G.S.Ramesh Kumar

1 OP 336 of 2013

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

Present:- Sri G.S. Ramesh Kumar , VIII Addl. District Judge, Nizamabad FAC: II Addl. Dist. & Sessions Judge,

(FTC) Nizamabad

Thursday, the 22nd day of November 2018

OP No.336 of 2013

Between:

01 Ghousiya Begum W/o late Abdul Sattar, aged about 40 years, Caste:Muslim, Occ:Housewife, R/o H.No.7-14-557/1, Khoja colony, Nizamabad. 02 Yasmeen Begum D/o late Abdul Sattar, aged 15 years, Caste:Muslim, Occ:Student, H.No.7-14-557/1, Khoja colony, Nizamabad. 03 Shireen Begum D/o lated Abdul Sattar, aged 14 years, Caste:Muslim, Occ:Student, H.No.7-14-557/1, Khoja colony, Nizamabad.

(Petitioners No.2 and 3 being minor, they are represented by through their natural mother i.e. petitioner No.1 i.e. Ghousiya Begum W/o late Abdul Sattar, aged about 40 years, Caste:Muslim, Occ:Housewife, R/o H.No.7-14-557/1, Khoja colony, Nizamabad

.. Petitioners

AND

1. Qamaruddin S/o Wahiduddin, aged major, Owner of Auto Trolley bearing No.AP 25 V 2126, R/o 7-14-490, Khoja colony, Nizamabad.

2. Reliance General Insurance Company Ltd., represented by its Branch Manager, 2nd foor, Balaji Bhavan, H.No.1-1-329, beside Kalika Devi Kaman, Vinayaknagar, Nizamabad-503001 [Insurer of the Auto trolley bearing No.AP 25 V 2126 vide insurance policy No.1807712336000554 valid from 19-12-2011 to 18-12-2012] …Respondents

This petition coming up before me for hearing on 04.10.2018 in the presence of Sri Azar Kishan Rao, advocate for the petitioners, and of Sri M.V. Narsimha Rao, advocate for the respondent No.2, and respondent No. 1 remained absent and having stood over for consideration to this day, the Tribunal made the following:

O R D E R

The mother and sisters of Abdul Sajjad (since deceased) have filed this petition under section 166(1)n of Motor Vehicles Act, 2 OP 336 of 2013 claiming compensation of Rs.8,00,000/- for the loss sustained by them due to the untimely death of the deceased in a motor vehicle accident.

2.The brief averments in the petition are as follows:- 2(a) On 21-8-2012 the deceased (Abdul Sajjad) and his brother-in-law namely Shaik Ali and two of his friends namely Shaik

Afzal and Qayyam boarded an auto trolley bearing No.AP-25-V- 2126 (hereinafter referred to ofending vehicle) in order to go to Nizamabad and at about 1700 hours, when the auto trolley reached in the shivar of Yemcha village, after crossing Basar bridge, the driver of said auto trolley drove it at high speed, in rash and negligent manner and lost his control over the vehicle, due to which, the auto trolley turned turtle, as a result of which, the inmates of the auto trolley sustained injuries, while the deceased sustained multiple and grievous injuries, and they were shifted to Govt. H.Qrs. Hospital,

Nizamabad, the deceased succumbed to injuries on the same day at about 1820 hours. This accident occurred due to negligent driving of the Auto trolley bearing No.AP-25-V-2126 by its driver. The police of P.S. Navipet, have registered a case in crime No.140/2012 u/s 304-

A and 337 of IPC.

2(b) Prior to the accident, the deceased was aged 19 years, hale and healthy and was earning Rs.15,000/- per month as a Mason and contributing his earnings to the petitioners for the maintenance of the family. Due to abrupt termination of life of the deceased in the accident, the petitioners lost their source of dependency.

2(c) The respondent No.1 being the owner of the Auto trolley bearing No.AP-25-V-2126 and respondent Nos.2 being its insurer 3 OP 336 of 2013 are jointly and severally liable to pay compensation of Rs.8,00,000/- for the death of the deceased.

3. The respondent No.1 was remained absent.

4.The respondent No.2 filed written statement denying the material averments as to manner of accident, sustaining injuries by the inmates, avocation and income of the deceased and the petitioners are put to strict proof of the same. It is further contended that the Auto trolley is a goods carrying vehicle and is meant for carrying goods only not for persons or passengers and at the time of accident, the driver of the Auto trolley was not holding effective driving licence and the said vehicle was not having fitness and permit and as per the Motor Vehicle Inspector report, the fitness of the said auto trolley is expired on 3.8.2012 and the date of accident was on 21.8.2012 hence in view of violation of conditioni of policy, this respondent is not liable to pay any compensation and that the compensation claimed is highly excessive and exorbitant and prayed to dismiss the petition with costs.

5.The respondent No.2 filed a petition u/s 170 of MV Act vide IA

No.44/2018 and the same was allowed on 18.9.2018.

6.Taking into consideration both the claim petition and written statement, the following issues are framed:

1) Whether on 21-08-2012 at about 1700 hours in the shivar of Yemcha village, accident occurred due to rash and negligent driving of Auto trolley No.AP-25-V-2126 by its driver?

2) Whether the Abdul Sajjad received injuries in that accident and died of the injuries?

3) Whether the petitioners are entitled for compensation? If so, to what amount and from which respondent?

4 OP 336 of 2013

4) To what relief?

7.In support of their claim, the petitioner No.1 is examined as

PW1 and another witness as PW 2 and got marked Exs.A1 to A7. On behalf of the respondent No.2, RWs 1 and 2 were examined and got marked Ex.B1 to B4 and Ex.X1 and Ex.X2.

8. Heard the submissions of learned counsels for both the sides.

Perused the record.

9. Issue No.1:

9(a) This petition is filed u/s 166(1)n of M.V. Act by the petitioner claiming compensation on account of death of the deceased Abdul Sajjad in a motor vehicle accident that occurred on 21-08-2012 at about 1700 hours in the shivar of Yemcha village. As the petition is filed u/s 166(1)n, the petitioners have to prove that the deceased died in a motor vehicle accident due to the negligent driving of driver of crime vehicle. To prove the same, the petitioner

No.1 herself is examined as PW.1 and stated that the deceased

Abdul Sajjad is her son and on 21-8-2012 the deceased (Abdul

Sajjad) and his brother in law namely Shaik Ali and two of his friends namely Shaik Afzal and Qayyum boarded an auto trolley bearing

No.AP-25-V-2126in order to Nizamabad, at about 1700 hours, when the auto trolley reached in the shivar of Yemcha village, after crossing Basar bridge, the driver of said auto trolley, drove it at high speed, in rash and negligent manner and lost his control over the vehicle, due to which the auto trolley turned turtle, as a result of which, the inmates of the auto trolley sustained injuries, while the deceased sustained multiple and grievous injuries, and they were shifted to Govt. H.Qrs. Hospital, Nizamabad, the deceased 5 OP 336 of 2013 succumbed to injuries on the same day at about 1820 hours. In support of their contention; she filed Ex.A1 certified copy of FIR,

Ex.A2 certified copy of charge sheet, Ex.A3 certified copy of inquest panchanama, Ex.A4 certified copy of PME, Ex.A5 CC of MVI, Ex.A6

Salary certificate issued the Labour Contract Co-operative Society,

Nizamabad and Ex.A7 Xerox copy of policy.

In the cross-examination she admitted that she is not an eyewitness to the accident.

9(b). The petitioners also examined one Shaik Qayyum as Pw.2 alleged eyewitness to the accident, who is cited as Lw7 in the charge sheet, has deposed that on the date of accident he along with his friends Shaik Afzal and Shaik Ali Sajjad (deceased) were travelling

Auto bearing No.AP-25-V-2126 from Dharmabad towards Nizamabad, and when it reached outskirts of Yamcha at about 5.00 p.m., meanwhile the driver of the Auto trolley drove it in a rash and negligent manner at high speed and lost his control over the Auto trolley and it was turned turtle, due to which, he, the inmates of the auto sustained multiple grievous injuries and his brother Sajjad succumbed to injuries at about 6.20 p.m. while undergoing treatment at Govt. Hospital, Nizamabad.

In his cross examination he stated that at the time of accident, himself, the deceased and the driver were travelling in the auto. He admitted that the offending vehicle is a goods vehicle and that himself and the deceased used to work in that auto.

9(c). Except stating that the offending vehicle is a goods vehicle, the respondent No.2 has not much disputed as to the method and manner of the accident. Coming to the documentary 6 OP 336 of 2013 evidence, Ex.A1 certified copy of FIR dt. 21.8.2012 shows that accident was occurred at 5.00 p.m. and report was given at 8.30 p.m. on 21.8.2012 stating that the accident occurred due to the negligent driving of offending vehilce by its driver. Ex.A2 charge sheet shows that the accident occurred due to the negligent driving of offending vehicle by its driver Sk. Wasim and that he was charge sheeted for the offence under section 304-A and 337 IPC. The evidence of Pws.1 and 2 coupled with criminal case records proved that the deceased died in a motor vehicle accident due to the negligence of driver of the crime auto. Therefore, the issue No.1 is answered accordingly in favour of the petitioners and against the respondents.

10.ISSUE No.2:

10(a) The contention of the petitioners is that on the date of accident, the deceased was aged 19 years. To prove the age of the deceased, there is no document either on behalf of petitioners or on behalf of respondents, therefore, the documents under Ex.A2 and A3 which are prepared during the course of investigation, can be relied upon for the purpose of determining the age of the deceased. As per Ex.A2 and A3, the age of the deceased is 19 years and the proper multiplier is 18 as per the judgment in Sarala Verma Vs. Delhi

Transport Corporation1.

The petitioners contended that the deceased used to earn

Rs.15,000/- per month as a mason. In support of their contention, they filed Ex.A6 certificate issued by Secretary, Construction Labour

Contract Co-op. Society Ltd., stating that the deceased Sajjad was a member of their Society and a mason by profession and they used to 1 . 2009(6) SCC 121 7 OP 336 of 2013 pay Rs.300/- per day. But, PW.2 in his cross-examination stated that himself and the deceased used to work on the offending vehicle.

Moreover, the petitioners have not examined the author of Ex.A6 and there is ambiguity in respect of avocation of the deceased.

However, the income of the deceased being in young age is taken as

Rs.6,000/- per month and 40% of the income is added towards future prospects. Thus, Rs.8,400/- per month and per annum it comes to Rs.1,08,000/- and 1/3rd of it should be deducted towards the personal expenses of the deceased, the contribution to the family comes to (Rs.1,08,000/- minus Rs.36,000) Rs.72,000/- per annum. The above loss of annual dependency arrived at Rs.72,000/- if multiplied by the appropriate multiplier 18 fixed supra, the compensation under the head “Loss of dependency” comes to

Rs.12,96,000/- and the said amount is awarded to the petitioner as compensation under the head, loss of dependency.

Further, the petitioners are awarded an amount of Rs.15,000/- under the head of funeral expenses and Rs.15,000/- towards loss of estate.

10(b) In all the petitioners are entitled to the following compensation amounts:

1)Compensation under the head ofRs. 12,96,000-00 loss of dependency

3)Compensation under the head ofRs. 15,000-00 loss of estate

4)Compensation under the head ofRs. 15,000-00 funeral expenses. Total Rs. 13,26,000-00 10(c) Thus the petitioners are entitled to compensation of

Rs.13,26,000/- (Rs. Thirteen lakh and twenty six thousand only).

10(d) As regards the liability, respondent No.1 is the owner of the vehicle and respondent No.2 is Insurance Company and there 8 OP 336 of 2013 is no dispute regarding ownership of the respondent No.1 and Ex.B1 policy was in force as on the date of accident. Whereas the contention of respondent No.2 is that on the date of accident, the driver of car was not holding valid driving licence and he was having only non-transport driving licence and crime vehicle is a transport vehicle, therefore, it is violation of condition of policy, as such, their

Company is not liable to pay compensation. In proof of their contention, they examined one G. Srinivas, Legal Retainer, Reliance

General Insurance Company Ltd., Karimnagar, who filed his afdavit in lieu of chief examination stating that they issued policy, Ex.B1, for the crime auto and it was in force as on the date of accident. He further stated that the driver of the Auto bearing No.AP-25V-2126 was not holding a valid and effective driving licence at the time of the accident. The said auto is meant for Goods Carrying and the driver was holding non-transport, LMVNT and MCWG, but he was not holding driving licence to drive transport vehicle and the respondent

No.1 violated the terms and conditions of the policy and committed breach of contract. In proof of his contention, he filed Ex.B1 copy of police, Ex.B2 driving licence of driver, Ex.B3 attested copy of MVI report and Ex.B4 Xerox copy of certificate of a registration of the auto trolley (marked subject to objection).

In the cross-examination he stated that third party premium amount of Rs.2430/- was paid and that the petitioner in this case is a third party. He denied the suggestion that there was no violation in fitness of crime vehicle and that SI of Police and respondent No.1 filed all documents to their Company. He stated that the driver of the auto has got valid driving licence as on the date of accidnent to drive the auto.

9 OP 336 of 2013 10(e) The respondent No.2 also got examined one Manjoosha

Gupta, Jr. Assistant, RTA, Nizamabad, as RW.2 and she deposed that

Ex.X1 is authorisation letter and Ex.X2 is the driving licence extract and as per Ex.X2, the driver Shaik Waseem has no driving licence to drive transport vehicle.

In the cross-examination she stated that Ex.X2 is valid from 2009 to 2029 to drive the auto. She does not the differences between transport and non-transport vehicles. She denied that the driver of auto has a valid driving licence to drive the auto at the time of accident.

10(f) Whether insurance company is exonerated from its liability for not holding transport licence? In this context, the leanred counsel for the petitioners has relied upon the dictum laid in Civil

Appeal No.4834 of 2013 in the case of S. Iyyapan Vs. M/s United

Indian Insurance Company Ltd. And another; which was disposed on 1st July, 2013 wherein the Hon’ble Supreme Court of India at para

No.17 observed that “The heading Insurance of Motor Vehicles

against Third Party Risks given in Chapter XI of the Motor

Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the

intention of the legislature to make third party insurance

compulsory and to ensure taht the victims of accident

arising out of use of motor vehicles would be able to get

compensation for the death or injuries sufered. The

provision has been inserted in order to protect the persons

travelling in vehicles or using the road from the risk

attendant upon the user of the motor vehicles on the road.”

At para No.19 it is further observed that “admittedly, the

driver was holding a valid driving licence to drive light motor

10 OP 336 of 2013

vehicle. There is no dispute that the motor vehicle in

question, by which accident took place, was Mahindra Maxi

Can. Merely because the driver did not get any endorsement

in the driving licence to drive Mahindra Maxi Cab, which is a

light motor vehicle, the High Court has committed grave

error of law in holding that the insurer is not liable to pay

compensation because the driver was not holding the licence

to driver the commercial vehicle. The impugned judgment is,

therefore, liable to be set aside.” 10(g) Apart from the above, reference was made to the three

Judges Bench in the Hon’ble Supreme Court, in Mukund Dewangan v.

Oriental Insurance Co. Ltd.,(Civil Appeal No.5826 of 2011), in the said reference Hon’ble Apex court observed that Section 10 of the

Motor Vehicles Act requires driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of LMV licence can drive all the vehicles of the class including transport vehicles. Further observed that the effect of amendment of Form 4 by insertion of ‘transport vehicle’ is related only to the categories which were established in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ‘LMV’ continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is 11 OP 336 of 2013 holding licence to drive LMV can drive transport vehicle of such class without any endorsement to that effect.

10(h) In the case on hand, the auto driver possessed non- transport driving licence. In view of the decision of the Hon'ble

Supreme Court in Mukund Dewangan’s case2, the insurer cannot disown its liability to pay compensation on the ground that the auto trolley driver was not holding licence to drive the said auto, a Goods carrying vehicle. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioners. Accordingly the issue No.2 is answered in favour of the petitioners and against the respondents.

11.ISSUE NO.4:

IN THE RESULT, the petition is allowed in part awarding a compensation of Rs.13,26,000/- (Rs. Thirteen lakh and twenty six thousand only) to the petitioners with proportionate costs and interest at 7.5% per annum from the date of petition till the date of deposit (or) realization. The respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioners. The respondents are directed to deposit the compensation amount within one month from the date of award.

The petitioners are directed to pay Court fee on the additional compensation of Rs.5,26,000/- within 15 days from the date of this

Order.

The awarded amount shall be apportioned as follows:

Petitioner No.1 Mother Rs. 3,26,000-00 Petitioner No.2 Sister (minor) Rs. 5,00,000-00 Petitioner No.3Sister (minor)Rs. 5,00,000-00

Total: Rs. 13,26,000-00 2Ibid.

12 OP 336 of 2013

Out of the share of the petitioner No.1, she is permitted to withdraw an amount of Rs.2,26,000/-(Rs. Two lakh and twenty six thousand only) with costs and interest accrued thereon and balance shall be kept in fixed deposit in any nationalized bank for a period of three years.

The awarded amount of Rs.5,00,000/- (Rupees five lakh only) each to the minor petitioners 1 and 2 with accrued interest thereon shall be kept in fixed deposit in their name in any nationalized bank till they attain the age of majority.

The petitioner No.1 is permitted to withdraw monthly (or) bimonthly interest on the fixed deposit of minor petitioners 1 and 2 for their maintenance. For that purpose, she is at liberty to open

SB account in her name in any nationalized bank of her choice and seek direction in that regard.

The advocate’s fee is fixed at Rs.3,000/- (Rupees Three thousand only)

Typed to my dictation, corrected and pronounced by me on this the 22nd day of November 2018.

Chairman, MACT, (II Addl. District Judge) Nizamabad.

APPENDIX OF EVIDENCE

FOR PETITIONER WITNESSES EXAMINED FOR RESPONDENTS

PW.1Smt. Ghousiya BegumRW.1Sri G.Srinivas

PW.2Sri Shaik QayyumRW.2Manjushah Gupta

EXHIBITS MARKED

Ex.A1C.C. of F.I.REX.B1True copy of Policy Ex.A2CC of charge sheet Ex.B2DL extract of driver Ex.A3CC of inquest Ex.B3Attested copy of MVI report panchanama Ex.A4CC of PME Ex.B4Xerox copy of certificate of Registration of the Auto trolley (marked subject to objection) 13 OP 336 of 2013

Ex.A5CC of MVI Ex.X1Authorization letter Ex.A6Salary certificate issued Ex.X2DL extract by the Labour Contract Co-operative Society, Nzb. Ex.A7Xerox copy of policy

Chairman, MACT, (II Addl. District Judge) Nizamabad.

1 OP 139 of 2013

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

Present:- Sri G.S. Ramesh Kumar , VIII Addl. District Judge, Nizamabad

FAC: II Addl. Dist. & Sessions Judge,

(FTC) Nizamabad

Thursday, the 11th day of October 2018

OP No.139 of 2013

Between:

Yadaram Raju S/o Yadaram Ramdas, age 20 years, Occ:Labour-cum- Agriculture, R/o Fakirabad (V), Navipet (M), Nizamabad District.

.. Petitioner

AND

1. Khelge Sheshava Rao S/o Laxman, age 35 years, Occ:Business cum Owner of TATA ACE bearing No.AP-25-X-5209, R/o H.No. 1-314/1, Khadgaon (V), Bodhan (M), Nizamabad District.

2. TATA AIG General Insurance Company Limited, Branch Ofce, 4th foor, Block-A, My Home Tycoon, Lifestyle Building, Kundanbargh, Begumpet, Hyderabad-500016 (Policy No.064001/0140074301/000000/00, valid from 25-10-2012 to 24-10-2013) …Respondents

This petition coming up before me for hearing on 04.10.2018 in the presence of Sri P.Hanmanth Reddy, advocate for the petitioner, and of Sri K.Shyam Gopal Rao, advocate for respondent No.2 and the respondent No.1 remained absent and having stood over for consideration to this day, the Tribunal made the following:

O R D E R

This is a petition fled by the petitioner under section 166(1)(a) of Motor Vehicles Act claiming compensation of Rs.3,00,000/- for the injuries sustained by him in a motor vehicle accident.

2.The brief averments in the petition are as follows:-

a) On 13.12.2012 at about 7.00 a.m. the petitioner was driving the motorcycle bearing No.AP-25-P-7363 from Fakirabad towards

Tadbiloli side and one Pradeep was traveling as a pillion rider and when they reached at Fakeerabad (V) shivar, on Tadbiloli to

Fakeerabad road, at the same time one TATA Ace bearing 2 OP 139 of 2013

No.AP-25-X-5209 (hereinafter referred to ofending vehicle)

being driven by its driver in a rash and negligent manner with high speed came from opposite direction on wrong side of the road and dashed their motorcycle with front portion of the vehicle, due to which, the petitioner fell down and front wheel of the vehicle ran over on him, due to which, he sustained multiple grievous injuries.

Immediately after the accident, the petitioner was shifted to Govt.

Hqrs. Hospital, Nizamabad, from there he was admitted in Deepa

Orthopedic Hospital, Nizamabad, where he was treated by

Dr.L. Ramulu, M.S., Ortho Surgeon and his right leg was operated twice and rods also inserted and the petitioner said to have spent an amount of Rs.2,00,000/- towards treatment and still he is taking treatment with private doctors. The police of P.S. , Navipet, registered a case in crime No.178/2012 u/s 337 and 338 IPC against the driver of TATA Ace bearing No.AP-25-X-5209.

b) In the accident, the petitioner said to have sustained right leg both bones fracture, Knee bone fracture, head injury, eyes injured and other parts of the body and got permanent disability.

Prior to the accident, he was aged 20 years, hale and healthy and he was doing Labour works and also doing Agriculture and was earning a sum of Rs.15,000/- per month and contributing the same to his family.

c) The respondent No.1 being the owner of the TATA Ace bearing No.AP-25-X-5209 and respondent No.2 being its insurer are jointly and severally liable to pay compensation of Rs.3,00,000/- for the injuries sustained by the petitioner.

3 OP 139 of 2013

3. The respondent No.1 remained absent. The respondent

No.2/Insurance Company fled written statement denying material allegations as to manner of the accident, receiving injuries, expenditure made towards treatment, age, occupation and income of the petitioner and the petitioner is put to strict proof of the same. It is stated that the petitioner was not having valid driving license to drive motorcycle at the time of accident. It is further contended that the respondent No.1 violated the terms of the policy as he has not intimated about the accident and that the compensation claimed is highly excessive and exorbitant and prayed to dismiss the petition with costs.

4.Taking into consideration both the claim petition and written statement, the following issues are framed:

1) Whether on 3-12-2012 at about 7.00 am at Fakeerabad village shivar, accident occurred due to rash and negligent driving of TATA Ace No.AP-25-X-5209 by its driver?

2) Whether the petitioner received injures in that accident?

3) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondent?

4) To what relief?

5.In support of his claim, the petitioner himself examined as PW1 and two others as Pws 2 and 3 and got marked Exs.A1 to A11 and

Exs.C1 and C2. The RW2 examined on behalf of the respondent No.2 and fled Ex.B1 copy of policy and Exs.X1 and X2 are marked.

6. Heard the submissions of learned counsels for both the sides.

7. Issue No.1:

7(a) This petition is fled u/s 166(1)(a) of M.V. Act by the petitioner claiming compensation on account of injuries sustained by 4 OP 139 of 2013 him in a motor vehicle accident that occurred on 3-12-2012 at about 7.00 am at Fakeerabad village shivar. As the petition is fled u/s 166(1)(a) of MV Act, the petitioner has to prove that he received injuries in a motor vehicle accident due to the negligent driving of driver of crime vehicle. To prove the same, the petitioner himself examined as PW.1 and relied on Ex.A1 to A11. The evidence of PW.1 in his chief afdavit is that, on 3-12-2012 at about 7.00 a.m. he was driving the motorcycle bearing No.AP-25-P-7363 from Fakirabad towards Tadbiloli side and one Pradeep was traveling as pillion rider and when they reached at Fakeerabad (V) shivar, on Tadbiloli to

Fakeerabad road, at the same time the ofending vehicle being drove by its driver in a rash and negligent manner with high speed came from opposite direction on wrong side of the road and dashed their motorcycle with front portion of the vehicle, due to which, the petitioner fell down and front wheel of the vehicle ran over on him, due to which, the petitioner and pillion rider fell down and sustained multiple grievous injuries. In support of his contention; he also fled

Ex.A1 CC of FIR, Ex.A2 CC of charge sheet, Ex.A3 CC of injury certifcate, Ex.A4 Discharge summary issued by Shiva Sai

Emergency & Multi Specialty Hospital, Nizamabad. Ex.A5

Prescription issued by Shiva Sai Emergency & Multi Specialty

Hospital, Nizamabad. Ex.A6 Prescription issued by Deepa Hospital

Nizamabad (10 Nos). Ex.A7 Medical bills (6 Nos) Ex.A8 Blood Bank receipt issued by Red Cross Blood Bank, Nizamabad (2 Nos), Ex.A9

Xerox copy of Insurance policy, Ex.A10 Photo of petitioner and

Ex.A11 X-ray flm.

In his cross examination he denied the suggestion that the accident occurred due to his negligence.

5 OP 139 of 2013 7(b) There is no rebuttal evidence as to the method and manner of the accident. In Ex.A1 CC of FIR dt.3.12.2012 it is stated that the accident occurred due to rash negligent driving of the ofending vehicle by its driver. In Ex.A2, the petitioner is shown as

Lw3 injured. It reads that LW.3 Raju (petitioner-Pw1) and LW.4

Pradeep have sustained injuries and that the accident has taken place due to the rash and negligent driving of the driver of TATA Ace

No.AP-25-X-5209. Ex.A3 also shows that the petitioner received injuries in RTA. Thus, from the evidence on record, it is sufciently comprehensible that the version of the petitioner is very probable on the application of the test of the preponderance of probabilities. It is, therefore, just and fair to accept the version of the petitioner. Thus, on an overall view of the facts and evidence the well corroborated evidence of Pw1 is sufcient to hold that pleaded accident had occurred due to rash and negligent driving of the driver of TATA Ace

No.AP-25-X-5209 resulting in injuries to the petitioner. Issue No.1 is answered accordingly in favour of the petitioner and against the respondents.

8.ISSUE No.3:

As regards the injuries and on other allied aspects the case of the petitioner is as follows:

8(a) The case of the petitioner is that in the accident petitioner said to have sustained right leg both bones fracture, Knee bone fracture, head injury, eyes injured and other parts of the body and got permanent disability. Immediately after the accident, the petitioner was shifted to Govt. Hqrs. Hospital, Nizamabad, from there he was admitted in Deepa Orthopedic Hospital, Nizamabad, where 6 OP 139 of 2013 he was treated by L. Ramulu, M.S., Ortho Surgeon and his right leg was operated twice and rods also inserted and the petitioner said to have spent an amount of Rs.2,00,000/- towards treatment and still he is taking treatment with private doctors. As on the date of the accident,he was aged 20 years, hale and healthy and he was doing

Labour works and also doing Agriculture and was earning a sum of

Rs.15,000/- per month and contributing the same to his family.

The petitioner as Pw1 has reiterated his above pleaded case.

In his cross-examination he stated that after the accident, he went to the Govt. Hospital, Nizamabad, and treated as inpatient for three days. He further stated that the operation was done in Arogyasree scheme. He denied the suggestion that he has not incurred any medical expenditure as he was treated under Arogyasree scheme.

He denied the suggestion that Ex.A7 is created for the purpose of this case. He further stated that he did not fle any record in proof of his avocation and income. He denied the suggestion that he is not under any disability and he is working as usual and that he does not require any future surgery.

8(b) In support of his contention, PW.1 examined Dr.

T. Sheshagiri Rao, Shiva Sai Emergency & Multi Specialty Hospital,

Nizamabad, as PW.2 and he deposed that on 6.12.2012 PW.1 was admitted in their Hospital and discharged on 15.12.2017 vide IP

No.68. He further stated that PW.1 sustained multiple injuries in the right leg i.e. Grade-III compound fracture both bones right leg, fracture lateral femoral condoyle right leg and fracture patella right.

He further stated that Dr. Ramulu conducted surgery for the three injuries; all the three injuries are grievous in nature and rods were 7 OP 139 of 2013 inserted. Ex.X1 is the case-sheet and Ex.A4 is the discharge summary. He further stated that PW.1 was treated in Arogyasree scheme.

In the cross-examination, he stated that he was in the team of

Dr. Ramulu and PW.1 treated under Arogyasree scheme. He denied the suggestion that after discharge, PW.1 was working as usual. He further stated that at present PW.1 does not require surgery.

8(c) The petitioner also examined Dr. L. Ramulu, M.S. (Ortho),

Deepa Hospital, Nizamabad, as PW.3 and he deposed that he is consultant surgeon at Shiva Sai Hospital. On 4.12.2012, he examined PW.1 at Shiva Sai Hospital and found the following injuries:

I) Grade-III compound fracture both bones right leg, ii) Fracture lateral femoral condoyle right leg iii) Fracture patella right

The above injuries are grievous in nature and on 6.12.2012 he conducted operation to all the 3 injuries and patient was discharged on 15.12.2012. He further stated that PW.1 came for follow up treatment till 6.11.2014. He further deposed that on 15.5.2015 patient was admitted in Deepa Hospital for removal of rods and on 16.5.2015 they conducted operation and removed the rod and the patient was discharged on 18.5.2015 and that patient came up for follow up treatment on 29.5.2015 and 15.6.2015. Discharge summary is marked as Ex.C1; Ex.A7 medical bills and Ex.A8 blood transfusion receipts. He further deposed that Ex.A11 X-Ray flms pertaining to the petitioner taken on his advise.

In the cross-examination, he stated that 1st surgery was done under Arogyasree scheme but not second operation for removal of 8 OP 139 of 2013 rod. He stated that patient is walking normally except squatting on the foor and it may be improved by physiotherapy.

8(d) As per Ex.A3, injury certifcate and as per Pws 2 and 3, the petitioner sustained three fracture injuries and all of them are grievous in nature. As per Pws 2 and 3, PW.1 was in Shiva Sai

Hospital from 6.12.2012 to 15.12.2012 and in Deepa Hospital from 15.5.2015 to 18.5.2015. Thus shock, pain and sufering at the time of the accident, pain, discomfort and inconvenience during the period of treatment, bed rest, can be visualized, taking into consideration day-to-day human experience. In the facts and circumstances of the case a sum of Rs.1,00,000/- (Rupees one lakh only) is awarded as compensation under the head of injuries, shock, pain and sufering.

8(e) As regards the claim in respect of hospital, medical and other expenses, the pleaded case of the petitioner and the evidence on record with regard to the injuries sustained, treatment received and expenses incurred is already extracted supra. Pw1 deposed that he incurred Rs.2,50,000/- for his treatment. But, the evidence of

Pws 1 to 3 clearly shows that he was treated under Arogyasree scheme and he fled Ex.A4 Discharge summary also reveals the same. However, PW.3 says 1st operation was done under Arogyasree scheme, but not 2nd operation for removal of rods. As such, a sum of

Rs.30,000/- (Rs. Thirty thousand only) is awarded under hospital, medical and other expenses.

8(f) Further in a decision in MD APSRTC Vs.Kathavath Gopal and another1wherein our Hon’ble High Court held that 1 9 OP 139 of 2013 compensation towards expenditure incurred on extra nourishment and transport cannot be denied even though treatment was given at

Govt. Hospital, and one cannot expect positive evidence proving actual expenditure and hence some reasonable hypothesis cannot be ruled out. Having regard to the nature and gravity of the injuries sustained by Pw1 a sum of Rs.10,000/- (Rupees Ten thousand only) is awarded extra nourishment as compensation and Rs.20,000/- (Rs.

Twenty thousand only) towards transportation and attendant charges.

8(g)The case of the petitioner is that prior to the accident he used to earn more than Rs.15,000/- per month by doing labour work and from agriculture, but in his cross-examination he stated that he has not fled any document to prove his avocation and income.

However, the income of the petitioner is taken at Rs.5,000/- per month. It is the common knowledge that without a reasonable physical ftness one cannot attend to his/her normal work. In the light of the evidence with regard to the injuries and treatment received by Pw1 and also taking into consideration the time required for the injuries to heal it is reasonable to accept that he was out of work for about six months. Hence he is awarded a sum of

Rs.30,000/- (Rs. Thirty thousand only) as compensation for loss of earnings (past).

8(h)As regards loss of future earnings due to disability, no compensation need be awarded to Pw1 as there is no evidence that the petitioner has sustained any disability. Hence no other compensation amounts are awarded to the petitioner under the head of loss of earnings present and future, and under the group of 10 OP 139 of 2013 heads loss of prospects of life, loss of amenities of life, loss of enjoyment of life, loss of opportunities of life, (economical, political and social) Loss of pleasures of life, loss of aspects of life, loss of expectations of life and social disability.

8(i) In the entire petitioner is entitled to the following compensation amounts:

1Compensation under the head injury,Rs. 1,00,000-00 shock, pain and sufering

2.Compensation under the heads ofRs. 30,000-00 hospital and medical expenses,

3.Compensation for loss of earnings Rs. 30,000-00

4.Transportation and attendant charges Rs. 20,000-00

5.Extra nourishment Rs. 10,000-00

Total:Rs. 1,90,000-00

In the facts and circumstances and under the present law the petitioner is not entitled to any other compensation amounts. Rest of the claim is disallowed.

8(j) As regards the liability, it is held under issue No.1 that the accident has taken place due to the rash and negligent driving of ofending vehicle by its driver. As per Ex.B1 the ofending vehicle was insured with respondent No2 and it was valid from 25.10.2012 to 24.10.2013 and as per Ex.B1 the policy was in force as on the date of accident. The respondent No.2 examined Manjusha Gupta,

Jr. Assistant, RTA, Nizamabad, as RW.2. She deposed that as per

Ex.X2 driving licence of K. Shesha Rao, he has no driving licence to drive transport vehicle as on the date of accident.

In the cross-examination she stated that Ex.X2 is valid from 2007 to 2027 to drive the auto and she does not know the diference between the transport and non-transport vehicles. She admitted 11 OP 139 of 2013 that there is no diference between above two vehicles. She further stated that they did not disqualify any driving licence after the accident and the non-transport driving licence was changed to transport driving licence.

8(k) Whether insurance company is exonerated from its liability for not holding transport licence? In this context, reference was made to the three Judges Bench in the Hon’ble Supreme Court, in Mukund Dewangan v. Oriental Insurance Co. Ltd., (Civil Appeal

No.5826 of 2011), in the said reference Hon’ble Apex court observed that Section 10 of the Motor Vehicles Act requires driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be diferent kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of LMV licence can drive all the vehicles of the class including transport vehicles.

Further observed that the efect of amendment of Form 4 by insertion of ‘transport vehicle’ is related only to the categories which were established in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ‘LMV’ continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive LMV can drive transport vehicle of such class without any endorsement to that efect.

12 OP 139 of 2013 8(l)In the case on hand, the driver possessed non-transport driving licence. In view of the decision of the Hon'ble Supreme

Court in Mukund Dewangan’s case2, the insurer cannot disown its liability to pay compensation on the ground that the car driver was not holding licence to drive the car, a passenger carrying vehicle.

Therefore, the respondents are jointly and severally liable to pay compensation to the petitioners. Accordingly the issue No.3 is answered in favour of the petitioner and against the respondents.

9.ISSUE NO.4:

IN THE RESULT, the petition is partly allowed with proportionate costs awarding compensation of Rs.1,90,000/- (Rupees One lakh and ninety thousand only) with interest at 7.5% per annum from the date of the petition till the date of payment (or) realization recoverable by the petitioner from the respondent Nos.1 and 2 jointly and severally.

On deposit, the petitioner is permitted to withdraw entire awarded amount of Rs.1,90,000/- (Rupees One lakh and ninety thousand only) with costs and interest accrued thereon.

Time for deposit is one month. The advocate fee is fxed at

Rs.3000/- (Rupees three thousand)

Typed to my dictation, corrected and pronounced by me on this the 11h day of October 2018.

Chairman, MACT, (II Addl. District Judge) Nizamabad

APPENDIX OF EVIDENCE

FOR PETITIONER WITNESSES EXAMINED FOR RESPONDENTS

PW.1Sri Yadaram RajuRW2Sri Manjushah Gupta

PW.2Dr. T.Sheshagiri Rao

PW.3Dr.L.Ramulu 2 13 OP 139 of 2013

EXHIBITS MARKED

Ex.A1CC of F.I.REx.B1Copy of insurance policy Ex.A2CC of charge sheet Ex.X1Authorization letter Ex.A3CC of injury certifcate Ex.X2DL extract Ex.A4Discharge summary issued by Shiva Sai Emergency & Multi Specialty Hospital, Nzb. Ex.A5Prescription issued by Shiva Sai Emergency & Multi Specialty Hospital, Nzb. Ex.A6Prescription issued by Deepa Hospital, Nzb.(10 Nos) Ex.A7Medical bills (6 Nos) Ex.A8Blood bank receipt issued by Red Cross blood bank, Nzb. (2 Nos) Ex.A9Xerox copy of insurance policy Ex.A10Photo of the petitioner Ex.A11X-ray flm Ex.C1Discharge summary Ex.C2Case sheet

Chairman, MACT, (II Addl. District Judge) Nizamabad

1 OP 337 of 2013

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

Present:- Sri G.S. Ramesh Kumar , VIII Addl. District Judge, Nizamabad FAC:II Addl. Dist. & Sessions Judge, (FTC) Nizamabad

Thursday, the 11th day of October 2018

OP No.337 of 2013

Between:

Gangoni Gangaram, S/o Gangaram, aged 55 years, Occ:Agriculture, R/o Madapoor village of Makloor Mandal, District Nizamabad.

.. Petitioner

AND

1. Mohd.Ishaq S/o Lal Mohammed, aged major, Oc:Onwer of the Auto No.AP-25-W-4971, R/o H.No.9-18-49, Hatai street, Nizamabad.

2. Reliance General Insurance Company Ltd., represented by its Branch Manager, Branch ofce, Balaji Bhavan, H.No.1-1-329, 2nd foor, Vinayaknagar, Nizamabad (vide policy No.313000101434 valid from 26-6-2012 to 25-6-2013 …Respondents

This petition coming up before me for hearing on 20.08.2018 in the presence of Sri Azar Kishan Rao, advocate for the petitioner, and Sri M.V.Narsimha Rao, advocate for the respondent No.2, and respondent No.1 was remained absent and having stood over for consideration to this day, the Tribunal made the following:

O R D E R

This is a petition fled by the petitioner under section 166(1)(a) of

Motor Vehicles Act claiming compensation of Rs.3,00,000/- for the injuries sustained by the petitioner in a road accident.

2.The brief averments in the petition are as follows:-

a) On 26-9-2012 at about 5.15 p.m. while the petitioner was walking and on the way when he reached in front of IML Depot, at

Madhapoor village, at the same time one Auto No.AP-25-W-4971 (hereinafter referred to ofending vehicle) came from his behind being driven by driver in a rash and negligent manner at high speed and dashed him, due to which, he fell down and sustained multiple grievous 2 OP 337 of 2013 injuries. Immediately after the accident, he was shifted to Sai Tirumala

Orthopedic and Surgical hospital, Nizamabad, and was treated as in patient from 11-12-2012 to 21-12-2012 and operated on 13-12-2012.

Thereafter also the petitioner under follow up treatment and he an amount of Rs.60,000/- towards medical expenses. The police of P.S.

Makloor, registered a case in crime No.184/2002 u/s 337 IPC against the driver of Auto bearing No.AP-25-W-4971.

b) In the accident, the petitioner sustained Comminuted fracture of right leg both bones, comminuted fracture of both bones of left leg, compound fracture of base of V metatarsal right, fracture of 3rd metatarsal of left, injuries on both hands, head injury, multiple and grievous injuries over various parts of the body. Prior to the accident, he was aged 55 years and was hale and healthy and he was earning

Rs.15,000/- per month as an agriculturist and contributing his earnings to the family.

c) The respondent No.1 being the owner of the Auto bearing

No.AP-25-W-4971 and respondent No.2 being its insurer are jointly and severally liable to pay compensation of Rs.3,00,000/- for the injuries sustained by the petitioner.

3. The respondent No.1 remained absent. The respondent

No.2/Insurance Company fled written statement denying all the allegations and putting the petitioner to strict proof of the same. It is contended that the said Auto was not roadworthy condition and also not having ftness, permit and the driver of the auto was not holding valid and efective driving licence at the time of accident. He further contended that the respondent No.1 violated the conditions by not informing about the accident. It is further 3 OP 337 of 2013 contended that the compensation claimed is highly excessive and exorbitant and prayed to dismiss the petition with costs.

4.The respondent No.2 fled a petition u/s 170 of MV Act vide IA

No.36 of 2018 and the same was allowed on 06.9.2018.

5.Taking into consideration both the claim petition and written statement, the following issues are framed:

1) Whether on 26-9-2012 at about 5.15 pm in front of IML Depot, Madhapoor village, accident occurred due to rash and negligent driving of Auto bearing No.AP-25-W-4971 by its driver?

2) Whether the petitioner received injuries in that accident?

3) Whether the petitioner is entitled for compensation? if so, to what amount and from which respondent?

4) To what relief?

6.In support of his claim, the petitioner himself examined as Pw1 and

Dr. C.Hari Prasad as PW.2 and got marked Exs.A1 to A11. On behalf of the respondent No.2, RW1 and RW2 examined, Exs.B1 to B4 and Exs.X1 & X2 marked.

7. Heard the submissions of learned counsels for both the sides.

8. Issue Nos.1 and 2:

8(a) This petition is fled u/s 166(1)(a) of M.V. Act by the petitioner claiming compensation on account of injuries sustained in a motor vehicle accident that occurred on 26-9-2012 at about 5.15 p.m. in front of IML Depot, Madhapoor village. As the petition is fled u/s 166(1)(a) of

MV Act, the petitioner has to prove that he received injuries in a motor vehicle accident due to the negligent driving of driver of crime vehicle.

To prove the same, the petitioner himself examined as PW.1 and also examined PW.2, and relied on Ex.A1 to A11. The evidence of PW.1 is that in his chief afdavit is that, on 26-9-2012 at about 1700 hours, he 4 OP 337 of 2013 was proceedings towards his agricultural farm by walk and on the way when he reached in front of IML Depot, at Madhapoor village, at the same time ofending vehicle came from his behind being driven by its driver in a rash and negligent manner at high speed and dashed him, due to which, he sustained fracture injuries. In support of his contention; he also fled Ex.A1 CC of FIR, Ex.A2 CC of charge sheet,

Ex.A3 CC of Medical certifcate, Ex.A4 copy of Discharge summary,

Ex.A5 Hospital cash receipt for Rs.14,500/- of Maithri Hospital,

Nizamabad, Ex.A6 Medical Bills (20), Ex.A7 X-ray bills (12), Ex.A8 prescriptions (3), Ex.A9 X-ray requisition, Ex.A10 Xerox copy of policy and Ex.A11 X-Ray flms.

In his cross examination he stated that he is an illiterate and he cannot furnish the auto number. He denied the suggestion that he is more than 70 years and himself fell down and that there is no negligence on the part of the Auto driver. He further stated that his son lodged the complaint on the next day of the accident.

8(b) There is no rebuttal evidence as to the method and manner of the accident. In Ex.A1 it is mentioned that the accident occurred due to rash and negligent driving of ofending vehicle by its driver on 26.09.2012. Though the respondent No.2 contended that the PW.1 himself was responsible for the accident and there is no negligence on the part of driver of ofending vehicle. However, police after thorough investigation, fled Ex.A2 charge-sheet. In Ex.A2 the petitioner is shown as Lw2 injured. It reads that Gangoni Gangaram (petitioner-Pw1) sustained injuries and that the accident has taken place due to the rash and negligent driving by one Mohd. Raheem, driver of the ofending vehicle and he was charge sheeted for the ofence u/s 338 IPC. In view of the same, the contention of respondent No.2 that the accident 5 OP 337 of 2013 occurred due to the negligence of PW.1, does not hold water. Ex.A3 also shows that the PW.1 received injuries in RTA. Thus, from the evidence on record, it is sufciently comprehensible that the version of the petitioner is very probable on the application of the test of the preponderance of probabilities. It is, therefore, just and fair to accept the version of the petitioner. Thus, on an overall view of the facts and evidence the well corroborated evidence of Pw1 is sufcient to hold that pleaded accident had occurred due to rash and negligent driving of the driver of ofending resulting in injuries to the petitioner. Therefore, issue Nos.1 and 2 are answered accordingly in favour of the petitioner and against the respondents.

9.ISSUE No.3:

As regards the injuries and on other allied aspects the case of the petitioner is as follows:

9(a) The case of the petitioner is that in the accident petitioner sustained Comminuted fracture of right leg both bones, comminuted fracture of both bones of left leg, compound fracture of base of V metatarsal right, fracture of 3rd metatarsal of left, injuries on both hands, head injury, multiple and grievous injuries over various parts of the body.

Immediately, he was shifted to Maithri Hospital, Nizamabad, where he was treated as inpatient from 26-9-2012 to 8-10-2012, underwent operation on 26.09.2012 and inserted implants. He is still continuing follow up treatment and said to have incurred Rs.60,000/- towards medical expenses. As on the date of the accident, the petitioner was aged 55 years and was earning of Rs.15,000/- per month from agriculture, that due to the injuries and fractures sustained in the 6 OP 337 of 2013 accident, he is unable to walk and attend any work and lost his future earnings.

In his cross-examination he denied the suggestion that he is aged more than 70 years and that he did not receive any injury and hence he did not go to Government Hospital and that he went to private hospital and fabricated Ex.A3 to A9 and A11 for the purpose of this case. He stated that he did not fle any document to show that he was advised bed rest for one year. He admitted that he did not fle bills for the entire claim of Rs.60,000/- and that he did not fle recent prescriptions to show that he is continuing treatment and also did not fle doctor certifcate that he requires Rs.50,000/- for further operation and removal of implant. He further stated that he did not fle any document to show that he is an agriculturist.

9(b) In support of his contention, PW.1 also examined Dr. C. Hari

Prasad, M.S. (Ortho), Maithri Hospital, Nizamabad, as PW.2 and he deposed that on 26.09.2012 he examined PW.1 and found the following injuries:

1) Communuted fracture of Tibia middle 3/L3 right leg

2) Communuted fracture of Fibula middle 3/L3 right leg

3) Communuted fracture of 1st Meta Tarsal Bone left foot.

4) Fracture base of 3rd Meta Tarsal Bone left foot.

5) Lacerated wound over Meta Carpophllangial Joint Index fnger right hand 1 cm.

6) Lacerated wound over cleft face of 3rd and 5th Mata Tracy Bone 1.5 cm into 0.5 cm.

7) Crush injury big toe right foot with multiple lacerated wounds.

The injuries No. 1 to 4 are grievous in nature while 5th to 7th are simple in nature. The diagnosis was confrmed by taking X-Rays and 7 OP 337 of 2013 patient was admitted in the Hospital on 26.9.2012. Patient was advised surgery for right leg fracture, but patient and attendants refused for surgery. Later, POP was applied.

In the cross-examination he admitted that he did not mention the age of the injury in Ex.A3 and also advising to take X-Ray. He denied the suggestion that PW.1 was not admitted in his Hospital and that he issued

Ex.A1 to A9 and A11 to help the petitioner to get more compensation.

He denied the suggestion that the petitioner is alright and he can do his works as usual.

9(c) As per Ex.A3, Medical certifcate, the petitioner sustained three grievous injuries and three simple injuries. As per Ex.A5 cash receipt, he was treated as inpatient from 26-9-2012 to 8-10-2012 and total amount is shown as Rs.14,500/-.

Thus shock, pain and sufering at the time of the accident, pain, discomfort and inconvenience during the period of treatment, bed rest, can be visualized, taking into consideration day-to-day human experience. In the facts and circumstances of the case a sum of

Rs.75,000/- (Rupees Seventy fve thousand only) is awarded as compensation under the head of injuries, shock, pain and sufering.

9(d) As regards the claim in respect of hospital, medical and other expenses the pleaded case of the petitioner and the evidence on record with regard to the injuries sustained, treatment received and expenses incurred is already extracted supra. Pw1 deposed that he incurred and spent Rs.60,000/- for his treatment, and he fled Ex.A5 original cash receipt issued by Sri Maithri Hospital, Nizamabad, stating they received a sum of Rs.14,500/- (Rs. Fourteen thousand and fve hundred only) towards treatment and the same was awarded to the 8 OP 337 of 2013 petitioner. The petitioner fled medical bills (20 in number) under Ex.A6 amounting to Rs.14,851/- and the same is awarded to the petitioner.

The petitioner also fled Ex.A7 X-Ray bills amounting to Rs.3,360/- and the same is awarded to the petitioner. As such, in all, the petitioner is awarded a sum of Rs.32,711/- (Rs. Thirty two thousand, seven hundred and eleven only) towards hospital, X-Ray and medical expenses.

9(e) Further in a decision in MD APSRTC Vs.Kathavath Gopal and another1 wherein our Hon’ble High Court held that compensation towards expenditure incurred on extra nourishment and transport cannot be denied even though treatment was given at Govt. Hospital, and one cannot expect positive evidence proving actual expenditure and hence some reasonable hypothesis cannot be ruled out. Having regard to the nature and gravity of the injuries sustained by Pw1 a sum of Rs.10,000/- (Rupees Ten thousand only) is awarded extra nourishment as compensation, apart from Rs.5,000/- towards transportation charges.

9(f)The case of the petitioner is that prior to the accident he was aged 55 years and used to earn more than Rs.15,000/- per month as an agriculturist, but no document is fled to prove the same. As such, the income of the petitioner is taken at Rs.5,000/- per month. It is the common knowledge that without a reasonable physical ftness one cannot attend to his/her normal work.

In the light of the evidence with regard to the injuries and treatment received by Pw1 and also taking into consideration the time required for the injuries to heal it is reasonable to accept that he was out of work for 12003 (5) ALD 198 9 OP 337 of 2013 about six months. Hence he is awarded a sum of Rs.30,000/- (Rs.

Thirty thousand only) as compensation for loss of earnings (past).

9(g)As regards loss of future earnings due to disability, no compensation need be awarded to Pw1 as there is no evidence that the petitioner has sustained any disability. Hence no other compensation amounts are awarded to the petitioner under the head of loss of earnings present and future, and under the group of heads loss of prospects of life, loss of amenities of life, loss of enjoyment of life, loss of opportunities of life, (economical, political and social) Loss of pleasures of life, loss of aspects of life, loss of expectations of life and social disability.

9(h) In the entire, petitioner is entitled to the following compensation amounts:

1Compensation under the head injury,Rs. 75,000-00 shock, pain and sufering

2.Compensation under the heads ofRs. 32,711-00 hospital, X-Rays and medical expenses,

3.Compensation for loss of past earningsRs. 30,000-00 (Rs.5000/- x 6)

4.Transportation charges Rs. 5,000-00

5.Extra nourishment Rs. 10,000-00

TotalRs. 1,52,711-00

Rounded of to Rs.1,52,800/- 9(i) In the facts and circumstances and under the present law the petitioner is not entitled to any other compensation amounts. Rest of the claim is disallowed.

10. As regards the liability, the respondent No.2 contended that they are not liable to pay compensation as the driver of ofending 10 OP 337 of 2013 vehicle was not holding driving licence and the respondent No.1 violated the terms of the policy. To prove the same, one Arun Kumar Namani,

Legal Claims Manager, is examined as RW.1. He fled his chief afdavit in the form of chief examination stating that their Company issued Ex.B1 policy to the ofending vehicle and it was valid from 26.6.2012 to 25.6.2013 and that the driver of the auto was not holding driving licence and knowing the same willfully, the respondent No.1 allowed the driver to drive the auto, as such, the respondent No.1 violated the terms of the policy. Moreover, the respondent No.1 has not intimated about the accident, particulars of policy and failed to comply the statutory demand, as such, they issued notice dt. 1.8.2016 to respondent No.1 and driver of the said auto. In support of his claim, he fled Ex.B1 photostat copy of policy of ofending vehicle. Ex.B2 copy of notice dt.

1.8.2016, Ex.B3 returned cover of respondent No.1 and Ex.B4 acknowledgment of the driver of ofending vehicle.

In the cross-examination he admitted that Ex.B1 was in force on the date of accident and that they collected Rs.2,673/- premium towards third party liability and that the petitioner is a third party to the policy.

He denied the suggestion that the driver of ofending vehicle was holding valid driving licence on the date of accident and that respondent

No.1 and SHO submitted all the relevant documents to the Company.

10(a) The respondent No.2 also examined Manjusha Gupta, Jr.

Assistant, RTA, Nizamabad, as RW.2. She deposed that she brought the letter issued by RTA, Nizamabad, stating that Mohd. Raheem did not possess any driving licence.

In the cross-examination she stated that she personally searched in the System about the driving licence of Mohd. Raheem. She stated 11 OP 337 of 2013 that one can obtain driving licence anywhere on production of all required documents.

10(b) A perusal of charge sheet goes to show that the driver of ofending vehicle was not charge sheeted for the ofence u/s 181 of MV

Act. Had really, the driver did not possess the driving licence, the police have charge sheeted him u/s 181 of MV Act also. Moreover, the Apex

Court in recent judgment in Kishan Gopal and another Vs. Lala and others (Civil Appeal No.7137 of 2013) it is observed that not having the driving licence is not the violation of the condition which cannot be exonerated the liability of the Insurance Company. Hence, they cannot be exonerated in discharging their liability. The respondent No.1 is the owner of the vehicle and respondent No.2 is Insurance Company of the auto and Ex.B1 policy was in force on the date of accident and no violation of terms and conditions are proved by the respondent No.2.

Therefore, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Accordingly, the issue is answered.

11.ISSUE NO.4:

IN THE RESULT, the petition is partly allowed with proportionate costs awarding compensation of Rs.1,52,800/- (Rupees One lakh, ffty two thousand and eight hundred only) with interest at 7.5% per annum from the date of the petition till the date of payment (or) realization recoverable by the petitioner from the respondent Nos.1 and 2 jointly and severally.

On deposit, the petitioner is permitted to withdraw an amount of

Rs.1,52,800/- (Rupees One lakh, ffty two thousand and eight hundred only) with costs and interest accrued thereon.

12 OP 337 of 2013

Time for deposit is one month. The advocate fee is fxed at

Rs.3000/- (Rupees three thousand)

Typed to my dictation, corrected and pronounced by me on this the 11th day of October 2018.

Chairman, MACT, II Addl. District Judge (FTC) Nizamabad

APPENDIX OF EVIDENCE

FOR PETITIONER WITNESSES EXAMINED FOR RESPONDENTS

PW.1Gangoni Gangaram R.W1Arun Kumar Namani

PW.2Dr. C. Hari Prasad R.W2Manjushah Gupta

EXHIBITS MARKED

Ex.A1CC of F.I.REx.B1Photostat copy of policy of the Auto No.AP-25-W 4971 Ex.A2CC of charge sheet Ex.B2Copy of notice Dt.1/8/2016 issued to the respondent No.1/Owner of Auto Driver Ex.A3CC of Medical certifcate Ex.B3Returned cover of the Respondent No.1 Ex.A4Copy of Discharge Ex.B4 Acknowledgment of the Summary driver of the vehicle Ex.A5Hospital cash receipt forEx.X1Authorization letter Rs.14,500/- of Maithri Hospital, Ex.A6Medical Bills (20 Nos)Ex.X2RTA ofce issued letter Ex.A7X-ray bills (12 Nos) Ex.A8Prescriptions (3 Nos) Ex.A9X-ray requisition (3 Nos) Ex.A10Xerox copy of police Ex.A11X-ray flms

Chairman, MACT, II Addl. District Judge (FTC) Nizamabad

IN THE COURT OF SPL. JUDGE FOR TRIAL OF CASES UNDER

SCs/STs. (PoA) ACT-CUM-VIII ADDL. SESSIONS JUDGE AT

NIZAMABAD

Present: G.S.Ramesh Kumar Spl. Judge for trial of cases under SCs/STs (PoA) Act, Nizamabad

Dated this the 20th day of December, 2018

Crl.Appeal No. 72 of 2017

01 From what Court the appeal :Court of II Addl. Judl. is preferred.Magistrate of First Class, Nizamabad.

02 Number of the case in the :CC No.571 of 2012 Court 03 Number of the appeal:Crl. Appeal No.72 of 2017 04 Name and description of :The State represented the appellant/sthrough Public Prosecutor, Nizamabad. 05 The sentence and law underAccused Nos. 1, 2 and 4 which it was imposed in thewere convicted under Lower Court.Section 248(2) Cr.P.C. and found guilty under Sections 452 and 324 r/w 34 of IPC. Accused are sentenced to undergoSimple Imprisonment for a period of Six (06) months and to pay fne of Rs.100/- each, in default of payment of fne, they shall sufer Simple Imprisonment for a period of 15 days each for the ofence u/s 452 IPC.

They are further sentenced toundergoSimple Imprisonment for a period of six (06) months each for the ofence u/s 324 r/w 34 IPC.

Both the sentences shall runconcurrently.The remand period undergone by the accused is set of u/s 428 Cr.P.C. Property order is not passed as the case against A3 is pending. 06 Whetherconfrmed,:Confrmed modifed or reversed; and modifed the modifcation 2 Crl.A.72-17

This appeal coming on 10-12-2018 for hearing in the presence ofAddl. Public Prosecutor for the State, and Sri. G.V. Krupakar Reddy, Advocate for the Respondents/accused and upon perusing the petition of appeal and the record of the evidence and proceedings, and upon duly considering the same after hearing the appellant and prosecution, this Court delivered the following:-

J U D G M E N T

This Criminal Appeal is directed against judgment dated 03.11.2016 in CC No. 571 of 2012 on the fle of II Addl. Judl.

Magistrate of First Class, Nizamabad, whereby the

appellants/Accused Nos.1, 2 and 4 are convicted and sentenced to undergo Simple Imprisonment for a period of Six (06) months and to pay fne of Rs.100/- each, in default of payment of fne, they shall sufer Simple Imprisonment for a period of 15 days each for the ofence u/s 452 IPC. They are further sentenced to undergo Simple Imprisonment for a period of six (06) months each for the ofence u/s 324 r/w 34 IPC. Both the sentences shall run concurrently. The remand period undergone by the accused is set of u/s 428 Cr.P.C. Property order is not passed as the case against A3 is pending.

2. The case of the prosecution is that, PW.1 lodged a complaint with the police on 19-06-2012 by stating that there was some quarrel between PWs 1 to 3 and accused in the agricultural feld at the frst instance and the same was pacifed and they returned to home and again on the same day at 11.30 a.m. A1 to

A3 trespassed into her house and picked up quarrel with PWs 2 and 3 and LW.4 K. Ramesh and beat them with sticks and caused injuries on their heads. The Investigating Ofcers PWs 9 and 10 registered the case and issued FIR and investigated into the case and fled charge-sheet against accused for the ofences U/Secs.

452 and 324 r/w 34 IPC.

3 Crl.A.72-17

3.The II Addl. Judl. Magistrate of First Class, Nizamabad, took cognizance of ofences punishable under Sections 452 and 324 r/ w 34 IPC against the accused and on appearance of the accused the learned Magistrate furnished the copies of the charge sheet and other connected documents and framed charges for the ofences and read over and explained the contents of the charges to them, for which they pleaded not guilty and claimed to be tried.

4.The prosecution in proof of its case, examined PWs 1 to

PW10 and got Exs.P1 to P9 and MOs 1 to 3 marked on its behalf.

PW1 is the complainant, PWs 2 and 3 are injured persons, PWs 4 and 5 are eyewitnesses, PW.6 is panch witness for scene of ofence panchanama, PW7 is medical ofcer who treated the PW3 and LW4, PW8 is medical ofcer who treated the PW.2. PWs 9 and 10 are investigating ofcers. On behalf of defence, Ex.D1 and

D2 are marked.

5. On a consideration of oral and documentary evidence, the trial Court acquitted the accused for the ofence u/s 326 r/w 34 IPC.

6.Aggrieved by the acquittal of accused for the ofence u/s 326

IPC, this Criminal Appeal is preferred by the appellant/complainant raising the following among other grounds:

(i)That the trial Court has not appreciated the relevant facts of the case, evidence on record and thus arrived at a wrong conclusion which resulted in miscarriage of justice.

(ii)That the police fled charge sheet against the accused persons for the ofences u/s 452 and 326 r/w 34 IPC and there is clear and consistent evidence of injured persons that the accused persons beat them with “gaduggoya”. The place of injury has also been mentioned in their evidence. PW.2 stated that in the attack, he sustained injury on his head and fracture on his 4 Crl.A.72-17 hand. PW.3 stated that he sustained injury on his head.

PW.8 deposed that PW.2 sustained two compound fracture on both bones of forearm and the said injury is grievous. The above evidence of injured and the doctor clearly estabnlished that the injured sufered grievous injuries. The weapon used in the commission of ofence is not disputed in the judgment of trial Court and the weapon is a dangerous weapon likely to cause death to prove the ofence u/s 326 IPC.

(iii)That the trial Court ought to have convicted the accused persons for the ofences u/ 452 and 326 IPC, but the trial court found the accused guilty of the ofences u/ 452 and 324 r/w 34 IPC. That the trial Court failed to appreciate the evidence of prosecution witnesses and the doctor. As such, the judgment of the trial Court is not sustainable under law and on facts and liable to be set aside

7.Heard the counsel for the appellants and the Addl. Public

Prosecutor.

8.The learned counsel for appellants contended that the learned Magistrate failed to observe the fnding of the Hon’ble

Supreme Court and various Hon’ble High Courts judgments relied upon by the prosecution. Further, the evidence of PW.2 who received grievous injury is very much consistent and corroborated and that itself is enough that there is discrepancy between the evidence of PW.2 and Medical Ofcer. Even if there is variance in their evidence, he contended that the judgment of the trial court is liable to be set aside.

On the other hand, the learned counsel for defence contended that the trial court considered all the judgments relied upon by the prosecution and also appreciated the evidence of

PWs and the Medical Ofcer PW.8 and found that the accused are not guilty for the ofence u/s 326 r/w 34 IPC and contended that the appeal is liable to be dismissed.

5 Crl.A.72-17

9. Now the points for determination are; 1-Whether the Judgment of the lower Court is liable to be set aside or not?

2-To what result?

10.POINT NO.1:

10(a) In view of the above contentions of both sides and on perusal of the record, it is clear that Pw.1/complainant stated in her complaint that PWs 2 and 3 and LW.4 received injuries only on their heads and also stated that they were shifted to the Government Hospital and treated in the Government

Hospital; whereas PW.1 also gave the same evidence stating that she shifted all the injured in an Ambulance to the Hospital. PWs 2 and 3 also stated that they received injuries and they were shifted to the Hospital in an Ambulance from the scene of ofence.

Whereas PWs 7 and 8 are the Medical Ofcers. PW.7 stated that on 19.6.2012 in the Government Hospital, he treated the injured who are PW.3 and LW.4 and issued Medical certifcates under

Ex.P3 and P4. He examined PW.3 and found the injuries on parietal area scalp laceration and is simple in nature and he issued Ex.P3 wound certifcate. He also found the same scalp laceration on the head of LW.4. and issued Ex.P4 wound certifcate. Whereas PW.8 is a private medical practitioner working at Shashank Hospital, Nizamabad. He stated that on 19.6.2012 he examined PW.2 and found Grade-II compound fractures on both bones on left forearm. The injury is grievous in nature. The wound certifcate is Ex.P5 and Ex.P6 is the discharge summary; and at the request of Addl. Public Prosecutor, this PW.8 is declared as hostile and it is elicited in the cross-examination that he treated the injured under Arogyasree scheme. He 6 Crl.A.72-17 admitted that as the injured is accidentally fell down and the same was mentioned in the discharge certifcate, which is not mentioned in the wound certifcate. Accordingly, the above evidence of PW.8 is contradictory to the evidence of PWs 1 to 5 injured as well as eyewitnesses and complainant, the reason for receipt of injury.

10(b)Further as per above evidence of PW.8, he found no injury on the head of PW.2. Accordingly, the evidence of PW.2 injured and PW.8 Medical Ofcer is contradictory to each other.

However, even if the evidence of PW.2 is sufcient to show that he received injury in the same incident as it was caused by the accused with sticks, for this the evidence of PWs 1, and 3 to 5 should be corroborative and consistent with the evidence of PW.2.

As I already discussed above that PW.1 not at all mentioned in her

Ex.P1 complaint that PW.2 received fracture injury on left forearm.

She simply mentioned that PWs 2 and 3 and LW.4 received only head injuries and further PWs 1 to 5 deposed that they were shifted to the Hospital in Ambulance from the scene of ofence.

When PW.3 and LW.4 were treated in the Government Hospital, why PW.2 was treated in private hospital, is not clarifed by the prosecution. Apart from this, the Investigating Ofcer, PW.9 stated in his chief examination itself that he visited the

Government Hospital, examined and recorded the statements of

PWs 2 and 3 on 19.6.2012 itself. Accordingly, the evidence of PWs 1 to 5 and PW.9 Investigating Ofcer shows that PW.2 was also treated in the Government Hospital along with PW.3 and LW.4.

But, the prosecution failed to produce the medical record of the

Government Hospital. Under those circumstances, there is doubt whether PW.2 was really treated in the Government Hospital and 7 Crl.A.72-17 subsequently shifted to private hospital for better treatment or directly he was admitted and treated in the private hospital.

Moreover, the reason for receipt of injury is also mentioned as due to falling down. If really, PW.2 informed PW.8 Doctor that he received injury due to the beatings of accused with sticks, certainly PW.8 being private medical practitioner should have informed the same to the police as it comes under MLC. Further,

PW.2 was also not examined by the prosecution in respect of his statement before the doctor for cause of injuries.

10(c) PW.10 Investigating Ofcer, who fled the charge- sheet also stated that PW.2 orally told him that he took treatment under Arogya Sree at private hospital. Ex.P8 is the letter addressed to PW.2 by the Chief Minister, Ex.P9 is the Rajiv

Bheema Argoya Sree Health Card. In view of the above discussed evidence of PWs 1 to 4 and 8 to 10, it is very clear that the evidence of PW.2 in respect of receipt of fracture injury in the alleged incident and non-treatment to his head injury and non- mentioning of fracture injury in Ex.P1 complaint itself shows that his testimony is doubtful and it is not sufcient to come to the conclusion that this PW.2 received injury on his head and fracture injury on left forearm in the alleged incident.

10(d) The citation relied upon by the Addl. Public

Prosecutor reported in 1977 LawSuit (SC) 290 in the case of Piara

Singh Vs. State of Punjab; is also not applicable to the case on hand as it is ratio in the above case that “where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case.” 8 Crl.A.72-17

In the case on hand, there are no two medical ofcers who treated PW.2 having conficting opinions. Admittedly, PW.2 is treated by PW.8 Medical Ofcer only and there is no material to show that PW.2 was also treated by any other doctor.

Accordingly, there is no force in the contention of the learned

Addl. Public Prosecutor.

10(e) The learned Addl. Public Prosecutor has also relied upon the judgment of Hon’ble Supreme Court of India reported in 1989 LawSuit (SC)334 in the case of State of Uttar Pradesh Vs.

Jodha Singh; at para No.14 it was observed that “the presence of

PW.1 at the scene can never be disputed because of various factors. He was one of the victims of the attach and he had sustained injuries. The accused also admits his presence there.

He is the frst informant in the case. Such being the position, his evidence cannot be brushed aside lightly by saying he is an interested witness.” 10(f). The learned Addl. Public Prosecutor relied upon the judgment of the Hon’ble Supreme Court in the case of Shyam

Babu Vs. State of Uttar Pradesh; wherein it is observed

“if the statement of witnesses, who are relatives or

known to the parties afeetee is ereeible, reliable,

trustworthy ane eorroboratee by other witnesses, there

woule harely be any reason for the Court to rejeet sueh

evieenee merely on the groune that the witness was a

family member or an interestee witness or a person known

to the afeetee party or friene ete.”

11.In the facts and circumstances of above case is applicable to the facts and circumstances on hand. Here, PW.1 complainant, PW.2 wife of PW.1, PW.3 is son of PWs 1 and 2, all are family members. PWs 4 and 5 are the eyewitnesses and they clearly narrated the entire episode about the trespass of accused into the house of PW.1 armed with sticks and attacking on PWs 2 9 Crl.A.72-17 and 3 and LW.4 and causing injuries on the heads of PWs 2 and 3 and LW.4 and they also identifed the accused with their names and they also admitted their relationship with PW.1. In the cross- examination of PW.4, he stated that at the time of incident, villagers were present and nothing is elicited from their cross- examination in favour of defence and also regarding the reliability of their testimony. Under those circumstances, the contention of learned Addl. Public Prosecutor in this regard cannot be brushed aside in respect of incident between PW.3 and LW.4 and accused and receipt of injuries by PW.3 and LW.4.

12.The learned Addl. Public Prosecutor relied upon the judgment of the Hon’ble High Court of Orissa reported in 1990

LawSuit (Cri) 174 in the case of Kulamani Sandha Vs. State wherein at para No.4 it is observed that “So far as the evidence of

PW.7 the doctor having not found any injury on the back of the deceased is concerned, I do not think it has any relevance. It is the evidence of PW.5 that due to the assault on the back of the deceased, his back had swollen up. PW.7 did not notice such injury when he examined the deceased. But, merely because of that, I do not think the evidence of the two witnesses is to be thrown out since it is well known that when there is confict between the ocular statement and the medical evidence, the ocular statement is to be preferred.”

As I already discussed supra that PW.10Investigating

Ofcer, who fled the charge-sheet also stated that PW.2 orally told him that he took treatment under Arogya Sree at private hospital. Ex.P8 is the letter addressed to PW.2 by the Chief

Minister, Ex.P9 is the Rajiv Bheema Argoya Sree Health Card. In view of the above discussed evidence of PWs 1 to 4 and 8 to 10, it 10 Crl.A.72-17 is very clear that the evidence of PW.2 in respect of receipt of fracture injury in the alleged incident and non-treatment to his head injury and non-mentioning of fracture injury in Ex.P1 complaint itself shows that his testimony is doubtful and it is not sufcient to come to the conclusion that this PW.2 received injury on his head and fracture injury on left forearm in the alleged incident. As such, the above citation relied upon by the Addl.

Public Prosecutor is not applicable to the case on hand.

13.In view of the evidence on record, it is held that the prosecution could prove the guilt of the accused under sections 452 and 324 r/w 34 IPC beyond all reasonable doubt. The trial

Court has rightly convicted the accused/appellant for the said charges and the conviction and sentence recorded for the said charges are liable to be confrmed, and the trial court has rightly acquitted the accused for the ofence u/s 326 r/w 34 IPC.

14.In the result, the criminal appeal is dismissed and the trial court has rightly acquitted the accused for the ofence u/s 326 r/w 34 IPC. The conviction of the appellants/A1, A2 and A4 for the ofences 452 and 324 r/w 34 IPC is confrmed upholding the conviction and sentence passed by the lower Court in CC No.571 of 2012.

Partly typed to my dictation and partly dictated to Stenographer, transcribed by him, corrected and pronounced by me in the open Court on this the 20th day of December 2018.

Special Judge for trial of cases

under S.Cs. & S.Ts. (PoA) Act, Nizamabad. -: APPENDIX OF EVIDENCE :- Witnesses examined Nil

Special Judge for trial of cases

under SCs/STs (PoA) Act, Nizamabad.

1 SC.No.274 of 2013

IN THE COURT OF THE VII ADDL., DIST., AND SESSIONS JUDGE 

AT BODHAN.

Present: G.S.RAMESH KUMAR,

VIII Additional District and Sessions Judge, Nizamabad, FAC: VII Addl., District and Sessions Judge, Bodhan. 

Dated on this 12th day of December, 2018.

S.C. No.274 of 2013

(PRC No.13 of 2013 on the file of the JMFC, Bodhan)

Committed byJ.F.C.M.Bodhan

Cr.No.& PSCr.No.87 of 2013 PS Bodhan.

1.Description of the A1Juturu Srinu @ Srinu Mestri, S/o. accusedNacharaiah, Age: 35 years, Caste: Mala (SC, Occ: Mason, R/o. Sakcharla (v) Ulavapadu, Prakasham District, presently residing behind MRO Office, Bodhan. 

A2Billa Venkateshwara Rao @ Pothu Mestri, S/o. Kotaiah, Aged: 50 years, Caste: Mala, Occ: Mason R/o. Near Khaja Masjid, Rakasipet, Bodhan. 

A4Machkuri Srinu S/o. Dastagiri, Aged: 32 years, Caste: SC, Occ: Business, R/o. Behind Rakasipet, Bodhan.

A5Sadam Lachu @ Golla Lachu @ Laxman Yadav, S/o Pochaiah, Age: 35 years, Caste: Golla, Occ: Tailor, R/o Behind MRO office, Bodhan. 

A6Sadam Ramu S/o Pochaiah, Age: 32 years, Caste: Golla, Occ: Private Photographer, R/o. Behind MRO office, Bodhan. 

A7Gadam Rajesh Khanna S/o. Mallesh, Age: 22 years, Caste: Golla, Occ: Student, R/o. Behind MRO office, Bodhan. 

A8Srilam Srikanth S/o. Srinivas, Aged: 26 years, Caste: Golla, Occ: Private Warden at Ushodaya College, R/o. Behind MRO office, Bodhan. 

2 SC.No.274 of 2013

2. Charge Under Section 147, 302 R/w. 149 of IPC.

3. Plea of the accusedNot guilty.

4. Finding of the Judge Accused are found not guilty of the offences punishable under Section 147, 302 r/w 149 I.P.C. 

5. Sentence or orderAcquittal. 

6. Prosecution conducted Addtitional Public Prosecutor, Bodhan. by

7. Accused defended bySri T. Narsimha Reddy, Advocate, Bodhan.

(Case against A3 is split up vide SC.No. 76 of 2017)

This case is coming before me on 05­12­2018 for hearing and disposal in the presence of Additional Public Prosecutor for the State and Sri T. Narsimha Reddy, Advocate for the accused and having stood over for consideration till this day, the Court made the following:

::: J U D G M E N T :::

1. This is a case of murder of Kotturu Yadagiri S/o. Anjaiah,

Aged: 21 years, R/o. Rakasipet, Bodhan Town which was taken place on 21.03.2013 at 11­00 pm in front of road of the house of accused by stating that the deceased having heard the loud conversation from the house of A1, asked them not to use loud voice, then A1 to A8 boring grudge, attacked on the deceased. A1 and A2 beat the deceased with bricks, A5 beat him with belt and other accused A3, a4, A6 to A8 beat him with hands and pushed him on the ground and kicked him indiscriminately on the road, resulting with the severe bleeding injuries of the deceased and he fell on the road with bleeding from from nose and mouth. PW.2 shifted him to the

Government hospital, Bodhan and later to the hospital at 3 SC.No.274 of 2013

Nizamabad and while he was shifting in Ambulance to

Hyderabad, the deceased was died. PW.1 lodged complaint with the police and narrated the above said incident. 

2. The case is registered under Cr.No.87/2013 U/sec.147, 302 r/w 149 IPC and during investigation, the LW.1 to LW.8 (Smt.

Kotturu Siddamma, K.Shanker, T.Naveen, P.Lazar, K.Ravi,

K.Suri, U.Girija and R.Kanchana) are examined and their

Sec.161 Cr.P.C. Statement recorded. Then, the investigating officer conducted inquest over the dead body of the deceased in the presence of LW.9 and LW.10 (Mohd.Iliyas and K. Akash) and also taken the photographs of the deceased and he shifted the dead body to the hospital for post mortem examination report. He also visited the scene of offence and conducted observation panchanama and also drawn rough sketch and seized 4 brick pieces in the presence of LW.9 and LW.10. The medical officer LW.13 (Dr.Santosh) conducted autopsy over the dead body of the deceased and issued post mortem examination report. During the investigation, LW.14 (B.

Shankaraiah/ investigating officer) arrested the accused and sent them for remand and after completion of investigation he filed charge sheet, which reveals that the accused confessed the offence and their confessional statements recorded in the presence of PW.10 and PW.11 and brick pieces are also seized under cover of confession­cum­seizure panchanama and further reveals that on 21.03.2013 at about 11 pm, the deceased came to his house and heard loud talking from the 4 SC.No.274 of 2013 house of A1, then he went to the house of A1 and advised them not to have any loud talks and he returned back to his house but the accused continued conversation loudly, again the deceased went to the house of A1 and questioned them as why they are talking in loud manner. Being aggrieved by A1 to A3 questioned him as to who is him to asked them and picked up quarrel, the owner of house A4 and others A5 to A8 joined together with accused to kill the deceased and assaulted on the deceased. A1 and A2 beat the deceased with bricks and A5 beat him with belt and other accused also beat the deceased with hands and kicked with legs indiscriminately and pushed him on the ground. As a result, the deceased received severe bleeding injuries and also bleeding from nose and mouth and he was shifted to Government hospital,

Bodhan and thereafter, Nizamabad and on advise of doctors, while shifting to Hyderabad, the deceased was died. 

3. The learned Judicial Magistrate of First Class, Bodhan took the said charge sheet on file and registered the same as PRC

No.13/2013 for the offences punishable under section 147 and 302 r/w 149 of IPC against the accused. Copies of the documents were furnished to the accused under section 209

(a) Cr.PC. and thereafter the case was committed to the

Sessions Court for trial. 

4. After hearing both sides and on consideration of the material on record, charge for the offences punishable under section 5 SC.No.274 of 2013 147 and 302 r/w 149 of IPC were framed, read over and explained to the accused. They denied the said charges, pleaded not guilty and claimed to be tried.

5. Now the points which arose for determination of this court are :

1. Whether there was an altercation between the deceased and A1 in the night of 21.03.2013?

2. Whether A1, A2 beat the deceased with bricks and A5 beat him with belt and the other accused beat the deceased with hands and kicked him with legs and thrown him on the ground by causing bleeding injuries and bleeding from nose and mouth of the deceased?

3. Whether the prosecution bring home the guilt of the accused and proved the offences U/sec.147 and 302 r/w 149 of IPC beyond reasonable doubt?

6. The prosecution got examined PWs­1 to 11 and got marked

Exs.P­1 to P­10 in support of its case. 

7. After closure of the evidence of the prosecution, Accused were examined under section 313 Cr.PC. Wherein they denied the incriminating evidence found against them and reported no defence evidence. 

8. Heard arguments on both sides and perused the record.

POINT Nos.1 to 3 :

9. PWs.1 to 11 were examined on behalf of the prosecution.

PW.1 is the complainant­cum­eyewitness and PWs.3, 4 and 8 are also eyewitnesses. The PW.2 is the witness, who heard 6 SC.No.274 of 2013 about the incident through PW.1. This evidence is only hearsay. PWs.5 and 6 are circumstantial witnesses. PW.9 is the panch witness for inquest and PW.10 and 11 are the panch witnesses for confession of A5 and recovery of the bricks.

10.PW.1 being mother of the deceased and PW.2 as well as complainant­cum­eyewitness to the incident, stated in her evidence that the deceased Yadagiri was her younger son. He died about 7 years back and she knows all the accused and she also stated that A1 to A6 came from one house and A3, A7 and A8 came from another house to her house and fallen on her deceased son during night hours i.e., about 6 years back.

Except that she does not know anything about this case. She gave complaint to the police and she was examined by the police and she also stated that all the accused killed her son by throttling his neck with belt and some other accused caught hold the hands and legs of the deceased and they have killed him and she does not know the reason. Ex.P1 is the complaint.

11.The another eyewitness is PW.3, he also stated that at about 4 or 5 years back on one day in the morning he heard about the death of the deceased and rushed to his house and found the dead body in front of his house and he was heard that there was some quarrel on before day night. Except that he does not know anything about this case and he does not 7 SC.No.274 of 2013 know how the deceased was died. He was not examined by the police and turned hostile towards the prosecution, his

Sec.161 Cr.P.C. Statement is marked as Ex.P2.

12.Similarly, PW.4 also turned as hostile by stating that the deceased died about 4 years back and he came to know that he died due to an accident in front of his house and he did not witness any accident. His Sec.161 Cr.P.C. Statement is marked as Ex.P3.

13.The another witness PW.8 is similarly turned as hostile towards the case of prosecution by stating that he knows the deceased Yadagiri he was died long back and he does not know how the deceased was died and he did not witness any incident between the deceased and the accused and he was not examined by the police and his Sec.161 Cr.P.C. Statement is marked as Ex.P7. Accordingly, all eyewitnesses turned as hostile towards the case of prosecution. Except a portion of evidence of PW.1 that all the accused came to her house and fall on her deceased son and some of the accused hold the hands and legs of her son and some of the accused tightened his neck with belt and killed him. The said portion of her evidence is contradictory to her complaint under Ex.P1 as well as her statement wherein she stated that A1 and A2 beat the deceased with bricks, A5 beat the deceased with belt, the other accused beat the deceased with hands and kicked with legs and pushed him on the ground and in cross examination, 8 SC.No.274 of 2013 she also denied a portion of her 161 Cr.P.C. statement that the deceased shifted to the Government hospital, Bodhan, thereafter, Government hospital, Nizamabad, later referred to

Hyderabad and the deceased while shifting to Hyderabad died and she also not at all referred anything in her evidence about the earlier incidents i.e. the reason and motive behind the incident that the deceased heard the loud voice from the house of A1 and went there and advised them and not to speak in loud manner and returned from there and again he heard loud voice from the house of A1 and again deceased went to house of A1 and quarrelled with them, etc., 

14.Coming to the evidence of PW.2. He also not at all referred the above said earlier incidents and all other PW.3 to 8 also not deposed anything about the earlier incident.

Accordingly, I found there is no evidence from the prosecution regarding the above said incident at the house of A1.

15.Further, I already discussed above that the evidence of

PW.1 is contradictory and there are material discrepancies in between her evidence and her complaint under Ex.P1 and 161

Cr.P.C. statement. Further, her evidence is also inconsistent with the complaint and 161 Cr.P.C. statement regarding the specific overt acts against A5, who is alleged to beat the deceased with belt and against A1 and A2, who alleged to beat the deceased with bricks, etc., Accordingly, no reason is find in the evidence of PW.1 behind the alleged incident of death of 9 SC.No.274 of 2013 deceased except all the accused came to her house and fell on her deceased son and killed him. Further, the evidence of

PW.2 is also only hearsay. He neither witnessed the alleged incident nor alleged earlier incidents at the house of A1.

16.The another witness, who are PW.5 and 6, stated that the deceased died in the accident in front of his house. None of the other witnesses corroborated the above version of PW.1.

Accordingly, the testimony of PW.1 became doubtful and no reliance can be placed on her testimony regarding the alleged incident. When the evidence of PW.1 is found as doubtful no reliance can be placed on the evidence of PW.2 also who gave hearsay evidence about the alleged incident and he heard about the alleged incident by PW.1 or other witnesses. The other witnesses are also turned hostile towards the case of prosecution as I already discussed above.

17.Except the above said doubtful evidence of PW.1 and 2, there is no other evidence prosecution cited to show that the accused beat the deceased with bricks and also A1 and A2 beat the deceased with bricks and A5 beat with belt, and other accused beat the deceased with hands and kicked with legs and pushed down him on the ground with bleeding injuries and also bleeding from nose and mouth.

18.The another aspect of consideration is that PW.9 being panch witness for the scene of offence and inquest over the dead body of the deceased also turned hostile by stating that 10 SC.No.274 of 2013 the police did not conduct any observation panchanama of scene of offence and inquest over the dead body of the deceased in his presence, but they obtained his signature in some paper in Police Station when he went to Police Station for some work, but he identified his signature in observation panchanama of scene of offence and inquest and marked as

Ex.P8 and P9.

19.PW.11 and PW.12 are panch witnesses for confession of

A5 and the seizure of brick pieces and both of them deposed that on 1.4.2013 in the morning, the police asked them to come to Police Station and they went to the Police Station and the police shown one person to them and also produced some brick pieces and one belt and the said person stated that he himself and others beat the deceased with belt. The police drafted the confession panchanama of the said person and also recovered brick pieces under cover of confession­cum­ seizure panchanama and both of them attested the same. The said panchanama is marked as Ex.P10. Further, both the witnesses deposed that they cannot identify the above said person shown by the police in Police Station and they cannot identify the said person in between the accused who present in Court. Accordingly, both of them turned as hostile towards the case of prosecution and due to above said hostile evidence by PW.10 and PW.11, the confession of accused and seizure of brick pieces and belt under cover of Ex.P10 became doubtful.

11 SC.No.274 of 2013

20.The investigating officer was also not examined by the prosecution and the learned Additional Public Prosecutor given up the evidence of investigating officer in view of the above evidence of PW.1 to 11. Accordingly, the evidence of

PWs.1 to 11 is no way useful to the prosecution. In view of the foregoing discussion and evidence of PW.1 to 11, the facts and circumstances and reasons thereon, it is clear that the prosecution has failed to establish and prove that the deceased went to the house of accused on hearing of loud voice and advised them as not to speak in loud voice and returned to his house and again he heard loud voice and went to them and picked up quarrel with them and returned to his house, being aggrieved all the accused joined together, A1 and

A2 joined together and came to house of A1 and A1 and A2 beat him with brick, A5 beat with belt and other accused beat with hands and kicked with legs and pushed down the deceased on the road with bleeding injuries and also bleeding from nose and mouth and the deceased was died in result of the aboe said injuries and all the accused intentionally killed the deceased. Hence, the above points No.1 to 3 are answered accordingly and I found that the prosecution has failed to bring home the guilt of the accused persons for the offences

U/sec.147 and 302 r/w 149 IPC beyond all reasonable doubt.

21.In the result, A1, A2, A4 to A8 are found not guilty of the offences punishable under section 147 and 302 r/w 149

IPC and they are acquitted of the same under section 235(1), 12 SC.No.274 of 2013

Cr.PC. The bail bonds of the accused shall stand cancelled after expiry of the appeal period. The unmarked case property(non­valuable) i.e., brick pieces and belt shall be destroyed after expiry of the appeal period.

Dictated to Grade­I Stenographer, transcribed and typed by her,

corrected and pronounced by me in open Court on this the 12th day of December, 2018. Sd/­ FAC: VII Additional District and Sessions Judge, Bodhan.

APPENDIX OF EVIDENCE

Witnesses examined 

For Prosecution: For Defence

PW­1Siddamma PW­2 K. Shankar PW­3Talari Naveen Pw­4Patti Lasar Pw­5Kamble Ravi ­ N I L ­ Pw­6Kamble Suri Pw­7Smt. Uppala Giraja Pw­8Smt. Ramaram Kanchana Pw­9K. Akash Pw­10Ch. Saireddy Pw­11C. Subash

 EXHIBITS MARKED

For Prosecution: Ex.P1:Complaint lodged by PW.1, dt.22.3.2013 Ex.P2:161 Cr.P.C. statement of Pw3 Ex.P3:161 Cr.P.C. statement of Pw4 Ex.P4:161 Cr.P.C. statement of Pw5 Ex.P5:161 Cr.P.C. statement of Pw6 Ex.P6:161 Cr.P.C. statement of Pw7 Ex.P7:161 Cr.P.C. statement of Pw8 Ex.P8:Signature of PW.9 on scene of offence panchanama Ex.P9:Signature of PW.9 on inquest panchanama Ex.P10:Confession­cum­seizure panchanama For Defence ­ Nil ­

::M.Os.Marked:

­ NIL­ Sd/­ FAC: VII Additional District and Sessions Judge, Bodhan.

13 SC.No.274 of 2013