in Jawaharlal Nehru Technological University,

Kakinada. As such, there no loss of past earnings.

32. Total compensation is awarded under heads as follows:

Medical expenses, Extra Rs.15,000-00 nourishment and conveyance

Loss of earnings (future) Rs.1,94,400 -00

Total Rs.2,09,400-00

33. So far as the liability of the respondents is concerned, finding that 1st respondent is owner of the lorry bearing No. No. AP 077 TJ 0679, responsible for accident caused by 2nd respondent/driver and 4th respondent is the insurer. So, Respondents No.1 to 4 are jointly and severally liable to 19 MVOP No.1142/2018 III A.D.J. Court pay compensation to the petitioner. In view of the contractual obligation under insurance policy, 4th respondent is liable to pay compensation amount. Hence, this issue is answered accordingly.

34. In the given facts and circumstances, the petitioner is not entitled any other compensation amount. Hence, the rest of the claim is disallowed.

ISSUE No.3:

35. In the result, the petition is allowed in part with proportionate costs by awarding compensation of Rs.2,09,400-00 to the petitioner with interest at the rate of 7.5% p.a. from the date of petition i.e. 23.10.2018 till the date of payment or realization. Respondents No.1 to 4 are jointly and severally liable to pay compensation to the petitioner. In view of the contractual obligation under insurance policy, 4th respondent is liable to pay compensation amount.

ii) Respondent no.4 is directed to deposit the compensation amount within one month from today.

iii) The petitioner is permitted to withdraw the total amount with accrued interest and costs.

iv) The Advocate fee is fixed Rs.3,000/-

v) The rest of the claim of the petitioner is dismissed without costs.

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

pronounced by me in the open Court, this the 3rd day of April, 2024.

Sd/-G.Archana

CHAIRMAN, MACT–cum–

III ADDL. DISTRICT JUDGE

GUNTUR 20 MVOP No.1142/2018 III A.D.J. Court

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

PW1 : R. Anand Baji Baba RW1: G. Gopinath PW2 : Dr. P. Sriramachandra Murthy RW2:M. Nageswara Rao

DOCUMENTS MARKED

For Petitioner:

Ex.A1 : Certified copy of FIR in Crime No.142/2018 of Pedakakani Police station. Ex.A2 : Certified copy of charge sheet in C.C. No. 188/2019 on the file of VI AJCJ, Court, Guntur. Ex.A3 : Certified copy of wound certificate dated 27.2.2018 Ex.A4 : Certified copy of M.V.I. report Ex.A5 : Consolidated Marks list issued by JNTU, Kakinada for completing B. Tech in the month of July, 2022 Ex.A6 : Provisional certificate dated 12.9.2022 issued by JNTU, Kakinada.

For Respondents:

Ex.B1 : Attested copy of Insurance policy

Ex.X1 : Case sheet and X-Rays(2) of St. Joseph’s Hospital, Guntur

Ex.X2 : Authorization letter dated 2.1.2024

Ex.X3 : Attested copy of driving licence particulars Choda Rama Rao Ex.X4 : (photo image) attested copy of Form No.6

Sd/-G.Archana

CHAIRMAN, MACT–cum–

III ADJ, GUNTUR.

1 MVOP No.1144/2018 III A.D.J. Court

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

III ADDL. DISTRICT JUDGE, GUNTUR

PRESENT: SMT. G. ARCHANA,

CHAIRMAN

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

III ADDL. DISTRICT JUDGE

Wednesday, the 3 rd day of April, 2024

M.V.O.P.No.1144/2018

Between:

1.Veeramallu Srinivasa Rao S/o. Samba Sia Rao, aged about 51 years, Ramanama Kshetram, 3rd line, Sampath Nagar, Guntur.

2.Veeramallu Adilakshmi W/o. Samba Siva Rao, aged about 44 years, Ramanama Kshetram, 3rd line, Sampath Nagar, Guntur.

... Petitioners

-And-

1. Bandla Nageswara Rao S/o. Bandla Hanumaiah, Door No.7-246, Ganga Mahal Road, Nimmathota Bazar, Piduguralla. (Owner of the vehicle APO7TJ 0679)

2. Seela Nagendra Babu 10-592 Railway station road, Nadikudi post, Dachepalli Mandal, Guntur.(Driver of the vehicle)

3. Chowdari Rama Rao S/o. Venkateswara Rao, Rentachintala village and Mandal, Guntur.

4. New India Assurance Co., Ltd., Sukuru Complex, Door no.12-11-32, R.R.Appa Rao street, Vijayawada.

... Respondents

This petition came up on 6.3.2024 before me for hearing in the presence of Sri G. Mallikarjuna Rao, advocate for petitioner; Sri. N. Srinivasa

Rao, advocate for 1st respondent and Sri. A. Anjaneya Prasad, Advocate for 2nd respondent and Sri. O. Lakshmi Naga Raja, Advocate for respondent no.3 and Sri. G. Srinivasulu, advocate for 4th respondent and upon perusing the material available on record, this court made the following:

O R D E R

This is a petition filed by petitioner under Sec.166 of Motor Vehicle Act and 455 & 476 of Andhra Pradesh Motor Vehicle Rules against respondents claiming compensation of Rs.15,25,000/- with subsequent interest and 2 MVOP No.1144/2018 III A.D.J. Court costs.

2. The brief averments of the petition are as follows:

The petitioners are parents of the deceased and are dependants on the deceased only.

On 13.1.2018 night the deceased Veeramallu Manoj Kumar and his brother Veeramallu Sai Ganesh along with one Rekapalli Anand Baji Baba

S/o. Murali Krishna went to Budampadu village, to attend a birth day function of their friend on Bike bearing No. AP 07 C Z 2659. After completion of the function they all returned to Guntur by triple riding, driven by

Veeramallu Manoj Kumar and while they were proceeded to Pedakakani side from Guntur side for petrol, and while they reached Vasavi Nagar at 1.10 a.m. on 14.1.2018, an unknown lorry driven by unknown driver, came with high speed without blowing horn with rash and negligent manner from

Guntur side to Pedakakani, dashed the bike on its back, all of them fell down, the lorry tires crushed the head of Veeravallu Manoj Kumar and he died on the spot due to head injury, his elder brother Veeramallu Sai

Ganesh received fracture injury on his left shoulder and Anand Baji Baba received grievous injuries on his left thigh, left hand and all over his body.

After the accident, the lorry again hit a person who is going on the road by walk to Mourya Bar and Restaurant, and he died on the spot due to lorry ran over him. They were shifted to Government General Hospital, Guntur for treatment and S.I. of Police Pedakakani, recorded the statement from Baji

Baba and registered the same as a case in crime No.140/2018 for the offence under sections 304-A and 337 of Indian Penal Code. The S.I. of police Pedakakani arrested respondent’s no.2 and 3 and they were remanded to judicial custody. 2nd respondent is the driver of the lorry, 3rd respondent is the cleaner of the lorry who drove the lorry as per the version 3 MVOP No.1144/2018 III A.D.J. Court of the police at the time of accident.

As on the date of accident the deceased was hale and healthy, and he was doing job and earning Rs.15,000/- per month. He is only bread winner of the entire family and petitioners are depending upon his earnings only, and are not having any earning capacity and there is no other income to them. Due to accident petitioners sustained heavy loss and indebted to others and he is not able to move freely and is in need of assistance. Thus, they are claiming Rs.15,25,000/- towards damages and loss of dependency.

They approached the respondents and demanded for payment of compensation but they did not choose to pay the amount.

1st respondent is the owner of the lorry bearing No. AP 077 TJ 0679, 2nd respondent is the driver and 3rd respondent is cleaner of the lorry who drive the vehicle at the time of the accident. The 4th respondent is insurer of the offending vehicle. As such all the respondents are vicariously liable for the negligent act of the respondent no.2 and 3 and are liable to pay compensation to the petitioner. In spite of several requests made by the petitioner, no compensation was paid by respondents. Hence, the petition.

3. After registering of the present petition, notice was served on respondents. Respondents no.1 to 3 filed separate written statements but the contents of their written statements are one and the same. 4th respondent filed separate written statement.

4. The Brief averments of Written statement of the respondents no.1 to 3 are as follows :

Respondents no.1 to 3 denied all the material allegation made in the petition and submitted that 1st respondent is the owner of the lorry bearing 4 MVOP No.1144/2018 III A.D.J. Court

No. AP 07 TJ 0679, and the alleged accident was never occurred due to hit of 1st respondent’s lorry to the motor cycle which was driven by Veeramallu

Manoj Kumar. In fact on the date of alleged accident, ie. on the intervening night of 13/14 -1-2018 at about 1.10 a.m. the lorry bearing No. AP 07 T 0679 was not proceeded on the Guntur RTC bus stand to Auto Nagar road.

As per FIR, the defacto complainant is pillion rider on the motor cycle bearing No. AP 07 CZ 2659 have stated that they have attended a birthday party. In the postmortem report of Veeramallu Manoj Kumar it was clearly established that he took alcohol before driving the motor cycle. The deceased Manoj Kumar drives the Motor cycle under the influence of Alcohol and did not possess any valid license. As such it can be safely presumed that the persons on the motor cycle including driver of the motor cycle were under the influence of Alcohol and unable to balance the vehicle as this petitioner and another rider also sat on it and caused the accident. The triple riding on the Motor cycle is not at all permissible and it is against the rules under M.V. Act. Drunk and driving is also an offence under law.

As per averments in the petition, by the time the deceased reached

RTC bus stand there was no fuel in the motor bike and for refilling the motor bike, there is no necessity for the deceased and other two pillion riders to go all the way to auto Nagar. There are more than 10 petrol bunks in between the RTC bus stand and Auto Nagar which were kept opened and working round the clock. Further the deceased and two other pillion rider are the resident of R-Agraharam and Sampath Nagar which are situated in opposite direction to the RTC bus stand to Auto Nagar road and there are 4 petrol bunks in between RTC bus stand to R-Agraharam and Sampath Nagar which also runs round the clock. The contention of the SHO Peda Kakani is that the 5 MVOP No.1144/2018 III A.D.J. Court cleaner of the lorry confessed to the police after long lapse of nearly 10 days that he himself caused the accident is absolutely unbelievable. As they could not able to trace out the vehicle which caused the accident, they intentionally planted the lorry of 1st respondent with a malicious and dishonest intention to help the petitioner and others to get compensation wrongfully. The defacto complainant and petitioners cooked up a false story with the help of police for the death of deceased and falsely implicated the respondent no.2 and 3 in the criminal case for the purpose of filing this false claim. The above facts themselves proves that the lorry of 1st respondent was falsely implanted and brought into existence to somehow get petitioners and others unlawfully at the costs of the 1st respondent and his insurer.

Since the owner and insurer of the motor cycle bearing No. AP 07 CZ 2659 in which deceased and two other persons proceeding was not made a party to this claim. Hence, this petition is was bad for non-joinder of necessary party. The lorry of this respondent never involved in the alleged accident on 14.1.2018 at 1.10 a.m. as such 1st respondent is not all liable to pay any compensation to the petitioners. The lorry was duly insured with 4th respondent vide policy no.62140031170100004424 valid from 26.5.2017 to 27.6.2018. The said policy was in force as on the date of alleged accident.

1st respondent entrusted the lorry to 2nd respondent to proceed from J. P.

Cements Gamalapadu to JP cements Vepagunta, and 2nd respondent has possessed a valid and effective driving license No.400172004OD along with badge no.14620 which was valid upto 28.6.2023. The 1st respondent never entrusted the lorry to 3rd respondent and 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta. On 13.1.2018 by 11-00 p.m itself the 2nd respondent passed away the RTC bus stand to Pedakakani road. As there is no violation of the policy terms and conditions by 1st respondent, he 6 MVOP No.1144/2018 III A.D.J. Court is not at all liable to pay any compensation to the petitioners. If the Court finds that cleaner of the lorry drove the lorry at the time of accident then also no liability rests on him since the lorry was entrusted to 2nd respondent who possessed valid and effective driving license at the time of accident. If the Court intends to pass any award, it may be passed against 4th respondent only as there is valid insurance policy issued by 4th respondent company.

It is further submitted that they denied the age, occupation of the deceased at the time of accident. The salary certificate filed by the petitioners is not genuine one and it is a concocted one. All the legal heirs of deceased were not brought on record and hence this petition was liable to be dismissed. The compensation claimed by the petitioner is highly excessive and exorbitant. The petitioner never made any demand for any compensation against this respondent either in writing or oral as mentioned in the petition. As such petitioner is not entitled any interest from the date of accident till the date of realization. Hence, the petition is liable to be dismissed with costs.

5. The Brief averments of Written statement of the 4 th respondent are as follows :

This respondent denied the entire material allegation made in the petition. It is submitted that they does not admit factum and manner of the alleged accident and the petitioners are put to strict proof of the same. They denied the age, avocation, income, injuries of the deceased as alleged by the petitioner. The petitioners never made any demand for any compensation against this respondent either in writing or orally as mentioned in the application and as such the petitioner are not entitled to 7 MVOP No.1144/2018 III A.D.J. Court any costs and interest from the date of accident till the date of realization.

There was no rash and negligence on the part of the driver of the lorry bearing No. AP 07 TJ 0679 at the time of accident. Hence, they are not liable to pay any compensation to the petitioners. The driver of the lorry in question have no valid and effective driving licence to drive the vehicle and the alleged vehicle has no valid Registration Certificate at the time of the accident which is an infringement of specified conditions of the insurance policy. Therefore they are not liable to pay any compensation. The owner of the lorry intentionally and knowingly violated the terms and conditions of the policy and provisions of M.V. Act by allowing a person who has no driving license to drive the lorry at the time of accident. Unless and until it is proved that the vehicle alleged to be involved in the accident is insured with this respondent company at the time of accident, this respondent company is not liable to pay any compensation to the petitioner. Police failed to comply with section 158(6) of Motor Vehicle Act. As per section 134 (c ) of Motor

Vehicle Act 1988, it is mandatory duty of the insured/1st respondent to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving license but 1st respondent has not complied with statutory demand.

There was no rash and negligence on the part of the driver of the lorry and the accident if any occurred only due to the rash and negligent and fault of the rider of the motor bike. Hence, 4th respondent company is not liable to pay any compensation to the petitioner. The deceased was hit by one unknown lorry but not the lorry bearing No. AP 07 TJ 0679, the petitioners in collusion with police and the 1st respondent, foisted a false case against the driver of the lorry bearing No. AP 07 TJ 0679 for unlawful 8 MVOP No.1144/2018 III A.D.J. Court gain. At the time of accident, three persons were travelling on the motor cycle bearing no. AP 07 CZ 2659 against the seating capacity of 2 and as such the rider of the motor cycle unable to control the motor cycle and caused the accident. The deceased has no valid and effective driving license to drive the motor cycle and he has no skill to ride the motor cycle. As such he was unable to control and caused the accident. The deceased has not wore the helmet at the time of accident, as such he was contributed in causing the death. Petitioners did not file any proof as they are the only legal heirs of the deceased. Petitioners are not the dependants on the earnings of the deceased. They denied the age, avocation and income of the deceased, and they also denied involvement of the lorry in the alleged accident. The liability if any of this respondent arises only if there is a valid insurance and if the driver holds a valid driving license at the time of the alleged accident and if the conditions of the policy has not been violated or negligence proved. The liability if any of this respondent is only subject to the terms and conditions of the policy if any issued to the 1st respondent.

This respondent seeks protection under section 170 of the M.V. Act to defend the proceedings if any 1st respondent colluded with the petitioner and remains exparte. The claim of the petitioners is highly excessive and exorbitant. As such the interest may be awarded at 6% per annum that too from the date of award. Hence, the present petition is liable to be dismissed.

7. Basing on the above pleadings, my learned predecessor in office had framed the following issues for trial:

1. Whether Veeramallu Manoj Kumar died in the road accident occurred on 14.1.2018 at about 1.10 a.m. near Vasavi Nagra, Pedakakani, Guntur District due to rash and negligent driving of driver of the Lorry bearing No. AP 07 TJ 0679?

9 MVOP No.1144/2018 III A.D.J. Court

2. Whether the petitioner is entitled to compensation, if so, to what amount, and against whom?

3. To what relief?

8. During trial, the petitioner got examined PWs1 to PW3 and marked documentary evidence as Exs.A1 to Ex.A7 and Ex.X1 & Ex.X2. Whereas respondent No.4 examined RW1 & RW2 and got marked Ex.B1.

9. Heard both side arguments. Perused the entire material on record.

ISSUE NO.1 :

10. In a claim petition filed under sections 166 of the M.V. Act, onus is on the claimant/petitioners to prove that the deceased died in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.

11. In proof of case of the petitioners, 1st petitioner examined himself as

PW1 and he has filed his evidence affidavit by reiterating the contents of the petition. He got marked documentary evidence of Ex.A1 to A7. Ex.A1 is the

Certified copy of FIR in Crime No.142/2018 of Pedakakani Police station.

Ex.A2 is the certified copy of inquest report of Manoj Kumar Ex.A3 is the inquest report of Sk. Irfan. Ex.A4 is the Certified copy of Postmortem report of Manoj Kumar. Ex.A5 is certified copy of charge sheet in C.C. No.

188/2019 on the file of VI AJCJ, Court, Guntur. Ex.A6 is the certified copy of

M.V.I. report. Ex.A7 is the Salary Certificate.

12. The petitioners have also got examined one of the injured who received injuries in the accident by name Rekapalli Anad Baji Baba as PW2.

PW2 has filed his evidence affidavit stating that he knows petitioners, and deceased had been working as technician cum sales man in New mobiles-9 , 10 MVOP No.1144/2018 III A.D.J. Court

Leela Mahal road, Guntur and earning Rs.15,000/- per month. Petitioners are the parents of the deceased and purely dependants on the deceased. He also stated about the occurrence of the accident, death of the deceased and injuries caused to him along with Veeramallu Sai Ganesh.

13. The petitioners also got examined proprietor of New Mobile, Tin

No.378 30968593, beside Ganesh Mahal, Kothapet, Guntur by name

Mannem Suresh as PW3. PW3 stated that the deceased died in motor vehicle accident occurred on 13.1.2018 and as on the date of accident, deceased was working in his mobile shop as sales man and technician and drawing salary of Rs.15,000/- per month. He issued salary certificate.

14. 4th respondent has examined their Assistant Manager as RW1. He filed evidence affidavit stating that their company has issued commercial vehicle package policy in favour of 1st respondent for the lorry bearing No.

AP 07 TJ 0679. The period of policy is from 28.6.2017 to 27.6.2018. There was no rash and negligence on the part of the driver of the lorry and accident was occurred purely due to the rash and negligent and fault of the rider of the Motor cycle on which the petitioner was travelling as a pillion rider. Three persons were travelling on the Motor cycle at the time of accident and due to over loading, the rider of the motor cycle unable to control bike and caused the accident. The cleaner of the lorry who was not having driving license, driven the lorry at the time of accident and police filed charge sheet against the cleaner of the lorry. Police has also filed charge sheet under section 181 of Motor Vehicle Act. 1st respondent being owner of the lorry, intentionally and knowingly violated the terms and conditions of policy by allowing the person who has no valid and effective 11 MVOP No.1144/2018 III A.D.J. Court driving license to drive the lorry bearing No. AP 07 TJ 0679 by the time of accident. Ex.B1 is the attested copy of insurance policy.

15. 4th respondent also got summoned RTA authority for cause production of driving license of Choda Rama Rao/R3. RTO deputed M. Nageswara Rao to appear before the this court and he produced authorization letter dated 2.1.2024 which is marked as Ex.X1. Attested copy of driving licence particulars showing that DL was issued to 3rd respondent on 31.1.2011 which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle. Ex.X2 is the attested copy of driving licence particulars of Chowdam

Rama Rao. As per Ex.X2 the transport heavy vehicle license was issued to the driver on 24.10.2018 and he applied for license after the accident.

16.In this case respondents no.1 to 3 have taken plea that their lorry is not at all involved in the accident. According to 1st respondent, he entrusted his lorry bearing No.AP 077J 0679 to his driver /2nd respondent to proceed from J.P. Cements, Gamalapadu to JP cements, Vepagunta, and 2nd respondent is having valid and effective driving license no.400172004OD along with badge no.14620 which was valid upto 28.6.2023. Moreover, his lorry was not proceeded on the Guntur RTC bus stand to Auto Nagar road, at the time of accident, on the intervening night of alleged accident i.e.

13/14-1-2018 at about 1.10 a.m. Likewise 3rd respondent had also pleaded that 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta.

On 13.1.2018 by 11.00 p.m. itself 2nd respondent passed away the RTC bus stand to Padakakani road. Though they had pleaded in the above said manner to say that their lorry was not involved in the accident but no positive evidence is placed by them to support their contention. On the 12 MVOP No.1144/2018 III A.D.J. Court contrary Ex.A1-FIR and Ex.A2-charge sheet shows that the lorry is very much involved in the accident. The defence raised by 4th respondent insurance company is that as per charge sheet 3rd respondent being cleaner of the lorry drove it at the time of accident, and 2nd respondent was also not having driving license. As such, in view of infringement of terms and conditions of the Insurance policy, 4th respondent is not liable to pay compensation to the petitioners.

17. In this case a specific details are given by 1st respondent stating that he is the owner of the lorry bearing No. AP 077J 0679 and he had entrusted his lorry to his driver/2nd respondent who is possessing valid driving license no.400172004OD along with badge no.14620. Though 4th respondent has denied possession of valid driving license by 2nd respondent in their written statement but they had not taken any step to support their contention and to disprove the stand taken by respondents no.1 & 2 regarding possessing valid license by 2nd respondent. Whereas 4th respondent has examined their legal officer as RW1 and they also got summoned RTC authority calling them for cause production of license particulars of 3rd respondent. RW2 has submitted the registration extract of driving license particulars of 3rd respondent showing that on the date of accident 3rd respondent was possessing driving license issued on 31.1.2011 which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle.

18. According to 4th respondent, as per Ex.A2 charge sheet at the time of accident 3rd respondent was driving lorry. Except contents of charge sheet there is no evidence to support the said contention. Even the alleged confession statement of 3rd respondent said to be recorded by police is not 13 MVOP No.1144/2018 III A.D.J. Court filed into the Court. Moreover, it is not admissible in evidence. However, even if we consider for a moment, at the time of accident 3rd respondent drove the lorry, but he was possessing licence for driving for transport vehicles. So, in either case it shows that petitioner has placed sufficient oral and documentary evidence in proof of their contention that accident was occurred due to rash and negligent driving of the driver of the lorry bearing

No. AP 077J 0679 which is owned by 1st respondent. Thus, the available positive evidence proved the involvement of lorry owned by 1st respondent in the accident.

19. It is also pertinent to note that insurance company cannot take advantage of the situation mention in the FIR and charge sheet that 3rd respondent was driving lorry at the time of accident and cannot claim on that basis that there is a breach of terms and conditions of the insurance policy because no defence can be taken by Insurance company unless there is fault on the part of the insured because it was held by Hon’ble Supreme

Court that unless it will be proved that owner of the Truck had fault , the insurance company cannot be escaped from their liability. Moreover, Similar situation was dealt with by the Supreme Court in Skandia Insurance

Company Limited Vs. Kokilaben chandravadam and others 1 , and in

Kashiram Yadava Vs. Oriental Fire and General Insurance Company

2 . Wherein it was laid down as follows:

“ We affirm and reiterated the statement of liability laid down in the above case. We may also state that without knowledge of the

Insured, if by divers acts or omissions, others, meddle with vehicle and cause accident, insurer would be liable to be indemnify the insured. The insurer in such case cannot take 1 AIR 1987 SC 1184 2 1987 ACJ 1078 SC 14 MVOP No.1144/2018 III A.D.J. Court advantage of breach of conditions in a certificate of insurance.”

20. So, in the present case in hand also as per charge sheet , 2nd respondent is the lorry driver to whom lorry was entrusted by 1st respondent and it is said that 2nd respondent handed over the lorry to 3rd respondent and while driving the lorry by 3rd respondent an accident was occurred. So, in such circumstances the insurance company cannot take defence of breach of terms and conditions of the insurance policy as there is no fault on the part of the 1st respondent. As such in that case 4th respondent will liable to indemnify the 1st respondent/insured.

21. Regarding the rash and negligent act of the driver of the offending vehicle in a judgment of Hon’ble Supreme Court in KAUSHNUMMA

BEGUM AND ORS. VS. NEW INDIA ASSURANCE CO. LTD 3 .,held that “the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 and 140 of the Act.”

22. In BASANT KAUR AND ORS. VS. CHATTAR PAL SINGH & ORS 4 it was observed that “ Registration of criminal case against the driver of the offending vehicle was enough to record a finding that the owner of the offending vehicle was responsible for causing the accident.

32001ACJ421SC, 42003 ACJ 369 MP (DB) 15 MVOP No.1144/2018 III A.D.J. Court

23. Similarly, in NATIONAL INSURANCE CO. LTD. VS. PUSHPA

RANA 5, it was held that “In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. It is also settled law that the terms rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code.

This is because the chapter in the Motor Vehicle Act dealing with compensation is benevolent legislation and not a penal one.”

24. In a judgment of the Supreme Court BIMLA DEVI AND ORS.

VS. HIMACHAL ROAD TRANSPORT CORPORATION AND ORS 6 ,

wherein it was held as under:

" In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

25. On considering all the facts and circumstances in the present case and the dictum laid down in the above cited judgments, it is established that respondent No.2 was driving the offending vehicle in a 52009 ACJ, 287 6(2009) 13 SC 530 16 MVOP No.1144/2018 III A.D.J. Court rash and negligent manner.

26. Issue No.1 is, thus, decided in favour of the petitioners and against the respondents.

ISSUE NO.2:

27. In case of deaths, the proper method of computation is the multiplier method. Any departure , except in exceptional and extraordinary cases, would introduce inconsistency of principle , lack of uniformity and an element of unpredictability for the assessment of compensation. Basically only three facts needs to be established by the claimants for assessing compensation in case of death

a)Age of the deceased

b)Income of the deceased

c)The number of the dependence

The income of the deceased should be determined and out of the said income personal and living expenses of the deceased to be deducted. The balance is to be considered his contribution to the dependant family, which constitutes multiplicand. The multiplier should be chosen from the table with reference to the age of the deceased. The funeral expenses, cost of transportation, costs of medical treatment before death can be awarded.

28. It is the specific case of the petitioner that on the date of accident the deceased was 20 years old. The petitioner did not choose to file any personal document of the deceased such as driving license or aadhar card etc. to support their contention and in proof of the age of the deceased as on the date of accident. However, Ex.A2, A4 & A5 contains the age of the 17 MVOP No.1144/2018 III A.D.J. Court deceased as 20 years. As such the above said documents can be considered to fix the age of the deceased as on the date of the accident is 20 years.

Though the respondents denied the age of the deceased but except denial no contrary evidence is placed by them by challenging the age of the deceased. Hence, the age of the deceased is considered as 20 years as on the date of the accident.

29. The case of the petitioners is that as on the date of accident, deceased was working in mobile shop as sales man and technician and drawing salary of Rs.15,000/- per month. Though petitioners has filed salary certificate showing deceased getting an amount of Rs.15,000/- per month towards his salary. Petitioner examined proprietor of said shop as PW3.

During cross-examination he admitted that he did not paid any P.F. to labour office for the deceased, and he has no documentary evidence i.e.

registers to prove that deceased was working in his shop and he was paying

Rs.15,000/- per month. So in the given facts and circumstances and on reasonable hypothesis, monthly earnings of the deceased can be determined as Rs.7000/- per month.

30. Admittedly the deceased in this case was bachelor and the claimants are the parents. Thus, while calculating the income of the deceased for considering the compensation to be awarded, in case of bachelor, the personal expenses need to be deducted from his total income before calculating the compensation. On this aspect I am guided by the judgment held in Sarla Verma and Others Vs. Delhi Transport Corporation and another7 in which it was held that 7 AIR 2009 SC 3104 18 MVOP No.1144/2018 III A.D.J. Court “Where the deceased was bachelor and the claimants are the parents, the deductions follows a different principles. In regard to the bachelor, normally, 50% is deducted as personal and living expenses, because it is assumed that the bachelor would tend to spend more on him.”

Thus, for calculating income of the deceased, the monthly income is determined as Rs.7000/- per month. As the deceased being bachelor 50% of his income has to be deducted towards his personal expenses which comes to Rs.3,500/-.

31. Regarding the calculation of future prospects I am guided by the judgment of National Insurance company and others Vs. Pranay Sethi and others, 8and batch by a larger Bench of Hon’ble supreme Court, has recorded conclusions as follows:

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

32. In the instant case also, as the monthly income along with future prospects of deceased come to Rs.6300/- (Rs.7000/- on 50% =Rs.3500/- + 40% = Rs.6300/-), the annual income of the deceased comes to Rs.75,600/- (Rs.6300/- x 12).

33.As per Sarala Varma's case, The multiplier applicable to this case is “18”, as the deceased was aged about 20 years by the time of 82017 ACJ 2700 (SC) 19 MVOP No.1144/2018 III A.D.J. Court accident. Therefore, under the head of loss of dependency, the petitioners are entitled to get Rs.75,600 x 18 = Rs.13,60,800/-.

34. In this case also, the petitioners are entitled to get

Rs.15,000/- towards loss of estate, and the petitioners are entitled to get Rs.40,000/- towards consortium and the petitioners are entitled to get Rs.15,000/- towards funeral expenses. In total 70,000/-

35. Therefore, the petitioners are entitled to claim total compensation of Rs.13,60,800/- + Rs.70,000/- = Rs.14,30,800/-.

Though the petitioners claimed compensation of Rs.15,25,000/-, they are entitled to get compensation amount of Rs.14,30,800/-.

36. So far as the liability of the respondents is concerned, finding that 1st respondent is owner of the lorry bearing No. No. AP 077 TJ 0679, responsible for accident caused by 2nd respondent/driver and 4th respondent is the insurer. So, Respondents No.1 to 4 are jointly and severally liable to pay compensation to the petitioner. In view of the contractual obligation under insurance policy, 4th respondent is liable to pay compensation amount. Hence, this issue is answered accordingly.

37. ISSUE NO.3:

IN THE RESULT, the petition is partly allowed awarding compensation of Rs.14,30,800/- along with proportionate costs and interest thereon at the rate of 7.5% per annum from the date of petition i.e. 23.10.2018 till the date of payment or realization. The respondents no.1 to 4 are jointly and 20 MVOP No.1144/2018 III A.D.J. Court severally liable to pay the compensation amount.

ii) In view of of the obligation under insurance policy between the 1st respondent and 4th respondent, Respondent no. 4 is directed to deposit the said compensation amount with interest and costs within one month from this day.

iii) On deposit the said compensation amount, 1st petitioner is awarded Rs.6,00,000/- along with proportionate interest and costs and he is permitted to withdraw the said amount immediately.

iv) The 2ndpetitioner is awarded Rs.8,30,800/- along with proportionate interest and costs thereon and she is permitted to withdraw the said amount immediately.

v) The rest of the claim is dismissed without costs.

vi) The advocate fee is fixed of Rs.3000/-

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

pronounced by me in the open Court, this the 3rd day of April, 2024.

Sd/-G.Archana

CHAIRMAN, MACT–cum–

III ADDL. DISTRICT JUDGE

GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

PW1 : V. Srinivasa Rao RW1: G. Gopinath PW2 : R. Anand Baji Baba RW2:M. Nageswara Rao PW3 : M. Suresh

DOCUMENTS MARKED

For Petitioner:

Ex.A1 : Certified copy of FIR in Crime No.142/2018 of Pedakakani Police station Ex.A2 : Certified copy of inquest report of Manoj Kumar Ex.A3 : Inquest report of Sk. Irfan. Ex.A4 : Certified copy of Postmortem report of Manoj Kumar 21 MVOP No.1144/2018 III A.D.J. Court

Ex.A5 : Certified copy of charge sheet in C.C. No. 188/2019 on the file of VI AJCJ, Court, Guntur

Ex.A6 : Certified copy of M.V.I. report.

Ex.A7 : Salary Certificate.

For Respondents:

Ex.B1 : Attested copy of Insurance policy

Ex.X1 : Authorization letter dated 2.1.2024

Ex.X2 : Attested copy of driving licence particulars Ch. Rama Rao

Sd/-G.Archna

CHAIRMAN, MACT–cum–

III ADJ, GUNTUR.

1 MVOP No.1143/2018 III A.D.J. Court

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

III ADDL. DISTRICT JUDGE, GUNTUR

PRESENT: SMT. G. ARCHANA,

CHAIRMAN

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

III ADDL. DISTRICT JUDGE

Wednesday, the 3rd day of April, 2024

M.V.O.P.No.1143/2018

Between:

Veeramallu Sai Ganesh S/o. Srinivasa Rao , aged about years, D.No.25-7-30, 3rd lane, New Ramanamasktetram, Guntur.

... Petitioner

-And-

1. Bandla Nageswara Rao S/o. Bandla Hanumaiah, Door No.7-246, Ganga Mahal Road, Nimmathota Bazar, Piduguralla. (Owner of the vehicle bearing No.APO7TJ 0679)

2. Seela Nagendra Babu 10-592 Railway station road, Nadikudi post, Dachepalli Mandal, Guntur. (Driver of the vehicle bearing No.APO7TJ 0679)

3. Cowdari Rama Rao S/o. Venkateswara Rao, Rentachintala village and Mandal, Guntur.

4. New India Assurance Co., Ltd., Sukuru Complex, Door no.12-11-32, R.R.Appa Rao street, Vijayawada.

... Respondents

This petition came up on 6.3.2024 before me for hearing in the presence of Sri G. Mallikarjuna Rao, advocate for petitioner; Sri. N. Srinivasa

Rao, advocate for 1st respondent and Sri. A. Anjaneya Prasad, Advocate for 2nd respondent and Sri. O. Lakshmi Naga Raja, Advocate for respondent no.3 and Sri. G. Srinivasulu, advocate for 4th respondent and upon perusing the material available on record, this court made the following:

O R D E R

The present petition is filed for seeking compensation of

Rs.1,60,000/- for the injury caused to the petitioner in the accident and with subsequent interest and costs.

2 MVOP No.1143/2018 III A.D.J. Court

2. The brief averments of the petition are as follows:

On 13.1.2018 night the petitioner and Veeramallu Manoj Kumar (deceased) and one Rekapalli Anand Baji Baba @ Anad Baji went to

Budampadu village, to attend a birth day function of their friend on Bike bearing No. AP 07 C Z 2659. After completion of the function they all returned to Guntur by triple riding, driven by Veeramallu Manoj Kumar and while they were proceeded to Pedakakani side from Guntur side for petrol, and while they reached Vasavi Nagar at 1.10 a.m. on 14.1.2018, an unknown lorry driven by unknown driver, came with high speed without blowing horn with rash and negligent manner from Guntur side to

Pedakakani, dashed the bike on its back, all of them fell down, the lorry tires crushed the head of Veeravallu Manoj Kumar and he died on the spot due to head injury, the petitioner sustained a fracture on the left color bone and also received injuries on other parts of his body. After the accident, the lorry again hit a person who is going on the road by walk to Mourya Bar and

Restaurant, and he died on the spot due to lorry ran over him.

The petitioner was shifted to Government General Hospital, Guntur for treatment. While the petitioner was taking treatment, S.I. of Police

Pedakakani, recorded the statement from Baji Baba and registered the same as a case in crime No.140/2018 for the offence under sections 304-A and 337 of Indian Penal Code. The S.I. of police Pedakakani arrested respondents no.2 and 3 and they were remanded to judicial custody. 2nd respondent is the driver of the lorry, 3rd respondent is the cleaner of the lorry who drove the lorry as per the version of the police at the time of accident.

On the date of accident petitioner is hale and healthy and he was doing job as technician cum-sales man in Sri Sai Ram Electronics, Jinnha

Tower Centre, Guntur for the last 6 years and drawing salary of Rs.15,000/- 3 MVOP No.1143/2018 III A.D.J. Court per month. The petitioner is unable to continue his job due to accident for three months. Due to accident, he sustained heavy loss and indebted to others. Due to accident he is not able to move freely and is in need of assistance. Thus, he is claiming Rs.1,60,000/- towards damages for loss of dependency and support, loss of earnings and medical and other expenses.

1st respondent is the owner of the lorry bearing No. AP 077 TJ 0679, 2nd respondent is the driver and 3rd respondent is cleaner of the lorry who drive the vehicle at the time of the accident. The 4th respondent is insurer of the offending vehicle. As such all the respondents are vicariously liable for the negligent act of the respondent no.2 and 3 and are liable to pay compensation to the petitioner. In spite of several requests made by the petitioner, no compensation was paid by respondents. Hence, the petition.

3. After registering of the present petition, notice was served on respondents. Respondents no.1 to 3 filed separate written statements but the contents of their written statements are one and the same. 4th respondent filed separate written statement.

4. The Brief averments of Written statement of the respondents no.1 to 3 are as follows :

Respondents no.1 to 3 denied all the material allegation made in the petition and submitted that 1st respondent is the owner of the lorry bearing

No. AP 07 TJ 0679, and the alleged accident was never occurred due to hit of 1st respondent’s lorry to the motor cycle which was driven by Veeramallu

Manoj Kumar who is the brother of the petitioner. In fact, on the date of alleged accident i.e. on the intervening night of 13/14 -1-2018 at about 1.10 a.m. the lorry bearing No. AP 07 T 0679 was not proceeded on the Guntur

RTC bus stand to Auto Nagar road. As per FIR, the petitioner who is pillion 4 MVOP No.1143/2018 III A.D.J. Court rider along with the defacto complainant on the motor cycle bearing No. AP 07 CZ 2659 have stated that they have attended a birth day party. In the postmortem report of Veeramallu Manoj Kumar it was clearly established that he took alcohol before driving the motor cycle. The deceased Manoj

Kumar drives the Motor cycle under the influence of Alcohol and did not possess any valid license. As such it can be safely presumed that the persons on the motor cycle including driver of the motor cycle were under the influence of Alcohol and unable to balance the vehicle as this petitioner and another rider also sat on it and caused the accident. The triple riding on the Motor cycle is not at all permissible and it is against the rules under M.V.

Act. Drunk and driving is also an offence under law.

As per averments in the petition, by the time the petitioner and deceased reached RTC bus stand there was no fuel in the motor bike and for refilling the motor bike, there is no necessity for the deceased and other 2 pillion riders to go all the way to auto Nagar. There are more than 10 petrol bunks in between the RTC bus stand and Auto Nagar which were kept opened and working round the clock. Further petitioner and deceased and his brother are the resident of R-Agraharam and Sampath Nagar which are situated in opposite direction to the RTC bus stand to Auto Nagar road and there are 4 petrol bunks in between RTC bus stand to R-Agraharam and

Sampath Nagar which also runs round the clock. The contention of the SHO

Peda Kakani is that the cleaner of the lorry confessed to the police after long lapse of nearly 10 days that he himself caused the accident is absolutely unbelievable. As they could not able to trace out the vehicle which caused the accident, they intentionally planted the lorry of 1st respondent with a malicious and dishonest intention to help the petitioner and others to get compensation wrongfully. The petitioner cooked up a false story with the help of police for the death of deceased and falsely implicated the 5 MVOP No.1143/2018 III A.D.J. Court respondent no.2 and 3 in the criminal case for the purpose of filing this false claim. The above facts themselves proves that the lorry of 1st respondent was falsely implanted and brought into existence to somehow get compensation by petitioner and others unlawfully at the costs of the 1st respondent and his insurer. Since the owner and insurer of the motor cycle bearing No. AP 07 CZ 2659 in which petitioner, deceased and another person was proceeding was not made a party to this claim. Hence, this petition is was bad for non-joinder of necessary party. The lorry of this respondent never involved in the alleged accident on 14.1.2018 at 1.10 a.m. as such 1st respondent is not all liable to pay any compensation to the petitioner. The lorry was duly insured with 4threspondent vide policy no.62140031170100004424 valid from 26.5.2017 to 27.6.2018. The said policy was in force as on the date of alleged accident. 1st respondent entrusted the lorry to 2nd respondent to proceed from J. P. Cements

Gamalapadu to JP cements Vepagunta, and 2nd respondent has possessed a valid and effective driving license No.400172004OD along with badge

No.14620 which was valid upto 28.6.2023. The 1st respondent never entrusted the lorry to 3rd respondent and 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta. On 13.1.2018 by 11-00 p.m itself the 2nd respondent passed away the RTC bus stand to Pedakakani road. As there is no violation of the policy terms and conditions by 1st respondent, he is not at all liable to pay any compensation to the petitioner. If the Court finds that cleaner of the lorry drove the lorry at the time of accident then also no liability rests on him since the lorry was entrusted to 2nd respondent who possessed valid and effective driving license at the time of accident. If the

Court intends to pass any award, it may be passed against 4th respondent only as there is valid insurance policy issued by 4th respondent company.

6 MVOP No.1143/2018 III A.D.J. Court

It is further submitted that respondents denied the avocation of the petitioner as on the date of the accident. They came to know petitioner is a vagabond and addicted to bad vices. The compensation claimed by the petitioner is highly excessive and exorbitant. The injuries allegedly sustained by the petitioner are simple in nature. The petitioner never made any demand for any compensation against this respondent either in writing or oral as mentioned in the petition. As such petitioner is not entitled any interest from the date of accident till the date of realization. Hence, the petition is liable to be dismissed with costs.

5. The Brief averments of Written statement of the 4 th respondent are as follows :

This respondent denied the entire material allegation made in the petition. It is submitted that they does not admit factum and manner of the alleged accident and the petitioners are put to strict proof of the same. They denied the age, avocation, income, injuries of the deceased as alleged by the petitioner. The petitioners never made any demand for any compensation against this respondent either in writing or orally as mentioned in the application and as such the petitioner are not entitled to any costs and interest from the date of accident till the date of realization.

There was no rash and negligence on the part of the driver of the lorry bearing No. AP 07 TJ 0679 at the time of accident. Hence, they are not liable to pay any compensation to the petitioner. The driver of the lorry in question have no valid and effective driving licence to drive the vehicle and the alleged vehicle has no valid Registration Certificate at the time of the accident which is an infringement of specified conditions of the insurance policy. Therefore they are not liable to pay any compensation. The owner of the lorry intentionally and knowingly violated the terms and conditions of the policy and provisions of M.V. Act by allowing a person who has no driving 7 MVOP No.1143/2018 III A.D.J. Court license to drive the lorry at the time of accident. Unless and until it is proved that the vehicle alleged to be involved in the accident is insured with this respondent company at the time of accident, this respondent company is not liable to pay any compensation to the petitioner. Police failed to comply with section 158(6) of Motor Vehicle Act. As per section 134 (c ) of Motor Vehicle

Act 1988, it is mandatory duty of the insured/1st respondent to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving license but 1st respondent has not complied with statutory demand.

There was no rash and negligence on the part of the driver of the lorry and the accident if any occurred only due to the rash and negligent and fault of the rider of the motor bike. Hence, 4th respondent company is not liable to pay any compensation to the petitioner. The injured was hit by one unknown lorry but not the lorry bearing No. AP 07 TJ 0679, the petitioner in collusion with police and the 1st respondent, foisted a false case against the driver of the lorry bearing No. AP 07 TJ 0679 for unlawful gain. At the time of accident, three persons were travelling on the motor cycle bearing no. AP 07 CZ 2659 against the seating capacity of 2 and as such the rider of the motor cycle unable to control the motor cycle and caused the accident.

The petitioner sustained only simple injuries and there is no permanent disability and petitioner can perform his normal duties as usual and there is no loss of earning capacity. The liability of this respondent is only subject to the terms and conditions of the policy if any issued to the 1st respondent. This respondent seeks protection under section 170 of the M.V.

Act to defend the proceedings if 1st respondent colluded with the petitioner and remains exparte. The claim of the petitioner is highly excessive and exorbitant. As such the interest may be awarded at 6% per annum that too from the date of award. Hence, the present petition is liable to be dismissed.

8 MVOP No.1143/2018 III A.D.J. Court

6. Basing on the above pleadings, my learned predecessor in office had framed the following issues for trial:

1. Whether the petitioner namely Veramallu Sai Ganesh sustained injuries in the road accident occurred on 14.1.2018 at about 1.10 a.m. near Vasavi Nagar, Pedakakani due to rash and negligent driving of the lorry bearing AP 07 TJ 0679?

2. Whether the petitioner is entitled to compensation, if so, to what amount and against whom?

3. To what relief?

7. During trial, the petitioner got examined PW1 to PW3 and marked documentary evidence as Exs.A1 to Ex.A5 and Ex.X1 to Ex.X3 documents are marked. On behalf of the respondents, RW1 and RW2 are examined and documentary evidence of Ex.B1 is marked.

8. Heard both side arguments. Perused the entire material on record.

ISSUE NO.1 :

9. In a claim petition filed under sections 166 of the M.V. Act, onus is on the claimant/petitioner to prove that he suffered injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.

10. In proof of case of the petitioner, he himself examined as PW1 and he filed his evidence affidavit by reiterating the contents of the petition. He got marked documentary evidence of Ex.A1 to A5. Ex.A1 is the certified copy of

FIR in Crime No.142/2018 of Pedakakani Police station. Ex.A2 is the certified copy of charge sheet in C.C. No. 188/2019 on the file of VI AJCJ,

Court, Guntur. Ex.A3 is the certified copy of wound certificate dated 27.2.2018. Ex.A4 is the certified copy of M.V.I. report. Ex.A5 is the Salary

Certificate.

9 MVOP No.1143/2018 III A.D.J. Court

11. Petitioner got examined proprietor of Sri Sai Ram Electronics, Zinnah

Tower Center, Guntur by name Kasula Venkata Siva Prasad as PW2. PW2 filed evidence affidavit by stating that petitioner has been working as sales man, from the year 2012 and drawing a salary of Rs.15,000/- per month from 2018 onwards. The salary certificate dated 2.8.2018 was issued by him as proprietor of the firm. During cross-examination he stated that he did not file any proof of existence of his shop. He did not pay any P.F. to labour office for the injured and he is not having any documentary proof to prove that injured was his employee.

12. 4th respondent has examined their Assistant Manager as RW1. He filed evidence affidavit stating that their company has issued commercial vehicle package policy in favour of 1st respondent for the lorry bearing No. AP 07 TJ 0679. The period of policy is from 28.6.2017 to 27.6.2018. There was no rash and negligence on the part of the driver of the lorry and accident was occurred purely due to the rash and negligent and fault of the rider of the

Motor cycle on which the petitioner was travelling as a pillion rider. Three persons were travelling on the Motor cycle at the time of accident and due to over loading, the rider of the motor cycle unable to control bike and caused the accident. The cleaner of the lorry who was not having driving license, driven the lorry at the time of accident and police filed charge sheet against the cleaner of the lorry. Police has also filed charge sheet under section 181 of Motor Vehicle Act. 1st respondent being owner of the lorry, intentionally and knowingly violated the terms and conditions of policy by allowing the person who has no valid and effective driving license to drive the lorry bearing No. AP 07 TJ 0679 by the time of accident. Ex.B1 is the attested copy of insurance policy.

10 MVOP No.1143/2018 III A.D.J. Court

13. 4th respondent also got summoned RTA authority for cause production of driving license of Choda Rama Rao/R3. RTO deputed M. Nageswara Rao to appear before the this court and he produced authorization letter dated 2.1.2024 which is marked as Ex.X2. Attested copy of driving licence particulars showing that DL was issued to 3rd respondent on 31.1.2011 which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle. Ex.X3 is the attested copy of driving licence particulars of Chowdam

Rama Rao. As per Ex.X3 the transport heavy vehicle license was issued to the driver on 24.10.2018 and he applied for license after the accident.

14.In this case respondents no.1 to 3 have taken plea that their lorry is not at all involved in the accident. According to 1st respondent, he entrusted his lorry bearing No.AP 077J 0679 to his driver /2nd respondent to proceed from J.P. Cements, Gamalapadu to JP cements, Vepagunta, and 2nd respondent is having valid and effective driving license no.400172004OD along with badge no.14620 which was valid upto 28.6.2023. Moreover, his lorry was not proceeded on the Guntur RTC bus stand to Auto Nagar road, at the time of accident, on the intervening night of alleged accident i.e. 13/14-1-2018 at about 1.10 a.m. Likewise 3rd respondent had also pleaded that 2nd respondent himself drove the lorry from Gamalapadu to Vepagunta. On 13.1.2018 by 11.00 p.m. itself 2nd respondent passed away the RTC bus stand to Padakakani road. Though they had pleaded in the above said manner to say that their lorry was not involved in the accident but no positive evidence is placed by them to support their contention. On the contrary Ex.A1-FIR and Ex.A2-charge sheet shows that the lorry is very much involved in the accident. The defence raised by 4th respondent insurance company is that as per charge sheet 3rd respondent being cleaner of the lorry drove it at the time of accident, and 11 MVOP No.1143/2018 III A.D.J. Court 2nd respondent was also not having driving license. As such, in view of infringement of terms and conditions of the Insurance policy, 4th respondent is not liable to pay compensation to the petitioners.

15. In this case a specific details are given by 1st respondent stating that he is the owner of the lorry bearing No. AP 077J 0679 and he had entrusted his lorry to his driver/2nd respondent who is possessing valid driving license no.400172004OD along with badge no.14620. Though 4th respondent has denied possession of valid driving license by 2nd respondent in their written statement but they had not taken any step to support their contention and to disprove the stand taken by respondents no.1 & 2 regarding possessing valid license by 2nd respondent. Whereas 4th respondent has examined their legal officer as RW1 and they also got summoned RTC authority calling them for cause production of license particulars of 3rd respondent. RW2 has submitted the registration extract of driving license particulars of 3rd respondent showing that on the date of accident 3rd respondent was possessing driving license issued on 31.1.2011 which is valid upto 24.8.2026 for transport and 30.1.2031 for non transport vehicle.

16. According to 4th respondent, as per Ex.A2 charge sheet at the time of accident 3rd respondent was driving lorry. Except contents of charge sheet there is no evidence to support the said contention. Even the alleged confession statement of 3rd respondent said to be recorded by police is not filed into the Court. Moreover, it is not admissible in evidence. However, even if we consider for a moment, at the time of accident 3rd respondent drove the lorry, but he was possessing licence for driving for transport vehicles. So, in either case it shows that petitioner has placed sufficient oral and documentary evidence in proof of their contention that accident was 12 MVOP No.1143/2018 III A.D.J. Court occurred due to rash and negligent driving of the driver of the lorry bearing

No. AP 077J 0679 which is owned by 1st respondent. Thus, the available positive evidence proved the involvement of lorry owned by 1st respondent in the accident.

17. It is also pertinent to note that insurance company cannot take advantage of the situation mention in the FIR and charge sheet that 3rd respondent was driving lorry at the time of accident and cannot claim on that basis that there is a breach of terms and conditions of the insurance policy because no defence can be taken by Insurance company unless there is fault on the part of the insured because it was held by Hon’ble Supreme

Court that unless it will be proved that owner of the Truck had fault , the insurance company cannot be escaped from their liability. Moreover, Similar situation was dealt with by the Supreme Court in Skandia Insurance

Company Limited Vs. Kokilaben chandravadam and others 1 , and in

Kashiram Yadava Vs. Oriental Fire and General Insurance Company

2 . Wherein it was laid down as follows:

“ We affirm and reiterated the statement of liability laid down in the above case. We may also state that without knowledge of the Insured, if by divers acts or omissions, others, meddle with vehicle and cause accident, insurer would be liable to be indemnify the insured. The insurer in such case cannot take advantage of breach of conditions in a certificate of insurance.”

18. So, in the present case in hand also as per charge sheet, 2nd respondent is the lorry driver to whom lorry was entrusted by 1st respondent and it is said that 2nd respondent handed over the lorry to 3rd respondent and while driving the lorry by 3rd respondent an accident was occurred. So, in such circumstances the insurance company cannot take 1 AIR 1987 SC 1184 2 1987 ACJ 1078 SC 13 MVOP No.1143/2018 III A.D.J. Court defence of breach of terms and conditions of the insurance policy as there is no fault on the part of the 1st respondent. As such in that case 4th respondent will liable to indemnify the 1st respondent/insured

19. Regarding the rash and negligent act of the driver of the offending vehicle in a judgment of Hon’ble Supreme Court in KAUSHNUMMA

BEGUM AND ORS. VS. NEW INDIA ASSURANCE CO. LTD 3 .,held that “the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 and 140 of the Act.”

20. In BASANT KAUR AND ORS. VS. CHATTAR PAL SINGH & ORS 4 it was observed that “ Registration of criminal case against the driver of the offending vehicle was enough to record a finding that the owner of the offending vehicle was responsible for causing the accident.

21. Similarly, in NATIONAL INSURANCE CO. LTD. VS. PUSHPA

RANA 5, it was held that “In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin 32001ACJ421SC, 42003 ACJ 369 MP (DB) 52009 ACJ, 287 14 MVOP No.1143/2018 III A.D.J. Court to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. It is also settled law that the terms rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code.

This is because the chapter in the Motor Vehicle Act dealing with compensation is benevolent legislation and not a penal one.”

22. In a judgment of the Supreme Court BIMLA DEVI AND ORS.

VS. HIMACHAL ROAD TRANSPORT CORPORATION AND ORS 6 ,

wherein it was held as under:

" In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

23. On considering all the facts and circumstances in the present case and the dictum laid down in the above cited judgments, it is established that respondent No.2 was driving the offending vehicle in a rash and negligent manner.

24. Issue No.1 is, thus, decided in favour of the petitioner and against the respondents.

ISSUE NO.2:

25. The case of the petitioner is that due to rash and neglect acts of the driver of the lorry bearing No. AP 077 TJ 0679, the petitioner sustained a fracture on the left color bone and also received injuries all over his body.

6(2009) 13 SC 530 15 MVOP No.1143/2018 III A.D.J. Court

26. Doctor V. Nava Krishna Prasad who treated the petitioner was summoned to give evidence in respect of treatment given to the petitioner and disability caused to him. He stated that on 14.1.2018 at early morning 1.56 a.m. he examined the petitioner and found the following injuries:

1. Swelling and deformity of left collar bone

2. Swelling and pain in left elbow region

3. Abrasion of size 3 x 2 cm over right cheek.

X-ray no.327/18 shows fracture of left cleride. Injury No.1 is grievous in nature and other injuries are simple in nature. The petitioner was advised to come after three days. On the date of his evidence, he examined the petitioner in the court premises, and noticed partial difficulty to lift left arm / left above limb above shoulder. There is deformity of bone. The percentage of disability is 7.25%, it is permanent and partial disability. Ex.X1 is the X-ray. During cross-examination he stated that as per case sheet, petitioner is examined by Dr. B. Mrudhula. She is his assistant professor. The treatment given to the petitioner is free of cost. The above injuries will not cause any difficulty to lead normal life.

27. As per evidence of PW3 he had calculated disability caused to the petitioner as 7.25%. After perusal of entire record placed by petitioner and on considering evidence of PW1 and PW2, the permanent disability can be assessed as 7% of whole body of the petitioner for calculation of compensation.

28. In this case there is no dispute relating to the injury caused to the petitioner. Admittedly the said injury sustained due to the accident occurred on 14.1.2018. According to the petitioner, prior to the accident he was hale and healthy and is doing job as technician cum-sales man in Sri Sai Ram Electronics, 16 MVOP No.1143/2018 III A.D.J. Court

Jinna Tower Centre, Guntur for the last 6 years and drawing salary of

Rs.15,000/- per month.

29. To prove income of the petitioner, he got examined proprietor of of Sri Sai

Ram Electronics, Zinnah Tower Center, Guntur by name Kasula Venkata Siva

Prasad as PW2. PW2 filed evidence affidavit by stating that petitioner has been working as sales man with him, from the year 2012 and drawing a salary of

Rs.15,000/- per month from 2018 onwards. The salary certificate dated 2.8.2018 was issued by him as proprietor of the firm. During cross-examination he stated that he did not file any proof of existence of his shop. He did not pay any P.F. to labour office for the injured and he is not having any documentary proof to prove that injured was his employee. So, in the absence of any such convincing evidence placed by the petitioner and by considering facts and circumstances and on reasonable hypothesis, monthly earnings of the petitioner can be determined as Rs.7000/- per month.

30. The petitioner claiming of Rs.15,000/- towards medicines and other expenses. Petitioner stated that after the accident he was admitted in

Government General Hospital, Guntur where he was treated as inpatient for on free of costs, in spite of that, it is known fact that even if treatment is taken on free of costs, there will be some other necessity to spent money for medicines. Similarly he met with conveyance charges for travelling from his house to hospital. Though there is no documentary evidence on record with regard to money spent by the petitioner toward medicines, special diet and conveyance. However, on considering nature of the injury and treatment undergone by him, the petitioner is found entitled for total amount of

Rs.15,000/- towards medical expenses, extra nourishment and convenience.

17 MVOP No.1143/2018 III A.D.J. Court

31. For calculating his future income basing on the notional income, multiplier method can be adopted as prescribed by the Hon’ble Apex Court in the judgment between Sarla Verma and others Vs. Delhi Transport Corporation and Another on 15 th April, 2009.

32. In this case the petitioner has stated that as on the date of accident he was aged about 21 years. Though the respondent has denied the age of petitioner, but no evidence is placed by the respondent by challenging the age of the petitioner nor they elicited out anything during the cross examination of petitioner. It is the version of petitioner that he was 21 years old, as on the date of accident. In all the crime records and medical records i.e., in Ex.A.2 and

Ex.A.3, age of the deceased is mentioned as 21 years. As such the age of the petitioner can be considered as 21 years as on the date of accident. After perusal of entire record placed by petitioner and on considering evidence of PW1 and PW3, the permanent disability can be assessed as 5% of whole body of the petitioner for calculation of compensation. Hence, the compensation to which the petitioner is entitled under the head of loss of earnings is to be determined by the multiplier method and as per evidence of petitioner, he was aged about 21 years as on the date of accident. The proper multiplier is fixed as “18”, monthly income is determined as Rs.7,000/- per month. The functional disability is assessed by the tribunal as 5% on the basis of evidence. Thus the calculation of compensation will be as follows :

a) The annual income prior to the accident: Rs. 84,000/-

b) Loss of future earning per annum (5% of the prior annual income) :

Rs.4,200/-

c) Multiplier applicable to age : 18

d) Loss of future earning : (4,200 x 18) : Rs.75,600/- 18 MVOP No.1143/2018 III A.D.J. Court

33. Regarding loss of past earnings, there is no dispute the date of accident and the petitioner underwent treatment in Government General Hospital, Guntur.

Obviously in view of the injury caused to the petitioner, he cannot start work immediately after he discharged from the hospital. Obviously he may not attend any work for period of 3 months which comes Rs.7,000/- x3 = Rs.21,000/-.

34. Total compensation is awarded under heads as follows:

Medical expenses, extra Rs.15,000-00 nourishment and conveyance

Loss of earnings (past ) Rs.21,000-00

Loss of earnings (future) Rs.75,600 -00

Total Rs.1,11,600 -00

35. So far as the liability of the respondents is concerned, finding that 1st respondent is owner of the lorry bearing No. No. AP 077 TJ 0679, responsible for accident caused by 2nd respondent/driver and 4th respondent is the insurer. So Respondents No.1, to 4 are jointly and severally liable to pay compensation to the petitioner. In view of the contractual obligation under insurance policy, 4th respondent is liable to pay compensation amount. Hence, this issue is answered accordingly.

36. In the given facts and circumstances, the petitioner is not entitled any other compensation amount. Hence, the rest of the claim is disallowed.

19 MVOP No.1143/2018 III A.D.J. Court

ISSUE No.3:

37. In the result, the petition is allowed in part with proportionate costs by awarding compensation of Rs.1,11,600/- to the petitioner with interest at the rate of 7.5% p.a. from the date of petition i.e. 23.10.2018 till the date of payment or realization. Respondents No.1 to 4 are jointly and severally liable to pay compensation to the petitioner. In view of the contractual obligation under insurance policy, 4th respondent is liable to pay compensation amount.

ii) Respondent no.4 is directed to deposit the compensation amount within one month from today.

iii) The petitioner is permitted to withdraw the total amount with accrued interest and costs.

iv) The Advocate fee is fixed Rs.3,000/-

v) The rest of the claim of the petitioner is dismissed without costs.

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

pronounced by me in the open Court, this the 3rd day of April, 2024.

Sd/-G.Archana

CHAIRMAN, MACT–cum–

III ADDL. DISTRICT JUDGE

GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

PW1 : Veeramallu Sai Ganesh RW1: G. Gopinath PW2 : K. Venkata Siva Prasad RW2:M. Nageswara Rao PW3 : Dr. V. Navakrishna Prasad

DOCUMENTS MARKED

For Petitioner:

Ex.A1:Certified copy of FIR in Crime No.142/2018 of Pedakakani Police station Ex.A2:Certified copy of charge sheet in C.C. No. 188/2019 on the 20 MVOP No.1143/2018 III A.D.J. Court file of VI AJCJ, Court, Guntur. Ex.A3:Certified copy of wound certificate dated 27.2.2018 Ex.A4 : Certified copy of M.V.I. report. Ex.A5:Salary Certificate.

For Respondents:

Ex.B1 : Attested copy of Insurance policy

Ex.X1 : Case sheet and X-Rays(3) of St. Joseph’s Hospital, Guntur

Ex.X2 : Authorization letter dated 2.1.2024

Ex.X3 : Attested copy of driving licence particulars Choda Rama Rao

Sd/-G.Archana

CHAIRMAN, MACT–cum–

III ADJ, GUNTUR.

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE :: GUNTUR

Present:- Smt.G. Archana

III Additional District Judge, Guntur.

Wednesday, this the 3rd day of April, 2024.

A.S.50/2023

Between:

Koppula Sudha Rani … Appellant

And

1) Koppula Naveen Chaitanya

2) Koppula Sumanth Sagar

3) Koppula Pushpa Latha

4) Additional District Medical & Health Officer (AIDS & Leprosy) Opposite to Collectorate,

Guntur... Respondents

This appeal is coming on this day before me on 3-4-2024 for hearing in the presence of Sri A.R.Srinivasa Murthy, Advocate for Appellant and Sri T.Murali

Dhan, Advocate for Respondents No.1 to 3 and Sri P.Venkateswarlu, Advocate for

Respondent No.4 and the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

The Appellant filed this appeal by setting aside the decree and judgment of the learned Principal Senior Civil Judge Court, Guntur made in S.O.P.No.64/2018 on 5-12-2022 to allow the appeal with costs and pass necessary orders.

Not press memo filed and recorded. Appeal is dismissed as not pressed.

Pronounced by me in the open court, this the 3rd day of April, 2024.

Sd/- Smt.G. Archana,

III ADDL. DISTRICT JUDGE,

GUNTUR.

APPENDIX OF EVIDENCE

NIL

III A.D.J., GUNTUR

IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE :: GUNTUR

Present:- Smt.G. Archana

III Additional District Judge, Guntur.

Wednesday, this the 10th day of April, 2024

O.S.15/2021

Between:

Marella Peri Reddy… Plaintiff

And

Yenumula Dilip... Defendant

This case is coming before me on 10-04-2024 for hearing in the presence of

Sri V.Suri Babu, Advocate for Plaintiff and Sri S.Yedukondalu, Advocate for defendant and this court made the following order.

This suit filed for recovery an amount of Rs.2,54,65,000/- with subsequent interest @ 18% p.a., and the amount paid at the time of execution of agreement on 23-8-2017, for non performance of contract in terms of agreement of sale and costs of the suit.

J U D G M E N T

IA 233/2024 is allowed. Matter is advanced to this day. Not press memo filed

and recorded. Suit is dismissed as not pressed.

Pronounced by me in open court, this the 10th day of April, 2024.

Sd/-Smt.G. Archana,

III ADDL. DISTRICT JUDGE,

GUNTUR.

APPENDIX OF EVIDENCE

NIL

III A.D.J., GUNTUR