Sri G. Kanaka Sunder

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENT CLAIMS

TRIBUNAL-CUM- PRINCIPAL DISTRICT AND SESSIONS JUDGE

AT NIZAMABAD

Present: Sri G. Kanaka Sunder, Chairman, Motor Accident Claims Tribunal (District Judge), Nizamabad

Dated this the 22nd day of April, 2016

M.V.O.P.No. 4 of 2015

Between:

1.Smt.Garepally Swarna @ Suvarna W/o G.Peddaiah, aged 48 years, Occ: House hold

2.Garepally Peddaiah S/o G.Hanumaiah, aged 55 years, Occ: Labour

Both R/o.H.No.4-37, Gollapally village and Mandal Dist. Karimangar, presently residing at Gouthamnagar, Nizamabad.

..Petitioners

AND

1.Sri Padala Venkat Rajam S/o Bhumaiah, aged major, Occ: owner of the Tractor No.AP-15-AX-3364, R/o Venkatapur village, Korutla Mandal, Dist. Karimnagar.

2.TATA AIG General Insurance Company Limited, A-501, 5th floor, Building No.4, infinity pack, Dindoshi Malad (E), Mumbai, Maharashtra (Policy No.015280079300 valid from 26.12.2013 to 25.12.2014) … Respondents

This petition is coming on 11.03.2016 for final hearing before me in the presence of Sri Azar Kishan Rao, Advocate for petitioners and of Sri D.Madhusudhan Rao, Advocate for respondent No.1 and Sri. P.Narsing Rao, Advocate for respondent No.2 and having stood over for consideration till this day, the court made the following:-

: O R D E R :

01. This is a petition filed U/sec 166 (1)(c) of the M.V. Act, 1988 claiming compensation of Rs.12,00,000/- for the death of the deceased by name Garepally Ravi Kumar S/o. Peddaiah

The petitioner No.1 is mother and petitioner No.2 is father of the deceased.

The respondent No1 is owner of Tractor No.AP-15-AX-3364 and R2 is its insurer.

2 M.V.O.P. 4 of 2015

02. This is a death claim.

Case of petitioners is thus:

On 26.1.2014 at 2230 hours, the deceased was returning to

Gollapally from Kourutla on his Passion Pro motorcycle

No.AP-15-AQ-8197. When he reached the outskirts of Kourutla village, one Tractor No.AP-15-AX-3364 came in opposite direction, being driven by its driver in a rash and negligent manner and dashed to the motorcycle of the deceased. Due to which, the deceased fell on the road and sustained crush injuries all over the body. Immediately, the deceased was shifted to

Government Hospital, Jagtial and from there he was shifted MGM

Hospital, Warangal. Later he was referred to NIMS Hyderabad, but he died on the way to hospital.

The accident was reported in Koratla P.S on 27.1.2014 at 1230 hours and the complaint was registered as a case in F.I.R No.27/2014 under Section 304-A IPC. After investigation, the Police filed charge sheet against the accused driver of crime tractor as responsible for the accident and consequent death of deceased and therefore, liable for punishment under Section 304-A IPC, 134(a)(b) of M.V. Act.

Further plea of petitioners is that the deceased died due to injuries sustained in the accident caused by rash and negligent driving of the crime tractor by its driver and that therefore, R1 and R2 are jointly and severally liable for payment of compensation.

Further plea of petitioners is that the deceased was aged around 22 years and hale and healthy and was a driver by profession and earning

Rs.15,000/- per month and was contributing his whole income for the family. Had the deceased not died in the accident, he would have taken care of the petitioners who are his parents. Due to the untimely accidental death of the deceased, the petitioners have lost their income source as well as the love and affection.

3 M.V.O.P. 4 of 2015

Therefore, the petitioners have claimed compensation detailed below:

1. For Special Damages a Loss of earnings from the date of Rs.12,00,000/- accident b Damages to cloth Rs.1,000/- c Funeral expenditure Rs.25,000/- 2 General Damages a Compensation for loss of life of deceased Rs.1,00,000/ b Compensation for loss of love and Rs.3,00,000/- affection to petitioner No.1 c Compensation for loss of love and Rs.4,00,000/- affection to petitioner No.2 d Compensation for mental agony and Rs.4,00,000/- sufferance e Compensation for loss of future Rs.4,00,000/- expectation of life to the petitioners Total Rs.26,35,000/-

The petitioners however restricted their claim to a sum of

Rs.12,00,000/- in lump sum as compensation.

03. R1 filed counter contending thus:

The petitioners shall prove that the accident occurred due to rash and negligent driving of the crime tractor by its driver. The petitioners shall prove that they are dependents of the deceased. The claim of the petitioners is excessive and exorbitant. The petitioners shall prove the age, avocation, income and health condition of the deceased. The vehicle of 1st respondent was insured with the 2nd respondent and policy was in force on the date of accident and as such, R2 alone is liable for compensation.

R2 filed counter contending thus’

It is admitted by R2 through RW1 that the crime Tractor was insured with R2 and the policy was in force on the date of accident.

4 M.V.O.P. 4 of 2015

Contended that the petitioners shall prove that the accident occurred due to rash and negligent driving of the crime tractor by its driver. The petitioners shall prove that the deceased was holding effective driving licence to drive motorcycle and the accident was not occurred due to negligence of deceased.

The petitioners shall also prove the age, avocation and pleaded income of the deceased and also shall prove their entitlement for claiming compensation. Further, the petitioners shall prove that the deceased died due to accidental injuries. The claim of petitioners is excessive and arbitrary. Therefore, the petition is liable to be dismissed.

04. This Court, basing on the above pleadings, framed the following issues:

1. Whether the accident took place de to rash and negligent driving of the Tractor No.AP-15-AX-3364 by its driver causing death of Garepalli Ravi Kumar?

2. Whether the petitioners are entitled for compensation. If so, to what extent and from whom?

3. To what relief?

05. The petitioners have examined PWs 1 and 2 and marked

Exs.A1 to A8. The respondent No.1 did not adduce any oral or documentary evidence. The respondent No.2 examined RW1 and RW2 and got marked Ex.B1 and Ex.X1.

ISSUE No.1

REASONS:-

06. Accident occurred on 26.1.2014 at 2230 hours. Information of the accident received in P.S Korutla on 27.01.2014 at about 23-30 a.m.

FIR is Ex.A1. On the very next day, Ex.A1 is promptly lodged and that assures authenticity as well as truth of the accident.

5 M.V.O.P. 4 of 2015

Ex.A1 was investigated and filed charge sheet as in Ex.A2. Ex.A2 reveals that investigation was done in proper lines. The result of investigation recorded in Ex.A2 is that due to rash and negligent driving of crime tractor by its driver, the accident occurred resulted in death of deceased and that therefore the driver of crime tractor is liable for punishment for the offence U/sec. 304-A IPC. In the postmortem report in

Ex.A4 the opinion as to cause of death of deceased is due to ‘intra cranial hemorrhage and hyporotexia due to multiple fractures and laceration to frontal bone vessels probably due to RTA.”

The petitioners have examined PW2 that is eyewitness of accident.

Evidence of PW2 is that on 26.1.2014 he was returning to Venkatapur village on motorcycle and the deceased was proceeding ahead of his motorcycle and when the deceased reached outskirts of Korutla village, one

Tractor No.AP-15-AX-3364 came in opposite direction by driving the tractor in rash and negligent manner and dashed to the motorcycle of deceased.

From the evidence on record, it is proved that the accident occurred due to rash and negligent driving of the Tractor by its driver resulting in death of the deceased.

Accordingly issue is answered.

ISSUE NO.2

Reasons

07. R2 filed and proved insurance policy as in Ex.B1. As on the date of accident, as per Ex.B1, the crime tractor got coverage of insurance and that therefore, R2 is liable to pay compensation. The deceased is third party to Ex.B1 policy.

6 M.V.O.P. 4 of 2015

R2 raised contention that as per the police record, on the date of accident, the crime vehicle was driven by R1 and he was in possession of licence bearing No.DLEAP21561602997 allegedly issued by RTA Jagtial, but said licence does not belong to R1.

The other contention of R2 is that as per the FIR and 161 Cr.P.C statements, some unknown vehicle dashed against the deceased. But in the charge sheet, R1 is made as accused who is none other than owner of the crime tractor. Therefore, the defence of R2 is that R1 is implicated to claim compensation from R2.

Beyond Police investigation record, if R2 is able to produce any document in support of its contention that R1’s tractor is implicated, then this Tribunal would ponder otherwise. What in this case happened is that though in preliminary investigation the Police maintained that some unknown vehicle caused the accident, in the final report in Ex.A2, the

Police concluded that it is R1 that is driver-cum-owner of crime tractor responsible for the death of deceased. Rebuttable though, the presumption to be drawn by law is that the investigation of police is honest and authenticate.

R1 filed counter but did not examine himself. The tenor of written statement of R1 is that the deceased died in the accident occurred with the crime tractor driven by himself. As per evidence of RW2, R1 was issued licence to drive crime tractor/trailer and as on the date of accident, the driving licence/Ex.X1 was in force.

Therefore, the contentions of R2 do not stand in the way of its liability. R2 is hence liable to pay compensation.

JUST COMPENSATION

As on today, the principles of assessment of just compensation laid down in Sarla Verma and others V Delhi Transport Corporation and another (reported in 2009 ACJ 1298) shall be followed and followed.

7 M.V.O.P. 4 of 2015

ASCERTAINMENT OF MULTIPLIER;

The plea and evidence of petitioners, read with Ex.A1 to A4 is that the deceased is bachelor and aged about 22 years, as on the date of accident. In the PME report Ex.A4, approximate age of the deceased is shown as 21 to 25 years. As against the evidence on record the respondent i.e. R2 is not able to place any material to disbelieve the age of the deceased

as 22 years. Therefore, the age of deceased is determined as in the slab of

21-25 years. As per Sarla Varma, above, the multiplier applicable for the age group of 21-25 years, is 18.

ASCERTAINMENT OF MULTIPLICAND:-

Hon’ble Supreme court in above decision held thus in respect of

ascertainment of multiplicand:-“The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the mount which the deceased would have spent on himself by way of personal and living expense. The balance, which is considered to be the contribution to the dependent family constituted the multiplicand”.

ANNUAL INCOME

As per petitioners, the deceased is driver by profession and was earning Rs.15,000/- per month. The petitioners have produced and proved the driving licence of deceased as in Ex.A7. The petitioners, in my opinion, cannot be found fault with for not producing proof of income by document. The reason is that the petitioners are illiterate, poor parents of the deceased, who remained in shock for death of their young unmarried earning son and so they cannot be expected to go round the places to secure income proof. One more reason is it is not possible for a driver professional to maintain record of income or to obtain certificate of income.

Proved however by evidence that the deceased was driver which is a skilled 8 M.V.O.P. 4 of 2015 profession. Now a days monthly income of skilled professionals like drivers is about Rs.10,000/-, excluding batta etc. Therefore, the income of the deceased is determined at Rs.10,000/- per month.

The Annual income of the deceased is therefore estimated at

Rs.1,20,000/- = Rs.10,000/-x 12 )

ADDITION TO INCOME FOR FUTURE PROSPECTS:-

Hon’ble Supreme Court in Rajesh Vs Rajbir Singh 2013 ACJ 1403,

held at para 11 and 12, thus:

“…Since the court in Santhosh Devi’s case, 2012 ACJ1428 (c), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma’s case, 2009 ACJ 1298 (SC)and to make it applicable also to self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 per cent always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 per cent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Additional should be 30 per cent in case the deceased was in the age group of 40 to 50 year….”

The deceased is of the age between 21 to 25 years. The deceased is believed a driver and his annual income is determined at Rs.1,20,000/-.

Therefore, as per above Ruling, 50 percent shall be added to the annual income of deceased i.e. Rs.1,20,000/- When likewise added, the annual income of the deceased, for deciding multiplicand, is Rs.1,80,000/- ( 1,20,000/- + Rs.60,000/- @ 50% = Rs.1,80,000/-)

Therefore the income of the deceased is taken at Rs.1,80,000/- per annum.

9 M.V.O.P. 4 of 2015

DEDUCTION TOWARDS PERSONAL AND LIVING EXPENSES:-

Hon’ble Supreme Court in Sarla Varma Vs. Delhi Transport

Corporation, 2009 ACJ 1298 at para 14 held thus:

“…..Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally 50 per cent is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent…..”

Therefore, towards personal expenses, from annual income of

Rs.1,80,000/-, 50 per cent has to be deducted. Likewise when deducted the annual income comes to Rs.90,000/- ( Rs.1,80,000/- x 1/2 = 90,000/-).

Therefore the multiplicand is Rs.90,000/-.

LOSS OF DEPENDENCY:

As per Sarla Varma above “The annual contribution to the family multiplicand) when multiplied by such multiplier gives the loss of dependency to the family”.

08. The loss of dependency to the petitioners due to the untimely death of deceased is Rs.90,000/- x 18= 16,20,000/- Rupees Sixteen lakh twenty thousand only). It is the loss of dependency to the family of deceased.

Following the decision of Hon’ble Supreme Court in Asha Verman

Vs Maharj Singh (2015 ACJ 1286) this tribunal is pleased to award 10 M.V.O.P. 4 of 2015

Rs.1,00,000/- for loss of estate and Rs.1,00,000/- for loss of love and affection to petitioners and Rs.25,000/- towards funeral expenses.

ACTUAL CALCULATION OF JUST COMPENSATION:-

Therefore , under all permissible heads, the petitioners are awarded

Rs.16,20,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.25,000/- = 18,45,000/- (Rupees Eighteen lakh forty five thousand only) as just compensation, payable by Respondent No.2 with interest at the rate of 9 % per annum from the date of petition till realization.

The amount of compensation apportioned among the petitioners by paying Rs.10,00,000/- to the 1st petitioner (mother) and Rs.8,45,000/- to the 2nd petitioner (father).

EXCESS COMPENSATION;

Full bench of Hon’ble High court Andhra Pradesh and Telangana in

Adam indur Muttemma Vs. Rathod Reddia Nizamabad & others. AIR 2015

Hyderabad 117, on point on reference “…. Whether the tribunal/court can award compensation under Motor Vehicles Act over and above the amount claimed by the claimant, through subject to payment of court fee….” held the reference in affirmative.

At para 3 Hon’ble High court held thus:

“…. In appropriate case where from the evidence brought on record, if the

Tribunal/Court considers that the claimant is entitled to get more compensation then claimed, the Tribunal may pas such award. The only embargo is it should be just compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence…”

The parents of the deceased are the only claimants, which tells therefore, the petitioners have no other like son or daughter. The petitioners have lost their son at his age of 22 years at which age earning 11 M.V.O.P. 4 of 2015 capacity is more. By proved accidental death of deceased, the petitioners have lost their hope of future and present source of income. The compensation this Court assessed is justified for that would take care of the petitioners, consciously not bounty but just to make the petitioners lead a peaceful and righteous life. The amount of compensation this Court calculated on Rulings of Hon’ble Supreme Court is sufficient to meet just requirements of the petitioners.

The petitioners have filed this petition claiming Rs.12,00,000/- as compensation. This tribunal, for reasons above, granted Rs.18,45,000/-as just and reasonable compensation. Additional compensation, this tribunal granted is Rs 6,45,000/- On payment of additional court fees to the excess amount ie. Rs.6,45,000/-, the decree shall be prepared. The office is accordingly ordered. If additional court fee is not paid, within one month of this order, it shall be deemed that the petition is allowed for claimed amount of Rs.12,00,000/-.

In case court fee is not paid on excess amount of compensation, granted as above, the apportionment shall be that Rs.10,00,000/- to the 1st petitioner (mother), Rs.2,00,000/- to the 2nd petitioner (father), total

Rs.12,00,000/-.

09. IN THE RESULT, the petition is allowed with costs and interest @ 9% per annum by awarding compensation of Rs.18,45,000/- (Rupees Eighteen lakh forty five thousand only) to the petitioners payable by the Respondent No.2.

The petitioner Nos.1 and 2 are permitted to withdraw their respective share amounts soon after deposited by R2.

12 M.V.O.P. 4 of 2015

Respondent No.2 is directed to deposit the awarded amount with costs and interest within two months from the date of this order in this

Tribunal. Advocate fee is fixed at Rs.2000/-. Accordingly award is passed.

Typed to my dictation to Personal Asst. (Gr.I Stenographer), corrected and pronounced by me in the open court on this the 22 nd day of April, 2016.

Chairman, Motor Accidents Claim Tribunal, (Dist. Judge), Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS

PW1: Garepally Peddaiah PW2: Naresh

WITNESSES EXAMINED ON BEHALF OF RESPONDENTS

RW1: V.K.Prasad RW2: T.Krishna Rao, M.V.I.

EXHIBITS MARKED ON BEHALF OF PETITIONERS

Ex.A1: Attested copy of FIR in Cr No. 27/2014 of P.S. Korutla Ex.A2: Attested copy of Charge Sheet Ex.A3: Copy of Inquest report Ex.A4: Attested copy of P.M.E report Ex.A5: Attested Copy of M.V.I report Ex.A6: Copy of Insurance Policy Ex.A7: Copy of D.L of deceased Ex.A8: Copy of D.L of Venkatrajam (accused)

EXHIBITS MARKED ON BEHALF OF RESPONDENTS

Ex.B1: Copy of Insurance Policy

Ex.X1: Extract of D.L of driver

Chairman, Motor Accidents Claim Tribunal, (Dist. Judge), Nizamabad.

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

(DISTRICT JUDGE) AT NIZAMABAD

Present: Sri G. Kanaka Sunder, Chairman, Motor Accident Claims Tribunal (District Judge), Nizamabad

Dated this the 21st day of April, 2016

M.V.O.P.No.785 of 2010

Between:

1.Mallepula Bhumavva @ Shivubai, W/o Late Parva Goud, aged 42 years, Occ: Household

2.Mallepula Srinivas Goud, S/o late Parva Goud, aged 22 years, Occ:Nil

3.Mallepula Raja Goud S/o Late Parva Goud, aged 21 years, Occ: Nil

4.Mallepula Peera Goud S/o late Parva Goud, aged 62 years, Occ: Nil

5.Mallepula Gangu Bai W/o Peera Goud aged 60 years, Occ: Household All R/o Sunkini village now residing at H.No.6-25-119, Dubba, Nizamabad.

.. Petitioners

AND

1.Erram Avan S/o Nagesh, aged 30 years, Occ: Business cum owner of Motorcycle bearing No.AP-25-AB-6046 R/o H.No.4-76/3, Husna village, Bodhan Mandal, Nizamabad District.

2.IFFCO-TOKIO General Insurance Co. Ltd., represented by its Branch Manager, Branch Office, H.No.5-4-1 to 16/3, Banjara Hills Road, Hyderabad. Policy Cover Note No.40409719, valid from 27.12.2009 to 26.12.2010)

.. Respondents

This petition is coming on 09.03.2016 for final hearing before me in the presence of Sri P.Hanumanth Reddy, Advocate for petitioners and of Sri. Ganesh Deshpande, Advocate for respondent No.2 and the respondent No.1 remained ex parte and having stood over for consideration till this day, the court made the following:-

: O R D E R :

01. This is a petition filed U/sec 166(1)(C) of the M.V. Act, 1988 claiming compensation of Rs.9,00,000/- for the death of the deceased by name Mallepula Parva Goud S/o Mallepula Peera Goud.

` 2 M.V.O.P. 785 of 2010

The petitioner No.1 wife, petitioner Nos.2 and 3 are sons, petitioner

No.4 is father and petitioner No.5 is mother of the deceased.

The respondent No1 is owner of motorcycle bearing

No.AP-25-AB-6046 and R2 is its insurer.

02. This is a death claim.

Case of petitioners is thus.

On 30.09.2010 at about 6.00 p.m. the deceased was driving the motorcycle from Saloora towards Sunkini village side. When he reached the outskirts of Saloora village of Bodhan Mandal, motorcycle

No.AP-25-AB-6046 (hereinafter ‘crime motorcycle’) came in opposite direction, being driven by its rider in a rash and negligent manner and dashed to the motorcycle of the deceased. As a result of the accident, the deceased sustained severe head injury and died on the spot.

The accident was reported on 30.09.2010 at 9-00 p.m. in P.S Bodhan (Rural) and the complaint was registered as a case in F.I.R No.359/2010 under Section 304-A IPC. After investigation, charge sheet is filed against the rider-cum-owner of the crime motorcycle as responsible for the accident and consequent death of deceased and therefore, liable for punishment under Section 304-A IPC and Section 181 of M.V.Act.

The further plea of petitioners is that the deceased died due to injuries sustained in the accident caused by rash and negligent driving of the crime motorcycle by R1 and therefore, R1 and R2 are jointly and severally liable for payment of compensation.

Further plea of petitioners is that the deceased was aged around 45 years and hale and healthy and was doing agriculture and a toddy tapper and earning Rs.15,000/- per month and was contributing his whole income for the family. Had the deceased not died in the accident, the deceased 3 M.V.O.P. 785 of 2010 would have taken care of the family of the petitioners. Due to the untimely accidental death of the deceased, the petitioners have lost their income source as well as the love and affection. Particularly, the first petitioner being wife has lost her consortium.

Therefore, the petitioners have claimed compensation detailed below:

1. For Special Damages a Loss of earnings from the date of Rs.20,00,000/- accident. b For partial loss of earnings ---- c Transport to Hospital and expenses ---- d Funeral expenses etc Rs.20,000/- 2 General Damages a Compensation for pain and sufferings Rs.5,00,000/- b Compensation for loss of love and Rs.1,00,000/- affection and consortium to petitioner No.1 c Compensation for loss of love and Rs.4,00,000/- affection to petitioners d Compensation for loss of earning power As stated in col.No.1

Total Rs.30,20,000/-

The petitioners however restricted their claim to a sum of

Rs.9,00,000/- in lump sum as compensation.

03. R1 remained ex parte. R2 i.e. Insurer filed counter contending thus:

It is admitted by R2 that as on the date of accident, the crime motorcycle got coverage of insurance policy.

Contended that the petitioners shall prove that the deceased died in the alleged accident. Further, the petitioners shall prove that the alleged accident occurred due to rash and negligent driving of the crime motorcycle 4 M.V.O.P. 785 of 2010 by R1. The petitioners shall also prove that the driver of crime motorcycle at the time of alleged accident was holding valid driving licence. The accident occurred due to rash and negligent driving of motorcycle by the deceased. In alternative, it is a case of contributory negligence and therefore, R2 is not liable for entire compensation.

The petitioners shall prove the health condition, age, avocation and pleaded income of the deceased and also shall prove their entitlement for claiming compensation. The claim of petitioners is excessive and arbitrary.

Therefore, the petition is liable to be dismissed.

04. This Court, basing on the above pleadings, framed the following issues:

1. Whether the accident has taken place de to rash and negligent driving of motorcycle bearing No.AP-25-AB-6046 by its rider?

2. Whether the petitioners are entitled for compensation. If so, to what amount and against whom?

3. To what relief?

05. The petitioners have examined PW1 to PW3 and marked Exs.A1 to

A5. The respondent No.1 remained ex parte. The respondent No.2 examined RW1 and RW2 and marked Ex.B1 to Ex.B5.

ISSUE No.1

REASONS:-

06. Accident occurred on 30.09.2010 at about 6.00 p.m. Information of the accident received in P.S Bodhan (Rural) on 30.09.2010 at about 9.00 p.m. FIR is Ex.A1. Within three hours of the accident Ex.A1 is promptly lodged and that assures authenticity as well as truth of the accident.

5 M.V.O.P. 785 of 2010

Ex.A1 was investigated and filed charge sheet as in Ex.B2. Ex.B2 reveals that investigation was done in proper lines. The result of investigation recorded in Ex.B2 is that due to rash and negligent driving of crime motorcycle by R1, the accident occurred resulted in death of deceased and that therefore R1 is liable for punishment for the offence

U/sec.304-A IPC and Sec.181 of M.V.Act. In the postmortem report in

Ex.A3 the opinion as to cause of death of deceased is due to ‘head injury.

The petitioners have examined PW3. Evidence of PW3 is that the accident occurred due to rash and negligent driving of the crime motorcycle. PW3 is cited as Lw6/panch for inquest in the charge sheet.

Therefore, PW3 is not an eyewitness of the accident.

From the evidence on record therefore, it is proved that the accident occurred due to rash and negligent driving of the crime motorcycle by its owner-cum-rider i.e. R1.

Accordingly issue is answered.

ISSUE NO.2

Reasons

07. R2 filed and proved insurance policy as in Ex.B1. As on the date of accident, as per Ex.B1, the crime motorcycle got coverage of insurance and that therefore, R2 is liable to pay compensation.

A solid contention of R2 is that the driver of the crime motorcycle was not holding valid driving licence at the time of accident and he was charge sheeted for the offence under Section 181 of M.V Act for not holding valid driving licence besides section 304-A IPC.

R2 examined RW1 and RW2. RW1 is Marketing Executive of R2

Company. RW2 is Motor Vehicle Inspector who worked at Bodhan from 30.03.2010 to 17.05.2013.

6 M.V.O.P. 785 of 2010

RW1, in cross examination, admitted that the deceased is third party to the Ex.B1 policy. Further admitted in cross examination “….. As per our enquiry with RTO the driver of the crime vehicle was not possessing driving licence. We have not obtained the written information from RTO concerned to elicit the driver of vehicle not possessing driving licence to drive the vehicle…”

RW2 is Motor Vehicle Inspector and his evidence is that the accused did not produce driving licence and for that a fine of Rs.580/- was imposed against R1.

R1 remained ex parte. From the evidence of RW1 and RW2 and from remaining ex parte by R1, this Tribunal shall conclude that R1 did not possess valid and effective driving licence as on the date of accident.

Hon’ble High Court of Judicature at Hyderabad in Div. Manager,

New India Assurance Co. Ltd vs. Acchigari Prasad, Her Lordship Justice

Smt. Anis held, in similar circumstances, to the effect that even though the driver of the offending vehicle was not possessing any licence or valid licence, when the insurance policy was in force at the time of accident, insurance company can be directed to satisfy the award in the first instance by paying the award to the claimants and then recover the same from the owner of the vehicle.

Hon’ble High Court of Judicature at Hyderabad in Bajaj Allianz

General Insurance Co.Ltd vs.L.Latha and others III (2014) ACC 813 (AP), His Lordship Justice Sri B.Sivasankar Rao garu held to the effect that

Insurance Company should be directed to pay compensation first even though its defence i.e., invalid and ineffective licence, is accepted.

7 M.V.O.P. 785 of 2010

In this case, I have earlier stated that R2 admitted through RW1 that as on the date of accident, Ex.B1 policy was in force and that the deceased is third party to Ex.B1 policy.

Therefore, R2 is liable to pay compensation, recoverable from R1 by filing execution petition.

JUST COMPENSATION

As on today, the principles of assessment of just compensation laid down in Sarla Verma and others V Delhi Transport Corporation and another (reported in 2009 ACJ 1298) shall be followed and followed.

ASCERTAINMENT OF MULTIPLIER;

The plea and evidence of petitioners is that the deceased was aged 45 years. As per Ex.A2 inquest and Ex.A3 PME report, the age of the deceased was 50 years as on the date of accident. As against the evidence on record the respondent i.e. R2 is not able to place any material to disbelieve the age of the deceased as 50 years. Therefore, the age of deceased is determined as in the slab of 46-50 years. As per Sarla Varma, above, the multiplier applicable for the age group of 46-50 years, is 13.

ASCERTAINMENT OF MULTIPLICAND:-

Hon’ble Supreme court in above decision held thus in respect of

ascertainment of multiplicand:-“The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the mount which the deceased would have spent on himself by way of personal and living expense. The balance, which is considered to be the contribution to the dependent family constituted the multiplicand”.

8 M.V.O.P. 785 of 2010

ANNUAL INCOME

As per petitioners, the deceased was doing agriculture and a toddy tapper and earning monthly Rs.15,000/-. The petitioners have not filed any document proving the income of the deceased. Proved by investigation records that the deceased is an agriculturist and a toddy tapper. Now a days even manual labour are paid Rs.300/-per day. The income of deceased, per month estimated at Rs.6000/- per month. Therefore, the monthly income of deceased is determined as 6,000/- Annual income of the deceased is therefore Rs.72,000/-.

ADDITION TO INCOME FOR FUTURE PROSPECTS:-

Hon’ble Supreme Court in Rajesh Vs Rajbir Singh 2013 ACJ 1403,

held at para 11 and 12, thus:

“…Since the court in Santhosh Devi’s case, 2012 ACJ1428 ©, actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma’s case, 2009 ACJ 1298 (SC) and to make it applicable also to self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 per cent always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 per cent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Additional should be 30 per cent in case the deceased was in the age group of 40 to 50 year….”

The deceased is an agriculturist and toddy tapper, aged about 50 years. Therefore, the annual income should be given addition of 30 percent, following above ruling. Therefore the income of the deceased is taken at Rs.72,000/- + 21,600/- = Rs.93,600/- per annum.

9 M.V.O.P. 785 of 2010

DEDUCTION TOWARDS PERSONAL AND LIVING EXPENSES:-

Hon’ble Supreme Court in Sarla Varma Vs. Delhi Transport

Corporation, 2009 ACJ 1298 at para 14 held thus:

Though in some case the deduction to be made towards personal and living expense is calculated on the basis of units indicated in Trilok chandra’s case, 1996 ACJ 831 (SC) , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 1 to 3:

one-forth (1/4th) where the number of dependent family members is 4 to 6 and one fifth (1/5th) where the number of the dependent family members exceed six..”

The petitioners are 5. Therefore, towards personal expenses, from annual income of Rs. 93,600/-, 1/4th has to be deducted.

Likewise when deducted the annual income comes to

Rs.70,200/- (Rs.93,600/-X 1/4 = 23,400/-).

Therefore the annual income of the deceased is Rs.70,200/-.

LOSS OF DEPENDENCY:

As per Sarla Varma above “The annual contribution to the family multiplicand) when multiplied by such multiplier gives the loss of dependency to the family”.

The loss of dependency to the petitioners due to the untimely death of deceased is Rs, 70,200/- x 13 = 9,12,600/- (Rupees Nine lakh twelve thousand six hundred only). It is the loss of dependency to the family of deceased.

10 M.V.O.P. 785 of 2010

Following the decision of Hon’ble Supreme Court in Asha Verman

Vs Maharj Singh (2015 ACJ 1286) this tribunal is pleased to award

Rs.1,00,000/- for loss of estate and Rs.1,00,000/- for loss of love and affection to petitioners and Rs.25,000/- towards funeral expenses.

ACTUAL CALCULATION OF JUST COMPENSATION:-

Therefore, under all permissible heads, the petitioners are awarded

Rs,9,12,600/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.25,000/- = 11,37,600/- (Rupees Eleven lakh thirty seven thousand six hundred. only) as just compensation, payable by Respondent No.2 with interest at the rate of 9 % per annum from the date of petition till realization. The amount of compensation apportioned among the petitioners by paying Rs.6,00,000/- to the 1st petitioner (wife) and Rs.2,00,000/- each to the 2nd and 3rd petitioner (sons), Rs.1,00,000/- to the 5th petitioner (mother) and Rs.37,600/- to the 4th petitioner (father) Total Rs.11,37,600/-

EXCESS COMPENSATION;

Full bench of Hon’ble High court Andhra Pradesh and Telangana in

Adam indur Muttemma Vs. Rathod Reddia Nizamabad & others. AIR 2015

Hyderabad 117, on point on reference “…. Whether the tribunal/court can award compensation under Motor Vehicles Act over and above the amount claimed by the claimant, through subject to payment of court fee….” held the reference in affirmative.

At para 3 Hon’ble High court held thus:

“…. In appropriate case where from the evidence brought on record, if the

Tribunal/Court considers that the claimant is entitled to get more compensation then claimed, the Tribunal may pas such award. The only embargo is it should be just compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence…” 11 M.V.O.P. 785 of 2010

In life of a man or for that matter family, at age of 50 years the burden of settlement of children etc., is more. Need of money at such age for a father or for that matter to the family is more. At his age of 50 years, leaving wife and two unmarried sons, particularly, the deceased died.

Presumably, the deceased was the only source of income to the entire family of petitioners. The compensation this Court calculated, as above is just, not a bounty, to meet rest of expenses required to the petitioners in leading a righteous life.

The petitioners have filed this petition claiming Rs.9,00,000/- as compensation. This tribunal, for reasons above, granted Rs.11,37,600/- as just and reasonable compensation. Additional compensation, this tribunal granted is Rs.2,37,600/-. On payment of additional court fees to the excess amount i.e. Rs.2,37,600/- the decree shall be prepared. The office is accordingly ordered. If additional court fee is not paid, within one month of this order, it shall be deemed that the petition is allowed for claimed amount of Rs.9,00,000/-.

In case court fee is not paid on excess amount of compensation, granted as above, the apportionment shall be that Rs.5,00,000/- to the 1st petitioner (wife), Rs.1,00,000/- each to the petitioner No.2 and 3 (sons) and

Rs.1,00,000/- each to the petitioner Nos. 4 and 5 (parents).

08. IN THE RESULT, the petition is allowed with costs and interest @ 9% per annum by awarding compensation of Rs.11,37,600/- (Rupees

Eleven Lakh thirty seven thousand and six hundred only) to the petitioners payable by the Respondent No.2.

Respondent No.2 is directed to deposit the awarded amount with costs and interest within two months from the date of this order in this

Tribunal.

12 M.V.O.P. 785 of 2010

The petitioners are permitted to withdraw their respective share amounts soon after deposited by R2.

R2 is declared entitled to recover the award amount after paid to petitioners, from R1 through execution proceedings.

Advocate fee is fixed at Rs. 2,000/-.

Accordingly award is passed.

Typed to my dictation to Personal Asst. (Gr.I Stenographer), corrected and pronounced by me in the open court on this the 21 st day of April, 2016.

Chairman, Motor Accidents Claim Tribunal, (Dist. Judge), Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS

PW1: Mallepula Bhumavva PW2: Siliveri Nagula Goud PW3: M.Raja Goud

WITNESSES EXAMINED ON BEHALF OF RESPONDENTS

RW1: Srikanth Reddy, Mark.Executive of R2 Co. RW2: Shaik Raj Mohammad, M.V.Inspector

EXHIBITS MARKED ON BEHALF OF PETITIONERS

Ex.A1: Certified copy of FIR in Cr No.359/2010 of P.S. Bodhan Ex.A2: Certified copy of inquest report Ex.A3: Certified copy of P.M.E report Ex.A4: Certified copy of Insurance Policy Ex.A5: Copy of Pattedar Pass Book

EXHIBITS MARKED ON BEHALF OF RESPONDENTS

Ex.B1: Copy of Insurance Policy Ex.B2: Certified copy of charge sheet Ex.B3: Certified copy of M.V.I. report Ex.B4: Certified copy of vehicle check report Ex.B5: Attested copy of vehicle release order of RTA Nizamabad

Chairman, Motor Accidents Claim Tribunal, (Dist. Judge), Nizamabad.

IN THE COURT OF THE SESSIONS, NIZAMABAD DIVISION,

NIZAMABAD

Present: Sri G.Kanaka Sundar,

Sessions Judge, Nizamabad.

Wednesday, the 13th day of April, 2016

Sessions Case No.26 of 2014

1. Name of the accused : 1.Suryavamshi Tukaram S/o Balram, aged 55 years, caste: SC Madiga, Occ: Agriculture R/o. Dongli village of Madnoor Mandal

2.Kunewar Sayagoud S/o Balagoud aged 35 years, Goud, occ: Toddy business, R/o. Dongli village 2 Offence under Section : U/s. 304-ii IPC against A1 U/s Sec.37(A) of A.P. Excise Act against A2 3 Plea of the accused : Not guilty 4 Finding of the Judge : The accused No.1 and 2 are found not guilty 5 Sentence : A1 and A2 are acquitted 6 Prosecution conducted by : Sri D.Madhusudhan Rao, Public Prosecutor , Nizamabad 7 Accused defended by : Sri A.Narayana, Advocate for A1, Sri M.Rajender Reddy, Advocate for A2 (PRC No. 19/2013 on the file of Judicial Magistrate of First Class, Bichkunda (Cr.No.38/2013 of P.S. Madnoor)

:: J U D G M E N T ::

1. This case is taken on file under Section 352, 304-II IPC against A1 and U/s 37(A) of A.P. Excise Act against A2 upon the charge sheet filed by the Circle Inspector of Police, Bichkunda.

2 SC. 26 of 2014

2. A well settled rule of criminal jurisprudence is that the prosecution can succeed by substantially proving the very case it alleges.

Extended theory well settled is the prosecution must stand on its own legs and cannot take advantage of the weakness of the defence.

3. The case on hand is two stories with confused culmination.

One story is against A1 and another story is against A2. Between A1 and

A2, the Investigation Officer himself played a game and thrown the decision to blame, upon the Court. Blame I mean the verdict.

4. The prosecution case is thus:

On 27.03.2013 at about 2300 hours, the complainant Smt.Gayakwad

Moglabai lodged complaint to police that on the same day at about 4-00 p.m. her husband Gayakwad Ganapathi left the house to bring toddy from the toddy shop and in the evening at about 6-00 p.m. the toddy vendor by name Sayagoud (A2) went to the complainant and informed that the accused No.1 picked up quarrel with her husband while drinking toddy on 27.3.2013 at 6-00 p.m. on Holi inam issue and caught hold of his throat and lifted him and thrown him on the ground due to which the husband of the complainant died.

Further, the complainant has stated that about 20 years back, her father-in-law migrated with his family from Yeothi village of Maharashtra

State to Dongli village to eakout livelihood by doing work. Accordingly, her husband also developed the family than the SC community people who originally hailed from Dongli village and this was irked to one

Suryavamshi Tukaram (A1) of Dongli village and he bore grudge against the husband of complainant. Thereafter on 27.3.2013 evening at about 6-00 p.m. while the husband of complainant was drinking toddy in the toddy shop at Dongli village, A1 picked up quarrel with him saying that without calling him, why Ganapathi approached the village elders to ask 3 SC. 26 of 2014 them for festival Inam and caught hold of his throat and lifted him and thrown on the ground causing his death and accordingly, on the complaint,

LW20 SI of police, Madnoor PS registered case in Cr No.38/2013 U/s 302

IPC and took up investigation. Thereafter he recorded statement of LW1 and thereafter LW21 took up investigation. Later, LW21 visited Dongli village and caused enquiries and examined LW1 to LW12 and recorded their statements. Later, LW21 secured the presence of LW13 and LW14 and conducted scene of offence panchnama and held inquest over the dead body of Ganapathi and noticed no external injuries on the dead body and seized chappals of the deceased and two toddy bottles. LW19 held autopsy over the dead body and kept his opinion reserved and preserved viscera and forwarded to FSL, Hyderabad for analysis.

5. While investigation is in progress, on 31.3.2013 at about 12 noon, A1 was arrested at his house at Dongli village and on interrogation, he voluntarily confessed to have committed the offence by lifting the deceased and knocking down him on the ground and causing his death. Accordingly, LW21 secured the presence of LW15 to LW18 and recorded his confession statement. The viscera of the deceased and two toddy bottles were forwarded to the Director, FSL, Hyderabad for analysis and received report vide file No.TOX/927/2013 dated 17.5.2013 wherein it is mentioned that ’Chloral Hydrate’, a hypnotic substance found in item

No.1 and Chloral hydrate is found in the viscera in an estimated quantity equivalent to 1200 mgs in the toddy.

6. LW19 CAS Govt. Hospital, Madnoor conducted autopsy over the dead body of the deceased and opined that the cause of death is due to cardio respiratory arrest due to vegal inhibition in a c/o chloral hydrate substances and ethyl alcohol intoxication. As per the FSL report and the opinion recording cause of death of the deceased furnished by

Lw19 A2 sold chloral hydrate adulterated toddy to the deceased Gayakwad 4 SC. 26 of 2014 Ganapathi due to which, when A1 lifted the deceased by holding a towel around his neck, the deceased vegal inhibition and died. Thus A1 is found liable for punishment for the offence U/s 352 IPC and A2 is liable for punishment for the offences U/s 304 Part II and Section 37(A) of

A.P.Excise Act and prayed to punish them accordingly.

7. After considering material in the charge sheet and supporting documents, the learned. Judicial Magistrate of First Class, Bichkudna took cognizance against the accused No.1 under Section 352, 304 Part II IPC and against A2 for the offences U/s 37(A) of AP Excise Act and converted the crime file into PRC No.19 of 2013 and committed the case file to the

Sessions Court unit, Nizamabad.

8. At the time of committal, the learned Magistrate supplied all the copies of case documents to the accused No.1 and 2 in compliance of section 208 Cr.P.C.

9. At the time of committal the accused No.1 and 2 were on bail.

10. Considering material in the PRC file, the Sessions Court converted the PRC file into Sessions Case No.26 of 2014 and issued summons to the accused.

11. After appearance of accused No.1 and 2 upon hearing arguments of Public Prosecutor and defence counsel and considering material in the case file, this Court framed the charge under Section 304

Part II against A1 and U/s 304 Part II IPC and Section 37(A) of A.P.Excise

Act against A2 and same is read over and explained to them. Accused No.1 and 2 pleaded not guilty and claimed to be tried.

12. To prove the guilt of accused No.1 and 2 for the charge framed against them, the prosecution examined PW1 to PW10 and got marked Exs.P1 to P11.

5 SC. 26 of 2014

13. After closure of prosecution evidence, the accused are examined under Section 313 Cr.P.C. The accused pleaded not guilty. A1 reported no defence witnesses but A2 got examined DW1 on his behalf.

14 The defence of the accused is total innocence.

15. Heard both.

16. Points for consideration:

1)Whether the prosecution is able to prove the guilt of accused No.1 and 2 beyond all reasonable doubt?

2)To what result?

Reasons:

17. As I said in my prologue, the prosecution gave two stories for the death of deceased. Who between A1 and A2, the real culprit responsible for the death of deceased is, the prosecution itself is at doubt.

With background of personal grudge, as per prosecution, A1 lifted the deceased holding at neck and thrown upon the ground and therefore, the deceased died. Another version is that A2 supplied adulterated toddy which the deceased consumed and died. Medical opinion under Ex.P8 is that the deceased “died due to cardio respiratory arrested due to vagal inhibition in a c/o chloral hydrate, a hypotonic substance and ethyl alcohol intoxication”.

If Ex.P8 opinion is considered, the death of deceased is not by

A1 overt act of lifting the deceased holding at neck and throwing on the ground.

A2 is licencee of toddy shop in which the deceased consumed toddy which contained chloral hydrate in excess proportion which resulted in death of deceased as per Ex.P8 opinion. As per complaint in Ex.P1, author being the wife of deceased, the allegation is not against A2 but 6 SC. 26 of 2014 against A1 only. The investigation, in the beginning, started basing on

Ex.P1 allegation. How suddenly the Investigation Officer turned his sight upon A2 is not explained in the entire investigation record. As per Section 37(A) of A.P.Excise Act, 1968, inserted by A.P.Act 4 of 1994, w.e.f 26.11.1993, the prosecution shall prove, to attract said section, that the licencee mixed any noxious substance or any substance which is likely to cause …….. death to human being ……… “. From prosecution, there is no evidence that the chloral hydrate, as per Ex.P7, is found in proportion beyond permissible that would cause death or grievous hurt or disability to the consumer. Thereby, this Court shall say that the death of deceased is not by toddy consumed by deceased, supplied from the shop of A2.

Therefore, on its own the prosecution failed to prove its story against

A1 and failed to prove by evidence that the death of deceased is due to consumption of toddy supplied by A2.

For reasons therefore, in my opinion, the prosecution failed to prove the guilt of accused beyond all reasonable doubt.

18. IN THE RESULT, A1 is found not guilty of the offence

U/s 304(ii) IPC and A2 is found not guilty of the offence U/s 37(A) of

A.P. Excise Act. A1 and A2 are acquitted U/s 235(1) Cr.P.C.

The bail bonds of the accused and their sureties shall stand cancelled. MOs 1 to 5 shall be destroyed by learned lower court after expiry of appeal time.

Accordingly ordered.

Typed by Personal Assistant (Gr.I Stenographer) on my dictation, transcribed by him, corrected and pronounced by me in open Court on this the 13th day of April, 2016

Sessions Judge,

Nizamabad 7 SC. 26 of 2014

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF PROSECUTION

PW1 LW1 Gayakwad Moglabai Complainant PW2 LW8 Ushkalwar Sailu Eyewitness PW3 LW9 Adalwar Gangaram Eyewitness PW4 LW7 Jangam Nagnathappa Photographer PW5 LW11 Buthale Rukmaji Eyewitness PW6 LW13 Jangam Vishwanathappa Panch for inquest and scene PW7 LW19 Dr.Sunil Ballurkar Conducted autopsy PW8 LW17 Maturi Srinivas Reddy Panch for confession of A2 PW9 LW20 P.Satyanarayana, SIP Investigating Officer PW10 LW21 A.Venkatesham, CIP Investigating Officer

WITNESSES EXAMINED ON BEHALF OF DEFENCE

DW1: Birkur Pentaiah (one behalf of A2)

EXHIBITS MARKED FOR PROSECUTION

Ex.P1 Report lodged by PW1 Ex.P2 Three photos Ex.P3 Scene of offence panchnama Ex.P4 Sketch of the scene Ex.P5 Inquest panchnama Ex.P6 P.M.E report Ex.P7 F.S.L. report Ex.P8 Final opinion Ex.P9 Signature of PW8 on confession Panchnama Ex.P10 F.I.R. Ex.P11 Section alteration memo

EXHIBITS MARKED ON BEHALF OF DEFENCE

-Nil- :M.Os MARKED:

MO1: Green colour Polyster shirt MO2: Coffee colour pant MO3: Maroon colour cut drawer MO4: Green colour cotton towel MO5: Two chappals

Sessions Judge,

Nizamabad

IN THE COURT OF THE SESSIONS, NIZAMABAD

DIVISION, NIZAMABAD

Present: Sri G.Kanaka Sundar,

Sessions Judge, Nizamabad.

Friday, the 29th day of April, 2016

Sessions Case No.210 of 2014

1. Name of the accused : Miryala Ravinder @ Ravi S/o Ramulu, aged 26 years, Gosangi/SC, Labour R/o Jalalpur village of Nizamabad District 2 Offence under Section : U/s. 302, 201 3 Plea of the accused : Not guilty 4 Finding of the Judge : The accused is found not guilty of the offences U/s 302 and 201 IPC 5 Sentence : Accused is acquitted U/s 235(1) Cr.P.C 6 Prosecution conducted by : Sri D.Madhusudhan Rao, Public Prosecutor , Nizamabad 7 Accused defended by : Sri K.Rama Krishna, Advocate, Nizamabad (PRC No. 35/2014 on the file of II Addl. Judicial Magistrate of First Class, Nizamabad (Cr.No. 186/2010 of P.S.Navipet)

:: J U D G M E N T ::

1. This is a case of murder, allegedly, and burnt the murdered to ashes.

The deceased i.e. the murdered was Sarpanch of Jalalpur panchayat. Unfolded by evidence, that the villagers of Jalalpur were alarmed with seeing the house of deceased in flames at about 4.30 a.m.

Probably on information of someone, the Police and fire extinguishers arrived the scene and could extinguish the flames. The Police and others 2 SC. 210 of 2014 went inside the house of deceased and could see only the deceased completely burnt to ashes.

The wife of deceased, that was away came back and on the next day of incident i.e. on 29.9.2010 gave written complaint alleging that the deceased was murdered and set fire to the house in order to leave no trace of murder. The complaint was registered under Section 302, 201 IPC in Cr.No.186/2010 and proceeded with investigation.

After investigation, filed charge sheet against the accused alleging liable for death of deceased, before learned II Addl. JFCM, Nizamabad.

After considering material in the charge sheet and supporting documents, the learned II Addl. Judicial Magistrate of First Class, Nizamabad took cognizance against the accused under Section 302, 201 IPC and converted the crime file into PRC No.35 of 2014 and committed the case file to the Sessions Court, Nizamabad.

2. This Court retained the case and issued summons to the accused and on his appearance, heard the counsel for accused and Public

Prosecutor and framed charges, vide separate, and read over to which the accused pleaded not guilty.

3. In trial, the prosecution examined PWs 1 to 18 and marked Exs.P1 to P15 and MOs 1 to 5. After closure of prosecution evidence, the accused is examined under Section 313 Cr.P.C. The accused pleaded not guilty and reported no defence.

4. Heard both.

5. Points for consideration:

1)Whether the prosecution is able to prove the guilt of accused beyond all reasonable doubt?

2)To what result?

3 SC. 210 of 2014

Reasons:

6. Sir James Fitzerald Stephen, the author of Indian Evidence

Act, 1872 was deliberately, to say, vide section 25 of Indian Evidence

Act, made that “ No confession made to Police officer shall be proved as against a person accused of any offence”, which briefly means that a confession before Indian Police Officer is inadmissible. Even after 100 years, that deliberation is proved true in this case.

7. In the case on hand, the wife of deceased, examined as

PW3, the mother of deceased examined as PW1, have not informed the

Police, during investigation or before, that the accused had in any way difference or enmity with deceased, in such degree of killing the deceased. For that matter, the witnesses of prosecution relevant to the extent of proof of motive have stated that they have not suspected any particular person responsible for the death of deceased. How then the investigation, done by more than two Police officers, could pull the accused to stand up for trial, is the question. Absolutely, no material object nor any circumstance could the investigation officers collect to link the accused with death of deceased.

8. The wife of deceased, examined as PW3, did not state in her complaint in Ex.P1 about that she suspected any particular person responsible for the death of deceased but in her statement before police developed her version that the accused brought his family dispute to her deceased husband and the deceased advised the accused to come on next day and then the accused went abusing the deceased. This is according to the prosecution the motive for the accused to set ablaze the house of deceased and the deceased himself. For that matter, even in her statement before police, still PW3 maintained that some unknown 4 SC. 210 of 2014 persons committed murder of the deceased. Therefore, the motive is not certain. From crime to arrest of the accused, virtually and as admitted by

PW18, no material could be collected connecting the motive to the crime.

9. Hon’ble Supreme Court in Vijay Shankar v.State of Haryana 2016 (1) ALD (Crl.) 7 S.C, at para 11 stated that ” In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution.””

At para 7 further observed that “There is no eyewitness to the occurrence and the entire case is based on circumstantial evidence. The normal principle is that in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocencevide

Sharad Birdhachand Sarada v.State of Maharashtra.

5 SC. 210 of 2014

As I said above, the prosecution is not able to prove that any material considerable as evidence could be collected by the Investigation

Officers to connect the accused to the death of deceased.

10. PW18 deposed to have recorded the statement of accused; calling confession and that led him to recover a SIM card, marked as

MO5. What this MO5 contained and how MO5 is connected to the death of deceased is not explained. Therefore, the recovery of MO5 itself is doubtful and just to believe in the facts of this case that MO5 is planted.

ANSWER

11. For the reasons above, in my opinion, the prosecution failed to prove the guilt of the accused beyond all reasonable doubt.

12. IN THE RESULT, accused is found not guilty of the offences U/s 302 and 201 IPC and acquitted U/s 235(1) Cr.P.C.

The bail bonds of the accused and his sureties shall stand cancelled. MOs 1 to 5 shall be destroyed by learned lower court after expiry of appeal time.

Accordingly ordered.

Typed by Personal Assistant (Gr.I Stenographer) on my dictation, corrected and pronounced by me in open Court on this the 29th day of April, 2016

Sessions Judge

Nizamabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF PROSECUTION:

PW1 LW2 Gandhari Leela Devi Mother of deceased PW2 LW3 Gaini Komuraiah Witness PW3 LW1 Gandhari Latha Complainant/wife of deceased PW4 LW4 Gandham @ Mekala Witness Sailu PW5 LW8 Donkeni Pothanna Witness PW6 LW11 Mohd.Shadullah Witness 6 SC. 210 of 2014

PW7 LW12 Shaik Shabbir Witness PW8 LW15 Chennuri Udayarajan Witness Reddy PW9 LW16 Chennuri Ravinder Witness Reddy PW10 LW17 Earnala Papala Witness Gangadhar PW11 LW18 Matcharla Gangadhar Witness PW12 LW20 Chennuri Vittal Reddy Panch for scene, inquest PW13 LW23 Chennuri Baga Reddy Panch for confession and recovery PW14 LW24 Sanaboina Ramulu Panch for confession and recovery PW15 LW25 Dr.Sanjeev Reddy Conducted autopsy PW16 LW26 Dr.C.Shravan Kumar Issued final opinion PW17 LW27 S.Mogulaiah A.S.I of police PW18 LW30 Sri B.Manohar Dy.Suptd.of Police/ Spl.Investigating Officer

WITNESSES EXAMINED ON BEHALF OF DEFENCE

-Nil-

EXHIBITS MARKED FOR PROSECUTION

Ex.P1 Complaint Ex.P2 161 Cr.P.C statement of PW6 Ex.P3 161 Cr.P.C statement of PW7 Ex.P4 161 Cr.P.C statement of PW8 Ex.P5 161 Cr.P.C statement of PW9 Ex.P6 161 Cr.P.C statement of PW10 Ex.P7 161 Cr.P.C statement of PW11 Ex.P8 Scene of offence panchnama with sketch Ex.P9 Inquest report Ex.P10 Panchnama dated 30.09.2010 Ex.P11 P.M.E report Ex.P12 F.S.L. report Ex.P13 Final opinion Ex.P14 F.I.R Ex.P15 Confession and seizure panchnama

EXHIBITS MARKED ON BEHALF OF DEFENCE

-Nil- :M.Os MARKED: MO1:Zandubalm bottle MO2: Door curtain MO3:Scissor MO4:Bed sheet MO5: SIM card

Sessions Judge

Nizamabad

IN THE COURT OF THE SESSIONS JUDGE AT NIZAMABAD

Present: G. Kanaka Sunder, B.A., B.L.,

Sessions Judge, Nizamabad

Dated this the 20th day of April, 2016

Crl.A.No.133 of 2015

Between:

K. Borranna S/o. Poshanna, aged 55 years, Occ: Fair Price Shop Dealer, Shop No.13 of Guthpa Village, R/o. Guthpa Village of Makloor Mandal, Dist. Nizamabad.

.. Appellant/Respondent No.1

A n d

1.The State Government through the Dy. Tahsildar (Enf) Armoor.

2.The State, through Public Prosecutor, Nizamabad.

.. Respondent/Complainant

This Criminal Appeal coming before me on this day for final hearing and disposal in the presence of Sri P. Ravikanth Sharma, Advocate for the Appellant/Respondent No.1 and the Public Prosecutor for the State having heard and having stood over for consideration, this Court made the following:

O R D E R

1. This Criminal Appeal is filed under Section 6-C of

Essential Commodities Act.

2. The Appellant is dealer of Fair Price Shop No.13 at village Guthpa, Makloor Mandal. The Deputy Tahsildar,

Enforcement, Armoor, on cognizance of news paper item about the

Fair Price Shop No.13 mis-maintenance, went to FPS No.13 with his colleague staff, on 10.09.2015, for inspection. The Deputy Tahsildar filed a report under Section 6-A of Essential Commodities Act 1955 ( in brief E.C.Act ) before Joint Collector, Civil Supplies 2 Crl.A.No.133 of 2015

Nizamabad. The report in brief is that the appellant “…… is not maintaining the F.P.Shop and the shop is being run by the benami persons i.e. Sri Ramulu and Sri Venkatesh who are residing in

Nizamafbad and not maintaining proper records of the shop and not following the timings and doing illegal business by diverting the stocks into the black market for their unlawful gains, which are supplies in huge subsidy to meant for distribution to poor people and making inconvenient to the card holders thereby contravened the provisions i.e. Clause 7(b)(c) and Clause 22 (iii) of the A.P.State

PDS Control Orders, 2008 r/w section 5 of the E.C Act 1955”.

The Joint Collector, Nizamabad, vide his Order dated 10.11.2015, at para 12 held thus:

“Therefore, I order for confiscation of 100% value of the seized stock in favour of the Govt. for contravention of 17(b)(c) and 22 (viii) of the A.P.PDS Control Orders 2008 r/w section 5 of the

E.C Act 1955.”

The appellant being aggrieved by above order filed this appeal praying “ …. to set aside the order dt.10.11.2015 in case

No.CS6/294/2015 passed by the Joint Collector, Nizamabad and restore the seized stock to the appellant by allowing this appeal….”

The grounds urged in support of above prayer are that the rival group of appellant colluded to create false allegations and made false propaganda and believing that the Deputy Tahsildar made surprise visit of the Fair Price Shop of the appellant and submitted report to the Joint Collector. Further the appellant contended that the Joint 3 Crl.A.No.133 of 2015

Collector ordered confiscation of seized stock on mere assumptions and presumptions which resulted in miscarriage of justice.

Heard both.

Points:

1)Whether the order of Joint Collector, dt.10.11.2015 in Case No.CS6/294/2015 is liable to be set aside, varied or confirmed?

2)To what result?

REASONS:

In Administrative Law observance of principles of natural justice is one of the most important facets. In a civilized society no order which does not recognize this principle shall be allowed to stand.

It is well known that village society is fully infected with political factions. In all nominations and selections, at village, mandal and District levels, role of political leaders is how patent that patent is envy of opposite political faction.

Political factions are fuelled to the existing latent fire of caste discrimination. The appellant is, admittedly, a schedule caste man. The appellant has been dealer of fair price shop from about 30 years. The entire record of enquiry by Tahsildar is not found disclosing that the appellant indulged in any kind of irregularities, before, in maintaining fair price shop.

Continued dealership of appellant for about 30 years, naturally, as things stand in present social conditions, would have made some envious opponents of appellant to publish news to deprive the appellant of his feeder source i.e. fair price shop.

4 Crl.A.No.133 of 2015

The Joint Collector, Nizamabad vide impugned order jumped to conclusion that the variation in the stocks is for diverting the stocks for illegal business. Never before in his 30 years of dealership, as per record, the appellant was even suspected of diversion of stocks for illegal gains. No material is collected either by the Dy. Tahsildar or the Joint Collector in support of the conclusion that the appellant maintained the stock with variation only for the purpose of illegal business for unlawful gains. Without evidence the Joint Collector concluded as above, which therefore shall be said an assumption.

The show cause notice dt.16.09.2015 issued under section 6-B of E.C.Act 1955 to the appellant. From record, it appears the Joint Collector did not collect explanation. Also the impugned order of Joint Collector dated 10.11.2015 is also not disclosing that whether the appellant received show cause notice or not.

The impugned order reveals that the appellant admitted the charges framed against him. No separate charges except the charges in notice U/s 6-B of E.C.Act. The 6-B notice is

dated 16.09.2015. On 18.09.2015 it appears copy of 6-B

notice was received by somebody, not the appellant. The appellant did not give his explanation, as observed by the Joint

Collector in the impugned order “ admitted “ the charges by the appellant. In his statement, twice, the appellant stated that the alleged benami operators of fair price shop are his workers 5 Crl.A.No.133 of 2015 but not benamis. Son of appellant is at abroad and the appellant himself fell sick, therefore, the named workers

Venkatesh and Sri Ramulu are engaged to do the distribution work. The Enquiry Officer did not verify the truth or otherwise of the explanation given by the appellant.

There are about 500 card holders for distribution of commodities from the fair price shop of the appellant. The

Enquiry Officer i.e., the Dy.Tahsildar recorded statements of only five card holders. In view of political factions, caste envy etc vices truly existing in our society, the Dy.Tahsildar ought to have examined card holders from various sections, social groups of the village. The Enquiry is, therefore, believably went on to make true the news item than to find the truth on ground.

ANSWER:

For reasons therefore, the impugned order dated 10.11.2015 in CS6/294/2015 is hereby set aside.

IN THE RESULT, the Joint Collector, Nizamabad is directed to restore the seized stock or its value (assessable as on the date of seizure) to the appellant within one month from the date of this order.

Accordingly the appeal is allowed.

Typed to my dictation to Grade I Stenographer, Corrected by me and pronounced in open Court, on this the 20th day of April, 2016.

Sessions Judge,

Nizamabad.