Sri G Lakshmipathi

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IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE CUM SPECIAL

JUDGE FOR TRIAL OF CASES UNDER PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, HYDERABAD.

Dated this the 13th day of May, 2015

PRESENT : Sri G. Lakshmipathi,

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

ACT,HYDERABAD.

P.C.S SESSIONS CASE NO.14/2014

Crime Number and Police StationCrime No.330/2013 of Begumpet Police Station, Hyderabad.

Name and description of the accused personMohd. Akheel Miya @ Akheel, S/o. Mohd. Sardar Miya, aged 30 years, Occ: Cook, R/o. H.No.1-38-1465, Near Madarsa, Opposite Masjid-e-Illahi, Rasoolpura, Begumpet, Hyderabad.

Prosecution conducted bySri K. Pratap Reddy, Special Public Prosecutor.

Accused defended bySri Mohd. Yaseen Ayyube, Counsel.

Offences chargedUnder Section 376 r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012.

Plea of the accusedPleaded not guilty

Finding of the CourtFound not guilty

RESULTIn the result, accused is found not guilty for the offences under Section 376 r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 and he is acquitted under Section 235(1) of Cr.P.C. The bail bonds of the accused and his sureties stand shall cancelled in terms of Section 437(A) of Cr.P.C. The MOs 1 to 3 shall be destroyed after appeal time is over.

JUDGMENT

The Inspector of Police, P.S. Begumpet, has laid the charge sheet against the 1. above named accused for the offences punishable under Section 376 r/w 511 of IPC and under Section 8 of Protection of Children from Sexual Offences Act, 2012 in Crime No.330/2013 of his station with the allegations that the accused by name Mohd. Akheel Miya @ Akheel is the younger father of the victim girl. On 13-08- 2013 the accused went to Patigadda toddy compound along with his friends and consumed toddy. The accused consumed the toddy more than his capacity and 2 became unconscious and was unable to withstand. On seeing this situation, his friends brought him to the house of his brother Mohd. Sultan at Rasoolpura at about 4.00 p.m. and left the accused in the said house in the absence of Mohd. Sultan and his wife. The accused slept nearly two hours and woke up at about 6.00 p.m. and simultaneously the accused threatened the sons of his brother namely Soheb Akthar and Nabeel Akthar with an intention to fulfill his sexual desires on the victim and sent them out of the house. Then the accused slowly approached the victim girl who was alone in the house, slapped her and forcibly removed her paijama and also he too removed his pant and slept on her. In the meantime the mother of the victim girl, who arrived to home after completion of her work, noticed the incident and she screamed in a loud manner. On hearing her hue and cries the accused came into conscious and fled away from there. Thus, the accused committed the offences punishable under Section 376 r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. On the report of the complainant, a case in Cr.No.330/13 was registered under Section 376 r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 and investigated into. Hence the charge sheet.

The case was taken on file against the accused under Section 376 r/w 511 of 2. IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012.

After the appearance of the accused before this court, the copies of the case 3. records were furnished to him as required under Section 207 of Cr.P.C. The learned

Additional Public Prosecutor for the prosecution and the learned counsel for the

Accused were heard. The accused was examined under Section 228 of Cr.P.C. Charges under Section 376 r/w 511 of IPC and under Section 8 of Protection of Children from Sexual Offences Act, 2012 were framed against the accused, read over and explained to him in vernacular language. The accused pleaded not guilty hence, the case was ordered for trial.

During the course of trial, on behalf of prosecution PWs 1 to 10 were 4. examined and exhibits P1 to P8 and MOs 1 to 3 were marked.

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After the closure of prosecution side evidence, the accused was examined 5. under Section 313 Cr.P.C., so as to enable him to explain the incriminating circumstances appearing in the evidence of prosecution witnesses against him. The accused denied the allegations and pleaded not guilty.

On behalf of the accused no defence witnesses were examined and no 6. documents were got marked.

Now the points for determination are : 7.

“Whether the prosecution has proved the guilt of the accused 1. beyond all reasonable doubt for the offences under Section 376 r/w 511 of IPC and whether the accused is liable to be punished for the offence punishable under the above Section of law”?

“Whether the prosecution has proved the guilt of the accused 2. beyond all reasonable doubt for the offence under Section 8 of Protection of Children from Sexual Offences Act, 2012 and whether the accused is liable to be punished for the offences punishable under the above Section of law”?

Heard the learned Special Public Prosecutor for the prosecution and the 8. learned counsel for the accused.

9. POINT :

Perused the evidence of PWs 1 to 10 and exhibits P1 to P8. PW1, Fathima Begum is the defacto complainant and mother of the victim child. PW2 is the victim child/girl. PW3, Mohd. Sultan is the father of victim. PW4, K.V. Ramana and PW7, A.J. Raghuram are the panch witnesses for scene of offence observation panchanama. PW5, Master Soheb Akthar and PW6, Master Nabeel Ahmed are the brothers of the victim girl. PW8, Dr. G. Sravanthi, who examined the victim and 4 issued her final opinion. PW9, M. Prabhakar Reddy and PW10, B. Srihari are the Investigating Officers.

It is the case of the prosecution that on 13-08-2013 at 6.00 p.m. the 10. accused in intoxication condition threatened the sons of the complainant and sent them out of the house with an intention to fulfill his sexual desires on the victim/minor girl, who is the daughter of his brother, who was alone in the house, slapped her and forcibly removed her paijama and also he moved his pant and slept on her in intoxication state, in the meantime the mother of the victim girl arrived home after completion of her work, noticed the incident and screamed in a loud manner and on hearing the hue and cries of the complainant, the accused came into conscious and fled away from there after wearing his pant.

The case of the accused is total denial and this case is foisted against him as 11. he demanded the defacto complainant to return the amount due by her husband to him with a view to escape their liability.

To prove its case, the prosecution has examined PWs 1 to 10 and got marked 12. exhibits P1 to P8 and MOs 1 to 3.

In her evidence PW1, Smt. Fathima Begum, deposed that she is working as 13. employee in private Iron mesh company and that she is having two sons and a daughter. On 13-08-2013 as usual she went to her work place after dropping her children at their school at about 8.30 a.m. and returned home at about 6.00 p.m. and found the accused, who was the cousin of her husband in her house by sitting i.e. keeping his knees on the ground and at that time the accused was already removed his pant and her daughter was lying under him and her pyjama was also removed and on seeing the same she shouted on the accused as to what he was doing on that the accused ran away from there and by that time the accused was in fully drunken condition. Then, she went to the house of the accused along with her daughter and the accused was not there and then she informed the happenings to the mother of the accused and she expressed her helplessness and asked her to do whatever she can in this regard. On that day her husband was not in the house as he went out on his work. On the next day morning she went to the house of the 5 accused and by that time also the accused was not there in his house and the parents of the accused were in his house and when she enquired them about the accused, they could not give the whereabouts of the accused. Then, she went to Police Station, Begumpet and preferred a oral report to police and the police reduced the same into writing and she affixed her thumb impression on it. After recording her statement, police came to her house and enquired. Her victim daughter was aged about 10 years as on the date of alleged incident.

PW2, the victim child/girl was tested by this court with regard to her 14. testimonial competency and dispensed the administration of oath to her. In her evidence this PW2 has stated that on 13-08-2013 at about 3.30 p.m. she and her younger brothers returned to their house from the school and after taking meals they were attending to their home work. On that day at about 5.00 p.m. the accused came to their house in drunken condition and he acted as if he was sleeping. At about 5.30 p.m. the accused slapped both of her brothers and sent them away from the house. He asked her to remove her salwar. She refused and warned him that her mother will come. Then the accused slapped on her both cheeks. She sustained swelling on both the cheeks. She was crying. Then the accused again asked her to remove her salwar. She removed her salwar and laid on the floor. The accused also removed his pant and slept on her. In the meanwhile her mother came there and asked the accused as to why he was doing like that. Then her mother fell unconsciousness. The accused escaped from there. Her mother regained consciousness within half-an-hour and then her mother took her to the house of the accused. By that time the accused was not present in his house. Then her mother informed the incident to the mother of the accused. On the next day she was sent to a hospital along with one police aunty and there the doctor examined her. MO.1 is her yellow colour pyjama, MO.2 is her blue colour underwear and MO.3 is her orange cum blank colour kurta.

PW3, the father of the victim child/girl deposed that on 13-08-2013 he was 15. out of city on his private cooking work. On 14-08-2013 between 10.30 and 11.00 p.m. he learnt about the incident in this case through his wife PW1 on phone. Then on 15-08-2013 in the early morning he returned to his house. PW1 informed to him that on 13-08-2013 the accused, son of his junior paternal uncle removed the pyjama of his daughter PW2 and also removed his (accused’s) pant and sat on his daughter and on seeing the same, his wife lost consciousness and fell down and 6 after giving complaint to the police, she informed the same to him by phone on 14- 08-2013.

PW4, K. Venkataramana deposed in his evidence that on 14-08-2013 at 16. about 11.00 a.m. he was calledd to Begumpet Police Station by a Police Constable and he went there and there he was asked to sign on papers and he signed accordingly. This witness is treated hostile by the prosecution.

PWs 5 and 6, younger brothers of PW2, the victim child/girl were tested by 17. this court with regard to their testimonial competency and dispensed the administration of oath to them. In their respective evidences, these witnesses deposed that on the date of incident, the accused, who is their Chacha (uncle) came to their house in drunken condition and sent them out of their house. Then they both went away. At that time their elder sister PW2 and the accused were present in their house and they were sitting outside their house by weeping. At about 6.30 p.m. their mother (PW1) returned to their house and then they entered into their house along with their mother.

PW7, A.J. Raghuram, in his evidence has stated that on 14-08-2013 at about 18. 11.00 a.m. in the presence of himself and PW4 at a house near a Masjid in a lane in Indira Nagar, Rasoolpura, the police of Begumpet have seized MOs 1 to 3 and have drawn a rough sketch. Exs.P4 and P5 contains their signatures.

PW8, Doctor G. Sravanthi working as Assistant Professor in Department of 19. OBG at Gandhi Hospital, deposed that on 15-08-2013 at 12.30 p.m. on the requisition of SHO, Begumpet Police Station, she examined PW2, the victim girl, aged about 11 years brought by WPC of Begumpet PS and found no external injuries, perineum and hymen found intact, vagina and cervix are normal. She has sent two vaginal smears on glass slides to Forensic Science Laboratory, Red Hills for examination and later she received FSL Report under Ex.P7. Basing on Ex.P7 FSL Report semen and spermatozoa are not detected on the item No.1. By the finding of FSL, she was of the opinion that sexual assault cannot be ruled out and accordingly she issued certificate under Ex.P6.

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20.PW9, the Sub-Inspector of Police testified that on 14-08-2013 at about 11.00 p.m. when he was in the police station, PW1 came to the police station and presented Ex.P1 report and he registered the same as FIR under Ex.P8 in Cr.No.330/2013, under Section 376 r/w 511 of IPC and under Section 8 of POCSO Act and then handed over the case file to the Inspector of Police.

PW10, the Inspector of Police deposed that after receiving the case file from 21. PW9 on 14-08-2013, he took up the investigation and during the course of his investigation, he visited the scene of offence situated at Masjida Elayi, Rasoolpura and recorded the detailed statements of PWs 1 and 2, sent PW2 to Osmania General Hospital along with PW1 for medical examination through WPC. Then he called PWs 4 and 7 panch witnesses and in their presence he conducted scene of offence observation panchanama and prepared rough sketch of the scene and seized material objects under MOs 1 to 3. He has collected the vaginal swabs, etc., taken by the doctor and sent them along with MOs 1 to 3 to FSL. On 19-08-2013 the accused was apprehended by his staff and was brought to the police station and he was interrogated thoroughly in the presence of PWs 4 and 7 and recorded his confessional statement and then he effected the arrest of the accused and sent him to court for remand and after receipt of final opinion and after receipt of FSL report, he filed the charge sheet into the court.

22.During the course of examination under Section 313 of Cr.P.C, the accused stated that he lent Rs.50,000/- to PW1 as hand loan about two years ago and when he demanded her for three times, she did not repay the amount. On 13-08-2013 he went to the house of PW1 at about 9.30 a.m. and demanded PW1 for repayment of amount due to him. She requested one day time and asked to wait till 14-08- 2013. Then he went to the house of PW1 on 14-08-2013 and asked to repay the amount that was due to him. PW1 refused to pay and challenged him to do whatever he can do. Then he came to his house and informed the same to his mother. He has not committed any offence. This case has been foisted against him.

23.It is the contention of the learned Additional Public Prosecutor for prosecution that the evidence of PWs 1 to 10 is cogent, convincing and corroborating with each 8 other in all material facts. With the evidence of PWs 1 to 10, the prosecution has proved the guilt of the accused for the offences under Section 376 r/w 511 of IPC and Section 8 of POCSO Act beyond all reasonable doubt. Hence, the accused is liable for conviction.

It is the contention of the learned counsel for the accused that the accused is 24. the uncle of the victim child being the cousin of her father. The accused is a married person having four children. He did not commit such a nasty act towards the victim child who is like his daughter. The mother of the victim child is quarrel sum lady. When the accused demanded to return the amount due to him, she challenged the accused and foisted this case against him to escape her liability. Previously also PW1 alleged against the son of her land lord as if he tried to rape her daughter i.e. PW2 and after taking some amount from her land lord, she did not prefer any report to the police. The same was admitted by the father of the victim child PW3. MOs 1 to 3 appears to be new and they are over sized, which shows that they does not belong to PW2. Even PW8, the doctor in her opinion has not stated specifically that any sexual assault was made on PW2. She simply stated that she is of the opinion that sexual assault cannot be ruled out. With that opinion we cannot conclude that there was sexual assault on PW2.

It is true that the PW8, Doctor who examined the alleged victim PW2 has not 25. stated specifically that there was sexual assault on the victim child but, she stated the sexual assault cannot be ruled out. Since the doctor has not stated specifically that there was sexual assault on the victim child, it is necessary to look into the evidence on record carefully. In her evidence the mother of the victim child stated that by the time she returned home, she found the accused at her house by sitting i.e. by keeping his knees on the ground and at that time the accused already removed his pant and her daughter was lying on the ground and her pyjama was removed. This PW1 has not stated whether the underwear of the victim child was there on her body or not. Likewise, this PW1 has not stated whether the underwear of the accused was there on his body or it was removed. In her evidence the victim child PW2 has stated that the accused asked her to remove her salwar and she removed her salwar and laid on the ground and accused also removed his pant and slept on her. In the meanwhile her mother came and asked the accused as to what he was doing. PW2 has not stated whether her underwear was also removed and she also not stated whether the accused has removed his underwear or not. This PW2 has stated that accused slept on her but, PW1 has not stated about the accused lying on PW2. According to PW1 the accused was in sitting position on his 9 knees. So, the evidence of PWs 1 and 2 is not corroborating with each other on material facts. In her evidence PW8, Doctor has stated that she examined PW2 and sent two vaginal smears on glass slides to FSL, Red Hills for examination and she received FSL report and as per FSL report semen and spermatozoa are not detected on the item No.1 i.e. two vaginal smears on glass slides sent to FSL by PW8. But, this PW8 has given opinion to the effect that sexual assault cannot be ruled out. This PW8 stated that she did not find any external injuries on PW2, perineum and hymen found intact, vagina and cervix are normal. So, when PW8 did not find any external injuries on PW2 and found perineum and hymen intact and she found in the FSL report that semen and spermatozoa were not detected on the samples sent by her to FSL, her opinion that sexual assault cannot be ruled out appears to be not correct.

When coming to the conduct of the mother of the victim child is concerned, 26. she stated that she informed about the incident to her husband who was out of station on 14-08-2013 after preferring report to the police. The incident alleged to have been taken place on 13-08-2013 evening at about 6.00 p.m. According to PW9, the Sub Inspector of Police, PW1 came to Police Station and preferred report at about 11.00 p.m. on 14-08-2013 i.e. 28 hours after the incident. There is no proper explanation for this delay. PW3, the husband of PW1 and father of victim child has stated that previously also one person has committed such offence on his daughter but, he did not prefer any complaint against the said person but, they beat him. It is the contention of the accused that by alleging falsely against that person that he has sexually assaulted their daughter, PWs 1 and 3 have collected Rs.2.00 Lakhs from that person for not preferring report to police. When it is the contention of PW3 that previously also there was such type of incident occurred against PW2 by somebody, why PW1 did not prefer complaint against the present accused when she did not find the accused at his house. According to PW1 she went to the house of the accused immediately within half an hour of the incident and informed the matter to the mother of the accused and the mother of the accused asked PW1 to do whatever she can. If that is the case, again PW1 going to the house of the accused on the next day morning appears to be improbable. When in the morning of 14-08-2013 itself the parents of the accused have not given proper reply with regard to the whereabouts of the accused, why PW1 did not prefer report to the police against the accused in the morning hours itself is another doubtful circumstance.

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According to PW5, one of the brothers of victim girl, one unknown person 27. brought the accused to their house on that day. PW2 also stated that the accused came to their house with two persons and she can identify one among the said two persons. The Investigating Agency has not investigated on that aspect of the matter and not chosen to examine the said two persons who said to have been brought the accused to the house of PW1. PW1 in her evidence also stated that after the incident she informed about the incident to her neighbours but, the Investigating Agency has not chosen to examine any of the neighbours of PW1. PWs 5 and 6 have stated that the accused beat them and sent them out from their house and they were sitting outside of their house by weeping. When that is the case, the neighbours will certainly enquire and enter into the house. PWs 2, 5 and 6 have not stated that the accused has closed the doors of their house. If the accused had sent PWs 5 and 6 outside of their house, certainly the accused would have closed the doors of the house to commit such a nasty act as alleged. So all these improbable things create doubt about the evidence of PW1. PWs 2, 5 and 6 are children. They were tested with regard to their testimonial competency and found that they do not know the sanctity of the oath and therefore administration of oath to them has been dispensed with. Probability of tutoring PWs 2, 5 and 6 by PW1 cannot be ruled out. Further, there is no evidence of injuries on person of PW2. There is no evidence that the accused has touched the private parts of the victim. Under these circumstances, it is not safe to rely on the testimonies of PWs 1, 2, 5 and 6 to convict the accused. Hence, in view of my above discussion, I am constrained to come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt for the offences punishable under Section 376 r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. Hence, these points 1 and 2 are hereby answered against the prosecution.

28.In view of my findings on point Nos.1 and 2, the accused is entitled for benefit of doubt and acquittal.

In the result, accused is found not guilty for the offences under Section 376 29. r/w 511 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 and he is acquitted under Section 235(1) of Cr.P.C. The bail bonds of the accused and his sureties stand shall cancelled in terms of Section 437(A) of Cr.P.C. The MOs 1 to 3 shall be destroyed after appeal time is over.

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Dictated to Grade-I Stenographer of this court, transcribed and typed by her,

corrected and pronounced by me in the open court on this the 13th day of May, 2015.

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION:

Pw.1- Fatima Begum, Complainant and Victim Mother.

PW.2- Neha Samreen, Victim

PW.3- Mohd.Sultan, Father of Victim

PW.4- K.V.Ramana, Panch witness for observation panchanama of Scene of offence

PW.5- Master Soheb Akthar, Brother of Victim.

PW.6- Master Nabeel Ahmed, Brother of Victim.

PW.7-A.J.Raghu Ram,Panch witness for observation panchanama of Scene of offence . PW.8-Dr.G.Sravanthi,who examined PW.2. PW.9-M.Prabhakar Reddy,Issued FIR PW.10-B.Srihari, Investigating Officer .

WITNESSES EXAMINED FOR DEFENCE:- NIL.

EXHIBITS MARKED FOR PROSECUTION;-

Ex.P.1-Report

Ex.P.2-Signature of PW.4 on observation Report.

Ex.P.3- Signature of PW.4 on rough sketch.

Ex.P.4- Observation panchanama of scene of offence.

Ex.P.5-Rough sketch

Ex.P.6-Medical certificate .

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Ex.P.7-FSL Report.

Ex.P.8-Original First Information Report.

EXHIBITS MARKED FOR DEFENCE:- NIL.

M.O’S MARKED:-

M.O.1 –Light Yellow colour Paijama

M.O.2- Blue colour under wear

M.O.3- Orange cum black colour Kurtha

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, HYDERABAD.

1

IN THE COURT OF THE I ADDITIONAL METROPOLITAN SESSIONS JUDGE, CUM XV

ADDITIONAL CHIEF JUDGE, CUM MOTOR ACCIDENTS CLAIMS TRIBUNAL,

HYDERABAD.

PRESENT : Sri G.Lakshmipathi, I Additional Metropolitan Sessions Judge cum XV Additional Chief Judge, Hyderabad.

Dated this the Fifteenth Day of May, 2015.

Original Petition No. 2329/2009, Between: Afsara Begum W/o Late M.A.Jabbar, 1. Aged 38 years, Occ: House wife,

2. Arisha Begum D/o Late M.A.Jabbar, Aged 20 years, Occ: Student,

3. M.A.Shameer S/o Late M.A.Jabbar, Aged 19 years, Occ: Student,

4. Farhana Begum D/o Late M.A.Jabbar, Aged 18 years, Occ: Student, M.A.Akhil S/o Late M.A.Jabbar, 5. Aged 15 years, Occ: Student

6. M.A.Rehana D/o Late M.A.Jabbar, Aged 15 years, Occ: Student (Petitioners Nos.5 and 6 being minors rep. By their mother and natural guardian i.e. Petitioner No.1) All R/o. H.No.2-59, Khazipally (V), Jinnaram (M)Medak Dist.,…… Petitioners.

And

1. Srikanth Entertainment Pvt.Ltd., Rep. by P.Sudhakar s/o not known to the petitioners Age: Major, Occ: Business, H 7,Madhuranagar,Yousufguda, Hyderabad.

2. Bajaj Allianze General Insurance Co. Ltd., Rep. by its Manager,4A,4th floor , Sriman Rama Towers, Hanumannagar, Dillsukhnagar, R.R.District.

(Policy No.OG-10-1801-1801-00008257 valid from 02-06-2009 to 01-06-2010)

…...Respondents

This is petition is coming on for hearing before me and upon perusing the record and upon hearing the arguments of Sri C.Yadaiah, Advocate for the Petitioners and the Respondent No.1 set ex-parte and of Sri N.Srinath Rao, Advocate for the Respondent No.2, this court made the following :

AWARD

1.This is a claim petition filed by the petitioners 1 to 6 under Section 166 of Motor Vehicles Act against the respondents 1 and 2 requesting this Tribunal to 2 award an amount of 10.00 Lakhs towards compensation for the death of the deceased M.A. Jabbar, who is the husband of the 1st petitioner and father of the petitioner Nos.2 to 6, in a motor vehicle accident.

2.The allegations in the verified claim petition filed by the petitioners in brief are that on 04-10-2009 at about 5.30 p.m. while the deceased and his son were proceeding on a Hero Honda motorcycle bearing No. AP 23 J 2680 from Kukatpally Raithu Bazaar towards Khazipally village, on the extreme left side of the road and when they reached near SRR Project at Bachupally, suddenly one Tata Sumo bearing No. AP 09 AD 2035 came in a rash and negligent manner with high speed and dashed to the deceased from back side, due to which the deceased received closed head injury and other multiple fracture injuries all over his body and immediately he was shifted to Remedy Hospital, Kukatpally for treatment and while undergoing treatment, he succumbed to the injuries on 05-10-2009 at about 5.00 a.m. A case was registered against the driver of the offending Tata Sumo bearing No. AP 09 AD 2035 in Crime No.307/2009 at Dundigal P.S. Hence, the claim petition.

3.The First Respondent has proceeded ex-parte. The allegations in the written statement filed by the 2nd respondent in brief are that the allegations in the petition filed by the petitioner are not correct. The petitioners have to prove all the allegations in their petition. That the 2nd respondent admits that the insurance was covered at the material time under the policy of insurance issued by this respondent subject to the terms, conditions, exceptions and limitations thereof. It is further submitted that the driver of the offending vehicle was not holding valid and effective driving license at the time of accident. Unless the petitioners proves that the registered owner used the offending vehicle without any breach or permits and traffic rules as per Motor Vehicles Rules and that there was no violation of any Section of Motor Vehicles Act, this respondent company is not liable to pay any compensation to the petitioners. Respondent No.2 further submits that the amount of compensation as claimed by the petitioners is excessive, exorbitant and exaggerated and the petitioners are not entitled for the same from this respondent.

4.Basing on the above pleadings, the following issues were framed for trial :

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Whether the accident occurred on at about , at, was due to the rash and 1. negligent driving of Tata Sumo bearing No.AP 09 AD 2035, by its driver?

2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?

3.To what relief ?

5.The second respondent filed a petition under Section 170 of Motor Vehicle Act and the same was allowed in I.A. No.654/2012, dated: 07-12-2012 and thereby the 2nd respondent is authorized to take all the defences that are available for the owner of the offending vehicle.

6.On behalf of the claim petitioners, PW’s 1 and 2 were examined and exhibits A1 to A9 were marked.

7.On behalf of the respondent No.2, RWs 1 and 2 were examined and exhibits B1 to B3 and X1 were marked.

8.Heard the learned counsel for the claim petitioners and the learned counsel

for the respondent No.2. Written arguments were filed both on behalf of the

petitioners and respondent No.2.

9.Issue No.1 :

To prove that the pleaded accident was occurred due to rash and negligent driving by the driver of offending Tata Sumo bearing No. AP 09 AD 2035, the petitioners have examined PWs 1 and 2. Admittedly, PW1 who is the petitioner No.1 is not an eye witness to the pleaded accident. Therefore, her evidence is no way helpful to prove this issued No.1. PW2, M.A. Akhil, who is the petitioner No.5 in his evidence deposed that he is the eye witness to the accident and that on 04-10-2009 at about 5.30 p.m. while he along with his father were going to their village on their Hero Honda Motorbike bearing No. AP 23 J 2680 and he was the pillion rider and when they reached near SRR Project at Bachupally, slowly on the left side of the road, suddenly one Tata Sumo bearing No. AP 09 AD 2035 driven by its driver in a rash and negligent manner in high speed came behind their 4 motorbike and dashed their motorbike, due to which his father received closed head injury and other multiple fracture injuries all over his body and succumbed to the injuries on 05-10-2009 at 5.00 a.m. and he also received injuries. Ex.A1 is the copy of FIR in Cr.No.307/2009 of Dundigal P.S. which was registered on the report of one M.A. Basheer and Ex.A2, copy of the charge sheet, in the above crime filed by the Sub-Inspector of Police, Dundigal P.S. before the Court of VI Metropolitan

Magistrate, Medchal, Cyberabad, which shows that the pleaded accident was

occurred due to the rash and negligent driving by the driver of Tata Sumo bearing No. AP 09 AD 2035 by name K. Prasad, who was not having driving license to drive the vehicle.

10.The evidence of PW2 is being corroborated with the contents of Exs.A1 and A2. The Petitioner No.5, M.A. Akhil who is examined as PW2 is also shown as an eye witness in the charge sheet under Ex.A2. Therefore, there is nothing to disbelieve the contents of exhibits A1 and A2. The respondent No.2 has examined RWs 1 and 2 and has marked exhibits B1 and B2 and X1 to rebut the evidence produced by the petitioners. Admittedly RWs 1 and 2 are not the eye witnesses to the accident. Therefore, there is no value attached to the evidence of RWs 1 and 2 and exhibits B1 to B3 and X1 to rebut the evidence of PW2 and contents of Exs.A1 and A2. With the evidence of PW2 and the contents of Exs.A1 and A2, this issued No.1 is hereby answered in favour of the petitioners.

11.Issue No.2 :

In view of my findings on issue No.1, I hold that the pleaded accident was occurred due to the rash and negligent driving by the driver of Tata Sumo bearing No. AP 09 AD 2035. It is the contention of the petitioners that the first respondent is the owner of the offending vehicle. The first respondent has proceeded ex-parte. The 2nd respondent Insurance Company is not disputing the ownership of the 1st respondent over the offending vehicle. Ex.B1, the copy of the Insurance Policy issued by the second for the offending vehicle shows that the first respondent is the owner of the offending vehicle. Therefore, we can take that the first respondent is the owner of the offending vehicle. Since I hold that the pleaded accident was occurred due to the rash and negligent driving by the driver of the offending vehicle Tata Sumo bearing No. AP 09 AD 2035 of the first respondent, the first respondent is vicariously liable to pay the compensation for the death of the deceased to the petitioners who are the legal representatives of the deceased.

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12.It is the contention of the 2nd Respondent that the driver of the offending vehicle Tata Sumo bearing No. AP 09 AD 2035 was not having any driving license much less valid license at the time of accident. Therefore, the 1st respondent has violated the prime condition of the Insurance Policy. Therefore, the 2nd respondent is not liable to indemnify the liability of the 1st respondent. It is also the contention of the learned counsel for the respondent No.2 that in the charge sheet filed by the police itself, it is stated that the driver of the offending vehicle i.e. the accused noted in the charge sheet K. Prasad, S/o. Ganganna was not having driving license at all to drive the crime vehicle. Therefore, he was charge sheeted for the offence under Section 181 of Motor Vehicle Act apart from Sections 304-A and 307 of IPC. It is the contention of the learned counsel for the claim petitioners that the respondent No.2 has not proved that the driver of the offending vehicle was not having valid license at the time of accident specifically. Even if the driver of the offending vehicle was not having the valid license, since the petitioner is the third party to the policy the legal representatives of the deceased are entitled for compensation from both, the owner of the vehicle and also from the insurer of the vehicle. If the Insurance Company is not liable to pay compensation, it can recover from the owner of the offending vehicle by first paying the compensation to the petitioners.

13.It is true that in the charge sheet filed by the Sub Inspector of Police, Dundigal, in Cr.No.307/2009 of his station against the driver of the crime vehicle Tata Sumo bearing No. AP 09 AD 2035 by name Kunchepu Prasad, S/o. Ganganna has averred that the accused has not produced his driving license and charge sheeted the accused for the offence under Section 181 of Motor Vehicle Act apart from Sections 304-A and 307 of IPC. Ex.A5, Motor Vehicle Inspection Report shows that the Motor Vehicle Inspector has inspected the offending vehicle Tata Sumo bearing No. AP 09 AD 2035 on 06-10-2009 and at that time the driver of the vehicle K. Prasad, S/o. Ganganna has not produced the driving license. With the contents of exhibits A2 and A5, copy of charge sheet and copy of Motor Vehicle Inspection Report respectively, we can take that the driver of the offending vehicle has not produced the driving license. Both the Sub Inspector of Police, Investigating Officer and Motor Vehicle Inspector have not stated in the charge sheet and MVI Report respectively that the driver of the offending vehicle was not having any type of driving license at the time of accident. They simply stated that the driver of the offending vehicle did not produce any driving license.

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14.In this case the respondent No.2 has taken all steps to prove that the driver of the offending vehicle was not having valid driving license at the time of accident. He has taken summons to the driver of the offending vehicle and also to the owner of the offending vehicle but, the summons sent to the owner of the offending vehicle i.e. Respondent No.1 was returned stating that he was not residing at the address given in the Insurance Policy. In this case the respondent No.1 proceeded ex.parte. So, there is no possibility for the respondent No.2 to examine the owner of the offending vehicle to prove that the driver of the offending vehicle was not having valid license. Likewise, summons sent to the driver of the offending vehicle K. Prasad was also returned stating that he is not residing in the address given in the charge sheet under Ex.A2. Therefore, there was no possibility to respondent No.2 to examine the driver of the offending vehicle also. Exhibits B2 and B3 are the office copies of the letters addressed to Respondent No.1, owner of the offending vehicle by the Respondent No.2, Insurance Company along with postal receipts. Since the notices sent to respondent No.1 and the driver of the offending vehicle were sent to them by registered post and they did not respond to it, we have to take that the respondent No.2 has taken all the steps to prove that the driver of the offending vehicle was not having valid driving license at the time of accident. Therefore, as the driver of the offending vehicle did not produce the driving license before the Investigating Officer of the crime and also before the Motor Vehicle Inspector at the time of inspecting the crime vehicle, we have to conclude that the driver of the offending vehicle was not having valid driving license at the time of accident. As per the terms and conditions of Insurance Policy under the original of Ex.B1, liability of Insurance Company is subject to holding of valid driving license by the driver of the insured vehicle. Since the driver of the offending vehicle in this case was not having valid driving license at the time of accident, there is no liability for the Insurance Company to indemnify the liability of the Insurer, owner of the offending vehicle/respondent No.1.

15.In a case between Jayaprakash Agarwal and others Vs. Mohd. Kaleemulla and another, reported in 2011 (5) ALD 184, on which the learned counsel for the claim petitioners relied on the Hon’ble High Court of Judicature observed that :

”In the above circumstances, this Court is of the view that though several other decisions cited had taken different views, this Court is 7 bound by the decision of the Apex Court rendered in 2004 (2) ALD 36 (SC), which is of three Judge Bench of the Apex Court. Hence, the guidelines issued by the Apex Court in 2004 (2) ALD 36 (SC) to be followed and accordingly the Insurance Company is directed to pay the amount to the claimants and may initiate separate proceedings against the owner of the vehicle for recovery of the said amount. Section 149(2) in fact gave rise to numerous litigations whereby the achievements of object behind Sections 147 and 149(1) and other provisions became uncertain on account of variety of interpretations on the said sections by different Courts. Therefore, it is for the Legislature to examine the same and remove the uncertainties and see that all the victims of Motor Accidents receive just and reasonable compensation.”

In view of the above decision that even if Insurance Company is able to prove that the driver of the offending vehicle is not having valid driving license the guidelines of the Hon’ble Supreme Court in a case between National Insurance Co. Ltd., Vs. Swaran Singh, reported in 2004 (2) ALD 36 (SC) has to be followed by directing the Insurance Company to pay the compensation to the claimants and initiate separate proceedings by the Insurance Company against the owner of the vehicle for the recovery of said amount. But, in a case between New India Assurance Co. Ltd., Vs. G. Sampoorna and others, reported in 2011 ACJ 2828, on which the learned counsel for the respondent No.2 relied on the Hon’ble High Court of Andhra Pradesh observed that :

“On the strength of the discussion undertaken above, it is not possible for this court to treat the judgment in Swaran Singh, 2004 ACJ 1 (SC), as containing mandatory directions to the Tribunals and courts to invariably direct the insurance companies to pay the amounts at the first instance and recover the same from the owners of the offending vehicles even though they are held not liable. Pending resolution of the issues by the larger Bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and courts to give appropriate direction depending upon the facts and circumstances of each case.”

In view of the above decision, the two Judges Bench of Apex Court had reservations about such directions to Insurance Company given in Swaran Singh case reported in 2004 (2) ALD 36 (SC) and referred the case to larger bench of 8

Apex Court for giving appropriate directions depending upon the facts and circumstances of each case.

16.In another case between Divisional Manager, New India Assurance Company Vs. Vinayaga Moorthi and others, reported in 2010 ACJ 1605, on which the learned counsel for the Respondent No.2 relied on the Hon’ble High Court of Judicature at Madras, Madurai Bench, observed that :

Para 24 : “Article 136 read with Article 142 of the Constitution of India, confers an extraordinary jurisdiction on the highest court of the country to issue any direction and exercise their power to do complete justice and Tribunals do not have the power, similar to that conferred under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results.”

Para 25 : “Therefore, the decision of the Tribunal to follow a direction issued by the Apex Court in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India, to the present claim petitions is not in accordance with law and therefore, I have no hesitation to hold that there is an excess of jurisdiction. In the light of the decisions of the Supreme Court on the issue, the finding of the Tribunal fastening the liability on the appellant insurance company to pay compensation to all the victims and to recover the same from the owner is liable to be set aside and accordingly set aside. Insured, respondent No.3 is liable to compensate each of the victims. It is for the respondents-claimants to take up appropriate proceedings before the Tribunal to recover the compensation from the insured. The amount deposited by the appellant insurance company in respect of each of the claim petitions shall be refunded to the insurance company within two weeks from the date of receipt of this order. The common judgment and decree of the Tribunal in M.C.O.P.Nos.277 of 2003, etc.,

dated: 14-08-2007 are set aside. The civil miscellaneous appeals are

allowed. No costs.”

In view of the above decision, it is clear that the directions given by the

Hon’ble Supreme Court under extraordinary power under Article 142 of

Constitution of India cannot be taken as a ground by the Tribunals to issue such directions. Therefore, this tribunal cannot direct the Insurance Company which is found not liable to pay compensation on account of the violation of the terms and conditions of the Insurance Policy issued by it to pay compensation in the first 9 instance to the claimants and to recover the same by initiating separate proceedings against the owner of the offending vehicle. Therefore, I am of the view that the respondent No.2 in this case is not liable to indemnify the liability of the first respondent who violated the terms and conditions of the Insurance Policy under the original of Ex.B1 issued by the Respondent No.2 for the offending vehicle in favour of the first respondent.

17.In her evidence, the first petitioner as PW1 has deposed that her husband was doing business in coal and wood and getting Rs.10,000/- per month. Except the oral evidence of PW1, there is no documentary proof to show that the husband of PW1 was earning Rs.10,000/- per month by doing coal and wood business. In Inquest Report under Ex.A3, it is noted that the deceased was doing business in coal and firewood. So, we can accept the contention of PW1 that her deceased husband was doing business in coal and wood. Considering the business of the deceased, we can take that the deceased was getting Rs.6,000/- per month as income. So, the annual income of the deceased must be Rs.72,000/- (Rs.6,000/- x 12 = Rs.72,000/-). The deceased was having six dependents. So, we can deduct 1/4th of his income towards his personal expenses i.e. Rs.18,000/-. Then, the loss of dependency in this case must be Rs.54,000/- (Rs.72,000/- annual income – Rs.18,000/- personal expenses). The deceased in this case was aged about 42 years as per Inquest Report under Ex.A3 and as per Discharge Summary under Ex.A6. So, the multiplier that applies to a person aged between 41 and 45 years is ‘14’ as per Sarala Varma and others Vs. Delhi Transport Corporation and another reported in 2009 (3) ALD 83 (SC). So, the loss of dependency in this case must be Rs.54,000/- (loss of dependency) x 14 (multiplier) = Rs.7,56,000.00.

18.In this case the petitioner in her evidence as PW1 has stated that when her husband was in hospital, they have spent Rs.25,000/- for his treatment at Remedy Hospital, Kukatpally. She filed Ex.A7, Hospital Bills to a tune of Rs.18,775/-. So, we can award Rs.19,000/- towards medical expenses. Since there is death, we can award Rs.25,000/- towards funeral expenses. Another sum of Rs.25,000/- towards loss of estate and another sum of Rs.25,000/- towards loss of consortium to the 1st petitioners being the wife of the deceased. So, the total compensation that can be awarded to the petitioners in this case is Rs.8,50,000/- (Rupees Eight Lakhs Fifty Thousand only) payable by the Respondent No.1. Hence, this issued No.2 is answered accordingly against Respondent No.1 only.

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19.Issue No.3 :

In view of my findings on the issues Nos.1 and 2, the petition is to be allowed partly against respondent No.1 with proportionate costs by awarding compensation of Rs.8,50,0,000/- with interest at 7.5% per annum from the date of the petition till the date of relialization payable by the respondent No.1 only and the petition against respondent No.2 is liable to be dismissed without costs.

20.In the result, the petition is hereby allowed partly with proportionate costs against the respondent No.1 only awarding compensation of Rs.8,50,000/- (Rupees Eight Lakhs Fifty Thousand only) with interest at 7.5% per annum from the date of petition till the date of realization payable by the respondent No.1 only to the petitioners. The petition against Respondent No.2 is hereby dismissed without costs. The Advocate fee is fixed at Rs.5,000/-. Out of the compensation amount awarded, the 1st petitioner being the wife of the deceased is entitled for Rs.2,50,000/- with entire interest and costs. The petitioners 2 to 6 are each entitled for Rs.1,20,000/-. Immediately after the deposit of the compensation amount by the Respondent No.1, the petitioner No.1 is entiled to withdraw an amount of Rs.50,000/- with entire interest and costs and the remaining compensation amount of the 1st petitioner i.e. Rs.2,00,000/- shall be kept in fixed deposits in any Nationalized Bank for a period of three years. The petitioners 2 to 4 are entitled to withdraw their entire share of compensation. The shares of compensation amounts awarded to petitioners 5 and 6 shall be kept in fixed deposits in any Nationalized Bank till they attain their majority.

Dictated to Grade-I Stenographer of this Court, transcribed and typed by her,

corrected, signed and pronounced by me in the open court on this the 15th day of May, 2015.

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM XV ADDITIONAL CHIEF JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PETITIONER

PW1 – Afsara Begum. PW2 – M.A.Akhil.

WITNESSES EXAMINED FOR RESPONDENTS

RW1 –R.Laxminarayana.

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RW2- Vishnu Vardhan.

EXHIBITS MARKED FOR PETITIONER:

Ex.A1 - Certified copy of First Information Report. Ex.A2 – Certified copy of charge sheet. Ex.A3 - Certified copy of Inquest Report. Ex.A4 - Certified copy of PME Report. Ex.A5 – Certified copy of MVI Report. Ex.A6 – Certified copy of Discharge Summary. Ex.A7 - Hospital Bills Ex.A8 - Bank Statement Ex.A9 - Ledger Statement

EXHIBITS MARKED FOR RESPONDNETS:

Ex.B1 – True copy of Policy . Ex.B2 – Office copy of Regd.Letter addressed to Respondent . Ex.B3 – Office copy of Regd.Letter addressed to Respondent No.1.

Ex.X1 - Attested Photo copy of the House Hold Card dt.11-6-2006.

I ADDL. METROPOLITAN SESSIONS JUDGE CUM

XV ADDITIONAL CHIEF JUDGE, HYDERABAD.

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IN THE COURT OF THE I ADDITIONAL METROPOLITAN SESSIONS JUDGE, CUM XV

ADDITIONAL CHIEF JUDGE, CUM MOTOR ACCIDENTS CLAIMS TRIBUNAL, HYDERABAD.

PRESENT : Sri G.Lakshmipathi, I Additional Metropolitan Sessions Judge cum XV Additional Chief Judge, Hyderabad.

Dated this the 5th day of May, 2015.

M.V.O.P.1147/2009

Between:

1) Vadthyavath Lakshmi W/o Late V.Raghu, Age: 19 years, Occ:House wife 2)Vadthyavath Peeriya S/o Samla, Age: 54 years, Occ: NIL,

3) Vadthyavath Anji W/o Vadthyavath Peeriya , Age: 50 years, Occ: House wife All are R/o.Medigadda Thanda Village, Amangal Mandal, Mahabubnagar District. …… Petitioners.

And

1)V.Mallesham S/o V.Anjaiah, Age: Major, Occ: Owner of Crime Vehicle, R/o H.No.1-123/3, Vittaipally village, Amangal Mandal, Mahabubnagar District. . 2)The Bajaj Allianze Insurance Company Limited Rep.by its Branch Manager, II Floor,Forest Plaza, Himayathnagar,Hyderabad.

(Policy No. OG-08-1801-1812-00000808 valid from 03-08-2007 to midnight of 02-08-2008)

…..Respondents .

This is petition is coming on for hearing before me and upon perusing the record and upon hearing the arguments of Sri G.Bhoopal Reddy,Advocate for the Petitioners and of Sri Rama Krishna Reddy, Advocate for the Respondent No.2 and Respondent No.1 remained Exparte ,this court made the following :

AWARD

1.This is a claim petition filed by the petitioners under Section 163-A of Motor Vehicle Act against the respondents 1 and 2 requesting this Tribunal to award an amount of Rs.5.00 Lakhs as compensation for the death of Vadthyavath Raghu, husband of 1st petitioner and son of petitioner Nos.2 and 3 in a motor vehicle accident.

2.The allegations of the verified petition filed by the petitioners in brief are that on 03-03-2008 at about 8.30 hours the deceased was traveling in the Cruiser jeep bearing No. AP 22 U 8980, meanwhile the driver of the said Cruiser jeep drove the vehicle in high speed in a rash and negligent manner, due to which the deceased fell down from the said vehicle and sustained severe injuries all over his body. Immediately, first aid was given to him and while shifting to Government Hospital, 2

Kalwakurthy, Mahaboobnagar District for treatment, he died on the way to the hospital. Hence, the claim petition.

3.Counter filed by the Respondent No.1 in brief are that the allegations in the petition filed by the petitioner are not correct. The petitioners have to prove all the allegations in their petition. The offending Cruiser jeep bearing No. AP 22 U 8980 was insured with Respondent No.2 and the policy is valid as on the date of accident. Therefore, Respondent No.2 is alone liable to pay the compensation amount, if any, to the petitioners. Hence, this petition is liable to be dismissed against Respondent No.1.

4.The allegations in the written statement filed by the Respondent No.2 in brief are that the allegations in the petition filed by the petitioners are not correct. The petitioners have to prove all the allegations in their petition. The accident was occurred only due to the quarrel between the driver of the offending vehicle and the deceased and on account of that quarrel, the driver of the offending vehicle tried to go away from that place, at that time the deceased rashly and negligently caught hold the door of the running jeep and fell down from it and contributed for the cause of accident. Further, it is submitted that the driver of the offending vehicle was not possessing valid license at the time of accident. Therefore, Insurance Company is not liable to pay any compensation to the petitioners. If at all the petitioners are entitled for compensation, the same shall be payable by the 1st Respondent alone. Further, the amount of compensation as claimed by the petitioners is highly excessive. Hence, petition is to be dismissed against the Respondent No.2.

5.Basing on the above pleadings, the following issues were framed for trial :

1. Whether the accident occurred on 02-03-2008 at about 9.00 p.m. at Medigadda Thanda Auto Stand, Amangal, Mahaboobnagar District, was due to the rash and negligent driving of the Cruiser Jeep bearing No. AP 22 U 8980, by its driver?

2. Whether the petitioners are entitled to any compensation, and if so, to what amount and from whom ?

3. To what relief ?

6.On behalf of Respondent No.2, a petition under Section 170(b) of Motor Vehicle Act was filed in I.A. 116/2014 and the same was allowed on 25-03-2014 3 and thereby the Respondent No.2 is authorized to take all the necessary defences that are available to the owner of the offending vehicle.

7.On behalf of the petitioner, PWs 1 and 2 were examined and Ex.A1 to A5 were marked.

8.On behalf of Respondent No.2, RWs 1 and 2 were examined and Ex.B1 to B4 and Ex.X1 and X2 were marked.

9.Heard the counsels of both parties on record. Written arguments filed on behalf of the petitioners and also on behalf of the Respondent No.2.

10.Issue No.1 :

To prove that the pleaded accident was occurred due to rash and negligent driving of the driver of offending Cruiser Jeep bearing No. AP 22 U 8980, the petitioners have examined the first petitioner as PW1 and one Sitaram as PW2. In her evidence, the first petitioner as PW1 has stated that on 02-03-2008 at 8.30 hours her husband V. Raghu was traveling in the Cruiser Jeep bearing No. AP 22 U 8980 and at that time the driver of the said vehicle drove the vehicle in high speed in a rash and negligent manner due to which her husband fell down from the vehicle and received injuries all over the body. Immediately, he was given first aid and thereafter while shifting her husband to Government Hospital, Kalwakurthy, Mahaboobnagar District for treatment, he died on the way. During cross- examination, this PW1 has stated that at the time of accident, she was sitting in the front seat and her husband was sitting in back seat of the said jeep. She also stated that there was no ‘Bharaath’ took place at the time of accident. The bridegroom was not in the jeep. She also stated that at the time of accident 5 to 6 persons were travelling in the jeep. Further, she stated that her husband was sitting on the side sear. Again she stated that she did not see where her husband was sitting in the jeep.

11.Whereas in his evidence, B. Sitaram, the eye witness for the alleged accident has deposed that on 03-03-2008 at about 8.30 hours when he was passing to his house, the deceased V. Raghu was traveling in Cruiser Jeep bearing No. AP 22 U 8980. Meanwhile, the driver of the said vehicle drove the vehicle in a rash and negligent manner due to which Raghu fell down from the vehicle and received injuries all over the body. Immediately he was shifted to Government Hospital, Kalwakurthy for treatment. Later he came to know that he died. During cross- examination, this PW2 has deposed that there is Bharaath took place at 8.00 p.m. which took on for 30 minutes. The deceased sat in the middle of the jeep. He has not seen the deceased dancing in the Bharaath. He denied the suggestion that the deceased was in drunken stage at the time of accident. He also denied the 4 suggestion that while he was in drunken condition, tried to chase the jeep and while chasing he could not catch hold the jeep and fell down and sustained injuries. He also denied the suggestion that he (deceased) beat the driver of the jeep and due to that the driver started the jeep and the deceased chased the jeep and in that process he fell down and sustained injuries.

12.In this case the petitioners have filed the certified copy of the FIR under Ex.A1. In this Ex.A1 the contents of the report preferred by the defacto complainant Vadthyavath Srinu are noted. It shows that on 02-05-2008 there was marriage of the daughter of one Vadthyavath Samla in their village. After the marriage, for the purpose of taking the bride, one Cruiser Jeep bearing No. AP 22 U 8980 was brought to their village. On that night at about 9.00 p.m. there was Bharaath by taking the bride and bridegroom and when the said Bharaath came to the auto stand of their village, his own brother Raghu danced in the Bharaath. In the meanwhile there was failure of power supply. Then there was some altercation between his brother and others in the Bharaath. Then, the driver of the Cruiser Jeep bearing No. AP 22 U 8980 has began to take the vehicle with high speed away from that place, then his brother Raghu asked the driver to stop the Cruiser and caught hold the door of the said vehicle but, the driver did not stop. Subsequently, they found his brother by the side of the agriculture fields of their village Sarpanch. Then they watered their brother and taken him to Dr. Pathiya Naik at Amangal and from there he was taken to Kalwakurthy Hospital and has taken first aid. One hour later when his brother complaining stomach pain and throat pain, again they tried to take him to Amangal, but he died in the meanwhile. So, the contents of FIR are quite contrary to the evidence of PWs 1 and 2.

13.It is the contention of the learned counsel for the Respondent No.2 that with the evidence of PWs 1 and 2 which is contrary to the contents of FIR, we have to conclude that the petitioners have failed to prove that the death of the deceased in this case was due to the rash and negligent driving of the driver of the offending vehicle.

14.It is true that the evidence of PWs 1 and 2 is not corroborating with the contents of FIR under the original of Ex.A1. In Ex.A2, the copy of the charge sheet shows that the first petitioner herein i.e. PW1 is not an eye witness to the alleged accident. The petitioners have not examined Vadthyavath Srinu who preferred report to police. The evidence of PWs 1 and 2 is also not corroborating with each other. In her evidence PW1 stated that there was no Bharaath at the time of accident whereas PW2 in his evidence stated that there was Bharaath at about 8.00 5 p.m. which went about 30 minutes. So, the evidence of PWs 1 and 2 is not inspiring confidence. The FIR is the earliest version with regard to the death of the deceased. So, we have to take that the contents of Ex.A1, FIR are true. Once we take the contents of Ex.A1, FIR are true, we have to conclude that the evidence of PWs 1 and 2 is unbelievable and not acceptable. With the contents of Ex.A1 we have to conclude that the death of the deceased in this case occurred on account of the rash act of the deceased also. With the contents of Ex.A1, it is clear that the driver of the offending vehicle has driven the vehicle even though the deceased asked him to stop the vehicle and even though the deceased was chasing the vehicle by caught holding the door of the vehicle. So, I am of the view that there was rash and negligent act on part of the driver of the offending vehicle only. Hence, this issue is answered accordingly in favour of the petitioners.

15.Issue No.2 :

It is the contention of the learned counsel for the Respondent No.2 that there is no valid driving license for the driver of the offending vehicle. As per Ex.A4, copy of the Motor Vehicle Inspector Report, the driver of the offending vehicle was having non-transport driving license but, the offending vehicle is transport vehicle. Further, in this case the Respondent No.2 has summoned RTA Authority, Mahaboobnagar, to produce the extract of driving license of the offending vehicle. Accordingly, the Junior Assistant in RTA Office, Mahaboobnagar, who was examined as RW2 produced attested copy of the extract of driving license of one Pandu V. S/o. Motia, which is marked as Ex.X2. As per Ex.X2, the copy of the charge sheet, Vadthyavath Pandu, S/o. Motia was the driver of the offending vehicle as on the date of accident. When we peruse Ex.X2, it shows that the driver of the offending vehicle by name Pandu V. is having non-transport driving license to drive light motor vehicle issued on 14-11-2006 which is valid up to 03-11-2026. So, as on the date of accident, the driver of the offending vehicle was not having valid driving license.

16.It is the further contention of the learned counsel for the Respondent No.2 that since the death of the deceased was occurred only on account of rash act of the deceased himself, the Respondent No.2, who is the Insurer of the offending vehicle is not liable to pay any compensation to the petitioners for the death of the deceased. In view of my finding on issued No.1, I hold that due to the rash and negligent acts on part of both the driver of the offending vehicle as well as the deceased himself, the death of the deceased was occurred in this case.

17.The present application is filed for compensation by the petitioners under Section 163-A of Motor Vehicle Act. In a case between Jitta Bikshapathi and 6 another Vs. R. Venkat Reddy and another, reported in 2015 (1) ALT 79, the

Hon’ble High Court of Andhra Pradesh by relying on a decision reported in 2004

(5) ALT 11 (SC), has observed that :

“In Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd., a detailed analysis was made on the scope of Sections 166 and 163-A of the Act and held that the remedy for payment of compensation both under 163-A and 166 being final and independent of each other, as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. The Court also extensively held that Section 163-A was introduced in the Act by way of a social security scheme and is a Code by itself. The Court noticed that Section 163-A was inserted making a deviation from the common low liability under the Law of Torts and also in derogation of provisions of the Fatal Accidents Act. The tree Judge Bench also held that Section 163-A has an overriding effect and provides for special provisions as to payment of compensation on structured formula basis. Sub-section (1) of Section 163-A contains a non-obstante clause in terms whereof the owner of the motor vehicle or the authorized insurer is liable to pay, in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule to the legal heirs or the victim, as the case may be. It is further observed that Section 163-A of the Act covers cases where even negligence is on the part of the victim.”

18.In view of the above decision of the Hon’ble Supreme Court, it is clear that even if there is negligence on the part of victim, if the petition is filed under Section 163-A of Motor Vehicle Act, the said petition is maintainable. So, in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, the compensation as indicated in Second Schedule to the Motor Vehicle Act is to be paid to the legal heirs or victim as the case may be. Hence, even though I observed that the accident was occurred due to rash and negligent acts of both the victim and the driver of the offending vehicle, the owner of the offending vehicle i.e. Respondent No.1 is liable to pay compensation to the petitioners being the legal heirs of the deceased.

19.It is the contention of the learned counsel for Respondent No.2 that since the driver of the offending vehicle was not having valid driving license at the time of 7 accident, the Respondent No.2 is not liable to indemnify the liability if any of the 1st Respondent to the petitioners. It is true that I already hold that the driver of the offending vehicle was not having valid driving license at the time of accident. In a case between New India Assurance Company Limited Vs. G. Sampoorna and others, reported in 2011 ACJ 2828, the Hon’ble High Court of Andhra Pradesh observed that “In the instant case, by examining RW1, who has categorically deposed that the driving license of the driver of the tractor, which caused the accident, was valid only up to 24-01-2002, the appellant has discharged the initial burden lying on it. Neither respondent Nos.1 to 5 (claimants) nor respondent No.6 (the owner) placed any evidence to prove that the license was renewed subsequently and was in force at the time of the accident and thereby they failed to discharge the onus shifted to them. The Tribunal has, therefore, committed a serious error in holding that it cannot be said that there was no valid license for the driver on the date of accident. There was no justification for drawing the presumption by Tribunal on the facts and available evidence on record that the driving license was valid and subsisting at the time of the accident. It has, therefore, necessarily to be held that the driver of the tractor in question was not holding valid license at the time of the accident and the appellant had no liability for payment of compensation.”

20.In view of my above discussion, it is clear that when the driver of the offending vehicle is not having valid driving license at the time of accident, the Insurance Company is not liable to pay any compensation to the victims of the accident. In another case between New India Assurance Co. Ltd. Vs. Prabu Lal, reported in 2008 ACJ 627, the Hon’ble Supreme Court of India observed on facts that “the District Forum was justified in holding the driver who had license to drive ‘light motor vehicle’ without any endorsement entitling him to drive transport vehicle was not authorized to drive the truck which is a goods vehicle and Insurance Company is not liable”.

21.In view of the above decision, I am constrained to come to the conclusion that Respondent No.2, Insurance Company is not liable to indemnify the liability of first Respondent herein i.e. the owner of the offending vehicle since the driver of the offending vehicle was not having valid driving license at the time of accident. Therefore, the first respondent who is the owner of the offending vehicle is alone liable to pay compensation for the death of the deceased in this case.

8

22.In her evidence, the petitioner No.1 as PW1 deposed that her husband was agriculture labour and was earning Rs.6,000/- per month. Ex.A5, copy of the Inquest Report pertaining to the deceased prepared by the police shows that the deceased was a student. Even in Ex.A1, FIR the deceased is shown as a student. There is no bar for doing agriculture labour while prosecuting studies. Therefore, we can accept that the deceased was an agriculture labour, but there is no sufficient proof to show that he was earning Rs.6,000/- per month. As per the evidence of PW1 and the contents of Ex.A1, the deceased was doing agriculture labour work only as part time. So, we can take his monthly income as Rs.2,000/-. So, the annual income of the deceased must be Rs.24,000/-. Since there are three dependents for the deceased i.e. the petitioners 1 to 3 being the wife and parents, we can deduct 1/3rd of his income towards his personal expenses. Then, annual loss of dependency in this case is Rs.16,000/-. The deceased was aged about 23 years as on the date of his death. The multipliers that apply to a person aged between 21 and 25 years is ‘18’. So, the loss of dependency in this case must be

Rs.16,000/-(Annual loss of dependency) x 18 (multiplier) = Rs.2,88,000/-

(Rupees Two Lakhs Eighty Eight Thousand only). Since there is death, we can award Rs.5,000/- towards funeral expenses as per Second Schedule of Motor Vehicle Act. We can also award Rs.2,500/- towards loss of estate and another sum of Rs.5,000/- towards loss of consortium to the first petitioner being the wife of the deceased. So, the total compensation that can be awarded to the petitioners in this case is Rs.3,00,500/- (Rupees Three Lakhs and Five Hundred only). Hence, this issue No.2 is answered accordingly against the Respondent No.1 only.

9

23.Issue No.3 :

In view of my findings on the issues 1 and 2, I hold that the petition is to be allowed partly against Respondent No.1 by awarding compensation of Rs.3,00,500/- (Rupees Three Lakhs Five Hundred only) with interest at 7.5% per annum from the date of the petition till the date of realization payable by the Respondent No.1 alone to the petitioners. The petition against Respondent No.2 is to be dismissed without costs.

24.In the result, the petition is hereby allowed partly with proportionate costs against the Respondent No.1 alone by awarding compensation of Rs.3,00,500/- (Rupees Three Lakhs and Five Hundred only) with interest at 7.5% per annum from the date of petition till the date of realization payable by the Respondent No.1 alone to the petitioners 1 to 3. The petition against Respondent No.2 is hereby dismissed without costs. The Advocate fee is fixed at Rs.4,000/-. The Respondent No.1 shall deposit the compensation amount awarded within 60 days. Out of the compensation amount awarded to the petitioners, the first petitioner being the wife of the deceased is entitled to Rs.1,50,500/- (Rupees One Lakhs Fifty Thousand and Five Hundred only) with entire interest and costs. The petitioners 2 and 3 being the parents of the deceased are entitled for Rs.75,000/- (Rupees Seventy Five Thousand only) each. Immediately after the deposit of the compensation amount by the Respondent No.1, the petitioners 2 and 3 are entitled to withdraw their entire share of compensation amount and the first petitioner is entitled to withdraw Rs.50,500/- with entire interest and costs. The remaining compensation amount in the share of the first petitioner i.e. Rs.1.00 Lakh (Rupes One Lakh) shall be kept in fixed deposit in any Nationalized Bank for three years.

Dictated to Grade-I Stenographer of this court, transcribed and typed by her,

corrected and pronounced by me in the open court on this the 5th day of May, 2015.

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM XV ADDITIONAL CHIEF JUDGE,

HYDERABAD.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PETITIONER

PW.1-Vadhyavath Lakshmi PW.2-V.Seetharam.

WITNESSES EXAMINED FOR RESPONDENTS

RW.1-E.Mallesh RW.2-Mohd.Khaja EXHIBITS MARKED FOR PETITIONER: Ex.A.1 –Certified copy of FIR along with complaint. Ex.A.2-Certified copy of Charge sheet. Ex.A.3-Certified copy of PME Report. Ex.A.4-Certified copy of MVI Report. Ex.A.5-Certified copy of Inquest Report.

EXHIBITS MARKED FOR RESPONDNETS: Ex.B.1-Copy of the Insurance Policy. Ex.B.2-Certified copy of Extract of Driving License. Ex.B.3-Office copy of the letter addressed to R.1. Ex.B.4-Postal Acknowledgement.

I ADDL. METROPOLITAN SESSIONS JUDGE CUM

XV ADDITIONAL CHIEF JUDGE, HYDERABAD.

1

IN THE COURT OF THE I ADDITIONAL METROPOLITAN SESSIONS JUDGE, CUM XV

ADDITIONAL CHIEF JUDGE, CUM MOTOR ACCIDENTS CLAIMS TRIBUNAL,

HYDERABAD.

PRESENT : Sri G.Lakshmipathi, I Additional Metropolitan Sessions Judge cum XV Additional Chief Judge, Hyderabad.

Dated this the 11th day of May, 2015.

Original Petition No. O.P.1901/2009 Between: Smt.Gayathri W/o Kommu Shankar, Age: 30 years, Occ:Household, R/o. 17-1-181/A/98 ,Chandraiah Huts, Madannapet , Hyderabad. …… Petitioner.

And

1) The Andra Pradesh State Road Transport Corporation, Rep.by its Vice-Chairman & Managing Director, RTC X Roads, Musheerabad, Hyderabad.

2)The Depot Manager, APSRTC, Midhani Deport, Hyderabad. (Owner of Bus No. AP.29 U 7135) 3)T.Dasharath Goud S/o Venkataiah , Age 55 years, Occ: Owner of Bus No. AP.29 U 7135 R/o 2-43,Jillelguda, Saroornagar Mandal, R.R. District.

4)ICICI Lombard (Claims)3-6-365/A/B, Ground floor, SANA Towers, Liberty Circle, Himayathnagar, Hyderabad.

…...Respondents

This is petition is coming on for hearing before me and upon perusing the record and upon hearing the arguments of Sri K.Ravi Shankar, Advocate for the Petitioners and of Sri M.Govardhan Rao, Advocate for the Respondent No.1 and 2 and Respondent No.3 Set Exparte and Sri Rupesh Kumar Reddy, Advocate for the Respondent No.4, this court made the following :

AWARD

This is a claim petition filed by the petitioner under Section 166 of Motor 1. Vehicles Act against the respondents 1 and 2 requesting this Tribunal to award an amount of Rs.15.00 Lakhs as compensation for the injuries sustained by her in a motor vehicle accident.

Originally the claim petitioner filed the claim petition against the respondents 2. 1 and 2 only. Subsequently, on petition filed under Order I Rule-10(4) of 2

Civil Procedure Code by the claim petitioner, the respondents 3 and 4 were impleaded in this claim petition.

The allegations in the verified claim petition filed by the petitioner in brief are 3. that on 24-08-2008, the petitioner after completion of her duties at Fresh Super Market, Santoshnagar, Madannapet, Hyderabad, boarded APRTC Bus bearing No. AP 29 U 7135 of route No.253-H of Midhani Deport proceeding towards Saidabad Chowrasta to go to her home. When the bus reached near to (opposite) Saidabad Sub-Station Office at 5.30 p.m. the driver of the bus stopped the bus and while the petitioner was getting down from the bus, the driver of the bus suddenly moved the bus, before getting down by the petitioner, as a result of which the petitioner fell down and sustained injuries. Immediately she was shifted to Owaisi Hospital and from there she was shifted to Osmania General Hospital as the injuries were severe in nature. Thus, the accident occurred due to the rash and negligent driving by the driver of the RTC bus. Hence, the claim petition.

The allegations in the counter filed by the respondents 1 and 2 in brief are 4. that the allegations in the petition filed by the petitioner are not correct. The petitioner has to prove all the allegations in his petition. The amount of the compensation as claimed by the petitioner is excessive, exorbitant, imaginary and out of proportion. Hence, the petitioner is not entitled to claim any compensation and the respondents 1 and 2 are not liable to pay any compensation to the petitioner.

The respondent No.3 proceeded ex-parte. The respondent No.4 filed its 5. counter. The allegations in the counter of respondent No.4 in brief are that the allegations filed in the petition filed by the petitioner are not correct. The petitioner has to prove all her allegations in the petition. The respondent No.4 without admitting the pleaded accident, it is pleaded that the accident was occurred due to the sole negligence or on account of contributory negligence on the part of the petitioner. Therefore, the petitioner cannot take advantage on her own negligence. The driver of the offending bus was not having valid license at the time of accident. Since the owner of the offending bus has willfully entrusted the offending vehicle to the driver of it knowing fully well that he was not having valid driving license at the time of accident, therefore, even if it is found that the 4th respondent is the Insurer of the offending vehicle, it is not liable to 3 pay the compensation to the claim petitioner. The amount of compensation as claimed by the petitioner is highly excessive. Therefore, the petitioner is not entitled for any compensation. Hence, the petition is to be dismissed against the respondent No.4.

6. Basing on the above pleadings, the following issues were framed for trial :

1. Whether the accident occurred on 24-08-2008 at about 5.30 p.m. opposite to Saidabad Sub-Station Office, resulting injuries to Smt. Gyatri? If so, whether the said accident was due to rash and negligent driving of the APSRTC Bus bearing No. AP 29 U 7135, by its driver?

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

3. To what relief ?

On behalf of the claim petitioner, PWs 1 to 6 were examined and exhibits A1 7. to A10 and Ex.X1 were marked.

On behalf of the respondents, no witnesses were examined and no exhibits 8. were marked.

Heard the learned counsels of both the parties on record. Written 9. arguments filed on behalf of the petitioner.

10. Issue No.1 :

To prove that the pleaded accident was occurred due to rash and negligent driving by the driver of offending APSRTC Bus bearing No. AP 29 U 7135 of the respondents, the petitioner has examined herself as PW1 and has marked exhibits A1 to A6. In her evidence, the petitioner as PW1 has deposed that on 24-08-2008, after completion of her duties at Fresh Super Market, Santoshnagar, Madannapet, Hyderabad, she boarded RTC Bus of Midhani Depot (Route No.253H) proceeding towards Saidabad Chowrasta to go to her home and when the bus reached near to (opposite) Saidabad Sub-Station Office at 5.30 p.m. the driver of the bus stopped the bus and while she was getting down from the bus, the driver of the bus suddenly moved the bus before she getting down from the bus, as a result of which, she fell down on the road and received multiple grievous injuries all over the body. Immediately she was shifted to Owaisi Hospital and thereafter shifted to Osmania General Hospital, as the injuries were severe in nature. She further stated that the Police of P.S. Saidabad, Hyderabad, registered a case in Cr.No.263/2008 and Ex.A1 is the certified copy of FIR. Ex.A2 is the certified copy of the Charge 4

Sheet. The evidence of PW1 is corroborating with the contents of Exs.A1 and A2. The respondents who are contesting the petition have not produced any evidence to rebut the evidence of PW1 and the contents of Exs.A1 and A2. There is nothing to disbelieve the evidence of PW1 and the contents of Exs.A1 and A2. Hence, with the evidence of PW1 and the contents of Exs.A1 and A2, this issued No.1 is hereby answered in favour of the petitioner.

11. Issue No.2 :

In view of my findings on issue No.1, I hold that the pleaded accident was occurred due to the rash and negligent driving by the driver of the offending RTC hired bus bearing No. AP 29 U 7135 of respondents.

12.It is the contention of the Respondents 1 and 2 i.e. APSRTC represented by its Vice Chairman/Managing Director and Depot Manager of MIDHANI Depot, Hyderabad, that Respondents 1 and 2 have taken the offending vehicle on hire from Respondent No.3 and Respondent No.4 is the Insurer of the said vehicle. Therefore, Respondent No.4 is liable to pay the compensation if any for the injuries sustained by the petitioner.

13.Whereas it is the contention of Respondent No.4 that on the date of accident, Respondents 1 and 2 are the hired owners of the offending vehicle and the offending vehicle was under the control of Respondents 1 and 2 and Respondent No.3, the original owner of the offending vehicle was not having any control over the offending vehicle. Therefore, Respondents 1 and 2 alone are liable to pay the compensation if any to the petitioner and the Respondent No.4 is not liable to pay any compensation to the petitioner.

14.Respondent No.3 has prceeded ex-parte. Respondent No.4, the Insurance Company, who issued the policy in favour of Respondent No.3 for the offending vehicle is not disputing about issuing of Insurance Policy by its Company in favour of Respondent No.3 with respect of the offending vehicle and its validity as on the date of pleaded accident. Therefore, we can safely take that Respondent No.3 is the owner of the offending vehicle and Respondent No.4 is the Insurer of the offending vehicle and it is valid as on the date of pleaded accident. It may be true that the Respondents 1 and 2 have taken the offending vehicle on hire from Respondent No.3 and the offending vehicle was under the service of Respondents 1 and 2 as on the date of accident but, as it is an admitted fact that Respondent No.4 is insurer of the offending vehicle and Insurance Policy was in force as on the date of accident and even if the offending vehicle was in service of Respondents 1 and 2, Respondent No.4 cannot escape its liability.

5

15. In a case between Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others, reported in (2011) 8 Supreme Court Cases 142, on which the learned counsel for the claimed petitioner relied on the Hon’ble Supreme Court observed that :

Para 23 : “A Critical examination thereof would show that the appellant and the owner had specifically agreed that the vehicle will be insured and a driver would be provided by owner of the vehicle but overall control, not only on the vehicle but also on the driver, would be that of the Corporation. Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company, cannot escape its liability to pay the amount of compensation”.

Para 38 : “In the light of the foregoing discussion, the appeal filed by the Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from the owner of the vehicle. This we hold so as the liability of the Insurance Company is exclusive and absolute”.

Para 39 : “Thus, looking to the matter from every angle, we are of the considered opinion that the Insurance Company cannot escape its liability of payment of compensation to third parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or the provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle”.

Para 40 : “Apart from the above, the learned counsel for the Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise, liability has to be fastened on the Insurance Company only”.

16.In view of the observations in the above decision of Hon’ble Supreme Court, it is clear that Insurance Company cannot escape its liability to pay compensation to the victims of the accident committed on account of the use of the motor vehicle for which it has issued the Insurance Policy on the ground that the owner of the vehicle has hired the vehicle to a third party. Therefore, I am constrained to come to the conclusion that the Respondent No.4, the Insurance Company is liable to pay 6 compensation for the injuries sustained by the petitioner in the pleaded accident when the vehicle was under the use on hire by the Respondents 1 and 2 from the original owner of the vehicle, the Respondent No.3. Hence, the Respondent No.4 is liable to pay compensation for the injuries sustained by the petitioner.

17.The petitioner in her evidence has stated that he is working as a sales girl in Fresh Super Market and earning Rs.3,000/- per month. PW6, who is also working as sales girl in Fresh Super Market in her evidence stated that the petitioner was working as sales girl and earning Rs.3,000/- per month. Even though the petitioner could not able to file the salary certificate from the Super Market in which she was working, considering the oral evidence of PWs 1 and 6, we can take that PW1 was working as sales girl in that Super Market and getting Rs.3,000/- per month. It is the contention of the counsel for the petitioner that the petitioner is now 100% disabled. But, the petitioner has not produced any documentary evidence to show that the disability suffering by the petitioner is 100%. In fact the petitioner has not filed any Disability Certificate that she is suffering any permanent disability. PWs 3 and 5 are Doctors examined by the petitioners have not stated what is the percentage of disability suffering by the PW1. PW3, Ch. Ravi Kumar, Resident Medical Officer of GBR Hospital, Kothapet, in his evidence has stated that in their hospital, operation was conducted for the fracture of dislocation of left hand Olecrenon for PW1 on 25-08-2008 and PW1 was discharged on 21-09-2008. He also deposed that in the meanwhile the petitioner was shifted to Sigma Hospital on 01-09-2008 for the management of her head injury and treated there till 06-09- 2008. The attested copy of Patient Case Report of the petitioner issued by GBR Hospital, shows that on 31-08-2008 on repeated CT brain for the petitioner, low cortical contusion with redema was found. PW5, Dr. Srinivas Sridharala, Neuro Surgeon, GBR Hospital, in his evidence has deposed that he has treated the petitioner from 25-08-2008 to 01-09-2008 and on 01-09-2008 he referred the patient to Higher Centre because of suspicion that the patient had fits on the night of 31-08-2008 as well as at 9.00 a.m. on 01-09-2008. In this case the petitioner has not examined any of the Doctors that have treated the petitioner at Sigma Hospital. So, there is no evidence with regard to the treatment that was taken by the petitioner at the Sigma Hospital. Therefore, in the absence of any medical evidence and in the absence of any disability certificate issued by the competent authority, we cannot say that the petitioner is completely paralysed and 100% disabled. But, considering the one head injury and a fracture sustained to the petitioner on her left hand olecranon, we can take that the petitioner is suffering 25% of permanent disability. The petitioner was aged 37 years as on the date of 7 accident as per the Medico Legal Record issued by GBR Hospital, under Ex.A3. The Multiplier that applies to a person aged between 36 and 40 years is ‘15’. So, the compensation that can be awarded to the petitioner for 25% of permanent disability suffering by the petitioner is Rs.36,000/- (Annual Income) x 15 (Multiplier) x 25/100 (percentage of disability) = Rs.1,35,000=00 (Rupees One Lakh Thirty Five Housand only).

18.The petitioner has examined Billing Manager at GBR Hospital as PW2. In his evidence PW2 has stated that the petitioner has paid Rs.50,600/- as Hospital Bill at her first admission and Rs.2,190/- towards diagnostic charges and Rs.17,171/- for medicines. Totaling Rs.69,961/-. PW3, Doctor in GBR Hospital stated that the bills under Ex.A7 to A9 exhibited through PW2 are genuine. So, we can take that the contention of PW2 that the petitioner has paid total Rs.69,961/- at GBR Hospital. PW4, N. Krishnaiah, Billing Manager in Sigma Hospital has stated that the petitioner was admitted in their hospital on 02-09-2008 and was treated there and during that time total amount paid by the petitioner for medical treatment and pharmacy bills at their hospital is Rs.20,368/-. There is nothing to disbelieve the evidence of PW4. So, we can award Rs.90,000/- towards medical bills to the petitioner. PW3, Doctor who treated PW1 in his evidence stated that petitioner required attendant. So, we can award Rs.20,000/- towards attendant charges and another sum of Rs.20,000/- towards transportation and extra nourishment. Since the petitioner sustained facture and also head injury, we can award Rs.50,000/- towards pain and suffering. So, the total compensation that can be awarded to the petitioner in this case is Rs.3,15,000/- (Rupees Three Lakhs Fifteen Thousand only) payable by Respondents 3 and 4 jointly and severely to the petitioner. Hence, this issued No.2 is hereby answered accordingly against Respondents 3 and 4 only.

19.Issue No.3 :

In view of my findings on the issues 1 and 2, the petition is to be allowed partly with proportionate costs against the Respondents 3 and 4 only by awarding compensation of Rs.3,15,000/- with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 3 and 4 jointly and severely to the petitioner and the petition against Respondents 1 and 2 is liable to be dismissed.

20.In the result, the petition is hereby allowed partly with proportionate costs by awarding compensation of Rs.3,15,000/- (Rupees Three Lakhs Fifteen Thousand only) with interest at 7.5% per annum from the date of petition till the date of realization payable by the Respondents 3 and 4 jointly and severely to the 8 petitioner. The petition against Respondents 1 and 2 is hereby dismissed. The Advocate fee is fixed at Rs.4,000/-. Immediately after the deposit of the compensation amount by the Respondents 3 and 4, the petitioner is entitled to withdraw the same.

Dictated to Grade-I Stenographer of this Court, transcribed and typed by her,

corrected, signed and pronounced by me in the open court on this the 11th day of May, 2015.

I ADDL. METROPOLITAN SESSIONS JUDGE-CUM-

XV ADDITIONAL CHIEF JUDGE, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PETITIONER

PW1 – Gayathri. PW2 – N.Kishan PW3 - Dr.Ch.Ravi Kumar PW4 – N.Krishnaiah PW5 – Dr.Srinivas .S. Pw6 – R.Kameshwari

WITNESSES EXAMINED FOR RESPONDENTS; NIL

EXHIBITS MARKED FOR PETITIONER:

Ex.A1 - Certified copy of First Information Report. Ex.A2 – Certified copy of charge sheet . Ex.A3 - Certified copy of the GBR Hospital Medical – Legal Record

Ex.A4 –Bunch of Medical Receipts of Sigma Hospital, Dilsukhnagar, Hyderabad... Ex.A5 – DBR Diagnastic service Bill No. 11941 dt. 24-8-2008 Ex.A6 – I.P.Detailed Bill of Sigma Hospital, Dilsukhnagar, Hyderabad Ex.A7- Final Settlement bill . Ex.A8- Medicines Bill (5 Nos) Ex.A9-Diagnostic centre Bill. Ex.A.10-Discharge card.

Ex.X1 –Case Record of PW.1

EXHIBITS MARKED FOR RESPONDNETS: NIL.

I ADDL. METROPOLITAN SESSIONS JUDGE CUM

XV ADDITIONAL CHIEF JUDGE, HYDERABAD.

1

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE HYDERABAD

Dated this the 14th day of May, 2015

PRESENT : Sri G. Lakshmipathi,

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

ACT,HYDERABAD.

P.C.S SESSIONS CASE NO.40/2014

Crime Number and Police StationCrime No.216/2014 of Bowenpally Police Station, Secunderabad.

Name and description of the accused personTowkanti Shiva, S/o. Duddy Ramu, Aged 38 years, Occ: Labour, R/o. H.No.368/1, Bhavani Nagar, Old Bowenpally, Secunderabad.

Prosecution conducted bySri K. Pratap Reddy, Special Public Prosecutor.

Accused defended bySri E. Radha Krishna, Counsel.

Offences chargedUnder Section 354-A of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012.

Plea of the accusedPleaded not guilty

Finding of the CourtFound not guilty

RESULTIn the result, accused is found not guilty for the offences under Section 354-A of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 and he is acquitted under Section 232 of Cr.P.C. The bail bonds of the accused and his sureties stand shall cancelled in terms of Section 437(A) of Cr.P.C.

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

The Sub Inspector of Police, Bowenpally Police Station, has laid the charge 1. sheet against the above named accused person for the offences punishable under Section 354, 354-A and 506 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 in Crime No.216/2014 of his station with the allegations that the accused who is the own younger brother-in-law of Smt. Laxmi used to come to their house in drunken condition and used to take the utensils by threatening them and sells the same. The accused used to misbehave indecently with the daughters of Smt. Laxmi by name Kum Anusha and Kum Aruna and threatened them to marry him, otherwise he would kill them. On 26-05-2014 at about 12.00 midnight the accused came to the house of Smt. Laxmi and picked up quarrel with her about the marriages of her daughters with him and when she 2 refused and asked to get out from her house, the accused started beating her and on seeing the same when her daughters interfered and tried to rescue her, then accused picked the waists of her daughters, misbehaved with them indecently and when they made shrieks, he fled away from the house by threatening them with dire consequences and also warned not to report to the police. Thus, the accused has committed the offences punishable under Sections 354, 354-A and 506 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 Hence the charge sheet.

The case was taken on file under Sections 354, 354-A and 506 of IPC and 2. Section 8 of Protection of Children from Sexual Offences Act, 2012.

3.After the appearance of the accused before this court, the copies of the case records were furnished to him as required under Section 207 of Cr.P.C. The learned

Additional Public Prosecutor for the prosecution and the learned counsel for the

Accused were heard. The accused was examined under Section 228 of Cr.P.C. Charges under Section 354-A of IPC and under Section 8 of Protection of Children from Sexual Offences Act, 2012 were framed against the accused, read over and explained to him in vernacular language. The accused pleaded not guilty hence, the case was ordered for trial.

During the course of trial, on behalf of prosecution PWs 1 to 3 were 4. examined and exhibits P1 to P4 were marked.

5.After completion of prosecution side evidence, as there is no incriminating material available pertaining to this case in the evidence of the prosecution witnesses against the accused, the examination of the accused under Section 313 of Cr.P.C has been dispensed with.

On behalf of the accused no defence witnesses were examined and no 6. documents were marked.

Heard the learned Additional Public Prosecutor for the prosecution and the 7. learned counsel for the accused.

Now the point for determination is : 8.

“whether the prosecution has proved the guilt of the accused 1. beyond all reasonable doubt for the offence under Section 354-A of 3

IPC and and whether the accused is liable to be punished for the offence punishable under the above Section of law ?”

2. “whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence under Section 8 of Protection of Children from Sexual Offences Act, 2012 and whether the accused is liable to be punished for the offence punishable under the above Section of law ?”

POINTS: 9.

Perused the evidence of PWs 1 to 3 and Exs.P1 to P4. PW1, Kum Anusha is the defacto complainant. PW2, Kum Aruna is sister of PW1 and PW3, Smt. Laxmi is the mother of PWs 1 and 2.

PWs 1 to 3 have not supported the case of the prosecution and the 10. prosecution has treated them hostile. Inspite of cross-examining these PWs 1 to 3 by the learned Additional Public Prosecutor for the prosecution with the permission of the court, no point favourable to the prosecution was elicited from their evidence. Exs.P2 to P4 are the statements of PWs 1 to 3 recorded under Section 161 of Cr.P.C. The statements recorded under Section 161 of Cr.P.C are not substantive piece of evidence. In the absence of corroboration, there is no value attached to the statements recorded under Section 161 of Cr.P.C. In this case there is no corroboration for exhibit P1. Therefore, there is no value attached to this Ex.P1. Since the material witnesses PWs 1 to 3 have not supported the case of the prosecution and there is absolutely no evidence on record to show that the accused behaved indecently with PWs 1 and 2 and when there is absolutely no evidence on record to show that there was motive for the accused to misbehave with PWs 1 and 2, I am constrained to come to a conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt for the offences under Section 354-A of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012. Hence, these points are hereby answered against the prosecution.

In view of my above findings on the point Nos.1 and 2, the accused is 11. entitled for benefit of doubt and acquittal.

In the result, the accused is found not guilty of the offences punishable under 12. Section 354-A of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 and he is acquitted under Section 232 of Cr.P.C. The bail bonds of the accused and his sureties stand shall cancelled in terms of Section 437(A) of Cr.P.C.

4

Typed to my dictation by Grade-I Stenographer of this court, corrected and

pronounced by me in the open court on this the 14th day of May, 2015.

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION:

Pw.1- T.Anusha.

PW.2- T.Aruna.

PW.3- T.Laxmi.

WITNESSES EXAMINED FOR DEFENCE:- NIL.

EXHIBITS MARKED FOR PROSECUTION;-

Ex.P.1-Signature of PW.1 in Report

Ex.P.2-161 Cr.P.C.Statement of PW.1.

Ex.P.3- 161 Cr.P.C.Statement of PW.2.

Ex.P.4- 161 Cr.P.C.Statement of PW.3.

EXHIBITS MARKED FOR DEFENCE:- NIL.

M.O’S MARKED:- NIL.

I ADDL. METROPOLITAN SESSIONS JUDGE

CUM SPECIAL JUDGE FOR TRIAL OF CASES UNDER

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, HYDERABAD.