Sri G.bhupal Reddy

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Thursday, the 31st day of March, 2022

M.V.O.P.No.519/14

Between: Korra Sobba, S/o Oraghu, 45 years, Puraji, Cooly, residing at Vadrungula vilage, Barara Panchayat, Manchingiput Mandal, Visakhapatnam district … Petitioner And:

1. Pentakota Siva, S/o Suri Babu, age not known to the petitioner but major, R/o 24-16-2/1, Chinna Gantyada, Gajuwaka, Visakhapatnam (Owner of lorry AP 31 TA 2655)

2. The New India Assurance Co., Ltd., rep. at local The Manager, Dwarakanagar, Visakhapatnam Insurer of lorry reg. No. AP 31 TA 2655

3. S. Nagasubramanyam, S/o Nageswara Rao, D.No.1-12, Korumilli, Kapileswarapuram Mandal, Tadepalligudem, W.G. District, owner of lorry Reg. No. AP 05 W 8289

4. Sanamandra Venkata Rao, S/o Musalaiah, 35 years, Jagannadhapuram village, Tadepalligudem Mandal, West Godavari District (Driver of Lorry Reg. No.AP 05 W 8289)

5. K. Nirmala, W/o K.V.V. Satyanarayana, D.No.56-11-14/4/2, Vidyanagar, Rajahmundry, E.G. District (Policy owner of lorry Reg. No. AP 05 W 8289)

6. The Oriental Insurance Company Ltd., rep. by its Manager T.P. Hub, Dabagardens, Visakhapatnam Insurer of Lorry Reg. No. AP 05 W 8289 … Respondents

(Respondents 4 to 6 were added as per the orders in I.A.No.1054/15

dt.01.10.2015)

This petition came before me on 24.02.2022 for final hearing in the presence of Sri G. Bangaru Naidu, Advocate for the petitioner and the respondents 1, 3 to 5 are having remained exparte and of Sri T.H. Ramanath, Advocate for the 2nd respondent and of Sri A. Venugopala Rao, Advocate for the 6th respondent. Having heard arguments, perused the record and considered the same till this day, this Court delivered the following:

JUDGMENT

1.The petitioner/injured namely Korra Sobba filed this petition, initially against the respondents 1 to 3 U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor

Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident. Subsequently, respondents 4 to 6 are added by way of amendment as per the orders in I.A.No.1054/15 dt.01.10.2015. The case of 2MVOP 519/14

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petitioner is as follows:

1.1) The petitioner is resident of Vadrangula village, Manchingiput Mandal,

Visakhapatnam district. During the year 2012, some of the residents of

Manchingiput Mandal went to Guntur district for cooly work. After completion of the cooly works, to come back to their respective villages the petitioner and other co- workers boarded a cement load lorry bearing No.AP 31 TA 2655 on 17.072012 at about 14.00 hours by paying Rs.300/-. The said lorry crossed Ravulapalem at about 04.00 hours on 18.07.2012. The driver of the lorry was driving the same in rash and negligent manner. At the same time, another lorry bearing No. AP 05 W 8289 was proceeding in front of the lorry bearing No. AP 31 TA 2655. The lorry bearing

No. AP 05 W 8289 suddenly took right turn without giving any signals. Since the lorry bearing No.AP 31 TA 2655 was moving in high speed, it dashed the lorry bearing No. AP 05 W 8289 which took sudden right turn. As a result, both lorries fell down in the canal abutting to road. Five persons including the driver of lorry bearing No.AP 31 TA 2655 died. The petitioner sustained multiple injuries. Thus, the accident occurred due to rash and negligent driving of the drivers of both the lorries. A case in Cr.No.94/2012 under Sections 304-A, 338 and 337 IPC was registered by the police of Alamuru Police Station, East Godavari district. The police filed charge sheet against R.4 who was the driver of lorry bearing No. AP 05 W 8289, as the driver of lorry bearing No.AP 31 TA 2655 died on the spot. The 1st respondent is the owner and 2nd respondent is the insurer of lorry bearing AP 31 TA 2655. The respondents 3 and 5 are shown as owners of the lorry bearing No. AP 05

W 8289 as per RC and insurance policy respectively. The 6th respondent is the insurer and the 4th respondent is the driver of the said lorry bearing No. AP 05 W 8289.

1.2) The petitioner sustained grievous injuries: 1) A fracture of both bones of right leg; 2) a crush injury above the ankle. The petitioner also sustained injuries all over the body. Immediately after the accident, the petitioner was shifted to district hospital, Rajahmundry and after initial treatment, the petitioner was shifted to KGH, Visakhapatnam. The petitioner underwent treatment as inpatient for two months from 22.07.2012 to 29.09.2012. Dr. Eswar Babu, M.S. (Ortho) treated the petitioner by conducting major surgeries. While discharging him, the petitioner was 3MVOP 519/14

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advised to attend periodical physiotherapy. The petitioner again admitted in the hospital on 09.05.2013 and took treatment as inpatient till 07.06.2013. The petitioner spent an amount of Rs.50,000/- towards treatment, medicines, extra nourishment and transport charges. Due to the accident, the petitioner became permanently disabled to attend his regular works. The petitioner suffered physical and mental pain. The doctors advised the petitioner to take rest for one year. Prior to the accident, the petitioner used to earn Rs.250/- to Rs.300/- per day and

Rs.8,000/- to Rs.10,000/- per month by attending cooly works. All the respondents are jointly and severally liable to pay the said compensation.

2.The respondents 1, 3, 4 and 5 remained exparte. Thus, except the insurance companies, the other respondents did not contest the matter. The 2nd respondent (New India Assurance) is the insurer of lorry bearing No. AP 31 TA 2655 and it filed counter with the following averments:

2.1) The allegations mentioned in the claim petition are not correct. The 2nd respondent does not admit about the ownership and insurance of the lorry bearing

No. AP 31 TA 2655 and it also does not admit that it was driven by Ch.

Satyanarayana Raju. The said Satyanarayana Raju was not having valid driving licence and badge to drive the transport vehicle. The said lorry was not having permit and fitness certificate was on the date of accident. Two lorries are involved in the accident. The petitioner was travelling as unauthorised passenger. The accident occurred due to gross negligence of the driver of the lorry bearing No. AP 05 W 8289. As such, the owner, insurer and driver of the said lorry alone are liable to pay compensation. The 2nd respondent is not liable to pay any compensation.

The insurance policy does not cover the risk of unauthorised passengers. Thus, there is fundamental breach of the terms of the insurance policy. There is no contractual liability or statutory liability to cover the risk of gratuitous or unauthorised passenger. The 2nd respondent does not admit that the petitioner-

Sobba was 45 year old and was earning Rs.9,000/- per month. As per wound certificate, the petitioner sustained fracture injuries and they might have been healed long ago. As such, there is no disability either permanent or partial. The petitioner is put to strict proof that he was treated in district hospital, Rajahmundry and in KGH, Visakhapatnam. Since KGH is a government hospital, the entire 4MVOP 519/14

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medical expenditure is free. The petitioner is put to strict proof that he spent

Rs.50,000/- for treatment, medicines, nourishment and transportation. The claim is highly excessive. The 2nd respondent seeks protection under Sec. 147 and 149 of

Motor Vehicles Act. Finally, the 2nd respondent prayed to dismiss the claim petition against it.

3.The 6th respondent (Oriental Insurance) filed its counter with the following averments:

3.1) The averments mentioned in the petition are not correct. The FIR relating to the said accident was not given to the 6th respondent. The accident occurred only due to gross negligence of the driver of the lorry bearing No. AP 31

TA 2655 in which the petitioner and others boarded. The said driver allowed the unauthorised and gratuitous passengers in the cabin and on the top of the cement load. Therefore, there is gross violation of terms of insurance policy. As per the inquest report, the driver of the lorry bearing No. AP 31 TA 2655 namely Ch.

Satyanarayana Raju drove the lorry rash and negligently under the influence of alcohol. He drove the lorry without keeping minimum distance between two lorries.

There is no rash and negligence on the part of the driver of lorry bearing No. AP 05

W 8289. Unfortunately, the police filed charge sheet against the driver of lorry bearing No. AP 05 W 8289 as well. In fact, the driver of the lorry bearing No. AP 31

TA 2655 was shown as A.2 in the said case. However, on his death case against A.2 was abated. The 6th respondent does not admit about the monthly income and age of the petitioner. If at all the petitioner is entitled for compensation, it is from the 1st and 2nd respondents only. The claim of petitioners is excessive and without any basis. The petitioner is put to strict proof in respect of the alleged injuries. The said injuries might have healed long ago. There is no permanent disability to the petitioner. The petitioner is not entitled for the claims under various heads as claimed by him. The 6th respondent is not liable to pay any compensation to the petitioners unless it is proved that Section 64 (v) (b) of Insurance Act, 1938 and

Rule 58 of the Insurance Rules, 1959 are complied with. The 6th respondent seeks protection under Sections 147, 149, 158 (6), 170, 188 and 190 of M.V. Act. The 6th respondent is not liable to pay compensation even under no fault liability under

Sec. 140 of M.V. Act. Finally, the 6th respondent prayed to dismiss the claim petition 5MVOP 519/14

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as against it.

4.Before adding respondents 4 to 6, some issues framed on 15.01.2015. But after adding respondents 4 to 6, the following issues framed on 16.07.2018.

1. Whether the petitioner/injured Korra Sobba, S/o Oraggu sustained injuries in motor vehicle accident on 18.07.2012 at about 4:00 hours NH-16 road, Jonnada village, E.G District if so, the said accident occurred due to rash and negligent driving of Lorrie bearing Nos. AP 05 W 8289 and AP 31 TA 2655 given by its drivers?

2. Whether the petitioner is entitled for compensation? If so, to what extent and from which of the respondents?

3. To what relief?

5.This court inclined to take up the issues that were settled on 16.07.2018 by striking off the issues dt.15.01.2015 under Order 14 Rule 5 CPC.

6.During the trial, on behalf of the petitioner, two witnesses were examined and got Exs.A1 to A.6 and Exs.X.1 to X.4 were marked. On behalf of the respondents, two witnesses were examined and got Exs.B.1 and B.2 marked.

7.Heard the counsel for petitioner and the counsel for the respondents.

Perused the written arguments.

8.ISSUE No. 1:

8.1) As mentioned above, the accident took place when lorry bearing No.

AP 31 TA 2655 dashed lorry bearing No. AP 05 W 8289 which was proceeding ahead of the former lorry. According to the version of petitioner and 2nd respondent, the accident took place since the driver of lorry bearing No. AP 05 W 8289 suddenly took right turn without giving any signal. The petitioner also attributed rash and negligence on the part of driver of lorry bearing No. AP 31 TA 2655 stating that he was driving the same in high speed. But according to 6th respondent, the accident took place only due to rash and negligent driving by the driver of the lorry bearing No. AP 31 TA 2655 stating that he was driving the same under the influence of alcohol.

8.2) The petitioner is examined as P.W.1. In his evidence affidavit, P.W.1 reiterated the contents of claim petition. He produced attested copies of FIR, wound certificate, MVI report, charge sheet, discharge summary dt.29.09.2012 and discharge summary dt.07.06.2013 under Exs.A.1 to A.6. In the cross-examination 6MVOP 519/14

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P.W.1 stated that at the time of accident, the petitioner and his companions total 13 persons travelling in that lorry. He also stated that his right leg was crushed. He denied the suggestion that his injury was completely healed and he is not facing any problem. He further stated that he went to attend cooly works and while returning the accident took place. He denied the suggestion that the driver of the said lorry drove the same in rash and negligent manner in a drunken state and there is no fault on the part of 4th respondent (driver of the other lorry).

8.3) It is an undisputed fact that the police of Alamuru P.S., E.G. District registered FIR in Cr. No.94/2012 in respect of the said accident by showing the driver of lorry bearing No. AP 05 W 8289 i.e., R.4 as the accused. The police attributed rash and negligence on the part of Ch. Satyanarayana Raju i.e., the driver of lorry bearing No. AP 31 TA 2655 as well. It is also not in dispute that the case against said Satyanarayana Raju was abated on his death. Therefore, it is clear that four persons and the driver Satyanarayana Raju died because of the said accident. The police attributed rash and negligence to both the drivers and filed charge sheet. In the First Information attached to FIR, it is mentioned that the accident took place due to the rash and negligence driving of both the drivers. At column VII of FIR, both the drivers are shown as accused. The charge sheet was filed against 4th respondent namely Sanamandra Venkata Rao, the driver of lorry bearing No. AP 05 W 8289 since the other accused died because of the accused. In para 23 of the charge sheet it is mentioned that both drivers are liable for punishment under sections 304-A, 338 and 337 of IPC, but, since the driver of lorry bearing No. AP 31 TA 2655 is no more, the charge sheet is filed only against R.4.

8.4) With regard to proof of rash and negligent driving, the filing of charge sheet by the police can be considered apart from the direct evidence. The Hon’ble

High Court of Kerala in New India Assurance Co., Ltd. vs. Pazhaniammal and others (2012 ACJ 1370) held:

A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against indictee. If any one of the parties does not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in case where charge sheet is filed, the tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale in to 7MVOP 519/14

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insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such charge sheet can be reckoned as sufficient evidence of negligence in a claim under section 166 of the Motor Vehicles Act 1988.

Thus, Filing of charge sheet is prima facie proof of negligence on the part of driver of crime vehicle. Hence, the evidence of P.W.1 coupled with Ex.A.1 to A.4 is sufficient to conclude that the said accident took place due to rash and negligent driving of the both the drivers of the above mentioned lorries and the petitioner sustained injuries because of the said accident. Accordingly, this point is answered.

9.ISSUE NO.2:

9.1) The petitioner apart from giving his evidence about the injuries sustained by him, he got examined Dr. P. Ashok Kumar as a witness on his behalf.

P.W.2/Dr. Ashok Kumar deposed that he was working as Professor in Orthopedic,

AMC, KGH and he knew Dr. M. Eswara Babu, who retired from service. He further stated that Eswara Babu treated the petitioner and as per Ex.A.5-discharge summary the patient name is K. Sobba, 50 years and was admitted in hospital on 22.07.2012 with fractures of both bones of right leg and he was operated with fixatour and skin grafting on 24.09.2012 and was discharged on 29.09.2012. He further deposed that as per Ex.P.6, the patient was again admitted in KGH on 09.05.2013 and was operated for nailing and bone grafting and was discharged on 07.06.2013. In the cross-examination P.W.2 stated that the treatment and medicines are provided on free of cost in KGH. He further stated that he cannot say whether the petitioner sustained any disability due to the said accident. He further stated that mostly the patient can attend his normal duties as usual.

9.2) The evidence of P.Ws.1 and 2 coupled with Exs.A.5 and A.6 it is clear that the petitioner was treated in KGH on two occasions. The first period was from 22.07.2012 to 29.09.2012 and the second period was from 09.05.2013 to 07.06.2013. It is established in the cross-examination that the petitioner did not incur any expenses for the said treatment in KGH since it is a government hospital.

However, one cannot deny the physical and mental suffering undergone by the petitioner and the expenses that he had to spend for transportation from his village in Manchingiput mandal to Visakhapatnam and then to KGH. It is also an undisputed fact that the petitioner confined to hospital for three months in two 8MVOP 519/14

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spells and thus lost his regular income for the said period.

9.3) As seen from the wound certificate, discharge summaries and as per the evidence of P.W.2, the petitioner sustained two fracture injuries of each bone of right leg. However, as per the evidence of P.W.2, the petitioner did not have permanent disability. P.W.2 also stated that the petitioner can mostly attend his works as usual. Therefore, the petitioner can be compensated for the loss of income for three months and for the pain and suffering of two fractures, for extra nourishment and transportation.

9.4) In the claim petition, loss of earning is shown at Rs.40,000/-. However, even according to petitioner, his monthly income was Rs.8,000/-. In the year 2012 monthly income of an unskilled labour can be taken at Rs.5,000/- per month.

Therefore, the petitioner is entitled for compensation under the head of loss of income at Rs.15,000/- for three months. The petitioner claimed Rs.10,000/- towards extra nourishment and attendant charges. The same can be granted since one cannot deny that the patient who was in hospital for three months needs an attendant and food for extra nourishment. Rs.15,000/- can be granted towards transportation charges. As per the evidence of P.Ws.1 and 2, the petitioner had undergone several physical and mental pain and suffering for two fractures, surgeries, for implantation of rods etc., The petitioner was treated as in-patient for two months at 1st spell and one month at 2nd spell. He underwent lot of trauma and suffering during the said period of three months. Therefore, this Tribunal is of the view that the petitioner is entitled for Rs.50,000/- for each fracture towards pain and suffering. Thus, the petitioner is entitled for compensation of total

Rs.1,40,000/-.

9.5) As discussed above, the petitioner is entitled for compensation of

Rs.1,40,000/-. Then the question to be decided is who has to pay that compensation among the respondents or all of them?

9.6) On behalf of 2nd respondent, R.W.1-M.Devacharan is examined. He deposed that he was the Assistant Manager of 2nd respondent-Insurance Company.

The 2nd respondent issued insurance policy to the lorry bearing AP 31 TA 2655 vide policy No.62030131110100015138 for the period from 13.01.2012 to 12.01.2013.

The accident took place on 18.07.2012. The said policy was issued under certain 9MVOP 519/14

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terms and conditions. R.W.1 further stated that the 2nd respondent is not liable to pay compensation since the 1st respondent/owner violated the terms of insurance policy. The said vehicle is a heavy good commercial vehicle which is meant for carrying good only. However, the owner of the vehicle and/or the owner of the goods can be sit in the cabin and no other persons are entitled to travel in the goods vehicle. The driver was not having any driving licence as on the date of the accident. The petitioner and others who boarded on the lorry are unauthorised gratuitous passengers. The insurance is not covered to such passengers. Travelling in the goods vehicle will not come under the definition of third parties. Ex.B.1- attested copy of insurance policy and Ex.B.2-copy of vehicle registration are marked through R.W.1.

9.7) According to R.W.1, the deceased and other persons travelled in the lorry as unauthorised and gratuitous passengers. However, as per the evidence of

P.W.1 and as per the first information, the petitioner and others travelled in the said lorry by paying Rs.300/-. It is not the case of the respondent that the driver of said cement load lorry is a known person or relative of the deceased. In such case, it cannot be believed that the driver allowed the deceased and others gratuitously.

Therefore, it cannot be said that the deceased and others are gratuitous passengers. However, since the deceased and others travelled in a goods vehicle, it can be said that they are unauthorised persons.

9.8) R.W.2-M. Gangabhavani is examined. She stated that she was working as Junior Assistant in the RTA Office and further deposed that as per the records of

RTO, the 1st respondent is shown as owner of the vehicle bearing No. AP 31 TA 2655 as on 18.07.2012 and the present owner is shown as Gurla Appalanaidu. She further stated that the said vehicle was not having permit and on verification of records in RTO, no driving licence found in the name of Ch. Satyanarayana Raju.

9.9) Merely because there is no record in the RTO Office about the driving licence, It cannot be said that the driver was not having driving licence. R.W.2 stated in the cross-examination by the petitioners’ side, that the RTA

Visakhapatnam is having authority to grant driving licence to the residents of

Visakhapatnam city only and the said office is not concerned with the driving licences to the residents of other districts. R.W.2 further stated in the cross- 10MVOP 519/14

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examination by the counsel for R.6 that she does not know whether Cherukuri

Satyanarayana Raju, S/o Rama Raju was having valid driving licence as on 18.07.2012. It is to be noted that the charge sheet is filed against both the drivers under Sec. 304-A, 338 and 337 IPC but not under the provisions of M.V. Act.

Therefore, there is no material brought out by the respondents 2 and 6 that the drivers of the offending vehicles were not having driving licence.

9.10) Since the petitioner and other passengers are unauthorised passengers, it can be said that there is violation of insurance policy of both the vehicles. However, the Hon’ble Apex Court in Shamanna Vs. Oriental Insurance

Company Ltd., 2018 ACJ 2163, Rani Vs. National Insurance Company Ltd.,

(2018) 8 SCC 492 and in Kurvan Ansari v. Shyam Kishore Murmu, (2022) 1

SCC 317 also held that when there were violations of insurance policy, the Tribunal can direct the insurance company to pay the compensation to the petitioners and recover the same from the owner of the vehicle. The Hon’ble erstwhile High Court of Andhra Pradesh in Branch Manager, United India Insurance Co. Ltd. v.

Dadisetti Ramanamma, 2013 (5) ALD 504 observed as follows:

The primary objective of this enactment as with reference to claims for compensation is to protect the interest of innocent victims of motor vehicle accidents and their dependents. It is a welfare legislation. The legislative intent contained therein is required to be interpreted with a view to give effect thereto. The accidents paralyse otherwise smooth moving wheels of life and completely upsetting the family's dreams and aspirations, many times taking the stuff out of entire family or leaving minor children or old parents left in the lurch. Several safeguards are provided to the victims and their dependents in getting suitable compensation for the loss of life or limb. Keeping the primary objective of welfare legislation, Courts are concerned with awarding just compensation and to ensure that the compensation awarded reaches the victims or their dependents as early as possible. Delay in payment of compensation mitigates against the very objective of the enactment. Therefore, in view of the said judgments of Hon’ble Apex Court and Hon’ble High

Court, the insurance companies (R.2 and R.6) shall be directed to pay compensation and may recover the same from the respective owners of the two lorries. Hence, in view of my forgoing discussion the petitioner is entitled for compensation as detailed below:

Heads Compensation awarded

1. Transport charges: Rs. 15,000/-

2. Extra nourishment: Rs. 10,000/- 11MVOP 519/14

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3. Loss of actual earnings: Rs.15,000/-

4. Pain and suffering : Rs.1,00,000/- (Rs.50,000/- for each fracture)

Total: Rs.1,40,000/-

10.ISSUE NO.3:

In view of my above discussion on issues 1 and 2, this petition deserves to be allowed with costs granting Rs.1,40,000/- as just compensation. Both the lorries are equally fault and therefore, the drivers of both vehicles are liable to pay compensation. The owners of the said two vehicles are vicariously liable to pay the compensation. However, in view of the above mentioned case law, R.2 and R.6 can be directed to pay compensation to the petitioners in equal proportion and thereafter may recover the same from the owners of the lorries. Accordingly, this issue is answered.

11.In the result, this petition is partly allowed with proportionate costs by granting compensation of Rs.1,40,000/- (Rupees one lakh forty thousand only) to the petitioner with subsequent interest thereon at the rate of 7.5% p.a., from the date of the claim-petition till the deposit of the amount. The respondent Nos. 2 and 6 are directed to deposit the said amount with proportionate costs and interest within one month from the date of this judgment. The respondents 2 and 6 are entitled to recover the amounts from the respective owners of the vehicles bearing

Nos. AP 31 TA 2655 and AP 05 W 8289. On such deposit, the petitioner is entitled to withdraw the entire amount. Rs.5,000/- is awarded towards advocate fee.

Typed to my dictation by the Superintendent (discharging duties as Stenographer), corrected and pronounced by me in the open court on this, the 31st day of March, 2022.

Chairman, MACT-cum- IV Addl. Dist. Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioner: For the Respondents:

PW.1: K. SobbaR.W.1: M. Devacharan P.W2: Dr. P. Ashok KumarR.W.2: M. Ganga Bhavanai 12MVOP 519/14

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DOCUMENTS MARKED

For the Petitioner:

Ex.A1/-: Attested copy of FIR Ex.A2/-: Attested copy of wound certificate Ex.A3/-: Attested copy of M.V.I. Report Ex.A4/-: Attested copy of charge sheet Ex.A5/29.09.2012: Discharge summary Ex.A6/07.06.2013: Discharge summary

For the respondents:

Ex.B1/-: Attested copy of policy relating to vehicle No.AP 31 TA 2655 Ex.B2/: Net copy of vehicle registration of AP 31 TA 2655

X-series:

Ex.X1/21.09.2019: Authorisation issued by RTO, Visakhapatnam Ex.X2/-: RC Certificate pertaining to vehicle bearing No.AP 31 TA 2655 Ex.X3/21.09.2019: FC history of the vehicle No. AP 31 TA 2655 issued by Addl. Registering Authority Ex.X4/21.09.2019: Permit history of vehicle No. AP 31 TA 2655 issued by Addl. Registering Authority

IV ADJ/VSP.

Date of presentation: 19.03.2014 Date of filing: 08.05.2014

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Thursday, the 31st day of March, 2022

M.V.O.P.No.519/14

Between: Korra Sobba, S/o Oraghu, 45 years, Puraji, Cooly, residing at Vadrungula vilage, Barara Panchayat, Manchingiput Mandal, Visakhapatnam district … Petitioner And:

1. Pentakota Siva, S/o Suri Babu, age not known to the petitioner but major, R/o 24-16-2/1, Chinna Gantyada, Gajuwaka, Visakhapatnam (Owner of lorry AP 31 TA 2655)

2. The New India Assurance Co., Ltd., rep. at local The Manager, Dwarakanagar, Visakhapatnam Insurer of lorry reg. No. AP 31 TA 2655

3. S. Nagasubramanyam, S/o Nageswara Rao, D.No.1-12, Korumilli, Kapileswarapuram Mandal, Tadepalligudem, W.G. District, owner of lorry Reg. No. AP 05 W 8289

4. Sanamandra Venkata Rao, S/o Musalaiah, 35 years, Jagannadhapuram village, Tadepalligudem Mandal, West Godavari District (Driver of Lorry Reg. No.AP 05 W 8289)

5. K. Nirmala, W/o K.V.V. Satyanarayana, D.No.56-11-14/4/2, Vidyanagar, Rajahmundry, E.G. District (Policy owner of lorry Reg. No. AP 05 W 8289)

6. The Oriental Insurance Company Ltd., rep. by its Manager T.P. Hub, Dabagardens, Visakhapatnam Insurer of Lorry Reg. No. AP 05 W 8289 … Respondents

(Respondents 4 to 6 were added as per the orders in I.A.No.1054/15

dt.01.10.2015)

The petitioner/injurednamely Korra Sobba filed this petition against the respondents U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident together with subsequent interest at 18% p.a., and for costs of the petition.

Amount claimed is Rs.2,00,000/- and a court fee of Rs.1,360/- is paid under Rule 475(1) of A.P.M.V.Rules vide challan No.13 dt.19.03.2014 deposited in State Bank of Hyderabad, District Court Branch, Visakhapatnam.

This petition came before me on 24.02.2022 for final hearing in the presence of Sri G. Bangaru Naidu, Advocate for the petitioner and the respondents 1, 3 to 5 are having remained exparte and of Sri T.H. Ramanath, Advocate for the 2nd respondent and of Sri A. Venugopala Rao, Advocate for the 6th respondent. Having 14MVOP 519/14

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heard arguments, perused the record and considered the same till this day, this Court doth order and

D E C R E E

1. that the petition be and the same is hereby partly allowed;

2. that the respondents 2 and 6 be and are hereby jointly and severally liable to pay compensation amount of Rs.1,40,000/- (Rupees one lakh forty thousand only) to the petitioner with proportionate costs together with subsequent interest at 7.5% p.a., from the date of claim petition till the deposit of the amount;

3. that the respondents 2 and 6 be and are hereby directed to deposit the said amount with proportionate costs together with interest @ 7.5% per annum within one month from the date of this judgment;

4. that the respondents 2 and 6 be and are hereby directed to pay the compensation amount to the petitioner at first instance and they may recover the same from the respective owners of the vehicles bearing Nos. AP 31 TA 2655 and AP 05 W 8289;

5. that on deposit of the said amount into Court, the petitioner be and is hereby permitted to withdraw the entire amount;

6. that the respondents 2 and 6 do also pay to the petitioner a sum of Rs.6,154-00 towards proportionate costs of the petition. Given under my hand and the seal of this Court on this the 31st day of March, 2022.

Chairman, MACT-cum- IV Addl. Dist. Judge, Visakhapatnam.

Memorandum of costs

For petitioner:For respondents:

1. Stamps on vakalat: Rs. 2-00No costs memo is filed

2. Stamps on petition: Rs. 1,360-00

3. Stamps on petitions: Rs. 5-00

3. Stamps on process: Rs. 275-00

4. Stamps on documents: Rs. 5-00

5. Advocate’s fee (fixed by Court): Rs. 5,000-00

- - - - - - - - - - - -

Costs allowable: Rs. 6,647-00

- - - - - - - - - - - -

Prop. Costs allowed: Rs. 6,154-00

- - - - - - - - - - - -

IV ADJ/VSP

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Thursday, the 31st day of March, 2022

M.V.O.P.No.521/14

Between: Duttum Savithri, D/o Bannadh, 18 years, Puraji, Cooly, Vadrungula village, Barara panchayat, Manchingiput Mandal, Visakhapatnam district … Petitioner And:

1. Pentakota Siva, S/o Suri Babu, age not known to the petitioner but major, R/o 24-16-2/1, Chinna Gantyada, Gajuwaka, Visakhapatnam (Owner of lorry AP 31 TA 2655)

2. The New India Assurance Co., Ltd., rep. at local The Manager, Dwarakanagar, Visakhapatnam Insurer of lorry reg. No. AP 31 TA 2655

3. S. Nagasubramanyam, S/o Nageswara Rao, D.No.1-12, Korumilli, Kapileswarapuram Mandal, Tadepalligudem, W.G. District, owner of lorry Reg. No. AP 05 W 8289

4. Sanamandra Venkata Rao, S/o Musalaiah, 35 years, Jagannadhapuram village, Tadepalligudem Mandal, West Godavari District (Driver of Lorry Reg. No.AP 05 W 8289)

5. K. Nirmala, W/o K.V.V. Satyanarayana, D.No.56-11-14/4/2, Vidyanagar, Rajahmundry, E.G. District (Policy owner of lorry Reg. No. AP 05 W 8289)

6. The Oriental Insurance Company Ltd., rep. by its Manager T.P. Hub, Dabagardens, Visakhapatnam Insurer of Lorry Reg. No. AP 05 W 8289 … Respondents

(Respondents 4 to 6 were added as per the orders in I.A.No.799/15

dt.20.07.2015)

This petition came before me on 24.02.2022 for final hearing in the presence of Sri G. Bangaru Naidu, Advocate for the petitioner and the respondents 1, 3 to 5 are having remained exparte and of Sri T.H. Ramanath, Advocate for the 2nd respondent and of Sri A. Venugopala Rao, Advocate for the 6th respondent. Having heard arguments, perused the record and considered the same till this day, this Court delivered the following:

JUDGMENT

1.The petitioner/injured namely Duttum Savithri filed this petition against the respondents 1 to 3 U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor

Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by her in a motor vehicle accident. Subsequently, respondents 4 to 6 are added by way of amendment as per the orders in I.A.No.799/15 dt.20.07.2015. The case of 2MVOP 521/14

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petitioner is as follows:

1.1) The petitioner is resident of Vadrangula village, Manchingiput Mandal,

Visakhapatnam district. During the year 2012, some of the residents of

Manchingiput Mandal went to Guntur district for cooly work. After completion of the cooly works, to come back to their respective villages the petitioner and other co- workers boarded a cement load lorry bearing No.AP 31 TA 2655 on 17.072012 at about 14.00 hours by paying Rs.300/-. The said lorry crossed Ravulapalem at about 04.00 hours on 18.07.2012. The driver of the lorry was driving the same in rash and negligent manner. At the same time, another lorry bearing No. AP 05 W 8289 was proceeding in front of the lorry bearing No. AP 31 TA 2655. The lorry bearing

No. AP 05 W 8289 suddenly took right turn without giving any signals. Since the lorry bearing No. AP 31 TA 2655 was moving in high speed, it dashed the lorry bearing No. AP 05 W 8289 which took sudden right turn. As a result, both lorries fell down in the canal abutting to road. Five persons including the driver of lorry bearing No.AP 31 TA 2655 died. The petitioner sustained multiple injuries. Thus, the accident occurred due to rash and negligent driving of the drivers of both the lorries. A case in Cr.No.94/2012 under Sections 304-A, 338 and 337 IPC was registered by the police of Alamuru Police Station, East Godavari district. The police filed charge sheet against R.4 who was the driver of lorry bearing No. AP 05 W 8289, as the driver of lorry bearing No.AP 31 TA 2655 died on the spot. The 1st respondent is the owner and 2nd respondent is the insurer of lorry bearing AP 31 TA 2655. The respondents 3 and 5 are shown as owners of the lorry bearing No. AP 05

W 8289 as per RC and insurance policy respectively. The 6th respondent is the insurer and the 4th respondent is the driver of the said lorry bearing No. AP 05 W 8289.

1.2) The petitioner sustained grievous injuries: 1) A fracture of both bones of right leg; 2) A fracture of both bones of left leg. The petitioner also sustained injuries all over the body. Immediately after the accident, the petitioner was shifted to district hospital, Rajahmundry and after initial treatment, the petitioner was shifted to KGH, Visakhapatnam. The petitioner underwent treatment as inpatient from 22.07.2012 to 08.08.2012. Dr. Eswar Babu, M.S. (Ortho) treated the petitioner by conducting major surgeries. While discharging her, the petitioner was advised to 3MVOP 521/14

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attend periodical physiotherapy. The petitioner spent an amount of Rs.50,000/- towards treatment, medicines, extra nourishment and transport charges. Due to the accident, the petitioner became permanently disabled to attend her regular works. The petitioner suffered physical and mental pain. The doctors advised the petitioner to take rest for one year. Prior to the accident, the petitioner used to earn Rs.250/- to Rs.300/- per day and Rs.8,000/- to Rs.10,000/- per month by attending cooly works. All the respondents are jointly and severally liable to pay the said compensation.

2.The respondents 1, 3, 4 and 5 remained exparte. Thus, except the insurance companies, the other respondents did not contest the matter. The 2nd respondent (New India Assurance) is the insurer of lorry bearing No. AP 31 TA 2655 and it filed counter with the following averments:

2.1) The allegations mentioned in the claim petition are not correct. The 2nd respondent does not admit about the ownership and insurance of the lorry bearing

No. AP 31 TA 2655 and it also does not admit that it was driven by Ch.

Satyanarayana Raju. The said Satyanarayana Raju was not having valid driving licence and badge to drive the transport vehicle. The said lorry was not having permit and fitness certificate was on the date of accident. Two lorries are involved in the accident. The petitioner was travelling as unauthorised passenger. The accident occurred due to gross negligence of the driver of the lorry bearing No. AP 05 W 8289. As such, the owner, insurer and driver of the said lorry alone are liable to pay compensation. The 2nd respondent is not liable to pay any compensation.

The insurance policy does not cover the risk of unauthorised passengers. Thus, there is fundamental breach of the terms of the insurance policy. There is no contractual liability or statutory liability to cover the risk of gratuitous or unauthorised passenger. The 2nd respondent does not admit that the petitioner-

Savithri was 18 year old and was earning Rs.9,000/- per month. As per wound certificate, the petitioner sustained fracture injuries and they might have been healed long ago. As such, there is no disability either permanent or partial. The petitioner is put to strict proof that she was treated in district hospital,

Rajahmundry and in KGH, Visakhapatnam. Since KGH is a government hospital, the entire medical expenditure is free. The petitioner is put to strict proof that he spent 4MVOP 521/14

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Rs.50,000/- for treatment, medicines, nourishment and transportation. The claim is highly excessive. The 2nd respondent seeks protection under Sec. 147 and 149 of

Motor Vehicles Act. Finally, the 2nd respondent prayed to dismiss the claim petition against it.

3.The 6th respondent (Oriental Insurance) filed its counter with the following averments:

3.1) The averments mentioned in the petition are not correct. The FIR relating to the said accident was not given to the 6th respondent. The accident occurred only due to gross negligence of the driver of the lorry bearing No. AP 31

TA 2655 in which the petitioner and others boarded. The said driver allowed the unauthorised and gratuitous passengers in the cabin and on the top of the cement load. Therefore, there is gross violation of terms of insurance policy. As per the inquest report, the driver of the lorry bearing No. AP 31 TA 2655 namely Ch.

Satyanarayana Raju drove the lorry rash and negligently under the influence of alcohol. He drove the lorry without keeping minimum distance between two lorries.

There is no rash and negligence on the part of the driver of lorry bearing No. AP 05

W 8289. Unfortunately, the police filed charge sheet against the driver of lorry bearing No. AP 05 W 8289 as well. In fact, the driver of the lorry bearing No. AP 31

TA 2655 was shown as A.2 in the said case. However, on his death case against A.2 was abated. The 6th respondent does not admit about the monthly income and age of the petitioner. If at all the petitioner is entitled for compensation, it is from the 1st and 2nd respondents only. The claim of petitioners is excessive and without any basis. The petitioner is put to strict proof in respect of the alleged injuries. The said injuries might have healed long ago. There is no permanent disability to the petitioner. The petitioner is not entitled for the claims under various heads as claimed by her. The 6th respondent is not liable to pay any compensation to the petitioners unless it is proved that section 64 (v) (b) of Insurance Act, 1938 and

Rule 58 of the Insurance Rules, 1959 are complied with. The 6th respondent seeks protection under Sections 147, 149, 158 (6), 170, 188 and 190 of M.V. Act. The 6th respondent is not liable to pay compensation even under no fault liability under

Sec. 140 of M.V. Act. Finally, the 6th respondent prayed to dismiss the claim petition as against it.

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4.Basing on the pleadings the following issues were settled for trial on 16.07.2018:

1. Whether the petitioner/injured Kora Duttum Savitri (sic. Duttum Savitri), D/o Bannadh in the motor vehicle accident on 18.07.2012 at about 4.00 hours NH-16 road, Jonnada village, E.G. District, if so, the said accident occurred due to rash and negligent driving of the lorries bearing Nos. AP 05 W 8289 and AP 31 TA 2655 driven by its drivers?

2. Whether the petitioner is entitled to compensation, if so, to what amount and from which of the respondents?

3. To what relief?

5.During the trial, on behalf of the petitioner, two witnesses were examined and got Exs.A1 to A.5 and Ex.X.1 were marked. On behalf of the respondents, two witnesses were examined and got Exs.B.1 and B.2 marked.

6.Heard the counsel for petitioner and the counsel for the respondents.

Perused the written arguments.

7.ISSUE No. 1:

7.1) As mentioned above, the accident took place when lorry bearing No.

AP 31 TA 2655 dashed lorry bearing No. AP 05 W 8289 which was proceeding ahead of the former lorry. According to the version of petitioner and 2nd respondent, the accident took place since the driver of lorry bearing No. AP 05 W 8289 suddenly took right turn without giving any signal. The petitioner also attributed rash and negligence on the part of driver of lorry bearing No. AP 31 TA 2655 stating that he was driving the same in high speed. But according to 6th respondent, the accident took place only due to rash and negligent driving by the driver of the lorry bearing No. AP 31 TA 2655 stating that he was driving the same under the influence of alcohol.

7.2) The petitioner is examined as P.W.1. In her evidence affidavit, P.W.1 reiterated the contents of claim petition. She produced attested copies of FIR, wound certificate, MVI report, charge sheet, discharge summary under Exs.A.1 to

A.5. In the cross-examination P.W.1 stated that at the time of accident, the petitioner and her companions total 10. She denied the suggestion that the driver of the said lorry on which she boarded, drove the same in rash and negligent manner in a drunken state and there is no fault on the part of 4th respondent (driver of the other lorry).

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7.3) It is an undisputed fact that the police of Alamuru P.S., E.G. District registered FIR in Cr. No.94/2012 in respect of the said accident by showing the driver of lorry bearing No. AP 05 W 8289 i.e., R.4 as the accused. The police attributed rash and negligence on the part of Ch. Satyanarayana Raju i.e., the driver of lorry bearing No. AP 31 TA 2655 as well. It is also not in dispute that the case against said Satyanarayana Raju was abated on his death. Therefore, it is clear that four persons and the driver Satyanarayana Raju died because of the said accident. The police attributed rash and negligence to both the drivers and filed charge sheet. In the First Information attached to FIR, it is mentioned that the accident took place due to the rash and negligence driving of both the drivers. At column VII of FIR, both the drivers are shown as accused. The charge sheet was filed against 4th respondent namely Sanamandra Venkata Rao, the driver of lorry bearing No. AP 05 W 8289, since the driver of lorry bearing No. AP 31 TA 2655 died in the said accident itself. In para 23 of the charge sheet it is mentioned that both drivers are liable for punishment under sections 304-A, 338 and 337 of IPC, but, since the driver of lorry bearing No. AP 31 TA 2655 is no more, the charge sheet is filed only against R.4.

7.4) With regard to proof of rash and negligent driving, the filing of charge sheet by the police can be considered apart from the direct evidence. The Hon’ble

High Court of Kerala in New India Assurance Co.Ltd. vs. Pazhaniammal and others (2012 ACJ 1370) held:

A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against indictee. If any one of the parties does not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in case where charge sheet is filed, the tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale in to insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such charge sheet can be reckoned as sufficient evidence of negligence in a claim under section 166 of the Motor Vehicles Act 1988.

Thus, Filing of charge sheet is prima facie proof of negligence on the part of driver of crime vehicle. Hence, the evidence of P.W.1 coupled with Ex.A.1 to A.4 is sufficient to conclude that the said accident took place due to rash and negligent 7MVOP 521/14

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driving of the both the drivers of the above mentioned lorries and the petitioner sustained injuries because of the said accident. Accordingly, this point is answered.

8.ISSUE NO.2:

8.1) The petitioner apart from giving her evidence about the injuries sustained by her, got examined Dr. P. Ashok Kumar as a witness on her behalf.

P.W.2/Dr. Ashok Kumar deposed that he was working as Professor in Orthopedic,

AMC, KGH and he knew Dr. M. Eswara Babu, who retired from service. He further stated that Eswara Babu treated the petitioner and as per Ex.A.5-discharge summary the patient was admitted in hospital on 22.07.2012 with fractures of both bones of both legs and he was operated on 02.08.2012 and was discharged on 11.08.2012. In the cross-examination, P.W.2 stated that the treatment and medicines are provided on free of cost in KGH. He further stated that he cannot say whether the petitioner sustained any disability due to the said accident. He further stated that mostly the patient can attend her normal duties as usual.

8.2) The evidence of P.Ws.1 and 2 coupled with Ex.A.5 it is clear that the petitioner was treated in KGH from 22.07.2012 to 11.08.2012. It is established in the cross-examination that the petitioner did not incur any expenses for the said treatment in KGH since it is a government hospital. However, one cannot deny the physical and mental suffering undergone by the petitioner and the expenses that he had to spend for transportation from her village in Manchingiput mandal to

Visakhapatnam and then to KGH. It is also an undisputed fact that the petitioner confined to hospital for about 20 days and thus lost her regular income for the said period.

8.3) As seen from the wound certificate, discharge summary and as per the evidence of P.W.2, the petitioner sustained two fracture injuries of each bone of both legs. However, as per the evidence of P.W.2, the petitioner did not have permanent disability. P.W.2 also stated that the petitioner can mostly attend her works as usual. Therefore, the petitioner can be compensated for the loss of income for 20 days and for the pain and suffering of four fractures, for extra nourishment and transportation.

8.4) In the claim petition, loss of earning is shown at Rs.40,000/-. However, even according to petitioner, her monthly income was Rs.8,000/-. In the year 2012 8MVOP 521/14

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monthly income of an unskilled labour can be taken at Rs.5,000/- per month.

Therefore, the petitioner is entitled for compensation under the head of loss of income at Rs.3,350/- for 20 days. The petitioner claimed Rs.10,000/- towards extra nourishment and attendant charges. Rs. 5000/-can be granted since one cannot deny that the patient who was in hospital for 20 days needs an attendant and food for extra nourishment. Rs.5,000/- can be granted towards transportation charges.

As per the evidence of P.Ws.1 and 2, the petitioner had undergone severe physical and mental pain and suffering for four fractures, surgeries, for implantation of rods etc., Therefore, this Tribunal is of the view that the petitioner is entitled for

Rs.25,000/- for each fracture towards pain and suffering. Thus, the petitioner is entitled for compensation of total Rs.1,13,350/-.

8.5) As discussed above, the petitioner is entitled for compensation of

Rs.Rs.1,13,350/-. Then the question to be decided is who has to pay that compensation among the respondents or all of them?

8.6) On behalf of 2nd respondent, R.W.1-M.Devacharan is examined. He deposed that he was the Assistant Manager of 2nd respondent-Insurance Company.

The 2nd respondent issued insurance policy to the lorry bearing AP 31 TA 2655 vide policy No.62030131110100015138 for the period from 13.01.2012 to 12.01.2013.

The accident took place on 18.07.2012. The said policy was issued under certain terms and conditions. R.W.1 further stated that the 2nd respondent is not liable to pay compensation since the 1st respondent/owner violated the terms of insurance policy. The said vehicle is a heavy good commercial vehicle which is meant for carrying good only. However, the owner of the vehicle and/or the owner of the goods can be sit in the cabin and no other persons are entitled to travel in the goods vehicle. The driver was not having any driving licence as on the date of the accident. The petitioner and others who boarded on the lorry are unauthorised gratuitous passengers. The insurance is not covered to such passengers. Travelling in the goods vehicle will not come under the definition of third parties. Ex.B.1- attested copy of insurance policy and Ex.B.2-copy of vehicle registration are marked through R.W.1.

8.7) According to R.W.1, the deceased and other persons travelled in the lorry as unauthorised and gratuitous passengers. However, as per the evidence of 9MVOP 521/14

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P.W.1 and as per the first information, the petitioner and others travelled in the said lorry by paying Rs.300/-. It is not the case of the respondent that the driver of said cement load lorry is a known person or relative of the deceased. In such case, it cannot be believed that the driver allowed the deceased and others gratuitously.

Therefore, it cannot be said that the deceased and others are gratuitous passengers. However, since the deceased and others travelled in a goods vehicle, it can be said that they are unauthorised persons.

8.8) R.W.2-M. Gangabhavani is examined. She stated that she was working as Junior Assistant in the RTA Office and further deposed that as per the records of

RTO, the 1st respondent is shown as owner of the vehicle bearing No. AP 31 TA 2655 as on 18.07.2012 and the present owner is shown as Gurla Appalanaidu. She further stated that the said vehicle was not having permit and on verification of records in RTO, no driving licence found in the name of Ch. Satyanarayana Raju.

8.9) Merely because there is no record in the RTO Office about the driving licence, It cannot be said that the driver was not having driving licence. R.W.2 stated in the cross-examination by the petitioners’ side, that the RTA

Visakhapatnam is having authority to grant driving licence to the residents of

Visakhapatnam city only and the said office is not concerned with the driving licences to the residents of other districts. R.W.2 further stated in the cross- examination by the counsel for R.6 that she does not know whether Cherukuri

Satyanarayana Raju, S/o Rama Raju was having valid driving licence as on 18.07.2012. It is to be noted that the charge sheet is filed against both the drivers under Sec. 304-A, 338 and 337 IPC but not under the provisions of M.V. Act.

Therefore, there is no material brought out by the respondents 2 and 6 that the drivers of the offending vehicles were not having driving licence.

8.10) Since the petitioner and other passengers are unauthorised passengers, it can be said that there is violation of insurance policy of both the vehicles. However, the Hon’ble Apex Court in Shamanna Vs. Oriental Insurance

Company Ltd., 2018 ACJ 2163, Rani Vs. National Insurance Company Ltd.,

(2018) 8 SCC 492 and in Kurvan Ansari v. Shyam Kishore Murmu, (2022) 1

SCC 317 also held that when there were violations of insurance policy, the Tribunal can direct the insurance company to pay the compensation to the petitioners and 10MVOP 521/14

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recover the same from the owner of the vehicle. The Hon’ble erstwhile High Court of Andhra Pradesh in Branch Manager, United India Insurance Co. Ltd. v.

Dadisetti Ramanamma, 2013 (5) ALD 504 observed as follows:

The primary objective of this enactment as with reference to claims for compensation is to protect the interest of innocent victims of motor vehicle accidents and their dependents. It is a welfare legislation. The legislative intent contained therein is required to be interpreted with a view to give effect thereto. The accidents paralyse otherwise smooth moving wheels of life and completely upsetting the family's dreams and aspirations, many times taking the stuff out of entire family or leaving minor children or old parents left in the lurch. Several safeguards are provided to the victims and their dependants in getting suitable compensation for the loss of life or limb. Keeping the primary objective of welfare legislation, Courts are concerned with awarding just compensation and to ensure that the compensation awarded reaches the victims or their dependants as early as possible. Delay in payment of compensation mitigates against the very objective of the enactment.

Therefore, in view of the said judgments of Hon’ble Apex Court and Hon’ble High

Court, the insurance companies (R.2 and R.6) shall be directed to pay compensation and may recover the same from the respective owners of the two lorries. Hence, in view of my forgoing discussion the petitioner is entitled for compensation as detailed below:

Heads Compensation awarded

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

2. Extra nourishment: Rs. 5,000/-

3. Loss of actual earnings: Rs. 3,350/-

4. Pain and suffering : Rs.1,00,000/- (Rs.25,000/- for each fracture)

Total: Rs.1,13,350/-

9.ISSUE NO.3:

In view of my above discussion on issues 1 and 2, this petition deserves to be allowed with costs granting Rs.1,13,350/- as just compensation. Both the lorries are equally fault and therefore, the drivers of both vehicles are liable to pay compensation. The owners of the said two vehicles are vicariously liable to pay the compensation. However, in view of the above mentioned case law, R.2 and R.6 can be directed to pay compensation to the petitioners in equal proportion and thereafter may recover the same from the owners of the lorries. Accordingly, this 11MVOP 521/14

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issue is answered.

10.In the result, this petition is partly allowed with proportionate costs by granting compensation of Rs.1,13,350/-(Rupees one lakh thirteen thousand three hundred and fifty only) to the petitioner with subsequent interest thereon at the rate of 7.5% p.a., from the date of the claim-petition till the deposit of the amount.

The respondent Nos. 2 and 6 are directed to deposit the said amount with proportionate costs and interest within one month from the date of this judgment.

The respondents 2 and 6 are entitled to recover the amounts from the respective owners of the vehicles bearing Nos. AP 31 TA 2655 and AP 05 W 8289. On such deposit, the petitioner is entitled to withdraw the entire amount. Rs.5,000/- is awarded towards advocate fee.

Typed to my dictation by the Superintendent (discharging duties as Stenographer), corrected and pronounced by me in the open court on this, the 31st day of March, 2022.

Chairman, MACT-cum- IV Addl. Dist. Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioner: For the Respondents:

PW.1: D. SavitriR.W.1: M. Devacharan P.W2: Dr. P. Ashok KumarR.W.2: M. Ganga Bhavanai

DOCUMENTS MARKED

For the Petitioner:

Ex.A1/-: Attested copy of FIR Ex.A2/-: Attested copy of wound certificate Ex.A3/-: Attested copy of M.V.I. Report Ex.A4/-: Attested copy of charge sheet Ex.A5/: Discharge summary issued by K.G.H.

For the respondents:

Ex.B1/-: Attested copy of policy relating to vehicle No.AP 31 TA 2655 Ex.B2/: Net copy of vehicle registration of AP 31 TA 2655 X-series:

Ex.X1/-: Case sheet of the petitioner D. Savithri

IV ADJ/VSP.

Date of presentation: 19.03.2014 Date of filing: 30.04.2014

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Thursday, the 31st day of March, 2022

M.V.O.P.No.521/14

Between: Duttum Savithri, D/o Bannadh, 18 years, Puraji, Cooly, Vadrungula village, Barara panchayat, Manchingiput Mandal, Visakhapatnam district … Petitioner And:

1. Pentakota Siva, S/o Suri Babu, age not known to the petitioner but major, R/o 24-16-2/1, Chinna Gantyada, Gajuwaka, Visakhapatnam (Owner of lorry AP 31 TA 2655)

2. The New India Assurance Co., Ltd., rep. at local The Manager, Dwarakanagar, Visakhapatnam Insurer of lorry reg. No. AP 31 TA 2655

3. S. Nagasubramanyam, S/o Nageswara Rao, D.No.1-12, Korumilli, Kapileswarapuram Mandal, Tadepalligudem, W.G. District, owner of lorry Reg. No. AP 05 W 8289

4. Sanamandra Venkata Rao, S/o Musalaiah, 35 years, Jagannadhapuram village, Tadepalligudem Mandal, West Godavari District (Driver of Lorry Reg. No.AP 05 W 8289)

5. K. Nirmala, W/o K.V.V. Satyanarayana, D.No.56-11-14/4/2, Vidyanagar, Rajahmundry, E.G. District (Policy owner of lorry Reg. No. AP 05 W 8289)

6. The Oriental Insurance Company Ltd., rep. by its Manager T.P. Hub, Dabagardens, Visakhapatnam Insurer of Lorry Reg. No. AP 05 W 8289 … Respondents

(Respondents 4 to 6 were added as per the orders in I.A.No.799/15

dt.20.07.2015)

The petitioner/injurednamely Duttum Savithri filed this petition against the respondents U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by her in a motor vehicle accident together with subsequent interest at 18% p.a., and for costs of the petition.

Amount claimed is Rs.2,00,000/- and a court fee of Rs.1,360/- is paid under Rule 475(1) of A.P.M.V.Rules vide challan No.15 dt.19.03.2014 deposited in State Bank of Hyderabad, District Court Branch, Visakhapatnam.

This petition came before me on 24.02.2022 for final hearing in the presence of Sri G. Bangaru Naidu, Advocate for the petitioner and the respondents 1, 3 to 5 are having remained exparte and of Sri T.H. Ramanath, Advocate for the 2nd respondent and of Sri A. Venugopala Rao, Advocate for the 6th respondent. Having 13MVOP 521/14

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heard arguments, perused the record and considered the same till this day, this Court doth order and

D E C R E E

1. that the petition be and the same is hereby partly allowed;

2. that the respondents 2 and 6 be and are hereby jointly and severally liable to pay compensation amount of Rs.1,13,350/-(Rupees one lakh thirteen thousand three hundred and fifty only) to the petitioner with proportionate costs together with subsequent interest at 7.5% p.a., from the date of claim petition till the deposit of the amount;

3. that the respondents 2 and 6 be and are hereby directed to deposit the said amount with proportionate costs together with interest @ 7.5% per annum within one month from the date of this judgment;

4. that the respondents 2 and 6 be and are hereby directed to pay the compensation amount to the petitioner at first instance and they may recover the same from the respective owners of the vehicles bearing Nos. AP 31 TA 2655 and AP 05 W 8289;

5. that on deposit of the said amount into Court, the petitioner be and is hereby permitted to withdraw the entire amount;

6. that the respondents 2 and 6 do also pay to the petitioner a sum of Rs.5,934-00 towards proportionate costs of the petition. Given under my hand and the seal of this Court on this the 31st day of March, 2022.

Chairman, MACT-cum- IV Addl. Dist. Judge, Visakhapatnam.

Memorandum of costs

For petitioner:For respondents:

1. Stamps on vakalat: Rs. 2-00No costs memo is filed

2. Stamps on petition: Rs. 1,360-00

3. Stamps on petitions: Rs. 5-00

3. Stamps on process: Rs. 275-00

4. Stamps on documents: Rs. 5-00

5. Advocate’s fee (fixed by Court): Rs. 5,000-00

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Costs allowable: Rs. 6,647-00

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Prop. Costs allowed: Rs. 5,934-00

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IV ADJ/VSP

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Wednesday, the 6th day of April, 2022

M.V.O.P.No.84/15

Between: Doppa Aruna Kumar, S/o D. Paul, Christian, 46 years, Business, P.M. Palem, Visakhapatnam … Petitioner And:

1. Golagani Arjun, S/o Ramulu, Hindu, aged about 39 years, Owner of Auto bearing No. AP 31 TB 8469, D.No.9-9-128/126, Rajeev Nagar, Sivaji Nagar, Visakhapatnam

2. Universal Sampo General Insurance Co., Ltd., Visakhapatnam, 2nd Lane, Potluru Castle, Dwarakanagar, Visakhapatnam … Respondents

This petition came before me on 25.03.2022 for final hearing in the presence of Sri P. Apparao, Advocate for the petitioner and the 1st respondent having remained exparte and of Sri V. Parthasaradhi, Advocate for the 2nd respondent. Having heard arguments, perused the record and considered the same till this day, this Court delivered the following:

JUDGMENT

1.The petitioner/injured namely Doppa Aruna Kumar filed this petition against the respondents 1 and 2 U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor

Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident. The case of petitioner is as follows:

1.1) The petitioner is resident of P.M. Palem and used to work as Works

Manager, Venky Engineering Works, Ramanaiahpeta, Industrial Estate, Kakinada and was getting Rs.20,000/- per month. On 11.07.2012 at 10.30 hours the petitioner was proceeding towards e-seva kendram, near Saibaba Temple,

Kancharapalem on a motor bike bearing No. AP 31 AS 8176. At that time, an auto bearing No. AP 31 TB 8334 was coming from Tatichetlapalem side in a rash and negligent manner and hit the bike of the petitioner from the front side. The petitioner sustained injuries: 1) fracture to collar bone; 2) fracture to middle finger and 3) fracture to right wrist. The petitioner was rushed to Deepti Nursing Home,

Kancharapalem, Visakhapatnam. The petitioner had to spent Rs.35,000/- for treatment, extra nourishment etc., The petitioner lost two months salary besides

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IV A.D.J., VSP.

undergoing lot of pain and suffering. With regard to accident, the S.H.O.,

Kancharapalem Traffic P.S., registered a case in Cr.No.306/12 under Sec.338 IPC.

Hence, the petition is filed.

2.The 1st respondent who is said to owner-cum-driver of auto bearing

No. AP 31 TB 8334 remained exparte. The 2nd respondent who is the insurer of the said auto filed counter with the following averments:

2.1) The allegations mentioned in the claim petition are not correct. The 2nd respondent is not liable to pay any compensation unless it is proved that the vehicle is in conformity with Sec.64 V-B of Insurance Act. The driver of the said auto was not holding proper driving licence. The 1st respondent committed breach of insurance policy. The police did not comply with Sec. 158 (6) of M.V. Act. The 1st respondent did not comply with Sec. 134 (c) of M.V. Act. The 2nd respondent seeks protection under Sections 147 and 148 of M.V. Act. The 2nd respondent is not aware of the age and income of the petitioner. It is not correct to say that petitioner spent

Rs.35,000/- for treatment and for extra nourishment etc., The claim of the petitioner is excessive. Finally, the 2nd respondent prayed to dismiss the petition.

3.Basing on the pleadings the following issues were settled for trial on 19.07.2016:

1. Whether the petitioner sustained injuries in the motor accident occurred due to the rash and negligent driving of the motor vehicle bearing Regn. No. AP 31 TB 8334 (auto) driven by R1?

2. Whether the petitioner is entitled to compensation? If so, to what extent and from which of the respondents?

3. To what relief?

4.During the trial, on behalf of the petitioner, one witness was examined and got Exs.A1 to A.6 were marked. No evidence was adduced on behalf of the respondents.

5.Heard the counsel for petitioner and the counsel for the respondents.

Perused the material part of the record.

6.ISSUE No. 1:

6.1) According to petitioner, the accident took place because of the rash and negligent driving of the driver of the auto bearing No. AP 31 TB 8334. On this aspect, the petitioner as P.W.1 gave evidence orally and also produced attested

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IV A.D.J., VSP.

copies of FIR, wound certificate and MVI Report. As seen from the FIR, the case is registered against 1st respondent attributing rash and negligent driving. The petitioner produced xerox copy of driving licence of the 1st respondent. It is not the case of 2nd respondent that charge sheet is not filed against the 1st respondent. In respect of the manner of accident, there is evidence of P.W.1. But, there is no evidence on behalf of 2nd respondent. The Hon’ble Supreme Court in Vidhyadhar

Vs. Mankikrao and Anr. AIR 1999 SC 1441 held that if a Party did not enter into the witness box to state his own case on oath and to offer himself to be cross- examined by the other side, it can be presumed that the case set up by him is not correct. Therefore, the defence of 2nd respondent which is mentioned in the counter need not be considered in respect of the manner of the accident.

6.2) It is an undisputed fact that the police of Kancharapalem Traffic P.S., registered FIR in Cr. No.306/2012 in respect of the said accident by showing the driver of auto bearing No. AP 31 TB 8334 i.e., R.1 as the accused. The police attributed rash and negligence against the 1st respondent. In the First Information attached to FIR, it is mentioned that the accident took place due to the rash and negligence driving of driver of the said auto. At column VII of FIR, the driver of the said auto is shown as accused. Hence, the evidence of P.W.1 coupled with Ex.A.1 to A.4 is sufficient to conclude that the said accident took place due to rash and negligent driving of the driver of the auto bearing No. AP 31 TB 8334 and the petitioner sustained injuries because of the said accident. Accordingly, this point is answered.

7.ISSUE NO.2:

7.1) In the counter of 2nd respondent, it did not deny the existence of insurance policy. As already discussed in first issue, the 2nd respondent did not adduce any evidence. A copy of insurance policy is available in the bundle.

Therefore, it can be said that the offending vehicle i.e., auto bearing No. AP 31 TB 8334 is insured with 2nd respondent and the policy was in force as on the date of accident.

7.2) The petitioner produced copy of wound certificate which shows injuries : 1) fracture of middle shaft of left clavicle (collar bone); 2) fracture of fifth metacarpal spine of right hand (little finger); 3) crush injury of middle finger of

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IV A.D.J., VSP.

right hand; and 4) laceration of size 2 x 1 cm., on left occipital region. But, the petitioner did not examine any doctor to depose about the injuries. However, the

FIR was registered under Sec. 338 IPC. Therefore, it is obvious that the police considered the injuries of the petitioner as grievous even as on the date of accident. The evidence of P.W.1 coupled with wound certificate (Ex.A.2) in the absence of evidence from 2nd respondent, it can be concluded that the petitioner sustained two fracture injuries.

7.3) It is not mentioned in the claim petition or in the chief-examination of

P.W.1 that petitioner was treated as inpatient in hospital. But, it is stated in the claim petition that petitioner lost earnings for two months. The petitioner did not examine any other witness, particularly any doctor in respect of his stay in hospital or his alleged bed rest for two months. Therefore, it cannot be said that the petitioner lost earnings for two months. However, as discussed above the petitioner sustained a fracture to collar bone and another fracture to the little finger. One cannot deny the pain and suffering when a person sustained fracture injuries. The petitioner stated that he spent Rs.35,000/- for treatment but the petitioner produced medical bills for Rs.30,058/-. Therefore, the said amount can be granted towards medical expenses. Rs.5,000/- can be granted towards expenses for extra nourishment. Rs.30,000/- can be granted towards pain and suffering in respect of collar bone fracture. Rs.20,000/- can be granted towards pain and suffering in respect of little finger fracture. Altogether the petitioner is entitled for Rs. 85,058/- towards compensation for the said injuries.

7.4) As stated above, the 2nd respondent did not adduce any evidence on its behalf. It is not the version of 2nd respondent that the offending vehicle is not insured with it. Therefore, the 2nd respondent being insurer of the offending vehicle i.e., auto bearing No. AP 31 TB 8334 is liable to pay the said compensation of

Rs.85,058/-.

8.ISSUE NO.3:

In view of my above discussion on issues 1 and 2, this petition deserves to be allowed with costs granting Rs. 85,058/- as just compensation. The 1st respondent being the driver-cum-owner of the offending vehicle is liable to pay the said compensation. The 2nd respondent has to indemnify the 1st respondent for the

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said amount. In other words, the 2nd respondent is liable to pay compensation of

Rs. 85,058/- to the petitioner. Accordingly, this issue is answered.

9.In the result, this petition is partly allowed with proportionate costs by granting compensation of Rs. 85,058/-(Rupees eighty five thousand fifty eight only) to the petitioner with subsequent interest thereon at the rate of 7.5% p.a., from the date of the claim-petition till the deposit of the amount. The 2nd respondent is directed to deposit the said amount with proportionate costs and interest within one month from the date of this judgment. On such deposit, the petitioner is entitled to withdraw the entire amount. Rs.5,000/- is awarded towards advocate fee.

Typed to my dictation by the Superintendent (discharging duties as Stenographer), corrected and pronounced by me in the open court on this, the 6th day of April, 2022.

Chairman, MACT-cum- IV Addl. Dist. Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioner: For the Respondents:

PW.1: D. Arun KumarNone

DOCUMENTS MARKED

For the Petitioner:

Ex.A1/-: Attested copy of FIR Ex.A2/-: Attested copy of wound certificate Ex.A3/-: Attested copy of M.V.I. Report Ex.A4/-: Attested copy of policy certificate Ex.A5/-: Bunch of medical bills Ex.A6/-: Salary Certificate

For the respondents: Nil

IV ADJ/VSP.

MVOP 84/15

IV A.D.J., VSP.

Date of presentation: 01.05.2014Date of filing: 27.01.2015

Before The Chairman, Motor Accidents Claims Tribunal - Cum- IV Additional District

Judge: Visakhapatnam

Present: Sri G. Bhupal Reddy Chairman, MACT - cum – IV Addl. District Judge, Visakhapatnam Wednesday, the 6th day of April, 2022

M.V.O.P.No.84/15

Between: Doppa Aruna Kumar, S/o D. Paul, Christian, 46 years, Business, P.M. Palem, Visakhapatnam … Petitioner And:

1. Golagani Arjun, S/o Ramulu, Hindu, aged about 39 years, Owner of Auto bearing No. AP 31 TB 8469, D.No.9-9-128/126, Rajeev Nagar, Sivaji Nagar, Visakhapatnam

2. Universal Sampo General Insurance Co., Ltd., Visakhapatnam, 2nd Lane, Potluru Castle, Dwarakanagar, Visakhapatnam … Respondents

The petitioner/injured namely Doppa Aruna Kumar filed this petition against the respondents U/Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor Vehicles Rules claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident together with subsequent interest at 18% p.a. and costs of the petition.

Amount claimed is Rs.2,00,000/- and a court fee of Rs.1,360/- is paid under Rule 475(1) of A.P.M.V.Rules vide challan No. 52 dt.30.10.2014 in State Bank of Hyderabad, District Court Extension Counter, Visakhaptnam.

This petition came before me on 25.03.2022 for final hearing in the presence of Sri P. Apparao, Advocate for the petitioner and the 1st respondent having remained exparte and of Sri V. Parthasaradhi, Advocate for the 2nd respondent. Having heard arguments, perused the record and considered the same till this day, this Court doth order and

D E C R E E

1.that the petition be and the same is hereby partly allowed;

2.that the 2nd respondent be and is hereby directed to pay a sum of Rs.85,058/- (Rupees eighty five thousand fifty eight only) together with proportionate costs and interest thereon at the rate of 7.5% p.a., from the date of claim petition till deposit of the amount;

3. that the 2nd respondent be and is hereby directed to deposit the said amount with proportionate costs and interest within one month from the date of the judgment; and

4.that on such deposit of the amount into court, the petitioner be and is

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IV A.D.J., VSP.

hereby entitled to withdraw the entire amount. Given under my hand and the seal of the court, the 6th day of April, 2022.

IV ADDL. DISTRICT JUDGE

-cum-CHAIRMAN, M A C T

VISAKHAPATNAM

Memorandum of costs

No costs memo is filed on either side

IV ADJ, VSP.

Note: Rs.5,000/- is fixed by the Court towards Advocate’s fee

IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE,

VISAKHAPATNAM

Present: Sri G. Bhupal Reddy, IV Addl. District Judge, Visakhapatnam. Wednesday, the 6th day of April, 2022

O.S.575/2013

Between: Manchem Srinivas, S/o late M.V. Raghavulu, 42 years, D.No.50-50-1A, TPT Colony, Seethammadhara, Visakhapatnam… Plaintif And:

1. M.V.V.S. Vara Prasad, S/o late M.V. Raghavulu, 53 years,residing at C/o M. Anasuya (wife), No.13, P.G. Men’s Hostel, Sri Devraj URS Medical College, Tamaka, Kolar District, Kaernataka State

2. B. Kusuma, W/o B. Lakshminarayana, 50 years, R/o 3rd floor, Sampath Pradhan Residency, KRM Colony, Visakhapatnam

3. Ch. Usha Tara, W/o Ch. Ravi, 48 years, R/o D.No. Flat No.G-III, Kesa Pragada Towers, Srinagar, Dwarakanagar, Visakhapatnam

4. K. Soujanya, W/o K.V. Srinivas, 38 years, C/o B. Kusuma, r/o 3rd floor, Sampath Pradhan Residency, KRM Colony, Visakhapatnam

5. M.V.K. Chaitanya, S/o late M. Veera Raghavulu, 23 years, C/o M. Anasuya, No.13, P.G. Men’s Hostel, Sri Devraj URS Medical College, Tamaka, Kolar District, Kaernataka State

6. M. Subhadra Devi, W/o late M. V. Raghavulu (died)… Defendants

This suit came up before me on 21.03.2022 for final hearing in the presence of Sri G. Parvateeswara Rao, Advocate for the Plaintif and the 1st defendant appeared in person, Sri J. Prithvi Raj, Advocate for the 2nd defendant, Sri B. A. Raja Rao and M. Jayasree, Advocates for the 3rd defendant, the defendants 4 and 5 having remained ex-parte and the suit against D.6 was abated as she died and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1.The plaintif filed this suit against the defendants 1 to 6 seeking a decree for partition of the plaint schedule property into seven equal shares and allot one such share to the plaintif and to put him in possession of such allotted share and for costs etc., After filing of the suit, 6th defendant died.

2OS.575/13 IV A.D.J., Vsp.

2.The case of the plaintif in brief:

2.1) The plaintif, defendants 1 and 5 are the sons, defendants 2 to 4 are the daughters and defendant 6 is the wife of late Manchem Veera Raghavulu (M.V.

Raghavulu). During his lifetime, M.V. Raghavulu purchased a house bearing

D.No.50-50-1A, TPT Colony, Seethammadhara, Visakhapatnam i.e., the plaint schedule property. M.V. Raghavulu died intestate on 18.09.2013. The plaintif and 6th defendant are in possession and enjoyment of the first floor portion of the house and the 6th defendant used to collect rents from the tenants in the ground floor portions. The defendants 1,3 and 5 called the 6th defendant to the house of 3rd defendant and kept her to reside along with 3rd defendant by making false allegations against the plaintif. On 11.12.2013 the 3rd defendant and her husband along with their men approached the plaintif with a demand to evict the plaintif from the plaint schedule property. The plaintif is one of the co-sharers along with defendants and he is entitled for 1/7th share in the schedule property. The defendants colluded with each other and are trying to grab the plaintif’s share.

Previously, plaintif used to stay in USA and due to his ill-health he came back to

India and started residing along with his mother in the first floor portion of the plaint schedule property. The plaintif has been sufering from depression and anxiety and taking treatment along with therapy and counseling. After death of plaintif’s father, the 3rd defendant had taken away all the documents pertaining to the properties of the deceased M.V. Raghavulu. Hence, this suit is filed seeking partition.

3.The defendants 4 and 5 remained exparte. The 1st defendant and 3rd defendant filed written statements. The 6th defendant filed adoption memo adopting the written statement of 3rd defendant. The 1st defendant in his written statement admitted the version of the plaintif in respect of shares of the plaintif and the defendants. He pleaded ignorance in respect of the allegations made against 3rd defendant. The 1st defendant further stated that he is aware of the fact that his father executed a registered will in respect of the plaint schedule property.

However, he stated that if the said will is proved, the partition shall take place according to the will. Finally, the 1st defendant stated that he has no objection for partition of the plaint schedule property.

3OS.575/13 IV A.D.J., Vsp.

4.The substance of the written statement of 3rd defendant which is adopted by the 6th defendant is as follows:

4.1) The plaint averments are not correct. The plaintif is put to strict proof of all the allegations. Late M.V. Raghavulu executed a registered will on 17.05.2013 bequeathing the plaint schedule property in favour of plaintif and defendants 1,3 and 5 keeping life interest with the 6th defendant. Thus, the plaintif and defendants 1,3 and 5 get 1/4th share each after the death of 6th defendant. In fact, the plaintif had played very active role in connection with execution of the said will late M.V. Raghavulu. The plaintif mischievously filed this suit by playing fraud. (The 3rd defendant allotted major portion of her written statement to state the status of her family and about each individual of the plaintif and defendants which are not much relevant)

5.Basing on the above pleadings, the then Presiding Officer has settled the following issues for trial:

1. Whether the suit schedule property is a joint family property of the plaintif and defendants?

2. Whether the suit schedule property is a joint possession of the plaintif and defendants?

3. Whether the plaintif is entitle for partition of the suit schedule property among the defendants 1 to 6 for seven equal shares, out of these, he is entitle for one share?

4. To what relief?

6.During the trial, one witness was examined and Ex.A1 was marked on the plaintif’s side. On behalf of the defendants’ side, no oral evidence was adduced but Ex.B.1 was only marked. .

7.Heard both sides.

8.ISSUES 1 to 4:

8.1) The plaintif filed this suit claiming 1/7th share in the plaint schedule property stating that he is one of the sharers along with defendants. According to plaintif, his father died intestate The 3rd defendant filed written statement stating that her father executed a registered will on 17.05.2013 bequeathing the schedule property in favour of plaintif, defendants 1, 3 and 5 by keeping life interest with 6th defendant. Now, the 6th defendant is no more. Therefore, according to the version 4OS.575/13 IV A.D.J., Vsp.

of 3rd defendant, the plaintif is entitled to 1/4th share. The 1st defendant also did not deny the fact of execution of will.

8.2) During trial, plaintif filed chief-examination affidavit by reiterating the contents of plaint. However, in the cross-examination he stated “the signature shown to me on registered will dt.17.05.2013 is of my father. I admit the said will and abide by the terms of the will.” Since the plaintif/P.W.1 admitted the said will it is marked as Ex.B.1 on behalf of 3rd defendant. The plaintif as P.W.1 further stated in the cross-examination “I am hereby withdrawing the adverse allegations levelled in the plaint against the defendants. I am willing to take 1/4th share in the plaint schedule properties.” 8.3) Therefore, according to the version of defendants, the plaintif will get more benefit than that of his claim. Since, the will under Ex.B.1 is not disputed by any of the parties and specifically admitted by the plaintif, it can be acted upon as it is. Hence, the suit can be allowed for partition as per the terms of the Ex.B.1 will.

Accordingly, the plaintif, defendants 1,3 and 5 get equal shares in the plaint schedule property.

9.In the result, this suit is preliminary decreed by allowing partition of the plaint schedule property into four equal shares as per the terms of Ex.B.1 will and the plaintif and defendants 1,3 and 5 get their respective shares as per the said will. In view of the relationship between parties, no costs are awarded.

Typed to my dictation by the Superintendent (discharging duties as Stenographer), corrected and pronounced by me in Open Court on this 6th day of April, 2022.

IV Additional District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Plaintifs: For the Defendants: None

PW.1: M. Srinivas

DOCUMENTS MARKED

For the Plaintif:

Ex.A1/-: Death certificate of M. V. Raghavulu 5OS.575/13 IV A.D.J., Vsp.

For the defendants:

Ex.B1/17.05.2013 : Registered Will

IV ADJ/VSP 6OS.575/13 IV A.D.J., Vsp.

Date of presentation: 23.12.2013Date of filing: 23.12.2013

IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE,

VISAKHAPATNAM

Present: Sri G. Bhupal Reddy, IV Addl. District Judge, Visakhapatnam. Wednesday, the 6th day of April, 2022

O.S.575/2013

Between: Manchem Srinivas, S/o late M.V. Raghavulu, 42 years, D.No.50-50-1A, TPT Colony, Seethammadhara, Visakhapatnam… Plaintif And:

1. M.V.V.S. Vara Prasad, S/o late M.V. Raghavulu, 53 years,residing at C/o M. Anasuya (wife), No.13, P.G. Men’s Hostel, Sri Devraj URS Medical College, Tamaka, Kolar District, Kaernataka State

2. B. Kusuma, W/o B. Lakshminarayana, 50 years, R/o 3rd floor, Sampath Pradhan Residency, KRM Colony, Visakhapatnam

3. Ch. Usha Tara, W/o Ch. Ravi, 48 years, R/o D.No. Flat No.G-III, Kesa Pragada Towers, Srinagar, Dwarakanagar, Visakhapatnam

4. K. Soujanya, W/o K.V. Srinivas, 38 years, C/o B. Kusuma, r/o 3rd floor, Sampath Pradhan Residency, KRM Colony, Visakhapatnam

5. M.V.K. Chaitanya, S/o late M. Veera Raghavulu, 23 years, C/o M. Anasuya, No.13, P.G. Men’s Hostel, Sri Devraj URS Medical College, Tamaka, Kolar District, Kaernataka State

6. M. Subhadra Devi, W/o late M. V. Raghavulu (died)… Defendants

The plaintif filed this suit against the defendants 1 to 6 seeking a decree for partition of the plaint schedule property into seven equal shares and allot one such share to the plaintif and to put him in possession of such allotted share and for costs etc., After filing of the suit, 6th defendant died.

Value of the suit for the purpose of court fee and jurisdiction is valued at Rs.15,21,642/- being 3/4th value of the plaintif’s 1/7th share of Rs.20,28,857/- on total market value of the plaint schedule property of Rs.1,42,02,000/- and a fixed court fee of Rs.200/- is paid under Sec.34 (2) r/w 50 of APCF Act and excess C.F. of Rs.786/- aggregating to Rs.986/- is p aid by way of challan No.13 dt.23.12.2013 of State Bank of Hyderabad, Visakhapatnam ad the plaintif and defendants are in joint and constructive possession.

This suit came up before me on 21.03.2022 for final hearing in the presence of Sri G. Parvateeswara Rao, Advocate for the Plaintif and the 1st defendant appeared in person, Sri J. Prithvi Raj, Advocate for the 2nd defendant, Sri B. A. Raja 7OS.575/13 IV A.D.J., Vsp.

Rao and M. Jayasree, Advocates for the 3rd defendant, the defendants 4 and 5 having remained ex-parte and the suit against D.6 was abated as she died and the matter having stood over for consideration till this day, this Court doth order and

PRELIMINARY DECREE

1.that the suit be and the same is hereby preliminary decreed by allowing partition of the plaint schedule property into four equal shares as per the terms of Ex.B.1 will and the plaintif and defendants 1,3 and 5 get their respective shares as per the said will; and

2.that in view of the relationship between the parties, that there shall be no costs

Given under my hand and the seal of this Court, on this the 6th day of April, 2022.

IV Addl. District Judge, Visakhapatnam.

Memorandum of costs

For plaintif: No costs memo is filed

For 3rd defendant: Costs certified

1. Stamps on vakalatRs. 2-00

2. Sr. Advocate’s feeRs.25,000-00

3. Jr. Advocate’s feeRs. 8,333-00

- - - - - - - - - - -

Total:Rs.33,335-00

- - - - - - - - - - -

For the remaining defendants: No costs memo is filed

Copy of plaint schedule and valuation slip are enclosed herewith

IV ADJ, VSP.

IN THE COURT OF THE II ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

Present: Sri G. Bhupal Reddy II Addl. Metropolitan Sessions Judge, Visakhapatnam

Wednesday, the 6th day of April, 2022

SESSIONS CASE No.182/2015

(P.R.C. No.13/2015 of IV Additional Chief Metropolitan Magistrate, Visakhapatnam) Between: State represented by the Sub Inspector of Police, III Town Police Station, Waltair Zone, Visakhapatnam city

... Complainant

And: Guntuboyina Trinadha Rao, S/o Seetha Ram, 58 years, Record Assistant in Andhra University Engineering College Library, R/o D.No.6-9-12/C, Peethala Street, China Waltair, Visakhapatnam city … Accused

This case came up before me on 04.04.2022 for final hearing in the presence of Sri Md. Barkat Ali Khan, Additional Public Prosecutor for the State and of Sri M.D.V.V. Prasad and Sri T. Srinivasa Rao, Advocates for the accused. Upon hearing their arguments and having considered the matter till this day, this Court delivered the following:

JUDGMENT

1. The State through the Sub Inspector of Police, III Town Police Station,

Visakhapatnam filed charge sheet in Cr. No. 260/2015 of III Town Police Station,

Waltair Zone against the accused before the IV Additional Chief Metropolitan

Magistrate, Visakhapatnam for the offence punishable under Section 307 of Indian

Penal Code.

2. To put in brief, the prosecution case had been that:

2.1) The accused is resident of China Waltair, Visakhapatnam.

Vijayalakshmi (P.W.2) is the wife of accused. The accused has two sons and one daughter. The elder son Murthy Mohan (L.W.2) and his wife Lalita (P.W.1) reside in the first floor of three floried building. The younger son and his wife reside in the ground floor portion. There are tenants in one portion at ground floor and one portion at first floor. The accused addicted to vices and used to squander his salary for his vices. Therefore, frequent quarrels being occurred between the accused and

P.W.2. On 02.04.2015 at 09.00 hours the accused started scolding P.W.2 on the 2 SC.182/2015 II MSJ., Vsp.

ground that she did not cook food. The accused tried to beat P.W.2 and P.W.1-Lalita tried to admonish the accused. Then, the accused got wild, pick up a knife and tried to kill P.W.1 saying that she is responsible for the reckless behaviour of P.W.2.

P.W.1 received injury at her cheek and chin. The accused also sustained a minor injury to his hand. Basing on the report dt.02.04.2015 at 11.00 hours lodged by

P.W.1, the S.I. of Police, III Town Police Station (L.W.12) registered a case in

Cr.No.260/15 under Sec. 307 IPC. L.W.12 investigated the case and filed charge sheet against the accused for the offence punishable under Sec. 307 IPC.

3. The learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam had taken cognizance of the case for the offence under section 307 of Indian Penal

Code and registered a case as P.R.C.13/2015 and committed the same to the

Metropolitan Sessions Judge, Visakhapatnam U/s 209 (a) of Criminal Procedure

Code as the offence U/Sec. 307 IPC is exclusively triable by the Court of Sessions.

The Hon’ble Metropolitan Sessions Judge, Visakhapatnam registered the case as

S.C.No.182/2015 and made over to this court for disposal according to law.

4. On hearing the Additional Public Prosecutor and the defence counsel, this

Court framed charge under section 307 IPC against the accused, read over and explained the same to him in Telugu. The accused denied the charge and claimed to be tried.

5. During the trial, the prosecution examined three witnesses and got

Exs.P.1 to P.4 marked. As there is no incriminating evidence against the accused, the examination of accused under section 313 Criminal Procedure Code is dispensed with.

6. Perused the material part of the record.

7. Now the point for determination is:

Whether the prosecution has proved the guilt of accused for the offence under section 307 IPC against the accused beyond reasonable doubt?

8. POINT:

8.1) P.W.1 is the daughter-in-law of the accused. The husband of P.W.1 namely Murthy Mohan who is shown as L.W.3 is no more. P.W.1 in her evidence 3 SC.182/2015 II MSJ., Vsp.

stated that her husband died during pendency of this case. P.W.3 is another daughter-in-law of the accused. P.W.2 is the wife of accused. P.Ws.1 to 3 did not support the case of prosecution. They did not depose anything against the accused. Since the crucial witnesses i.e., P.Ws.1 to 3 did not support the case of prosecution, the Additional Public Prosecutor gave up the evidence of other witnesses as no useful purpose would be served even if they are examined. Since the alleged victim and P.Ws.2 and 3 did not depose anything against the accused, this court has no option except to conclude that the prosecution failed to establish the guilt of the accused for the offence under Sec. 307 IPC. Therefore, the accused is entitled for acquittal.

9. In the result, accused is found not guilty for the charge under Section 307 IPC. Accordingly, the accused acquitted under section 235 (1) of Criminal

Procedure Code for the said charge. The bail bonds of the accused shall stand cancelled after appeal time is over.

Typed to my dictation by the Superintendent (discharging duties as Stenographer), corrected and pronounced by me in the open court on this, the 6th day of April, 2022.

II Addl. Metropolitan Sessions Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution: For defence: None

P.W.1 : G. Lalitha P.W.2 : G. Vijaya Lakshmi P.W.3 : G. Chandrakala

DOCUMENTS MARKED

For the Prosecution: For defence: Nil

Ex.P.1 … Signature of P.W.1 on the report dt.20.04.2015 Ex.P.2 … Relevant portion in 161 Cr.P.C. statement of P.W.1 Ex.P.3 … Relevant portion in 161 Cr.P.C. statement of P.W.2 Ex.P.4 … Relevant portion in 161 Cr.P.C. statement of P.W.3

MATERIAL OBJECTS MARKED

- Nil -

II Addl. Metropolitan Sessions Judge, Visakhapatnam.

4 SC.182/2015 II MSJ., Vsp.

C A L E N D A R

IN THE COURT OF THE II ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

Present: Sri G. Bhupal Reddy II Addl. Metropolitan Sessions Judge, Visakhapatnam

Wednesday, the 6th day of April, 2022

SESSIONS CASE No.182/2015

(P.R.C. No.13/2015 of IV Additional Chief Metropolitan Magistrate, Visakhapatnam) Between: State represented by the Sub Inspector of Police, III Town Police Station, Waltair Zone, Visakhapatnam city

... Complainant

And: Guntuboyina Trinadha Rao, S/o Seetha Ram, 58 years, Record Assistant in Andhra University Engineering College Library, R/o D.No.6-9-12/C, Peethala Street, China Waltair, Visakhapatnam city … Accused

DATE OF: Offence : 02.04.2015 Complaint/Taken on file: 29.04.2015 Commitment:04.05.2015 Apprehension:01.05.2015 Commencement of trial:04.04.2022 Close of trial:04.04.2022 Judgment:06.04.2022 Whether accused is on bail/ in Jail: Accused is on bail EXPLANATION FOR DELAY IN SESSIONS COURT: No witness is detained in Court beyond three days. The delay is due to non-production of witnesses by the prosecution and due to non-appearance of accused on several adjournments. Plea of Accused: Not guilty Finding: Accused is found not guilty for the charge under Section 307 of IPC Sentence:

In the result, accused is found not guilty for the charge under Section 307 IPC. Accordingly, the accused acquitted under section 235 (1) of Criminal Procedure Code for the said charge. The bail bonds of the accused shall stand cancelled after appeal time is over.

II Addl. Metropolitan Sessions Judge, Visakhapatnam.