Sri G. Srinivas

IN THE COURT PRINCIPAL DISTRICT JUDGE, VIZIANAGARAM

Present: Sri G.Srinivas,

Principal District Judge,

Vizianagaram.

Tuesday, this the 21st day of February, 2017

Original Suit No.45/2012

Between:

Vijay Sirohia, S/o late Jaychand Lal Sirohia, Hindu, Aged 66 years, Residing at #2, Clyde Row, Hastings, 4th floor, Kolkata – 700022. …Plaintiff. A n d:

Sri Gangiredla Surya Sankara Rao, S/o Satyam, Hindu, Aged about 1) 32 years, Residing at Naletru Village, Anandapuram Mandal, Visakhapatnam District.

Sri Kavivarapu Phani Bushana Rao, S/o Govinda Raju, Hindu, Aged 2) about 46 years, Residing at D.No.23-1-3/6, Kotla Madappa Veedhi, Vizianagaram Town and District.

Sri Pandranki Srinivasa Rao, S/o Venkata Ramunaidu, Hindu, Aged 3) about 33 years, Residing at Nalteru Village, Anandapuram Mandal, Visakhapatnam District.

Sri Bheesetty Phahni Bushana Babu, S/o Subrahmanyam 4) Narasinga Rao, Hindu, Aged about 35 years, Residing at Timmarajupeta Village, Munagapaka Mandal, Visakhapatnam District.

Sri Boddula Krishna Rao, S/o late Pydithalli, Hindu, Aged about 58 5) years, Residing at Dwarapudi Village, Vizianagaram Mandal and District.

Sri Haridwara Srinivasa Gupta, S/o Prasad, Hindu, Aged about 44 6) years, Residing at D.No.18-8-14, Kotla Madappa Veedhi, Vizianagaram Town and District.

Sri Mantripragada Bhaskara Sambasiva Rao, S/o late 7) Suryanarayana, Hindu, Aged about 68 years, Residing at Mahanti Veedhi, Kanapaka, Vizianagaram Town and District.

Mantripragada Suresh, S/o Bhaskara Sambasiva Rao, Hindu, Aged 8) about 25 years, rest –do-.

Mantripragada Kanaka Mahalakshmi, D/o late Suryanarayana, 9) Hindu, Aged about 51 years, rest –do-.

10) Sri Kallempudi Sanyasi Naidu, S/o late Narayana, Hindu, Aged about 57 years, Residing at Jaggampeta Village, Seethanagaram Mandal, Vizianagaram District. … Defendants

This suit coming on 19.01.2017 for final hearing before me in the presence of Sri K.V.N.Thammanna Setty, Advocate for the plaintiff and of Sri G.Rama Mohana Rao and Sri Ch.D.Rama Mohana Rao,

Advocates for the defendants, and having stood over for consideration to this date, this Court delivered the following:

District Court, Vizianagaram 2 O.S.No.45/2012, dt.21.02.2017.

J U D G M E N T

1.This suit is filed for (a) for declaration that the plaintiff is the absolute owner of the plaint schedule property; (b) for directing the defendants to put the plaintiff in possession of the schedule property after demolishing the structures, if any therein, if the defendants fail to do so, the Court may permit the plaintiff to demolish the structures with his own expenses and recover the same from the defendants; (c) for consequential relief of permanent injunction restraining the defendants 1 to 6, their men, agents and whomsoever acts on their behalf from creating any charge over the suit scheduled property including changing the structures therein; and (d) for costs of the suit.

2 (a).The brief facts of the plaintiff’s case are that the plaintiff is the absolute owner of the land admeasuring in an extent of

Ac.2-06 cents (0.824 hectares) or 9,970 Sq. yards or 8,334.92 Sq meters covered by Old S.No.71/1, New Survey No.90/1, Patta No.278 along with mango tope situated at Kanapaka @ Ayyannapeta Village, Ayyannapeta

Panchyayat, Vizianagaram Mandal of Vizianagaram Sub-Registry and

Vizianagaram District, which is the plaint schedule property. The plaintiff purchased the suit schedule property by way of a possessory agreement for sale coupled with General Power of Attorney dt.14.10.2004 bearing document No.6755/2004 for a valid sale consideration from Nandipati

Gandhi Reddy, S/o Thathi Reddy and paid the entire sale consideration on the date of execution of the document itself. On the date of purchase, the possession of the property was delivered to the plaintiff and since then the plaintiff has been in peaceful possession and enjoyment of the suit schedule property without any interruption whomsoever in any manner whatsoever.

(b).The plaintiff further submits that his vendor Nandipati

Gandhi Reddy along with Yarlagedda Babu Rao jointly purchased the

District Court, Vizianagaram 3 O.S.No.45/2012, dt.21.02.2017.

property in a total extent of Ac.2-06 cents by way of a registered sale deed dated 17.04.1995 bearing document No.2254/1995 from

Ambadipudi Appayya Sastry, S/o late Suryanarayana for a valid sale consideration and since then they have been in possession and enjoyment of the property and subsequently one of the purchaser

Yarlagedda Babu Rao, S/o Seshaiah executed a release deed dated 10.12.2003 bearing document No.7159/2003 in favour of the co- purchaser Nandipati Gandhi Reddy who is the vendor of the plaintiff and thus the plaintiff’s vendor became the absolute owner of the entire extent of Ac.2-06 cents and he alienated the entire extent to the plaintiff.

(c).The plaintiff further submits that his vendor’s vendor

Appayya Sastry purchased the property by way of a registered sale deed

dated 13.08.1982 bearing document No.3504/1982 from Tikkana

Venkata Rao and his sons and Smt.Marukurthi Bangaramma who in turn purchased the same by way of a registered sale deed dated 30.08.1976 bearing document No.2641/1976 from Mohammad Fazulullah, S/o late

Chowdary Mohammad Ibrahim Saheb. The property was purchased by the brother of the vendor of the said document dated 30.08.1976 by name Chowdary Mohammad Inayitullah Saheb by way of a registered sale deed dated 13.07.1970 bearing document No.2679/1970 from

Mohammad Abdul Ahmed Saheb, S/o late Siddin Saheb.

(d).The plaintiff further submits that originally the land in an extent of Ac.2-06 cents covered by Old S.No.71/1, New S.No.90/1 bearing Patta No.278 of Kanapaka village belongs to Mohammed Siddin

Saheb, whose name is reflected in the revenue records i.e., Settlement

Fair Adangal as pattadar at column-11. After his demise, his legal heirs entered into family partition deed bearing document No.100/1961 and out of the family partition, Mohammad Abdul Ahmed Saheb has got the

District Court, Vizianagaram 4 O.S.No.45/2012, dt.21.02.2017.

suit schedule property and he alienated the same to Chowdary

Mohammad Inayitullah Saheb by way of a registered sale deed dated 13.07.1970.

(e).The plaintiff further submits that he has right, title, possession and enjoyment over the suit schedule property from the date of purchase i.e., 14.10.2004 and prior to that his vendors since 1961 and after purchase of the property, he raised a thatched hut at the suit schedule property, compound wall and put caution board on the boundary wall and also appointed a watchman to look after the schedule property and has been in possession and enjoyment of the suit schedule property and he used to enjoy the usufruct of the mango tope every year. The plaintiff also applied for necessary mutations in the revenue records.

(f).The plaintiff further submits that he is a resident of Kolkata and he used to visit the suit schedule property as and when he came down to Vizianagaram. While the matter stood thus, on 25.03.2012 when the plaintiff went to the suit schedule property, he was shocked and surprised to observe that some of the mango trees were removed and earth leveling works are going on at the suit schedule property by removing the thatched hut raised by the plaintiff and dispossessed the watchman along with his family there-from. When the plaintiff questioned the workers about the removal of the trees and leveling the site, they were informed that the schedule property was purchased by the defendants 1 to 6 from the defendants 7 to 10 herein by way of registered sale deeds and they also supplied copies of the said documents and having gone through the said documents the plaintiff was shocked and surprised to observe that the defendants 7 to 10 herein alienated the suit schedule property, to the defendants 1 to 6 by way of six documents under different extents vide registered sale deeds

District Court, Vizianagaram 5 O.S.No.45/2012, dt.21.02.2017.

dated 13.02.2012 bearing document Nos.486, 487, 488, 489, 490 and

491 of 2012 registered at Sub-Registrar’s Office, Vizianagaram West.

(g).The plaintiff further submits that he also gone through the

FCO Fair Adangal copy attached to the sale deeds issued by the

Tahsildar, Vizianagaram, which shows that the land in S.No.90/1 in an extent of Ac.2-06 cents stands in the names of Mantripragada

Sambasiva Rao and Sanyasi Naidu. The plaintiff also obtained

Settlement Fair Adangal under Right to Information Act from the

Assistant Director, District Survey & Land Records, Vizianagaram, wherein it is clearly mentioned that the land covered by Old S.No.71/1,

New S.No.90/1, Patta No.278 for an extent of Ac.2-06 cents stands in the name of Mohammad Siddin Saheb and whereas the lands covered by

S.No.89/2 and 89/3 stands in the name of Mantripragada

Suryanarayana. Hence, it is clear that the defendants 7 to 10 are in no way concern with the land covered by Old S.No.71/1, new S.No.90/1 and they have no right to alienate the same to the defendants 1 to 6 or any third parties. The defendants 1 to 10 colluded together and brought into existence of the FCO Fair Adangal copy by mentioning the S.No.90/1 stands in the name of the defendants 7 and 10 by influencing the

Tahsildar, Vizianagaram and also created the above referred six sale deeds by misleading the Sub-Registrar, Vizianagaram.

(h).The plaintiff further submits that he informed the defendants 1 to 10 that he is the absolute owner of the suit schedule property, having purchased the same from the original vendor and he perfected his right, title, possession and enjoyment over the suit schedule property since 1961 and requested the defendants not to do any illegal and highhanded activities at the suit schedule property, but the defendants did not heed the request of the plaintiff and proceeding with the works at the suit schedule property alleging that they are the absolute owners

District Court, Vizianagaram 6 O.S.No.45/2012, dt.21.02.2017.

of the suit schedule property, having purchased the same by way of registered sale deeds and also threatened that the plaintiff can do whatsoever he likes. The defendants 1 to 6 purchased the property from the defendants 7 to 10 who have no right or title over the property covered by Old S.No.71/1, new S.No.90/1, but only with a view to harass the plaintiff, to make wrongful gain and thereby cause wrongful loss to the plaintiff, the defendants created the S.F.A. and the sale deeds to their convenience and at their whims and fancies by colluding with the

Tahsildar, Vizianagaram.

(i).The plaintiff further submits that the defendants have no right, title or interest over the suit schedule property and the plaintiff herein is the absolute owner of the suit schedule property and has been in peaceful possession and enjoyment of the same since the date of purchase i.e., 2004. The defendants did not stop their activities of leveling the site at the suit schedule property and they are proclaiming that they will alienate the same to third parties by making the entire extent into layout. The defendants are having men and muscle power and also having influence both in political and police. The plaintiff is a law abiding citizen and is a resident of Kolkata and he is not in a position to resist the highhanded and illegal acts of the defendants. Since there is a cloud over the title of the plaintiff with regard to the suit schedule property, the plaintiff constrained to file this suit for a declaration that the plaintiff is the absolute owner of the plaint schedule property, for recovery of possession, for consequential relief of permanent injunction restraining the defendants 1 to 6 from creating any charge over the suit schedule property including changing any structures therein. Hence, the suit.

3(a).The 6th defendant filed the written statement denying all the material allegations in the plaint. The defendants 1 to 5 and 7 to 10

District Court, Vizianagaram 7 O.S.No.45/2012, dt.21.02.2017.

filed a memo adopting the written statement of the 6th defendant. The defendants submitted that as can be seen from the averments of the plaint, the plaintiff’s alleged source of right over the plaint schedule property is from the registered sale deed dated 13.07.1970, which was alleged to have been executed by Mohammad Abdul Ahmad Saheb, S/o late Siddin Saheb in favour of Chowdary Mohammad Inayitullah Saheb.

It is not out of place to mention here that the alleged vendor of sale deed dated 13.07.1970, namely Mohammad Abdul Ahmed Saheb has no right, title over the plaint schedule property and as such, the vendee under the said registered sale deed dated 13.07.1970 will not get any right and title over the plaint schedule property. It is not out of place to mention here that the plaint schedule property is not covered under the alleged partition deed No.100/1961 and hence, the vendor of the registered sale deed had no right and title over the plaint schedule property and the registered sale deed dated 13.07.1970 is not a valid document under Law.

(b).The defendants further submit that the vendor of the registered sale deed dated 30.08.1976 had no right, title over the plaint schedule property and there is no averment in the plaint as to how he got the plaint schedule property, when his brother Chowdary

Mohammad Inayitullah Saheb is alleged to have purchased the plaint schedule property under the registered sale deed dated 13.07.1970.

Hence, the vendees under the registered sale deed dated 30.08.1976 will not get any right and title over the plaint schedule property. The alleged other registered sale deeds dated 13.08.1982 and 17.04.1995 and the possessory agreement for sale coupled with General Power of

Attorney dated 14.10.2004 are not valid documents under law, as the vendors under those documents have no valid right over the plaint schedule property to execute such documents.

District Court, Vizianagaram 8 O.S.No.45/2012, dt.21.02.2017.

(c).The defendants further submit that the S.No.90/1 is the

Survey number of the plaint schedule property and it is never changed as alleged by the plaintiff. The plaintiff did not file single revenue record showing the possession and enjoyment or title over the plaint schedule property by himself or by the other alleged vendors. Hence, it is absolutely false to say that the plaintiff perfected his right, title, possession and enjoyment over the plaint schedule property since 1961.

It is not out of place to mention here that the names of the alleged vendors and purchasers of the alleged registered sale deeds mentioned in the plaint dated 17.04.1995, 13.08.1982, 30.08.1976, 13.07.1970 did not find place in the revenue records. It is clear fact that the vendors and purchasers of the above registered sale deeds have no right over the plaint schedule property and hence their names were not mutated as owners in any revenue record in respect of the plaint schedule property.

(d).The defendants further submit that it is absolutely false to say that the plaintiff has right, title, possession and enjoyment over the plaint schedule property from 14.10.2004 and prior to that his vendors since 1961. It is not out of place to mention here that the plaintiff or his vendors were never in possession and enjoyment of the plaint schedule property at any point of time. It is absolutely false to say that the plaintiff raised a thatched hut and compound wall in the plaint schedule property and appointed a watchman to look after the plaint schedule property. It is absolutely false to say that the plaintiff also applied for necessary mutations in the revenue records in respect of the plaint schedule property. On 25.03.2012 the plaintiff went to the suit schedule property and he was shocked and surprised to observe that some of the mango trees were removed and etc., allegations in the plaint are all false and the plaintiff invented the said allegations to create a false

District Court, Vizianagaram 9 O.S.No.45/2012, dt.21.02.2017.

cause of action to file this false suit against the defendants to grab the property of the defendants.

(e).The defendants further submit that the defendants 7 and 10 are the absolute owners of the plaint schedule property and the plaint schedule property is the ancestral property of the defendants 7 and 10.

The defendants 7 and 10 and their ancestors have been in physical possession and enjoyment of the plaint schedule property. it is not out of place to mention here that the names of the defendants 7 and 10 find place in all the concerned revenue records in respect of the plaint schedule property as owners. The defendants 1 to 6 have purchased the plaint schedule property from the defendants 7 to 10 under different sale deeds dated 13.02.2012 and since the defendants 1 to 6 have been in physical possession and enjoyment of the plaint schedule property, the defendants 1 to 6 are the bonafide purchasers. It is absolutely false to say that the defendants 7 to 10 are in no way concerned with the plaint schedule property and that they have no right to alienate the plaint schedule property to the defendants 1 to 6. It is absolutely false to say that the defendants 1 to 10 colluded together and brought into existence of the F.C.O., fair adangal copy of mentioning that the

S.No.90/1 stands in the name of the defendants 7 to 10 by influencing the Tahsildar, Vizianagaram and also created the above referred six sale deeds by misleading the Sub-Registrar, Vizianagaram.

(f).The defendants further submit that it is absolutely false to say that the copy of Settlement Fair Adangal obtained by the plaintiff from the Assistant Director, District Survey and Land Records,

Vizianagaram, wherein it is clearly mentioned that the land covered by

Old S.No.71/1, New S.No.90/1, Patta No.278 for an extent of Ac.2-06 cents stands in the name of Mohammad Siddin Saheb. It is not out of place to mention here that the plaintiff concocted the alleged settlement

Fair Adangal copy with the help of his henchmen only to grab the

District Court, Vizianagaram 10 O.S.No.45/2012, dt.21.02.2017.

property of the defendants and thereby to cause wrongful loss to the defendants and to have wrongful gain to himself.

(g).The defendants further submit that the plaintiff or his alleged vendors have no rights in, title to or possession over the plaint schedule property at any point of time and the documents filed by the plaintiff along with the plaint did not relate to the plaint schedule property and hence the plaintiff is not entitled for any relief as claimed by him in the plaint. The plaintiff approached the Hon’ble Court with unclean hands and hence, he is not entitled for any equitable relief of declaration and injunction.

(h).The defendants further submit that they are the absolute owners of the plaint schedule property and they have right in, title to and possession over the plaint schedule property. The plaintiff is nothing to do with the plaint schedule property. Hence, the plaintiff has no right to pray the Hon’ble Court to restrain the defendants 1 to 6 in any manner in dealing the plaint schedule property. The plaintiff has no cause of action to file the suit and the alleged cause of action mentioned in the suit is not correct and hence, the plaintiff be non-suited. There are no bona fides in the suit. The suit is not maintainable according to

Law. Therefore, the defendants pray to dismiss the suit with costs.

4.On considering the pleadings of the plaintiff and defendants, the following Issues were framed for trial :

1) Whether the plaintiff is entitled for the relief of declaration and for recovery of possession of the plaint schedule property?

2) Whether the plaintiff is entitled for the relief of mandatory injunction or not ?

3) Whether the suit is maintainable for the relief of declaration basing on possessory agreement for sale coupled with

District Court, Vizianagaram 11 O.S.No.45/2012, dt.21.02.2017.

General Power of Attorney dt.14.10.2004 ?

4) To what relief ?

5.On behalf of the plaintiff, the plaintiff himself examined as

P.W.1 and also examined P.Ws.2 to 5 and marked Exs.A.1 to A.27 and

Ex.X.1. On behalf of the defendants, the 6th defendant himself examined as D.W.1 and marked Ex.B.1.

6. ISSUE NO.1:-

The learned counsel for the plaintiff filed a memo before this

Court on 27.01.2017 stating that they are restricting their claim to the extent of the recovery of possession and injunction only and they are not-pressing the relief of declaration as sought in his pleading, as per the observations reported in AIR 2003 SUPREME COURT 2508 in between “Ramesh Chand Ardawatiya, Vs. Anil Panjwani”, and this

Court has allowed the said Memo.

7.The learned counsel for the plaintiff canvassed across the

Bench that originally the plaint schedule property i.e., an extent of Ac.2- 06 cents under Old S.No.71/1, New S.No.90/1, bearing Patta No.278 of

Kanapaka Village is belonged to Mohammed Siddin Saheb of Kanapaka

Village and he got the said property by virtue a family partition deed under Ex.A.7 family partition deed bearing document No.100/1961.

8.The plaint schedule property was purchased by Chowdary

Mohammed Inayitullah Saheb by way of registered sale deed dated 13.07.1970 by virtue of Ex.A.6 under document bearing No.2679/1970 from Mohammed Abdul Ahmad Saheb, S/o late Siddin Saheb.

District Court, Vizianagaram 12 O.S.No.45/2012, dt.21.02.2017.

9.The plaint schedule property in turn was purchased by one

Tikkana Venkatarao and his sons and Marukurthi Bangaramma by virtue of a registered sale deed dated 30.08.1976 under document

No.2641/1976 from Mohammad Fazulullah, S/o late Chowdary

Mohammad Ibrahim Saheb, who is the brother of Mohammed Abdul

Ahamad Saheb by virtue of Ex.A.5.

10.The plaintiff’s vendor Appayya Sastry, i.e., plaintiff’s vendor’s vendor purchased the plaint schedule property by way of a registered sale deed dated 13.08.1982 under document No.3504/1982 from Tikkana Venkata Rao and his sons and Marukurthi Bangaramma under Ex.A.4 sale deed.

11.The plaintiff further humbly submitted that the plaintiff’s vendor Nandipati Gandhireddy along with Yarlagedda Babu Rao jointly purchased the property an extent of Ac.2-06 cents by way of a registered sale deed dated 17.04.1995 bearing document No.2254/1995 under the cover of Ex.A.3 from Ambadipudi Appayya Sastry, S/o late

Suryanarayana and since then, the said Gandhireddy has been in physical possession and enjoyment of the plaint schedule property and subsequently the other purchaser i.e., Yarlagedda Babu Rao, S/o

Seshaiah executed a release deed dated 10.12.2003 bearing document

No.7159/2003 under the cover of Ex.A.2 in favour of the co-purchaser

Nandipati Gandhi Reddy, who is the vendor of the plaintiff and thus the plaintiff’s vendor became the absolute owner of the entire plaint schedule property and according to the said right conferred to him, he alienated the entire plaint schedule property to the plaintiff.

12.The learned counsel for the plaintiff further humbly submitted that the plaintiff purchased the suit schedule property by way of a possessory agreement of sale coupled with General Power of

Attorney dated 14.10.2004 bearing document No.6755/2004 under the

District Court, Vizianagaram 13 O.S.No.45/2012, dt.21.02.2017.

cover of Ex.A.1 for a valid sale consideration from his vendor Nandipati

Gandhi Reddy, S/o Thathireddy and paid the entire sale consideration on the date of the execution of the document itself and also the plaintiff’s vendor delivered the physical possession of the plaint schedule property to the plaintiff on the even dated, since then the plaintiff has been in physical possession and enjoyment of the suit schedule property without any interruption from anybody.

13.The plaintiff also further submitted that the plaintiff’s vendor’s vendor Appayya Sastry paid the land revenue for the plaint schedule property under the cover of Ex.A.8 and as such, the plaintiff’s vendor’s vendor got all rights, title, possession and enjoyment over the plaint schedule property.

14.The plaintiff further submitted that he obtained the settlement fair adangal under Right to Information Act from the

Assistant Director, District Survey and land revenue records,

Vizianagaram under the cover of Ex.A.9, wherein it is clearly mentioned that the land covered bearing old S.No.71/1, New S.No.90/1, Patta

No.278 for an extent of Ac.2-06 cents, i.e., plaint sc hedule property stood in the name of Mohammed Siddin Saheb, i.e., the original owner of the plaint schedule property i.e., under the cover of Ex.A.7.

15.The learned counsel for the plaintiff further submitted that the defendants 1 to 6 have no right, title, possession and enjoyment over the plaint schedule property in any way or any manner covered under Old S.No.71/1 and New S.No.90/1, but only with a view to harass the plaintiff to make wrongful gain and to cause wrongful loss to the plaintiff, the defendants 1 to 6 created a fair adangal copy under the cover of Ex.B.1 stating that the said property stands in the name of

Manthripragada Sambhasiva Rao and Mantripragada Sanyasinaidu.

District Court, Vizianagaram 14 O.S.No.45/2012, dt.21.02.2017.

Under the guise of the said Ex.B.1 the defendants 1 to 6 executed sale deeds under the cover of Exs.A.10 to A.15 in favour of the defendants 7 to 10 for the plaint schedule property in piece-meal and in fact, the defendants 1 to 6 have no right whatsoever over the plaint schedule property.

16.The learned counsel for the plaintiff has also further humbly submitted that he has got all rights, title, possession and enjoyment over the plaint schedule property from the date of its purchase i.e., 14.10.2004 and his predecessors in title also got title and possession over the plaint schedule property from the year 1961, after purchase of the plaint schedule property, the plaintiff raised a thatched hut in the schedule property and constructed a compound wall and also put a caution board on the boundary wall and in order to prove the same, he also filed positive photographs along with a C.D., that he is in physical possession and enjoyment of plaint schedule property under the cover of

Exs.A.16 to A.27 and also appointed a Watchman to look after the welfare of the schedule property and he also used to enjoy the usufructs of the mango tope every year and the plaintiff also applied for mutation.

The learned counsel for the plaintiff further submitted that the plaintiff has been residing in Kolkata and he used to visit the suit schedule property as and when he came down to Vizianagaram. While things stood thus on 25.03.2012 when the plaintiff went to the suit schedule property to see its welfare, he was shocked and surprised to observe that some of the mango trees were removed and earth leveling works are going on at the suit schedule property by removing the thatched hut raised by the plaintiff and the defendants disbursed the watchman of the plaintiff along with his family, when the plaintiff questioned the said workers, who were deployed there about the removal of the trees and leveling the site, then they informed that the suit schedule property was purchased by the defendants 1 to 6 from the defendants 7 to 10 by way

District Court, Vizianagaram 15 O.S.No.45/2012, dt.21.02.2017.

of registered sale deeds under the cover of Exs.A.10 to A.15 and on perusal of the said Exs.A.10 to A.15 documents, it appears that the defendants 7 to 10 executed six sale deeds under the document

Nos.486, 487, 488, 489, 490 and 491/2012, dt.13.02.2012 in Sub-

Registrar’s Office, Vizianagaram in favour of the defendants 1 to 6 by defendants 7 to 10. The learned counsel for the plaintiff further submitted that the defendants 7 to 10 have no right, title or interest over the schedule property in any way in any manner, hence they cannot convey better title to the defendants 1 to 6, the plaintiff is the absolute owner of the suit schedule property, the defendants are having men and muscle power and also having support both in political and

Police, the plaintiff is being resident of Kolkata and he is not in a position to resist the high handed and illegal acts of the defendants, as such, the plaintiff originally filed the suit for declaration and for recovery of possession and the consequential relief of permanent injunction, restraining the defendants 1 to 6 from alienating the schedule property in favour of anybody and also to demolish the structures, if any constructed by the defendants 1 to 10 over the plaint schedule property with his own expenses recoverable from the defendants.

17.Per contra, the learned counsel for the defendants has submitted that they are denying the rights of the plaintiff and also his predecessors in title over the plaint schedule property and also further contended that the plaintiff cannot file a suit for declaration of his right basing upon the alleged possessory agreement of sale coupled with

General Power of Attorney dated 14.10.2004 i.e., under the cover of

Ex.A.1 and the plaintiff is not entitled for any reliefs, the plaintiff never put in possession of the plaint schedule property, the name of the plaintiff or his vendors does not find place in the revenue records, the plaintiff has no better title over the plaint schedule property as the plaintiff’s predecessors viz., Mohammed Abdul Ahmad Saheb has no

District Court, Vizianagaram 16 O.S.No.45/2012, dt.21.02.2017.

right to execute Ex.A.6 document in favour of Chowdary Mohammad

Inayitullah Saheb, and it is absolutely false to say that the Survey

No.71/1 was converted into S.No.90/1 regarding the plaint schedule property, the plaintiff never raised thatched hut in the plaint schedule property and as such, the suit of the plaintiff is liable to be dismissed.

18.On perusal of Ex.A.1, Ex.A.2 is its link document, Ex.A.3 is the link document of Ex.A.2, Ex.A.4 is the link document to Ex.A.3,

Ex..A.5 is the link document to Ex.A.4, Ex.A.6 is the link document for

Exc.A.5 and Ex.A.6 is the link document for Ex.A.7. Moreover, on perusal of Ex.A.8, it also further appears that the plaintiff’s vendor’s vendor viz.,

Appayya Sastry paid the taxes for the plaint schedule property for some time and on bare perusal of Ex.A.9, i.e., settlement of fair register, the plaint schedule property stood in the name of Mohammed Siddin Saheb, in it, its present Survey number was mentioned as 90/1 and its Old survey number was also mentioned as 71/1. So, all these documents clearly goes to show that the plaintiff and his predecessor-in-title have got all rights and title over the plaint schedule property.

19.The learned counsel for the defendants further submitted that in Ex.A.9, Fair Adangal Register Copy the survey number i.e., 90/1 regarding the plaint schedule property was over written and as such, the said document was manipulated by the plaintiff for the purpose of this case. To overcome the said hurdle, the plaintiff got examined P.W.5, who is the Tahsildar of Vizianagaram and also brought the original settlement fair adangal register to this Court and the said relevant copy of the said fair adangal register was produced by the said witness to the Court, and the Court took the copy of the said fair adangal register by comparing with the original and the said compared copy is marked as Ex.X.1 through P.W.5. On perusal of Ex.X.1, the survey number as contended by the defendants in Ex.A.9 was not overlapped or materially altered.

District Court, Vizianagaram 17 O.S.No.45/2012, dt.21.02.2017.

Hence, Ex.A.9 fair adangal register that was produced by the plaintiff tallied with Ex.A.9 Fair Adangal Copy and it is true, correct and genuine document.

20.The plaintiff in order to prove his contentions, himself examined as P.W.1 and he also got examined one of the attestors of

Ex.A.1 as P.W.2. The plaintiff also got examined the neighbours of the plaint schedule property as P.Ws.2 and 3. On careful scrutiny of the evidence of P.Ws.1 to 5, nothing is elicited in favour of the defendants from the cross-examination of P.Ws.1 to 5.

21.The 6th defendant himself examined as D.W.1. In his evidence at first time he stated that the schedule property belonged to

Mantripragada Sambhasiva Rao, S/o Suryanarayana, i.e., 7th defendant as per Ex.B.1 fair adangal register copy and as such, the defendants 7 to 10 have executed Exs.A.10 to A.15 sale deeds in favour of the defendants 1 to 6 and they got all the rights, title, possession and enjoyment over the plaint schedule property. Whereas on thorough scrutiny of Exs.A.10 to A.16 sale deeds in the names of defendants 1 to 6, it is recited in the page No.3 of all the documents that the said property was devolved to the 7th defendant from his father by virtue of entry in revenue record. So the stand of the defendants is quite contradictory to each other that whether the schedule property is belonged to 7th defendant or his father. In the said sale deeds, it is recited that the 8th defendant is the son and the 9th defendant is the sister of the 7th defendant. This Court is unable to know the rights of the 10th defendant-cum-4th executant of Exs.A.10 to A.15. Except one entry in Ex.B.1, there were no other entries appearing from Ex.B.1 fair adangal register. On perusal of Ex.A.9 = Ex.X.1 documents, it appears that one

Mantripragada Suryanarayana is having an extent of Ac.6-00 cents in

District Court, Vizianagaram 18 O.S.No.45/2012, dt.21.02.2017.

S.No.89/2 and also an extent of Ac.0-10 cents in S.No.89/3 and the said

Mantripragada Suryanarayana i.e., the alleged father of the 7th defendant is not having any right over the present S.No.90/1, Old

S.No.71/1 i.e., plaint schedule property.

22.The 6th defendant, who is the alleged vendor of Ex.A.15 was examined as D.W.1, but he has not examined the other alleged vendees of the plaint schedule property under the cover of Exs.A.10 to A.14 registered sale deeds for the reasons best known to them. Moreover, the plaintiff also not examined the vendors of the Exs.A.10 to A.15 sale deeds i.e., 7th to 10th defendants to prove their bona fides. Even though the defendants filed Ex.B.1fair copy of the adangal, they have not examined the Tahsildar of Vizianagaram to prove their contentions that the said copy is issued by him and it is the true copy of the original fair adangal register. The defendants have also not examined either the neighbours or the person who acquainted with the said property or its title. Furthermore, the defendants not examined the attestors of Exs.A.1 to A.15to prove the passing of the consideration from the defendants 1 to 6 to the defendants 7 to 10. Hence, the documents under the cover of Exs.A.10 to A.15 non-est in the eye of Law. The defendants also failed to establish the rights of the defendants 7 to 10 over the plaint schedule property by filing of their title deeds and link documents for the plaint schedule property. Except Ex.B.1 copy of the fair adangal register, the defendants have no other documents to show that the plaint schedule property is either property of the father of the 7th defendant or 7th defendant. Except Revenue Record under the cover of Ex.B.1, there was no other single piece of paper available with the defendants to show that the defendants 7 to 10 got rights to alienate the plaint schedule property to the defendants 1 to 6. Hence, the contentions of the defendants is not believable and creditworthy.

District Court, Vizianagaram 19 O.S.No.45/2012, dt.21.02.2017.

23.The 1st defendant in his cross-examination categorically admitted that in respect of the plaint schedule property, there is no corresponding Old survey number and further admitted that basing upon

Ex.B.1 copy of the fair adangal the defendants 1 to 6 purchased the plaint schedule property from the defendants 7 to 10, there is no column in Ex.B.1 fair adangal copy, how the plaint schedule property acquired by their vendors i.e., the defendants 7 to 10. In Exs.A.10 to A.15 the suit schedule land is described as vacant house site, but they allegedly purchased the mango garden, but not vacant site. D.W.1 also further stated that he did not file the copy of the application submitted to the

Revenue Department for issuance of Ex.B.1 under the Right to

Information Act. D.W.1 also further admitted that as per Ex.A.9, the land in S.No.90/1 (Old S.No.71/1) is in the name of Mohammed Siddin Saheb in Column No.1 of it and he does not know whether his vendors i.e.

Defendants 7 to 10 paid the taxes for the suit schedule property or not and the defendants 1 to 6 have also not paid the taxes for the suit schedule property.

24.D.W.1 also further stated in his evidence that the 10th defendant cum the 4th vendor of Exs.A.10 to A.15, Kallempudi

Sanyasinaidu name is appearing in Ex.B.1, whereas on perusal of Ex.B.1, it appears that Sanyasinaidu Sur-name is Mantripragada and his father is Suryanarayana. So, Mantripragada Sanyasinaidu, who is mentioned in

Ex.B.1 fair adangal copy and the 4th executant of Exs.A.10 to A.15 cum 10th defendant namely Kallempudi Sanyasinaidu is not one and the same. Therefore, on perusal of the above evidence of D.W.1, it clinchingly and unequivocally establishes that the vendors of the defendants 1 to 6 i.e., defendants 7 to 10 are not having any better title over the plaint schedule property. So, that the pleading and evidence of the defendants is not at all believable and the defendants utterly failed to prove their case and moreover, failed to impeach the credibility of the

District Court, Vizianagaram 20 O.S.No.45/2012, dt.21.02.2017.

plaintiff and his witnesses. The evidence of the plaintiff is unshaken by the defendants. Therefore, the evidence of plaintiff is more trustworthy, the evidence of P.Ws.1 to 5 corroborated with each other and this Court has not find any contradictions in between the evidence of P.Ws.1 to 5.

Hence, the evidence of the plaintiff is coupled with Exs.A.1 to A.27 documents it candidly establishes the case of the plaintiff that the plaintiff and his predecessors in title got absolute rights over the plaint schedule property and the plaintiff was forcibly dispossessed from the plaint schedule property.

25.The defendants further contended that with the agreement of the sale-cum-General Power of Attorney, he does not have title and therefore, do not amount to transfer, nor it made valid transfer of immovable property. They cannot be recognized as piece of title and cannot form basis for mutation. The defendants further submitted that such a kind of transactions lead to loss of revenue increase litigation due to the defective title and for which the defendants relied upon an observation, which is reported in 2002 (1) ALD, Page No.92,

Supreme Court, in between “Suraj Lamp & Industries Pvt. Ltd. Vs.

State of Haryana and another”.

26.The defendants also further submitted that acts of bare

Section 34 of Specific Relief Act in a suit for declaration of title and possession, onus to prove his title is on plaintiff, he had to discharge onus on him by adducing sufficient evidence, the plaintiff cannot succeed on the weakness of the defendants case, even if title set up by the defendants is found against them in the absence of establishment of the plaintiff’s own title, plaintiff must be non-suited, for which he relied upon the observations reported in 2014 (2) ALD, 157, (Supreme

Court) in between “Union of India and others, Vs.Vasavi Co-op.

Housing Society Ltd., and others”.

District Court, Vizianagaram 21 O.S.No.45/2012, dt.21.02.2017.

27.The defendants also further submitted another observation which is reported in 2015 (4) ALD 546, in between “Vaddari Jhatipat

Ramloo, Vs. T.Sri Hari”. On perusal of the said observations of the said

Dictums, those observations are not application to the case on hand, as the facts and circumstances narrated in the said observations are quite different to this case.

28.The learned counsel for the plaintiff submitted that originally he filed the suit for declaration and recovery of possession, but in fact, the plaintiff is having absolute rights over the plaint schedule property under the cover of Exs.A.1 to A.27, he need not seek for declaration of the property, as there is no ambiguity in his title and as the defendants occupied the plaint schedule property in the absence of the plaintiff by using unlawful force, the plaintiff can only seek for possession of the property coupled with mandatory injunction, if any structures made by the defendants, for which he is relying upon an observation reported in

AIR 2003, Supreme Court, 2508, in between “Ramesh Chand

Ardawatiya, Vs. Anil Panjawani”. In it, his Lordship observed that :

“Failure to claim further relief in a suit against the trespasser basing upon the agreement of sale for restoration of possession and injunction, the suit cannot be said to be not maintainable for failure to claim specific performance as it was not a relief which could be claimed against the defendant’s trespasser”.

29.So that the plaintiff has not pressed the relief of declaration for the plaint schedule property. The plaintiff also further submitted that in a suit for recovery of the possession on the basis of the title, once the plaintiff is able to create high degree of probability to which onus on defendant, it is for the defendants to discharge his onus. In the absence thereof, the burden of proof on the plaintiff would be discharged, which

District Court, Vizianagaram 22 O.S.No.45/2012, dt.21.02.2017.

would amount to proof of the plaintiffs title. Finding of fact that plaintiff succeeded in shifting onus on defendants and thus, burden of proof on the plaintiff stood discharged, for which he relied upon upon ratio in AIR 2003, Supreme Court, Page No.4548,in between“R.V.E.

Venkatachala Gounder, Vs. Arulmigu Viswesaraswami and V.P.

Temple and another”.

30.The learned counsel for the plaintiff also submitted that Exs.

A.4 to A.7 filed by him are relating to 30 years old and hence, he can draw the presumption U/s.30 of the Indian Evidence Act that the documents filed by him are old and genuine and as such, Exs. A.4 to A.7 execution has to be presumed.

31.The learned counsel for the plaintiff also further submitted that U/s.34 and 35 of the Specific Relief Act, suit for nature of proof required, no particular standard stipulated for establishing title in respect of item of immovable property. A person can acquire title through operation of law, such as by succession, by act of parties, an account of sheer in reference, or negligence of actual owner i.e., through adverse possession. In view of such wide range of means, through which, title to an item of immovable property can be acquired, it is failure to insist of proof thereof must be particular standard. By its very nature, title would be relating and much would depend upon nature and strength of the claim made by opposite party. The plaintiff in the suit, if establishes basic aspects and tenets of title and defendants, if not able to establish any superior title, a decree must follow. Such a decree would operate only against defendant and not against others, who are not parties to the suit.

32.The well settled proposition of law is that possession follows the title and as the plaintiff has filed cart loaded bundle of the

District Court, Vizianagaram 23 O.S.No.45/2012, dt.21.02.2017.

documents before this Court, this Court has no hesitation to say that the plaintiff is having title over the plaint schedule property and as such, he is entitled to seek the possession of the plaint schedule property. The said ratio was laid down in 1997 (2) APLS at Page No.35, in between “Bandi Narasaiah (died), Vs. Virabathini Mallesham”.

33.The learned counsel for the plaintiff further submitted that no one convey better title than what he has, mere entries in revenue records do not confer any title, reported in 2016 (2) ALD, Page

No.615, in between “Akula Sangappa, Vs. Bandam Siddappa and another”. In that regard, he has also submitted another Dictum which is reported in 2016 (1) ALT, Page No.319, in between “Kasa

Muthanna and another, Vs. Sunke Rajasnna and others”, that :

“Mere entries in Revenue records relied upon by the defendants with regard to the possession are of no avail when they have no right, title and interest in the suit property”.

34.In the citation submitted by the defendants i.e., reported in 2014 (2) ALD, Page No.157 (S.C.), in between “Union of India and others, Vs. Vasavi Co-op. Housing Society Ltd., and others”, it clearly reveals that :

“Entries in revenue records would not confer any title”.

The defendants filed Ex.B.1 copy of fair adangal as link document for Exs.A.10 to A.15 sale deeds. Except that, they have not filed any other documents that the defendants 7 to 9 have right over the plaint schedule property. So, the above citation which is submitted by the defendants is against to them and moreover, in favour of the plaintiff.

35.The learned counsel for the defendants further submitted that the name of the plaintiff or his predecessors in title are not

District Court, Vizianagaram 24 O.S.No.45/2012, dt.21.02.2017.

appearing in the revenue records. Mere absence of name in revenue records is not a ground to discard the title, when the title deeds are in the name of the plaintiff and his predecessors in title. The said ratio was laid down in A.I.R. 2016, Supreme Court, Page No.1433, Prem

Nath Kanna and Others Vs. Narendranath Kapoor (Died) through

LRs and Others.

36.From the above observations of this Court, coupled with the observations of the several Hon’ble High Courts including the Hon’ble

Apex Court, this Court comes to an irresistible conclusion that the plaintiff is having all rights and title over the plaint schedule property and as such, he is entitled for the possession of the plaint schedule property. Hence, this Issue is answered in favour of the plaintiff and against the defendants.

37. ISSUE NO.2:-

Admittedly, the defendants are in physical possession and enjoyment of the plaint schedule property, for the present. So, the plaintiff is entitled for the relief of mandatory injunction and the plaintiff can remove the structures thereon, if any constructed by the defendants under the claim of the wrong title and the plaintiff can recover the expenses for the removal of the said structures over the plaint schedule property. Accordingly, this Issue is answered in favour of the plaintiff and against the defendants.

38. ISSUE NO.3:-

As the plaintiff has not-pressed the suit for the relief of the declaration, hence the question of maintainability of the suit basing upon the possessory agreement for sale coupled with General Power of

Attorney would not arise. As this Court has elaborately answered the

Issue No.1 that the plaintiff is having all rights and title over the plaint

District Court, Vizianagaram 25 O.S.No.45/2012, dt.21.02.2017.

schedule property, even by virtue of the General Power of Attorney i.e., under the cover of Ex.A.1, he is entitled for the recovery of the plaint schedule property from the defendants.

39. Issue No.4:- In the result, the suit is decreed with costs. The plaintiff is entitled for the recovery of possession of the plaint schedule property from the defendants. The defendants are hereby directed to hand over the plaint schedule property to the plaintiff within three months from the date of passing of the Judgment by removing the structures, if any therein with vacant possession. If the defendants fail to make the delivery of the plaint schedule property to the plaintiff within the above stipulated time, the plaintiff can take steps for the eviction of the defendants from the plaint schedule property through due process of

Law. The plaintiff can remove the structures and he can recover the costs of the same from the defendants. Regarding the relief of declaration over the plaint schedule property is concerned, the suit is dismissed as not pressed.

Dictated to the Stenographer Grade-I, transcribed by him,

corrected and pronounced by me in open Court, this the 21st day of February, 2017.

Sd/-. G.

Srinivas.

DISTRICT

JUDGE,

VIZIANAGARAM

.

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintif:-For defendants:-

P.W.1:- Vijay SirohiaD.W.1:- Haridwara Srinivasa Gupta. P.W.2:- Bhavar Singh. P.W.3:- Tulasiram Dayamma P.W.4:- Nandipati Gandhi Reddy. P.W.5:- K. Srinivasa Rao (Tahsildar, Vizianagaram).

Exhibits Marked

Ex.A.1:Original Registered Possessory Agreement for sale coupled with GPA bearing Document No.6755/2004 executed in favour of the plaintiff dated 14.10.2004.

District Court, Vizianagaram 26 O.S.No.45/2012, dt.21.02.2017.

Ex.A.2:Original Release Deed bearing document No.7159/2003,

dated 10.12.2003.

Ex.A.3:Original Registered sale deed bearing Document No. 2254/1995 dt.17.04.1995.

Ex.A.4:Original Registered sale deed bearing Document No. 3504/1982 dt.13.08.1982.

Ex.A.5:Original Registered sale deed bearing Document No. 2641/1976 dt.30.08.1976.

Ex.A.6:Certified copy of Registered sale deed bearing Document No.2679/1970 dt.13.07.1970.

Ex.A.7: Certified copy of registered sale deed bearing Document No.100/1961.

Ex.A.8:Original Land cist receipt paid by A. Appayya Sastry.

Ex.A.9:Attested copy of S.F.A. issued by Assistant Director District Survey & Land Records, Vizianagaram under RTI Act.

Ex.A.10: Certified copy of Registered sale deed bearing document No.486/2012 in favour of 1st defendant.

Ex.A.11: Certified copy of Registered sale deed bearing document No.487/2012 in favour of 2nd defendant dt.13.02.2012.

Ex.A.12: Certified copy of Registered sale deed bearing document No.488/2012 in favour of 3rd defendant dt.13.02.2012.

Ex.A.13: Certified copy of Registered sale deed bearing document No.489/2012 in favour of 4th defendant dt.13.02.2012.

Ex.A.14: Certified copy of Registered sale deed bearing document No.490/2012 in favour of 5th defendant dt.13.02.2012.

Ex.A.15: Certified copy of Registered sale deed bearing document No.491/2012 in favour of 6th defendant dt.13.02.2012.

Exs. A.16 to A.27: Digital Photos with CD.

Ex.X.1 is the Xerox copy of settlement Fasali Register dt.24.11.2016

For defendants:-

Ex.B.1 is the True Extract of FCO Fair Adangal.

Sd/-. G. Srinivas.

DISTRICT JUDGE,

VIZIANAGARAM

.

1 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act)

IN THE COURT OF THE DISTRICT JUDGE, VIZIANAGARAM.

Present: Sri G.Srinivas,

Principal District Judge,

Vizianagaram.

Tuesday, this the 28th day of February, 2017

Divorce O.P.No.344/2014

Between:

Matha Kishore Kumar, S/o Kiran Kumar, Aged about 30 years, Christian, Teacher, Residing at Jarajapupeta Village, Nellimarla Mandal, Vizianagaram District.

…Petitioner.

A n d:

Matha Rama Simha Roja Nalini, W/o Kishore Kumar, Christian, Aged 27 years, Junior Assistant, Z.P. High School, Merakamudidam Mandal & Village, Vizianagaram District.

… Respondent.

This Petition coming on 15.02.2017 for final hearing before me in the presence of Sri A.Raj Kumar, Advocate for the petitioner and of Sri

Ch.Rambabu, Advocate for the Respondent, and having stood over for consideration till this day, this Court passed the following:

O R D E R

This petition is filed U/sec.10(x) of the Indian Divorce Act, seeking dissolution of the marriage of the petitioner with the respondent by way of divorce.

2.The brief facts of the petitioner’s case are that the petitioner herein is the husband of the respondent herein and their marriage was performed in accordance with Christian caste customs and religious rites at Nellimarla Baptist Church on 06.08.2009.

Immediately after the marriage, the petitioner and the respondent lived as a wife and husband and their marriage was consummated.

Out of their wedlock, they were blessed with a male child named Matha

Satwik on 05.11.2011 at Rajam. The age of the minor male child is about three years old at present. Immediately after the marriage, the respondent joined the conjugal society of the petitioner and lead happy 2 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) marital life with him for a period of three months only. Subsequently after three months of their marriage, the respondent started quarreling with the petitioner and his parents demanding the petitioner to put up a separate family nearby the house of her parents house for other unreasonable grounds and went to her parents house of and on. On every occasion, the petitioner used to bring back the respondent to his house. In order to satisfy the wish of the respondent, the petitioner put up a separate family at Garividi village and even though the respondent has not satisfied with the same and continued her harassment quarreling with the petitioner. The respondent or her family members have not intimated the birth of the male child and the naming ceremony of the male child also to the petitioner herein. The main intention of the respondent is that the petitioner has to be as an illatum son-in-law to her parents house, for which the petitioner refused ever since from that day onwards the respondent started harassing the petitioner and the petitioner made several attempts to pacify the respondent’s demands and held mediations through elders like Praskasam garu, Varma garu and Kondapalli Jaya Shankar, but the respondent refused to oblige them and failed to join with the petitioner.

Having no other option, the petitioner filed O.P.No.239/2012 on the file of the Sessions Judge at Vizianagaram for restitution of conjugal rights under Sec.32 of Divorce Act against the respondent. The respondent after receipt of summons set exparte and a decree was passed in favour of the petitioner on 28.1.2014. While the restitution petition was pending, the respondent lodged a Police complaint against the petitioner and his family members at Terlam Police Station,

Vizianagaram District U/s.498-A of IPC in Cr.No.75/2012 and the same is pending disposal before the Judicial I Class Magistrate at Bobbili. The 3 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) respondent in order to harass the petitioner filed maintenance case at

Judicial I Class Magistrate, Bobbili against the petitioner. Immediately after getting a decree of restitution of conjugal rights against the respondent, the petitioner got issued legal notice to the respondent on 26.02.2014 demanding the respondent to join with the petitioner for discharging her matrimonial obligations. The respondent acknowledged the same on 01.03.2014, but failed to join with the petitioner nor gave any reply so far nor made any efforts to file petition

before the Sessions Judge, for setting aside the exparte order till today,

moreover, she filed M.C.No.13/2014 against the petitioner before the

Judicial I Class Magistrate at Bobbili. Since the respondent failed to join with the petitioner to discharge her matrimonial obligation as ordered by the Sessions Judge at Vizianagaram in D.O.P.No.329/2012, dt.28.1.2014, and the respondent started harassing the petitioner both physically and mentally by lodging false complaints against the petitioner U/s.498-A of IPC and Sec.125 of Cr.P.C., against the petitioner and his family members and demanded Rs.5,00,000/- for withdrawal of the false cases, the petitioner having no other option approached the

Court for grant of Divorce against the respondent. Since the respondent deserted and harassed the petitioner, the petitioner filed this petition U/s.10(x) of Divorce Act, 1869 for dissolution of marriage between the petitioner and the respondent solemnized in accordance with Christian caste customs and religious rites on 06.08.2009 at

Nellimarla Telugu Baptist Church on the ground of cruelty and desertion. Hence, this petition is filed for dissolution of marriage.

3.The respondent filed the counter denying the allegations in the petition, except the relationship mentioned in the petition. The respondent further submitted that the petitioner has suppressed the 4 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) true and correct facts and filed the petition with all false and untenable allegations and the true and correct facts are as, at the time of marriage, her patents gave Rs.5,00,000/- cash, one Passion Pro motor bike, one tula gold chain and ½ tula gold ring to the petitioner towards dowry and they also presented sare samans worth Rs.1,00,000/- to the petitioner. The respondent further submits that from the beginning of the marriage, the petitioner, his parents and his aunty

Smt.M.Sugunamma used to apply their hierarchy upon the respondent.

The petitioner and his parents used to take away all the salary of the respondent immediately when it was drawn from the bank by the respondent. She is working as Junior Assistant, though she is an employee she has no right to enjoy her salary amount and on the very next day of the salary, she was forced to beg to her month-in-law for her daily needs and in the pathetic situation in which the respondent lived. Even at the beginning days of their wed-lock, the petitioner used to come to the home at late night. He never shared dinner with her. The petitioner at the beginning put a condition to the respondent that she should not go to bed and also take food until he comes to the home, as such, the petitioner caused the respondent to much mental agony. The respondent further submitted that the petitioner is having peculiar behaviour like hitting his head to the walls if she gets sleep

before the petitioner gets into sleep and also if by any cause the

respondent gets sleep before the petitioner, then he used to made complaint to his parents. Depending on the complaint of the petitioner, the parents of the petitioner used to harass like anything. The respondent further submitted that the petitioner expressed his dislike towards her and he also told that he married the respondent with the pressure of his parents, but not out of love and affection and he 5 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) expressed his opinion that he would like to marry a teacher but not the respondent. Therefore, it clearly indicates that the petitioner got married the respondent for dowry only. Due to that reason the petitioner and his parents demanded the respondent for additional dowry of Rs.5,00,000/- for purchasing a new house. The petitioner intended to marry another girl, so that he used to harass the respondent as above. The petitioner and his parents did not visit the respondent while she was at her parents’ home for the purpose of maternity/delivery. Even after the birth of the child also they did not visit the respondent’s parents home even number of messages given to them. She gave birth to a male child on dt.05.11.2011. Though the petitioner and his parents did not come to visit the child, the respondent herself along with her child went to the petitioner’s home in the month of December, 2011. She was stayed there up to the month of March, 2012. At that time, she is working as Junior Assistant,

Z.P. High School, Meraka Mudidam Mandal. The petitioner forced the respondent to make insurance policy in the name of the son of his sister not in the name of her child. The petitioner also forced the respondent to deposit the maternity leave amount of this respondent in favour of him. But the respondent rejected to do so and she expressed her opinion of depositing the money in favour of her child.

This opinion of the respondent caused unrest in her life, because that was not accepted by the petitioner and his parents. The petitioner never dropped the respondent to her school by the motorbike which was given to the petitioner by her parents, if at any urgency, the respondent went to her school by the help of some others bike the petitioner used to harass her like anything and also he used to abuse her for unnecessary things. The respondent expressed her opinion to 6 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) reside at Merakamudidam village where she was working as a Junior

Assistant, instead of going to her school from Jarajapupeta village, because the baby was very small. By keeping the child in mind, the respondent made the above proposal to the petitioner. But the petitioner bluntly rejected and forced her to make up and down from

Jarajapupeta Village to Meraka Mudidam. Then the respondent rejected their unreasonable demand with a view to protect the welfare of the child. Then the petitioner rejected against the respondent and alleged that she is not listening their words and they forced the respondent to get out off their home. Because the respondent not obeyed for their illegal demand of additional dowry of Rs.5,00,000/- and getting a policy in favour of the petitioner’s sister’s son and to travel from Nellimarla to

Meraka Mudidam. Thus with a view to desert the petitioner, they put all the above unreasonable illegal demands before the respondent. The petitioner deserted and necked out her along with her child mercilessly from their home. The petitioner send his elders to discuss about the divorce, at that time, the respondent and her mother rejected their proposal of divorce. After a long period, the petitioner approached the court by making all false allegations and unclean hands with a view to mislead the court he changed his volume. The petition in

D.O.P.No.329/2012 she filed her counter and when the matter is posted for enquiry, the petitioner was absent and as such the petition was dismissed for default on 24.01.2013 and accordingly she was informed by her advocate and later there was no information to her and thereafter she received the notice in the above matter and then only she came to know that exparte decree was passed against her and on enquiry she came to know that the petitioner filed an application in

I.A.No.255/20013 to set aside the default order dt.24.01.2013 and her 7 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) the then advocate on record received notice and the said petition was allowed on dt.04.06.2013 and it underwent so many adjournments and ultimately exparte decree was passed on 28.01.2014 and in the above stated circumstances, as the respondent had no knowledge about the receipt of notice in I.A.No.255/2013 she could not represent the matter in time and hence she filed a petition in I.A.No.956/2014 to set aside the exparte decree along with a petition to condone the delay and the same is also within the knowledge of the petitioner and hence the allegation to that effect are false. The petitioner harassed her for want of additional dowry etc., and subjected her to both mental and physical cruelty and hence he is not entitled for divorce and there are absolutely no bona fides on the part of the petitioner. Therefore, the respondent prays to dismiss the petition with costs.

4.On behalf of the petitioner, the petitioner himself examined as P.W.1 and marked Exs.A.1 to A.8. On behalf of the respondent, the respondent herself examined as R.W.1 and also examined one

Garbhapu Munuswamy, who is the distant relative of the respondent, as R.W.2 and no documents are marked on behalf of the respondent.

5.Heard both sides.

6.Now, the Points for consideration are :

1) Whether the respondent deserted the petitioner without any just and reasonable cause ?

2) Whether the respondent treated the petitioner with cruelty ?

3) Whether the petitioner is entitled for divorce ?

7.Point No.1 and 2 :-

The contention of the petitioner is that the respondent is his wife and their marriage took place on 06.08.2009 according to the 8 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) Christian rites and customs and the said marriage was duly consummated and subsequently they were blessed with a child viz.,

Satwik, from the inception, the respondent is so adamant and used to harass the petitioner for even petty things and the respondent used to quarrel with him often and both the petitioner and respondent are the

Government Employees and the respondent insisted him to come as illatom-son-in-law, the petitioner refused for the same as he has to look after the welfare of his parents and the respondent herself deserted the petitioner from the conjugal society and thereby, he filed

O.P.No.239/2012 on the file of the District Judge’s Court, Vizianagaram for restitution of the conjugal rights and the same was decreed in his favour, thereafter the respondent filed a Maintenance Case against the petitioner for the said child and the same is still pending under

M.C.No.13/2014 on the file of the Additional Judicial I Class Magistrate

Court, Bobbili and the respondent has also foisted a case U/s.498-A of

IPC against the petitioner under Crime No.75/2012 on the file of the

Additional Judicial I Class Magistrate Court, Bobbili, after getting the

decree of restitution of conjugal rights, the petitioner got issued a legal notice to the respondent on 26.02.2014 i.e., under the cover of Ex.A.7 and the respondent has received the said notice under the cover of

Ex.A.8 acknowledgement and even then the respondent has not come forward to lead the matrimonial life with the petitioner. Hence, the petitioner is constrained to file this divorce petition and the acts of the respondent are amounts to cruelty as the respondent physically and mentally tortured him in one way or the other.

8.Per contra, the respondent contended that at the time of her marriage, her parents gave Rs.5,00,000/- cash to the petitioner and also one Passion Motor Bike and gold ornaments and also gave 9 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) Rs.1,00,000/- towards Para Phernaila (Sare Samans), from the beginning of the marriage, the petitioner used to harass her and by force used to take her salary and used to leave her to her fate and the petitioner even did not use to provide food to her and tortured her and thereby the petitioner subjected her to mental agony and the petitioner expressed his dislike towards her and there was no love and affection towards the respondent to the petitioner and the petitioner and her parents demanded her to bring additional dowry of

Rs.5,00,000/-, otherwise the petitioner would marry another girl, even after the birth of the child also the petitioner did not visit the house of the respondent, as the respondent disobeyed the demands made by the petitioner and his parents, they used to jolt her with barbaric treatment and necked out the respondent from his house mercilessly and filed this petition seeking the divorce without any default of the respondent and necked out the respondent filed the restoration of the conjugal rights application and the said decree was set-aside and subsequently the petitioner not pressed the said O.P., U/s.32 of Indian

Divorce Act, and the petitioner harassed her mentally and physically and hence, he is not entitled to seek the divorce and sought for dismissal of the petition.

9.On careful scrutiny of the evidence of the respondent/wife i.e., R.W.1, she stated in her cross-examination quite contrary to the averments of her petition that the petitioner and her father came to the Hospital and they were present at the time of the delivery and the petitioner’s mother came to the Hospital on the next day of the delivery and the naming ceremony of the child was performed in the house of the petitioner three months after the birth. The above all the things were stated by the petitioner in her petition quite contrary to 10 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) her evidence. Moreover, the respondent herself admitted in her cross- examination at 7th line that she herself left from the house of the petitioner and thereafter, he filed an application for restitution of conjugal rights and he obtained exparte decree and she received

Ex.A.7 notice from the petitioner demanding her to join his company and she filed M.C.No.13/2014 against the petitioner seeking maintenance of the minor child, two months thereafter she received notices from the petitioner for restitution of conjugal rights and she lodged a complaint U/s.498-A of IPC against the petitioner under Crime

No.75/2012 on the file of the Additional Judicial I Class Magistrate

Court, Bobbili and the same is still pending and she did not make any attempts to join with the petitioner even after receipt of Ex.A.7 notice and she herself voluntarily admitted that she did not join the company of the petitioner, as the cases were pending in between them. The witness further stated that she opted to Merakamudidam village for her job as a Junior Assistant as her senior opted for Ramatheerthalu village. After seeing the transfer proceedings, the respondent herself stated that Ramatheerthalu village has given to her junior. She further denied the suggestion of the petitioner’s counsel that even though there was vacancy in Ramatheerthalu village, which is nearer to the house of the petitioner, only to avoid to reside with the petitioner, she opted at Merakamudidam village which is far about to the house of the petitioner and she does not know the Police have not filed the charge sheet against the petitioner U/s.3 & 4 of the Dowry Prohibition Act.

10.On careful scrutiny of the evidence of R.W.1, it clearly appears that the respondent herself left the matrimonial home after making petty quarrel with the petitioner and in fact, the petitioner and his father were present with the respondent at the time of her delivery, 11 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) the mother of the petitioner also came to the Hospital on the very next day to see the kid, the naming ceremony of the child was performed in the house of the petitioner. Further, it reveals that even after receipt of Ex.A.7 notice for restitution of the conjugal rights, the respondent did not join the company of the petitioner for the reasons best known to her and moreover after receipt of the said notice, she intentionally filed a maintenance case seeking the maintenance of the child and also lodged a complaint against the petitioner U/s.498-A of IPC and she herself opted to Merakamudidam village, which is far away to the house of the petitioner. Further, it also clearly reveals that the respondent has not made any efforts to join with the company of the petitioner. If really she is interested to live with the petitioner, she might have taken steps to join with the petitioner, but she has not taken any steps and she has not moved any little finger either by issuing notice that she is ready to join with the company of the petitioner or to place the matter before the elders. So, from the inception, the respondent has no intention to lead her life amicably with the petitioner.

11.The respondent also got examined her distant relative as

R.W.2. His chief-examination is nothing but replica of her evidence. In his cross-examination, R.W.2 categorically admitted that he did not attend the naming ceremony of the child. After filing the petition for restitution of conjugal rights by the petitioner, the respondent lodged a complaint against the petitioner U/s.498-A of IPC, the younger brother and younger sister of the respondent are grown up and of marriageable age and Vizianagaram has got better educational facility than Rajam village, after receiving the notice and restitution of the conjugal rights, the respondent did not join with the petitioner to lead 12 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) conjugal life and the respondent regularly attending the Courts at

Bobbili, in connection with case U/Sec.498-A of IPC and on three occasions, a Panchayat was held before the elders at the respondent’s house.

12.On thorough examination of the evidence of R.W.2, it clearly establishes that the respondent lodged a complaint U/s.498-A of IPC and Maintenance Case soon after filing the petition by the petitioner for restitution of conjugal rights. Moreover, as the younger brother and younger sister of the respondent are grown up and of marriageable age, the respondent not intended to live at the petitioner’s house to lead marital life and thereby she insisted the petitioner to come to her house as illatom-son-in-law, as she has to look after the welfare of her brother and sister and she has to perform their marriages. Even though Junior Assistant post is vacant at Ramatheerthalu village, which is nearer to the house of the petitioner, as the respondent intending to avoid to lead marital life with the petitioner opted Merakamudidam village, which is far away to the place of the petitioner. Moreover, it also further appears from the evidence of R.W.2 that the respondent is regularly attending before the Bobbili Court in the case connection with

Sec.498-A of IPC. The case U/s.498-A of IPC is a Police Case. The respondent has no necessity to go to the Court for each and every adjournment only at the relevant point of time i.e., at the time of the issuing summons to her by the said Court to give her evidence, her presence is required, instead of that she is regularly attending before the Additional Judicial I Class Magistrate Court, Bobbili. So, it candidly appears that in order to take revenge against the petitioner, the respondent is attending before the said Additional Judicial I Class

Magistrate Court, Bobbili, in a case U/s.498-A of IPC for each and every

13 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) adjournment. Moreover, R.W.2 himself admitted that at the house of the respondent only Panchayat was held on three occasions. The petitioner came down to her house and nauded his head before her, even then the respondent was not mended her attitude towards the petitioner. So, the acts of the respondent against the petitioner amounts to cruelty.

13.The petitioner further stated that he filed a Guardian O.P.

No.343/2014 before the District Court seeking custody of his child and in which this Court has granted visiting rights to the petitioner, even then the respondent is not allowing the petitioner to see his child. So, it also amounts to nothing but cruelty on the part of the respondent.

There is no dispute about the relationship in between the parties and also paternity of the said child. The respondent has not issued any reply notice even denying the contents/allegations of the petitioner under the cover of Ex.A.7 and she has not issued any notice to the petitioner that she is ready to come to the house of the petitioner.

Being the respondent is also working as a Junior Assistant in

Government School, she is having economical sources to lead her life poshly she neglected the petitioner and the petitioner is constrained to file this O.P., seeking divorce after making hectic efforts for their re- union.

14.The contention of the petitioner is that the respondent harassed him without joining the petitioner by the respondent without any single reason and just cause, denying the marital life with the petitioner amounts to cruelty, and as the petitioner is suffering mentally due to lack of the company of his wife and child, he was subjected to mental agony and due to lack of co-habitation with his wife, he is also suffering physically. So, even the mental cruelty 14 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) constitutes cruelty within the meaning of Sec.10(x) of the Indian

Divorce Act.

15.The word cruelty has not been defined indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is, a force of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem to determine it. It is a question of fact and degree. If it is a mental, the problem presents a difficulty. First, the enquiry must cannot as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

16.The cruelty for the purpose of Sec.10(x) of Indian Divorce

Act is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind in feeling with one of the spouses due to the behaviour or behavioural pattern by the other.

Unlike the case of the physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of interference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending the facts and circumstances in which the two partners of the 15 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. In a case of mental cruelty, it will not be a correct approach to take an instance of mis-behaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty.

The approach should be to take the cumulative effect or the facts and circumstances emerging from the evidence on record and then draw a fair interference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

17.In case of “Naveen Kohli, Vs. Neelu Kohli”, his Lordship discussed at Para No.42 requirements of happy married life including the ordinary wear and tear of the life that :

“The founder of a sound marriage is a tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exonerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from the point of view in determining of the spouse cruelty in each particular case and has noted above, always keeping in view the physical and mental conditions of the parties their character and social status. A too technical and hyper sensitive approach would be counter productive to the institution of the marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to matrimonial Courts”.

18.To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner’s spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tearing of married life”. The conduct taking into consideration the circumstances and back ground, has to be examined to reach the conclusion, whether the conduct complained of amounts to cruelty in 16 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) matrimonial law. Conduct has to be considered, as noted above in the back ground of the several patterns such as social status of the parties their education, physical and mental conditions, customs and traditions. It is difficult to laid down a precise definition or to give exhaustive description of the circumstances which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. To constitute cruelty and consistent of the conduct inflicting immiserable mental agony and torture may well constitute cruelty within the meaning of Sec.10(x) of the Divorce Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

19.The Hon’ble Supreme Court in “Samar Ghosh, Vs. Jaya

Ghosh” 2007 (2) Punjab Law Reporter, Page No.618, his Lordship observed that :

“There is no uniform standard can ever be laid down for guidance, yet they deemed it appropriate to enumerate some instance of human behaviour which might be relevant in dealing with the cases of mental cruelty”.

While considering the aspect of the cruelty, the following aspects must be considered :

1) On consideration of the complete matrimonial life of the parties, acute mental pain, agony and suffering has would not make possible for the parties to live with each other could come within the broad para-meters of mental cruelty.

17 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act)

2) On comprehensive appraisal of the entire matrimonial life of the parties, it become abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party.

3) Sustained unjustifiable conduct and behaviour of one spouse actually effecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

4) Sustained reprehensible conduct, study, neglect, in difference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amounts to mental cruelty.

5) Unilateral decision or refusal to have the intercourse for considerable period without there being any physical incapacity or valid also amounts to mental cruelty.

20.So, on thorough examining the facts of the case concerned, it is unequivocally established that the respondent had not accompanied her husband, even though she got a child and very nearer place of posting to her job is vacant, she has not opted for it.

This conduct of the respondent rather proves the version of the petitioner that she had refused to accompany him to his place of posting or to his nearest posting intentionally to deny him sexual relationship. The reason put forward by the respondent is mere shallow as the petitioner was equally worried about the wellbeing of his child as he filed Guardian O.P.No.343/2014 on the file of this Court, 18 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) otherwise, he would not have asked his wife to accompany him to his house.

21.The petitioner has also further established that the respondent used to deny him sexual intercourse which caused him mental torture. The denial of sexual intercourse by one spouse to another spouse constitutes mental torture. So, the conduct of the respondent in denying the sexual intercourse with the petitioner amounts to mental cruelty.

22.The petitioner made his best efforts to bring back his wife to his matrimonial fold by filing a petition in O.P.No.329/2012 for restitution of conjugal rights. After filing the above petition, the respondent has filed a Maintenance Case and also lodged a Police complaint U/s.498-A of IPC against the petitioner. Hence, the contentions of the respondent that she would live with the respondent and she is willing to go back to the matrimonial home appears to be fictitious and baseless.

23.Not only the respondent has denied the allegation made by the petitioner in his petition for divorce, she has also levelled counter allegations that she was maltreated by the petitioner and his parents.

They had asked for dowry even after the marriage, a vehicle was also purchased and given to the petitioner, gold ornaments were also given to the petitioner. If these allegations made by the respondent had been correct, then she would not have offered to go back to the house of the petitioner. Either the allegations levelled by her are concocted or an offer to go back to the matrimonial home appears to be a false plea. As admittedly the petitioner and respondent are residing separately from the year 2010, soon she became pregnant and they 19 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) have been living separately for the last seven years, it appears to be a case of the broken marriage. It cannot be retrieved and it could be unrealistic to ask the respondent after seven years separated life to live together happily as a married couple particularly when even the conduct of the respondent appears to be repulsive to the joint living of the parties although she professes to the contrary.

24.Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has been broken down. The Court, not doubt, should be seriously make an endeavour to reconcile the parties, yet if it is found that the break down is irreparable then divorce should not be withheld. The consequences of preservation in Law of the unworthyble marriage which has long seized to be effective are bound to be a source of greater misery for the parties.

25.Once the marriage has broken down beyond repair, it would be unrealistic for the Law not to take notice of the fact, and it would be a harmful to the society and injurious to the interest of the parties.

Where there has been long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction that supported by a legal tie. By refusing to sever that the tie, the Law in such cases do not serve the sanctity of the marriage, on the contrary it shows scant respect regarding feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible and whenever possible be maintained, but when a marriage has been wrecked beyond the hope of salvage public interest lies in the recognition of the fact. Since there is no acceptable way in which the 20 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act) spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to the marriage that impact has seized to exist.

26.Repeated efforts made by the petitioner proved futile, evidence on record clearly showing that serious differences cropped up between the petitioner and respondent and that repeated efforts made by elders for reconciliation proved futile. No escape from the conclusion, there may be no escape from the conclusion that the marriage has irretrievably broken down. A long time separation itself would lead to mental cruelty. He is entitled to a decree for dissolution of marriage on the sole reason that there is no possibility for reunion of the parties in order to live together, since the marriage between the par3ties has irretrievably broken down, any attempt to force the parties to live together would be tantamount to causing mental cruelty and would only prolong the mental agony of the parties for the rest of their lives.

27.In view of the findings of this Court, as well as the observations of our Hon’ble Apex Court, including the various Hon’ble

High Courts, since the parties are living separately for each other for the last seven years, it appears to be a case of total broken marriage and it cannot be repaired at this moment. Therefore, the petitioner is entitled for the relief as prayed for in order to avoid further agony for the rest of their lives.

28.Point No.3:- In the result, the petition is allowed, granting decree of divorcedissolving the marital tie between the petitioner and respondent which was held on 06.08.2009. In the facts and circumstances of the case, each party shall bear their own costs.

21 District Court, Vizianagaram. D.O.P.No.344/2014 (Sec.10 of Divorce Act)

Dictated to the Stenographer Grade-I, transcribed by him,

corrected and pronounced by me in open Court, this the 28th day of February, 2017.

Sd/-. G. Srinivas.

District Judge,

Vizianagaram.

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner:-For Respondent:-

P.W.1 : Matha Kishore Kumar. R.W.1: Matha Rama Simha Roja

Nalini.

R.W.2: Garbapu Munuswamy.

Exhibits Marked

For Petitioner:-

Ex.A.1 : Xerox copy of marriage Certificate, dt.06.08.2009.

Ex.A.2 : Xerox copy of birth certificate, dt.05.11.2011 of Matha Satwik.

Ex.A.3 : Xerox Copy of F.I.R. in Cr.No.75/2012 of Terlam P.S., dt.14.10.2012.

Ex.A.4 : Xerox copy of Order and decree in D.O.P.No.329/2012 on the file of the

District Court, Vizianagaram, dated 28.01.2014.

Ex.A.5 : Xerox copy of petition in M.C.No.13/2014 on the file of the

Additional

Judicial Magistrate of I Class, Bobbili.

Ex.A.6 : Colour Xerox copy of Marriage photo.

Ex.A.7 : Legal Notice, dt.26.02.2014.

Ex.A.8 : Acknowledgement, dt.01.03.2014 from respondent.

For Respondent:

-N I L -

Sd/-. G. Srinivas.

District Judge,

Vizianagaram.

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL (DISTRICT JUDGE),

VIZIANAGARAM

Present: Sri G.Srinivas, Chairman (District Judge), Motor Accidents Claims Tribunal, Vizianagaram.

Tuesday, this the 01st day of March, 2017

M.V.O.P.No.392/2012

Between:

1) D.Roop Latha Sharma, W/o Yadunandan Sharma, Aged 47 years, Hindu, House wife, R/o Door No.17-55 DFN Colony, Garividi Village & Mandalam, Vizianagaram District. (Died).

2) Sri Dhandu Yadunanda Sharma, S/o Laljimol Sharma, Age 58 years, Hindu, Residing –do-.

3) Dhandu Sheetal Sharma, D/o Yadunandan Sharma, Age 26 years, Hindu, Residing –do-.

4) Sonal Sharma, W/o Astosh Sharma, Age 32 years, Hindu, Residing –do-.

(The petitioners 2 to 4 are added as per order in I.A.No.762/2015,

dated 02.07.2015).

…Petitioner. A n d:

1) Samloo Ram Batra, S/o Sonu Ram Batra, Age 41 years, Driver of Lorry No.CG 07 C 3521, Chattisgarh State.

2) Jogindhar Singh, S/o Chanran Singh, Age 47 years, Owner of Lorry No.CG 07 C 3521, R/o Ward No.28, Ganga Nagar, Jagadalpur, Chattisghad State.

3) Sriram General Insurance Co. Ltd., represented by its Divisional Manager, Visakhapatnam. Policy No.10003/31/11/540713, valid from 03.03.2011 to 02.03.2012.

4) United India Insurance Co., Ltd., represented by its Divisional Manager, Srikakulam. Policy No.1504013111P001236401, Valid from 19.10.2011 to 18.10.2012. … Respondents.

This petition coming on 27.02.2017 for final hearing before me in the presence of Sri M.Sankara Rao, Advocate for petitioners, and of Sri K.Srinivasa Rao, Advocate for the 3rd respondent, and petition against the 4th respondent was dismissed, as not pressed by the petitioners, and respondents 1 and 2 having remained exparte and having stood over for consideration till this day, this Tribunal passed the following:- 2 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017

O R D E R

This is a petition filed by the petitioners under Sec.166 of the M.V.Act, r/w. Rule 455 of A.P. M.V. Rules, claiming compensation of

Rs.1,00,000/- on account of the damages caused to the Car TATA INDICA bearing No.AP 35 H 3314 of the petitioners, in a motor accident that occurred on 04-12-2011 at 12-30 hours, near Maddilapalem at

Visakhapatnam.

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

On 04.12.2011 at about 12-30 hours, while the 1st petitioner (as occupant) proceeding towards Visakhapatnam on her (deceased) own

Car TATA INDICA bearing No.AP 35 H 3314 driven by the deceased

Yadunandan Sharma in a careful manner, at an extreme left, and when they just passed Maddilapalem junction, one Lorry bearing No.CG 07 C 3521 driven by the 1st respondent in a rash and negligent manner without caution or horn proceeding in same direction and dashed right side of the Car of the petitioners. In the result, Car of the petitioners badly damaged. The Station House Officer, Visakhapatnam III Town

Police Station registered a case U/s.279 of IPC in Cr.No.384/2011. The petitioners got making repairs at their Car garage at Vizianagaram and they spent an amount of Rs.50,000/- towards spares & repair charges.

The petitioners suffered a lot of pain and mental agony at the time of accident and during the repair works. The petitioners have spent huge amounts by paying rents to Taxi cabs for the works. The petitioners 1 and 2 used to do contract works by using the Car and used to earn

Rs.500/- per day. The petitioners spent an amount of Rs.60,000/- towards spares and repair charges of Car. The petitioners lost nearly

Rs.40,000/- rents to other cards to the works. Therefore, the petitioners are claiming compensation amount of Rs.1,00,000/- against the 3 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 respondents 1 to 3, being the driver, owner and insurer of the said Car, towards damages of the said Car.

3.The 3rd respondent Insurance Company filed I.A.No.327/2017

U/s.170 of M.V. Act, seeking permission of the Court to take all the defences that are available to the driver and owner of the vehicle. The permission was accordingly granted.

4.The respondents 1 and 2 remained exparte as they failed to appear before this court even after receipts of summons from the Court.

5.The 3rd respondent Insurance company filed the written statement, denying the allegations in the petition. The 3rd respondent submits that the driver of Lorry CG 07 C 3521 was not holding driving license at the time of the accident and further was not qualified for holding or obtaining such driving license and further has not satisfied the requirements of the Rule No.3 of the Central Motor Vehicles Rules, 1989. One can drive the vehicle, if he should have valid and effective license, but the driver (1st respondent) did not possess valid and effective driving license as on the date of accident to drive the vehicle.

The 2nd respondent knowing the fact that the 1st respondent did not possess valid and effective driving license, handed over the Lorry CG 07

C 3521 to the 1st respondent willfully and therefore, has contravened the provisions of the M.V. Act and the Rules framed there under and has committed the breach of the contract and violated the terms and conditions of the Policy. Hence, in view of the above stated breach of contract made by the respondent No.2, he is alone liable to pay the compensation to the petitioner and the 3rd respondent company has no liability to pay any compensation to the petitioner and it is liable to be dismissed against the 3rd respondent company. The 3rd respondent 4 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 seeks protection U/s.147 and 149 of M.V. Act. As per Sec.134 (C) of M.V.

Act, 1988, it is mandatory duty of the insured/2nd respondent herein to furnish the particulars of policy, date, time and place of accident, particulars of the injured/deceased and the name of the driver and particulars of his driving license, but the insured/2nd respondent herein has not complied with statutory demand. As per Sec.158(6) of M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but Visakhapatnam III Town Traffic Police failed to forward the documents and not complied with the statutory demand. The petitioner is put to strict proof that the registered owner used the Lorry CG 07 C 3521 without any breach of the provisions of

M.V. Act and M.V. Rules as per M.V. Rules. The petitioner is put to strict proof that there was no violation of any section of M.V. Act, 1988 and its subsequent amendments. The interest which is claimed by the petitioner is highly excessive and the same is contrary to Sec.3 of

Interest Act, 1978 and the observations of the various Judgments of the

Hon’ble Apex Court. The petitioner is not entitled to claim any interest

on non-pecuniary damages as per the observations of the Judgment of the Hon’ble Apex Court. The 3rd respondent seeks protection U/s.170 of

M.V. Act. The compensation claimed by the petitioners is highly excessive and exaggerated and the petitioners are not entitled for the same from the 3rd respondent. Therefore, the 3rd respondent prays to dismiss the petition with costs.

6.The 4th respondent Insurance company filed the written statement, denying the allegations in the petition. The 4th respondent submits that even if the policy is established, the 4th respondent is not liable at all, unless it is to be further proved by the petitioners that the alleged policy bearing No.1504013111P001236401 is a package policy 5 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 and duly issued by the 4th respondent to cover the risk of own damages of the Car bearing No.AP 35 H 3314 and the petitioner also has got insurable interest over the said Car. The claim petition is not maintainable before the Tribunal, since the petitioner is not a third party and she cannot invoke the provisions of Chapters X, XI and XII of M.V.

Act for making a claim under the head of own damages against her own insurer before the Tribunal. The petitioner has no cause of action against the 4th respondent for claiming compensation under the head of own damages of the Car bearing No.AP 35 H 3314, as such the petitioner has to intimate the fact of accident immediately after the accident to her insurer and also lodge a claim with her insurance company and without lodging any claim with her insurance company, she cannot maintain a claim petition. The petitioners not intimated the fact of the alleged accident and also not furnished any particulars as contemplated U/s.134(C) of M.V. Act to the 4th respondent. Hence, the 4th respondent is not liable to indemnify the petitioner, even if the Policy is established. As per Sec.158(6) of M.V. Act, 1988, it is a mandatory duty of the concerned Investigating Officer to forward all the relevant documents to the concerned Insurer within 30 days from the date of the information. But, the Station House Officer, III Town Police Station,

Visakhapatnam failed to forward the documents and not complied with the mandatory provision. Hence, the Investigation is not binding on the 4th respondent. The claim petition is bad for non-joinder and mis-joinder of necessary parties, as such the husband of the 1st petitioner, who is driver of the Car bearing No.AP 35 H 3314 was not shown as a party to the proceedings and in his absence, the claim petition is not maintainable against the 4th respondent. The petitioners are put to strict proof that the Car bearing No.AP 35 H 3314 was having a valid and subsisting certificate of registration and with full condition to ply on the roads at the time of accident and likewise the person, who was driving 6 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 the vehicle at the time of accident was also having valid and subsisting driving license to drive the vehicle and he was not disqualified to holding or obtain such driving license. The 4th respondent rejects the petitioners claim of Rs.1,00,000/- towards compensation under different heads, since the assessment of claim of the petitioners is without any basis, not tenable under Law and also not binding on the 4th respondent. Even if the policy is proved, the 4th respondent is not liable to indemnify the petitioners, since the policy of insurance is nothing but a contract entered by a competent persons for a lawful object and the same was enforced subject to the terms of conditions stipulated in the said contract and also in accordance with provisions of contract Act and insurance Act and hence, par3ties to the contract of insurance are bound by terms and conditions of the said contract. According to the

Policy’s terms and conditions, the standard procedure is that the damaged vehicle should be inspected by a qualified surveyor approved by I.R.D.A., and he has to assess the loss as per the I.R.D.A., norms and policy conditions and only after deduction of depreciation of the parts on his recommendation, the claim should be decided. But in the present case, the same was not done. Hence, the respondent company specifically denying the claim of the petitioner for Rs.1,00,000/- under different heads and the claim put forth by the petitioner is not tenable in the eye of Law. Whenever the accident took place the vehicle should be inspected by the qualified and approved surveyor by the I.R.D.A., and the damage vehicle also be taken complete photographs of the vehicle

before and after dismantling showing all the damages parts which are

partly and fully damaged and the same must be produced along with claim form before the insurer within stipulated time, but in the present case the petitioner did not follow the procedure as laid down by the concerned act. Therefore, the 4th respondent company is not liable to pay any compensation to the petitioners under the head of own 7 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 damages. The petitioners are not entitled to claim compensation from the two insurances companies for the same cause of action. The 4th respondent seeks protection U/s.170 of M.V. Act. The amount of

Rs.1,00,000/- with interest and costs claimed by the petitioner under different heads is more excessive, exorbitant and exaggerated and the petitioner is not entitled for the same from the 4th respondent. The petitioners are not entitled for any interest from the 4th respondent and the also the rate of interest claimed is not tenable under Law. This

Tribunal has no jurisdiction to entertain the claim petition and the civil court alone is competent to adjudicate the claim petition. Therefore, the 4th respondent prays to dismiss the petition with costs.

7.Basing on the above pleadings, the following issues were framed.

1.Whether the accident took place due to rash and negligent driving of 1st respondent being the driver of Lorry bearing No.CG 7 C 3521 and whether the petitioner is entitled to the receive amount towards damages to her

TATA Indica Car bearing No.AP 35 H 3314 ?

2.Whether the petitioner is entitled for compensation, and if so, at what quantum and what is the liability of the respondents ?

3.To what relief ?

8.The 4th respondent filed additional written statement submitting that the 4threspondent issued Policy bearing

No.1504013111P162595173 to the Car bearing No.AP 35 H 3314 for the period from 19.10.2011 to 18.10.2012 and in the name of

Smt.D.Rooplatha Sharma. The Policy issued by the 4th respondent is only a liability only Policy (Act policy or third party liability policy) and it 8 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 will not cover the own damages of the car and the petitioner did not obtain any comprehensive policy or package policy to cover own damages of the Car. The claim of the petitioners is only for own damages of the Car bearing No.AP 35 H 3314 caused in the alleged accident dated 04.12.2011 and such claim was not covered by the Policy issued by the 4th respondent and hence, the claim was not covered by the Policy issued by the 4th respondent and hence, the claim of the petitioners is liable to be dismissed with costs against the 4th respondent. The petitioners intentionally and willfully added the 4th respondent, though the 4th respondent has no liability whatsoever under the Policy issued by it to the above Car bearing No.AP 35 H 3314.

Hence, the 4th respondent was entitled for compensatory costs as contemplated U/s.172 of M.V. Act. Therefore, the 4th respondent prays to dismiss the petition with costs.

9.On 17.06.2016 a memo was filed by the petitioner not pressing the petition as against the 4th respondent. Hence, the petition was dismissed against the 4th respondent.

10.On behalf of the petitioner, the 2nd petitioner himself examined as P.W.1 and also examined one Patnala Yogeswara Brahmam, in whose garage the petitioner’s damaged car was repaired, as P.W.2, and marked Exs.A.1 to A.4. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked.

11. Heard arguments on both sides.

12. ISSUE NO.1:-

This case is filed claiming compensation for the damage caused to the Car TATA INDICA bearing No.AP 35 H 3314 of the petitioners, due to rash and negligent driving of the Lorry bearing No.CG 9 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 07 C 3521 by the 1st respondent. The 1st petitioner died in this case.

One Dhandu Yadunanda Sharma, who is the husband of the deceased 1st petitioner, is examined as P.W.1. P.W.1 stated in his evidence that he is the husband and the petitioners 3 and 4 are daughters of the deceased

D.Roopalatha Sharma (1st petitioner). His wife filed the above case against the respondents for grant of damages. During the pendency of the matter, his wife died and himself and petitioners 3 and 4 are added as petitioners. On 04.12.2011 at about 12-30 hours, while his wife (1st petitioner) as occupant on her own Car TATA INDICA bearing No.AP 35 H 3314 driven by him in a careful manner at an extreme left, and when they just passed Maddilapalem junction, one Lorry bearing No.CG 07 C 3571 driven by the 1st respondent (driver of Lorry) in a rash and negligent manner without caution or horn proceeding in same direction and dashed right side of the Car. In the result, the Car was badly damaged. His wife (1st petitioner/deceased) got repairs at her Car garage at Vizianagaram and his wife has spent an amount of Rs.50,000/- towards spares and repair charges. His wife suffered a lot of pain and mental agony at the time of accident and during the repair works. His wife spent huge amounts by paying rents to Taxi Cabs for her works.

The 1st respondent is the driver of the crime vehicle and caused accident, the 2nd respondent is the owner of the crime vehicle who insured the vehicle with the 3rd respondent, the 3rd respondent is the insurance company with which the crime vehicle was insured and 4th respondent is the insurer of the damaged vehicle. The above said accident was occurred only due to the rash and negligent driving of the 1st respondent and as such all the respondents are jointly and severally liable to pay the compensation as claimed by the petitioners.

13.P.W.1, who is the husband of the 1st petitioner and owner of the damaged vehicle is admittedly an eye witness, who drove the 10 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 damaged Car at the time of the accident. The accident was occurred due to the negligence of the driver of the Lorry. During the cross- examination of P.W.1, it was elicited that he used to attend the needs of his wife like payment of insurance premium and operating her bank accounts etc. They have taken policy from 4th respondent in respect of the Car bearing No.AP 35 H 3314. Ex.B.1 is the Insurance Policy issued by the 4th respondent issued to the Car. After the accident, they sold their Car bearing No.AP 35 H 3314 for Rs.80,000/-. Ex.B.2 is the copy of

Extract of Form No.24 of B-Register. Ex.B.3 is the photo copy of his driving license extract. His driving license was expired two or three months prior to the accident. He renewed the same only two days after the accident. He denied the suggestion that he is not entitled to drive his motor vehicle without license on public road and as such the accident was occurred due to his negligence. Therefore, I see no reason to disbelieve the evidence of P.W.1 with regard to the manner of the accident.

14.Ex.A.1 is the copy of F.I.R., in Cr.No.384/2011 of

Visakhapatnam III Town Traffic P.S., and Ex.A.2 is the copy of charge sheet. Exs.A.1 and A.2 shows that the investigation conducted by the

Police also discloses that the accident was occurred due to the rash and negligent driving of the Lorry by the 1st respondent. Taking into consideration the undisputed evidence of P.W.1, corroborated by Exs.A.1 and A.2, I have no hesitation to hold that the petitioner has proved the rash and negligent driving of the Lorry by the 1st respondent.

15.On behalf of the respondents, R.Ws.1 and 2 were examined.

R.W.1, who is the Assistant Manager of the 4th respondent Insurance Co.,

Ltd., deposed that the 4th respondent M/s. United India Insurance Co.,

Ltd., issued Policy in the name of the deceased 1st petitioner to the Car 11 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 bearing No.AP 35 H 3314 for the period with effect from 19.10.2011 to 18.10.2012. It is purely an Act policy (covering third party risk liability only). The Policy had not covered the own damages claim of the petitioners i.e., the present claim. The same was also admitted by P.W.1 during the course of his cross-examination. The petitioners are not entitled to invoke the provisions of M.V. Act for own damages claim, since they are not third parties and their claim petition for own damages of the Car bearing No.AP 35 H 3314 is not maintainable before Tribunal.

Hence, the claim petition is liable to be dismissed against the 4th respondent together with compensatory costs as contemplated U/s.172 of M.V. Act. He further deposed that P.W.2 admitted during the course of his cross-examination that his driving license was expired two or three months prior to the accident and it was renewed two days after the accident. So, he was debarred to make a claim against his insurer, since he himself violated the terms and conditions of Ex.B.2 Policy. Hence, he prays to dismiss the claim against the 4th respondent with costs.

16.On behalf of the respondents, they also examined one

S.L.Srinivas, who is the Manager of the 3rd respondent/Insurance

Company, as R.W.2. He submitted in his chief-affidavit that the 3rd respondent company issued policy with terms and conditions to the vehicle Lorry CG 07 C 3521 and the Policy was in force as on the date of accident i.e., 04.12.2011. The said Policy is marked as Ex.B.1. He further submitted that the accident was taken place on 04.12.2011 due to the negligence of the driver of Car TATA INDICA bearing No.AP 35 H 3314 owned by the 1st petitioner and hence, there is no negligence on the part of the driver of Lorry CJ 07 C 3521. Te petitioners failed to prove the damages and loss to their Car AP 35 H 3314 as mentioned in the petition. The procedure is that the damaged vehicle should be inspected by a qualified surveyor approved by I.R.D.A. and he has to 12 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 assess the loss as per the I.R.D.A. norms and policy conditions and only after depreciation of the parts recommendation, the claim should be decided as per the policy conditions. But in the present case, the same was not done. Hence, the claim put forth by the petitioner is not tenable in the eye of Law. Whenever the accident took place the vehicle should be inspected by the qualified and approved surveyor by the I.R.D.A. and the damage vehicle also be taken complete photographs of the vehicle

before and after dismantling showing all the damaged parts which are

partly and fully damaged and the same must be exhibited before the

Court, but in the present case the respondent was not served complete photographs of the damaged parts of the vehicle to assess the damage caused to the vehicle which parts are partly and fully damaged.

Therefore, the 3rd respondent prays to dismiss the petition against the 3rd respondent.

17.Being the M.V. Act is the beneficial legislation, social welfare legislation, benevolent legislation. Burden lies on the Insurance

Company to prove that there is a breach of Policy of conditions, the said ratio was laid down in “ Kamala Mangalal Vayami, Vs. United India

Insurance Company Ltd.,” reported in 2010 ACJ 1441. But the 3rd respondent has failed to prove that there was breach of conditions of insurance policy.

18.As the petitioner not pressed the petition against the 4th respondent and it is the choice of the petitioner to proceed against all or any of the Insurance Companies and the said Dictum was laid in “T.O.

Antony, Vs. Karabaranan & Others”, reported in 2008 ACJ, Page

No.1165. Accordingly, the petitioner has chosen the respondents 1 to 3 and hence, the respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioners.

13 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017

19. Admittedly, the accident was occurred on 04.12.2011.

Ex.B.1 Insurance Policy issued by the 3rd respondent was covered with effect from 19.10.2011 to 18.10.2012. So, the said Policy was in force by the date of the above said accident. Since the petitioners filed a memo dated 17.06.2016, not pressing the petition as against the 4th respondent and accordingly the petition against the 4th respondent was dismissed on the same day, in view of the said memo. Therefore, the respondents 1 to 3 are jointly and severally liable to pay the above said compensation granted by this Tribunal to the petitioners towards damages of their Car. Accordingly, the Point is answered in favour of the petitioner.

20.Issue No.2:- The petitioner claims damages under two heads. Firstly, for transport and maintenance etc., and for damages caused to the Car, and secondly, for compensation for pain and suffering, compensation for loss of earning power and for loss caused to the income of the injured and for continuous disability. To prove the damage caused to the vehicle of the petitioner, the 2nd petitioner examined himself as P.W.1 and he stated that his Car was badly damaged in the accident. He further stated that his wife spent

Rs.60,000/- towards spares and repair charges of Car and also spent

Rs.40,000/- towards the fair charges to other Cards to her work. Though the petitioners claimed Rs.1,00,000/-, they have filed bunch of cash bills for only Rs.56,045/- under Ex.A.4. The petitioners filed Ex.A.3 copy of photos of damaged Car.

21.In corroboration to the evidence of P.W.1, the petitioner also examined one Patnala Yogeswara Brahmam, who is running Motor

Mechanical workshop by name and style of P.Yogeswara Brahmam at 14 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017

Poolbagh Road, Vizianagaram. He further deposed that in the year 2012 one Car bearing No.AP 35 H 3314 brought by D.Yadunanda Sharma in their workshop with badly damaged of Doors, Mud guard, Bumper, side mirrors and other parts were damaged. He did repair work of doors,

Bumper, painting, Tinkering and other works. He issued the bills for

Rs.10,000/- towards painting work, Tinkering for Rs.6,000/- and mechanical works bill for Rs.5,200/- and also P.W.1 purchased some spare parts on his advice. The completion of painting, Tinkering

Mechanical works took nearly one month. Though the petitioners claimed an amount of Rs.1,00,000/- towards damages of the Car, they have filed bunch of cash bills for Rs.56,045/- only under Ex.A.4.

Therefore, the petitioners are entitled for the above said sum of

Rs.56,045/- (Rupees Fifty Six Thousand, and Forty Five only)

towards damages of the Car.

22.Issue No.3 : To what relief?

In the result, the petition is partly allowed against the respondents 1 to 3 granting a total compensation of Rs.56,045/- (Rupees

Fifty Six Thousand, and Forty Five only), together with interest at 9% per annum from the date of petition, i.e., 12.04.2012 till the date of realization.

The petitioners 2 to 4 are also entitled for proportionate costs.

The respondents 1 to 3 are directed to deposit the award amount along with costs and interest thereon as stated above within one month from the date of this Award.

The petitioners 2 to 4 are entitled to withdraw the entire compensation amount of Rs.56,045/- (Rupees Fifty Six Thousand, and

Forty Five only), with accrued interest and costs, after the deposit is 15 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.392/2012 (Damages), Dt.01.03.2017 made. Petition against the 4th respondent is dismissed, as not pressed.

The 1st petitioner died.

Advocate’s fee is fixed at Rs.2,000/- (Rupees Two Thousand only).

Typed to my dictation, corrected and pronounced by me in open Court, this the 01 st day of March, 2017.

Sd/-. G. Srinvas.

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioners:For Respondents:

P.W.1: Dhandu Yadunanda Sharma. R.W.1: V.S.B.Chakravarthy.

P.W.2: Patnala Yogeswara Brahmam. R.W.2: S.L.Srinivas.

Exhibits Marked

For Petitioners:

Ex.A.1: --:True copy of FIR in Crime No.384/2011 U/s.279 IPC of Visakhapatnam III Town Traffic P.S.

Ex.A.2: --:True copy of charge sheet in Crime No.384/2011 U/s.279 IPC of Visakhapatnam III Town Traffic P.S.

Ex.A.3: --:Photos of damaged Car with C.D.

Ex.A.4: -- :Cash Bill issued by the Work Shop for the repair

and

spare parts for Rs.56,045/-.

For Respondents:

Ex.B.1:--:Insurance policy copy.

Ex.B.2:--:Copy of extract of Form No.24 of B-Register.

Ex.B.3:--:Photo copy of driving license extract.

Ex.B.4:--:Policy copy.

Sd/-. G. Srinvas.

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

THE MOTOR ACCIDENTS CLAIMS TRIBUNAL (DISTRICT JUDGE),

VIZIANAGARAM

Present: Sri G.Srinivas, Chairman (District Judge), Motor Accidents Claims Tribunal, Vizianagaram.

Saturday, this the 25th day of February, 2017

M.V.O.P.No.368/2014

Between:

Somadula Srinu @ Seethayya, S/o Bangarayya, Aged 30 years, Rickshaw Puller, Residing at Bit No.1, Poolbagh Colony, Vizianagaram. …Petitioner. A n d:

1. Dabbada Srinivasa Rao, S/o Ravana, Aged 30 years, Driver of Lorry bearing No.AP 31 W 8984, D.No.27-6-26/1, Kapu Veedhi, Dasannapeta, Vizianagaram.

2. D.Appala Naidu, S/o Asirappadu, Aged 45 years, Owner f the Lorry bearing No.AP 31 W 8984, D.No.27-4-18, Althi Veedhi, Dasannapeta, Vizianagaram.

3. The Oriental Insurance Co., Ltd., represented by its Divisional Manager, Visakhapatnam. … Respondents.

This petition coming on 21.02.2017 for final hearing before me in the presence of Sri K.Phalguna Rao and Sri M.Yogeswara Rao,

Advocates for petitioner, and of Sri T.Ravi, Advocate for respondents 1 and 2, and of Smt.Y.Kameswari, Advocate for the 3rd respondent, and having stood over for consideration till this day, this Tribunal passed the following:-

O R D E R

This is a petition filed by the petitioner under Sec.166 of the

M.V.Act, r/w. Rule 455 of A.P. M.V. Rules, claiming compensation of

Rs.12,00,000/- on account of the injuries received by the petitioner in a motor accident that occurred on 09-07-2013 at about 4-30 pm., at

Poolbagh, near Premasamajam, Vizianagaram.

2. The brief averments of the petition are as follows:- 2 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

On 09.07.2013 at about 4-30 p.m., the petitioner and his brother while coming from Phoolbaugh Colony to purchase chicken near Prema

Samajam, the crime vehicle bearing No.AP 31 W 8984 going from

Vizianagaram to Nellimarla with high speed and in rash and negligent manner and without blowing horn driven by the 1st respondent dashed against the petitioner and the tyre of the crime vehicle ran over the left leg of the petitioner and the petitioner thereby received very serious crush injury lost his consciousness, then his brother Telephoned to 108 and the petitioner shifted to M.R. Head Quarters Hospital, Vizianagaram, where he was treated for about one month as inpatient and operation was conducted amputated and removed the left leg. Subsequently he was discharged and the petitioner became permanent disabled. The accident was occurred only due to rash and negligent of the 1st respondent. The petitioner was operated by Dr.K.V. Murali Mohana Rao still the petitioner is using medicines as an outpatient, the Doctors advised complete rest and using medicines. The petitioner is not able to do any work now. Due to the accident, the petitioner sent many sleepless nights and faced much pain and suffering. He deprived the income through his profession. He is quite hale and healthy prior to the accident. The petitioner used to pulling a Rickshaw, thereby he used to get Rs..250/- per day i.e., Rs.7,500/- per month. Due to the accident, he could not do any work now. The S.H.O., Traffic Police Station,

Vizianagaram registered a Crime No.145/13 U/s.338 of IPC against the 1st respondent and the same is still pending before the Additional Judicial I

Class Magistrate Court, Vizianagaram. The petitioner is claiming

Rs.50,000/- as compensation for medicines, treatment, transport to hospital and extra-nourishment, an amount of Rs.2,00,000/- for pain and suffering and Rs.9,50,000/- towards continuing permanent disability, for loss of work and earning power. So, the petitioner claiming total amount of Rs.12,00,000/- towards compensation, against the respondents 1 to 3, 3 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 being the driver, owner and insurer of the crime vehicle. Hence, the respondents 1 to 3 are jointly and severally liable to pay the above compensation to the petitioner.

3.The 1st respondent filed written statement, denying all the material allegations in the petition and the 2nd respondent filed a memo adopting the written statement filed by the 1st respondent. The 1st respondent submitted that the petitioner is put to strict proof of the averments with regard to the accident, his hospitalization and the treatment received and the expenditure incurred thereon. The 1st respondent further submitted that the petitioner lodged a false report against the 1st respondent alleging rash and negligent driving on the part of the 1st respondent, which is absolutely incorrect and far from truth. The 1st respondent was driving the Lorry at the relevant point of time in a most careful and cautious manner and there was no scope for the 1st respondent to drive the Lorry in the manner as narrated by the petitioner in the petition. There is no truth or bona fides in the contention of the petitioner. The petition is not maintainable either on facts or under Law and there is no cause of action to file the petition.

The amount claimed under different heads is absolutely not true and correct and they are highly exaggerated and are mentioned only to extract money and to have wrongful gain. However, the Policy as mentioned in the petition with the 3rd respondent was subsisting and was in force as such, the liability if any is to be shouldered by the 3rd respondent. Therefore, the 1st respondent prays to dismiss the petition with costs.

4.The 3rd respondent Insurance company filed the counter, denying the allegations in the petition. The 3rd respondent further denied the age, income and health condition of the petitioner at the 4 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 time of accident. The 3rd respondent submits that after the so-called accident, the police Investigating Officer did not furnish any documents regarding the accident to the insurance company as per the provisions of Sec.158 (6) of M.V. Act. Therefore, it is clear violation. Hence, the 3rd respondent is not liable to pay any compensation to the petitioner, as per the Judgment of the Hon’ble Supreme Court of India. The alleged claim is not within the ambit and purview of Sec.142 of M.V. Act, 1988.

The 3rd respondent seeks protection U/s.147 and 149 of M.V. Act. As per the Sec.134(c) of M.V. Act, 1988, it is a mandatory duty of the owner herein to furnish the par3ticulars of the policy, date, time and place of accident, particulars of injured and name of driver of offending vehicle and par3ticulars of driving license of 1st respondent, but 2nd respondent is not complied with mandatory provisions of M.V. Act. Hence, the 3rd respondent is not liable to pay any compensation to the petitioner and case is liable to be dismissed against the 3rd respondent for non- compliance of mandatory provisions. The 3rd respondent seeks protection U/s.170 of M.V. Act. The petitioner is not entitled to 12% of interest from the date of petition. If at all entitled he is entitled for interest at 5% p.a., as per the decision of the Hon’ble Supreme Court of

India. The compensation claimed by the petitioner is highly estimated and is highly excessive and exorbitant. Therefore, the 3rd respondent prays to dismiss the petition with costs.

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

1.Whether the accident took place due to rash and negligent driving of 1st respondent- driver of Lorry bearing No.AP 31 W 8984 ?

2.Whether the 1st respondent driver was not having valid driving license as on the date of accident ?

5 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

3. Whether the petitioner is entitled for compensation, and if so, at what amount ?

4.To what relief ?

6.On behalf of the petitioner, the petitioner himself examined as P.W.1 and also examined the Doctor, who treated the petitioner, as

P.W.2. and Exs.A.1 to A.5 and Exs.X.1 to X.4 were marked. On behalf of the respondents, R.Ws.1 to 5 were examined and Exs.B.1 to B.4 were marked.

7. Heard arguments on both sides. The learned counsel for the 3rd respondent filed the written arguments.

8. ISSUE NOs.1 & 2:-

The 3rd respondent got examined R.W.1, who is the Assistant

Manager of Oriental Insurance Company, as R.W.1. He stated in his evidence that by the time of the accident, the Policy was in force to the crime vehicle and as per Ex.A.3 copy of the Motor Vehicles Inspector’s

Report, the 1st respondent was having valid license, which is valid upto 15.10.2013.

9.The 3rd respondent also got examined the Junior Assistant of

R.T.A. Office, as R.W.2 and he stated in his evidence that as per the entry appearing in Ex.A.3 copy of M.V. Inspector’s report, the 1st respondent was having license to drive the motor vehicle (H.G.V., and H.P.V. and

M.T.L.) apart from light motor vehicle and motor cycle with gear and the said license was valid upto 15.10.2013. As per the said M.V. Inspector’s report, the driver was having valid driving license.

6 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 10.The 1st respondent himself was examined as R.W.3 and he stated in his evidence that he obtained the Light Motor Vehicles License in the year 2008 and he also obtained heavy goods vehicle license on 03.07.2010 and the license came into effect from 03.07.2010 and it is valid upto October, 2013.

11.The respondents 1 and 2 got examined the Motor Vehicles

Inspector of Vizianagaram, as R.W.4 and he stated that the driving license under the cover of Ex.B.3 to the 1st respondent is valid upto 15.10.2013 and the said driving license was issued on 03.07.2010 under

D.L.No.DLEAP035114272010 for Heavy Goods Vehicle and the same was issued by their Office authorities and even as per Ex.B.4 also, it was obtained under Right to Information Act also, the said Driving License is valid upto 15.10.2013.

12.The 2nd respondent himself examined as R.W.5 and he stated in his evidence that about 4 to 5 years back, the 1st respondent joined under him and the 1st respondent had valid driving license, by the time of the accident, as such he permitted the 1st respondent to work as driver under him and the 1st respondent got Heavy Goods License and the said accident was occurred on 09.07.2013 and the 1st respondent got the driving license upto 15.10.2013.

Hence, as per the above evidence of the 3rd respondent

Company, it appears that the 1st respondent is not having driving license by the time of the accident i.e., on 09.07.2013, as the driving license was originally applied by the 1st respondent on 03.07.2010 and in fact, the same was existing for a period of three years i.e., it should be expired on 02.07.2010 itself. Whereas, on perusal of Exs.B.3 and B.4 and other documents and the evidence of Officials of the Insurance

Company, it clinchingly establishes that the driving license of the 1st respondent was in force by the time of the accident. Hence, the 3rd 7 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 respondent is also jointly and severally liable to pay the compensation to the petitioner. Accordingly, Issues 1 and 2 are answered.

13. ISSUE NO.3:-

To prove the bonafides, the petitioner himself was examined as P.W.1 and got marked Exs.A.1 to A.5 and Exs.X.1 to X.4 on his behalf.

His evidence is nothing but replica of the averments of his petition.

14.The contention of the petitioner is that on 09.07.2013 at about 4-30 p.m., himself and his brother, while coming from their house i.e., Poolbagh Colony to purchase chicken near Prema Samajam, the 1st respondent drove the vehicle bearing No.AP 31 W 8984 going from

Vizianagaram to Nellimarla with high speed and in a rash and negligent manner without blowing horn, driven by the 1st respondent and dashed against him and the tire of Crime vehicle ran over his left leg and thereby, he received serious crush injury on his left leg and some injuries on the parts of his body and immediately he lost his conscious.

Then his brother telephoned to 108 Ambulance and he was shifted to

M.R. Headquarters Hospital, Vizianagaram, where he was treated above one month as inpatient and operation was conducted and removed his left leg (amputated his left leg). Subsequently, he was discharged and he became permanent disabled. The accident was occurred only due to rash and negligent driving of the 1st respondent. The operation was conducted to him by Dr.K.V. Murali Mohana Rao, M.R. Hospital,

Vizianagaram. Still he is using medicines as an outpatient. Due to his disability, he is not able to do any work, since the date of accident. Due to the accident, he spent many sleepless nights and faced much financial suffering. He deprived the income through his profession i.e.,

Rickshaw Pulling. He was quite very hale and healthy prior to the accident. The petitioner spent Rs.50,000/- towards his treatment, 8 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 medicines etc., nourishment, operation and transport and etc. He used to do work by pulling a Rickshaw every day, thereby used to get minimum earn of Rs.250/- per day i.e., Rs.7,500/- per month, but due to the accident, be he came 100% disabled, hence he could not do any work, since the date of accident. The Traffic Police, Vizianagaram registered a Crime No.145/2013 U/s.338 of IPC against the 1st respondent and the charge sheet is also filed against the 1st respondent and the same is also pending before the Additional Judicial I Class

Magistrate, Vizianagaram. Therefore, he is claiming a total

compensation of Rs.12,00,000/- under various heads, against the driver, owner and insurer of the crime vehicle and hence, all the respondents are jointly and severally liable to pay the compensation to him.

15.The petitioner is contending that prior to the accident, he used to do work by pulling a Rickshaw every day, thereby he used to get minimum earn of Rs.250/- per day i.e., Rs.7,500/- per month. This Court cannot expect any documentary proof from a Rickshaw Puller and as such, this Court is considering the income of the petitioner @ Rs.5,000/- per month, which comes to Rs.60,000/- per annum. As per the wound certificate, the petitioner is aged about 20 years by the time of the accident.

16.The petitioner got examined Dr.K.V.Murali Mohan, Civil

Surgeon Specialist in M.R. Government Headquarters Hospital,

Vizianagaram, as P.W.2. P.W.2 stated in his evidence that the petitioner was admitted in M.R. Government Headquarters Hospital, Vizianagaram on 19.08.2013 for injuries sustained in a road traffic accident. He was discharged on 19.08.2013. Ex.X.1 is the case sheet. The petitioner got traumatic amputation of left leg upto below knee joint. Blood transfusion was given and revision amputation was done on 06.08.2013.

9 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

On 03.10.2015, the petitioner again appeared before the Medical Board, in which he is one of the members for assessment of disability. After clinically examining the petitioner, he found that the petitioner’s left lower limb was amputated above knee and he assessed the disability at 80% which is partial and permanent with reference to particular limb.

Ex.A.5 is the disability certificate issued by him. The petitioner cannot walk without help of any aid.

17.Ex.A.5 disability certificate issued by the Medical Board of

District Headquarters Hospital, Vizianagaram and as such, the said document can be considered as per the observations which is reported in 2012 ACJ, 1847, in between “Parsanni, Vs. Sube Singh &

Another”. In it, his Lordship observed that :

“Documents maintained in government hospitals require no more proof and copy duly authenticated under the seal of hospital should be received as public documents satisfying the requirements under section 76 of the Evidence Act.” 18.As per Ex.P.2 attested true copy of wound certificate, the petitioner’s left leg totally amputated, tibia and fibula below the knee joint, which is grievous in nature, and the Doctor opined that it might have been caused by blunt force.

19.As this Court is taking the income of the petitioner @

Rs.5,000/- per month, the calculation comes to Rs.5,000/- x 12 =

Rs.60,000/- per annum. At the time of the accident, as per the wound certificate, i.e., under the cover of Ex.A.2, the petitioner is aged about 20 years, whereas, from Ex.A.5 disability certificate, it appears that the petitioner is about 22 years. Hence this Court is considering the age of 10 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 the petitioner as 22 years and hence, the relevant multiplier applicable to the petitioner is “18” (Eighteen), for the age group between 21 to 25, as per the observations of “Smt.Sarla Verma’s Case”. Hence, the calculation of compensation comes to Rs.60,000/- x 18 = Rs.10,80,000/-.

As per the Doctor-P.W.2, as well as Ex.A.5 disability certificate, the petitioner is suffering with 80% of the permanent partial disability with regard to particular limb, he is entitled to 80%, from out of above calculation amount of Rs.10,80,000/-, which comes to Rs.8,64,000/- (Rupees Eight Lakhs and Sixty Four Thousand only), (10,80,000/- x 80/100) and this Court is awarding the same to the petitioner towards compensation for loss to the left leg above the knee. This Court is also granting an amount of Rs.1,00,000/- (Rupees One Lakh only) towards medical expenses to the petitioner. This Court is granting an amount of Rs.1,00,000/- (Rupees One Lakh only) towards pain and suffering, Rs.50,000/- (Rupees Fifty Thousand only) towards transport and conveyance charges, Rs.50,000/- (Rupees Fifty

Thousand only) towards extra-nourishment and special diet. Apart from that, this Court is also granting an amount of Rs.36,000/- (Rupees Thirty Six Thousand only) towards loss of amenities in life to the petitioner, as per the observations in 2014(2) SCJ 753 (D.B.), in between “Sanjay Kumar Vs. Ashok Kumar & Another”..

In toto, the petitioner is entitled to an amount of

Rs.12,00,000/- (Rupees Twelve Lakhs only), which is payable by the respondents 1 to 3 jointly and severally. Accordingly, this Issue is answered.

20.This Tribunal is also relying upon the following dictums while awarding the above said compensation:

11 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

1.“B.Sivaleela Vs. National Insurance Company Limited” in MACMA No.181/2005 on the file of Hon’ble High Court of Judicature of Andhra Pradesh at Hyderabad, their Lordships observed that:

“In a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainly as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient.

There can be no exact uniform rule in measuring the value of the human life or limb or the sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. The assessment of damages has never been exact science and it is essentially practicable. To compensate in money for pain and for consequences is invariably difficult without some guess work, some kind of hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with obstructive standard. Thus, in most of the case involving Motor

Accidents by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants, care, guidance, love and affection especially of the minor children, consortium to the souse, expenditure incurred in transport and funerals, etc, and in case of injured from the nature of injuries, pain and sufferance, loss of earnings, particularly for any disability and also probable 12 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 expenditure that has to be incurred from nature of injuries and nature of treatment required.”

The same principle was reiterated by their Lordships in MACMA

No.1474/2011 dated 03.01.2014 so also in MACMA No.604/2012 dated 04.01.2014 by the Hon’ble High Court of A.P.

2. In “Ramachandrappa Vs., Manager, Royal Sundaram

Alliance Insurance Co., Ltd” reported in 2011(6)ALD 75 (SC) wherein their Lordships held that :

“Tribunals are expected to make an award determining the amount of compensation which should appear to be just and fair and proper.”

3. In “National Insurance Co., Ltd., Vs., Manjula Ben

Batuk bai magatpara & Ors”reported in 2015STPL (web) 640

Gujarath wherein their Lordships held that :

“Just & reasonable compensation should be awarded.”

4.2012 (5) ALD 125 in between“Fatima begum & others

Vs., Sangamesh Chidri & another”,wherein it was held that :

“Quantum of the compensation must be just and reasonable irrespective of the claim made by the claimant. The Court is not supposed to restrict the compensation to the claim made in claim petition, even though it exceeds the claim actually made in claim petition.”

5. 2011 (2) ALD 763 in between “K.Raghu Babu Vs.

C.Veera Sekhar and others”, wherein it was held that :

“Tribunals while dealing with applications file by injured or dependents of deceased in motor accident, should adopt a pragmatic approach, depending upon facts and circumstances and evidence, both oral and documentary, available on record, in each case, while granting 13 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 compensation. Tribunals are expected to award “Just compensation”.

“Physical disability, suffered by a victim in a motor vehicle accident, cannot adequately be measured and compensated in monetary terms.

However, disability, which carries all through the life of claimant can, at best, be solaced to a limited extent by awarding “just compensation”, so as to give moral boost to, and to instill confidence in, claimant to lead rest of live with some sort of satisfaction.”

6. In “Sr. D.M., New India Assurance Co., Ltd., Hyderabad

Vs., Surya Pratap Singh and others”reported in 2010(6)ALD 586 wherein their

Lordships held that :

“Even though no amount of compensation has been specifically claimed in Sec.166 by claimants, it is obligatory on the part of the tribunal to grant compensation, which is just and reasonable.”

7. 2004 ACJ 1 “National Insurance Company Limited Vs.

Swaran Singh and others” wherein their Lordships held that :

“Motor Vehicles Act is a SOCIAL WELFARE legislation to extend relief by way of compensation to victims of accidents caused by use of motor vehicles and provisions of the Act have to be interpreted so as to effectuate this object. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third parties.”

8. The Motor Vehicles Act is a Benevolent Legislation.

While interpreting the provisions of the Benevolent Act, where two views are possible, the view favourable to the 14 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017 persons for whose benefit, the Act is enacted has to be taken into consideration to achieve the real object. The ratio was laid down by their lordships which is reported in

2015 ACJ 2232 in between “K.Vara Lakshmi and

others Vs. United India Insurance Company

Limited.” 21.ISSUE NO.4:- IN THE RESULT, the petition is allowed against the respondents 1 to 3, awarding compensation of

Rs.12,00,000/- (Rupees Twelve Lakhs only) with interest at 9% p.a., from the date of filing of the petition ie., 19-05-2014 till the date of realization.

The respondents 1 to 3 are hereby directed to deposit the compensation amount of Rs.12,00,000/- along with costs and interest thereon as stated above within ONE MONTH from the date of this award.

On deposit of the said compensation amount, the Petitioner is permitted to withdraw an amount of Rs.6,00,000/- (Rupees Six

Lakhs only) with costs and interest as stated above forthwith and his remaining compensation amount of Rs.6,00,000/- (Rupees Six Lakhs only) shall be kept in a fixed deposit for a period of three years in any

Nationalized Bank.

Advocate’s fee is fixed at Rs.2,000/-(Rupees Two thousand only).

Typed to my dictation, corrected and pronounced by me in open Court, this the 25 th day of February, 2017.

Sd/-.G. Srinivas.

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner:For Respondents:

15 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

P.W.1: Somadula Srinu @ Seethayya. R.W.1: I.V.Sridhar (Asst.,

Manager).

P.W.2: Dr.K.V. Murali Mohan R.W.2: G.Ratna Babu (Jr., Asst.,).

(Civil Asst., Surgeon). R.W.3: Dabbada Srinivasa Rao.

R.W.4: M.Murali Krishna.

R.W.5: Dabbada Appalanaidu.

Exhibits Marked

For Petitioners:

Ex.A.1: --:Attested true copy of FIR in Crime No.145/2013 U/s.338 IPC of Vizianagaram Traffic P.S.

Ex.A.2: 26.08.2013:Attested true copy of wound certificate.

Ex.A.3: --:Attested true copy of M.V. Inspector’s report.

Ex.A.4: -- :Attested true copy of Charge sheet in Cr.No.145/2013 U/s.338 of IPC of Vizianagaram Traffic P.S.

Ex.A.5: 03.10.2015 :Attested true copy of disability certificate issued by the District Medical Board, M.R. Headquarters Hospital, Vizianagaram.

Ex.X.1:--:Case Sheet.

Ex.X.2:--:Authorization letter.

Ex.X.3:--:Driving license extract.

Ex.X.4:--:Extract of vehicle bearing No.AP 31 W 8984 (Form-B Register).

For Respondents:

Ex.B.1:--:Insurance policy copy.

Ex.B.2:--:Driving license of 1st respondent.

Ex.B.3:--:Xerox copy of driving license of R.W.3.

Ex.B.4:--:Downloaded copy of driving license of R.W.3.

Sd/-.G. Srinivas.

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

16 M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.368/2014 (Injuries), Dt.25.02.2017

IN THE COURT PRINCIPAL DISTRICT JUDGE, VIZIANAGARAM

Present: Sri G.Srinivas,

Principal District Judge,

Vizianagaram.

Tuesday, this the 01st day of March, 2017

Original Suit No.7/2015

Between:

1) Maddala Venkata Satyanarayana (Died).

2) Maddala Venkata Ramjee, S/o late Venkata Satyanarayasnas, Aged about 64 years, Hindu, Business, Residing at Door No.7/32, Prabhat Nagar, Gopalaspatnam, Visakhapatnam.

3) Smt.Undralla Venkata Lakshmi, W/o U.V. Apparao, Aged about 62 years, Hindu, Residing at Phoolbagh Road, Vizianagaram.

4) Smt. Indupuri Krishna Veni, w/o Krishna, Aged about 58 years, Hindu, Residing at Near Yerukumamba Temple, Akkayyapalem, Visakhapatnam.

5) Maddala Venkata Harinadh, S/o late Venkata Satyanarayana, Aged about 55 years, Hindu, Business, Residing at Door No.7/32, Prabhat Nagar, Gopalapatnam, Visakhapatnam.

6) Maddala Venkata Vara Prasad, S/o late Venkata Satyanarayana, Aged about 53 years, Hindu, Business, rest –do-.

7) Maddala Venkata Sudhakar, S/o late Venkata Satyanarayana, Aged about 52 years, Hindu, Business, rest –do-.

(Plaintiffs 2 to 7 are added as Legal Heirs of the deceased 1st plaintiff as per orders of this Court in I.A.No.1430/2016 dated 28.09.2016).

…Plaintiffs. A n d:

1) Vanapalli Venkata Rao, S/o Late Suryanarayana, Managing Director, Bommarillu Farms and Villas India Limited, Residing at Door No.48-14-10, Vijayasree Building, Rama Talkies Road, Besides Reliance Jewellery Shop, Visakhapatnam.

2) Bommarillu Farms and Villas India Limited, Represented by its Managing Director Vanapalli Venkata Rao, S/o Late Suryanarayana, Residing at Door No.48-14-110, Vijayasree Building, Rama Talkies Road, Besides Reliance Jewellery Shop, Visakhapatnam.

3) Smt. Maddala Padma, W/o late Viswanath, Aged about 50 years, Hindu, Business, R/o Murali Engineering Industries, Near Yerukumamba Temple, Akkayyapalem, Visakhapatnam.

4) Smt. Obbilisetty Haritha, W/o Durga Prasad, Aged about 28 years, Hindu, Rest –do-.

5) Maddala Anil, S/o late Viswanath, Aged about 26 years, Hindu, Business, Rest –do-.

(Defendants 3 to 5 are added as Legal Heirs of the deceased 1st plaintiff as per orders of the Hon’ble Court in I.A.No.1430/2016,

dated 28.09.2016).

… Defendants.

2

District Court, Vizianagaram. O.S.No.7/2015, dt.01.03.2017 This suit coming on 27.02.2017 for final hearing before me in the presence of Sri I.Suresh, Advocate for the plaintiffs and since the defendants 1 and 2 having been remained exparte, and the defendants 3 to 5 reported no written statement, and having stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.The plaintiff filed this suit for passing preliminary decree to recover a sum of Rs.54,90,000/-, together with subsequent interest @ 24% p.a., on the principal amount of Rs.45,00,000/- from the date of the suit till the date of realization from the defendants, and in case the defendants fail to pay the said amount and committed default, sale of the mortgage property as mentioned in the schedule, towards the amount due under the decree, and if such sale proceeds are not sufficient to meet the decretal amount with subsequent interest and costs, then liberty be given to the plaintiffs to recover the balance amount against the other properties of the defendants and for costs of the suit.

2.The original Mortgager i.e., the 1st plaintiff died prior to the filing of the suit. Hence, the plaintiffs 2 to 7 and the defendants 3 to 5 are being the Class-I legal heirs of the deceased original mortgager i.e., the 1st plaintiff, they have to file the consolidated suit against the defendants 1 and 2. As the defendants 3 to 5 have not come forward along with the plaintiffs 2 to 7 to file consolidated suit against the defendants 1 and 2, some of the legal representatives of the deceased original mortgager were shown as the defendants 3 to 5 by the plaintiffs 2 to 7. Hence, the relief, if any must be granted in favour of the plaintiffs 2 to 7, defendants 3 to 5.

3. The brief facts of the plaintiffs’ case, as stated in the plaint, are that the 1st defendant is the Managing Director of the 2nd defendant firm and the 1st defendant for the purpose of development of the business i.e., Bommarillu Farms and Villas India Limited (2nd defendant) borrowed a sum of Rs.45,00,000/- from the deceased 1st plaintiff on 3

District Court, Vizianagaram. O.S.No.7/2015, dt.01.03.2017 28.12.2013 agreeing to repay the same with interest @ 24% p.a., to the deceased 1st plaintiff or his order on demand and executed an on demand promissory note on a Non-Judicial Stamp paper for the said sum on the said date. At the time of execution of the promissory note, the deceased 1st plaintiff also requested the 1st defendant to give some security for the said amount on which the defendants 1 and 2 agreed and deposited the original sale deed dated 16.06.2012 bearing

Document No.3245/2012 of Sub-Registrar Office, Bhogapuram in the name of the 2nd defendant. In confirmation of the same, the 1st defendant also executed a memorandum of mortgage by deposit of title deeds in favour of the deceased 1st plaintiff on the same day i.e., dated 28.12.2013 with an intention to create an equitable mortgage. The 2nd defendant firm is being represented by its Managing Director, the 1st defendant, and in such capacity the 1st defendant executed the suit promissory note and the above said memorandum of mortgage by deposit of title deeds and created an equitable mortgage in favour of the deceased 1st plaintiff regarding the plaint schedule property. There is no dispute or it cannot be disputed that the 1st defendant is the Managing

Director of the 2nd defendant firm and having every right to borrow and create mortgages. Thus, the 1st defendant created an equitable mortgage in favour of the deceased 1st plaintiff for the above loan transaction lawfully. The defendants 1 and 2 failed to pay the amount till now in spite of requests and reminders though agreed to pay the same, but postponing the same without payment. As there is no response from the defendants 1 and 2, the deceased 1st plaintiff is forced to file this suit for recovery of the amount. Hence, this suit is filed for recovery of a sum of Rs.54,90,000/- with subsequent interest @ 24% p.a., on Rs.45,00,000/- and costs of the suit.

4.The defendants 1 and 2 were set exparte as they failed to appear before the Court, even though publication was issued in the

Eenadu daily paper against the defendants 1 and 2. The defendants 3 4

District Court, Vizianagaram. O.S.No.7/2015, dt.01.03.2017 to 5 filed a memo dated 30.01.2017 reporting no written statement, since no relief is claimed against them and further plaintiffs prayed for decree along with the defendants 3 to 5 also.

5. In support of its case, the 6th plaintiff examined himself as

P.W.1 and also examined P.Ws.2 and 3 and got marked Exs.A.1 to A.3.

6. Heard the counsel for the plaintiffs.

7. The 6th plaintiff filed an affidavit in lieu of chief-examination, reiterating what all stated by him in the plaint. On behalf of the plaintiff, the plaintiff also examined P.Ws.2 and 3. P.W.2, who is one of the attestors of both the promissory note and also to the Memorandum of

Mortgage by deposit of title deeds, also supported the case of the plaintiff. The plaintiff also examined P.W.3, who prepared both the documents i.e., promissory note and Memorandum of Mortgage by deposit of title deeds, who also supported the case of the plaintiff. The plaintiff also marked Exs.A.1 to A.3. As seen from Ex.A.1, it is obviously clear that the 1st defendant mortgaged the schedule property to the 1st plaintiff by executing a registered simple mortgage dated 28.12.2013 and borrowed Rs.45,00,000/- and on demand by the plaintiffs to the defendants 1 and 2 to pay the amount due under the mortgage, the defendants 1 and 2 failed to repay the same to the plaintiffs. As the amount was not repaid, the plaintiffs filed this suit.

8.By examining the 6th plaintiff himself as P.W.1 and also by examining P.Ws.2 and 3 and by marking Exs.A.1 to A.3, the plaintiff proved the suit claim.

9.In the result, the suit is decreed in favour of the plaintiffs 2 to 7, the defendants 3 to 5, against the defendants 1 and 2 for

Rs.54,90,000/- (Rupees Fifty Four Lakhs and Ninety Thousand only) together with interest @ 24% p.a., from the date of the suit till the date of the decree and thereafter, @ 12% p.a., till realization on the principal sum of Rs.45,00,000/-. Three months time is granted to the defendants 5

District Court, Vizianagaram. O.S.No.7/2015, dt.01.03.2017 1 and 2 for redemption and the Office is directed to prepare a preliminary decree accordingly. The plaintiff is also entitled for costs.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 01st day of March, 2017.

Sd/-. G. Srinivas.

District Judge,

Vizianagaram. Appendix of Evidence

Witnesses Examined

For Plaintiffs:-For Defendants:-

P.W.1 : Maddala Venkata Vara Prasad. - N O N E -

P.W.2 : Bonka Eswara Rao.

P.W.3 : Indupuri Jaya Krishna.

Exhibits Marked For Plaintiff:-

Ex.A.1 : Promissory note, dt.28.12.2013 for Rs.45,00,000/- executed by the 1st defendant in favour of the plaintiff.

Ex.A.2 : Promissory note, dt.28.04.2012 for Rs.5,00,000/- executed by the defendant in favour of the plaintiff.

Ex.A.3 : Copy of private complaint filed by the plaintiff against the defendant for the offence U/s.138 of N.I. Act, on the file of the Additional Judicial

Magistrate of I Class, Vizianagaram.

For Defendant:- -N I L -

Sd/-. G. Srinivas.

District Judge,

Vizianagaram.