Smt. G. Sunitha Ravindra Reddy

IN THE COURT OF IX ADDITIONAL CHIEF JUDGE CITY CIVIL COURT

AT: HYDERABAD.

Monday, this the 17 thday of April, 2023

Present : Smt. G. Sunitha Ravindra Reddy IX Addl. Chief Judge,CCC,Hyderabad

M.V.O.P.No. 2761 OF 2016

Between :

1. U. Shailaja @ K. shailaja W/o. Late Sai Kumar @ ai Kiran, aged 20 years, occ: Household

2. K. Ashok s/o. Manik, aged 50 years, Occ: Nil

3. U. Rithik W/o. Late Sai Kumar @ Sai Kiran, aged 1 ½ years, Occ: Nil (petitioner No.3 b eing minor represented though his natural mother and next best friend the petitioner No.1 herein) all are residents of H.No.2-39, Amdoor, Chintalacheruvu, Jinnaram Mandal, Medak District, presently residents of H.No.3-1-125/12, Ashoknagar, Hyderabad. Petitioner No.3 impleaded and amended as per order passed in IA No.2197/2018 dt.11-1-2019.

.... Petitioners

A N D

1. H. Srinivas Reddy, S/o. Prathap Reddy, aged major, Occ: Business, H.No.7-198, JP Colony, Patencheru, Medak District. (Owner of trailor lorry bearing No.AP-31TB-9595)

2. HDFC ERGO General Insurance Company Limited, rep.by its Divisional Manager, 2nd floor, 6-3- 346/1, opp: Jalagam Vengal Rao Park, road No.1, Banjara Hills, Hyderabad, Andhra Pradesh. (Policy No.2317201388213900000 valid from 04-05-2016 to 03-05-2017)

3. Y. Srinivasa ao S/o. Pothu Raju, aged Major, Occ: Driver of crime lorry, R/o.D.No.1-25, Kothapet, Kanchikacherla, Krishna District (Driver of the trolley lorry bearing No.AP-31TB-9595) … Respondents This petition is coming before me for final hearing in the presence of

Sri K. Jagathapal Reddy, Learned counsel for the petitioner and Sri B. Papa Reddy, Learned counsel for the respondent No.2 and respondents No.1 and 3 remained exparte and the matter having been stood over for consideration till this day, this Court delivered the following:

Page 2 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

: O R D E R :

1. The petitioners filed this claim petition seeking compensation of Rs.20,00,000/- with interest at 24% per annum under Section 166 of M.V.Act, 1988 and rule 455 of M.V.Rules r/w

Section 140 of MV Act, 1989 for the death of deceased U. Sai Kumar in a motor vehicle accident said to have occurred on 08-09-2016 at about 1.40 A.M at Pocharam X roads.

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

On 31-08-2019 at about 4.30 P.M, the deceased U. Sai Kumar along with his friend

Balachander were proceeding from Muthangi side towards R.C.Puram side slowly on the extreme left side of the road on his motor cycle bearing No.TS-15 EL-1549 and when they reached at

Pocharam ‘X’ roads in the limits of Patancheru on national highway No.65, at the material time the driver of trailer lorry bearing No. AP 31TB 9595 drove the lorry in high speed and negligent manner without showing any indicators and while taking u-turn at Pocharam X roads dashed the motor cycle of the deceased. Due to the sudden death of the deceased Sai Kumar along with his friend fell down and sustained fatal injuries on head and all over the body. While shifting the deceased to hospital, on the way he succumbed to injuries. The rider of the deceased was declared as brought dead. The police Patancheru registered a case in Crime No.422/2016 under Section 304-

A of IPC. At the time of accident, the deceased was 25 years, hale, healthy, young and energetic.

The deceased Sai Kumar was working as Laethe Machine Worker at Neelam Nali, Bidar Karnataka

State and used to draw salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. The deceased was in prime earning age and would have earned atleast for another 45 to 50 years. Due to the death of the deceased, the petitioners who are totally dependent on the income of the deceased had become destitute as her bread winner and life supporter died in the accident. At the time of accident, the deceased was married. The wife of deceased had spent more than a sum of Rs.40,000/- for the cremation and obsequies expenses and claiming compensation of Rs.20,00,000/- on all counts which includes the amount payable under no fault liability under Section 140 of M.V.Act. The respondent No.1 being owner, respondent No.2

Page 3 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad being insurer and respondent No.3 being driver of the offending vehicle are jointly and severally liable to pay compensation amount of Rs.20,00,000/- with interest @24 per annum from the date of filing the petition till the date of realization in favour of petitioner.

3. On receipt of notice, the respondent No.2 filed counter and additional counter that the petition is not maintainable. The petitioner is put to strict proof of the manner of accident, the involvement of the vehicle, ownership of the offending vehicle, age, occupation and income of the deceased. It is denied that the driver of the trailer lorry bearing No. A.P-31TB 9595 was not possessing a driving license as on the date of accident. The respondent No.1 had handed over the vehicle willfully and knowingly that the driver of the lorry vehicle had not possessed a driving license as on the date of accident. The respondent No.1 had been shown as owner of truck bearing

No. AP-31TB-9595 but this respondent never issued any policy in the name of respondent No.1.

The truck bearing No.AP-31TB-9595 is not at all involved in the accident and as per spot panchanama the vehicle involved in the accident and not truck bearing No.AP 31TB 9595 and without admitting the involvement of the vehicle, as on the date of accident, the owner of truck bearing No.AP-31TB-9595 allowed the vehicle to ply on road without having the permit which is a violation of MV Act and also breach of terms and conditions of the policy. The accident occurred only due to the negligent driving of rider of the motor cycle, who rode in a rash and negligent manner, without holding driving license, without wearing helmet and without observing the traffic rules and caused the accident and they were in drunken condition and the motor cycle itself hit the stationed truck bearing No. AP- 31TB-9595 and there was no negligence on the part of driver of lorry. The respondent No.1 has not informed about the accident to the respondent, hence this respondent shall be permitted to take all necessary defences as contemplated under Section 147 and 149 and 170 (b) of M.V.Act. This respondent is not liable to pay any compensation and the case is liable to be dismissed against the respondent for non-compliance of statutory demand. As per

Section 158 (6) of M.V.Act, 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 the police station, Patancheru, failed to forward the documents and not complied with the statutory

Page 4 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad demand. The compensation and the interest claimed is highly excessive. Hence, petition may be dismissed.

4.The petitioners filed rejoinder to additional counter of respondent No.2 that the policy will be transferred along with vehicle only, but not along with the person. The crime vehicle baring No.

AP 31 TB 9595 was in the name of Mr. Venkata Siva Durga Prasad Atluru, who obtained the policy, later the said vehicle was sold to H. Srinivas Reddy, who is respondent No.1 and same is incorporated in the R.C.Book in RTA office on 2-7-2016. The accident took place on 08-09-2016.

It is settled law that the policy will be transferred along with the vehicle, who purchased the vehicle.

Further, the claimants are third parties. The claimants are entitled to claim compensation from the respondents No.1 as well as respondent No.2. The policy is existing; the insurance company has to pay the compensation to the victims. It is settled law that the policy was taken for the vehicle. As such, the policy will be transferred along with vehicle to the respective person/owner.

5.On the basis of the above pleadings, the following issues have been settled by my learned predecessor for trial on 22-05-2018:

1) Whether the pleaded accident on 08-09-2016 at about 1.40 A.M, was occurred due to the rash and negligent driving of the driver of the crime vehicle i.e., Trailor lorry bearing No. AP 31-TB 9595 and whether the injuries sustained by the petitioner in the said accident?

2) Whether the petitioner is entitled for compensation, and, if so, to what quantum and whether the crime vehicle was owned by respondent No.1 and insured with respondent No.2 and driver of respondent No.3 and what is the liability of the respondents?

3) To what relief?

6.During the course of enquiry, the petitioner No.1, who is wife of deceased examined as

PW1, eye witness to the accident was examined as PW2 and got marked Exs.A1 to A6 documents.

Page 5 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

On behalf of respondent No.2, RW1 who is Manager was examined and Administrative officer had examined as RW2 and Exs.B1 to B7 documents marked.

7.Heard both sides. Perused the material records. The written arguments submitted by respondent No.2.

8. Issue No.1: Whether the pleaded accident on 08-09-2016 at about 1.40 A.M, was occurred due to the rash and negligent driving of the driver of the crime vehicle i.e., Trailor lorry bearing No. AP 31-TB 9595 and whether the injuries sustained by the petitioner in the said accident?s

This issue concerns the vehicle involved in the accident, manner of accident and the cause of accident. According to the petitioners on 08-09-2016 at about 1.40 A.M along with his friend

Balachander was proceeding from Muthangi side towards R.C.Puram side slowly on the extreme left side of the road on his motor cycle bearing No.TS-15 EL-1549 and when they reached at

Pocharam ‘X’ roads in the limits of Patancheru on national highway No.65, at the material time the driver of trailer lorry bearing No. AP 31TB 9595 drove the lorry in high speed and negligent manner without showing any indicators and while taking u-turn at Pocharam X roads dashed the motor cycle of the deceased. Due to the sudden impact, the deceased Balchander along with the deceased U. Sai Kumar fell down from the motor cycle and both sustained fatal injuries. While shifting the deceased to the hospital, on the way he succumbed to injuries. The rider of the deceased was declared as brought dead on examination. The accident occurred and the deceased died due to the rash and negligent driving of the driver of the crime Trailor lorry bearing No.AP 31TB-9595,

The police Patancheru registered a case in Crime No.422/2016 under Section 304-A of IPC. At the time of accident the deceased was 25 years, hale, healthy, young and energetic. The deceased used to work as an employee of More Super Market at Nizampet and used to draw salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. The deceased was in prime earning age and would have earned atleast for another 45 to 50 years. Due to the accident; the deceased’s life is closed at his every young age of 25 years. Had the deceased alive, he would have achieved the highest level in his job and his salary would have been drastically reviewed to an

Page 6 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad extent of 50% per annum. Due to the accident, the petitioners had lost the highly supporting, hand to the family. The deceased was the only earning member in the family. The deceased was maintaining the petitioners and due to the death of the deceased, the petitioners who are totally depended on the income of the deceased had become destitute as their bread winner and life supporter died in the accident. Due to the sudden death of the deceased, the petitioner No.1 is completely bed ridden and still under shock and mental agony due to the sudden death of the deceased and she became widow at the age of 20 years and she lost the conjugal happiness in life and became widow now. The petitioners had no other source of income except the earnings of the deceased. The petitioners had lost the future life supporter and maintenance holder and are very much worried for future life. The petitioners had lot of hopes on the deceased who used to se the welfare and used to attend to all the maintenance and welfare including care and custody and after the death of the deceased, their future life is in dark and miserable. The petitioners had spent more than a sum of Rs.40,000/- for cremation and obsequies expenses and the petitioner had also incurred huge amounts for transportation of the dead body from the accident sport to hospital for treatment and postmortem and then to their resident for cremation and obsequies and the petitioners are claiming a total sum of Rs.20,00,000/- towards compensation on all counts which includes the amount payable under no fault liability under Section 140 of M.V.Act. The respondent No.1 being owner, respondent No.2 being insurer and respondent No.3 being driver of the offending vehicle are jointly and severally liable to pay compensation amount of Rs.20,00,000/- with interest @24 per annum from the date of filing the petition till the date of realization in favour of petitioner. In order to substantiate her case the petitioner No.1 examined as PW1 and also examined PW2 who is eye witness to the accident and got marked Exs.A1 to A6 documents, PW1 reiterated the averments of the claim petition and stated about the rash and negligent act on the part of driver of offending vehicle, involvement of the vehicle in the accident and also death of the deceased in the accident.

Admittedly PW1 is not an eye witness to the accident but her evidence shows that there was accident on the date, time and place of accident and involvement of offending vehicle and death of the deceased in the said accident. PW1 admitted in her cross examination that Exs.A1 to A5 the deceased occupation was shown as Cooli. The petitioner had not filed any document to show the

Page 7 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad income of the deceased. The PW1 had not filed documentary proof to show that the petitioner had incurred Rs.5,000/- towards transport charges and Rs.40,000/- towards cremation and Rs.15,000/- towards damages to clothes and mobile. PW2 who is an eye witness to the accident stated in cross examination that driver of lorry while taking U-turn the accident was occurred. PW2 denied the suggestion that without wearing helmet and without possessing driving license and drove the motor cycle in zig-zig manner and dashed the lorry and caused the accident. From these suggestions it can be gathered that involvement of the offending vehicle is not disputed the only dispute is regarding on whose negligent the accident occurred. No additional evidence adduced by respondents to prove that the accident occurred in any other manner then what was stated by the petitioners. Therefore the evidence of PWs1 and 2 coupled with Exs.A1 to A4 establishes that the accident occurred only due to the rash and negligent driving by the driver of the lorry. Hence this issue is answered in favour of petitioners and against the respondents.

9. Issue No.2: Whether the petitioner is entitled for compensation, and, if so, to what quantum and whether the crime vehicle was owned by respondent No.1 and insured with respondent No.2 and driver of respondent No.3 and what is the liability of the respondents?

This issue concerns the compensation payable, the quantum of compensation and by whom it is payable. The petitioner is the wife of the deceased. On behalf of respondent No.2, the manager was examined as RW1 and got marked Ex.B1 to B7 documents. RW1 stated in his chief examination that the respondent No.2 issued policy No. 23172017201388213900000 for trailor lorry bearing No.AP-31TB-9595 and the policy is valid from 04-05-2016 to 03-05-2017 and was in force as on date of accident on 08-09-2016 and respondent No.1 insured the said lorry with respondent No.2 insurance company. Therefore from the evidence of Pw1, Ex.B1 insurance policy is in force as on the date of accident. Thus, the respondents No.1 to 3 are jointly and severally liable to pay compensation to the petitioners.

10.Coming to the annual income of the deceased, according to petitioner her husband used to workings as Laethe Machine Worker at Neelam Nali, Bidar Karnataka State and used to draw

Page 8 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. To substantiate the said version, he had not placed any other document like bank statement or receipt or maintained any register. As per decision of Hon’ble High Court in Bajaj Allianz

General Insurance Company Limited vs. Mohammed Saleem Indra and others 2019 ACJ

2845 held that if the deceased was private employee aged about 25 years, notional income of

Rs.10,000/- per month.

11.The case of the petitioners is that the respondent No.1 is the owner of the offending vehicle, the respondent No.3 is the driver and the respondent No.2 is the insurance company and the deceased died in the accident due to the rash and negligent act on the part of the respondent No.1, as such the respondent No.2 being owner of the crime vehicle is vicariously liable for the wrongful acts done by the respondent No.1 and respondent No.3 has to indemnify the liability of respondent No.1. Therefore the respondents No.1 to 3 are liable to pay compensation to the petitioners. Whereas it is the contention of the respondent

No.2 insurance company that the respondent No.1 had handed over the vehicle willfully and knowingly that the driver of the lorry did not possess driving license as on the date of accident. The petitioners denied the said contention and they filed the MVI report and got marked as ExA6. As per Ex.A6 in column No.16(b) the respondent No.3 is shown as driver and particulars driving license is shown as 757NDG2005 issued by: RTA- Nandigama To drive: (NT) validity to 24-4-2025. Ex.A6 is issued by MVI who is competent authority. The respondent No.2 has not disputed with regard to the validity of driving license. As such, possessed by the respondent No.3. It is also not out of place to mention here that in the written arguments the respondent No.2 denied that the driver was not having driving license.

Therefore it is proved that the driver is possessing valid driving license as on the date of accident.

Page 9 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

12.It is further contention of the respondent No.2 in additional counter that as per the claim petition the respondent No.1 is owner of trailer lorry bearing No. AP 31TB 9595 and the respondent No.2 never issued any policy in the name of respondent No.1. As seen from

Ex.B1 filed by respondent No.2 company the policy was issued by respondent No.2 company in favour of respondent No.1 and it is valid from 04-05-2016 to 03-05-2017 and whereas the accident took place on 08-09-2016, as such, the said policy is in force as on the date of accident. Therefore the respondent No.2 company has to indemnify the liability of respondent No.1.

13.It is the further contention of the respondent No.2 is that the insured has not obtained the permit ply the offending vehicle and in terms of the policy the insurer had no policy.

Whereas it is the contention of the petitioners that though the vehicle plied without valid permit as on the date of accident, the insurance policy issued by respondent No.2 was in force at the time of accident. As such to direct the insurance company to pay compensation and then recover the amount from the respondent No.1. In this regard the counsel for petitioners relied upon a decision reported in 2022 ACJ 2825 (United India Insurance

Co.Ltd. vs. Soniya and others) wherein it was held that there was breach of policy as offending transport vehicle was being plied without valid permit as on the date of accident, but considering the policy is in force and the claimants being third party are covered by the policy directed the insurance company to pay compensation and then recover the amount from owner. The said decision is squarely applicable to the facts of the present case.

Hence, the respondent No.2 insurance company is hereby directed to pay compensation to the claimants first and then recover the amount from respondent No.1.

Page 10 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

DescriptionCalculationAmount in Rs.

Income per month and 10,000/- x 12x1821,60,000/- multiplier 18

Personal expenses @ 1/4 21,60,000/-1/45,40,000/-

Contribution to family 3/421,60,000/-x3/416,20,000/-

Loss of estate15,000/-15,000/-

Funeral Expenses15,000/-15,000/-

Loss of pain and suffering 1,00,000/-1,00,000/-

Total compensation17,50,000/-

14.Thus, the just compensation to which the claimants is entitled from respondents l and 3 is Rs 17,50,000/- Thus this issue is decided accordingly in favour of the claimant.

15. Issue No.3: To what relief?

IN THE RESULT, the petition is allowed with costs against respondents No.1 and 3 for Rs. 17,50,000/- with interest @ 7.5% in favour of the petitioners and Award is passed in the following terms:

1. Respondents No.1 and 3 are jointly and severally liable to pay a compensation of Rs.17,50,000/- with costs and interest @ 7.5% per annum from the date of petition till the date of deposit, and respondent No.2 is directed to pay said compensation first and then recover the amount from owner.

2. Respondents No.1 and 3 shall deposit Compensation amount so awarded within one month from the date of Award.

3. On such deposit of the compensation amount, petitioner No.1 is permitted to receive an amount of Rs.7,50,000/- along with costs and interest.

Page 11 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

4. On such deposit of the compensation amount, petitioner No.2 is permitted to receive an amount of Rs.3,00,000/- along with costs and interest.

5. On such deposit of the compensation amount, petitioner No.3 is permitted to receive an amount of Rs.7,00,000/- along with accrued interest on her hare till she attain the age of majority and the same is ordered to be kept in a Nationalized Ban in the form of interest Generating Fixed Deposit.

6.. Petitioner shall pay the deficit Court fee, if any undertaken to be paid later at the time of

registration of petition, within one month from today. Decree be prepared accordingly.

7. The Advocate fee is fixed at Rs.5,000/-.

Typed to my dictation by the Stenographer G-I, Corrected and Pronounced by Me in the open Court, on this the 17 thday of April, 2023.

Sd/-

IX Additional Chief Judge, City Civil Court, Hyderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW1: U. Sailaja RW1: K. Amith Kumar Reddy PW2: Kurma Sandeep RW2: K. Srikanth

DOCUMENTS MARKED FOR PETITIONER

Ex.A1: Certified copy of FIR in crime No.42/16 of P.S Patancheru. Ex.A2: Certified copy of charge sheet. Ex.A3: Certified copy of inquest. Ex.A4: Certified copy of PME report. Ex.A5: Certified copy of spot panchanamma. Ex.A6: Certified copy of MVI report.

Page 12 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

DOCUMENTS MARKED FOR RESPONDENT NO.2

Ex.B1: True copy of policy along with terms and conditions. Ex.B2: Office copy of notice to insured along with postal receipt. Ex.B3: Office copy of notice to driver/respondent No.3 along with postal receipt. Ex.B4: Authorization. Ex.B5: Form No.22-B register of motor vehicle. Ex.B6: Extract of the permit for the vehicle bearing No. AP-31-TB-9595. Ex.B7: Permit history of vehicle bearing No. AP 31TB 9595. As on 8-9-2016 there is no permit for the vehicle.

Sd/-

IX Additional Chief Judge, City Civil Court, Hyderabad.

IN THE COURT OF IX ADDITIONAL CHIEF JUDGE CITY CIVIL COURT

AT: HYDERABAD.

Monday, this the 17 thday of April, 2023

Present : Smt. G. Sunitha Ravindra Reddy IX Addl. Chief Judge,CCC,Hyderabad

M.V.O.P.No. 2761 OF 2016

Between :

1. U. Shailaja @ K. shailaja W/o. Late Sai Kumar @ ai Kiran, aged 20 years, occ: Household

2. K. Ashok s/o. Manik, aged 50 years, Occ: Nil

3. U. Rithik W/o. Late Sai Kumar @ Sai Kiran, aged 1 ½ years, Occ: Nil (petitioner No.3 b eing minor represented though his natural mother and next best friend the petitioner No.1 herein) all are residents of H.No.2-39, Amdoor, Chintalacheruvu, Jinnaram Mandal, Medak District, presently residents of H.No.3-1-125/12, Ashoknagar, Hyderabad. Petitioner No.3 impleaded and amended as per order passed in IA No.2197/2018 dt.11-1-2019.

.... Petitioners

A N D

1. H. Srinivas Reddy, S/o. Prathap Reddy, aged major, Occ: Business, H.No.7-198, JP Colony, Patencheru, Medak District. (Owner of trailor lorry bearing No.AP-31TB-9595)

2. HDFC ERGO General Insurance Company Limited, rep.by its Divisional Manager, 2nd floor, 6-3- 346/1, opp: Jalagam Vengal Rao Park, road No.1, Banjara Hills, Hyderabad, Andhra Pradesh. (Policy No.2317201388213900000 valid from 04-05-2016 to 03-05-2017)

3. Y. Srinivasa ao S/o. Pothu Raju, aged Major, Occ: Driver of crime lorry, R/o.D.No.1-25, Kothapet, Kanchikacherla, Krishna District (Driver of the trolley lorry bearing No.AP-31TB-9595) … Respondents This petition is coming before me for final hearing in the presence of

Sri K. Jagathapal Reddy, Learned counsel for the petitioner and Sri B. Papa Reddy, Learned counsel for the respondent No.2 and respondents No.1 and 3 remained exparte and the matter having been stood over for consideration till this day, this Court delivered the following:

Page 2 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

: O R D E R :

1. The petitioners filed this claim petition seeking compensation of Rs.20,00,000/- with interest at 24% per annum under Section 166 of M.V.Act, 1988 and rule 455 of M.V.Rules r/w

Section 140 of MV Act, 1989 for the death of deceased U. Sai Kumar in a motor vehicle accident said to have occurred on 08-09-2016 at about 1.40 A.M at Pocharam X roads.

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

On 31-08-2019 at about 4.30 P.M, the deceased U. Sai Kumar along with his friend

Balachander were proceeding from Muthangi side towards R.C.Puram side slowly on the extreme left side of the road on his motor cycle bearing No.TS-15 EL-1549 and when they reached at

Pocharam ‘X’ roads in the limits of Patancheru on national highway No.65, at the material time the driver of trailer lorry bearing No. AP 31TB 9595 drove the lorry in high speed and negligent manner without showing any indicators and while taking u-turn at Pocharam X roads dashed the motor cycle of the deceased. Due to the sudden death of the deceased Sai Kumar along with his friend fell down and sustained fatal injuries on head and all over the body. While shifting the deceased to hospital, on the way he succumbed to injuries. The rider of the deceased was declared as brought dead. The police Patancheru registered a case in Crime No.422/2016 under Section 304-

A of IPC. At the time of accident, the deceased was 25 years, hale, healthy, young and energetic.

The deceased Sai Kumar was working as Laethe Machine Worker at Neelam Nali, Bidar Karnataka

State and used to draw salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. The deceased was in prime earning age and would have earned atleast for another 45 to 50 years. Due to the death of the deceased, the petitioners who are totally dependent on the income of the deceased had become destitute as her bread winner and life supporter died in the accident. At the time of accident, the deceased was married. The wife of deceased had spent more than a sum of Rs.40,000/- for the cremation and obsequies expenses and claiming compensation of Rs.20,00,000/- on all counts which includes the amount payable under no fault liability under Section 140 of M.V.Act. The respondent No.1 being owner, respondent No.2

Page 3 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad being insurer and respondent No.3 being driver of the offending vehicle are jointly and severally liable to pay compensation amount of Rs.20,00,000/- with interest @24 per annum from the date of filing the petition till the date of realization in favour of petitioner.

3. On receipt of notice, the respondent No.2 filed counter and additional counter that the petition is not maintainable. The petitioner is put to strict proof of the manner of accident, the involvement of the vehicle, ownership of the offending vehicle, age, occupation and income of the deceased. It is denied that the driver of the trailer lorry bearing No. A.P-31TB 9595 was not possessing a driving license as on the date of accident. The respondent No.1 had handed over the vehicle willfully and knowingly that the driver of the lorry vehicle had not possessed a driving license as on the date of accident. The respondent No.1 had been shown as owner of truck bearing

No. AP-31TB-9595 but this respondent never issued any policy in the name of respondent No.1.

The truck bearing No.AP-31TB-9595 is not at all involved in the accident and as per spot panchanama the vehicle involved in the accident and not truck bearing No.AP 31TB 9595 and without admitting the involvement of the vehicle, as on the date of accident, the owner of truck bearing No.AP-31TB-9595 allowed the vehicle to ply on road without having the permit which is a violation of MV Act and also breach of terms and conditions of the policy. The accident occurred only due to the negligent driving of rider of the motor cycle, who rode in a rash and negligent manner, without holding driving license, without wearing helmet and without observing the traffic rules and caused the accident and they were in drunken condition and the motor cycle itself hit the stationed truck bearing No. AP- 31TB-9595 and there was no negligence on the part of driver of lorry. The respondent No.1 has not informed about the accident to the respondent, hence this respondent shall be permitted to take all necessary defences as contemplated under Section 147 and 149 and 170 (b) of M.V.Act. This respondent is not liable to pay any compensation and the case is liable to be dismissed against the respondent for non-compliance of statutory demand. As per

Section 158 (6) of M.V.Act, 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 the police station, Patancheru, failed to forward the documents and not complied with the statutory

Page 4 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad demand. The compensation and the interest claimed is highly excessive. Hence, petition may be dismissed.

4.The petitioners filed rejoinder to additional counter of respondent No.2 that the policy will be transferred along with vehicle only, but not along with the person. The crime vehicle baring No.

AP 31 TB 9595 was in the name of Mr. Venkata Siva Durga Prasad Atluru, who obtained the policy, later the said vehicle was sold to H. Srinivas Reddy, who is respondent No.1 and same is incorporated in the R.C.Book in RTA office on 2-7-2016. The accident took place on 08-09-2016.

It is settled law that the policy will be transferred along with the vehicle, who purchased the vehicle.

Further, the claimants are third parties. The claimants are entitled to claim compensation from the respondents No.1 as well as respondent No.2. The policy is existing; the insurance company has to pay the compensation to the victims. It is settled law that the policy was taken for the vehicle. As such, the policy will be transferred along with vehicle to the respective person/owner.

5.On the basis of the above pleadings, the following issues have been settled by my learned predecessor for trial on 22-05-2018:

1) Whether the pleaded accident on 08-09-2016 at about 1.40 A.M, was occurred due to the rash and negligent driving of the driver of the crime vehicle i.e., Trailor lorry bearing No. AP 31-TB 9595 and whether the injuries sustained by the petitioner in the said accident?

2) Whether the petitioner is entitled for compensation, and, if so, to what quantum and whether the crime vehicle was owned by respondent No.1 and insured with respondent No.2 and driver of respondent No.3 and what is the liability of the respondents?

3) To what relief?

6.During the course of enquiry, the petitioner No.1, who is wife of deceased examined as

PW1, eye witness to the accident was examined as PW2 and got marked Exs.A1 to A6 documents.

Page 5 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

On behalf of respondent No.2, RW1 who is Manager was examined and Administrative officer had examined as RW2 and Exs.B1 to B7 documents marked.

7.Heard both sides. Perused the material records. The written arguments submitted by respondent No.2.

8. Issue No.1: Whether the pleaded accident on 08-09-2016 at about 1.40 A.M, was occurred due to the rash and negligent driving of the driver of the crime vehicle i.e., Trailor lorry bearing No. AP 31-TB 9595 and whether the injuries sustained by the petitioner in the said accident?s

This issue concerns the vehicle involved in the accident, manner of accident and the cause of accident. According to the petitioners on 08-09-2016 at about 1.40 A.M along with his friend

Balachander was proceeding from Muthangi side towards R.C.Puram side slowly on the extreme left side of the road on his motor cycle bearing No.TS-15 EL-1549 and when they reached at

Pocharam ‘X’ roads in the limits of Patancheru on national highway No.65, at the material time the driver of trailer lorry bearing No. AP 31TB 9595 drove the lorry in high speed and negligent manner without showing any indicators and while taking u-turn at Pocharam X roads dashed the motor cycle of the deceased. Due to the sudden impact, the deceased Balchander along with the deceased U. Sai Kumar fell down from the motor cycle and both sustained fatal injuries. While shifting the deceased to the hospital, on the way he succumbed to injuries. The rider of the deceased was declared as brought dead on examination. The accident occurred and the deceased died due to the rash and negligent driving of the driver of the crime Trailor lorry bearing No.AP 31TB-9595,

The police Patancheru registered a case in Crime No.422/2016 under Section 304-A of IPC. At the time of accident the deceased was 25 years, hale, healthy, young and energetic. The deceased used to work as an employee of More Super Market at Nizampet and used to draw salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. The deceased was in prime earning age and would have earned atleast for another 45 to 50 years. Due to the accident; the deceased’s life is closed at his every young age of 25 years. Had the deceased alive, he would have achieved the highest level in his job and his salary would have been drastically reviewed to an

Page 6 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad extent of 50% per annum. Due to the accident, the petitioners had lost the highly supporting, hand to the family. The deceased was the only earning member in the family. The deceased was maintaining the petitioners and due to the death of the deceased, the petitioners who are totally depended on the income of the deceased had become destitute as their bread winner and life supporter died in the accident. Due to the sudden death of the deceased, the petitioner No.1 is completely bed ridden and still under shock and mental agony due to the sudden death of the deceased and she became widow at the age of 20 years and she lost the conjugal happiness in life and became widow now. The petitioners had no other source of income except the earnings of the deceased. The petitioners had lost the future life supporter and maintenance holder and are very much worried for future life. The petitioners had lot of hopes on the deceased who used to se the welfare and used to attend to all the maintenance and welfare including care and custody and after the death of the deceased, their future life is in dark and miserable. The petitioners had spent more than a sum of Rs.40,000/- for cremation and obsequies expenses and the petitioner had also incurred huge amounts for transportation of the dead body from the accident sport to hospital for treatment and postmortem and then to their resident for cremation and obsequies and the petitioners are claiming a total sum of Rs.20,00,000/- towards compensation on all counts which includes the amount payable under no fault liability under Section 140 of M.V.Act. The respondent No.1 being owner, respondent No.2 being insurer and respondent No.3 being driver of the offending vehicle are jointly and severally liable to pay compensation amount of Rs.20,00,000/- with interest @24 per annum from the date of filing the petition till the date of realization in favour of petitioner. In order to substantiate her case the petitioner No.1 examined as PW1 and also examined PW2 who is eye witness to the accident and got marked Exs.A1 to A6 documents, PW1 reiterated the averments of the claim petition and stated about the rash and negligent act on the part of driver of offending vehicle, involvement of the vehicle in the accident and also death of the deceased in the accident.

Admittedly PW1 is not an eye witness to the accident but her evidence shows that there was accident on the date, time and place of accident and involvement of offending vehicle and death of the deceased in the said accident. PW1 admitted in her cross examination that Exs.A1 to A5 the deceased occupation was shown as Cooli. The petitioner had not filed any document to show the

Page 7 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad income of the deceased. The PW1 had not filed documentary proof to show that the petitioner had incurred Rs.5,000/- towards transport charges and Rs.40,000/- towards cremation and Rs.15,000/- towards damages to clothes and mobile. PW2 who is an eye witness to the accident stated in cross examination that driver of lorry while taking U-turn the accident was occurred. PW2 denied the suggestion that without wearing helmet and without possessing driving license and drove the motor cycle in zig-zig manner and dashed the lorry and caused the accident. From these suggestions it can be gathered that involvement of the offending vehicle is not disputed the only dispute is regarding on whose negligent the accident occurred. No additional evidence adduced by respondents to prove that the accident occurred in any other manner then what was stated by the petitioners. Therefore the evidence of PWs1 and 2 coupled with Exs.A1 to A4 establishes that the accident occurred only due to the rash and negligent driving by the driver of the lorry. Hence this issue is answered in favour of petitioners and against the respondents.

9. Issue No.2: Whether the petitioner is entitled for compensation, and, if so, to what quantum and whether the crime vehicle was owned by respondent No.1 and insured with respondent No.2 and driver of respondent No.3 and what is the liability of the respondents?

This issue concerns the compensation payable, the quantum of compensation and by whom it is payable. The petitioner is the wife of the deceased. On behalf of respondent No.2, the manager was examined as RW1 and got marked Ex.B1 to B7 documents. RW1 stated in his chief examination that the respondent No.2 issued policy No. 23172017201388213900000 for trailor lorry bearing No.AP-31TB-9595 and the policy is valid from 04-05-2016 to 03-05-2017 and was in force as on date of accident on 08-09-2016 and respondent No.1 insured the said lorry with respondent No.2 insurance company. Therefore from the evidence of Pw1, Ex.B1 insurance policy is in force as on the date of accident. Thus, the respondents No.1 to 3 are jointly and severally liable to pay compensation to the petitioners.

10.Coming to the annual income of the deceased, according to petitioner her husband used to workings as Laethe Machine Worker at Neelam Nali, Bidar Karnataka State and used to draw

Page 8 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad salary of Rs.15,000/- per month and he used to contribute the same for the maintenance of his family. To substantiate the said version, he had not placed any other document like bank statement or receipt or maintained any register. As per decision of Hon’ble High Court in Bajaj Allianz

General Insurance Company Limited vs. Mohammed Saleem Indra and others 2019 ACJ

2845 held that if the deceased was private employee aged about 25 years, notional income of

Rs.10,000/- per month.

11.The case of the petitioners is that the respondent No.1 is the owner of the offending vehicle, the respondent No.3 is the driver and the respondent No.2 is the insurance company and the deceased died in the accident due to the rash and negligent act on the part of the respondent No.1, as such the respondent No.2 being owner of the crime vehicle is vicariously liable for the wrongful acts done by the respondent No.1 and respondent No.3 has to indemnify the liability of respondent No.1. Therefore the respondents No.1 to 3 are liable to pay compensation to the petitioners. Whereas it is the contention of the respondent

No.2 insurance company that the respondent No.1 had handed over the vehicle willfully and knowingly that the driver of the lorry did not possess driving license as on the date of accident. The petitioners denied the said contention and they filed the MVI report and got marked as ExA6. As per Ex.A6 in column No.16(b) the respondent No.3 is shown as driver and particulars driving license is shown as 757NDG2005 issued by: RTA- Nandigama To drive: (NT) validity to 24-4-2025. Ex.A6 is issued by MVI who is competent authority. The respondent No.2 has not disputed with regard to the validity of driving license. As such, possessed by the respondent No.3. It is also not out of place to mention here that in the written arguments the respondent No.2 denied that the driver was not having driving license.

Therefore it is proved that the driver is possessing valid driving license as on the date of accident.

Page 9 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

12.It is further contention of the respondent No.2 in additional counter that as per the claim petition the respondent No.1 is owner of trailer lorry bearing No. AP 31TB 9595 and the respondent No.2 never issued any policy in the name of respondent No.1. As seen from

Ex.B1 filed by respondent No.2 company the policy was issued by respondent No.2 company in favour of respondent No.1 and it is valid from 04-05-2016 to 03-05-2017 and whereas the accident took place on 08-09-2016, as such, the said policy is in force as on the date of accident. Therefore the respondent No.2 company has to indemnify the liability of respondent No.1.

13.It is the further contention of the respondent No.2 is that the insured has not obtained the permit ply the offending vehicle and in terms of the policy the insurer had no policy.

Whereas it is the contention of the petitioners that though the vehicle plied without valid permit as on the date of accident, the insurance policy issued by respondent No.2 was in force at the time of accident. As such to direct the insurance company to pay compensation and then recover the amount from the respondent No.1. In this regard the counsel for petitioners relied upon a decision reported in 2022 ACJ 2825 (United India Insurance

Co.Ltd. vs. Soniya and others) wherein it was held that there was breach of policy as offending transport vehicle was being plied without valid permit as on the date of accident, but considering the policy is in force and the claimants being third party are covered by the policy directed the insurance company to pay compensation and then recover the amount from owner. The said decision is squarely applicable to the facts of the present case.

Hence, the respondent No.2 insurance company is hereby directed to pay compensation to the claimants first and then recover the amount from respondent No.1.

Page 10 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

DescriptionCalculationAmount in Rs.

Income per month and 10,000/- x 12x1821,60,000/- multiplier 18

Personal expenses @ 1/4 21,60,000/-1/45,40,000/-

Contribution to family 3/421,60,000/-x3/416,20,000/-

Loss of estate15,000/-15,000/-

Funeral Expenses15,000/-15,000/-

Loss of pain and suffering 1,00,000/-1,00,000/-

Total compensation17,50,000/-

14.Thus, the just compensation to which the claimants is entitled from respondents l and 3 is Rs 17,50,000/- Thus this issue is decided accordingly in favour of the claimant.

15. Issue No.3: To what relief?

IN THE RESULT, the petition is allowed with costs against respondents No.1 and 3 for Rs. 17,50,000/- with interest @ 7.5% in favour of the petitioners and Award is passed in the following terms:

1. Respondents No.1 and 3 are jointly and severally liable to pay a compensation of Rs.17,50,000/- with costs and interest @ 7.5% per annum from the date of petition till the date of deposit, and respondent No.2 is directed to pay said compensation first and then recover the amount from owner.

2. Respondents No.1 and 3 shall deposit Compensation amount so awarded within one month from the date of Award.

3. On such deposit of the compensation amount, petitioner No.1 is permitted to receive an amount of Rs.7,50,000/- along with costs and interest.

Page 11 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

4. On such deposit of the compensation amount, petitioner No.2 is permitted to receive an amount of Rs.3,00,000/- along with costs and interest.

5. On such deposit of the compensation amount, petitioner No.3 is permitted to receive an amount of Rs.7,00,000/- along with accrued interest on her hare till she attain the age of majority and the same is ordered to be kept in a Nationalized Ban in the form of interest Generating Fixed Deposit.

6.. Petitioner shall pay the deficit Court fee, if any undertaken to be paid later at the time of

registration of petition, within one month from today. Decree be prepared accordingly.

7. The Advocate fee is fixed at Rs.5,000/-.

Typed to my dictation by the Stenographer G-I, Corrected and Pronounced by Me in the open Court, on this the 17 thday of April, 2023.

Sd/-

IX Additional Chief Judge, City Civil Court, Hyderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW1: U. Sailaja RW1: K. Amith Kumar Reddy PW2: Kurma Sandeep RW2: K. Srikanth

DOCUMENTS MARKED FOR PETITIONER

Ex.A1: Certified copy of FIR in crime No.42/16 of P.S Patancheru. Ex.A2: Certified copy of charge sheet. Ex.A3: Certified copy of inquest. Ex.A4: Certified copy of PME report. Ex.A5: Certified copy of spot panchanamma. Ex.A6: Certified copy of MVI report.

Page 12 of 12 MVOP 2761 of 2016 IXACJ CCC Hyderabad

DOCUMENTS MARKED FOR RESPONDENT NO.2

Ex.B1: True copy of policy along with terms and conditions. Ex.B2: Office copy of notice to insured along with postal receipt. Ex.B3: Office copy of notice to driver/respondent No.3 along with postal receipt. Ex.B4: Authorization. Ex.B5: Form No.22-B register of motor vehicle. Ex.B6: Extract of the permit for the vehicle bearing No. AP-31-TB-9595. Ex.B7: Permit history of vehicle bearing No. AP 31TB 9595. As on 8-9-2016 there is no permit for the vehicle.

Sd/-

IX Additional Chief Judge, City Civil Court, Hyderabad.

IN THE COURT OF IX ADDITIONAL CHIEF JUDGE CITY CIVIL COURT

AT: HYDERABAD.

Thursday, this the 13 th day of April, 2023

Present : Smt. G. Sunitha Ravindra Reddy IX Addl. Chief Judge,CCC,Hyderabad

M.V.O.P.No. 1947 OF 2014

Between:-

1. Kamala Varma @ Kamala Devi W/o. Late Ghan Shyam Varma, aged about 48 years, Occ: Household.

2. Yogendra Pratap Varma S/o. Late Ghan Shyam Varma, aged about 28 years, Occ: Enemployee.

3. Khojendra Pratap Varma S/o. Late Ghan Shyam Varma, aged about 25 years, Occ: Enemployee.

4. Mamata Varma D/o. Late Ghan Shyam Varma, aged about 24 years, Occ: P.G student (unmarried).

5. Deepa Varma D/o. Late Ghan Shyam Varma, aged about 20 years, Occ: Student.

(All are R/o.3-5-69, RTC Colony, L.B. nagar, Hyderabad.

...Petitioners

AND

1. M/s. Globe Ecologistics Limited, Pirana Village, Dascroi Taluka, Ahmedabad, Gujrat.

2. HDFC ERGO General insurance Company Limited, rep.by its Manager, Door No.6-3- 346/1, 2nd floor, Road No.1, opp: Vengalrao Park, Banjara Hills, Hyderabad.

(Policy No.2315200368177301000, valid from 12-11-2013 to 11-11-2014, policy issued at Mubai)

....Respondents

This petition is coming on this day before me for final hearing in the presence of Sri P. Chandra Mouli, Learned counselfor petitioners and respondent No.1 remained exparte and Sri B. Papa Reddy, learned counsel for respondent No.2 and upon hearing both the counsel and on perusing the material available on record and the matter having been stood over for consideration till this day, this Court made the following:-

: O R D E R :

1. This petition is filed under Section 166 of M.V.Act, 1988 and Rule 475/1 B of

A.P.M.V. Rules r/w Section 163-A, 140 (c) of A.P.M.V.Act 1989 seeking the court to award compensation of Rs.40,00,000/- to the petitioners against the respondents by directing the respondents to pay to the petitioners jointly and severally together with interest @ 18% per annum from the date of accident till the date of realization.

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

On 28-5-2014 at about 4.30 P.M, the deceased Ghan Shyam Varma started from residence at L.B.Nagar towards Chaderghat side on his motor cycle bearing No.AP 29BN- 5528. The deceased was riding the motor cycle with great care and diligence by following traffic rules with extreme left side of the road at about 5.30 P.M. At the same time, the driver of one lorry (trailer) bearing No.GJ1 AU-3995 which was proceeding in the same direction at that material time, the driver of the lorry (trailer) bearing No.GJ1 AU 3995 drove the lorry in a rash and negligent manner with high speed without following traffic rules, lost the control of the offending vehicle and dashed to the deceased motor cycle from back side. As a result, the deceased fell down on the road along with motor cycle,, as a result of which the lorry left side rear tyres were gone over the deceased, due to which the deceased sustained bleeding injuries all over the body. Immediately after the accident, the police shifted the deceased to Osmania General Hospital, Hyderabad where the doctors declared the deceased as brought dead. The police, Malakpet registered a case in Crime No.283/2014 under

Section 304-A, 337 and 338 of IPC against the driver of offending lorry. The deceased was a businessman and he was doing the business of Synthetic Hair wigs in whole sale under the name and style of M/s. Y.K.Traders, L.B.Nagar, Hyderabad on which the deceased was earning more then Rs.4,30,000/- per annum prior to the accident. The deceased was only earning member in his family, other than deceased there is no person earning in his family.

The petitioners No.2 and 3 are unemployee sons of the deceased and petitioners No.4 and 5 are students and unmarried daughters of deceased. The petitioners lost love and affection, best guidance and future with the deceased. There is no source of income for the petitioners

Page 3 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad to maintain their livelihood. The respondents No.1 and 2 being owner and insurer of the lorry (trailer) are jointly and severally liable to pay compensation of R.40,00,000/- to the petitioners.

3.On receipt of summons, the respondent No.2 filed counter denying all the allegations made in the petition except those that are admitted that this respondent denied the manner of accident, involvement of the offending vehicle, age, avocation and income of the deceased.

The insurance policy issued by this respondent in favour of the respondent No.1 lorry (trailer bearing No.GJ 1 AU 3995valid from 12-11-2013 to 11-11-2014 is in possession of the insured i.e., respondent No.2. The owner of the lorry willfully entrusted the vehicle to a driver who was not holding a valid driving license therefore even if the policy is in existence, the second respondent is not liable. The respondent No.1 has not informed about the accident to this respondent, hence this respondent shall be permitted to take all necessary defences as contemplated under Section 147, 149 and 170 of M.V.Act. As per Section 134 (c ) of M.V.Act, it is mandatory duty of owner/respondent No.1 to furnish the particulars of policy, date, time and place of accident, particulars of injuries and the name of the driver and particulars of driving license but the owner/respondent No.1 had not complied with statutory demand. As per

Section 158 (6) of M.V Act 1988 it is a statutory obligation on the concerned police officials to forward to claims tribunal having jurisdiction about the death or bodily injury to any person. It is mandatory on the part of the concerned police officials to send all the relevant papers to the concerned insurer and the owner of the vehicle within 30 days from the date of information, but the concerned police officials failed to forward the documents and not complied with the statutory demand. The respondent No.1 had not issued any notice about the accident to respondent No.2 and this respondent is at liberty to take all the defences under Section 170 B of

M.V.Act. Besides the defences under Section 147 and 149 of M.V.Act. The interest claim by petitioners is highly excessive and is contrary to Section 3 of Interest Act. Hence, prays to dismiss the petition.

Page 4 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

4.On the basis of the above pleadings, the following issues have been settled by my learned predecessor for trial on 5-1-2018:

1) Whether the pleaded accident had occurred resulting in death of the deceased,

Ghan Shyam Varma, due to the rash and negligent driving of the driver of the

crime vehicle lorry bearing No. GJ 1 AU 3995 by its driver?

2) Whether the petitioners are entitled to compensation, and, if so, to what quantum and what is the liability of the respondents?

3) To what relief?

5.During the course of enquiry, the petitioner No.1 who is wife of deceased examined as

PW1, eye witness to the accident examined PW2 and also examined PW3 and got marked Exs.A1 to A9 documents. On behalf of respondent No.2, RW1 who is Deputy Manager was examined and also examined Motor Vehicle Inspector as RW2 and got marked Exs.B1 to B3 documents and

Ex.X1 and X2 documents were marked.

6.Heard both sides. Perused the material records. The written arguments filed by both sides.

7. ISSUE NO.1: Whether the pleaded accident had occurred resulting in death of the deceased, Ghan Shyam Varma, due to the rash and negligent driving of the driver of the crime vehicle lorry bearing No. GJ 1 AU 3995 by its driver?

It is the case of the petitioners that the petitioner No.1 is wife, the petitioners No.2 and 3 are sons and the petitioner No.4 and 5 are daughters of deceased M. Ghan Shyam Varma.

The deceased was businessman of Synthetic Hair wigs in whole sale under the name and style of M/s. Y.K.Traders, L.B.Nagar, Hyderabad on which the deceased was earning more than Rs.4,30,000/- per annum prior to the accident, which he used to contribute for the welfare of the family. On 28-5-2014 at about 4.30 P.M, the deceased Ghan Shyam Varma was started from residence at L.B.Nagar towards Chaderghat side on his motor cycle

Page 5 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad bearing No.AP 29BN-5528. At that time a lorry (trailer bearing No.GJ1 AU 3995) driven by its driver in a rash and negligent manner at high speed and dashed to the deceased motor cycle from back side, as a result of which he sustained fatal injuries and died instantaneously. The petitioners suffering with mental agony due to death of the deceased.

The petitioner No.1 is wife and petitioners No.2 to 5 are children, lost his love and affection and consortium. The police, Malakpet registered a case in Crime No. 283 of 2014 under

Sections 304-A of the IPC. The respondent No.1 is the owner. The insurance policy, issued by respondent No.2 covering the vehicle, gives the name of the respondent No.1 as the owner of the vehicle. All the respondents are jointly and severally liable to pay compensation to the petitioners. Hence, constrained to file the present petition. In support of their version, the wife of the deceased was examined as PW1, eye witness to the accident examined PW2 and also examined PW3 and got marked Exs.A1 to A9 documents. Ex.A1 is the certified copy of FIR with complaint, Ex.A2 is the certified copy of charge sheet, Ex.A3 is the certified copy of inquest report, Ex.A4 is the certified copy of PME report, Ex.A5 is the certified copy of MVI report, Ex.A6 is the IT returns of the deceased for the assessment year 2014-2015, 2013-2014 and 2012-2013, Ex.A7 is the M/s Y.K Traders Licence issued by Commercial Tax Department, Ex.A8 is the original driving license of the deceased and

Ex.A9 is the copy of insurance policy. On behalf of respondent No.2, RW1 who is Deputy

Manager was examined and also examined Motor Vehicle Inspector as RW2 and got marked Exs.B1 to B3 documents. Ex.B1 is the true copy of policy along with terms and conditions, Ex.B2 is the office copy of the letter sent to respondent No.1 along with postal receipt and Ex.B3 is the office copy of the letter sent to respondent No.1 along with courier receipt and Ex.X1 and X2 documents were marked. Ex.X1 is the computation of total income tax for assessment year 2012 to 2015 and Ex.X2 is the true copy of Vehicle Check

Report dt.01-06-2014.

Page 6 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

8.From the evidence present on record and on the back drop of rival contentions raised by both parties, it is to be seen whether there is any substance in the claim made by the petitioners or to the contra whether the stand taken by the respondents has been vindicated. The record clinchingly establishes that the accident occurred due to rash and negligent driving of driver of crime vehicle. The respondent No.2 had insured the policy No.2315200368177301000, valid from 12-11-2013 to 11-11-2014 is valid as on the date of accident to the respondent No.1 for the insured vehicle. As on the date of accident, the terms and conditions of the policy are not violated . Thus this issue is answered in favour of petitioners and against the respondents.

9. Issue No.2:Whether the petitioners are entitled to compensation, and, if so, to what quantum and what is the liability of the respondents?

For determining issue No.2, the following points are to be considered .

1. Age of the deceased at the time of accident.

2. Income of the deceased.

3. Liability of the respondents and dependency of the petitioners.

Age of the deceased at the time of accident:

The age of deceased as per documents filed by the petitioners i.e., FIR, inquest report and postmortem examination report his age was 50 years on the date of accident. So the multiplier as per Sarla Verma Case is “13”.

Page 7 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

Income of the deceased:

The case of the petitioners is that deceased was businessman of Synthetic Hair wigs in whole sale under the name and style of M/s. Y.K.Traders, L.B.Nagar, Hyderabad on which the deceased was earning more then Rs.4,30,000/- per annum, which he used to contribute for the welfare of the family. In support of the said version, the petitioners had filed Exs.A6 and A7, but the income tax returns for the year 2014-2015 was paid an amount of Rs.1,650/- and so the same cannot be considered in view of abnormal delay and there is every presumption that the same was paid in subsequent years only to claim compensation from the respondents. So the income per annum was taken for the years 2012-2014 which amounts to

Rs.3,45,000/-

Liability of the respondents and dependency of the petitioners.

Admittedly offending vehicle lorry (trailer) bearing No.GJ1 AU 3995 is insured and it is valid from 12-11-2013 to 11-11-2014 and the same is evident from Ex.B1. The date of accident was occurred on 28-05-2014. Therefore, Ex.B1 policy is valid as on the date of accident.

Though the case of the respondent No.1 is that the owner of offending vehicle had willfully entrusted the vehicle to driver who is not having valid driving license. The insurance policy, issued by respondent No.2 covering the vehicle, given the name of the respondent No.1 as the owner of the offending vehicle. Driver of the crime vehicle is not in possession of driving license as on the date of accident, as such the policy invoked Section 181 of MV Act and the motor vehicle inspector issued vehicle check report that driver was not having the driving license. Except that, respondent No.2 had not alleged that the crime vehicle is not responsible for the death of the deceased, therefore the respondent No.2 being the insurer and respondent

No.1 being the owner of the vehicle/driver are jointly and severally liable to pay compensation to the petitioners. This court relied on decision of Hon’ble Apex Court in National

Insurance Co. Limited vs. Swarn Singh and Ors 2004 ACJ I, wherein held that “The breach of policy condition i.e, disqualification of driver or invalid driving license of the

Page 8 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties.

To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time”. The said decision is well applicable to the facts of the present case. It is pertinent to glance oral testimony of PW1 wherein he elicited that he had not filed any document to show that the deceased used to earn a sum of Rs.4,30, 000/- per annum by his profession work. PW1 had filed the driving license of the deceased. The driver was not having a valid driving license and the vehicle was plying without permit and fitness certificate.

PW2 in his cross examination elicited that he is not complainant in F.I.R. He had not produced any document to show that he witnessed the accident and police recorded his statement. In view of the Judgment of the Hon’ble Apex Court in National Insurance Corporation vs.

Pranay Sethi 2017 ACJ 2700 (SC), petitioners 1 to 5 would be entitled to Rs.15,000/- towards loss of estate, Rs.40,000/- each towards consortium to the petitioners No.1 to 5 and

Rs.15,000/- towards funeral expenses. If the deceased had been alive, he would have a prospective future and the earnings would have increase. As per Pranay Sethi Case supra, the increase in future prospects will be by 25% as the deceased was aged 50 years. The compensation to which the petitioners are entitled to is calculated as under:

Page 9 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

DescriptionCalculationAmount in Rs.

Income per annum 3, 45,000/-3,45,000/-

Future prospects per month @25% 3,45,000X 25%=86,250/- 86,250/- 3,45,000+86,2504,31,250/-

Personal expenses @ 1/4 4,31,250x1/4th1,07,812.5

Contribution to family 3/44,31,250x3/4th3,23,437.5

Compensation on applying multiplier 3,23,437x 1342,04,687.5/-

Consortium to petitioners l to 540,000/- each2,00,000/-

Funeral Expenses15,000/-

Loss of estate15,000/-

Total compensation 44,34,687/-

10.Thus, the just compensation to which the claimants No.1 to 5 are entitled to from respondents l and 2 is Rs.44,34,687/- (Rs. Forty Four Lakhs Thirty Four Thousand Six

Hundred and Eighty Seven only) This issue is decided accordingly in favour of the claimants.

11. Issue No.3: To what relief?

In view of the findings given on Issues No.1 to 3, I hold that Respondents No.1 and 2 are jointly and severally liable to pay a compensation of Rs.44,34,687/- (Rs. Forty Four

Lakhs Thirty Four Thousand Six Hundred and Eighty Seven only) with interest @ 7.5 % per annum from the date of petition till the date of deposit.

12.IN THE RESULT, the claim is Allowed against respondents No.1 and 2 for

Rs.44,34,687/- (Rs. Forty Four Lakhs Thirty Four Thousand Six Hundred and Eighty Seven

Page 10 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad only) with interest @7.5% per annum in favour of the petitioners No.1 to 5 and Award is passed in the following terms:

1. Respondents No.1 and 2 are jointly and severally liable to pay a compensation of

Rs.44,34,687/- (Rs. Forty Four Lakhs Thirty Four Thousand Six Hundred and Eighty

Seven only) and with interest @ 7.5 % per annum from the date of petition till the date of deposit.

2. Respondents No.1 and 2 shall deposit Compensation amount so awarded within two months from the date of Award.

3. On such deposit of the compensation amount, petitioner No.1 is entitled to a compensation of Rs.20,34,687/- along with accrued interest interest on her share and entire costs awarded. Out of the share of petitioner No.1 a sum of Rs.5,00,000/- shall be kept in a Nationalized Bank for a period of two years in the form of interest generating Fixed Deposit and she is permitted to withdraw the remaining amount of her share along with accrued interest and entire costs.

4. Petitioner No.2 and 3 are entitled to a compensation of Rs.6,00,000/- each along with accrued interest of their share and they are permitted to withdraw their entire amount.

5. Petitioner No.4 and 5 are entitled to a compensation of Rs.6,00,000/- each (Rupees

Six Lakhs only) each along with accrued interest of their share and they are permitted to withdraw their entire amount.

Page 11 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

6. Petitioners shall pay the deficit Court fee, if any undertaken to be paid later at the time of registration of petition, within one month from today. Decree be prepared accordingly.

7. The petitioners are directed to pay the deficit court fee on the awarded compensation amount (AIR 2003 SC 674 and 2013 ACJ 12) and on deposit of court fee the petitioners are entitled to withdraw the compensation amount.

8. Advocate’s fee is fixed at Rs.5,000/-.

Typed to my dictation by the Stenographer G-I, Corrected and Pronounced by Me in the open Court, on this the 13 thday of April, 2023.

Sd/-

IX ADDITIONAL CHIEF JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENTS:

PW1:Kamala Varma @ Kamala Devi RW1: Yalla Someswara Babu PW2: Aravind Prakash Srivastav PW3: B. Venkateswar Rao

DOCUMENTS MARKED FOR PETITIONERS

Ex.A1: Certified copy of FIR with complaint. Ex.A2: Certified copy of charge sheet. Ex.A3: Certified copy of inquest report. Ex.A4: Certified copy of PME report. Ex.A5: Certified copy of MVI report.

Page 12 of 12 MVOP 1947/2014 IXACJ CCC Hyderabad

Ex.A6: IT returns of the deceased for the assessment year 2014-2015, 2013-2014 and 2012-2013, Ex.A7: M/s Y.K Traders Licence issued by Commercial Tax Department. Ex.A8: Original driving license of the deceased. Ex.A9: Copy of insurance policy.

DOCUMENTS MARKED FOR RESPONDENT

Ex.B1: True copy of policy along with terms and conditions. Ex.B2: Office copy of the letter sent to respondent No.1 along with postal receipt. Ex.B3: Office copy of the letter sent to respondent No.1 along with courier receipt

MARKED THROUGH PW3

Ex.X1: Computation of total income tax for assessment year 2012 to 2015. Ex.X2: True copy of Vehicle Check Report dt.01-06-2014.

Sd/-

IX Additional Chief Judge City Civil Court, Hyderabad

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL COURT : 

HYDERABAD.

FRIDAY, THE 30th DAY OF DECEMBER, 2016. PRESENT : SMT. G. SUNITHA RAVINDRA REDDY, B.Sc., LL.B.,

III JUNIOR CIVIL JUDGE

FAC II JUNIOR CIVIL JUDGE

O.S. No. 2605 of 2015

Between :

1Mr.Piyush Lohia, S/o. Sri. Sankalala Lohia, Aged about: 50 years, Occ: Business 2Ms. Sushma Lohia, D/o. Late Ram Kshore Sambhariya, Aged about: 48 years, Occ: Business, Both are R/o. F­1, Sai Krishna Residency, Road no. 2, Jubilee Hills, Hyderabad Plaintiffs

AND

1. G.S. Prakash, S/o. Late Parasu Ramanna, Aged about: 53 years, Occ: Business, R/o. H.No. 8­2­293/82/BE/131, Navaniraman Nagar, Road No. 71, Jubilee Hills, Hyderabad. Defendant

This suit is coming on 14.12.2016 for final hearing before me in the presence of Sri. K. Lakshman, the learned counsel for the Plaintiffs and of Sri. R.Chakradhar, the learned counsel for the defendant. The matter having stood over for consideration and after hearing, this court made the following:­

J U D G M E N T

This suit is filed by the plaintiffs for recovery of an amount of Rs. 

1,61,752 together with interest and costs there on.

2.The brief averments made in the plaint are as follows:­

It is the case of the plaintiffs that they are absolute owners and possessors of all that part and parcel of Flat/Unit No. C­402, admeasuring 3120 square feet including proportionate share in common areas in C Block, 4th floor along with car parking 

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OS 2605 ­2015 

slots of the complex “ Fortune Towers “ together with undivided share of land admeasuring 72 square yards out of 18,671 square yards forming part of Survey 

No.s 7, 8, 9,11, 16 and 48 situated at Madhapur village, Serilingampally Mandal, 

Ranga Reddy District. The plaintiffs have sold the above said property to the defendant by executing registered sale deed in his favour. At the time of executing the sale deed an amount of Rs. 1,08,000 was deducted by the defendant towards TDS and he failed to furnish the TDS Certificate to the plaintiffs to enable them to claim the same from the Income Tax Department. 

The plaintiffs have paid the said amount to the Income Tax Department and therefore the defendant is liable to refund the said amount of Rs. 1,08,000 along with interest. The plaintiffs here in paid an amount of Rs. 14,872 towards interest to the Income Tax Department for non submission of the above TDS 

Certificate as on 31.03.2014. That on verification plaintiffs came to know that the defendant has deposited the TDS of Rs. 1,08,000 in wrong account I.e. 

instead of 94IA deposited in 94I. The defendant has to handover the TDS 

Certificate for the amount deducted by him towards TDS after depositing the same with Income Tax Department. But unfortunately defendant failed to furnish the TDS Certificate and the Income Tax Department has penalized the plaintiffs for non filing of the TDS Certificate and plaintiffs are compelled to pay the said amount along with interest. Thus the defendant is liable to repay the said amount of Rs. 1,08,000 which was deducted as TDS along with interest. The plaintiffs regularly pursued with the defendant for the said amount and despite of repeated requests and regular persuasion through phone calls , mails and 

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OS 2605 ­2015 

personal requests, the defendant did not pay the above said amount to the plaintiffs. Therefore, the plaintiffs left with no other option but to issue a legal notice dated 28.07.2015 to the defendant demanding to pay the above said amount of Rs. 1,08,000 along with interest at the rate of 24% per annum within 7 days through RPAD. The said legal notice was received by the defendant on 01.08.2015, but the defendant neither paid the above dues nor replied to the said legal notice. As stated supra, all the efforts made by the plaintiffs for recovery of the above said amount from the defendant became futile exercise and in vain. In view of the non payment of the said amount by the defendant, the plaintiff is constrained to file the present suit for recovery of suit amount.

 3.On receipt of summons, the defendant filed written statement denying all the allegations made in the plaint except those which are admitted in the written statement. It is not in dispute that the defendant has purchased the above property from the plaintiffs and also dedudcted an amount of Rs. 1,08,000 as TDS from and out of the sale consideration payable to the plaintiff but the allegations of the plaintiffs that the defendant failed to furnish the TDS 

Certificate to them to enable them to claim the same from Income Tax 

Department is incorrect and baseless. As a matter of fact, that defendant has remitted the amount of Rs. 1,08,000 deducted from the sale consideration as 

TDS with the Income Tax Department on 14.08.2013 through Challan No. 

00020. Immediately, thereafter the original challan was handed over to the plaintiffs so that they can claim refund from the Income Tax Department having 

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OS 2605 ­2015 

received the TDS Certificate. The plaintiffs passed a receipt in acknowledgment of the same. However, in the present suit, the plaintiff falsely alleging that this defendant has not furnished TDS Certificate. Similarly the plea of the plaintiffs that on verification they came to know that the defendant has deposited the TDS of Rs. 1.08,000 in wrong account ie. instead of 94IA he deposited in 94I is absurd and meaningless. As a matter of fact, the plaintiffs themselves have furnished the information pertaining to the remittance of TDS to be made and the defendant has accordingly deposited the amount. It is very much pertinent to mention here that without admitting even if there is any such discrepancy in the account number, the plaintiffs could have informed this defendant about the so­called discrepancies so that the defendant could have taken appropriate remedial measures. Having failed to do so, the plaintiffs are estopped from attributing in any kind of negligence or malafides to this defendant. The plaintiffs are taking contradictory stand. On one hand, they alleged that this defendant did not hand over the TDS Certificate and on the other hand they alleged that the amount was remitted in a wrong account. This conduct of plaintiffs demonstrates hollowness in their version. The claim of the plaintiffs for Rs. 1,08,000 towards 

TDS amount of Rs. 14,872 towards interest paid to the Income Tax Department and Rs. 38,880 towards interest from 01 04 2014 to 30.09.2014 is devoid of merits and baseless. As stated earlier,this defendant has remitted that TDS amount of Rs. 1,08,000 with the Income Tax Department as per the information furnished by the plaintiffs and moreover handed over the remittance receipt to the plaintiffs. As such, the plaintiffs shall not hold this defendant responsible 

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OS 2605 ­2015 

liable for the alleged amounts paid to the Income Tax Department. The plaintiff never contacted this defendant with regard to the alleged non payment of TDS amount. He has never received any communication or Notice from the plaintiffs as alleged by them. Had this plaintiffs informed this defendant about the so­ called discrepancy, the defendant would have immediately addressed the same. 

Only on receipt of the summons by this Court, the defendant has realised about the claim of the plaintiffs. Hence, prays to dismiss the suit with exemplary costs.

4.On the basis of above pleadings, the following issues are framed for determination of the case.

Issue No 1: Whether the plaintiffs are entitled to recover an amount of Rs. 

1,61,751/­ together with interest and costs there on ?

Issue No 2: To what relief ?

5. During the course of trial, the plaintiff no.1 himself was examined as 

PW1 and Exs.A­1 to A­5 documents were marked. On behalf of defendant, defendant himself was examined as DW1 and Ex. B1 was marked. 

6.Heard both sides.

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OS 2605 ­2015 

7.Issues No. 1: Whether the plaintiffs are entitled to recover an amount of Rs. 1,61,752/­ together with interest and cost there on ?

The plaintiffs filed this suit for recovery of an amount of Rs. 

1,61,752/­ together with interest and costs thereon. In order to grant such a relief, the plaintiffs should be clear about their case. It may be appreciated by looking into the entire suit record for better adjudication of the case. It is the case of the plaintiffs in nutshell that they are absolute owners of Flat no.402 with car parking in Fortune towers and they have sold the said property to the defendant by executing the registered sale deed. At the time of registration, the defendant had deducted an amount of Rs.1,08,000/­ towards TDS and he failed to furnish the TDS certificate to them to enable them to claim the same from the 

Income Tax Department. The plaintiffs had paid the said amount to the Income 

Tax Department with interest of Rs.14,872/­ and therefore the defendant is liable to refund the said amount of Rs.1,08,000/­ along with interest. Hence this suit.

8. In order to substantiate their case, the plaintiffs placed reliance on oral testimony of PW1 coupled with Exs.A­1 to A­5 documents. Ex.A­1 is the copy of I.T. Return of plaintiff no.1, dated 30.09.2014. Ex.A­2 is the copy of I.T. 

Return of plaintiff no. 2, dated 30.09.2014. Ex.A­3 is the office copy of the legal notice, dated 28.07.2015. Ex.A­4 is the postal acknowledgment card, dated 01.08.2015. Ex.A­5 is the computer generated statement showing deposit of 

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amount of Rs. 1,08,000/­.

9. To the contra, it is the specific case of the defendant that it is not in dispute that he had purchased the property from the plaintiffs and also deducted an amount of Rs.1,08,000/­ as TDS from out of the sale consideration payable to the plaintiffs. He had remitted the amount of Rs.1,08,000/­ with the Income Tax 

Department on 14.08.2013 through challan no.00020 and immediately the original challan was handed over to the plaintiffs so that they can claim refund from the Income Tax Department. Having received the TDS certificate, the plaintiffs passed a receipt in acknowledgment of the same. The plaintiffs have not filed any proof to show that they have remitted the said amount with interest to the Income Tax Department. The plaintiffs themselves have furnished the information pertaining to the remittance of TDS to be made and accordingly the defendant had deposited the amount and handed over the remittance receipt to the plaintiffs and this defendant is not liable to pay any amount as alleged by the plaintiffs. This defendant had not received any communication from the plaintiffs on this aspect much less any notice. Hence prays to dismiss the suit with exemplary costs. 

10.In order to rebut the case of the plaintiffs, the defendant placed reliance on oral testimony of Dw1 and exhibited Ex.B­1 document. Ex.B­1 is the receipt dated. 14.08.2013.

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OS 2605 ­2015 

11. From the evidence present on record and on the background of rival contentions raised by both parties, it is to be seen whether there is any substance in the claim made by the plaintiffs or to the contrary whether the stand taken by the defendant has been vindicated. 

12.Before adverting to the facts of the case, it is deemed fit to refer to the relevant provisions of Section 102 of Indian Evidence Act, 1872 and Section 118 of Negotiable Instrument Act, 1881. Under Section 102 of Indian Evidence 

Act, that the burden of proof in a suit proceedings lies on that person who would fail if no evidence at all were given on either side. Section 118 of Negotiable 

Instrument Act,1881 the presumption of passing consideration arises only when the plaintiffs prove their case. In view there of the initial burden of proving the same is on the plaintiffs and later shifts on the defendants.

13.Admittedly there is no dispute that the defendant had purchased the property from the plaintiffs through registered sale deed and out of sale consideration had deducted Rs.1,08,000/­ towards TDS and on remittance of the said amount to Income Tax Department to furnish the said TDS certificate to the plaintiffs. But the entire crux of the case revolves around whether the plaintiffs had paid the said amount to the Income Tax Department along with interest of 

Rs.14,872/­ as the defendant failed to remit the said amount as promised and on that whether the defendant is entitled to refund the said amount with interest and costs thereon. 

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14.Virtually this is a matter of balancing the claim of both parties as against each other in the light of oral and documentary evidence available on record. The oral testimony of PW1 and DW1 in chief examination need not be dealt in detail as these witnesses reiterate the averments as made in the plaint and written statement. No further evidence is thought of by both parties.

15.It is pertinent to scrutinize the case set up by the plaintiffs and defendant in somewhat detail by peeping into the oral testimony of PW1 and 

DW1. The oral testimony of PW1 during cross examination is that he narrated the facts in detail leading to filing of this case that he has shown in Income Tax returns that an amount of Rs. 1,08,000/­ was paid to the Income Tax 

Department and as such he has stated in his chief affidavit that the defendant is liable to refund the said amounts with interest. There is no such entry made in 

Ex.A1 and A2 with regard to an amount of Rs. 1,08,000/­ stated to have been paid to the Income Tax Department. On confrontation of the receipt dated 14.08.2013, he admits that it was issued to the defendant and marked as Ex.B­1. 

He denies suggestion that as per Ex.B1, the defendant had handed over TDS certificate for an amount of Rs. 1,08,000/­ to him. He volunteers that the defendant had remitted the amount in wrong account. He could not say from 

Ex.A1 and A2 whether there is any entry made with regard to interest paid to the department. He adds that as per Ex.A1 he paid Rs.6,814/­ interest and as per 

Ex.A2 plaintiff no. 2 had paid Rs.8,058/­ towards interest. He spoken to the fact that he had not placed any document to show that the defendant had credited 

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the amount in wrong account. He denies that since the defendant had paid Rs. 

1,08,000/­ and handed over TDS Certificate as per Ex.B1, the defendant is not liable to pay any amount to them.

16.On the contrary, the defendant got examined as DW1 and his elicitations during cross examination is that he has purchased Flat No. C 402 from the plaintiffs. He admitted that out of the sale proceedings, he has deducted an amount of Rs. 1,08,000/­ towards TDS. He volunteers that after remitting the same to the Income Tax Department, he has to furnish the TDS certificate to the plaintiff. He spoken to the fact that he had handed over the TDS certificate to the plaintiff soon after completion of the sale transaction at the time of registration. He denies that till date he had not handed over the TDS certificate to the plaintiff. He adds that Ex B1 is the receipt to show that he had handed the TDS certificate to the plaintiffs. Ex B1 was issued after paying the entire sale consideration amount. He denies that Ex B1 showing for the purpose of obtaining the TDS certificate an amount of Rs. 1,08,000/­ was obtained from the plaintiffs. He candidly stated that it is possible to issue the TDS certificate on the same date of registration. He says that he remitted the entire amount for 

TDS through on line on the same date. He denies that he had not deposited any amount for obtaining TDS and after one year he had handed over the challan to the plaintiffs. The said challan on confrontation admitted by him and marked as 

Ex.A5. He had obtained PAN number. of the plaintiff at the time of execution. 

There will not be any mention of the PAN number in Ex A5 and no name is 

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mentioned. 

17.Apparently and evidently, the plaintiffs had entirely based their claim on ExsA1 and A2 Income tax returns to show the remittance of Rs.1,08,000/­ paid to the Income tax department. But the recitals in the said documents does not disclose such entry of the said amount. Even there is an admission made by 

PW1 during course of cross examination that there is no such entry made in 

ExsA1 and A2 and on contrary had categorically admitted ExB1 receipt dated 14.08.2013 marked through PW1 wherein the recitals in ExB1 indicate that the defendant had handed over the TDS certificate to the plaintiffs for an amount of 

Rs. 1,08,000/­. It is interesting to visualize from PW1 oral testimony that the defendant had remitted the said amount of Rs.1,08,000/­ to the Income Tax 

Department but it is in wrong account and he had not placed any document to show that the defendant had credited in wrong account. It is strange to note that the plaintiffs themselves had confronted the challan showing the payment made by the defendant to the Income Tax Department marked as ExA5 for an amount of Rs.1,08,000/­ on 14.08.2013. If that be so, it is highly improbable to assume or presume the case of the plaintiffs as the plaintiffs are approbating and reprobating on different scales quite inconsistent to their pleadings in plaint. 

When pleadings form foundation of a case, the party relying on it shall prove it and cannot set apart from the pleadings and propound a new case. The discrepancy with regard to crediting in wrong account under Section 94 I instead of 94 IA is not fatal to the case of the defendant and as per the instructions of the plaintiffs the said amount of Rs.1,08,000/­ was credited to the Income Tax 

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Department on 14.08.2013 and handed over the same to the plaintiffs as evident from Ex.B1 and A5. Even nothing could be elicited from the oral testimony of 

DW1 and in fact most part of elicitations of PW1 are in accordance to the case of the defendant. The plaintiffs are not clear about their case and had instituted the suit without any sound footing. So the claim put forth by the defendant is in any way superior to that of the plaintiffs and thus presumption of passing consideration in favour of the plaintiffs does not arise. Thus this issue is held against the plaintiffs and in favour of the defendant.

Issue no.2­ To what relief ?

In the result, the suit is dismissed. There is no order as to costs.

Dictated to the Personal Assistant directly in my laptop, corrected and 

pronounced by me in the open court on this the 30th day of December, 2016.

III JUNIOR CIVIL JUDGE

FAC II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PLAINTIFFS : P.W.1 : Piyush Lohia

WITNESSES EXAMINED FOR DEFENDANT : DW 1: G.S. Prakash

DOCUMENTS MARKED FOR PLAINTIFFS :

Ex.A­1 is the copy of I.T. Return of plaintiff no.1, dated 30.09.2014. Ex.A­2 is the copy of I.T. Return of plaintiff no.2, dated 30.09.2014. Ex.A­3 is the office copy of the legal notice, dated 28.07.2015. Ex.A­4 is the postal acknowledgment card, dated 01.08.2015.

Page 13

OS 2605 ­2015 

Ex.A­5 is the computer generated statement showing deposit of amount of Rs.1,08,000/­

DOCUMENTS MARKED FOR DEFENDANT :

Ex.B­1 is the receipt, dated 14.08.2013.

III JUNIOR CIVIL JUDGE

FAC II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

Page 14

OS 2605 ­2015 

IN THE COURT OF IX ADDITIONAL CHIEF JUDGE CITY CIVIL COURT

AT: HYDERABAD

Thursday, this the 13 thday of April, 2023

Present : Smt. G. Sunitha Ravindra Reddy IX Addl. Chief Judge, CCC, Hyderabad

O.S.No. 454 OF 2019

Between :

1. BOYIDAPU APPALA RAJU S/o Late B.Appa Rao, aged 58 years, Occ. Business, R/o Flat No.303, Radhakrishna Residency, H.No.8-3-98/34/7/8/B, SKD Nagar, Near Ganapathi Complex, Yellareddyguda, Hyderabad (DIED) AS PER LRS.

2. ARUN KUMAR BOYIDAPU, aged about 38 years, son of Late B. Appala Raju, Occ: Private Employee, resident of Flat No.101, GHMC.No.8-3-677/54, situate at Sri Krishna Devaraya Nagar, MSR TOWERS, YELLAREDDY GUDA, HYDERABAD-500073.

3. BOYIDAPU SHIVA KUMAR, aged about 35 years, son of Late B. Appala Raju, Occupation: Pvt Employee, resident of Flat No.101, GHMC.No.8-3-677/54, situate at Sri Krishna Devaraya Nagar, MSR TOWERS, YELLAREDDY GUDA, HYDERABAD.

.....Plaintiffs

AND 1. G. VIMALA DEVI, W/o Late G. Narasimha Raju,Aged about 72 years, Occ: Household, R/o Flat No.302, Radhakrishna Residency, H.No.8-3-98/34/7/8/B, SKD Nagar, Near Ganapathi Complex, Yellareddyguda, Hyderabad – 500 073

2. All concerned

.... Defendants

This suit is coming before me for final hearing in the presence of Sri M. Purushotham, Learned counsel for the plaintiffs No.2 and 3, the petitioner No.1 died and defendant No.1 remained exparte and the defendant No.2 is all concerned and the matter having been stood over for consideration till this day, this Court delivered the following:

Page 2 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

: J U D G M E N T :

1.This suit is filed by the plaintiffs to declare the plaintiffs No.2 and 3 as legal heirs and successors of late B. Jaya being the absolute owner of the suit schedule properties .

2. The brief averments of plaint are as follows:

The wife of plaintiff No.1 late B.Jaya, was the absolute owner and possessor of all that the Flat No.202 in Second Floor of “K.S.R. GRANDUER” with built up area 1050 sq.

ft. (including common area, water, electricity, lift and car parking) together with proportionate undivided share of land admeasuring 41.75 sq. yards out of total land admeasuring 334 sq. yards or 279.27 sq. mtrs, on plot No.23 situated at Sri Krishnadevaraya

Nagar, Yellareddyguda, Ameerpet, Hyderabad, all that Flat No.102 on First Floor, plinth area of 1000 sq. ft. (including common area) along with car parking together with proportionate undivided share in the land admeasuring 33 sq. yards out of total land of 267 sq yards or 223.21 sq. mtrs. In premises bearing Municipal No.8-3-677/54 on plot No.54 situated at Kausalya Cooperative Housing Society Ltd., Yellareddyguda, Hyderabad. Late

Smt.B.Jaya is also the absolute owner and possessor of the agricultural farm land bearing

No.K-407 and 407A (Sector K) in Sy.Nos.378, 386, 387, 390 and 393 admeasuring Ac.8- 2644 gts. or 0.08361 Hectares situated at Proddatur village & Grampanchayat, Shankerpally

Mandal, R.R.District which is more clearly described in the schedule appended hereunder and hereinafter referred to as Suit Schedule C property. Smt.B.Jaya purchased the suit schedule properties through three different registered sale deeds detailed below:

Schedule propertyDocument No.Dated Schedule A property3201 of 201230-08-2012 Schedule B property3724 of 200429-09-2004 Schedule C property5637 of 200129-12-2001

Page 3 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

3. That their step mother late B.Jaya died intestate on 30-08-2018 leaving behind the plaintiffs as her legal heir and successor. The plaintiff No.2 and 3 there are no other legal heirs and successors to late B.Jaya. That the defendant No.1 is the mother of Smt.B.Jaya.

Though the defendant has no right over the suit schedule properties, started claiming title to the schedule properties. The plaintiff is the only legal heir and successor of Smt. B.Jaya. The defendant No.1 has no manner of right whatsoever over the suit schedule properties. That consequent to the death of B.Jaya, the plaintiff approached the municipal authorities seeking to mutate his name in the municipal records, however the municipal authorities advised the plaintiffs that unless the plaintiffs are declared as owner of the schedule properties by competent court, the schedule properties cannot be recorded/transferred in his name. Late

B.Jaya was not a government servant. As such the plaintiff could not approach the concerned authorities for issuance of legal heir certificate. Hence constrained to file the present suit.

4.On receipt of summons, the defendant No.1 called absent and remained exparte. A general notice is published inviting objections from general public, but none appeared and raised any objection for the claim made by the plaintiffs, on behalf of respondent No.2/all concerned.

5.During course of enquiry, on behalf of plaintiffs, the plaintiff No.3 examined as PW1 and got marked Exs.A1 to A13 documents in support of their case.

6.Heard learned counsel for the plaintiffs. Perused the case records.

7.Now the point that arises for consideration is-

Whether the plaintiffs are entitled for the relief as prayed for?

Page 4 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

8. POINT:

The plaintiffs filed this suit to declare the plaintiffs as owners of the suit schedule property. In order to grant such a relief, the plaintiffs should be clear about their case. It may be appreciated by looking into the entire suit record for better adjudication of the case.

It is the case of the plaintiffs in nutshell that the wife of plaintiff No.1 late B.Jaya, was the absolute owner and possessor of all that the Flat No.202 in Second Floor of “K.S.R.

GRANDUER” with built up area 1050 sq. ft. (including common area, water, electricity, lift and car parking) together with proportionate undivided share of land admeasuring 41.75 sq.

yards out of total land admeasuring 334 sq. yards or 279.27 sq. mtrs, on plot No.23 situated at Sri Krishnadevaraya Nagar, Yellareddyguda, Ameerpet, Hyderabad, all that Flat No.102 on First Floor, plinth area of 1000 sq. ft. (including common area) along with car parking together with proportionate undivided share in the land admeasuring 33 sq. yards out of total land of 267 sq yards or 223.21 sq. mtrs. In premises bearing Municipal No.8-3-677/54 on plot No.54 situated at Kausalya Cooperative Housing Society Ltd., Yellareddyguda,

Hyderabad. Late Smt.B.Jaya is also the absolute owner and possessor of the agricultural farm land bearing No.K-407 and 407A (Sector K) in Sy.Nos.378, 386, 387, 390 and 393 admeasuring Ac.8-2644 gts. or 0.08361 Hectares situated at Proddatur village &

Grampanchayat, Shankerpally Mandal, R.R.District which is more clearly described in the schedule appended hereunder and hereinafter referred to as Suit Schedule C property.

Smt.B.Jaya purchased the suit schedule properties through three different registered sale deeds detailed below:

Schedule propertyDocument No.Dated Schedule A property3201 of 201230-08-2012 Schedule B property3724 of 200429-09-2004 Schedule C property5637 of 200129-12-2001

Page 5 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

9. That Smt.B.Jaya died intestate on 30-08-2018 leaving behind her the plaintiff as her legal heir and successor. Except the plaintiff there are no other legal heirs and successors to late B.Jaya. That the defendant No.1 is the mother of Smt.B.Jaya. Though the defendant has no right over the suit schedule properties, started claiming title to the schedule properties.

The plaintiff is the only legal heir and successor of Smt. B.Jaya. The defendant No.1 has no manner of right whatsoever over the suit schedule properties. That consequent to the death of B.Jaya, the plaintiff approached the municipal authorities seeking to mutate his name in the municipal records, however the municipal authorities advised the plaintiffs that unless the plaintiffs are declared as owner of the schedule properties by competent court, the schedule properties cannot be recorded/transferred in his name. Late B.Jaya was not a government servant. As such the plaintiff could not approach the concerned authorities for issuance of legal heir certificate. Hence constrained to file the present suit.

10.Before adverting to the facts of the case, it is deemed fit to refer to the relevant provisions of Section 34 of Specific Relief Act 1963. Under Section 34 of Specific Relief

Act, 1963 that any person entitled to any legal character, or to any right to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion, make therein a declaration that they are so entitled and the plaintiffs need not in such suit ask for any further relief. As per section 102 of Indian

Evidence Act the burden of proof in a suit proceedings lies on that person who would fail if no evidence at all were given on either side. So, the initial burden of proving the same is on the plaintiffs and later shifts on the defendants. In order to substantiate their case, the plaintiffs had placed reliance on oral testimony of PW 1 and marked Exs.A1 to A13 documents. Ex.A1 is the certified copy of registered sale deed bearing Doc.No.3201/2012 dt.30-07-2012, Ex.A2 is the certified copy of registered sale deed baring Doc.No.3724/2004 dt.29-09-2004, Ex.A3 is the certified copy of registered sale deed bearing

Page 6 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

Doc.No.5637/2001 dt.29-12-2001, Ex.A4 is the original death certificate of late Smt. B.

Jaya dt.18-09-2018, Ex.A5 is the original encumbrance certificate vide App.No.959868 dt.10-10-2018, Ex.A6 is the original encumbrance certificate vide App No.959714 dt.10-10- 2018, Ex.A7 is the original encumbrance certificate vide App.No.487693 dt.01-011-2018,

Ex.A8 is the original market value certificate vide request No.4879 of 2018 dt.10-10-2018,

Ex.A9 is the original market value certificate vide request No.1223 of 2018 dt.02-11-2018,

Ex.A10 is the original market value certificate vide request No.4887 of 2018 dt.10-10-2018,

Ex.A11 is the original death certificate of A. Appala Raju (plaintiff No.1), Ex.A12 is the original aadhar card of plaintiff No.2 and Ex.A13 is the original aadhar card of plaintiff

No.3. The documents on record clinchingly prove the case of the plaintiffs. In order to rebut the said version of plaintiffs, the defendants were remained exparte and reluctant to contest the suit. Unless contrary is proved, the plaintiffs cannot be non-suited. Thus, this point is answered accordingly.

11.In the result, the suit is decreed with costs declaring the plaintiffs No.2 and 3 as owners and successors of late B. Jaya, who died on 30-08-2018 over the suit schedule properties.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, on this the 13 thday of April, 2023.

Sd/-

IX ADDITIONAL CHIEF JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the plaintiff: For defendants:

PW1: Boyidapu Shiva Kumar Exparte

Page 7 of 7 OS 454 of 2019 IXACJ CCC Hyderabad

DOCUMENTS MARKED FOR PLAINTIFFS

Ex.A1: Certified copy of registered sale deed bearing Doc.No.3201/2012 dt.30-07-2012. Ex.A2: Certified copy of registered sale deed baring Doc.No.3724/2004 dt.29-09-2004. Ex.A3: Certified copy of registered sale deed bearing Doc.No.5637/2001 dt.29-12-2001. Ex.A4: Original death certificate of late Smt. B. Jaya dt.18-09-2018.

Ex.A5: Original encumbrance certificate vide App.No.959868 dt.10-10-2018.

Ex.A6: Original encumbrance certificate vide App No.959714 dt.10-10-2018.

Ex.A7: Original encumbrance certificate vide App.No.487693 dt.01-011-2018.

Ex.A8: Original market value certificate vide request No.4879 of 2018 dt.10-10-2018. Ex.A9: Original market value certificate vide request No.1223 of 2018 dt.02-11-2018. Ex.A10: Original market value certificate vide request No.4887 of 2018 dt.10-10-2018 Ex.A11: Original death certificate of A. Appala Raju (plaintiff No.1).

Ex.A12: Original aadhar card of plaintiff No.2.

Ex.A13: Original aadhar card of plaintiff No.3.

DOCUMENTS MARKED FOR DEFENDANTS

-NIL-

Sd/-

IX ADDITIONAL CHIEF JUDGE

CITY CIVIL COURT, HYDERABAD