Smt. G. Udaya Gouri

Judge, Family Court-cum-IV Addl. District and Sessions Judge

Adilabad, PDJ Court Complex · Adilabad · Telangana

Smt. G. Udaya Gouri, Judge, Family Court-cum-IV Addl. District and Sessions Judge, is posted at Adilabad, PDJ Court Complex, Adilabad, Telangana, India. 1,265 court orders on record since 2016. 10 judgments with full text available. Primarily handles CRLMP, MVOP, CRLA cases.

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SC.SPL/36/2015 Acquitted

The Sub-Divisional Police Officer, Bellampalli vs Pendli Sampath. and 3 others

17 Jan 2017

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs/STs (POA) Act-cum-V ADDL. DISTRICT AND SESSIONS JUDGE AT

ADILABAD

Present: - Smt. G. Udaya Gouri,

Principal Sessions Judge, Adilabad

FAC: Spl. Judge for trial of cases under SCs/STs (POA) Act- Cum-V Addl. District & Sessions Judge, Adilabad

TUESDAY THE 17 th DAY OF JANUARY 2017

SPL.S.C.NO. 36 OF 2015

(On committal by Sri Ch. Jithendhar, Judicial First Class Magistrate, Bellampalli by his order dated 29.10.2015 in PRC 43 of 2015 in Cr.No.61 of 2015 of PS Bheemini)

Name of the Complainant :: State of Telangana through Sub Divisional Police Officer, Bellampalli

Name of the Accused ::

1)Pendli Sampath S/O. Odelu, Age: 31 yrs, Golla, agriculture, R/O. Nennel

2)Birudu Mahesh S/O. Bapu, Age: 25 yrs, Munnur Kapu, agriculture, R/O. Nennel

3)Gangishetti Venu S/O. Shankar, Age: 28 yrs, Munnur Kapu, agriculture, R/O. Nennel

4)Lingampalli Lingaiah @ Rajashekhar S/O. Posham, Age: 22 yrs, Caste: Madiga, Auto Driver/Coolie, R/O. Jajjarvelli (v)

Offence under section :: 506 IPC against A.1 to A.4 and Section 3 (1)(x) of SCs/STs (POA) Act, 1989 against A.1 to A.3

Plea of the accused :: Not guilty

Finding :: Not guilty

Sentence or Order ::

IN THE RESULT, the accused 1 to 4 are found not guilty under section 235 (1) CrPC for the offence under section 506 IPC and the accused 1 to 3 are found not guilty under section 235 (1) CrPC for the offence under section 3 (1)(x) of SCs/STs (POA) Act, 1989 and hence the accused 1 to 4 are acquitted on the said charges.

Spl. SC No. 36 of 2015 2 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad

Unmarked property, if any, shall be destroyed after the appeal time is over.

Name of the counsel for :: Sri G. Mallikarjun, prosecution Additional Public Prosecutor

Name of the counsel for :: Sri Chandu Singh defence Advocate for accused

This case is coming on before me for final hearing on 03.01.2017 in the presence of Sri G. Mallikarjun, Additional Public Prosecutor for the state and of Sri Chandu Singh, Advocate for the accused and on hearing both sides the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

1) The brief facts of the case are that the Sub Divisional Police Officer of Bellampalli filed a charge sheet stating that on 16.07.2015 at about 12.00 noon one Naitham Narayana lodged a complaint at Bheemini police station stating that on 15.07.2015 the Assistant Director of Survey and

Land Records came to Jajjarvelli village to survey the lands in S.No.201 situated on the outskirts of Jajjarvelli village and on that day the said

Assistant Director fixed the boundary stones and went away after signing on the panchanama report, as such the accused 1 to 4 got annoyed and developed grudge against him and abused him in filthy language in the name of his caste. Later at about 1.30 p.m., the accused no.4 along with other three accused came to his house and abused him saying “orey koya nariga, koya lanjakodaka, neevu maaku dorakaka pothavuraa, neevu ontariga dorikithey, ninnu champuthamura” and while the accused 1 to 3 were present the accused no.4 threatened him to tear his stomack with the support of accused 1 to 3.

Spl. SC No. 36 of 2015 3 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad

2) On the basis of the said complaint the Station House Officer of PS

Bheemini i.e., the Assistant Sub Inspector of Police, registered Cr.No.61 of 2015 under section 3 (1)(x) of SC/ST (POA) Act, 1989 and section 506

IPC and then sent a requisition seeking for appointment of investigation officer to the Superintendent of Police. The Superintendent of Police,

Adilabad authorized the Sub Divisional Police Officer, Bellampalli to investigate into the matter. Hence, he took up the investigation, visited scene of offence, secured the presence of PWs 1 to 7, recorded their statements, drew a rough sketch of the scene of offence, secured the copies of the land documents i.e., the panchanama held by the Inspector of Survey and Land Records apart from the patta passbook of S.No.201/2 for an extent of Ac.10-00 situated at the outskirts of Jajjarvelli village, later gave requisition to the Tahsildar of Bheemini to furnish caste certificates of PW.1 and the accused 1 to 3, as the accused no.4 also belongs to Scheduled Caste community. Later during the course of investigation he received reliable information that the accused were present in their houses. Hence, on his instructions the Sub Inspector of

Police apprehended the accused no.1 at his house at Nennel village and brought him to the police station. The accused no.1 then voluntarily confessed about the crime. Hence, after complying with the legal formalities under section 50 CrPC he affected the arrest of the accused no.1 and sent him for judicial remand. Later the Sub Inspector of Police served notice under section 41-A of CrPC to the accused no.4 to appear

before him, as such the accused no.4 appeared before him and the

accused no.4 gave an undertaking before the Sub Inspector of Police that he would attend the court the moment the charge sheet is filed. He

Spl. SC No. 36 of 2015 4 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad claimed that he also received information that the accused 2 and 3 surrendered before the Judicial First Class Magistrate, Bellampalli and hence were sent for judicial remand. The investigation revealed that the accused no.1 belongs to Golla caste, the accused 2 and 3 belong to

Munnur Kapu caste, PW.1 i.e., the de facto-complainant belongs to Koya community of Scheduled Tribe and the accused no.4 belongs to Madiga caste of scheduled caste community and that there were disputes between the accused 1 to 4 and one Thota Shankar with regard to the lands in

S.No.201 situated at the outskirts of Jajjarvelli village of Bheemini Mandal and as such PW.2 made a requisition to the land and Survey department to inspect and survey the lands and to fix boundaries for S.No.201 of his village and on the requisition of the same the Inspector of District Surveys and Land Records sent a notice to the bordering owners in S.No.201 i.e., the accused 1 to 4, inspected the same, conducted survey on the disputed land and found that there was excess land of Ac.3-20 guntas pertaining to 201 in the adjoining land i.e., Ac.3-00 in S.No.202, which belongs to the accused 1 to 3 and Ac.0-20 guntas in S.No.203, which belongs to the accused no.4 and hence after conducting survey, he fixed boundaries under a panchanama in the presence of elders and took the signatures of

PW.1 apart from others and since then the accused 1 to 4 developed grudge against PW.1 that he supported the owners of land in S.No.201 and on 15.07.2015 at about 1.30 p.m., PWs 2 and 3 went to the house of

PW.1 and informed him about the removal of the boundary stones fixed by the Survey and Land Records officials and while they were talking, the accused 1 to 4 came to PW.1 and A.1 to A.3 abused him in the name of his caste using foul language one after the other, while accused no.4

Spl. SC No. 36 of 2015 5 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad threatened to do away with the life of PW.1 if the accused 1 to 3 support him and tear him into pieces. On the basis of the said evidence collected he filed charge sheet against the accused 1 to 3 under section 3 (1)(x) of

SCs/STs (POA) Act, 1989 and 506 IPC, while under section 506 IPC against the accused no.4.

3) On the basis of the said charge sheet the accused appeared before the court. As such, copies of documents were furnished to them and on hearing the accused and the learned Public Prosecutor, this court framed charges under section 506 IPC and 3 (1)(x) of SCs/STs (POA) Act, 1989 against the accused 1 to 3 and under section 506 IPC against the accused no.4. Since the accused pleaded not guilty, the prosecution was directed to adduce evidence.

4) The prosecution examined PWs 1 to 11 and marked Exs.P.1 to P.12.

5) The accused were examined under section 313 CrPC and they denied the evidence apart from reporting no defence evidence.

6) Heard both sides.

7) Hence, in the said circumstances, the point for consideration is:

Whether the prosecution established the charge under section 506 IPC against the accused no.4 and under section 3 (1)(x) of SCs/STs (POA) Act, 1989 against the accused 1 to 3?

POINT:

8) A perusal of the evidence on record shows that the prosecution has examined all the 11 witnesses cited in the charge sheet and amongst

Spl. SC No. 36 of 2015 6 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad them PW.1 is the de facto-complainant and the alleged victim, PWs 2, 3, 6 and 7 are the eyewitnesses, PWs 4 and 5 are the circumstantial witnesses,

PW.8 is the investigating officer, who issued the first information report,

PWs 9 and 10 are the Tahsildars, who furnished the caste certificates of

PW.1, accused no.4 and the accused 1 to 3 respectively, while PW.11 is the investigating officer who also filed charge sheet.

9) The evidence of the said above witnesses in brief is as follows:

PW.1 stated that he is the Sarpanch of Jajjarvelli village and that he knows the accused as well as the prosecution witnesses. He further stated that about one and half years ago an Inspector from Assistant

Directorate of Adilabad Survey namely Srinivas came along with the

Mandal surveyor from Bheemini to the lands in S.No.201 of Jajjarvelli village, as such he being the sarpanch of the said village also reached the said place and at the said place the Survey officials conducted survey in

S.No.201, 202 and found that the boundaries of S.No.202 have moved into S.No.201 to an extent of Ac.3-00, as such the same was set right and the boundaries were fixed. They also found that Ac.0-20 guntas of land in

S.No.203 got mixed with S.No.201 and hence the same was also set right by fixing boundaries for the same. Later they prepared a report. Hence, he along with neighbouring land lords affixed their signatures on the said report. He further stated that the said fixing of boundaries by the survey officials was opposed by the accused 1 to 4. Later the said boundaries fixed by the survey authorities were removed by the accused 1 to 4.

Hence, there was a quarrel between the accused 1 to 4 and one Thota

Shanker i.e., PW.2, Puppala Jagadeesh i.e., PW.3. Hence, both PWs 2 and 3 came to him at about 11.00 a.m., in the month of July 2015 and

Spl. SC No. 36 of 2015 7 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad complained to him against the accused and requested him to come along with them to lodge a complaint to the police, but he refused to join them and in the meantime the accused 1 to 4 came to him while he was standing in the cross roads near his house, abused him saying “Koya

Lanja Kodaka” and asked him as to why he was getting involved in the land disputes between them and PWs 2 and 3 and the said abuses flung at him were heard by PWs 2 to 7 and hence he went to the police station and lodged complaint. He stated that Ex.P.1 is his complaint, while Ex.P.2 is the survey report, which bears his signature.

10) PW.2 stated that he knows PW.1 and the accused apart from PWs 3 to 7 as they all belong to Jajjarvelli village, which is near their lands. He stated that one day in the month of July 2015 at about 1.00 p.m., while he was returning from home, he saw PW.1 standing in the cross roads in front of his house. Hence, he told him that he came to know that the boundaries fixed by the Survey officials were removed by the accused 1 to 3, as such they have to get the land resurveyed and at that time the accused 1 to 4 came to the said place and the accused no.1 abused PW.1 saying “Koya naariga, lanja kodaka, etc.,” in the presence of PWs 3 to 7, later the accused no.2 came to the said place and abused PW.1 saying “Koya Naariga, Lanjakodaka, Bayataki rara, etc.,”, then the accused no.3 came to the said place on a motorcycle and he also abused PW.1 using the same words stated by the accused 1 and 2, while the accused 1 to 3 were abusing PW.1, the accused no.4 along with one Rajasekhar started shouting that if the accused 1 to 3 support him he would tear PW.1 into pieces with a knife, but since PW.1 did not respond the accused 1 to 4 left

Spl. SC No. 36 of 2015 8 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad the said place and at that time PW.1 informed them that he was going to lodge complaint against the accused 1 to 4.

11) PW.3 stated that he knows PWs 1, 2, 4 to 7 and the accused 1 to 4.

He claimed that one day in the month of June 2015 at about 11.30 a.m., while he was attending to agricultural work in his land there was a discussion between them and the accused as to the boundaries fixed earlier were removed by the accused, later they approached PW.1, who was their sarpanch and asked him to come to the lands where boundaries were fixed, but PW.1 refused. Later at about 1.30 or 2.00 p.m., while he was proceeding to the house of PW.1 to complain to him he found PW.1 at the crossroads near his house, where PWs 2, 4 to 7 were present along with him and at that time the accused 1 to 4 came to the said place and abused PW.1 saying “Koya lanjakodaka, nuvvu cheyabatti ma bhumulu pothunnai, nuvvu yemaina MRO va, etc.,”. The accused no.4 further stated that he would strip the stomach of PW.1 with a knife if the accused 1 to 3 support him and hence PW.1 lodged a complaint.

12) PWs 4 to 7 stated that though they know PWs 1 to 3 and the accused, they do not know anything about the offence. They denied having made any statements saying that they have witnessed the accused abusing PW.1 in the name of his caste and threatening him. PW.5 alone stated that he came to know about the quarrel with regard to the boundaries between the persons to whom the said lands belonged to and nothing more.

13) PW.8 stated that while he was working as Sub Inspector of Police,

Bheemini he received a complaint from PW.1 vide Ex.P.1 on 15.07.2015

Spl. SC No. 36 of 2015 9 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad and hence registered Cr.No.61 of 2015 and sent the same to the court apart from the copies to the concerned authorities. Later sent a radio message to the Superintendent of Police seeking for appointment of investigating officer and then he handed over the case file to the Sub

Divisional Police Officer, Bellampalli.

14) PW.9 stated that while he worked as Tahsildar of Bheemini he issued caste certificates of PW.1 and the accused no.4 stating that PW.1 hails from Koya caste while the accused no.4 hails from Madiga caste.

PW.10 stated that while working as Tahsildar of Nennel he issued caste certificate pertaining to accused 1 to 3 on the requisition of the Sub

Divisional Police Officer, Bellampalli stating that the accused no.1 hails from Golla caste of Backward community, while the accused 2 and 3 hail from Munnur Kapu caste of Backward community.

15) PW.11 stated that while working as Sub Divisional Police Officer at

Bellampalli he received an authorization letter from the Superintendent of

Police to investigate in Cr.No.61 of 2015, as such he took up investigation, visited the scene of offence, recorded the statements of PWs 1 to 7, drew the rough sketch of the scene of offence, collected the land documents including panchanama conducted by the Survey and Land record officials, patta passbook of S.No.201 i.e., the crime property, drew rough sketch of the scene of offence, sent a requisition to PWs 10 and 11 for issuance of caste certificates of PW.1 and the accused 1 to 4, received the same, later on 24.08.2015 the Sub Inspector of Police, Bheemini apprehended the accused no.1 and produced him before him, as such he interrogated him and the accused no.1 confessed about the crime voluntarily along with the

Spl. SC No. 36 of 2015 10 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad accused 2 to 4, as such he affected his arrest and after complying with section 50 of CrPC sent him for judicial remand. Later on 24.08.2015 notices were served on the accused no.1 under section 41 CrPC and he undertook to appear before the court during the proceedings and on 26.08.2015 the accused 2 and 3 surrendered before the Judicial First

Class Magistrate, Bellampalli. He stated that his investigation revealed that the accused and PW.1 were involved in land disputes pertaining to

PWs 2 to 4 and as such they abused PW.1 in the name of his caste and also threatened him stating that he was supporting PWs 2 to 4. He claimed that PWs 4 to 7 stated before him as in their 161 CrPC statements. Hence, he filed charge sheet under section 506 IPC against the accused 1 to 4 and under section 3 (1)(x) of SCs/STs (POA) Act, against accused 1 to 3.

16) A perusal of the said evidence of the prosecution witnesses shows that the following are the admitted facts: 1) PW.1 is the sarpanch of

Jajjarvelli village, 2) the prosecution witnesses and the accused are known to each other and 3) accused 1 to 3 hail from backward class while the accused no.4 hails from scheduled caste community. Hence, the same are not required to be proved by the prosecution. Now the points for consideration are:

1) Whether there was any survey with regard to the lands pertaining to S.No.201, 202 and 203 of Jajjarvelli village?

2) Whether PW.1 participated in the said survey as a witness?

3) Whether the boundaries fixed to the said lands by the

Surveyors have been removed and as such there were land disputes between the prosecution witnesses i.e., PWs 2 to 4 and the accused? And

Spl. SC No. 36 of 2015 11 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad

4) Whether in view of the said participation of PW.1 in the survey, the accused believed that he was supporting PWs 2 to 4 and hence abused him in the name of his caste?

17) Point No.1: The prosecution contended that they have filed Ex.P.2 to support their contention that there was a survey of lands in S.Nos. 201 to 203 on 15.07.2015 and that PW.1 was one of the witnesses to the said panchanama of fixing boundaries after the survey. The accused, on the other hand, denied that any such survey was conducted by the survey authorities. A perusal of Ex.P.2 shows that the same is a Xerox copy with the nomenclature as „Panchanama‟, but the same neither contains the seal of the office nor mentions the name of the Inspector of Survey, who allegedly conducted the said panchanama. The same is neither a certified copy nor the original of the alleged survey. It is a simple Xerox copy attested by the Sub Divisional Police Officer of Bellampalli. Hence, the said document does not come to the rescue of the prosecution to show that there was any survey conducted on the date alleged by PW.1 or the prosecution. Even the evidence of PWs 2 and 3, who are alleged to be the land owners in S.No.201, did not mention that any survey was conducted as per Ex.P.2. All that they stated is the boundary stones fixed in the survey have been removed by the accused and nothing more. The said statements of PWs 2 and 3 do not support the statement of PW.1 that a survey was held on 15.07.2015 as shown under Ex.P.2.

18) Point No.2: A perusal of Ex.P.2 shows that the same is alleged to have been signed by one Narayana, but as stated earlier the said document is neither established nor proved by the prosecution as the same is only a Xerox copy and not a certified copy and is simply attested

Spl. SC No. 36 of 2015 12 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad by the investigating officer i.e., PW.11 and hence has no evidentiary value, as such the alleged signature on the said panchanama as shown under Ex.P.2 cannot be accepted by the court when the document itself is not acceptable to the court.

19) Point No.3: The allegation of the prosecution is that the boundaries fixed by the survey officials pertaining to the lands in S.No.201 to 203 have been removed by the accused. Pws 2 and 3 supported the said contentions of the prosecution as they stated that since the boundaries fixed by the survey officials have been removed by the accused, they have approached PW.1, who was the sarpanch of their village to come and inspect the said lands and then lodge complaint against the accused, but a perusal of the cross-examination of the said two witnesses shows that though they stood by their statements that the boundaries were fixed after a survey, they did not mention what extent of land from S.No.201 in which they allegedly possess land was occupied by the accused or got mixed in S.No.202 or 203. They did not specify as to how much of their land was occupied by the accused by way of removing the boundaries alleged to have been fixed by the surveyors. There is also no evidence on record to show that PWs 2 and 3 have lodged any complaint to the police with regard to the accused removing the boundaries fixed by the survey officials with regard to the land in S.No.201 in which they have lands and then occupied the same illegally. The prosecution also failed to adduce evidence of any eyewitnesses to show that the boundaries alleged to have been fixed by the survey officials have been removed by the accused. So there is absolutely no evidence whatsoever to show that the boundaries of the lands in S.No.201 have been removed by the accused.

Spl. SC No. 36 of 2015 13 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad

20) The prosecution also contended that in view of the removal of the said boundaries there were disputes between the accused and PWs 2 to 4.

A perusal of the evidence of PWs 2 to 4 shows that none of them stated that they have any direct disputes with the accused with regard to the alleged removal of boundaries fixed in S.No.201 to 203. None of them have stated that they have entered into any kind of arguments with each other. It is only PW.3, who stated that there was a discussion with regard to the removal of boundaries fixed by the survey authorities between him and the accused, but mere having discussion does not mean that there were disputes between the accused and PWs 2 to 4. PWs 2 and 3 did not mention even about the said discussions as stated by PW.1. In fact PW.4, who is alleged to be one of the owners of lands in S.No.201 denied the very knowledge abut the disputes and as such the statement of PW.1 that there was a quarrel between the accused and the other land owners i.e.,

PWs 2 and 3 is not supported by PWs 2 and 3 themselves. Hence, the court finds that no evidence is adduced by the prosecution to support their contention that there were disputes between the accused and PWs 2 to 4 with regard to the lands.

21) Point No.4: The contention of the prosecution is that since PW.1 signed on the survey report as a witness the accused believed that he was supporting PWs 2 to 4, hence developed grudge against him and abused him on the date of the offence in the name of his caste by using foul language. A perusal of the evidence of PW.1 shows that in the month of

July 2015 at about 11.00 a.m., PWs 2 and 3 came to him and complained against the accused and requested him to come and lodge a complaint to

Spl. SC No. 36 of 2015 14 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad the police, but he refused to go with them and at that time the accused 1 to 4 came to him to the said place and abused him in the name of his caste and questioned him his authority for getting involved in the land disputes between them and PWs 2 and 3 and that they abused him in the name of his caste in the presence of PWs 2 to 7. He stated that the accused abused him saying “Koya Lanja Kodaka” while questioning his authority in interfering with the land disputes between them and PWs 2 and 3. While, the statement of PW.2 shows that he also stated that the accused 1 to 4 came to the cross-roads where PW.1 was standing in front of his house and abused him one after the other using literally the same words i.e., “Koya Naariga, Lanja kodaka”. He stated that the accused no.2 went further by demanding PW.1 to come out by saying “baitiki rara” and the accused no.4, who came later threatened him that he would cut him into pieces if the accused 1 to 3 support him, which goes to show that the accused 1 to 4 have come one after the other and abused PW.1 literally using the same words. PW.3 stated that when he approached

PW.1 asking him to come to the lands where the boundaries were fixed to see that the same were removed, the accused 1 to 4 came to the said place and abused PW.1 saying “Koya Lanja Kodaka, nuvvu cheyyabatti ma bhumulu pothunnai, nuvvu yemaina MRO va, etc.,”. The said statement of PW.3 goes to show that all the accused have come at one time and abused PW.1 in the name of his caste, but the words alleged to have been flung at PW.1 by the accused 1 to 4 is much different from the words used by PW.1 on one side and PW.2 on the other. He also differed with regard to the statement of the accused no.4 about he stripping the stomach of

PW.1 with a knife. He also contended that PWs 2 and 4 to 7 were present

Spl. SC No. 36 of 2015 15 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad at the time of the said offence, but a perusal of the evidence of PWs 4 to 7 shows that all of them denied the very knowledge of the incident. They did not mention that they were present at the time of the offence and witnessed the alleged abuses flung by the accused against PW.1.

22) Hence, when the said evidence of PWs 1 to 3 is read with the evidence of PWs 4 to 7, the same shows that four out of the seven eyewitnesses turned hostile and did not support the statement of the prosecution and the three witnesses, who supported the prosecution, failed to corroborate with each other with regard to the alleged words of using foul language in the caste of PW.1 differed from one another. If

PWs 1 to 3 were present at the place of offence at the same time and if they have heard the accused 1 to 4 abusing or threatening PW.1, then the question arises is why did they differ from each other with regard to the alleged words used by the accused against PW.1. What is also peculiar in this case is PW.5, who is none other than the brother of PW.1, also turned hostile and did not support the statements of PWs 1 to 3 that the accused abused PW.1 in the name of his caste using foul language and thus this court concludes that the contention of the prosecution that the accused abused PW.1 in the name of his caste using foul language is also not established by the prosecution.

23) All that the prosecution established in this case is that the accused 1 to 3 belong to backward class, the accused no.4 belongs to scheduled caste and PW.1 belongs to scheduled tribe community and nothing more.

There is absolutely no evidence to show that the accused abused or threatened PW.1 in the name of his caste and to rip him into pieces as

Spl. SC No. 36 of 2015 16 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad stated by the prosecution. What is also peculiar in this case is PW.1 himself did not mention that the accused no.4 threatened to cut him into pieces by ripping his stomach as stated by PWs 2 and 3. Thus there is absolutely no evidence whatsoever on record to establish that the accused 1 to 3 abused PW.1 in the name of his caste using foul language and accused no.4 threatened PW.1 to do away with his life as alleged by the prosecution. Hence, decides this point against the prosecution.

24) IN THE RESULT, the accused 1 to 4 are found not guilty under section 235 (1) CrPC for the offence under section 506 IPC and the accused 1 to 3 are found not guilty under section 235 (1) CrPC for the offence under section 3 (1)(x) of SCs/STs (POA) Act, 1989 and hence the accused 1 to 4 are acquitted on the said charges. Unmarked property, if any, shall be destroyed after the appeal time is over.

Dictated to the stenographer, transcribed by him and after correction

pronounced by me in open court this the 17th day of January 2017.

SESSIONS JUDGE

FAC: SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA) Act-cum-V ADDL.

DISTRICT AND SESSIONS JUDGE ADILABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

Naitham Narayana – De facto- PW.1 N O N E complainant & victim PW.2 Thota Shankar – Eye witness

PW.3 Puppala Jagadeesh – Eye witness Porishetti Thirupathi – Circumstantial PW.4 witness Naitham Ramulu – Circumstantial PW.5 witness

Spl. SC No. 36 of 2015 17 On the file ofSpl. Judge for trial of cases under Scs/Sts (POA) act- cum-V Addl. Sessions judge Adilabad

PW.6 Lingampalli Rajesh – Eyewitness

PW.7 Jadi Rajalingu – Eyewitness

PW.8 K. Vittal – I.O., Issued FIR

PW.9 J. Mallaiah – Tahsildar

PW.10 G. Veeranna – Tahsildar

PW.11 A. Ramana Reddy – SDPO – I.O.,

EXHIBITS MARKED

Ex.P.1 Complaint given by PW.1 to police NIL

Ex.P.2 Survey report

Ex.P.3 161 CrPC statement of PW.4

Ex.P.4 161 CrPC statement of PW.5

Ex.P.5 161 CrPC statement of PW.6

Ex.P.6 161 CrPC statement of PW.7

Ex.P.7 First Information Report

Ex.P.8 Requisition of PW.8

Ex.P.9 Caste certificate of PW.1 and A.4

Ex.P.10 Caste certificates of A.1 to A.3 Proceedings issued by the S.P., Ex.P.11 Adilabad Ex.P.12 Rough sketch

MOs MARKED

NIL

SESSIONS JUDGE

FAC: SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA) Act-cum-V ADDL.

DISTRICT AND SESSIONS JUDGE ADILABAD

MVOP/210/2012

Goli Baby Sree vs Daheke Pradeep

12 Jan 2017

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENT CLAIMS

TRIBUNAL – CUM – V ADDL. DISTRICT JUDGE, ADILABAD

Present:

Smt. G. Udaya Gouri,

CHAIRMAN, MACT-CUM-PRINCIPAL DISTRICT JUDGE,

FAC: V ADDITIONAL DISTRICT JUDGE

ADILABAD

THURSDAY THE 12 TH DAY OF JANUARY 2017

MVOP NO: 210 OF 2012

Between:

1)Goli Baby Sree W/O. late Goli Srikanth, Age: 22 yrs, Coolie

2)Goli Sudershan S/O. Bhumanna, Age: 45 yrs, agriculture

3)Goli Pushpa W/O. Sudershan, Age: 40 yrs, agriculture

4)Goli Nagarjun S/O. Sudershan, Age: 20 yrs, Student, All R/O. H.NO.1-22, Awalpur village, Bela Mandal, Adilabad district

.... PETITIONERS

// AND //

1)Dahake Pradeep S/O. Chudaman, Age: Major Occ: Business 7 Owner of TATA 407 vehicle bearing No.MH.33.2222 R/O. Wirur, Taluq. Rajura, Chandrapur district, Maharashtra

2)Reliance General Insurance Company Limited Represented by its Manager, Registered office: Reliance Centre, 19, Walchand Hirachand Marg, Ballard Estate, Mumbai, Corporate Office: Situated at 570, Nalgaum Cross Road, Next to Royal Ndustrial Estate, Wadala (W), Mumbai

... RESPONDENTS

This original petition coming on before me for final hearing on 09.01.2017 in the presence of Sri A. Amarender Reddy, Advocate for petitioners and Sri K. Ajay Kumar, Advocate for respondent no.2, while the respondent no.1 remained exparte and on hearing both sides and the matter having stood over for consideration till this day this court made the following:

A W A R D

1) This is a petition filed under section 166 (1)(C) of the Motor Vehicles

Act 1998 r/w Rule 455 of A.P. Motor Vehicle Rules 1989.

2) The averments made in the petition are as follows:

i) The petitioners stated that the petitioner no.1 is the wife, petitioners 2 and 3 are the parents and petitioner no.4 is the brother of the deceased Goli Srikanth, who was aged about

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 2 of 16 25 years and earning Rs.8,000/- per month as salary from

Adilabad Cement Pipe Industries and Rs.5,000/- per month from agriculture totaling to Rs.13,000/- per month.

ii) The petitioners further stated that on 14.02.2012 while the said Srikanth was proceeding on his motorcycle from

Awalpur village to Arli village on Jainath – Bela road and reached Makoda village cross roads a TATA 407 vehicle bearing No.MH.33.2222 came at high speed and in rash and negligent manner from the opposite direction and dashed against his motorcycle, as such the said Srikanth fell down from his motorcycle, suffered fracture on his skull and injuries on other parts of the body and died on the spot.

iii) The petitioners stated that the deceased Srikanth was hale and healthy prior to the accident and was contributing his entire earnings for the maintenance of the petitioners, but as a result of his sudden demise the petitioners not only suffered from pain, shock and agony, but have also suffered from loss of financial, social and moral support. They also claimed that the petitioner no.1 also suffered from loss of consortium and the petitioners 2 and 3 suffered loss of old age support, while the petitioner no.4 suffered loss of guidance and as such contended that they are entitled for compensation of Rs.10,00,000/-.

iv) The petitioners claimed that the respondent no.1 being the owner of the TATA 407 vehicle bearing No.MH.33.2222

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 3 of 16 and the respondent no.2 with whom the said vehicle is insured vide insurance cover note no.111000377009 are liable to pay him the compensation jointly and severally and hence prayed that the respondents be directed to pay the said compensation.

3) The respondent no.1 remained exparte, while the respondent no.2 filed counter denying the averments made by the petitioners. They claimed that the accident that took place on 14.02.2012 was not due to the negligence on the part of the TATA vehicle bearing No.MH.33.2222, but it was due to the negligence on the part of the deceased, who was riding the motorcycle without following the traffic rules. They claimed that since the accident was due to the negligence on the part of the deceased, the petitioners are not entitled for any compensation. They also claimed that the deceased did not have a driving licence, so also the driver of the

TATA vehicle and that the respondent no.1 did not inform them about the accident or about the registration of crime against the accident vehicle, which is also violation of terms of the policy and hence claimed that even on the said ground the petitioners are not entitled for compensation.

They also pointed out that since the owner of the motorcycle involved in the accident and its insurer are not made as parties to the present petition, the petition is liable to be dismissed for non joinder of parties.

They denied the age and income of the deceased apart from denying that the petitioners were depending on the deceased. They claimed that the petitioners neither suffered from any loss of financial, social or moral support nor any other losses due to the demise of the said Srikanth. They claimed that the compensation claimed by the petitioners is exorbitant

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 4 of 16 and hence without any basis, as such prayed that the petition be dismissed.

4) On the basis of the said averments by both sides, the court framed the following issues:

1.Whether the accident took place as alleged by the petitioners on 14.02.2012 at about 17.25 hours near

Makoda village X-road on Jainath-Bela road of Adilabad district, resulting in the death of Goli Srikanth on account of rash and negligent driving of the driver of the TATA 407 vehicle bearing No.MH.33.2222 belonging to the first respondent or whether there was any negligence on the part of the deceased?

2.Whether there was any insurance coverage for the TATA 407 vehicle bearing No.MH.33.2222 and if so, does the policy cover the risk of deceased and if so, was there any breach of policy condition alleged by the respondents?

3.What were the age, avocation and the earnings of the deceased?

4.Whether the petitioners are entitled to any compensation, if so, to what extent and against whom?

5.To what relief?

5) The said issued framed by my predecessor have been reframed as follows for the purpose of convenience:

1.Whether an accident took place on 14.02.2012 due to rash and negligent driving of TATA 407 vehicle bearing

No.MH.33.2222 by its driver or whether the accident was due to the negligence on the part of the deceased, who was riding the motorcycle at the time of the accident?

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 5 of 16

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

3.To what relief?

6) The petitioners, in support of their case, examined the petitioner no.1 as PW.1, an eyewitness as PW.2, the Managing Partner of the employment of the deceased as PW.3 apart from marking Exs.A.1 to A.7 consisting of the copies of the first information report, postmortem report,

MVI report, charge sheet, SSC memo, Salary certificate of deceased and the copy of insurance policy, while the respondent no.2 examined RW.1 and marked Exs.B.1 and B.2 consisting of the copies of the policy and cover note.

7) Heard both sides.

ISSUE NO.1:

8) The contention of thee petitioner is that an accident took place on 14.02.2012 due to the negligence on the part of the TATA 407 vehicle bearing No.MH.33.2222. The respondents, on the other hand, contended that the said accident was not due to the negligence on the part of the

TATA vehicle, but it was due to the negligence on the art of the deceased, who was proceeding at the time of the accident on his motorcycle from

Awalpur village to Arli village.

9) A perusal of the evidence on record shows that the petitioners, who examined the petitioner no.1 as PW.1 stated that on 14.02.2012 at about 5.25 p.m., the deceased Srikanth was proceeding from Awalpur village to

Arli on Jainath-Bela road and when he reached near Makoda village

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 6 of 16 crossroads the TATA vehicle bearing No.MH.33.2222 came at high speed in rash and negligent manner from opposite direction and dashed against his motorcycle and that the said accident was due to the negligence on the part of the TATA vehicle. The said statement of PW.1 is further supported by PW.2, who is an eyewitness, who stated that at the time of the accident he was near the place of accident i.e., Makoda crossroads and at that time he saw the deceased Goli Srikanth going on his motorcycle and reached Makoda crossroads and at that time the TATA vehicle bearing No.MH.33.2222 coming at high speed in rash and negligent manner from opposite direction and dashing against his motorcycle.

10) The said statements of PWs 1 and 2 are also supported by the documentary evidence adduced by the petitioner i.e., Ex.A.1, which is the first information report copy and the Motor Vehicle Inspector report i.e.,

Ex.A.3 and the copy of the charge sheet filed vide Ex.A.4. A perusal of

Ex.A.1 first information report shows that admittedly an accident took place on 14.02.2012 involving the deceased Srikanth, his motorcycle and

TATA vehicle bearing No.MH.33.2222, while a perusal of Ex.A.3 shows that the said accident was not due to any mechanical failure and Ex.A.4 shows that the concerned police have investigated into the accident and found that the negligence was entirely on the part of the TATA vehicle bearing No.MH.33.2222. The said evidence adduced by the petitioners is neither countered nor rebutted by the respondents.

11) RW.1 stated that the said averments made by PWs 1 and 2 and the contents of Exs.A.1, A.3 and A.4 are not correct as the accident was not

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 7 of 16 due to the negligence on the part of the TATA vehicle, but it was due to the negligence on the part of the deceased, who was riding the motorcycle bearing No.AP.01.R.4392 as per their investigator and in order to cover up the lacunae that the motorcycle did not have insurance and the deceased did not have a driving licence they have implicated the TATA vehicle in order to claim compensation, but admittedly the said evidence of RW.1 is based o the information gathered by the retainer of respondent no.2 company, it cannot be admitted before this court as the said report of the retainer is of no evidentiary value before this court apart from the fact that the same is not filed in this court. Hence, the said evidence of RW.1 does not counter or rebut the evidence of PWs 1 and 2 and the contents of

Exs.A.1, A.3 and A.4. Hence, the court concludes that the said evidence adduced by the petitioners through PWs 1 and 2 and the contents of

Exs.A.1, A.3 and A.4 is sufficient to establish that the accident that took place on 14.02.2012 was entirely due to the negligence on the part of the

TATA vehicle bearing No.MH.33.2222 and hence decides this issue in favour of the petitioners.

ISSUE No.2:

12) The contention of the petitioners is that in the accident that took place on 14.02.2012 due to the negligence of the TATA vehicle bearing

No.MH.33.2222, the husband of the petitioner no.1, son of petitioners 2 and 3 and the brother of petitioner no.4 namely Goli Srikanth, who was riding the motorcycle bearing No.AP.01.R.4392 suffered injuries and died on the spot and as such they have not only suffered from pain, shock and agony, but have also suffered from loss of financial, social, moral support apart from other losses and as such they are entitled for compensation.

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 8 of 16

13) The respondents, on the other hand, contended that the petitioners are not entitled for any compensation in view of the fact that the accident was not due to the negligence on the part of the TATA vehicle, but it was due to the negligence on the part of the deceased, who was riding the motorcycle bearing No.AP.01.R.4392 in rash and negligent manner and as such claimed that any losses suffered by the petitioner are due to the negligence of the deceased only and hence the respondent no.2 is not liable to pay any compensation. Even otherwise they contended that the respondent no.1 violated the terms of the policy in view of the fact that the driver of the TATA vehicle did not have a valid driving licence at the time of the accident nor did the respondent no.1 inform them about the accident or registration of the crime which is mandatory on the part of respondent no.1 as per the terms of the policy.

14) in the face of the said contentions by both sides the court perused the evidence on record and found that the petitioners through the oral evidence of PWs 1 and 2 and the contents of Exs.A.1, A.3 and A.4 i.e., the first information report, Motor Vehicle Inspector Report and the charge sheet have already established that the accident that took place on 14.02.2012 was entirely due to the negligence on the part of the TATA vehicle bearing No.MH.33.2222. The respondent no.2, who contended that the driver of the TATA vehicle did not have a driving licence and that the respondent no.1 did not inform them about the accident or registration of the crime, failed to adduce any evidence to that affect.

They neither filed any document before this court to show that they have taken any steps calling for the driving licence of the driver of the TATA

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 9 of 16 vehicle or information from the respondent no.1 with regard to the accident. In the absence of such evidence the court concludes that the respondent no.2 cannot claim any negligence either on the part of the deceased or on the part of respondent no.1.

15) The respondent no.2 also contended that the petitioners are falsely claiming that the cover note bearing No.111000377009 is the cover note pertaining to the TATA vehicle bearing No.MH.33.2222 in order to falsely claim the compensation in this case. A perusal of the cover note filed by the petitioners vide Ex.A.7 shows that the contents of the same are not legible, while a perusal of the cover note filed by the respondent no.2 vide

Ex.B.2 and the policy vide Ex.B.1 shows that the cover note bearing

No.111000377009 pertains to a Hyundai Santro Xing XK ERLX EURP III vehicle and not to the TATA vehicle bearing No.MH.33.2222. In the absence of evidence to show that the vehicle of the respondent no.1 i.e., the TATA vehicle bearing No.MH.33.2222 is insured with respondent no.2 the petitioners cannot claim compensation from the respondent no.2 and as stated earlier the cover note claimed by the petitioners is not pertaining to the TATA vehicle that is involved in the accident and hence concludes that the petitioners cannot claim compensation from the respondent no.2, though they are entitled for compensation in view of the fact that the deceased Goli Srikanth died in the accident due to the negligence of TATA vehicle bearing No.MH.33.2222.

16) The contention of the petitioners is that the deceased Goli Srikanth was aged 25 years at the time of the accident and the same is denied by the respondents. The respondents contended that the petitioners have

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 10 of 16 not filed any document in proof of the age of the deceased and the evidence on record admittedly shows that the petitioners have not filed any date of birth certificate of any other document in support of the age of the deceased. The record also shows that even the respondents, who denied the age of the deceased, did not file any document in support of their denial. Hence, the court relied on the documentary evidence already on record and found that Ex.A.2 i.e., the postmortem report mentions the age of the deceased as 25 years. Since the said document is issued by the medical authorities and the age mentioned therein is neither countered nor rebutted by the respondents, this court concludes that the age of the deceased as 25 years can be accepted for the purpose of assessing compensation.

17) The contention of the petitioners is that the deceased Srikanth was aged 25 years and earning Rs.8,000/- per month from salary from

Adilabad Cement Pipe Industry and Rs.5,000/- from agriculture totaling to

Rs.13,000/- per month. The respondents, on the other hand, denied the same and pointed out that the petitioners have not adduced any concrete evidence to that affect. A perusal of the evidence on record shows that the petitioners have examined PW.3 who is the Managing Partner of

Adilabad Cement Pipe Industries at Mavala and he stated that Ex.A.6 is the salary certificate issued by him showing the income of the deceased as

Rs.8,000/- per month. A perusal of Ex.A.6 i.e., the salary certificate shows that the same is issued by PW.3, but the same does not show that

PW.3 has adduced any evidence to show that he is the Managing Partner of Adilabad Cement Pipe Industries, Mavala. In the absence of such evidence, this court concludes that the evidence of PW.3 cannot be relied

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 11 of 16 on for the purpose of assessing the income of the deceased. The petitioners have not filed any document before this court to show that they have any agriculture land either in the name of the deceased or in the name of the petitioners. As such there is no evidence on record to show that the deceased had income from agriculture as well. In the absence of such evidence this court concludes that the income of the deceased can only be assumed on par with daily wages labourer in the open market which is nothing less than Rs.150/- per day amounting to

Rs.4,500/- per month and Rs.54,000/- per annum for the purpose of assessing compensation.

18) The petitioners claimed an amount of Rs.2,000/- towards transportation charges and the same is resisted by the respondents. The evidence on record shows that the deceased was a resident of Awalpur village, met with an accident at Makoda cross roads and as such suffered injuries and died on the spot. Hence, his body was shifted to the

Government Hospital for postmortem examination and back to his residence. Hence, the court concludes that the petitioners would have incurred transportation charges for shifting the deceased from the place of accident to the hospital and back to their residence and hence concludes that Rs.2,000/- claimed by the petitioners is quite reasonable and hence awards the same.

19) The petitioners claimed an amount of Rs.20,000/- towards funeral expenses and the same is resisted by the respondents. The evidence on record shows that the petitioner no.1 is the wife, petitioners 2 and 3 are parents and petitioner no.4 is the brother of the deceased Goli Srikanth,

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 12 of 16 who died in the accident due to the negligence of the TATA vehicle on 14.02.2012 and as such the court concludes that the petitioners being the family members of the deceased would have performed the funeral rites of the deceased and hence would have incurred expenses for the same and as such awards Rs.20,000/- as claimed by the petitioners towards funeral expenses.

20) The petitioners claimed an amount of Rs.2,000/- towards damages to clothing and the same is resisted by the respondents. The evidence on record shows that the deceased died as a result of the injuries suffered by him in the accident. Hence, the court concludes that the clothes of the deceased would have been damaged and hence awards Rs.1,000/- towards damages to clothing.

21) The petitioners claimed an amount of Rs.24,000/- towards damages to the motorcycle in the accident and the same is resisted by the respondents. The evidence on record shows that though the petitioners contended that the deceased died in the accident they have not mentioned that the motorcycle involved in the accident got damaged nor did they adduce any evidence either oral or documentary to that affect.

Hence, in the said circumstances, this court concludes that the petitioners failed to establish that the motorcycle of the deceased got damaged in the accident. Hence, rejects the claim of compensation on the said ground.

22) The petitioners claimed an amount of Rs.50,000/- towards no fault liability and the same is resisted by the respondents. The evidence on record shows that the petitioners filed the claim petition under section 166 of the Motor Vehicles Act and hence the question of the petitioners being

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 13 of 16 entitled for compensation under no fault liability does not arise. Hence, rejects the claim of compensation made by the petitioners on the ground of no fault liability.

23) The petitioners claimed an amount of Rs.25,000/- towards pain and sufferance, Rs.8,75,000/- towards loss of future earning power, love and affection, etc., totaling to Rs.9,00,000/- and the same is resisted by the respondents. The evidence on record shows that the petitioners have already established through their oral and documentary evidence that the deceased Goli Srikanth, who is the husband of petitioner no.1, son of petitioners 2 and 3 and the brother of petitioner no.4, suffered injuries in the accident that took place on 14.02.2012 due to the negligence of the

TATA vehicle bearing No.MH.33.2222 and succumbed to the same and as such the court concluded that the petitioners are entitled for compensation. Hence, in order to assess the said compensation the court relied on the second schedule of section 163-A of the Motor Vehicles and found that the same provides multiplier as 17 for a person aged 25 years.

Hence, the court applied the multiplier 17 to the assumed annual income of the deceased i.e., Rs.54,000/- and arrived at Rs.9,18,000/- and out of the same the court deducted 1/3rd i.e., Rs.3,06,000/- towards personal expenses of the deceased as provided under the same schedule and arrived at Rs.6,12,000/-. Hence, the court concludes that the petitioners are entitled for compensation of Rs.6,12,000/- towards loss of life, love and affection, future earning power, etc.,

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 14 of 16

24) Thus the court finds that the petitioners are entitled for the following compensation.

1 Transportation charges 2,000-00 2 Funeral expenses 20,000-00 3 Damages to clothing 1,000-00 4 Loss of love and affection, life, etc., 6,12,000-00 TOTAL 6,35,000-00

Totaling to Rs.6,35,000/- (Rupees six lakhs thirty five thousand only).

25) The contention of the petitioners is that the respondent no.1 being the owner of the TATA vehicle bearing No.MH.33.2222 and the respondent no.2 with whom the said TATA vehicle is insured vide cover note

No.111000377009 as shown under Ex.A.7 are liable to pay them the compensation jointly and severally. The evidence on record shows that though the respondent no.1 did not contest the matter and the respondent no.2 contended that the vehicle involved in the accident i.e., the TATA vehicle bearing No.MH.33.2222 is not covered under the cover note as shown under Ex.A.7 and substantiated the same with both the policy and the cover note vide Exs.B.1 and B.2 and as such the court concluded that the TATA vehicle involved in the accident i.e., the vehicle bearing No.MH.33.2222 is not insured with respondent no.2 and as such concluded that the respondent no.2 is not liable to pay any compensation.

The evidence on record also shows that the respondent no.1 did not contest the matter, as such the court concludes that the petitioners are entitled for compensation from the respondent no.1 only and hence decides this point accordingly in favour of the petitioners and the respondent no.2.

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 15 of 16

ISSUE NO.3:

26) IN THE RESULT the petition is dismissed against the respondent no.2, but is allowed against the respondent no.1 awarding compensation of Rs.6,35,000/- (Rupees six lakhs thirty five thousand only) along with costs and interest at 7.5% p.a., from the date of petition till realization of the same. The respondent no.1 is directed to deposit the compensation awarded along with the interest accrued thereon within two months from the date of this order with this tribunal. The petitioner no.1 being the wife of the deceased Srikanth is awarded Rs.3,00,000/- along with proportionate costs and interest, while the petitioners 2 and 3 being the parents of the deceased are awarded Rs.1,50,000/- each along with proportionate costs and interest and the petitioner no.4, who is the brother of the deceased, is awarded Rs.35,000/- along with proportionate costs and interest. The petitioners 1 to 3 are permitted to withdraw an amount of Rs.1,00,000/- each from the amount awarded to them and the balance of their amounts along with the interest accrued thereon shall be put in fixed deposit in a nationalized bank in their respective names for a period of three years. The petitioner no.4 is permitted to withdraw the entire amount of compensation awarded to him. Advocate’s fee is fixed at

Rs.5,000/-.

Dictated to the stenographer, transcribed by him and after correction

pronounced by me in open court this the 12th day of January 2017.

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

FAC: V ADDL. DISTRICT JUDGE

ADILABAD

O.P.No. 210 of 2012 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 16 of 16

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER FOR RESPONDENTS

PW.1 Goli Baby Sree RW.1: M. Madhukar

PW.2 Yenugu Sathish Reddy

PW.3 K. Narsimha Reddy

EXHIBITS MARKED

Attested copy of FIR in Cr.No.18 of Ex.A.1 Ex.B.1: Copy of policy 2012 of PS Jainath Ex.A.2 Attested copy of PME report Ex.B.2: Copy of cover note

Ex.A.3 Attested copy of MVI report

Ex.A.4 Attested copy of charge sheet

Ex.A.5 Original SSC memo of deceased

Ex.A.6 Salary certificate of deceased

Ex.A.7 Copy of insurance policy

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

FAC: V ADDL. DISTRICT JUDGE

ADILABAD

MVOP/347/2011 Acquitted

Md. Kaleemullah Khan vs Siraj Quadhri

17 Jan 2017

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENT CLAIMS

TRIBUNAL – CUM – V ADDL. DISTRICT JUDGE, ADILABAD

Present:

Smt. G. Udaya Gouri,

CHAIRMAN, MACT-CUM-PRINCIPAL DISTRICT JUDGE,

FAC: V ADDL. DISTRICT JUDGE

ADILABAD

TUESDAY THE 17 TH DAY OF JANUARY 2017

MVOP NO: 347 OF 2011

Between:

Md. Kaleemullah Khan S/O. Md. Abdul Khaleel Khan, Age: 45 years, Caste: Muslim, Occ: RTC mechanic, R/O. Shanthiagar, Adilabad, Adilabad district

.... PETITIONER

// AND //

Siraj Quadhri S/O. Ibrahim Quadhri, Age: 55 yrs, Occ: Business, R/O. Opp. Urdu Ghar Function Hall Bokkalaguda, Adilabad

... RESPONDENT

This original petition coming on before me for final hearing on 06.01.2017 in the presence of Sri N. Rajeshwar Rao, Advocate for petitioner and Sri A. A. Raheem, Advocate for the respondent and on hearing both sides and the matter having stood over for consideration till this day this court made the following:

A W A R D

1) This is a petition filed under section 166 (1)(A) of the Motor Vehicles

Act 1988 r/w Rule 455 of A.P. Motor Vehicle Rules 1989.

2) The averments made in the petition are as follows:

i) The petitioner stated that he is a resident of Shanthinagar of Adilabad, aged about 45 years and earning Rs.15,000/- per month as a mechanic in Adilabad RTC depot.

ii) The petitioner stated that on 09.03.2011 at about 8.00 p.m., he was proceeding on his motorcycle bearing

No.AP.01.H.3389 from Vinayak Chowk, Adilabad towards

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 2 of 14

Shad Nagar, Adilabad and when he reached near the Forest

Conservative Office, Adilabad, a motorcycle bearing

No.AP.01.H.1934 came at high speed, in rash and negligent manner from opposite direction and dashed against his motorcycle, as such the petitioner fell down, sustained fracture and dislocation of left shoulder, multiple injuries all over his body. As such he was shifted to Akhil Orthopedic

Hospital and then to Ayyappa Orthopedic Hospital apart from

RIMS Hospital, for the injuries suffered by him and ultimately to Yavotmal. He claimed that after he regained normalcy he lodged a complaint to the police, who registered Cr.No.19 of 2011.

iii) The petitioner stated that he was hale and healthy prior to the accident, but as a result of the injuries suffered by him in the accident he could not attend to his works and hence suffered loss of income apart from incurring medical expenses, suffering from pain, shock and agony and also disability. Hence, claimed that he is entitled for compensation of Rs.1,75,000/-. Hence, prayed that the respondent being the owner of the said motorcycle bearing

No.AP.01.H.1934 is liable to pay him the said compensation and prayed that the respondent be directed to pay the said compensation.

3) The respondent filed counter denying the averments made by the petitioner. He contended that the accident was not due to the negligence on the part of his motorcycle bearing No.AP.01.H.1934 but claimed that the said accident was due to the negligence on the part of the petitioner

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 3 of 14 himself, who was riding the motorcycle bearing No.AP.01.H.3389 and as such contended that he is not liable to pay any compensation to the petitioner. He pointed out that the petitioner did not have a driving licence at the time of the accident and hence he is not entitled for any compensation. He also stated that in view of the fact that there was no negligence on his part he was also acquitted in the criminal case pertaining to the accident by the court at Adilabad. He further stated that the petitioner has filed complaint before the police three and half months after the accident and the same goes to show that the petitioner has concocted the facts to claim compensation against him. He also claimed that since the accident was due to the negligence on the part of the motorcycle bearing No.AP.01.H.3389 on which the petitioner was proceeding at the time of the accident, the petitioner ought to have impleaded the owner and the insurer of the motorcycle in the present claim petition and the fact that he has not done so goes to show that the petition is liable to be dismissed for non-joinder of necessary parties. He also claimed that the compensation claimed by the petitioner is not only excessive but also exorbitant and hence prayed that the petition be dismissed.

4) On the basis of the said averments by both sides, the court framed the following issues:

1.Whether the accident took place as alleged by the petitioner on 09.03.2011 at about 8.00 p.m., opposite office of Conservator of Forest on main road in between to

Vinayak Chowk to NTR Chowk, Adilabad as alleged by the petitioner due to rash and negligent driving by the driver of motorcycle bearing No.AP.01.H.1934 of respondent or whether there was any contributory negligence on the part of the petitioner?

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 4 of 14

2.Whether the petitioner suffered injuries and disability as alleged?

3.Whether there was any insurance coverage for the driver of motorcycle bearing No.AP.01.H.1934 and if so, does the policy cover the risk of petitioner and if so, was there any breach of policy condition alleged by the respondent?

4.Whether the petition is bad for non-joinder of owner and insurer of motorcycle bearing No.AP.01.H.3389?

5.Whether the petitioner is entitled to any compensation, if so, to what extent and against whom?

6.To what relief?

5) The said issued framed by my predecessor have been reframed as follows for the purpose of convenience:

1.Whether an accident took place on 09.03.2011 due to rash and negligent driving of motorcycle bearing No.AP.01.H.

1934 or whether the accident was due to the negligence on the part of the petitioner, who was riding the motorcycle bearing No.AP.01.H.3389?

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

3.To what relief?

6) The petitioner, in support of his case, examined himself as PW.1 and marked Exs.A.1 to A.6 consisting of the copies of the first information report, charge sheet, injury certificate, bunch of prescriptions, x-ray film and xerox copy of discharge card. The respondent did not choose to adduce any oral or documentary evidence.

7) Heard both sides.

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 5 of 14

ISSUE NO.1:

8) The contention of the petitioner is that an accident took place on 09.03.2011 due to the rash and negligent riding of the motorcycle bearing

No.AP.01.H.1934. The respondent, on the other hand, contended that the accident was not due to the negligence on the part of the motorcycle bearing No.AP.01.H.1934, but it was due to the negligence on the part of the petitioner himself, who was riding the motorcycle bearing No.AP.01.H.

3389. A perusal of the evidence on record shows that the petitioner, who examined himself as PW.1 stated that on 19.03.2011 he was proceeding on his motorcycle bearing No.AP.01.H.3389 from Adilabad towards Shad

Nagar and at about 8.00 p.m., when he reached near the office of the

Conservator of Forest, Adilabad a motorcycle bearing No.AP.01.H.1934 came at high speed and in rash and negligent manner and dashed against his motorcycle. He pointed out that Ex.A.1 i.e., the first information report, Ex.A.2 i.e., the charge sheet support the said contentions.

9) A perusal of Ex.A.1 admittedly shows that an accident took place on 09.03.2011 involving the petitioner, his motorcycle bearing

No.AP.01.H.3389 and the motorcycle bearing No.AP.01.H.1934, while a perusal of the charge sheet i.e., Ex.A.2 shows that the concerned police have investigated into the accident and found that the negligence was on the part of the motorcycle bearing No.AP.01.H.1934. The said evidence both oral and documentary adduced by the petitioner is neither countered nor rebutted by the respondent. The respondent, who contended that the accident was due to the negligence on the part of the petitioner, who was riding the motorcycle bearing No.AP.01.H.3389, failed to adduce any evidence to that affect, nor did he adduce any evidence to show that the petitioner did not have a driving licence at the time of the accident.

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 6 of 14

Hence, in the absence of such evidence, this court concludes that the oral evidence of PW.1 and the contents of Exs.A.1 and A.2 i.e., the first information report and the charge sheet clearly establish that the accident took place on 09.03.2011 involving the petitioner, his motorcycle bearing

No.AP.01.H.3389 and the motorcycle bearing No.AP.01.H.1934 was entirely due to the negligence on the part of the motorcycle bearing

No.AP.01.H.1934. Hence, decides this issue in favour of the petitioner.

ISSUE No.2:

10) The contention of the petitioner is that in the accident that took place on 09.03.2011 due to the negligence of the motorcycle bearing

No.AP.01.H.1934 he suffered both simple and grievous injuries all over his body and as such incurred medical expenses, suffered from pain, shock and agony, suffered loss of income and also suffered from disability, as such he is entitled for compensation. The respondent, on the other hand, contended that the petitioner is not entitled for any compensation in view of the fact that the accident was due to his own negligence while riding the motorcycle bearing No.AP.01.H.3389. They contended that since the petitioner suffered injuries resulting in pain, shock and agony, loss of income and disability due to his own negligence, the petitioner is not entitled for any compensation. The evidence on record shows that the petitioner through his oral evidence as PW.1 and the contents of Exs.A.1 and A.2 i.e., the first information report and charge sheet has already established that the accident that took place on 09.03.2011 was entirely due to the negligence on the part of the motorcycle bearing No.AP.01.H.

1934 and the same was neither countered nor rebutted by the respondent.

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 7 of 14

11) The petitioner, in furtherance of his contention that the said accident resulted in injuries to him both simple and grievous, has not only filed the injury certificate vide Ex.A.3, but has also filed medical documents such as prescriptions, medical bills, x-rays, discharge card, etc., vide Exs.A.3 to

A.6 to support his contention that he has suffered injuries, as such suffered from pain, shock and agony, incurred medical expenses, hence was unable to attend to his duties in view of his treatment and as such suffered loss of income apart from suffering from disability. A perusal of

Ex.A.3 i.e., the injury certificate shows that the petitioner has suffered a fracture on the clavicle bone and suffered dislocation of left shoulder, which are of grievous nature and the said document also shows that the petitioner suffered the said injuries on 09.03.2011 in a road traffic accident and a perusal of Ex.A.4 i.e., the prescriptions and the medical bills show that they pertain to the treatment during period of accident, so also Ex.A.5 i.e., the x-ray film, while Ex.A.6 i.e., the discharge summary shows that the petitioner was under treatment as inpatient till 31.03.2011 in Dr. Phadke Hospital at Yavotmal.

12) Hence, when the said contents of Exs.A.3 to A.6 are read with the contents of Exs.A.1 and A.2 and the oral evidence of PW.1, the same clearly goes to show that in the accident that took place on 09.03.2011 involving the petitioner, his motorcycle bearing No.AP.01.H.3389 and the motorcycle bearing No.AP.01.H.1934 as shown under Ex.A.1 due to the negligence of the motorcycle bearing No.AP.01.H.1934 as shown under

Ex.A.2 charge sheet, the petitioner suffered grievous injuries i.e., fracture on clavicle bone and dislocation of left shoulder as shown under Ex.A.3 and hence was under treatment till 31.03.2011 and hence incurred medical expenses apart from suffering from pain, shock and agony and

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 8 of 14 hence could not attend to his work till 31.03.2011 as shown under Exs.A.3 to A.6. The said evidence is neither countered nor rebutted by the respondent. As such, the court concludes that since the petitioner suffered grievous injuries due to the negligence on the part of the motorcycle bearing No.AP.01.H.1934, the petitioner is entitled for compensation.

13) The contention of the petitioner is that he was aged 45 years and earning Rs.15,000/- per month as RTC mechanic at Adilabad. The respondent, on the other hand, denied the same and pointed out that the petitioner neither filed any document in support of his age or income. A perusal of the evidence on record admittedly shows that the petitioner neither filed any document showing his date of birth or his income. As such, the court relied on the documentary evidence already on record and found that Ex.A.3 i.e., the injury certificate and Ex.A.6 i.e., the discharge summary issued by the medical authorities mention the age of the petitioner as 45 years and the same is neither countered nor rebutted by the respondent. Hence, the court concludes that the age mentioned in

Exs.A.3 and A.6 can be accepted as the age of the petitioner, which corroborates with the claim of the petitioner. Hence, the court concludes that the petitioner was aged 45 years on the date of the accident for the purpose of assessing compensation.

14) As stated earlier, the petitioner claimed that he was earning

Rs.15,000/- per month as mechanic in RTC, Adilabad, but no documentary evidence is adduced to that affect. He has also not filed any document to show that he is qualified to work as mechanic in spite of the fact that the respondent has denied his income. The evidence of the respondent shows that though they have denied the income of the petitioner, they did not

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 9 of 14 contend that the petitioner was an unemployed person without any income of his own. As such, in the absence of evidence to show that the petitioner is a mechanic and has qualified to be so, the court concludes that the income of the petitioner can only be assumed on par with a daily wages labourer in the open market, which is nothing less than Rs.150/- per day amounting to Rs.4,500/- per month and Rs.54,000/- per annum for the purpose of assessing compensation.

15) The petitioner claimed an amount of Rs.20,000/- towards loss of earnings and the same is resisted by the respondent. The contention of the petitioner is that in view of the bone injuries suffered by him he literally could not attend to his work for about three months and during the said period he suffered loss of income. The evidence on record shows that the petitioner has filed an injury certificate vide Ex.A.3 and discharge summary under Ex.A.6. The same shows that the petitioner, who suffered injuries on 09.03.2011, has suffered a fracture on clavicle bone and dislocation of left shoulder and hence was under treatment as inpatient till 31.03.2011. Since the said injuries consisting of bone injuries, the court concludes that the petitioner would not be in a position to attend to his work for about three months in spite of his discharge on 31.03.2011 i.e., after a period of one month and as such the petitioner would be suffering from loss of income during the said period. Hence, the court awards the income of three months i.e., Rs.4,500/- x 3 amounting to Rs.13,500/- towards loss of income.

16) The petitioner claimed an amount of Rs.10,000/- towards transportation charges and the same is resisted by the respondent. A perusal of the evidence on record shows that the petitioner is a resident of

Adilabad and met with accident at Adilabad and hence was shifted to

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 10 of 14

Government Hospital at Adilabad i.e., RIMS and then to Yavotmal hospital as shown under Exs.A.3 and A.6 respectively. Hence, the court concludes that the petitioner would have incurred transportation charges for shifting himself from the place of accident to RIMS Hospital and then to the hospital at Yavotmal in Maharashtra and back to his residence and hence concludes that the compensation of Rs.10,000/- claimed by the petitioner is quite reasonable and hence awards the same as he has taken treatment till 31.03.2011.

17) The petitioner claimed an amount of Rs.5,000/- towards damages to clothing and the same is resisted by the respondent. The evidence on record shows that though the petitioner claimed compensation on the ground of damages to his clothing, he did not choose to adduce any evidence to that affect. In fact he did not even elaborate as to what were the cloths he was wearing at the time of the accident so as to assess the damages suffered by him in the accident. In the absence of such basic evidence, this court concludes that the petitioner is not entitled for any compensation on the ground of damages to clothing.

18) The petitioner claimed an amount of Rs.50,000/- towards medical expenses and the same is resisted by the respondent. A perusal of the evidence on record shows that the petitioner has filed an injury certificate vide Ex.A.3, medical bills and prescriptions vide Ex.A.4, x-ray film vide

Ex.A.5 and discharge summary vide Ex.A.6 showing that the injuries suffered by him were of grave nature and as such he was under treatment as inpatient till 31.03.2011 and a perusal of Ex.A.4 shows that the petitioner has incurred medical expenses to an extent of Rs.48,941-30 ps., and the said documentary evidence adduced by the petitioner is neither countered nor rebutted by the respondent. Hence, the court

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 11 of 14 concludes that the petitioner can be awarded Rs.48,950/- by rounding off the figures under Ex.A.4 medical bills and hence awards the same.

19) The petitioner claimed an amount of Rs.10,000/- towards extra nourishment and the same is resisted by the respondent. As stated earlier, the petitioner suffered fracture injury on clavicle bone apart from dislocation of left shoulder bone, which goes to show that the injuries suffered by the petitioner are of grave nature and since they are connected to the bones, the court concludes that the petitioner would have suffered heavy pain, shock and agony due to the said injuries and as such the medical authorities would have administered him with pain killers. Hence, the petitioner would have been in need of extra nourishment not only to resist the pain, but also to resist the affect of pain killers that were being given to him at the time of the treatment and recovery for a period of three months and hence concludes that the petitioner can be awarded Rs.2,000/- per month for three months towards extra nourishment amounting to Rs.6,000/- and hence awards the same.

20) The petitioner claimed an amount of Rs.30,000/- towards attendant charges and the same is resisted by the respondent. The evidence on record shows that though the petitioner contended that he has incurred attendant charges he has not adduced any evidence elaborating on the said fact in spite of resistance from the respondent. He did not mention, whom he appointed as attender and how much expenses he has incurred per month for the charges towards the said attender. In the absence of such evidence, this court concludes that the petitioner is not entitled for any compensation on the ground of attendant charges and hence rejects the same.

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 12 of 14

21) The petitioner claimed an amount of Rs.50,000/- towards pain and sufferance and the same is also resisted by the respondent. As stated earlier, Exs.A.3 to A.6 show that the petitioner suffered fracture injuries on clavicle and dislocation of left shoulder bone. Since both the said injuries are connected to the bones and since both the said injuries are located on vital and sensitive parts of the petitioner’s body, the court concludes that the petitioner would have suffered from heavy pain, shock and agony due to the said injuries. Hence, concludes that the petitioner can be awarded Rs.25,000/- each to the said injuries towards pain and sufferance amounting to Rs.50,000/- as claimed by the petitioner and hence awards the same.

22) Thus the court finds that the petitioner is entitled for the following compensation.

1 Loss of earnings 13,500-00 2 Transportation charges 10,000-00 3 Medical expenses 48,950-00 4 Extra nourishment 6,000-00 5 Pain and sufferance 50,000-00 TOTAL 1,28,450-00

Totaling to Rs.1,28,450/- (Rupees one lakh twenty eight thousand four hundred and fifty only).

23) The contention of the petitioner is that the respondent being the owner of the motorcycle bearing No.AP.01.H.1934 is liable to pay him the compensation. The respondent, on the other hand, contended that since the negligence was on the part of the motorcycle bearing

No.AP.01.H.3389 on which the petitioner was proceeding at the time of the accident in rash and negligent manner, the petitioner is not entitled for any compensation. The evidence on record shows that though the

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 13 of 14 respondent denied that he is liable to pay any compensation to the petitioner, he did not deny that he is the owner of the motorcycle bearing

No.AP.01.H.1934. Hence, in view of the finding of the court that the accident was due to the negligence on the part of the motorcycle bearing

No.AP.01.H.1934, the court concludes that the respondent being the owner of the said motorcycle is liable to pay compensation to the petitioner. Hence, decides this issue in favour of the petitioner.

ISSUE NO.3:

24) IN THE RESULT the petition is allowed awarding compensation of

Rs.1,28,450/- (Rupees one lakh twenty eight thousand four hundred and fifty only) along with costs and interest at 7.5% p.a., from the date of petition till realization of the same. The respondent is directed to deposit the compensation awarded along with the interest accrued thereon within two months from the date of this order with this tribunal. Out of the said compensation awarded the petitioner is permitted to withdraw an amount of Rs.75,000/- (Rupees seventy five thousand only) and the balance along with interest accrued thereon shall be put in fixed deposit in a nationalized bank for a period of three years and the petitioner would be entitled to withdraw the same as per his requirement. Advocate’s fee is fixed at

Rs.5,000/-.

Dictated to the stenographer, transcribed by him and after correction

pronounced by me in open court this the 17th day of January 2017.

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

FAC: V ADDL. DISTRICT JUDGE

ADILABAD

O.P.No. 347 of 2011 On the file of the Chairman-cum- V Addl. District Judge, Adilabad Page 14 of 14

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER FOR RESPONDENTS

PW.1 Md. Kaleemulla Khan NONE

EXHIBITS MARKED

Attested copy of FIR in Cr.No.19 of Ex.A.1 NIL 2011 of PS Adilabad Traffic Ex.A.2 Attested copy of charge sheet

Ex.A.3 Attested copy of injury form Bunch of prescriptions and medical Ex.A.4 bills Ex.A.5 X-ray film Xerox copy of discharge card of Ex.A.6 Phadke Hospital

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

FAC: V ADDL. DISTRICT JUDGE

ADILABAD

MVOP/450/2013

Kallam Mounika vs Syed Azag

12 Jan 2017

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENT CLAIMS

TRIBUNAL – CUM – PRINCIPAL DISTRICT JUDGE, ADILABAD

Present:

Smt. G. Udaya Gouri,

CHAIRMAN, MACT-CUM-PRINCIPAL DISTRICT JUDGE,

ADILABAD

THURSDAY THE 12 TH DAY OF JANUARY 2017

MVOP NO: 450 OF 2013

Between:

Kallem Mounika W/O. Santhosh Reddy, Age: 26 years, Occ: Household R/O. Adegaon (K) village Echoda Mandal, Adilabad district, Now at Ramnagar, Adilabad

.... PETITIONER

// AND //

1)Mr. Syed Azaz S/O. Syed Ishaq, Age: Major, Occ: Owner of Mahindra jeep bearing No.AP.22.L.4119 R/O. H.No.2-66, Thosham village, Gudihathnoor Mandal, Adilabad district

2)United India Insurance Company Limited, Represented by its Divisional Manager, H.No.6-6-4/1/7, NH No.7 road, Bhoktapur, Adilabad

... RESPONDENTS

This original petition coming on before me for final hearing on 03.01.2017 in the presence of Sri T. Venkat Kumar and Sri G. Chandra Shekar, Advocates for petitioner and Sri Pradeep, Advocate for respondent no.1 and Sri A. Hanumanth Rao, Advocate for respondent no.2 and on hearing both sides and the matter having stood over for consideration till this day this court made the following:

A W A R D

1) This is a petition filed under section 166 (1)(A) of the Motor Vehicles

Act 1988 r/w Rule 455 of A.P. Motor Vehicle Rules 1989.

2) The averments made in the petition are as follows:

i) The petitioner stated that she is a resident of Ramnagar of

Adilabad, aged about 26 years, and earning Rs.3,000/- per month.

ii) The petitioner stated that on 13.01.2013 while she along with her husband and daughter was proceeding to Nirmal

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 2 of 14 from their village i.e., Adegaom on motorcycle bearing

No.AP.1.AA.5052 and when they reached Islamnagar on NH 7 the driver of Mahindra jeep bearing No.AP.22.L.4119 came at high speed in rash and negligent manner and dashed against their motorcycle, as such she suffered lacerated injury on parietal region, fracture of right maxillary bone, dislocation of right shoulder apart from other injuries and hence she was shifted to Government Hospital at Nirmal and then after first aid she was taken to the hospital at

Hyderabad, wherein she was treated. She claimed that as a result of the injuries suffered by her and in view of the treatment given to her she has not only incurred medical expenses to an extent of Rs.20,000/- but also incurred

Rs.1,000/- towards transportation.

iii) The petitioner claimed that as a result of the accident the concerned police registered Cr.No.10 of 2013. She stated that she was hale and healthy prior to the accident and as a result of the accident she was bed ridden and hence suffered loss of income apart from suffering from pain, shock and agony and medical expenses. She claimed that in view of the grave injuries suffered by her she has also suffered from disability and as such claimed that she is entitled for compensation of Rs.1,00,000/-.

iv) The petitioner claimed that the respondent no.1 being the owner of Mahindra Jeep bearing No.AP.22.L,4119 and the respondent no.2 with whom the said jeep is insured vide policy No.0519003112P301649716 are liable to pay her the

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 3 of 14 compensation jointly and severally and hence prayed that the respondents be directed to pay the said compensation.

3) The respondents 1 and 2 filed counters but the respondent no.1 remained exparte later. The averments made by the respondents is to the affect that the accident that took place on 13.01.2013 was not due to the negligence on the part of the Mahindra jeep bearing No.AP.22.L.4119 but it was due to the negligence on the part of the rider of the motorcycle bearing No.AP.01.AA.5052 on which the petitioner was proceeding at the time of the accident. They claimed that since the accident was due to the negligence on the part of the rider of the motorcycle on which the petitioner was proceeding at the time of the accident, the petitioner is not entitled for compensation. They also claimed that since the owner of the motorcycle and the insurer of the same are not made parties to the present petition, the present petition is liable to be dismissed for non- joinder of necessary parties. They further contended that the rider of the motorcycle did not have a driving licence at the time of the accident. The respondent no.2 also contended that the driver of Mahindra jeep also did not have driving licence and that the respondent no.1 did not inform them about the accident or the registration of the crime, which is a violation of policy and as such even on the said ground the petitioner is not entitled for compensation. They denied the age and income of the petitioner.

They denied that the petitioner incurred any medical expenses, suffered from pain, shock and agony, suffered loss of income apart from suffering from disability due to the negligence on the part of Mahindra jeep and hence claimed that they are not liable to pay any compensation to the petitioner. They also contended that the compensation claimed by the

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 4 of 14 petitioner is also exorbitant and without any basis and hence prayed that the petition be dismissed.

4) On the basis of the said averments by both sides, the court framed the following issues:

1.Whether the accident took place as alleged by the petitioner on 13.01.2013 at about 12.45 hours near

Islamnagar village on NH No.7 four lines, as alleged by the petitioner due to rash and negligent driving by the driver of

Mahindra jeep bearing No.AP.22.L.4119 of first respondent or whether there was any contributory negligence on the part of the petitioner?

2.Whether the petitioner suffered injuries and disability as alleged?

3.Whether there was any insurance coverage for the driver of

Mahindra jeep bearing No.AP.22.L.4119 and if so, does the policy cover the risk of petitioner and if so, was there any breach of policy condition alleged by the respondent?

4.Whether the petition is bad for non-joinder of owner and insurer of motorcycle bearing No.AP.01.AA.5052?

5.Whether the petitioner is entitled to any compensation, if so, to what extent and against whom?

6.To what relief?

5) The said issued framed by my predecessor have been reframed as follows for the purpose of convenience:

1.Whether an accident took place on 13.01.2013 due to rash and negligent driving of Mahindra jeep bearing No.AP.22.L.

4119 by its driver or whether the accident was due to the negligence on the part of the rider of the motorcycle bearing No.AP.01.AA.5052?

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 5 of 14

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

3.To what relief?

6) The petitioner, in support of her case, examined herself as PW.1 and marked Exs.A.1 to A.6 consisting of the copies of the first information report, injury certificate, charge sheet, copy of policy cash receipt for CT scan of brain and CT film of brain. The respondents did not choose to adduce any oral or documentary evidence.

7) Heard both sides.

ISSUE NO.1:

8) The contention of the petitioner is that an accident took place on 13.01.2013 due to the rash and negligent driving of Mahindra jeep bearing No.AP.22.L.4119. The respondents, on the other hand, contended that the accident was not due to the negligence on the part of the

Mahindra jeep, but it was due to the negligence on the part of the motorcycle bearing No.AP.01.AA.5052, on which the petitioner was proceeding at the time of the accident. A perusal of the evidence on record shows that the petitioner, who examined herself as PW.1 stated that on 13.01.2013 she along with her husband and daughter namely

Swetcha was proceeding on motorcycle bearing No.AP.01.AA.5052 from

Adegaon village to Nirmal and when they reached Islamnagar village at about 12.40 a.m., on NH 7 one Mahindra jeep bearing No.AP.22.L.4119 came at high speed and in rash and negligent manner and dashed against their motorcycle.

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 6 of 14

9) The petitioner contended that her contention that the accident on 13.01.2013 was due to the negligence on the part of the Mahindra jeep is also supported by her documentary evidence. A perusal of Ex.A.1 i.e., the first information report shows that admittedly an accident took place on 13.01.2013 involving the petitioner and two others apart from their motorcycle bearing No.AP.01.AA.5052 and the Mahindra jeep bearing

No.AP.22.L.4119, while a perusal of the charge sheet marked as Ex.A.3 filed by the petitioner shows that the concerned police have investigated into the accident and found that the negligence was entirely on the part of the jeep bearing No.AP.22.L.4119. The said evidence of the petitioner is neither countered nor rebutted by the respondents. The respondents, who claimed that the accident was due to the negligence on the part of the motorcycle bearing No.AP.01.AA.5052, failed to adduce any evidence to that affect either in the form of oral or documentary. As such the court concludes that when the statement of PW.1 read with the contents of the first information report Ex.A.1 and the charge sheet i.e., Ex.A.3, the same clearly establishes that the accident that took place on 13.01.2013 was entirely due to the negligence on the part of the Mahindra jeep bearing

No.AP.22.L.4119. Hence, decides this issue in favour of the petitioner.

ISSUE No.2:

10) The contention of the petitioner is that in the accident that took place on 13.01.2013 due to the negligence of the jeep bearing

No.AP.22.L.4119, she suffered both grievous and simple injuries consisting of lacerated wound on parietal region, fracture of right maxillary bone, dislocation of right shoulder, etc., and as such she has not only suffered pain, shock and agony, but also incurred medical expenses, suffered loss of income due to her taking bed rest and also suffered from

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 7 of 14 disability and as such she is entitled for compensation. The respondents, on the other hand, contended that since the negligence was on the part of the motorcycle on which the petitioner was proceeding at the time of the accident, the petitioner is not entitled for compensation, but a perusal of the evidence on record shows that the petitioner through her oral evidence and the contents of Exs.A.1 and A.3 i.e., the first information report and the charge sheet, has already established that the accident that took place on 13.01.2013 was entirely due to the negligence on the part of the Mahindra jeep bearing No.AP.22.L.4119.

11) The petitioner, in furtherance of her contention that the said accident resulted in injuries to her both grievous and simple nature, filed a copy of injury certificate vide Ex.A.2 and also CT scan film vide Ex.A.6. A perusal of Ex.A.2 i.e., the injury certificate shows that the petitioner suffered lacerated wound on the parietal region on right side, a contusion on the right maxilla and fracture on maxillary bone and dislocation of right shoulder and that the fracture of maxillary bone and dislocation of right shoulder are of grievous nature. Ex.A.6 shows that the petitioner was scanned on the brain with regard to the said injuries suffered by her in the accident. The contents of the said injury certificate also shows that the petitioner suffered the said injuries on 13.01.2013 i.e., on the date of the accident. Hence, when the contents of the injury certificate i.e., Ex.A.2 are read with the oral evidence of PW.1 and the contents of Ex.A.1 i.e., the first information report and Ex.A.3 charge sheet the same clearly shows that in the accident that took place on 13.01.2013 as stated by

PW.1 and as shown under Ex.A.1, the petitioner suffered both simple and grievous injuries as shown under Ex.A.2 injury certificate due to the

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 8 of 14 negligence on the part of the Mahindra jeep bearing No.AP.22.L.4119 as shown under Ex.A.3 and also as shown under Ex.A.6.

12) The said evidence adduced by the petitioner is neither countered nor rebutted by the respondents. Since the said injuries are grievous nature, the court concludes that the petitioner would have suffered pain, shock and agony due to the said injuries and a perusal of Ex.A.5 i.e., the cash receipt filed by her shows that she has incurred Rs.2,200/- towards scanning of brain as shown under Ex.A.6. As such, the court concludes that the petitioner also incurred medical expenses due to the said injuries and since two of the injuries suffered by the petitioner are of grave nature, the curt concludes that the petitioner would have taken bed rest during the period of its recovery and hence would have suffered from loss of income and as such concludes that the petitioner is entitled for compensation.

13) The contention of the petitioner is that she was aged 26 years and earning Rs.3,000/- per month as housewife and the same is resisted by the respondents, who pointed out that the petitioner has not filed any document in support of her age or income. A perusal of the evidence on record shows that admittedly the petitioner has not filed any document in support of her age or income. The said evidence also shows that even the respondents, who denied the age and income of the petitioner, have also not filed any document in support of their denial. As such, the court relied on the documentary evidence already on record and found that the injury certificate under Ex.A.2 mentions the age of the petitioner as 26 years and the same is neither countered nor rebutted by the respondents.

Since, Ex.A.2 is the certificate issued by the medical authorities this court

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 9 of 14 concludes that the age of the petitioner can be accepted as 26 years on the basis of Ex.A.2 for the purpose of assessing compensation.

14) As stated earlier, the petitioner has not filed any document in support of her income. Even the respondents, who denied the income of the petitioner, also did not file any document in support of their denial of income of the petitioner. They have also not showed that the petitioner is an unemployed person without any income of her own. Hence, the court concludes that the income of the petitioner can be assumed on par with a daily wages female labourer in the open market, which is nothing less than Rs.100/- per day amounting to Rs.3,000/- per month and

Rs.36,000/- per annum for the purpose of assessing compensation.

15) The petitioner claimed an amount of Rs.1,000/- towards transportation charges and the same is resisted by the respondents. The evidence on record shows that the petitioner is a resident of Adegaon village and met with accident at Islamnagar and hence was admitted in the hospital at Nirmal and later was shifted to some other hospital. As such, the court concludes that the petitioner would have incurred transportation charges for shifting herself from the place of accident to the hospital and back to her residence. Hence, concludes that the compensation of Rs.1,000/- claimed by the petitioner is quite reasonable and hence awards the same.

16) The petitioner claimed an amount of Rs.20,000/- towards medical expenses and the same is resisted by the respondents. A perusal of the evidence on record shows that the petitioner stated that she was shifted to Government Hospital at Nirmal and then to the hospital at Hyderabad, but failed to adduce any evidence to show that she was treated in any

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 10 of 14 hospital at Hyderabad. The documentary evidence adduced by the petitioner i.e., the injury certificate marked as Ex.A.2, cash receipt marked as Ex.A.5 and the CT scan marked as Ex.A.6 shows that the petitioner has incurred medical expenses to an extent of Rs.2,200/- towards taking CT scan of the brain as shown under Ex.A.5. Hence, the court concludes that since the petitioner was treated only in government hospital as shown under Ex.A.2, she has only incurred medical expenses to an extent of Rs.2,200/- as shown under Ex.A.5 and hence awards the same.

17) The petitioner claimed an amount of Rs.10,000/- towards extra nourishment and the same is resisted by the respondents. The evidence on record shows that the petitioner has suffered injuries not only on parietal region, which is a vital and sensitive part of petitioner’s body, but has also suffered fracture of maxillary bone and also dislocation of right shoulder. Hence, the court concludes that the petitioner would have suffered heavy pain, shock and agony due to the said injuries suffered by her and hence the medical authorities, who treated her as shown under

Ex.A.2, would have administered her with pain killers, as such the petitioner would have been in need of extra nourishment not only to resist the pain but also to resist the affect of pain killers being administered to him and since two of the said injuries suffered by the petitioner are of grave nature and bone injuries, the court concludes that the petitioner would take nothing less than 8 to 10 months to recover from the same and during the said period the petitioner would have been in need of extra nourishment to resist the pain and affect of pain killers administered to her. Hence, concludes that the petitioner can be awarded Rs.1,000/- per

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 11 of 14 month amounting to Rs.10,000/- for 10 months towards extra nourishment and hence awards the same.

18) The petitioner claimed an amount of Rs.5,000/- towards attendant charges and the same is resisted by the respondents. The evidence on record shows that though the petitioner claimed compensation on the ground of attendant charges, she failed to adduce any evidence to that affect. Hence, in the absence of evidence to show that the petitioner has incurred any charges towards attender, this court rejects the compensation on the said ground.

19) The petitioner claimed an amount of Rs.25,000/- towards pain and sufferance and the same is resisted by the respondents. The evidence on record shows that the petitioner suffered a lacerated wound on parietal region and fracture of maxillary bone and dislocation of right shoulder.

Since the injury no.1 i.e., lacerated wound on parietal region is on a very sensitive and vital part of the petitioner’s body and since the fracture of maxillary bone and dislocation of right shoulder are bone injuries, the court concludes that the petitioner would have suffered from heavy pain, shock and agony and also agony in anticipation of her future during the period of her treatment and recovery, which the court concluded would be around 10 months. As such the court concludes that the petitioner can be awarded Rs.10,000/- each to the fracture injuries suffered by her on

Maxillary bone and also dislocation of right shoulder apart from Rs.5,000/- for the lacerated injury suffered on parietal region totaling to Rs.25,000/- and hence awards the same.

20) The petitioner claimed an amount of Rs.39,000/- towards disability and the same is resisted by the respondents. The evidence on record

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 12 of 14 shows that though the petitioner claimed that she has suffered disability as a result of the injuries suffered by her in the accident, but she has not adduced any evidence either oral or documentary in support of the same in spite of resistance from the respondents. Hence, in the absence of such evidence, the court rejects the claim of compensation on the ground of disability by the petitioner.

21) Thus the court finds that the petitioner is entitled for the following compensation.

1 Transportation charges 1,000-00 2 Medical expenses 2,200-00 3 Extra nourishment 10,000-00 4 Pain and sufferance 25,000-00 TOTAL 38,200-00

Totaling to Rs.38,200/- (Rupees thirty eight thousand two hundred only).

22) The contention of the petitioner is that the respondent no.1 being the owner of Mahindra jeep bearing No.AP.22.L.4119 and the respondent no.2 with whom the said jeep is insured vide policy

No.0519003112P301649716 as shown under Ex.A.4 are liable to pay her the compensation jointly and severally. The respondents, on the other hand, though denied that they are liable to pay any compensation to the petitioner, the evidence on record shows that they have not denied that respondent no.1 is the owner of jeep bearing No.AP.22.L.4119 and that the same is insured with the respondent no.2 under the policy referred as above under Ex.A.4. As such, in view of the finding of the court that the petitioner suffered injuries in the accident that took place on 13.01.2013 due to the negligence on the part of the jeep bearing No.AP.22.L.4119 and that the petitioner is entitled for compensation, the court concludes

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 13 of 14 that both the respondents are liable to pay compensation to the petitioner jointly and severally. Hence, accordingly decides this issue in favour of the petitioner.

ISSUE NO.3:

23) IN THE RESULT the petition is allowed awarding compensation of

Rs.38,200/- (Rupees thirty eight thousand two hundred only) along with costs and interest at 7.5% p.a., from the date of petition till realization of the same. The respondents 1 and 2 are directed to deposit the compensation awarded along with the interest accrued thereon within two months from the date of this order, jointly and severally, with this tribunal. The petitioner is permitted to withdraw the entire amount of compensation awarded to her. Advocate’s fee is fixed at Rs.5,000/-.

Dictated to the stenographer, transcribed by him and after correction

pronounced by me in open court this the 12th day of January 2017.

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

ADILABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER FOR RESPONDENTS

PW.1 Kallem Mounika NONE

EXHIBITS MARKED

Attested copy of FIR in Cr.No.10 of Ex.A.1 NIL 2013 of PS Echoda Ex.A.2 Attested copy of injury certificate

O.P.No. 450 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 14 of 14

Ex.A.3 Attested copy of charge sheet

Ex.A.4 Xerox copy of insurance policy

Ex.A.5 Cash receipt of CT scan of brain

Ex.A.6 Film of CT Scan of brain

CHAIRMAN

MACT-CUM-PRL DISTRICT JUDGE

ADILABAD

MVOP/451/2013

Kallem santosh Reddy vs Syed Azag

12 Jan 2017

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENT CLAIMS

TRIBUNAL – CUM – PRINCIPAL DISTRICT JUDGE, ADILABAD

Present:

Smt. G. Udaya Gouri,

CHAIRMAN, MACT-CUM-PRINCIPAL DISTRICT JUDGE,

ADILABAD

THURSDAY THE 12 TH DAY OF JANUARY 2017

MVOP NO: 451 OF 2013

Between:

Kallem Santhosh Reddy, S/O. Shivva Reddy, Age: 32 years, Occ: Agriculture, R/O. Adegaon (K) village, Echoda Mandal, Adilabad district, Now at Ramnagar, Adilabad

.... PETITIONER

// AND //

1)Mr. Syed Azaz S/O. Syed Ishaq, Age: Major, Occ: Owner of Mahindra jeep bearing No.AP.22.L.4119 R/O. H.No.2-66, Thosham village, Gudihathnoor Mandal, Adilabad district

2)United India Insurance Company Limited, Represented by its Divisional Manager, H.No.6-6-4/1/7, NH No.7 road, Bhoktapur, Adilabad

... RESPONDENTS

A W A R D

1) This is a petition filed under section 166 (1)(A) of the Motor Vehicles

Act 1988 r/w Rule 455 of A.P. Motor Vehicle Rules 1989.

2) The averments made in the petition are as follows:

i) The petitioner stated that he is a resident of Ramnagar of

Adilabad, aged about 32 years, and earning Rs.5,000/- per month from agriculture.

ii) The petitioner stated that on 13.01.2013 while he along with his wife and daughter was proceeding to Nirmal from

O.P.No. 451 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 2 of 12 their village i.e., Adegaom on motorcycle bearing No.AP.1.

AA.5052 and when they reached Islamnagar on NH 7 the driver of Mahindra jeep bearing No.AP.22.L.4119 came at high speed in rash and negligent manner and dashed against their motorcycle, as such he suffered contusion on left upper part of leg, dislocation of left foot, contusion on right elbow, right shoulder, fracture of left upper tibia and other injuries.

Hence he was shifted to Government Hospital at Nirmal for first aid and then referred to Hyderabad as his daughter’s condition was serious. He claimed that as a result of the treatment received by him he had incurred medical expenses to an extent of Rs.10,000/- apart from Rs.1,000/- towards transport charges.

iii) The petitioner claimed that as a result of the accident the concerned police registered Cr.No.10 of 2013. He stated that he was hale and healthy prior to the accident and as a result of the accident he was bed ridden and hence suffered loss of income apart from suffering from pain, shock and agony and medical expenses. He claimed that in view of the grave injuries suffered by him he has also suffered from disability and as such claimed that he is entitled for compensation of Rs.50,000/-.

O.P.No. 451 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 3 of 12 compensation jointly and severally and hence prayed that the respondents be directed to pay the said compensation.

They also claimed that since the owner of the motorcycle and the insurer of the same are not made parties to the present petition, the present petition is liable to be dismissed for non-joinder of necessary parties.

They further contended that the rider of the motorcycle did not have a driving licence at the time of the accident. The respondent no.2 also contended that the driver of Mahindra jeep also did not have driving licence and that the respondent no.1 did not inform them about the accident or the registration of the crime, which is a violation of policy and as such even on the said ground the petitioner is not entitled for compensation. They denied the age and income of the petitioner. They denied that the petitioner incurred any medical expenses, suffered from pain, shock and agony, suffered loss of income apart from suffering from disability due to the negligence on the part of Mahindra jeep and hence claimed that they are not liable to pay any compensation to the petitioner.

They also contended that the compensation claimed by the petitioner is also exorbitant and without any basis and hence prayed that the petition be dismissed.

O.P.No. 451 of 2013 On the file of the Chairman-cum- Prl. District Judge, Adilabad Page 4 of 12