Smt G V N Bharatha Laxmi
IX ADDITIONAL CHIEF JUDGE
HYD, City Civil Court Complex · Hyderabad · Telangana
SMT G V N BHARATHA LAXMI, IX ADDITIONAL CHIEF JUDGE, is posted at HYD, City Civil Court Complex, Hyderabad, Telangana, India. 30 court orders on record since 2013. 10 judgments with full text available. Primarily handles OP, OS, AS cases.
Featured Judgments
1 O.S.No.559 of 2006
IN THE COURT OF THE XI ADDL. CHIEF JUDGE, CITY CIVIL
COURT :: HYDERABAD
Friday, the 15th day of July, 2016.
PRESENT : Smt. G.V.N. Bharatha Laxmi, M.A., B.L., XI Additional Chief Judge.
ORIGINAL SUIT NO.559 OF 2006
Between:
1. Sri. John Santiyago, S/o. Late S.S. Dass, Aged about 39 years, Occ: Private Service.
2. Moses Bendict, S/o. Late S.S. Dass, Aged about 38 years, Occ: Private Service.
3. Francis Santiyago, S/o. Late S.S. Dass, Aged about 34 years, Occ: Private Service.
4. Mrs. Esther Anthony, D/o. Late S.S. Dass, Aged about 41 years, Occ: Private Service.
All are R/o. 171365, Vinayak Nagar Colony, Santoshnagar, Saidabad, Hyderabad.
.... Plaintiffs
And
1. Clement Dass, S/o. Late S.S. Dass (died per LR's R5 to R9).
2. Jude Vernil Dass, S/o. Late S.S. Dass, Aged about 40 years, Occ: Business.
3. Mrs. Jeniffer Maria Dass, W/o. Late Leslie Gomex, Aged about 48 years, Occ: Housewife.
4. Miss. Daphni, S/o. Late S.S. Dass, Aged about 37 years, Occ: Household.
5. Smt. Juliana Dias, W/o. Late Clement Dass, Aged about 50 years, Occ: Housewife.
6. Arnold Stanley Candidus Dias, S/o. Late Clement Dass, Aged about 25 years, Occ: Pvt. Service.
7. Mr. Ricky Sylvester Mario Dias, S/o. Late Clement Dass, Aged about 24 years, Occ: Pvt. Service.
2 O.S.No.559 of 2006
8. Natasha Cassandra Maria Dias, S/o. Late Clement Dass, Aged about 22 years, Occ: Student.
9. Nikitha Simran Maria Dias, D/o. Late Clement Dass, Aged about 18 years, Occ: Student.
All are R/o. 18919/2/A, Chandraingutta, Hyderabad.
(Defendant Nos.5 to 9 are added as per the orders in I.A.No.629/2013, dated 04072014)
... Defendants
This suit is coming on 20062016 before me for final hearing in the presence of Sri. Mohd. Shafiuddin,Advocate for the Plaintiffs and of Sri D. Jagadishwar Rao Advocate for the Defendants and the matter having stood over for consideration till today the court delivered the following:
J U D G M E N T
1.The suit has been filed for partition and separate possession of suit schedule properties.
2.The brief averments of the plaint are as follows that the plaintiffs and the defendants are the legal heirs of late S.S.Dass who died on 10111987 leaving behind him the plaintiffs and defendants Nos.1 to 4. The plaintiffs and defendants Nos.1 to 4 are the children of late S.S.Dass, who died interstate.
Mr.S.S.Dass who was also called as YesuDass was married to the mother of the plaintiffs Mrs.A.Chaya Devi. The parties here are Christian by religion. The mother of the plaintiffs expired on 27012006, she was working as teacher, St.Johns, the Baptist
High School. It is an aided post and aided school, got married to
Mr.Dass at that time. The Mother of the defendants Mrs.Anna F 3 O.S.No.559 of 2006 was working as teacher in the same school. The father of the plaintiffs and Mrs.Anna F got acquainted and the defendants were born throgh her and while the plaintiffs are born through
A.Chaya Devi. Thus, the plaintiffs and the defendants Nos.1 to 4 are the children of late Mr.Dass. Subsequently Mrs.Anna F became the correspondent of the school. The father of plaintiffs late S.S.Dass during his life time acquired the property bearing
H.No.18919/2/A admeasuring 1600 Sq.yds. In Sy.No.291,
Chandrayangutta, through registered sale deed bearing document No.3019/70 dt.27111970. The said property was purchased from its original owner Syed Shah Ali Hussaini. At the time of purchasing the said property, it was a open land, subsequently late S.S.Dass developed the property and constructed the building by obtaining the necessary permission from the Municipality in the year 1970 and was running the school in the suit schedule property till his death. He was the
principal of the school. Subsequently, the plaintiffs and
defendants are running school in the suit schedule property by name St.John The Bapist High School. The plaintiffs and the defendants are resided together during the life time of late
S.S.Dass and also for some time after the death of Late S.S.Dass.
Due to some differences in the family, the plaintiffs are residing separately now. Being the legal heirs of late S.S.Dass, the plaintiffs are having 1/8th share each totaling to 4/8th share in the suit schedule property. Even now the school is being run 4 O.S.No.559 of 2006 from the premises and the mother of the defendants Nos.1 to 4.
The mother of the plaintiffs was retired as Head Mistress from the School in May, 2002. The mother of the plaintiffs and the mother of the defendants Nos.1 to 4 were managing the day to day affairs of the school. Even after retirement, the mother of the plaintiffs was assisting the mother of the defendants Nos.1 to 4 in running the school. However, after the death of the mother of the plaintiffs, differences have arisen between the plaintiffs and defendants on various aspects and, as such, the plaintiffs decided to get separated from the defendants in all aspects.
Accordingly, they had requested the plaintiff to partition the property in terms of provisions of Indian Succession Act. The defendants though promised to partitioned have been postponing the same. The school is presently being managed by the mother of the defendants and the head master for and on behalf of the plaintiffs and defendants Nos.1 to 4. Being children of Late
S.S.Dass, the plaintiffs and the defendants Nos.1 to 4 are having equal rights in the suit schedule property and the defendants
Nos.1 to 4 cannot setup independent right in the suit schedule property. After the death of the father of the plaintiffs the defendants Nos.1 to 4 agreed to share the properties in equal shares between the plaintiffs and defendants Nos.1 to 4.
However, the defendants Nos.1 to 4 went back from understanding. Thereafter, they have been proposing a peaceful partition, but the defendants Nos.1 to 4 have been postponing 5 O.S.No.559 of 2006 the same on one pretext or the other. Therefore, the plaintiffs are entitled for 4/8th share in the plaint schedule property distributed between the plaintiffs and defendants Nos.1 to 4.
Hence, this suit.
3.On the other side the defendants have filed written statement denying the averments of the plaint except the facts which are subsequently admitted interalia contended that the father of the defendants S.S.Dass died on 10111987 leaving behind them and their mother Smt.A.F.Dass only. Their father
Late S.S.Dass married to their Mother Smt.A.F.Dass and out of their wedlock the defendants Nos.1 to 4 were born and during the life time of their father late S.S.Dass in the year 1970, the suit schedule property was purchased by him out of the funds derived from the school being run by their father late S.S.Dass and their mother Smt.A.F.Dass. It is not out of place to mention that late S.S.Dass and their mother A.F.Dass have set up the
School in the name and style of “St.John the Baptist School” and late S.S.Dass was the Correspondent and Secretary and
Smt.A.F.Dass was managing the affairs of the School including teaching to some of the classes and assisting their father late
S.S.Dass, and out of the funds derived from the said school activities, the suit schedule property was purchased by their father late S.S.Dass, vide Regd. Doc.No.3019/1970, dt.27121970, and during the life time of their father late 6 O.S.No.559 of 2006
S.S.Dass, he has declared the property before the Urban land
Ceiling Authority in the year 1976 and also disclosed the names of these defendants including their mother, and got interest in the property and at no point of time their father late S.S.Dass mentioned about plaintiffs for the simple reason that they are not the legal heirs of their father late S.S.Dass. After the death of S.S.Dass, the name of their mother A.F.Dass got mutated in the municipal records as the legal heir of their father late
S.S.Dass to succeed the property. The defendants denies that late S.S.Dass was also called as Yesudas, and this defendant furthe denies that their Late father S.S.Dass married
Smt.A.Chayadevi. Further the defendants denies that Chayadevi got married to their father S.S.Dass and the plaintiffs are children born through the late S.S.Dass. Further the defendants admitted that late S.S.Dass purchased open land and subsequently it has been developed for running school and late
S.S.Dass also constructed a house in the suit schedule property in which the defendants are residing from the date of construction till date without any interruption whatsoever. It is not out of place to mention that at no point of time the plaintiffs or their mother resided in the suit schedule property and never claimed any interest in the property. The defendants from the date of construction are paying the monthly taxes, electricity charges, water charges etc., and after the death of Late S.S.Dass their mother A.F.Dass is maintaining the property by paying the 7 O.S.No.559 of 2006 taxes up to date without any interruption. The plaintiffs have no right or authority over the suit schedule property and they cannot become legal heirs of late S.S.Dass. The plaintiffs only taking advantage of their mother worked in the school being run by their father and mother. At no point of time the mother of the plaintiffs had managed the affairs of the school but she was only worked as teacher in the said school. This defendant never promised to partition the property among the plaintiffs, more so in the month of March, 2006, and there is no relationship between them and plaintiffs and question of getting separated does not arise. The plaintiffs knowing fully well that the suit schedule property has got mutated in the name of their Mother
Smt.A.F.Dass, have intentionally did not arrayed her as Co defendant. It is settled principle of law that legal heirs of
S.S.Dass have to succeed the property left by him and
Smt.A.F.Dass being the legally wedded wife of late S.S.Dass will succeed the property and except this defendant, defendant
Nos.1,3 and 4 and their mother no other person can succeed the property left behind by S.S.Dass. Further, the defendants denied that the plaintiffs are entitled for 4/8 share in the suit schedule property and, as such, the same cannot be distributed among the plaintiffs and defendants. Hence, the suit is liable to be dismissed.
4.The plaintiffs have filed rejoinder to the Written Statement of the defendants denying the averments interalia contended 8 O.S.No.559 of 2006 that Ms.A.Dass Isabel Anna Franswah, mother of the defendants herein, was married to one Joseph at St.Mary's Church,
Secunderabad. She was the daughter of one Harry and Mary
Franswah. Out of the wedlock they had two children viz., Sylva
Mary John and Bradley John. The marriage between Isadal
Anna Franswah and Joseph John continued and was never dissolved in terms of Christian law. As such, any subsequent marriage between father of the plaintiffs S.S.Dass and Ms.Isabel
Anna Franswah is void and nonest in the eye of law. Therefore, she is neither a proper nor necessary party to the suit. Further,
Urban Land Ceiling Declaration, would not confer or decide the relationship of the parties conclusively. Further it is reiterated that their mother Chayadevi worked in St.John the Baptist
School as SGBT Assistant and she was also sanctioned revised payscales by the Government of Andhra Pradesh on the recommendation of the correspondent of St.John Baptist High
School. The relevant papers were also submitted by their mother and duly recommended and forwarded by the then correspondent of St.John the Baptist High School in the year 2000. The service book relating to the mother of the plaintiffs was handed over to the defendants in connection with a case.
Further the defendants showing different names in respect of their mother. Further submitted that whenever any Christian get baptized, the same would be entered in the registers of the concerned Cathedral. The registers of St.Joseph's Cathedral, 9 O.S.No.559 of 2006
Gunfoundry, Hyderabad, would show that the defendant No.4 had her baptism. That in respect of their mother that were clearly show that the various names with which the father of the plaintiffs was being referred to and would also clinchingly show that the mother of the defendants herein was not the legally wedded wife of late S.S.Dass. As the plaintiffs are entitled for the relief prayed for by them.
5.Basing on the above pleadings of the both the parties, this Court has framed the following issues for trial:
1. Whether plaintiffs' mother Smt. A. Chayadevi is the legally wedded wife of S.S.Dass? If not, whether the plaintiffs are entitled to inheritance in the suit property under the provisions of Indian Succession Act?
2. Whether the suit schedule property is available for partition? If so, into how many shares?
3. Whether the plaintiffs are entitled to partition as prayed for?
4. To what relief?
6.In order to prove the claims, on behalf of plaintiffs, PWs1 to 3 were examined and Exs.A1 to A30 were marked. On the other side, for the defendants, DW1 & DW2 were examined and
Exs.B1 to B16 were marked.
7.Arguments of both the side Counsels heard.
8.Since all the issues are interlinked shall be discussed together.
10 O.S.No.559 of 2006
ISSUE NOS. 1 to 4:
9.The main contention of the plaintiff from his evidence as
PW1 as follows that plaintiff Nos.1 to 4 and defendant Nos.1 to 4 are the only legal heirs of their late father Sri S.S. Dass, who died on 10111987 intestate. Sri. S.S.Dass who was also being called as Yesudass was married the mother of the plaintiffs by name Mrs. A. Chaya Devi and the plaintiffs were born through her, while their mother was working as teacher in St. Johns the
Baptist High School which is an aided school and their mother got married their father Sri. S.S.Dass and she also expired on 27012006. The mother of the defendants herein, namely, Mrs.
Anna F. was also working as teacher in the same school. Their father and Mrs. Anna F. got acquainted and the defendants herein were born through her as such the plaintiff Nos.1 to 4 and the defendant Nos.1 to 4 are the children of their Late Mr.
S.S. Dass. During life time Sri. S.S.Dass acquired the suit schedule property through a registered sale deed having purchased the same from its original owner Sri. Syed Shah Ali
Hussaini. At the time of purchase, the suit schedule property was an open land. Subsequntly their father developed and constructed the building by obtaining necessary permission from the municipality in the year 1970 and was running the school in the suit schedule property till his death. Their father was the
Principal of the said school. Subsequently the plaintiffs and
defendants are running the school in the suit schedule property 11 O.S.No.559 of 2006 in the name of St. John The Baptist School. The plaintiffs and defendants resided together during the life time of their father in the suit schedule property. Even though the above said school is being run in the suit schedule property and the mother of the defendants is the correspondent of the said school. The mother of the plaintiffs was retired as head mistress from the said school in May, 2003. Even after her retirement, the mother of the plaintiffs was assisting the mother of the defendants in running the said school. However after the death of plaintiffs mother, differences arose between the plaintiffs and defendants on various aspects as such the plaintiffs and defendants decided to reside separately from the defendants. The plaintiffs being the legal heirs of Late Sri. S.S.Dass are entitled for 4/8th share in the suit schedule property. Though the defendants promised to partition the suit schedule property and have been postponing the same on the pretext of the other. The plaintiffs filed the present suit for partition and separate possession of 4/8th share in the suit schedule property.
10.While cross examination it is admitted by PW1 that he has not filed any other document except ration card to show that he was residing in suit schedule property and Ex.A10 ration card was issued in the year 1992 dated 21041992. Further it is admitted by PW1 that there is no other ration card except
Ex.A10 in respect of five members mentioned in Ex.A10 and its 12 O.S.No.559 of 2006 pertaining to Vinayaka Nagar Colony, Santosh Nagar i.e., from the year 199293. Further it is stated by PW1 that his mother was working in St. John Baptist High School from 1996 onwards and she was joined as teacher in the said school. Further it is admitted by PW1 that municipal taxes under Ex.A5 are paid by defendant No.2. Further it is stated by PW1 that first time he came to know about the alienation of the property through public notice and he is not aware of the fact that his brother plaintiff No.3 stood as witness to the agreement of sale entered between defendants and ishabinAjab. Further admitted that they are aware of the fact suit schedule property was sold to third parties, here witness adds after paper publication. Further it is clearly admitted by PW1 that Baptism Certificate under
Exs.A12 to A14 are obtained after instituting of suit from 1996 and further admitted that Ex.A19 is a marriage certificate, the records pertaining to 1949 are still available in the said church as they have issued in 2007. Further it is stated by PW1 that he can identify his mother handwriting and signature and his mother's father name is Sastry. Further admitted that original service book of his mother Chaya Devi, it is mentioned as S.
Chaya Devi, D/o. Sastry. Further admitted that S.S. Dass was never with army or defence. Further it is stated by PW1 that he does not know as to why S.S. Dass profession was mentioned as
Defence in Exs.A12 to A15. Further admitted that Exs.A12 to
A14 are obtained by him in 2007 and 2009. Further it is 13 O.S.No.559 of 2006 admitted by PW1 that he has not filed any document to show that his mother converted to Christianity. It is stated by PW1 that Ex.A27 is itself the original marriage certificate and according to him the date of marriage of his mother and father is 18051967. Further it is admitted by PW1 that Ex.A27 do not bear the signatures of S.S. Dass and Chaya Devi and the signature of witness and Ex.A27 do not bear the signature of the Foster who performed the marriage. PW1 further stated that he is not going to examine the witness of Ex.A27. PW1 again admitted that S.S. Dass is Roman Catholic and Roman
Catholics will get married in Roman Catholic Church and
Lutheran Church, Guntur, is a Protestants Church. It is also admitted by PW1 that he has not filed any document to show that his mother took Baptism till her death and Exs.A17 & A18 the date of birth and date of registration are one and the same.
PW1 has denied the suggestion that by the date as 18051967
S.S. Dass already got married to Isbal Anna Fransiwha.
11.In addition to the evidence of PW1, the plaintiffs also got examined PW2 whose evidence has revealed as follows that he is the cousin of the plaintiffs as well as defendants. Late Mr. S.S.
Dass was his maternal grand mother's real borther. Late Smt.
Chaya Devi was the wife of Late Mr. S.S. Dass and the plaintiffs are the children of Late Mr. S.S. Dass and Late Smt. Chaya Devi.
The defendants are the children of the Late Mr. S.S. Dass and 14 O.S.No.559 of 2006
Isbel Anna Franswas. That Late Mr. S.S. Dass and Late
Smt. Chaya Devi, Smt. Isbel Anna Franswah and their children used to reside in the suit schedule property after the death of
Late Mr. S.S. Dass. In the life time of Mr. Late S.S. Dass plaintiffs along with their mother used to visit and stay in the suit schedule property. The defendants also used to visit the house of plaintiffs at Santosh Nagar. At the time of death of Late
Mr. S.S. Dass he was at the plaintiffs house and where he suffered brain hemorrhage and the defendant No.1 shifted him to hospital from the house of plaintiffs. The defendants falsely denying that the plaintiffs are not the children of Late Mr. S.S.
Dass. While cross examination it is stated by PW2 that he does not know about the marriage of S.S. Dass and Chaya Devi, but he heard about their marriage and he is not seen any marriage certificate of S.S. Dass and Chaya Devi. He used to visit the house of S.S. Dass for functions and some works.
12.Apart from that the plaintiffs got examined PW3 whose evidence as follows that his paternal uncle namely Syed Shah Ali
Hussaini had sold the suit schedule property to Sri. Late S.S.
Dass in the year 1970. Since his childhood he had known the family of the Sri. Late S.S. Dass, Late Smt. Chaya Devi was his wife. The plaintiffs here are the children born to the Late S.S.
Dass and the Smt. Late Smt. Chaya Devi. Sri. S.S. Dass used to reside at Charminar Area during weekends, Sri. S.S. Dass along 15 O.S.No.559 of 2006 with Smt. Chaya Devi his wife and their children used to come to the suit schedule property to spend the day. Smt. Isbel Anna
Farnswah along with the defendants who are her children used to reside in the suit schedule property which was being periodically visited by the plaintiffs herein along with their parents. After the death of S.S. Dass, the plaintiffs along with their mother Late Smt. Chaya Devi came to reside in the suit schedule property they live in the suit schedule property for a period of five years later shifted their residence to Santosh
Nagar. During the year 2005 Late Smt. Chaya Devi along with the plaintiffs joined by Smt. Isbel Anna Franswah and her children decided to sell the suit schedule property to one
Mr. Meraj Hussain during the negotiation for the sale of the suit schedule property he was personally present wherein it was decided that the children of Late S.S. Dass have shares in the property. The defendants along with their mother cancelled the sale agreement with Meraj Hussain and against the defendants along with their mother entered into agreement of sale for the suit schedule property with Issa Bin Hajab. To his knowledge that Late Smt. Chaya Devi and Late S.S. Dass lived as husband and wife and the plaintiffs are the children of S.S. Dass.
13.In support of their oral evidence the plaintiffs got marked the following documents: Ex.A1 is the Original Death Certificate of Late Mr. S.S. Dass, S/o. Santiago.S., accordingly Mr. S.S.
16 O.S.No.559 of 2006
Dass was died on 10111987 in St. theresa's Hospital,
Hyderabad. Ex.A2 is the Original Death Certificate of Mrs.
Chaya Devi, the mother of the plaintiffs, accordingly Mrs. Chaya
Devi was died on 27012006. Ex.A3 is the Certified copy of the
Registered Sale Deed over the suit schedule property. Ex.A4 is the True English translation of Ex.A3, accordingly Mr. S.S. Dass had purchased a plot of land admeasuring 1600 square yards in
Ward No.189, Survey No.291, situated at Chandrayangutta
Keshavgiri, Hyderabad, in total sale consideration of Rs.2,000/ from one Syed Shah Ali Hussaini under document
No.3019/1970, dated 30112006. Whereas Ex.A5 is the
Property Tax Receipt, dated 23011990 issued in the name of
S.S. Dass for the property bearing No.19/2/A. Ex.A6 is the
Market Value Certificate of suit schedule property. Ex.A7 is the
Public Notice in Etemad Urdu Daily, dated 28102006. Ex.A8 is the True English translation of Ex.A7, accordingly the defendants have given public notice stating that they have entered into an agreement of sale in respect of suit schedule property, thereby calling objections from person if anybody is having. Ex.A9 are the Photographs (17 nos.) of the suit schedule property. Ex.A10 is the Ration Card issued in favour of Chaya Devi. Ex.A11 is the True English translation of
Ex.A10. Here the learned Counsel for defendants raised objections to mark the document in view of interpolations in it, since there is no explanation offered by the plaintiffs at this 17 O.S.No.559 of 2006 aspect. The said objection raised by the defendants liable to be sustained hence Ex.A10 is not at all reliable in view of the interpolations. Exs.A12 to A15 are the Original Certificates of
Baptism in favour of plaintiffs. Ex.A16 is the Certificate of
Hindu Uttam Pariksha of plaintiff No.1 with English translation.
Ex.A17 is the Birth Certificate showing the date of birth as 25091972 and date of registration as 25091972, except that it has not revealed other particulars in respect of name of the person. Ex.A18 is the also Birth Certificate showing the date of birth as 13071968 and date of registration as 13071968. The said certificate is also does not reveal the name of the person whose birth certificate it is. Ex.A19 is the Marriage Certificate between Joseph John and Isabel Anna, according to it the said certificate of marriage was issued by St. Mary's Church,
Secunderabad, A.P. But in proof of the said certificate the person who issued was not examined and also not authenticated person of the said church was examined in proof of the same.
Therefore in the absence of confronting the document to the said church authenticated person and in the absence of examining any authenticated person of the said church, the said certificate is not liable to be considered, since the said certificate under
Ex.A19 is not proved hence Ex.A19 is no way helpful to support the claim of the plaintiffs. Ex.A20 is the Certificate of
Baptism, dated 17042007 regarding Daphine Maria Dias.
Ex.A21 is another Certificate of Baptism, dated 26052007 in 18 O.S.No.559 of 2006 respect of D3. Ex.A22 is the Certificate of Marriage of D3,
dated 16042007. Ex.A23 is the Certificate of Marriage of D1,
dated 05042007. Ex.A24 is the another Certificate of Marriage
of D4, dated 18102007. Ex.A25 is the Certificate of Marriage of Bradly John. Ex.A26 is the Certificate of Uttam Hindi
Pariksha of plaintiff No.2 along with English translation.
Ex.A27 is the Certified copy of Marriage Extract of S.S. Dass and Chaya Devi along with translation in English. Ex.A28 is the Original Birth Certificate of plaintiff No.3, dated 22042007.
Ex.A29 is the Original Reply Letter, dated 11042011 from the
Office of the Principal Accountant General (A & E), Andhra
Pradesh. Ex.A30 is the Certified copy of Form of Application for
Service Pension.
14.Whereas coming to the defendants side, they have got examined defendant No.2 as DW1. The main contention of the
DW1 from his evidence that the they are the sons of S.S. Dass born through Smt. Chaya Devi and during life her time,
Smt. Chaya Devi was worked in their school by name St. John's, the Baptist High School, their father Sri. S. S. Dass was the correspondent of the said school. After his death on 10011987, their mother Smt. Anna F. Dass continued as Correspondent of the said school. During her life time, Smt. Chaya Devi never claimed to be legally wedded wife of their father. Sri. S. S. Dass has established the school and Smt. A.F. Dass was managing the 19 O.S.No.559 of 2006 affairs of the school. While so, their father purchased the suit schedule property by way of registered sale deed dated 27111970 and their father constructed a building which was sued for running the said school. After Ceiling Act came into force, their father also declared the suit schedule property before the Authority and the Authority also declared the suit schedule property as non surplus. While declaring the suit property, their father categorically mentioned their mother name and their names as details of family. At no point of time, their father ever mentioned about any marriage solemnized with Smt. Chaya Devi and ever stated that the plaintiffs are his children borne through
Smt. Chaya Devi. After the death of their father, the suit schedule property has been mutated in the name of their mother and they have been paying the municipal taxes regularly to the municipality. They entered into an agreement of sale in respect of the suit schedule property which is witnessed by the plaintiff
No.3. So none of the plaintiffs raised any objection or claimed any share over the property. After knowing about the alleged marriage extract produced by the plaintiffs, they got cleared with
Church authorities at Guntur who stated that no such marriage was took place on 18051967 among Smt. Chaya Devi and Sri.
S. S. Dass. Further after Smt. Chaya Devi retired from her service, she filed applications for fixing up her pension and for recall of her benefits, in the said applications also, she has mentioned as Smt. Chaya Devi, D/o. P. Sastry and she never 20 O.S.No.559 of 2006 mentioned as wife of Sri. S.S. Dass. None of the documents relied by the plaintiffs establish any legal right over the suit schedule property. While cross examination it is admitted by
DW1 that their mother Smt. Isabel Anna was married to Joseph
John on 08061949 and the marriage certificate of Isabel Anna and Joseph John is marked in this case as Ex.A19. It is stated by DW1 that he has not filed the marriage certificate of his mother with his father J.S. Dass. Further DW1 admitted that no certificate of divorce of his mother and Joseph John is filed by him in this case. Further it is stated by DW1 that Chaya Devi is described as Resident of Chandrayanagutta in Ex.B1 and there is no endorsement on Ex.B8 of any authority as it is an office copy and Ex.B8 is in the handwriting of the signature herself i.e., Chaya Devi and there is no endorsement on Ex.B8 to show when this Ex.B8 is received by their school and he has seen the handwriting of Chaya Devi and in Ex.B5 & B6 their mother name is referred to Smt. A.F. Dass and he know one Bradley
John is son of Joseph John and Anna son. Further it is admitted by DW1 that mentioned Anna John mother of Bradley
John in Ex.A25 is the said same person who is his mother known as A.F. Dass. Further it is admitted by DW1 that he has not filed copy of application dated 25112004 filed by his mother before the Special Officer and Competent Authority,
U.L.C., informing that Sri. S.S. Dass, the declarant died on 10111987 and requested to finalize the proceedings in favour of 21 O.S.No.559 of 2006 legal heirs and he has not filed any record of MCH to evidence that the name of his mother A.F.Dass was mutated as legal heir of S.S. Dass to succeed to suit property. Further DW1 stated that till now he has not filed any agreement of sale for suit schedule property in which plaintiff No.3 signed as a witness.
Further it is stated by DW1 that Ex.B16 contains door number
as 18912/8. Here witness volunteers that last digit in the
number was mentioned in Ex.B16 as eight instead of 'A' by mistake. Exs.B3 and B4 are for different numbers i.e., for 18919/2/A. Ex.B6 is also for a different number and an extent of land in Exs.B6 & B16 are different and he did not mention any where till now the correct door number as 18919/2/A and he does not know whether mentioning the door number as 192/A by plaintiff was a mistake.
15.In addition to the evidence of DW1 in support of their claim they have got examined DW2 whose evidence as follows that he know the defendants of the above suit including their father and mother i.e., Sri. S.S. Dass and Smt. A.F. Dass since 30 years, as he is the neighbour to them and they are running a school in the name and style of St. John the Baptist School,
Chandrayangutta, Hyderabad in their locality and catering the needs of the children. He never seen the plaintiff's residing in the house of defendants. To his knowledge, Sri. S.S. Dass got married only to Smt. A.F.Dass and he used to attend all the 22 O.S.No.559 of 2006 functions of the defendants. The suit property is exclusively belongs to the defendants. The plaintiffs are never in the possession of schedule property. While cross examination it is stated by DW2 that he has a Kirana Shop at Chandrayangutta in place of his residence. He has singed on his affidavitinchief.
Dw1 got it prepared and required to sign. He has no municipal license to evidence that he is running a Kirana shop and he does not know about the marriage of S.S. Dass and A.F. Dass.
16.In addition to the oral testimony of DW1 & DW2, the defendants got marked Ex.B1 is Service Book of Chaya Devi said to be the mother of the plaintiffs it shows her services as
SGBT Assistance in St. John The Baptist High School. Though she was referred to as S. Chaya Devi, she has referred herself as
D/o. P. Kotaiah Sastry no where she has given particulars about her husband. So without any material evidence this Court shall not come to any conclusion that her surname changed to 'P' to 'S' in view of her marriage. If she really got married she would have disclosed her husband name in service book instead of her father name. Generally a women refer to as a daughter of so and so … only in the situation she remains unmarried. Thereby entry in Ex.B1 one way or other falsifying the contention of plaintiffs. Ex.B2 is Secondary Grade Basic Teacher Training
CertificateofSmt.ChayaDevi,dated 21101970. Ex.B3 is Municipal Tax Receipt in respect of house 23 O.S.No.559 of 2006 bearing No.18919/2/A, dated 17081993 which is issued in the name of S.S. Dass. Ex.B4 is Municipal Tax Receipt in respect of house bearing No.18919/2/A, dated 18111993 that is also issued in the name of S.S. Dass. Ex.B5 is
Certificate issued by Special Officer and Competent Authority,
Urban Land Ceiling, Hyderabad, dated 16072005, accordingly the Special Officer, Competent Authority, U.L.C., has addressed a letter to the Commissioner, M.C.H., Tank Bund, Hyderabad stated that Smt. A.F. Dass, W/o. Late S.S. Dass requested to issue NOC for sale of the property to an extent of 1337.76 square meters. The matter was enquired by the Enquiry Officer who reported that the applicant is the wife of LR of Late S.S. Dass declarant in C.C.No.J1/6182 & 6235/76 who was declared as nonsurplus holder of property to an extent of 1337.76 square meters in survey No.291, ward No.189, situated at
Chandrayangutta, Bandlaguda (V), & (M) for which no objection certificate for sale of the property is now sought. As the declarant was declared as Nonsurplus holder of the property, there is no objection for development of the property in the Pres
No.18919/12/A, situated at Chandrayangutta, Bandlaguda (V), & (M), Hyderabad District to an extent of 1337.76 square meters from the Urban Land Ceiling point of view. The copy of the said letter also marked to Smt. A.F. Dass. Ex.B6 is Proceedings issued by Special Officer and Competent Authority, U.L.C., dated 08022005, accordingly the Special Officer and Competent 24 O.S.No.559 of 2006
Authority, Urban Land Ceiling, Hyderabad vide proceedings as made an order that Sri. S.S. Dass, S/o. Sri. Shanthaias filed statement in FormI, under section 6 (1) of the U.L. (C & R) Act, 1976 declaring the properties as follows that : Land with building
H.No.18919/12/A, extent – 1337.76 square meters, Land with building H.No.1812418/15, extent – 4439.53 square meters, and Vacant Land survey No.295, extent – Ac. 0.20 guntas, situated in survey No.291, 295, Bandlaguda (village). One Smt.
A.F. Dass, W/o. Late S.S. Dass filed an application on 2511 2004 along with affidavit and other documents stating that Sri.
S.S. Dass the declarant expired on 10111987 leaving behind him the following legal heirs: 1) Smt. A.F. Dass, W/o. Late S.S.
Dass – Wife, 2) Sri Jennifer Maria Dass – Daughter, 3) Sri
Clemant Dass – Son, 4) Sri Jude V. Dass – Son, and 5) Sri
Daphne Maria Dass – Daughter. Thus as per the information furnished by the declarant in the statement filed by him, it is revealed that the declarant is not having any title over the properties at Sl.No.2 & 3 above and as regards property at
Sl.No.1 above, it is determined that the declarant's holding is within the ceiling limit. Whereas coming to Ex.B7 is Certificate issued by Paster, Andhra Evangelical Lutheran Church, dated 06062009, since the person who issued the said certificate is not examined this Court cannot rely on that exhibit on any aspect. Ex.B8 is Application submitted by Smt. Chaya Devi for fixation of pension. Ex.B9 is Certificate issued by District 25 O.S.No.559 of 2006
Registrar, Guntur, dated 31052010, accordingly the defendant
No.2 made an application seeking marriage details of his father inspite of said those records were not traced out. Ex.B10 is
Demand Notice for the year 200910, dated 22062009 issued by G.H.M.C, in respect of property tax that was issued in the name of Annat Dass in respect of door No.18919/2/A/1 i.e., suit schedule property. Ex.B11 is Information furnished by
Assistant Supply Officer, CircleII, Hyderabad, dated 0601 2011, accordingly the defendant No.2 has requested the said office as to how many rations cards were issued on house No.18 919/2/A and to whom. In that connection it is informed that only one pink card has been issued on house No.18919/2/A in the name of Sri. Jude Vernin Dass i.e., defendant No.2. Ex.B12 is Affidavit of Karlapudi Yohan, dated 30102009 and Ex.B13 is
Identity Card of Karlapudi Yohanu, dated 15121995, since the said affidavit is not confronted to the person who made it not reliable to taken into consideration. Ex.B14 is Certified copy of
Statement issued by Special Officer & Competent Authority,
Urban Land Ceiling, Hyderabad. Ex.B15 is Certified copy of
Proceedings of same Officer. Exs.B14 & B15 Mr. S.S. Dass,
S/o. Shanthaias has submitted statement before Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad in respect of his property house No.18919/12/A, extent – 1337.76 square meters in survey No.291 i.e., suit schedule property and accordingly vacant land survey No.295 extent of Ac.
26 O.S.No.559 of 2006 0.20 guntas, situated at Chandrayangutta, Hyderabad. He mentioned the family members particulars as 1) Smt. A.F. Dass,
W/o. Late S.S. Dass – Wife, 2) Sri Jennifer Maria Dass –
Daughter, 3) Sri Clemant Dass – Son, 4) Sri Jude V. Dass – Son, and 5) Sri Daphne Maria Dass – Daughter. Vide proceedings of the Special Officer & Competent Authority, Urban Land Ceiling under order dated 08022005 the suit schedule property of declarant i.e., S.S. Dass is determined as declarant's holding is within the ceiling limit. Ex.B16 is the Agreement of Sale, dated 29092006.
17.Here the Learned Counsel for Plaintiffs have argued vehemently that the plaintiffs and the defendants are the legal heirs of Mr. S.S. Dass who died intestate and they are professing
Christian religion. Mr. S.S. Dass was got married to Mrs.
A. Chaya Devi who was working as a teacher in St. John the
Baptist High School which is a aided school established in the suit schedule property by S.S. Dass. Late S.S. Dass was the owner and possessor of suit schedule property and running the said school as Principal till his death. Then after it was being runned by the plaintiffs and the defendants. After the death of plaintiff's mother differences arose between the plaintiffs and the defendants on various aspects whereupon the plaintiffs decided to get separated from the defendants and seeking for partition of the suit schedule property. In supporting of their claim the 27 O.S.No.559 of 2006 plaintiffs adduced evidence by examining Pws1 to 3 and also got marked Exs.A1 to A30. The correspondence submitted to the office of Principal Accountant General (A & E), A.P., shows that those documents are being the form of application for service of pension/familypension/retirementgratuity/service gratuity/commutation as submitted by Smt. Chaya Devi showing herself as the wife of Mr. S.S. Dass. Ex.A30 was a Form of
Application for service pension made it clear that the mother of the plaintiffs herein is referred to as the wife of Mr. S.S. Dass and is signed by none else than the mother of the defendants as the Correspondent of St. John Baptist School for the submission of the said form. Ex.A10 is Ration Card is the substance the document which has not been discredited. Further the name of the husband of Chaya Devi as S.S. Dass. Further Exs.A12 to
A14 Certificates of Baptism of plaintiffs showing his father as
Stanley Dass. Ex.A19 is Certificate of Marriage issued by St.
Mary's Church, Secunderabad which pertains to Joseph John and Isabel Ana who is none other than the mother of the defendants. The said certificate was obtained from the records pertaining to 1949 which still available in the said Church.
Further Ex.A27 is the Marriage Extract which is a true copy the person who signed the marriage extract under Ex.A27 who recorded the marriage. Further the evidence of PW2 also shows that the plaintiffs are the children born to Mr. S.S. Dass through
Smt. Chaya Devi. Therefore the oral testimony of Pws1 to 3 28 O.S.No.559 of 2006 coupled with the documentary evidence have categorically established that the plaintiffs are the children of S.S. Dass and
Smt. Chaya Devi and being the legal heirs of the S.S. Dass they are entitled to seek for partition of suit schedule property and got their shares in the property.
18.In supporting of their arguments the Learned Counsel for
Plaintiffs relied on a decision of Hon'ble Kerala High Court in a case M.A.C.A.No.1324/2004 between Jane Antony & others vs.
V.M. Siyath & others wherein their Lordships held that “Advanced Law Lexicon Vol.II defines legitimate child as one born in lawful wedlock or born before the marriage of its parties, who afterwards marry and which receives the recognition of its father and one of such children is just as legitimate before the law as the other. Illegitimacy is defined as being that which is contrary to law and it is said that the term usually is applied to children born out of lawful wedlock, Black's Law Dictionary 4 th edition defines illegitimate child as that which is contrary to law; it is usually applied to children born outside lawful wedlock.”
19.On the other side the Learned Counsel for defendants have argued that the mother of the defendants is only the legal wedded wife of Sri. S.S. Dass and the defendants are the only children of S.S. Dass and except the defendants that they are no other legal heirs the plaintiffs are no way concerned to Mr. S.S.
29 O.S.No.559 of 2006
Dass thereby they are not at all be considered as legal heirs of the Late S.S. Dass. The oral and documentary evidence adduced by the defendants made it clear that the mother of the defendants as only the wife of S.S. Dass and even S.S. Dass in his declaration before U.L.C., proceedings made clear that the mother of the defendants and the defendants are only family members of him and after his death the mother and the defendants are brought on record before U.L.C., proceedings as legal heirs of the Sri. S.S. Dass. The plaintiffs have miserably failed to prove that their mother Smt. Chaya Devi is legal wedded wife of S.S. Dass and they are born to S.S. Dass out of wedlock of their mother with S.S. Dass. Further the documentary evidence adduced by the defendants clearly established that after the death of S.S. Dass pertaining to suit schedule property the name of mother of the defendants as mutated as the owner and possessor of the suit schedule property and they are paying the property tax receipts regularly and the revenue records clearly shows the ownership of the suit schedule property and the possessory rights are lying with the defendants and their mother only. Therefore being the third parties to the property the plaintiffs cannot seek for partition and they are not entitled for any right over the suit schedule property.
20.In view of the above pleadings raised by both the parties an the oral and documentary evidences adduced by the plaintiffs 30 O.S.No.559 of 2006 and defendants it is undisputed fact that Sri. Late S.S. Dass was the owner and possessor of suit schedule property and he died on 10111987 intestate during his life time Sri. S.S. Dass under a registered sale deed purchased the suit schedule property and later constructed a building and use to running high school which is a aided school under the name and style of St. John
Baptist School wherein the mother of the plaintiffs worked as teacher and the mother of the defendants was worked as correspondent of the said school.
21.Now the plaintiffs after the death of their mother
Smt. Chaya Devi and S.S. Dass now claiming equal shares in the suit schedule property along with defendants. This is already admitted by the plaintiffs that the defendants are the legal heirs of Late S.S. Dass and at the same time claiming themselves as legal heirs with that of the defendants and Late S.S. Dass. But whereas on the other side the defendants even denied the marital relation of the mother of the plaintiffs and with their father Late S.S. Dass. Further it is also denied that the plaintiffs are not born to S.S. Dass through Chaya Devi. So the burden heavily lies on the plaintiffs as to show first of all that their mother Smt. Chaya Devi was the legally wedded wife of
S.S. Dass. On this aspect though the plaintiffs got examined
PW2 but he has not at all witness to the marriage of Chaya Devi and S.S. Dass. His oral evidence is no way helpful to the 31 O.S.No.559 of 2006 plaintiffs. Apart from the oral evidence of PW2 the plaintiffs got marked Ex.A27 is Certified copy of Marriage Extract of
S.S. Dass and Chaya Devi which is issued by HRA, Evangelical
Lutheran Church, Guntur, but no authenticated person of the said church is examined in proof of the said document. Further the plaintiffs failed to get examine the person who issued
Ex.A27. Apart from that on the other side the defendant got marked Ex.B9 is Certificate issued by District Registrar,
Guntur, stating that in respect of marriage of their father
S.S. Dass on 18051967 in Guntur Evangelical Lutheran
Church. In proof of marriage record is not traced out. So when it is certified by the Registrar of Guntur no record is available in the year 1967 in respect of marriage proof of the S.S.Dass in
Evangelical Lutheran Church. No explanation is offered by the plaintiffs how they could get Ex.A27 Marriage Extract of
S.S. Dass issued by Evangelical Lutheran Church, Guntur.
Thereby in view of the certificate issued by Registrar of Guntur, the genuinity of Ex.A27 is became very doubtful. Further in view of the non examination of any authenticated person in proof of the Ex.A27 the said certificate is liable to be discorded and no way helpful to the plaintiffs. So Ex.A27 is the only document relied by the plaintiffs in proof of marriage of their mother Chaya
Devi with S.S. Dass. So even the plaintiffs failed to prove that their mother Chaya Devi legally married to S.S. Dass in the alleged date in Evangelical Lutheran Church, Guntur. Further 32 O.S.No.559 of 2006 the plaintiffs got marked Ration Cards and Baptism Certificates and Death Certificate of S.S. Dass, wherein S.S. Dass was shown as father of the plaintiffs. But the said revenue records will be issued only for the purpose of revenue assessments. So those revenue records or Baptism Certificates will not create any legal relation between the plaintiffs and Mr. S.S. Dass. Though the plaintiffs relied on Service Records of Mrs. Chaya Devi to show that she is the wife of S.S. Dass, those service records will not helpful to prove the marriage of Smt. Chaya Devi with S.S. Dass and it will not create any legal relationship as husband and wife between Chaya Devi and S.S. Dass, since the plaintiffs claimed that their mother wedded wife of Mr. S.S. Dass.
22.Further as per the plaintiffs contention the marriage of their mother by name Chaya Devi was performed with S.S. Dass on 18051967 in HRA, Evangelical Lutheran Church, Guntur.
But whereas according to Ex.B2 Secondary Teacher Training
Certificate of Smt. Chaya Devi, dated 2110197 here name was shown as P. Chaya Devi. If really she was married in the year 1967 she would have changed his surname as 'S' instead of 'P'.
Apart from that here shown as P. Chaya Devi, D/o. Sri. Kotaiah
Sastry. So the said particulars shows that even by the year 1970 she was unmarried and she was referred to as the daughter of P.
Kotaiah Sastry. If she was really got married in the year 1967 she would have revealed his marriage certificate and shown 33 O.S.No.559 of 2006 herself as a wife of S.S. Dass instead of daughter of P. Kotaiah
Sastry. So Ex.B2 is Secondary Grade Basic Teacher Training
Certificate of Smt. Chaya Devi i.e., mother of the plaintiffs has itself falsified the contention of the plaintiffs that their mother
Smt. Chaya Devi married to S.S. Dass on 18051967 in
Evangelical Lutheran Church, Guntur. Thereby it is clear that even by that date Smt. Chaya Devi was unmarried.
23. So unless the marriage between Smt. Chaya Devi and
S.S. Dass is proved we cannot go through the evidence in respect of the relation of the plaintiffs with S.S. Dass. Though the
Learned Counsel for plaintiffs submitted a decision, with due respect I am of the opinion that the said citation is not applicable to the facts of present case, since as the defendants even denied the fraternity of the plaintiffs with Mr. S.S. Dass.
24.On the other side as per the admission of the plaintiffs the defendants are the children of Mr. Late. S.S. Dass and
Mrs. A.F. Dass. Though it is contended by the plaintiffs that
Smt. A.F. Dass married to one Joseph John and she is not legally wedded wife of Sri. S. S. Dass. But the plaintiffs failed to prove their contention that the mother of the defendants married to Joseph John. Therefore being the children of S.S. Dass and being wife of S.S. Dass, Smt. A.F. Dass became legal heirs after the death of S. S. Dass, since there are no other legal heirs on 34 O.S.No.559 of 2006 record. Even the declaration made by S.S. Dass before ULC proceedings made clear that the defendants and their mother are only the family members of him. He has clearly shown A.F. Dass as wife and defendants as his children in his declaration. After the death of deceased, the defendants and their mother have brought on record as legal heirs before ULC proceedings.
Further Property tax, Demand notice issued for the year 200910 by GHMC shown that the name of the mother of the defendants has been mutated in the place of S.S. Dass in respect of suit schedule property. Thereby as stated by defendants in respect of suit schedule property after the death of S.S. Dass, their mother name is mutated was believable.
25.The defendants have categorically proved by marking
Ex.B2 Secondary Grade Basic Teacher Training Certificate of
Smt. Chaya Devi even by the date of her alleged marriage with
S.S. Dass in the year 1967 she was an unmarried. Therefore view in any angle it is clear that the defendants and their mother have become legal heirs to S.S. Dass after his death and the name of the mother of the defendants also mutated in the revenue records in respect of suit schedule property. On the other side it can be said that the plaintiffs have miserably failed to prove their legal status with the Late S.S. Dass hence they are absolutely not entitled to seek partition and get the shares in the suit schedule property.
35 O.S.No.559 of 2006
26.In the result, the suit is dismissed. No costs.
Dictated to the Stenographer, transcribed by her, corrected
and pronounced by me in open court on this the 15 th day of July, 2016.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT:HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses Examined for
Plaintiffs Defendants PW1: John SantiyagoDW1: Jude Vernil Dass
PW2: P. Arockia DassDW2: Bahadur Khan
PW3: Syed Shah Khaleel Ullah Hussain
DOCUMENTS MARKED FOR
Plaintiffs Ex.A1: Original Death Certificate of S.S. Dass.
Ex.A2: Original Death Certificate of Chaya Devi.
Ex.A3: Certified copy of Registered Sale Deed.
Ex.A4: True English translation of Ex.A3.
Ex.A5: Property Tax Receipt, dated 23011990.
Ex.A6: Market Value Certificate of suit property.
Ex.A7: Public Notice in Etemad Urdu Daily, dated 28102006.
Ex.A8: True English Translation of Ex.A7.
Ex.A9: Photographs (17 nos.) with negatives (11 nos.).
Ex.A10: Ration Card in favour of Chaya Devi.
Ex.A11: True English translation of Ex.A10.
Exs.A12 to A15: Original Certificates of Baptism in favour plaintiffs.
Ex.A16: Certificate of Hindi Uttam Pariksha of of plaintiff No.1 with translation with English translation.
Ex.A17: Birth Certificate showing date of birth as 25091972 and date of registration as 25091972.
Ex.A18: Birth Certificate showing date of birth as 13071968 and date of registration as 13071968.
36 O.S.No.559 of 2006
Ex.A19: Marriage Certificate between Joseph John and Isabel Anna.
Ex.A20: Certificate of Baptism, dated 17042007 regarding Daphine Maria Dias.
Ex.A21: Another Certificate of Baptism, dated 26052007 of D3.
Ex.A22: Certificate of Marriage, dated 16042007 of D3.
Ex.A23: Certificate of Marriage of D1, dated 05042007.
Ex.A24: Another Certificate of Marriage of D4.
Ex.A25: Certificate of Marriage of Bradly John.
Ex.A26: Certificate of Uttam Hindi Pariksha of plaintiff No.2 along with English translation.
Ex.A27: Certified copy of Marriage Extract of S.S. Dass and Chaya Devi along with translation in English.
Ex.A28: Original Birth Certificate of plaintiff No.3, dt: 220407.
Ex.A29: Original Reply, dated 11042011 office of the Principal Accountant General, (A & E), Andhra Pradesh.
Ex.A30: Certified copy of Form of Application for Service Pension.
Defendants Ex.B1: Service Book of Chaya Devi.
Ex.B2: Secondary Grade Basic Teacher Training Certificate of Smt. Chaya Devi, dated 2110197.
Ex.B3: Municipal Tax Receipt in respect of House bearing No.18919/2/A, dated 17081993.
Ex.B4: Municipal Tax Receipt in respect of House bearing No.18919/2/A, dated 18111993.
Ex.B5: Certificate issued by Special Officer and Competent Authority, U.L.C., dated 16072005.
Ex.B6: Proceedings issued by Special Officer and Competent Authority, U.L.C., dated 08022005.
Ex.B7: Certificate issued by Paster, Andhra Evangelical Lutheran Church, dated 06062009.
Ex.B8: Application submitted by Smt. Chaya Devi for fixation of pension.
37 O.S.No.559 of 2006
Ex.B9: Certificate issued by District Registrar, Guntur, dated 31052010.
Ex.B10: Demand Notice for the year 200910 issued by GHMC,
dated 22062009.
Ex.B11: Information furnished by Assistant Supply Officer, CircleII, Hyderabad, dated 06012011.
Ex.B12: Affidavit of Karlapudi Yohan, dated 30102009.
Ex.B13: Identity Card of Karlapudi Yohan, dated 15121995.
Ex.B14: Certified copy of Statement issued by Special Officer & Competent Authority, U.L.C., Hyderabad.
Ex.B15: Certified copy of Proceedings of the same Officer.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT:HYDERABAD.
1 O.P.No.1444 of 2012
IN THE COURT OF THE XI ADDL. CHIEF JUDGE, CITY CIVIL
COURT :: HYDERABAD.
Wednesday, the 25thday of June, 2014.
PRESENT : Smt. G.V.N. Bharatha Laxmi, M.A., B.L., XI Additional Chief Judge.
MOTOR VEHICLE ORIGINAL PETITION NO.1444 OF 2012
Between:
1. Smt. Esarapu Vani, W/. E. Srinivas, 33, Housewife.
2. Master Esarapu Vinay, S/o. Late Srinivas, 12 years, Student. Being minor rep. by his natural guardian and mother Smt. E. Vani, W/o. Late Srinivas, the petitioner No.1.
3. Smt. Esarapu Sarojana, W/o. Late Bikshapathi, 55 years, Housewife.
All R/o. H.No.1611410/1/A, Musarambagh, Hyderabad.
.... Petitioners
And
1. B. Satyanarayana, S/o. Mallaiah, aged Major, Owner of Motorcycle bearing No. AP 24 AM 4747, R/o. H.No.367, Bommalaramaram village & Mandal, Nalgonda District – 508 126.
2. ICICI Lombard General Insurance Co. Ltd., Rep. by its Branch Manager (Claims), Osman Plaza, IV Floor, Panjagutta, Hyderabad.
(Policy No.3005/14013973/10852/000, validity 26082011 to 25082012)
... Respondents
This M.V.O.P. is coming on 3rd day of June, 2014 before me for final hearing in the presence of Sri P. Chandra Mouli, Advocate for the
Petitioners and of Sri R.M.K. Kishore, Advocate for the Respondent No.2 and Respondent No.1 remained set exparte and after hearing the arguments of both sides and having been stood over for consideration, till this day, this court delivered the following: 2 O.P.No.1444 of 2012
O R D E R
1.The petitioners filed the present petition U/s.166 of M.V.Act against the Respondents claiming compensation of Rs.15,00,000/ for the death of the deceased Esarapu Srinivas in a motor vehicle accident, which occurred on 25032012 at about 1020 a.m., near Rice Mill,
Naginenipally village.
2. The brief facts of the petition are that on 25032012 at about 10:20 A.M., while the deceased Esarapu Srinivas was proceeding on
Motorcycle bearing No. AP 29 TQ TR 2859 as pillion rider towards
Bommala Ramaram, on reaching near Rice Mill, Naginenipally Village, one Motorcycle bearing No. AP 24 AM 4747 came in rash and negligent manner with high speed without following traffic rules, lost the control over the said motorcycle and dashed the motorcycle of the deceased, resulting which the deceased fell on the road and received grievous head injury and multiple injuries all over the body. Immediately he was shifted to Osmania General Hospital, Hyderabad and admitted as inpatient for treatment. During the course of treatment on 28032012 at about 1150 p.m., the deceased succumbed to injuries. The Police of PS
Bommalaramar, Nalgonda District, registered a case in Cr.No.24/2012 under section 304A IPC against the rider of the motorcycle bearing No.
AP 24 AM 4747. The petitioner No.1 is the wife, petitioner No.2 is the minor son and petitioner No.3 is the widowed mother of the deceased.
The deceased was doing business in Pan shop and Real Estate under
Name and Style M/s. Sri Sai Pan Shop Real Estate Consultant 3 O.P.No.1444 of 2012
Kondamadugu Cross Road, Bibinagar Mandal, by engaging an employee @ Rs.6,000/ per month towards salary and used to earn more than
Rs.20,000/ per month in all and used to contribute the same for the livelihood of himself and his family consisting the petitioners herein. The deceased was the only earning member in his family and having no other source of income. The petitioners entirely depend for their livelihood on the earnings of deceased. Due to untimely death of the deceased, the petitioners lost their livelihood. Due to untimely death of deceased, the 1st petitioner lost the company of her husband; minor petitioner No.2 lost the loveandaffection and guidance of his father and the petitioner No.3 lost the support of her son at her old age. The said accident occurred only due to rash and negligent driving of rider of the motorcycle bearing
No. AP 24 AM 4747, due to which the deceased lot his precious life abruptly at an young, energetic and growing age of 35 years by leaving the petitioners herein as his legal heirs helplessly. Due to untimely death of the deceased the petitioners are suffering with great pain and mental agony. Therefore the petitioners are claiming Rs.15,00,000/ towards compensation, which is just and reasonable. The respondent No.1 is the registered owner and the respondent No.2 is the insurer of the said motorcycle which caused the accident, as such both the respondents 1 & 2 jointly and severally liable to pay the compensation to the petitioners with costs and interest @ 18% per annum from the date of filing of petition till the date of realization.
3.The Respondent No.1 remained set exparte.
4 O.P.No.1444 of 2012
4.The Respondent No.2 filed Counter denying all the averments of the petition, manner of accident, age, avocation, earning capacity, involvement, negligence of rider of crime vehicle i.e,. Motorcycle bearing
No. AP 24 AM 4747 and called for strict proof of the same. The
Respondent No.2 further submitted that the petitioners claimed excessive and exorbitant compensation and called for strict proof of the same and sought for dismissal of the petition.
5.Basing on the above pleadings of both sides, the following issues are framed and settled for trial:
1) Whether the deceased died in the accident on 25032012 due to the rash and negligent driving of the driver of Motorcycle bearing No. AP 24 AM 4747?
2) Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3) To what relief?
6.Arguments of Counsel for petitioners heard. As there is no representation for respondent hence respondent’s arguments treated nil.
7. ISSUES: It has been case of the petitioners that petitioner No.1 is wife, petitioner No.2 is minor son, petitioner No.3 is widowed mother of Esarapu Srinivas who died in motor vehicle accident herein after called as deceased. Further it is submitted that on 25032012 at about 10:00 A.M., while the deceased was proceeding on Motorcycle bearing
No. AP 29 TQ TR 2859 as pillion rider along with rider namely Sharabu
Srinivas from their house towards Bommala Ramaram, Naginenipally
Village, at the same one rider of Motorcycle bearing No. AP 24 AM 4747 came in rash and negligent manner with high speed without following traffic rules, lost the control over the said motorcycle and dashed the deceased motorcycle in opposite direction, due to which he fell down on 5 O.P.No.1444 of 2012 the road and received grievous injuries head injury and multiple injuries all over the body. Immediately after the accident the deceased was shifted to Osmania General Hospital, Hyderabad and was admitted as inpatient for treatment. During the course of treatment on 28032012 at about 1150 p.m., the deceased succumbed to injuries. The petitioner
No.1 has incurred huge amounts towards treatment and funeral.
8.Further it is submitted that the deceased was hale and healthy and was aged about 35 years on the date of his premature death. He was doing Multifarious Business like Pan shop business and Real Estate business at Kondamadugu cross road, Bibinagar Mandal, Ranga Reddy
District by engaging an employee namely S. Madhu & was paying to the said employee @ Rs.6,000/ per month towards salary and the deceased used to earn more than Rs.20,000/ per month in total and contribute the same to them for their maintenance and for the livelihood of himself.
After the death of the deceased the petitioners constrained to windup said pan shop business and real estate business being there is no person to look the said business. With the sudden death of the deceased all the petitioners are became a destitute as there is no other source of income, they are depended on the earnings of the deceased. The petitioner No.1 lost the consortium and the company of the deceased and petitioner No.2 lost his love and affection and best guidance of the deceased and the petitioner No.3 lost the support of her son at her old age. Except themselves there are no other legal heirs/representative of the deceased.
The police of P.S. Bommala Ramaram, Nalgonda District registered a case in Crime No.24/2012 under section 304A IPC against the rider of 6 O.P.No.1444 of 2012 the Motorcycle bearing No. AP 24 AM 4747 and the police also filed charge sheet against the rider of motorcycle after thorough investigation.
As such the petitioners are claiming for compensation an amount of
Rs.15,00,000/ against the respondents who are severally and jointly liable to pay the same along with interest and costs.
9.In support of the claim, the petitioner No.1 herself got examined as PW1 who reiterated the contents of petition as it is in her evidence and also got examined PWs2 to 4 and also got marked Ex.A1 Certified copy of FIR, Ex.A2 Certified copy of Final report, Ex.A3 Certified copy of MVI report, Ex.A4 Certified copy of Inquest report, Ex.A5 Certified copy of PME report, Ex.A6 Original Trade License for the Financial Year 201213, Ex.A7 School Fee Receipt pertaining to petitioner No.2, Ex.A8
Copy of Aadhar Card (compared with original).
10.On the other side the respondent No.1 was set exparte. The respondent No.2 has got examined RW1 and also got marked Ex.B1
Copy of Policy and Ex.B2 Office copy of Legal notice sent to R1 in order to disbelieve the version of the petitioners.
11.Coming to the evidence of PW2 who claimed himself as eye witness to the accident. That on 25032012 at about 1000 A.M., while he was proceeding as rider on Motorcycle bearing No. AP 29 TQ TR 2859 along with pillion rider (deceased) namely Esarapu Srinivas from their house towards Bommala Ramaram village side with great care and diligence by following traffic rules, when they reached near Rice Mill,
Naginenipally village, at the same time the rider of one Motorcycle 7 O.P.No.1444 of 2012 bearing No. AP 24 AM 4747 came in rash and negligent manner with high speed without following traffic rules, lost the control over the said motorcycle and dashed to his motorcycle in opposite direction in wrong direction, due to which they fell down on the road and the deceased received grievous head injury and multiple injuries all over the body, whereas he sustained multiple injuries all over the body. Immediately after the accident the deceased was shifted to Osmania General Hospital,
Hyderabad and was admitted as inpatient for treatment. During the course of treatment on 28032012 at about 1150 P.M., the deceased was succumbed to injuries. The police of P.S. Bommala Ramaram of
Nalgonda District examined him and recorded his statement as eye witness (LW2). While cross examination it is elicited from the evidence of PW2 that he did not file copy of his DL before the Court and he did not file any claim petition for compensation and he did not gave any police report. However after gone through the cross examination the evidence of PW2 in respect of the manner of the accident remained unrebutted. Apart from that Ex.A2 Certified copy of Final Report also revealed that PW2 as LW2 as eyewitness to the accident hence there is no reason to disbelieve the version of PW2 hence it can be purely reliable.
12.In addition to the evidence of PW2 the petitioners got marked
Ex.A1 Certified Copy of F.I.R, which has revealed the following facts that Police Station Bommala Ramaram, Nalgonda District, has registered the accident in crime No.24/2012, dated:29032012, U/s.304(A)IPC basing on the complaint of Bhonagiri Swamy goud against the rider of 8 O.P.No.1444 of 2012
Motorcycle bearing No. AP 24 AM 4747. Then after the police has made investigation into the case and found the rider of Motorcycle bearing No.
AP 24 AM 4747 as accused and rendered him to be liable having driven the said vehicle in a rash and negligent manner with high speed and caused the accident, accordingly the police filed Final Report under section 304(A) IPC against the rider of Motorcycle bearing No. AP 24
AM 4747 marked under Ex.A2. In addition to that Ex.A3 Certified copy of Motor Vehicle Inspector report also has made it clear that the motor vehicle inspector has inspected the crime vehicle and opined that the accident occurred was not due to any mechanical defects of the vehicle.
Therefore through the oral testimony of PWs1 and 2 coupled with documentary evidence Ex.A1 Certified copy of FIR, Ex.A2 Certified copy of Final Report and Ex.A3 Certified copy of MVI report, the fact it is clearly established by the petitioners that the accident was occurred due to the rash and negligent driving of the Motorcycle bearing No. AP 24
AM 4747 and in result of which as per Ex.A4 Certified copy of Inquest report and Ex.A5 Certified copy of PME report, the deceased Esarapu
Srinivas was died due to head injury resulted in accident.
13.No evidence is produced by the petitioners in respect of the age proof of the deceased. The said fact is also admitted by PW1 while in her cross examination that she has not filed any document to show the age of the deceased. So in the absence of any material evidence in respect of the age of the deceased, the age mentioned in PME report marked under
Ex.A5 shall be considered. According to it, the age of the deceased was 37 years at the time of his death. As the deceased was aged about 37 9 O.P.No.1444 of 2012 years by following Sarala Verma's case 2009 ACJ 1298 (SC) the suitable multiplier is 15.
14.Further it is the claim of the petitioners that at the time of death of the deceased he was doing Pan Shop and Real Estate Business and was earning more than Rs.20,000/. In proof of the said fact the petitioners got examined PWs3 & 4 and also got marked Exs.A6 to A9.
15.The evidence of PW3 is that he know the deceased Esarapu
Srinivas prior to the date of accident being himself and deceased were doing Real Estate business in Bibinagar, Bhongir, Ghatkesar and its surrounding arrears. The deceased was doing Real Estate business and mediator between buyers and seller in commercial properties, agricultural lands, plots, houses etc. The deceased used to earn commission as mediator more than Rs.10,000/ per month in the year 2012 and he was also earning more than Rs.10,000/ per month in the year 2012. If the deceased not died in a road accident he may earn more than Rs.15,000/ per month like him. He is now earning Rs.15,000/ per month. Whereas in cross examination it is stated by PW3 that he has not filed any document to show that the deceased Esarapu Srinivas and himself done real estate business and he has not produced any document to shows that the deceased has done mediation business in real estate, and earned Rs.15,000/ per month or any other amounts. So therefore after gone through the cross examination the evidence of PW3 it is clear that in supporting of his evidence he has not produced any oral or documentary evidence. Thereby merely basing on his oral testimony this 10 O.P.No.1444 of 2012
Court cannot rely on his evidence in respect of avocation and income of the deceased.
16.Now coming to the evidence of PW4 whose evidence has revealed that he is employee of the deceased Esarapu Srinivas prior to his death. The deceased was doing business of pan shop and real estate consultant at Kondamadugu village, Bibinagar Mandal, Nalgonda
District. The deceased was doing the said business under the name and style M/s. Sri Sai Pan Shop and Real Estate consultant. He was employee of the deceased on monthly basis and he was drawing a monthly salary of Rs.6,000/ from deceased. He was doing said job under deceased since five years prior to his death. The deceased was very known person in the said pan shop business and real estate at Kondamadugu village and its surrounding arrears. Whereas while cross examination it is categorically admitted by PW4 that he has not produced any document to show that he worked as an employee under the deceased Esarapu Srinivas, in a pan shop by name, Sri Sai Pan Shop and he has not produced any document to shows that he was paid Rs.6,000/ per month by the deceased.
Thereby in view of his admissions and in view of absences of any material evidence, the evidence of PW4 is not at all reliable. If he discarded the evidence of PWs3 & 4 the remaining evidence relied by the petitioners that Exs.A6 to A9.
17.Ex.A6 is the Certificate of Trade Licence issued by Panchayat
Secretary G.P. Kondamadugu in favour of Sri. Isarapu Srinivas,
S/o. Bixapathi, according to it the deceased was permitted to do business 11 O.P.No.1444 of 2012 in the name of Sri Sai Pan shop for the financial year 2011 – 2012.
Ex.A8 is the Photograph pertaining to the said Sri Sai Pan Shop and Real
Estate Consultant in which pan shop can be seen. But there is no evidence to shows that the pan shop showing in Ex.A8 was being runned by the deceased. If it is believed that the deceased was running of pan shop, but there is no evidence at all to prove the actual income of the deceased per month on the said business. The said fact is also admitted by PW1 while cross examination that she has not filed any document to shows that her husband was earning more than Rs.20,000/ per month.
Apart from that the petitioners got marked Ex.A9 Copy of Aadhar Card which is compared with original. Ex.A7 is the School Fee Receipts issued by Sri Sai Santhosha High School High School issued in favour of petitioner No.2 for payment of school fee. So merely basing on the oral testimony of PW1 and Exs.A6 & A8 we cannot come to any conclusion about the actual income of the deceased per month.
18.So in the absence of any evidence as to the income of the deceased he shall be considered as coolie. Further here I am relying on judgment of our Hon'ble Apex Court reported in 2011 (2) An.W.R 998 (SC) wherein their Lordship have categorically held that “the appellant was working as coolie and therefore we cannot expect her to produce any documentary evidence to substantiate her claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. WE hasten to add that in all cased and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of 12 O.P.No.1444 of 2012 supporting material. It dependents on the facts of each case”. Accordingly the Hon'ble Apex Court considered the wages of the labourer between
Rs.100/ to Rs.150/ per day or Rs.4,500/ per month. The same analogy of the Hon'ble Apex Court is applicable. So by following the above decision the income of the deceased shall be considered as
Rs.150/ per day, since the Hon'ble Apex Court considered the wages of the labourer upto Rs.150/ per day. Accordingly the income of the deceased would comes to Rs.150/ per day which comes to Rs.4,500/.
19.Here the learned Counsel for petitioners relied on a decision of our Hon’ble Apex Court in Rajesh and others Vs. Rajbir Singh and others reported in 2013 ACJ 1403 wherein their lordship has observed as follows: “ Since the court in Santosh Devi's case, 2012 ACJ 1428 (SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298 (SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years.” 20.By following the said decision as the deceased is selfemployed and was below 40 years, hence there must be an addition of 50 percent to the actual income of the deceased towards future prospects. .
13 O.P.No.1444 of 2012
21. Therefore in view of the above citations the petitioners are entitled compensation, accordingly as the income of the deceased is taken Rs.150/ per day it would comes to Rs.4,500/ per month. As the age of the deceased was 37 years. As he was a self employed person.
Thereby his income is comes to Rs.6,750/(4,500/(actual income) + 50% (future prospects)) per month and Rs.81,000/ per annum. After deducting 1/3rd towards his personal expenses, Rs.54,000/ he would have contributed towards his family for their maintenance. Therefore
Rs.8,10,000/ (54,000 x 15) is awarded towards loss of dependency of the petitioners.
22.Further following the decision of Rajesh and others Vs. Rajbir
Singh and others reported in 2013 ACJ 1403 the petitioner No.1 is entitled a sum of Rs.1,00,000/ towards loss of consortium and petitioner
Nos.2 is entitled to Rs.1,00,000/ towards his loss of care and guidance, being minor children, and the petitioners are entitled to Rs.25,000/ for funeral expenses.
23. Further the learned Counsel for petitioners also relied another decision of our Hon'ble Apex Court in Vimal Kanwar and others v. Kishore Dan and others reported in 2013 ACJ 1441 wherein their lordships have categorically pointed out that “Having regard to the facts and evidence on record, we estimate the monthly income of the deceased
Sajjan Singh at Rs.9,000 x 2 = Rs.18,000/ per month. from this his personal living expenses, which should be 1/3rd, there being three dependants, has to be deducted. Thereby the actual salary will come to 14 O.P.No.1444 of 2012
Rs.18,000 – Rs.6,000 = Rs.12,000/ per month or Rs.12,000 x 12 =
Rs.1,44,000/ per annum. As the deceased was 28½ years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be
Rs.1,44,000 x 17 = Rs.24,48,000/ to which we add the usual award for loss of consortium and loss to the estate by providing a conventional sum of Rs.1,00,000; loss of love and affection for the daughters Rs.2,00,000; loss of love and affection for the widow and the mother at Rs.1,00,000 each, i.e., Rs.2,00,000, and funeral expenses of Rs.25,000/”.
24.Thereby following the said decision the petitioner No.3 being the mother of the deceased, she is entitled to Rs.1,00,000/ under the head of loss of love and affection. In total the petitioners are entitled to
Rs.11,35,000/. Thereby the total compensation is an amount of
Rs.11,35,000/. (Rupees Eleven Lakhs and Thirty Five Thousand only) as shown in table below :
Sl.No Heads Calculation
(i)Actual IncomeRs.4,500/ p.m.,
(ii)50 percent of (ii) above to be added asRs.4,500 + Rs.2,250 = future prospectus Rs.6,750/ p.m.,
(iii)1/3rd of (ii) deducted as personal expenses Rs.6,750 – Rs.2,250 = of the deceased Rs.4,500/ p.m.
(iv)Compensation after multiplier of 15 is Rs.4,500 x 12 x 15 = appliedRs.8,10,000/
(v)Loss of consortium Rs.1,00,000/
(vi)Loss of care and guidance for minor Rs.1,00,000/ children
(vii)Loss of estate of the deceasedRs.1,00,000/
(viii) Funeral ExpensesRs.25,000/ Total compensation awarded Rs.11,35,000/ 15 O.P.No.1444 of 2012
25.On the other side it is the evidence of RW1 that he is working as Legal Manager in respondent No.2 company that Ex.B1: Copy of
Policy and Ex.B2 is Office copy of legal notice sent to R1 under Section 134C of the M.V.Act to the injured (R1) to produce all material papers inspite of it he has not chosen to respond. Further the petitioners have not filed any document to shows the earnings of the deceased. Further the petitioners failed to prove the age of the deceased also hence the respondent No.2 is not liable to pay compensation. While cross examination it is elicited that the insurance policy of the crime vehicle was in force. Thereby this is the fact categorically established from the evidence of RW1 coupled with the documentary evidence of Exs.B1 &
B2 that the R1 is the registered owner of the crime vehicle i.e.,
Motorcycle bearing No. AP 24 AM 4747 and it was duly insured with the respondent No.2 under the policy No.3005/66185701/00/000, valid from 26082011 to 25082012. Thereby as on the date of accident i.e., 25032012 the insurance policy of the crime vehicle i.e., Motorcycle was in force. Though it is made clear that the respondent No.2 has got sent legal notice to respondent No.1 but there is no proof of service of the said notice to R1 hence no inference can be drawn against the respondent No.1. As such in the absence of any evidence with regard to the violation of terms and conditions of the policy, the respondent No.2 being the insurer has to indemnify the respondent No.1 and liable to pay compensation to the petitioner.
26.The involvement of the vehicle is proved from Ex.A1 Certified
Copy of F.I.R and Ex.A2 Certified Copy of Final Result and the insurance 16 O.P.No.1444 of 2012 of the vehicle is proved from Ex.B1 true copy of insurance policy.
Therefore being the owner and insurer of the crime vehicle i.e.,
Motorcycle bearing No. AP 24 AM 4747 the respondent Nos.1 & 2 are severally and jointly liable to pay compensation to the petitioners.
27.IN THE RESULT, the petition is allowed in part awarding the compensation of Rs.11,35,000/ (Rupees Eleven Lakhs and Thirty Five
Thousand only) with simple interest @ 7.5% per annum from the date of filing of the original petition till the date of deposit or realization and proportionate costs thereon, directing the respondent Nos.1 & 2 severally and jointly to deposit the compensation amount with accrued interest and costs within (30) days from the date of this order and after depositing the same, the petitioner No.1 is awarded a sum of
Rs.7,35,000/ (Rupees Seven Lakhs and Thirty Five Thousand only) along with costs and interest thereon, out of which the petitioner No.1 is entitled to withdraw an amount of Rs.1,00,000/ (Rupees One Lakh only) with accrued interest and costs and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of two years; the petitioner No.2 is awarded a sum of Rs.2,00,000/ (Rupees Two
Lakhs only) along with costs and interest thereon, the entire amount shall be deposited in the fixed deposit in the name of the petitioner No.2 under the guardianship of his mother i.e., petitioner No.1 in any nationalized bank till attainment of majority; and the petitioner No.3 is awarded a sum of Rs.2,00,000/ (Rupees Two Lakhs only) along with costs and interest thereon, the petitioner No.3 is permitted to withdraw 17 O.P.No.1444 of 2012 the awarded amount along with costs and interest. Advocate fee is fixed at Rs.11,500/ (Rupees Eleven Thousand and Five Hundred only).
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in open court on this the 25th day of June, 2014.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDEREABAD.
APPENDIX OF EVIDENCE
Witnesses Examined for
Petitioners Respondents P.W.1: Smt. Esarapu VaniR.W.1: Akshay Kulkarni P.W.2: Sharabu Srinivas P.W.3: P. Srinivas Goud P.W.4: S. Madhu
DOCUMENTS MARKED FOR
Petitioners:
Ex.A1: Certified copy of FIR.
Ex.A2: Certified copy of Final Report.
Ex.A3: Certified copy of MVI Report.
Ex.A4: Certified copy Inquest Report.
Ex.A5: Certified copy of PME Report.
Ex.A6: Original Trade Licence for the Financial year 201213.
Ex.A7: School Fee Receipt pertaining to petitioner No.2.
Ex.A8: Photographs showing business of the deceased.
Ex.A9: Copy of Aadhar Card (compared with original).
Respondents: Ex.B1: Copy of Policy.
Ex.B2: Office copy of legal notice sent to R1.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDEREABAD.
IN THE COURT OF II ADDL. CHIEF JUDGE, CITY CIVIL COURT ::
HYDERABAD.
Monday, the 17th day of October, 2016.
PRESENT : Smt. G.V.N. Bharatha Laxmi, M.A., B.L. XI Additional Chief Judge, FAC: II Additional Chief Judge.
APPEAL SUIT NO.333 OF 2011
Between:
V.N. Reddy, S/o. V. Krishna Reddy, Aged about 58 years, Occ: Business, R/o. 161120/1/3, Saleem Nagar, Malakpet, Hyderabad.
.... Appellant/Defendant
And
1. G. Ravinder, S/o. G. Papaiah, Aged about 44 years, Occ: Business, R/o. H.No.133931/17, Jiyaguda, Hyderabad.
2. K. Dayanand, S/o. K. Vittal Jee, Aged about 55 years, Occ: Business, R/o. H.No.133952/1, Jiyaguda, Hyderabad.
3. M. Sanjeeva Reddy, S/o. Raj Reddy, Aged about 61 years, Occ: Business, R/o. H.No.B1/F9, HIG2, Baghlingampally, Hyderabad.
4. Narender Singh, S/o. Late Mohan Singh, Aged about 46 years, Occ: Business, R/o. Flat No.405, 4th Floor, Magistrate Apartments, Bogulkunta, Hyderabad.
5. Gopal Maheswari, S/o. Damodarlal Maheswari, Aged about 28 years, Occ: Business, R/o. H.No.1611511/C/42, Shalivahana Nagar, Dilsukhnagar, Hyderabad.
(Amended as per the orders in I.A.No.2392/12, dated 060314)
... Respondents/Plaintiffs
ON APPEAL AGAINST THE JUDGMENT AND DECREE DT:211011
PASSED BY THE XXII JUNIOR CIVIL JUDGE, CITY CIVIL COURTS,
HYDERABAD IN
O.S.No.817 of 2007
Between:
1. G. Ravinder, S/o. G. Papaiah, Aged about 44 years, Occ: Business, R/o. H.No.133931/17, Jiyaguda, Hyderabad.
2. K. Dayanand, S/o. K. Vittal Jee, Aged about 55 years, Occ: Business, R/o. H.No.133952/1, Jiyaguda, Hyderabad.
3. M. Sanjeeva Reddy, S/o. Raj Reddy, Aged about 61 years, Occ: Business, R/o. H.No.B1/F9, HIG2, Baghlingampally, Hyderabad.
4. Narender Singh, S/o. Late Mohan Singh, Aged about 46 years, Occ: Business, R/o. Flat No.405, 4th Floor, Magistrate Apartments, Bogulkunta, Hyderabad.
5. Gopal Maheswari, S/o. Damodarlal Maheswari, Aged about 28 years, Occ: Business, R/o. H.No.1611511/C/42, Shalivahana Nagar, Dilsukhnagar, Hyderabad.
... Plaintiffs
And
V.N. Reddy, S/o. V. Krishna Reddy, Aged about 58 years, Occ: Business, R/o. 161120/1/3, Saleem Nagar, Malakpet, Hyderabad.
... Defendant
This Appeal Suit is coming on this 29th day of September, 2016
before me for final hearing in the presence of Sri Rupendra Mahendra,
Advocate for the Appellant and of Sri T.V. Muralidhar, Advocate for the Respondent No.4 and Respondent Nos.1, 2, 3 & 5 were remained set exparte and having been stood over for consideration, till this day, this court delivered the following:
: J U D G M E N T :
1.This is an appeal preferred by the defendant, aggrieved by the judgment and decree dt.21102011 passed in O. S. No. 817 of 2007 on the file of XXII Junior Civil Judge, City Civil Court, Hyderabad, questioning the decree granted against him and in favour of plaintiffs.
2.The appellant in the appeal before this court is the defendant and respondents 1 to 5 in the appeal are the plaintiffs in the suit before the trail court.
For the purpose of convenience, to avoid confusion and for better appreciation of the oral and documentary evidence adduced by the parties before trail court, the appellant in the appeal herein after will be referred to as ‘defendant’ and the respondents as ‘plaintiffs’.
3.The suit is filed by the plaintiff seeking the perpetual injunction restraining the defendant, his agents, workers, servants, representatives etc. from interfering into the possession of the suit schedule property. As seen form the plaint, the plaintiffs case is that they are the owners and possessors of the suit schedule property and they purchased the same under an agreement of sale cum G.P.A. with possession vide Regd. Doc. No. 614/2007 dt.31012007 from
Nidamarthy Rama Krishna and KHRV Subbaraya Sharma, rep. by his
G.P.A., K. Subramanyam and that the defendant who is unknown and stranger to them had been causing mental torture by way of frequently interfering in to their peaceful possession and enjoyment over the suit schedule property and the defendant accompanying some other anti social elements tried to trespass into the suit schedule property in the month of December, 2006 and when they and their vendors requested them not to do such illegal activities, the defendant stated abusing them and their vendors and tried to manhandle them, but due to their hue and cry the possessors gathered and he along with henchmen fled away form the suit schedule property and while leaving the spot threatened them with dire consequences and on that their vendors lodged a complaint with the P. S. Malakpet against the defendant and his henchmen, but the police have not initiated any action against them. It is also pleaded that after purchasing the suit schedule property they constructed small huts therein and some people are residing in the said huts to keep a vigil over the suit schedule property and on 15022007 the defendant and his henchmen again visited the suit schedule property and threatened all the inmates to vacate the premises and when they objected for the same, for which the defendant and his henchmen beat them mercilessly and the inmates stated big hue and cry and sensing some danger the defendant and his henchmen fled away threatening that if they do not vacate the suit schedule property with in a week, they would come with more force to evict them form the suit schedule property and to encroach upon the same and on that they approached the concerned police and reported the above incident, but the police have not taken any action saying that the matter is in civil nature. It is further pleaded that the defendant is a politician and has high influence in the police and locality and there is every apprehension that the defendant may encroach upon the suit schedule property and if he succeeds in his attempts they will be deprived of their legitimate right and put to irreparable loss and hardships and as such having no other alternative had approached the court rescue.
4.The defendant opposed the suit by filing the written statement in which he denied the ownership and possession of the plaintiffs over the suit schedule property and stated that the plaintiffs knowing very well that he is the custodian and supervisor of the 400 Sq. Yards with
H. No. 1611597/1/5 on Plot No. 3 in S. No. 282 situated at
Gaddiannaram Village, falsely included in the suit land and filed the false suit against him and also denied the causing of mental torture by way of frequently interfering into the possession of the plaintiffs over the suit schedule property earlier to the registered sale deed itself. It is also specifically denied his trying of trespass in to the suit schedule property in the month of December, 2006 and making of complaint with P. S. Malakpet and construction of the huts in suit schedule property by plaintiffs subsequent to their purchase of suit schedule property and pleaded that there are rooms with asbestos roof in the land of 400 Sq. yards under his supervision but not the huts as alleged.
The defendant also denied his visit along with henchmen to the suit schedule property on 15022007 and threatening of the inmates.
While denying the averments of the plaint, the defendants stated that
Smt. D. Buchamma, W/o Late Narayana Reddy purchased 400 Sq.
Yards with house bearing No. 1611597/1/5 on Plot No. 3 in Sy. No.
282 situate at Gaddiannaram Village of Hyderabad under a Regd. Sale
Deed vide Doc. No. 986/1983 from A. Buchi Reddy. The said
Buchamma executed a will in favour of her grandson D. Jogi Reddy,
S/o D. Krishna Reddy who handed over the property to him to supervise and safeguard. He also stated that the vendor of Buchamma purchased 400 Sq. Yards of place through a Regd. Sale Deed vide Doc.
No. 3680/81 from R. Diwakar who purchased from one Mir Besher Ali through Regd. Sale Deed vide Doc. No.400/1964. The said Basher Ali purchased the land the area of an extent of 5,676 Sq. Yards, in Sy. No.
282 of Gaddiannaram Village, through a Regd. Sale Deed vide Doc. No.
135/1963 form Mir Jaffar Ali who purchased the said extent form one from Syed Azizul Rahaman G. P. A. of U. Asadulla Hussaini and
Sd. Khaleellullah Hussaini through a Regd. Sale Deed vide Doc. No.
2497/1962. Since 1962 the property is in possession of the D. Jogi
Reddy and his Vendors, vendor’s son and the plaintiffs are totally strangers and they never in possession of the said 400 Sq. yards of Plot along with the house therein. It is also pleaded that the water tap connection and electricity service are in the name of D. Buchamma for the said premises and compound wall raised around the said plot.
D. Buchamma allowed one Narasimha Reddy to reside as licensee and the said Narasimha Reddy is issued with the ration card till now. The defendant has the possessory right to enter into the said 400 Sq. Yards of land with rooms above said which is kept to his custody for supervision by D. Jogi Reddy, the beneficiary of the will of Buchamma and the plaintiffs have no any right or title over the said land and they are intending to grab the same.
5.On the strength of the pleadings of both the parties the following issues were settled by the trail court for trail.
ISSUES:
i.Whether the plaintiffs are entitled for the relief of perpetual injunction as sought? ii. To what relief?
6.Before the trail court, the plaintiff in order to prove his case besides examining himself as Pw1 also examined Gajanand Guptha and
Lingala Rama Krishna as Pw‘s 2 and 3 and exhibited Exhibits A1 to A8, whereas the defendant himself is examined as Dw1 and exhibited B1 to B14 on his behalf.
7.On appreciation of the oral and documentary evidence adduced
before the trail court, the learned XXII Junior Civil Court, Hyderabad
decreed the suit of the plaintiffs with costs granting perpetual injection in favour of the plaintiffs restraining the defendant, his agents, workers etc. from interfering with the possession of suit schedule property.
8.Aggrieved by the judgment and decree of the trail court, the defendant has come up with this appeal questioning the correctness and legality on the following grounds:
i) The trail court had erroneously decreed the suit without considering the fact that defendant’s brother is the absolute owner and possessor of the property through his grand mother and her predecessor in title.
ii) The court below failed to consider the facts of purchase of the plot by the grand mother of Jogi Reddy through the Regd. Sale
Deed vide Doc. No. 968/1983 and his brother is in possession and did not consider various documents filed by the defendant.
iii)The court below failed to consider the fact that Exhibit A1 Regd.
Agreement of Sale cum G. P. A. by itself is not sufficient to decide the possession of the plaintiffs and that the plaintiffs has failed to establish their possession over the suit schedule property on the date of suit.
iv) The learned counsel for the appellant/ defendant with all the force at his command argued questioning the impugned judgment and decree with reference to the grounds of appeal apart from filing the written arguments.
v) The learned counsel for the respondent /plaintiff has vehemently argued and filed his written arguments in support of the impugned judgment and decree.
9.Upon hearing both the learned counsels and on appreciation of the oral and documentary evidence adduced before the trail court, grounds of appeal, written arguments and the impugned judgment and decree now the points that falls for determination in this appeal are:
I. Whether there are grounds to setaside the impugned judgment and decree ? II. To what relief ?
POINTI:
10.The plaintiffs filed the suit seeking perpetual injunction restraining the defendant and his agents etc. from interfering with his possession over the suit schedule property on the ground that they purchased the property under Exhibit A1 with possession. The defendant is resisting the suit claim denying the title of plaintiffs over the suit schedule property and claimed that his grand mother
D. Buchamma purchased 400 Sq. yards with house bearing No. 1611 597/1/5 in Plot No. 3 in Sy. No. 282 situate at Gaddiannaram Village under Exhibit B2 and bequeathed the same to his brother Jogi Reddy who in turn handed over the property to him to supervise and safe guard and the plaintiffs are strangers to the said property and they have no any right and particularly stating that there was no cause of action for the suit.
11.The pleadings of the parties play an immense important role in deciding the case and the parties cannot go beyond them. The very plea of the plaintiffs in Para No. 3 of the plaint is that the defendant was interfering with the possession even prior to their purchase of the suit schedule property. If that was the case the plaintiff could be very cautious while purchasing the property. The plaintiffs did not even file the title deed of their vendor before the court to show what was the right vested in him to alienate the suit schedule property in his favour.
The fact that the question of title also may have to be incidentally gone in to in deciding whether an injunction can be granted or not. As stated the defendant disputed not only the possession, but also the title of the plaintiffs over the suit schedule property. In the said circumstances, the burden is heavy on the plaintiffs to prove their title over the suit schedule property followed by possession. In my considered view where the title of the property is under challenge a suit for mere injunction without praying for declaration of title is not maintainable. The same principle is the verdict of the Hon’ble High Court of A. P. reported in 2004 (6) ALT 38. Through facts and circumstances of the said case is different, the principle laid down is applicable to the facts of the case.
Thus I find that in the present form i.e. for injunction with out declaration of title is not maintainable in the circumstances of the case.
The lower court ignored to consider the principle laid in the judge made law and followed the principle of possession on the date of suit.
12.The counsel for the plaintiff vehemently argued and specifically submitted in his written arguments that the vendor of the plaintiffs had purchased the suit schedule property in the year 1965 and since then they were in possession till Exhibit A1 and subsequently the plaintiffs are in possession of the same and the defendant was claiming 400 Sq.
yards out of 744 under the guise of fabricated documents. On perusal of the entire record, there is no proof of title over the suit schedule property by the vendors of the plaintiffs. Though the Pw1 stated in his evidence that he holds the entire record, but he did not file them in to the court except the Ex A2 which is the property tax receipt. An adverse inference can be drawn for non filing of the material documents which are in possession of the plaintiffs. In the absence of the title of the vendor of the plaintiffs, it is not safe to relay on the
Ex A1 when the very title of the plaintiffs is challenged. It is well established principle that the title of the plaintiff plays an important role in the matter of drawing presumption as to his possession of property which is laid in a case reported in ALT2006 (4) 627. When the question involving determination of declaration of rights and possession to suit schedule property by parties to the suit, cannot be decided in a suit for mere injunction. The said principle is laid in a case reported in 2006 (6) ALT443. The similar facts and circumstances of this case is decided by the Hon’ble High Court of Andhra Pradesh reported in 2005(1) ALT169, wherein it is held that :
“suit for perpetual injunction question of title can be gone into in a suit for perpetual injunction, if plaintiff has strong reason to believe that he has valid title under registered sale deed the defendant setup new case with new set of facts notwith in the knowledge of plaintiff about his title to his suit land in such case issue relating declaration of title shall be gone into essentially even in the suit for injunction in the suit for injunction question of title occupies first place, relating to question of possession next to what is the effect of finding relating to title in such suit is a deferent matter”
13.As such in the present case the title of the plaintiffs plays an important role. In this case the plaintiffs utterly failed to prove the title and possession of their vendors over the suit schedule property and they have not even tried to examine any of their vendors. They also did not prove the very execution of ExA1 at least by examining by its attesters.
The pontiffs have also not file the documents which are in their possession in respect of the suit schedule property. As such merely basing on the ExA1, it cannot be said that the plaintiffs have the title and possession over the suit schedule property.
14.The plaintiffs placed reliance on ExA1 to A6 to prove the possession over the suit schedule property. As narrated above ExA1 doesn’t itself is a conclusive proof of the possession of the plaintiffs over the suit schedule property in the absence of the title deed of their vendors. ExA2 is a provisional receipt issued ion token of payment of property tax when the contents of the said documents is looked in to, it is found that a cheque was given in token of payment of property tax on 31012007 and on which date the ExA1 is executed. This is floated in to service on the date of ExA1 for four years tax. The said receipt lacks
PTIN which is mandate for any assessment of tax for communication.
These two documents i.e. ExA1 and A2 were seen the light of the day just 20 days before filing of the suit. No other documents are filed to show the possession of the plaintiffs over the suit schedule property.
The ExA4 to A6 are the certificates of encumbrance on the property.
The ExA4 shows that it was issued for the house No. 1611, but not for the suit schedule property and the extent is only for 400 Sq. Yards, but not for the extent of suit schedule property. The boundaries therein are different form the boundaries of suit schedule property. So also ExA5 is for H. No. 1611 and the boundaries are not tallying. ExA6 is also for
H. No. 1611 and the extent is for 500 Sq. yards only and the boundaries are also not tallying with the suit schedule property. As such
ExA1 to A6 are no way prove the possession of the plaintiffs over the suit schedule property. All the documents filed by the plaintiffs contradicting each other and hence they cannot be relied. Apart from the above the oral evidence adduced by the plaintiffs is shaky to prove the possession of the plaintiffs. The plaintiffs though pleaded have not examined the alleged watch men Ravi who said to be residing in suit schedule property apart from any of the neighbors. In view of the above the plaintiffs have utterly failed to prove their possession over the suit schedule property on the date of suit.
15.It is the argument of the counsel for the defendant that though there was no cause of action for the suit and the alleged interference was not proved, the lower court wrongly concluded and passed the judgment. The version of the plaintiffs in his pleadings is that the defendant was causing mental torture by way of frequently interfering with the possession even prior to Ex A1 and during December, 2006 the defendant with his Hench men tried to trespass in to the suit schedule property and on which the vendors of the plaintiffs have lodged the complaint with P. S. Malakpet and on 15022007 the defendant visited the suit schedule property and threatened the inmates to vacate the premises. These incidents are the cause for filing the suit.
The plaintiffs have not filed any copy of the complaint made to the P. S.
Malakpet. No vendor of the plaintiffs or inmates of the suit schedule property are examined to say about the alleged interferences stated supra. The chief examination affidavits of Pw2 and 3 are nothing but the replica of the plaint pleadings and the said witnesses are neither the neighbors not the inmates of the suit schedule property and they are not certain about the cause for the suit. No neighbor is examined to prove the version of the plaintiffs, as such the plaintiffs utterly failed to prove the cause of action for the suit. The lower court ought to have considered that there was no cause of action for the suit. When there is no cause of action there cannot be any suit. The argument of the plaintiffs that an interim injunction is granted in I. A. No. 137/2007 which was confirmed in C. M. A. 389/2007 and tried to impress the court that in view of the said injunction it is deemed that the plaintiffs are in possession of the suit schedule property and hence they are entitle for perpetual injunction. On this aspect it is the preposition of law that “the issue has to be decided on the basis of the evidence adduced, but not on the basis of the interlocutory orders passed in the suit. In a suit for perpetual injunction the plaintiff fails to establish his possession over the property covered by the suit, question of granting injunction protecting his possession does not arise. The same is reported in 2003(6) ALT758, As such there is no force in the argument of the plaintiffs on this aspect and cannot be considered.
16.In most of his argument, the counsel for the plaintiffs has concentrated the flaws and contradictions in the evidence on behalf of the defendant, particularly the boundaries in ExB1, B2 and A7, but ignored the flaws in his evidence. ExA1 boundaries, extent and house number are not tallying with the ExA4 to A6. It is the plaintiffs who approached the court has to prove his case by adducing the proper evidence and he cannot relay on the weakness of the case of the defendant. It is the well established preposition of law. It is also held by their lordship in a case reported in 2004(6) ALT38 that “while holding the evidence of both sides is shaky, allowing the suit basing on weak documents produced by the plaintiffs is not proper, as such I see no force in the argument of the plaintiffs.
17.It is argued by the counsel for the plaintiffs that the defendant was giving contradictory statements before the deferent courts and he was never in possession of the suit schedule property and has no title therein and simply to grab it, has fabricated the ExB1 to B14. On this aspect their lordships of the Hon’ble apex court have held that “inconsistence please can be raised by the defendant in written statement and the same cannot be permissible in case of plaintiff. The same is reported in 2006(5) ALT 52 SC. As such the plaintiff cannot take shelter under the alleged inconsistency of the defendant and he has to prove his case and rely on its strength.
18.On appreciation of the oral and documentary evidence adduced in the light of the pleadings and on cursory pleading of the impugned judgment and the binging principles laid down in the above decisions by the Hon’ble High Court of Andhra Pradesh and Apex court of India, I have no hesitation in coming to a conclusion that that findings of the learned XXII Junior Civil Judge are not correct.
19.For the above reason I hold on Point No. 1 that the impugned judgment of the lower court is liable to be setaside and the point No. 1 is answered accordingly.
POINTII
20.In the result, the appeal is allowed while setting a side the impugned judgment and decree in O.S.No.817 of 2007, dt.21102011 on the file of XXII Junior Civil Judge, City Civil Court, Hyderabad. No order as to costs.
Typed to my dictation, corrected and pronounced by me, in the open Court, on this the 17 th day of October, 2016.
Sd/ (G.V.N.Bharatha Laxmi)
XI ADDITIONAL CHIEF JUDGE,
FAC: II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD
Appendix of Evidence NIL Documents Marked NIL Sd/ (G.V.N.Bharatha Laxmi)
XI ADDITIONAL CHIEF JUDGE,
FAC: II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD
1 OP 528-12
IN THE COURT OF THE II ADDL. CHIEF JUDGE, CITY CIVIL COURT ::
HYDERABAD.
Monday, the 31st day of October, 2016.
PRESENT : Smt. G.V.N. Bharatha Laxmi, M.A., B.L., XI Additional Chief Judge. FAC II Additional Chief Judge
MOTOR VEHICLE ORIGINAL PETITION NO. 528 OF 2012
Between:
S.Govind Bhatt S/o Late S.Sesh Bhatt, Aged about 42 yrs, Occ : Pvt. Service & Parttime Profession (Astrologer), r/o 221163/B/2, New Nallakunta, Hyderabad – 500 044
.... Petitioner
And
1. Mohd. Mazar Ali, S/o Munthaz Ali, Aged about 27 yrs, Occ : Driver of vehicle bearing No.AP11 TV 0184,R/o 1211/C/108P Indira Nagar, Lalapet, Secunderabad.
2. A.Ramanadam s/o Lachaiah, aged about yrs, Occ : owner of vehicle bearing No.AP 11 TV 0184, R/o 2290/35/B&C, Amberpet, Hyderabad
3. Reliance General Insurance Co. Ltd., Rep. by its Regional/ Branch Manager, having its Office at Vishal Mega Mart, 4th Floor, Building No.41327 to 337, Abids, Hyderabad (Policy Cover Note No.109000424890, valid from 24062009 to 23062010)
... Respondents
This M.V.O.P. is coming on 31st day of October, 2016 before me for final hearing in the presence of Sri Rupendra Mahendra, Advocate for the
Petitioner and of Sri G.Srinivasa Charyulu, Advocate for the Respondent No.3 and the Respondent No.1 & 2 set exparte and having been stood over for consideration, till this day, this court delivered the following:
O R D E R
1.The petitioner filed the present petition U/s.166 of M.V.Act against the
Respondents claiming compensation of Rs.37,97,071/ for the injuries received by the petitioner in a motor vehicle accident, which occurred on 22 022010 at about 1.00 p.m at the outskirts of Masaipet Village, Medak District.
2.The brief facts of the petition are that on 22022010 at about 1.00 P.M 2 OP 528-12 the petitioner had been travelling from Basar to Hyderabad in Car bearing
No. AP11 TV 0184. The first respondent herein was driving the vehicle.
When he was returning from Basar to Hyderabad on their way at around 1.00
P.M when they reached the outskirts of Masaipet village on NH.7, within
Chegunta Police Station Limits, Medak District, the 1st respondent drove the vehicle in a rash and negligent manner and dashed to a road divider in view of which the vehicle over turned and fell on the left side of the road due to which the car was completely damaged and the first petitioner and his wife and the children received injuries. All the injured persons were shifted to Balaji
Hospital, Kompally by ambulance. The petitioner received multiple grievous injuries I.e fracture of femur (left side ), Multiple Intracranical Hematoma, fracture right Maxilla, fracture right Zygoma with Arbilal Floor, Eye Ball laceration on the left side, Rupture of left eye globe. The petitioner further submits that on 12.02.2010 the petitioner shifted to Yashoda Super Specialty
Hospital, Somajiguda, Hyderabad and were admitted therein. The petitioner had undergone various surgeries on 25.02.2010 and again on 04.03.2010 and again on 09.03.2010 and thereafter he was discharged on 22.03.2010. During that period, the petitioner had incurred a total expenditure of Rs.5,68,997/.
The petitioner had thereafter undergone dental surgery on 24.05.2010 and
Nasal Surgery on 16.10.2010. The medical record goes to show that the petitioner had suffered injury to the head and injury to the left leg associated with loss of consciousness plus nasal bleeding and back eye of both sides. On further investigations, it was found that the eye ball was ruptured on one side.
The eye ball study revealed Hemorrhage in the Anterior and posterior chambers and further there is variable congestion, thrombosis and hemorrhage in the Choroid, Sclera and surrounding tissues, cut end of optic nerves unremarkable. The petitioner was admitted in Intensive Neuro Care 3 OP 528-12
Unit and thereafter on 25.02.23010 Dr. D. Bhavani Prasad performed the surgery for debridement plus primary repair facial laceration, for fracture right
Zigoma and for fracture of nasal Bones partial reduction and thereafter, after the surgery the petitioner was shifted to Intensive Neuro Care Unit and was placed on ventilator and other drugs. Thereafter again on 04.03.2010,
Tracheostomy under general anesthesia. Thereafter after recovery, again another surgery was performed on 09.03.2010 for open reduction and internal fixation and with interlocking of femur (left) done under Spinal Anesthesia by
D. Manoj Chakravarthy, Orthopaedic Surgeon and again he was shifted to
Intensive Neuro Care unit and ultimately on review the petitioner was discharged on 22.03.2010. The various procedures and the surgeries on the patient for multiple problems was conducted and the total bill amounting to
Rs.5,68,997/ was paid in Yeshoda Super Speciality Hospital, Somajiguda,
Hyderabad. After the discharge of the petitioner from the hospital, there are other medical expenses for regularly visiting the hospital and physiotherapy etc. and the petitioner had been spending around Rs.5,000/ per month after the discharge from the hospital. The petitioner was also a Professional
Astrologer and since the date of accident, he is unable to spent sufficient time in respect of his activity as a professional astrologer that he is not able to spend sufficient time and not able to concentrate on the same. The petitioner is also a LIC agent and due to the accident, the agency was suffered drastically and he is not able to take up fresh agency work, which has caused undue financial loss to the petitioner. The petitioner is unable to attend to his regular normal duties as any other person would be ale to do and had suffered disability to the extent of more than 40%. The petitioner submitted that the accident was caused due to rash and negligent driving by the driver of the crime vehicle I.e the respondent No.2, as such the first respondent being the 4 OP 528-12 driver of the vehicle, the 2nd respondent being the owner of the crime vehicle and the third respondent being the insurance company with whom the car was insured are jointly and severally liable to pay compensation to the petitioner. Therefore the petitioner is claiming compensation an amount of
Rs.37,97,071/ together with costs and interest.
3.The respondent No.1 & 2 remained exparte.
4.The respondent No. 3 filed Counter denying all the averments of the petition, manner of accident, age, avocation, earning capacity, involvement, negligence of rider of crime vehicle i.e., Car bearing No. AP 11 TV 0184 and called for strict proof of the same. They further submitted that the petitioner claimed excessive and exorbitant compensation and called for strict proof of the same and sought for dismissal of the petition.
5.Basing on the above pleadings of both sides, the following issues are framed and settled for trial:
1. Whether the accident took place due to the rash and negligent driving of the vehicle bearing No. AP 11 TV 0184 causing injuries to the petitioner?
2. Whether the petitioner is entitled to the compensation? If so, to what amount and from whom?
3. To what relief?
6.Arguments of both the side counsels heard.
7. ISSUES 1 TO 3: Pw.1/petitioner has deposed that on 22.02.2010 at about 1.00 P.M. while he was travelling from Basar to Hyderabad in Car bearing No.
AP11 TV 0184 and the first respondent was driving the vehicle on the way when they reached the outskirts of Masaipet village the 1st respondent drove the vehicle in a rash and negligent manner and dashed to a road divider due to which the vehicle over turned and fell on the left side of the road due 5 OP 528-12 to which the car was completely damaged and the petitioner, his wife and his children received injuries. The police at Chegunta, Medak District registered
FIR in Crime No. 20/2010 dt. 22.02.2010. All the injured persons were shifted to Balaji Hospital, Kompally. He received multiple grievous injuries i.e fracture of femur (left side), Multiple Intracranial Hematoma, fracture right
Maxilla, fracture right Zygoma with Arbilal Floor, Eye Ball laceration on the left side, Rupture of left eye globe and ultimately he lost one eye in the accident leading to 40% disability. Thereafter he was shifted to Yashoda Super
Speciality Hospital, Somajiguda, Hyderabad and were admitted that he had underwent various surgeries on 25.02.2010 and again on 04.03.2010 and again on 09.03.2010 and thereafter he was discharged on 22.03.2010. During the treatment period he had incurred a total expenditure of Rs.5,68,997/.
The petitioner had thereafter undergone dental surgery and Nasal Surgery. In
Yashoda Super Speciality Hospital he was admitted in Intensive Neuro Care
Unit and later he was discharged on 22.03.2010. He had been spending around Rs.5,000/ per month after discharge from the hospital. Due to loss of his eye he became partially disabled, in the result of which in the result of which his social movement is restricted. Previously he use to regularly travel to various places and he was also a professional astrologer. Now due to disability he is unable to spend sufficient time in respect of his activity as a professional astrologer. He is also LIC agent now due to disability he has been caused undue financial loss. As such being the driver, owner and insurer of the crime vehicle the respondent Nos. 1 to 3 are severally and jointly liable to pay compensation.
Therefore, he is claiming compensation amount of Rs.37,97,071/ with interest and costs.
8.In proof of the claim the petitioner has got examined Pw.2 to 5 and 6 OP 528-12 got marked Ex A.1 is CC of the FIR, Ex A is the CC of scene of offence
Pnachanama with rough sketch, Ex A.3 is CC of charge sheet, Ex A.4 is the receipt in payment fine by the driver of the vehicle, Ex A.5 is the copy of the household card, Ex A.6 are the pharmacy bills, Ex A.7 is the discharge summary, Ex A.8 are the bills and receipts, Ex A.9 is the Certificate dt.
09.03.2011 issued by Yashoda Hospital, Ex A.10 are the bills issued from
Vrinda Nature Cure and Yoga Clinic, Ex A.11 is the salary certificate, Ex A.12 is the I T Returns, Ex A.13 is the discharge summary, Ex A.14 are the C T Scan films.
9.On the other side the respondent Nos.1 & 2 were remained set exparte. The respondent No.3 has not adduced any oral evidence in order to disbelieve the version of petitioner, except marking Ex.B1 true copy of insurance policy with consent.
10.Whereas coming to the contents of Ex.A1 is Certified copy of
FIR with complaint, which have revealed the following facts that Police
Station Chegunta, Medak District has registered the accident in crime
No.20/2010, dated:22022010, U/s.337 of IPC, basing on the complainant of Sri Lingojigari Ravikanth Keshav against the driver of Indica
Car bearing No. AP 11 TV 184. Ex A.2 Certified copy of scene of offence panchanama has revealed the fact of accident. Then after the police has made investigation into the case and found the driver of Indica Car bearing No. AP 11 TV 184 as accused and rendered him to be liable having driven the said vehicle in rash and negligent manner with high speed and caused the accident, accordingly the police filed Ex.A3 is Certified 7 OP 528-12 copy of Charge Sheet under section U/s.337 & 338 of IPC against the driver of crime vehicle i.e., Indica Car bearing No. AP 11 TV 0184.
Therefore through the oral testimony of P.W.1 coupled with documentary evidence of Exs.A1 to A3, the fact it is categorically established by the petitioner that the accident was occurred due to rash and negligent driving of driver of Indica Car bearing No. AP 11 TV 0184, in result of which the petitioner has sustained injuries.
11)As it can be seen from Ex A.9 Certificate issued by Yashoda Hospital that due to result of RTA the petitioner had fracture femur of left side, fracture right Maxilla, fracture righ Zygoma with orbital floor fracture and eye ball laceration left eye with no perception of light. Further it is certified that since the eye was irreparably damaged in the accident, the petitioner had to undergo enucleation (removal of eye) in respect of treatment taken by the petitioner as well as expenditure incurred in the accident. He got examined Pw.2 and also got marked Exs A.4, A.6, A.7, A.8, A.10, A.14.
12)This is the evidence of Pw.2 Dr. Manoj Chakravarthy, consultant
Orthopaedic surgeon of Yashoda Hospital that the petitioner had come to the emergency room on 22.02.2010 with RTA Polytrauma, fracture femur (left) side, multiple Intracranial Hematoma, fracture right Maxilla, fracture (right),
Zygoma with orbital floor, eye ball laceration left side and Diabetes Mellitus.
The nature of the injuries are grievous. He was operated on 25.02.2010, 04.03.2010 and 09.03.2010. Open reduction and internal fixation with inter locking of femur left done. He was discharged on 22.03.2010 after his condition was satisfactory. While cross examination it is admitted by Pw.2 that patient can attend to his normal duties without any disturbance and difficulty.
8 OP 528-12
13)This is the evidence of Pw.3 Dr. Bhavani Prasad, consultant, Plastic
Surgery in Yashoda Hospital that the petitioner came for admission on 22.02.2010 with a history of RTA resulting in head injury, facial injury, leg injury and eye injury. He was examined by team of doctors comprising of
Neuro surgeon, orthopaedic surgeon, ophthalmic surgeon and himself. The surgery was done left eye Enucleation and ORIS right Zygoma and reduction of fracture nasal bone and he was later operated by ENT surgeon on 04.03.2010.
Trachestomy was done and shifted to I.C.U. On 09.03.2010 Orthopaedic surgeon has operated for fracture femur. On 22.03.2010 he was discharged from the hospital and was advised to attend for follow up on OP basis. While cross examination it is admitted by Pw.3 that the surgery conducted by him has healed now and there is no record of follow up examination and there is no difficulty for the above injuries at present from Plastic surgery point of view and there is no difficulty in performing his daily routine activities.
14)Whereas coming to the evidence of Pw.4 Dr. P. Ranganadham,
Consultant, Neuro Surgeon in Yashoda Hospital, Hyderabad it is revealed that he examined petitioner and he found the petitioner was unconscious, swelling of both eyes and unable to speak but moving all four limbs. C.T Scan of the brain revealed Minimal bleed anterior inter hemisphere fissure, Hemorrahagic contusion bilateral basifrontal region and right temporal lobe, hypodensity in left frontal lobe, contusion/infarct, minimal pnemocephalus in right frontal region. Rest of the cerebral parenchyma shows normal gray white matter differentiation posterior fossa structures including fourth ventricle are normal.
He found fracture injuries and fracture anterior and posterior wall of right maxillary sinus, nasal bone, greater wing of sphenoid on left. Depressed 9 OP 528-12 fracture of left orbit and floor of anterior cramical fossa. He was treated with medication only from the Head Injury point of view. He was discharged from the hospital on 22.03.2010. By the time of discharge, he was conscious spontaneously opening eyes, speaking and moving all limbs. He was advised medication to be continued at the time of discharge. Though he was cross examined that no fact is in contra to his chief examination was elicited.
15)This is the evidence of Pw.5 Dr. Kiran Kumar Wallam, Ortholmic surgeon in Yashoda Hospital that he has examined the petitioner and found to have lacerated eye ball with a ruptured globe. After examination, it was decided to enucleation to prevent sympathetic ophthalmitis or the right eye.
On examination no perception of lift in the left eye and on 25.02.2010 left eye was examined under anesthesia. While cross examination Pw.5 has categorically denied the suggestion that due to loss of left eye there will not be any affect in doing day to day activities. So even after gone through the evidence of Pw.5 the evidence of unchallenged.
16)That he got marked Ex A.7 discharge summary issued by Yashoda
Hospital which has revealed the same fact as deposed by Pw.2 to 5 agreeing that the petitioner got admitted in the said hospital with IP No.121910 on 22.02.2010 with injuries as mentioned in Ex A.9 Injury Certificate and also has undergone surgeries and after treatment he was discharged on 22.03.2010 apart from that the said case sheet has revealed the day today procedure as well as the medications prescribed to the petitioner as well as the result of the medications it is undergone by the petitioner till the date of discharge. Ex A.8 is bills and receipts issued by Yashoda Hospital including final bill for an amount of Rs.5,68,997/. Accordingly for the treatment the petitioner has paid 10 OP 528-12 an amount of Rs.5,68,997/ in addition to that the petitioner also got marked
Ex A.6 pharmacy bills issued by Sivarama Hospitals in total for Rs.6,874/. Ex
A.10 are the bills issued from Vrindaa Nature Cure & Yoga Clinic for an amount of Rs.49,000/ but the petitioner has not examined any of the person of the said hospital in proof of his treatment. So in the absence of proof of the said bills, those amounts shall not be liable to be considered.
17)Ex A.13 is the discharge summary issued by Yashoda Hospital accordingly the petitioner again approached the said hospital on 16.10.2010 and got admitted himself vide IP No. 130846 and was discharged on the same day from the hospital. The treatment procedure had been given to the petitioner was recorded in daily in the said discharge summary along with discharge summary the petitioner also got marked discharge bill issued by
Yashoda Hospital, accordingly for the said admission as in patient the petitioner has paid Rs.25,000/.
18)Ex A.14 are the C.T.Scan Films which are reflecting the same fact as adduced by the doctors in respect of nature of injuries sustained to the petitioner.
19)Therefore, from the oral and documentary evidence regarding the medical treatment taken by the petitioner, this fact has been categorically established that immediately after the accident, the petitioner approached to the Yashoda Hospital and was admitted and also spent huge amount for the treatment and also spent huge amount for medical treatment and pharmacy etc.
20)Further the contention of the petitioner that at the time of accident he 11 OP 528-12 was a professional astrologer and also LIC Agent and due to result of the accident he lost his right eye sight accordingly his eye ball was removed thereby he became permanently disabled. Hence he lost his earnings. In respect of his avocation and income he has got marked Ex A.11 salary certificate and Ex A.12 I.T.Returns. Ex A.11 is the Salary certificate issued by
Corvine Chemicals & Pharmaceuticals Ltd, and accordingly the petitioner is working in their organization as Manager Production and his net salary per month is Rs. 34,454/ but the petitioner has never pleaded in petition that he is the employee of Corvine Chemicals & Pharmaceuticals Ltd, and he was drawing Rs.34,454/. So in the absence of pleadings the document got marked by the petitioner shall not be considered. Ex A.12 is the I.T. Returns of the petitioner, however, basing on the said returns this court shall not come to any conclusion as well as actual net income of the petitioner. Apart from that in proof of it he has not adduced his evidence thereby in respect of the contentions raised by the petitioner as to his avocation, age and income are not liable to be sustained. Where as coming to the contention of the disability as per the medical record the fact it is clear that the petitioner has got removal of left eye ball due to damage in the accident thereby it causes affect as his daily activities and also it causes facial disfiguration of the petitioner. Though the said total loss of left eye sight is not calculated in terms of percentage of disability however, in view of the said fact and in view of the said affect on the activities of the petitioner as well as disfiguration of the fact that this court shall consider the disability of the petitioner minimum. In the absence of any evidence in respect of disability. The court shall consider the fact of disability sustained to the petitioner.
AWARD OF COMPENSATION:
21.Therefore taking into consideration of the above facts the 12 OP 528-12 petitioner is awarded compensation an amount of Rs.1,30,000/ for grievous injuries and for pain and sufferance, a sum of Rs.6,00,871/ for medical expenses, a sum of Rs.10,000/ for attendant, transportation and extra nourishment and a sum of Rs.2,00,000/ is awarded under the head of disability. In total the petitioner is awarded compensation an amount of Rs.9,40,871/ (Rupees Nine Lakhs Forty Thousand Eight
Hundred and Seventy One only).
22) On the other side the respondent No.3 got marked Ex.B1 true copy of insurance policy has made it clear that the respondent No.2 is the registered owner of the crime vehicle i.e., Indica Car bearing No. AP 11 TV 0184 and it was duly insured with the respondent No.3 under policy
No.1815792338001976 which is valid from 24062009 to 23062010.
Thereby the date of accident i.e.,22022010 the insurance policy of the crime vehicle i.e., Indica Car was in force. As such in the absence of any evidence with regard to the violation of terms and conditions of the policy, the respondent No.3 being the insurer has to indemnify the respondent Nos.1 & 2 i.e., driver and owner of the crime vehicle and liable to pay compensation to the petitioner.
23.The involvement of the vehicle is proved from Ex.A1 Certified copy of FIR and Ex.A3 Certified copy of Charge Sheet and the insurance of the vehicle is proved from Ex.B1 true copy of insurance policy.
Therefore being the owner, driver and insurer of the crime vehicle i.e.,
Indica Car bearing No. AP 11 TV 0184, the respondent Nos.1 to 3 are 13 OP 528-12 severally and jointly liable to pay compensation to the petitioner.
24)In the result, the petition is allowed in part awarding the compensation of Rs.9,40,871/ (Rupees Nine Lakh Forty Thousand Eight
Hundred and Seventy One Only) with simple interest @ 7.5% per annum from the date of filing of the original petition till the date of deposit or realization and proportionate costs thereon, directing the respondent Nos. 1 to 3 are severally and jointly liable to deposit the compensation amount with accrued interest and proportionate costs within (30) days from the date of this order and after depositing the same, out of which the petitioner is permitted to withdraw an amount of Rs.3,00,.000/ (Rupees Three Lakhs only) along with accrued interest and costs and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of one year, Advocate fee is fixed at Rs.10,000/ (Rupees Ten Thousand only).
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open court on this the 31st day of October, 2016.
Sd/ (G.V.N.Bharatha Laxmi)
FAC II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses Examined for
Petitioner: Respondents
P.w.1: S. Govind BhattNIL
P.w.2: Dr. Manoj Chakravarthy
P.w.3: Dr D Bhavani Prasad
Pw.4 : Dr P Ranganadham
Pw.5 : Dr Kiran Kumar Wallam
DOCUMENTS MARKED FOR
Petitioner:
Ex A.1 is CC of the FIR, 14 OP 528-12
Ex A is the CC of scene of offence Pnachanama with rough sketch,
Ex A.3 is CC of charge sheet,
Ex A.4 is the receipt in payment fine by the driver of the vehicle,
Ex A.5 is the copy of the household card,
Ex A.6 are the pharmacy bills,
Ex A.7 is the discharge summary,
Ex A.8 are the bills and receipts,
Ex A.9 is the Certificate dt. 09.03.2011 issued by Yashoda Hospital,
Ex A.10 are the bills issued from Vrinda Nature Cure and Yoga Clinic,
Ex A.11 is the salary certificate,
Ex A.12 is the I T Returns,
Ex A.13 is the discharge summary,
Ex A.14 are the C T Scan films.
Respondents:
Ex B.1 is True copy of the Insurance Policy.
Sd/ (G.V.N.Bharatha Laxmi)
FAC II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.
1 O.P.No.1633 of 2014
IN THE COURT OF THE II ADDL. CHIEF JUDGE, CITY CIVIL COURT ::
HYDERABAD.
Friday, the 23rd day of September, 2016.
PRESENT : Smt. G.V.N. Bharatha Laxmi, M.A., B.L., XI Additional Chief Judge. FAC II Additional Chief Judge
MOTOR VEHICLE ORIGINAL PETITION NO. 1633 OF 2014
Between:
1. K.Laxmi Thirupathamma W/o Late Srinivas Rao @ Srinu, age : 22 yrs, Occ : Housewife
2. K.Sheshank S/o Late Srinivas Rao @ Srinu, Aged: 6 years, Occ : Nil (Minor rep.by his natural guardian Mother I.e petitioner No.1)
3. K. Bharathi W/o K Venkateswara Rao @ Venkateswarlu, Aged: 56 years, Occ : nil
4. K. Venkateswar Rao @ Venkateswarlu S/o Late Munu Swamy, Aged: 62 years, Occ: Nil.
All are R/o.H No.2157MN/181, Mahankali Nagar2, Shamshiguda, K.P.H.B.Colony, Kukatpally, R.R.Dist.
.... Petitioners
And
1. D.Ravi Kumar s/o K. Dora Swamy, Age : Minor, Occ : not Know , R/o H No.18123, Roada Mistry Nagar Road Shahpurnagar, Hyderabad.
2. Reliance General Insurance Co. Ltd., Rep. by Authorised person, Sagar Plaza, 4th Floor, Abids Koti Road, Hyderabad (Policy No.Wo3281404957, valid from 28032014 to 27032015)
... Respondents
This M.V.O.P. is coming on th day of September, 2016 before me for final hearing in the presence of Sri Y.Veeranna Babu, Advocate for the Petitioners and of Sri S.V.Gupta, Advocate for the Respondent No.2 and the Respondent No.1 set exparte and having been stood over for consideration, till this day, this court delivered the following: 2 O.P.No.1633 of 2014
O R D E R
1.The petitioners filed the present petition U/s.166 of M.V.Act against the Respondents claiming compensation of Rs.30,00,000/ for the death of the deceased K. Srinivas Rao @ Srinu in a motor vehicle accident, which occurred on 18042014 at about 3.00 a.m at his No.2 157MN/181, K.P.H.B.Colony, Kukatpally, Ranga Reddy District.
2. The brief facts of the petition are that the petitioner No.1 is the wife, petitioner No.2 is minor son and petitioner Nos.3 & 4 are parents of the deceased. That on 18042014 at about 03.00 am when the deceased K. Srinivas Rao under taken some civil works in his house, placed order for soil to maintain level ground at his house and was waitng for the soil to come in the tipper. The deceased occupied the cot in the process of waiting for the tipper, in the mean time the tipper bearing No. AP11V6463 came with the load of soil to unload at the deceased at the deceased house came in the reverse direction without availing the assistance of the cleaner to see the clearance of the path while morning in the reverse direction came in a rash and negligent manner with high speed ran over the deceased causing several fatal injuries. The Police of K.P.H.B Colony, registered a case vide Crime No.
365/2014 under Section 304A of IPC against the rider of the Tipper bearing No. AP 11 V 6463. The deceased was hale and healthy at the time of accident and was living happily with his family. The deceased has bright future in his employment and is expected to grow many folds in his career. The above accident occurred due to rash and negligent way 3 O.P.No.1633 of 2014 of driving of the driver of the offending vehicle. The respondent No.1 is owner of the vehicle bearing AP 11 V 6463, respondent No.2 is insurer of the offending vehicle and as such both respondent Nos.1 & 2 are jointly and severally liable to pay compensation of Rs.30,00,000/ to the petitioners. Therefore the petitioners are claiming compensation an amount of Rs.30,00,000/ together with costs and interest.
3.The respondent No.1 remained exparte.
4.The respondent No. 2 filed Counter denying all the averments of the petition, manner of accident, age, avocation, earning capacity, involvement, negligence of rider of crime vehicle i.e., Tipper bearing No.
AP 11 V 6463 and called for strict proof of the same. They further submitted that the petitioner claimed excessive and exorbitant compensation and called for strict proof of the same and sought for dismissal of the petition.
5.Basing on the above pleadings of both sides, the following issues are framed and settled for trial:
1. Whether the accident took place due to the rash and negligent driving of Tipper bearing No. AP 11 V 6463 causing death of K. Srinivas Rao @
Srinu?
2. Whether the petitioners are entitled to the compensation? If so, to what amount and from whom?
3. To what relief?
6.Arguments of both the side counsels heard.
4 O.P.No.1633 of 2014
ISSUES 1 TO 3:
7.It has been the case of the petitioners that the petitioner No.1 is wife, petitioner No.2 is minor son, petitioner Nos. 3 & 4 are parents of late K. Srinivas Rao @ Srinu, who died in motor vehicle accident herein after called as deceased. That on 17042014 the deceased arranged a
Tipper bearing No. AP 11 V 6463 to bring sand to raise their house level the said tipper after putting one load of sand went off by saying that will be come in the next day for the load and the deceased laid a cot and was sleeping on the cot as a measure of safety. The said lorry driver brought the load of sand in the early hours on 18.04.2014, without a cleaner to guide him while taking the reverse course of driving, ran over the deceased has causing instantaneous death. The Police of K.P.H.B Colony registered a case vide Crime No. 365/2014 under Section 304A of IPC against the driver of the offending vehicle bearing No. AP 11 V 6463.
Therefore, the petitioners are claiming an amount of Rs.30,00,000/ against the respondents along with interest and costs.
8.In order to proof of the claim, the petitioner No.1 herself got examined as PW1 and has reiterated the contents of petition as it is in her evidence and also got examined Pws2 & 3 and got marked Ex.A1 to
A.8. Ex A.1 Certified copy of FIR, Ex.A2 Certified copy of Charge Sheet,
Ex.A3 Certified copy of Inquest Report, Ex.A4 Certified copy of PME
Report, Ex.A5 Certified copy of M.V.I. Report , Ex.A6 Original Salary
Certificate, Ex.A7 Statement of Bank Account issued by State Bank of
Hyderabad, S.R.Nagar Branch, Ex A.8 Statement of Bank Account of M/s 5 O.P.No.1633 of 2014
Mars Therapeutics Chemicals Ltd. Ex X.1 Appointment letter of Late K
Srinivas Rao, Ex x.2 Letter of confirmation, Ex X.3 Annual Increment letter, Ex X.4 Payment voucher, Ex X.5 authorisation letter.
9.On the other side, the respondent No.1 was remained exparte and the second respondent has not adduced any evidence in order to disbelieve the vertion of the petitioners.
10.PW2 is claimed to be the eyewitness to the accident. His evidence as follows that he was working in Granuels India Limited for the past two years and attended his duties in shifting. At the material of accident to attend calls of nature he came outside the gage, at that time one tipper bearing No. AP 11V 6463 coming in reverse direction with speed ran over his neighbour by name K Srinivas Rao who was sleeping on the cot near his gate. Late K Srinivas Rao yelled very loudly. The driver of the tipper took the tipper a little ahead and ran over from the tipper and he rushed to the scene of accident and the said late K Srinivas
Rao was bleeding heavily and motionless and the inmates of his house also came out of the house and the above said accident occurred due to rash and negligent driving of the offending vehicle. While cross examination, it is stated by Pw.2 that the police has recorded his statement. So even after gone through the cross examination the evidence of PW2 is remained unrebutted.
11.Whereas Ex A.1 certified copy of F.I.R, which has revealed the following facts that Police Station K.P.H.B, Cyberabad District, has 6 O.P.No.1633 of 2014 registered the accident in crime No.365/2014, dated:18042014, U/s.
304(A)IPC basing on the complaint of Sri Kasula Laxmi
Thirupathamma/PW1 against the driver of the Tipper bearing No. AP 11
V 6463. Later the police has made investigation into the crime and found the driver of the Tipper bearing No. AP 11V 6463 has driven the vehicle in a rash and negligent manner and caused the accident, in result of which the deceased K. Srinivas Rao was died. Accordingly police filed charge sheet under Section 304 A IPC which is marked under Ex A.2.
Further her husband was working with Mars Therapeutics and Chemicals
Ltd and the salary used to be deposited deposited by the employer in the bank account bearing No. 62039168049 of State bank of Hyderabad, S R
Nagar Branch, Hyderabad. The statement of bank account of her husband from 01.04.2013 to 24.06.2014 has been filed. Further Ex A.3 certified copy of M.V.I Report has disclosed the fact that MVI Inspector has inspected the crime vehicle and opinioned that the accident did not occur due to any mechanical defects of the crime vehicle. Therefore, from the oral testimony of PW1 & PW2 coupled with documentary evidence Ex.A1, A.2 and A.4 the fact it is clearly established by the petitioners that the driver of the Tipper bearing No. AP 11V 6463 has driven the vehicle in a rash and negligent and caused the accident and in result of which as per Ex.A3 Certified copy of Inquest report, Ex.A4
Certified Copy of PME report, the deceased K. Srinivas Rao was died due to head injury resulted in the said accident.
12.In proof of the employment as well as income of the deceased 7 O.P.No.1633 of 2014 the petitioner got examined Pw.3 said to be the Accounts Assistant in
Mars Therapeutics and Chemicals Ltd, Ferozguda, Hyderabad. His evidence as follows that Late K. Srinivasa Rao had worked in their company. He joined in the year 04.01.2003 with a monthly salary of
Rs.1,200/. He died in the road accident on 18.04.2014 and on the date of death he was drawing Rs.12,500/ monthly salary and the salaries of their staff and workers are paid through State Bank of Hyderabad, S R
Nagar, Hyderabad. Late K Srinivas Rao bears P.F
No.AP/KKL/0029723/262. His date of birth as entered in their records is 12.07.1982. He will retire after attaining the age of 58 years I.e 11.07.2040. He is still having future service of 26 years from the date of accident. Ex X.1 is appointment letter of Late K.Srinivasa Rao, Ex X.2 is
Letter of confirmation, Ex X.3 is statement showing Annual increment from 2003 to 2012, Ex X.4 is Bank Remittance of salaries for the month of 11.01.2014, Ex X.5 is letter of authorization.
13.While cross examination it is stated by Pw.3 that he is working in the past three years in the company and about 150 persons are working in their company. Payment of salaries to all employees was through bank. So, even after gone through the cross examination no fact in contract to the chief examination was elicited.
14.Whereas coming to Ex X.1 Letter of Appointment issued by Mars
Therapeutics and Chemicals Ltd, dt. 04.01.2003 to the deceased K.
Srinivas Rao. Accordingly he was offered to pay as follows with effect 8 O.P.No.1633 of 2014 from 04.01.2003 with a basic pay of Rs.720/ and total salary of
Rs.1,200/ including other amenities. Ex X.2 is confirmation letter issued by Mars Therapeutics and Chemicals Ltd, to the deceased Helper in the said company by confirming his services with effect from 01.08.2003.
Accordingly his monthly salary was revised from Rs.1,200/ to
Rs.1,450/. Ex X.3 is the statement of increment given to deceased K.
Srinivas Rao dt. 20.11.2015. Accordingly he was being given increments along with the salary from time to time. Ex X.4 is State Bank of
Hyderabad payment vouchers dt. 11.01.2014. Accordingly Mars
Therapeutics and Chemicals Ltd, has deposited a cheque in the State bank of Hyderabad towards the salaries of the employees. Ex X.5 is the authorisation letter, accordingly Pw.3 was authorised to depose evidence by the authority of Mars Therapeutics and Chemicals Ltd,. Apart from that the petitioners also got marked Ex A.6 salary certificate of Late K.
Srinivas Rao issued by Mars Therapeutics and Chemicals Ltd,.
Accordingly as on the date of accident, he was drawing gross amount of
Rs.12,500/ as Operator. Ex A.7 and A.8 are the statements of Bank of account in State Bank of Hyderabad in respect of the Account of Mars
Therapeutics and Chemicals Ltd.
15.Therefore, from the evidence of pw.3 coupled with the documentary evidence Exs A.6 to A.8 and Ex X.1 to X.5. This fact has been categorically established by the petitioners that at the time of accident the deceased was working as Operator in Mars Therapeutics and
Chemicals Ltd, and was drawing net salary of Rs.11,501/. Further as per 9 O.P.No.1633 of 2014 his Service Records as deposed by Pw.3 the date of birth of the deceased was 12.07.1982. Thereby as on the date of accident I.e 18.04.2014 he was aged about 32 years
16.Here the learned Counsel for petitioners relied on a decision of our Hon’ble Apex Court in Rajesh and others Vs. Rajbir Singh and others reported in 2013 ACJ 1403 wherein their lordship has observed as follows: “ Since the court in Santosh Devi's case, 2012 ACJ 1428 (SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298 (SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years.”
17.By following the said decision as the deceased was self employed and was below 32 years, hence there must be an addition of 50 percent to the actual income of the deceased towards future prospects.
18.Therefore in view of the above citations the petitioners are 10 O.P.No.1633 of 2014 entitled compensation, accordingly as the net salary deceased is taken
Rs.11,501/ per month. As the age of the deceased was 32 years. As he was a self employed person. Thereby his income is comes to
Rs.17,251.50 (11,501/ (actual income) + 50% (future prospects)) per month. After deducting 1/4thtowards his personal expenses,
Rs.12,938.625 per month he would have contributed towards his family for their maintenance. Therefore Rs.24,84,216/ (12,938.625 x 12 x 16) is awarded towards loss of dependency of the petitioners.
19.Further following the decision of Rajesh and others Vs. Rajbir
Singh and others reported in 2013 ACJ 1403 the petitioner No.1 is entitled a sum of Rs.1,00,000/ towards loss of consortium and petitioner No.2 is entitled to Rs.1,00,000/ towards his loss of care and guidance, being minor children and the petitioners are entitled to
Rs.25,000/ for funeral expenses.
20.Further here I am relying on a decision of our Hon'ble Apex
Court in N. Surender Rao and others v. B. Swamy and another reported in 2014 (1) ALT 512 (D.B.) wherein our Hon'ble High Court has categorically pointed out that “In view of the principles laid down by the
Apex Court in Rajesh and others v. Rajbir Singh and others (22) the appellants are entitled to an amount of Rs.1,00,000/ under the head of loss of estate and an amount of Rs.25,000/ under funeral expenses”.
21.Thereby by following the said decision the petitioner No.3 & 4 being parents of the deceased, they are entitled an amount of
Rs.1,00,000/ under the head of loss of estate of the deceased. In total 11 O.P.No.1633 of 2014 the petitioners are awarded compensation is an amount of
Rs.28,09,216/ (Rupees Twenty Eight Lakhs Nine Thousand Two
Hundred and Sixteen only).
22.Further the learned Counsel for petitioners relied on a decision of our Hon'ble Apex Court of Rajesh and others Vs. Rajbir Singh and others reported in 2013 AIR 1403 wherein their lordships has clearly observed that “ It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.
23. Minor share 24.By following the said decision the petitioners are awarded just, equitable, fair and reasonable compensation shown as per evidence on record. Thereby the total compensation of an amount Rs.28,09,216/ (Rupees Twenty Eight Lakhs Nine Thousand Two Hundred and Sixteen only) as shown in table below :
Sl.No Heads Calculation
(i)Net SalaryRs.11,501/ p.m
(ii)50 percent of (i) above to be added asRs.11,501 + Rs.5750.50 = future prospectus Rs.17,251.50 p.m 1/4thof (ii) deducted as personal
(iii)Rs.17,251.50 – Rs.4,312.875 = expenses of the deceased Rs.12,938.625 p.m.
(iv)Compensation after multiplier of 16 is Rs.12,938.625 x 12 x 16 = appliedRs.24,84,216/ 12 O.P.No.1633 of 2014
(v)Loss of consortiumRs.1,00,000/
(vi)Loss of care and guidance for minor Rs.1,00,000/ children
(vi)Loss of estate of the deceasedRs.1,00,000/
(vii) Funeral ExpensesRs.25,000/ Total compensation awarded Rs.28,09,216/
25.Further the petitioner submitted that the first respondent is the registered owner of the crime vehicle I.e Tipper bearing No. AP 11V 6463 and it was duly insured with the second respondent vide Policy No.
Wo3281404957, valid from 28032014 to 27032015. In spite of all these particulars, the respondents did not come forward to adduce evidence to disprove their liability. Therefore, it is presumed without any hesitation that the first respondent is the registered owner of the
Tipper and it is duly insured with the second respondent and as on the date of accident I.e 18.04.2014 the policy of the said vehicle was in force. Therefore, in the absence of any evidence in respect of in violation of the terms and conditions of the policy being insurer the second respondent is liable to indemnify the respondent No.2 and liable to pay compensation to the petitioners.
29.The involvement of the vehicle is proved from Ex.A1 Certified
Copy of F.I.R and Ex.A2 Certified Copy of Charge Sheet. Therefore, being the owner and insurer of the crime vehicle AP 11V 6463 the respondent Nos. 1 & 2 are severally and jointly liable to pay compensation to the petitioners.
30.In the result, the petition is allowed in part awarding the 13 O.P.No.1633 of 2014 compensation of Rs.28,09,216/ (Rupees Twenty Eight Lakhs Nine
Thousand Two Hundred and Sixteen only) with simple interest @ 7.5% per annum from the date of filing of the original petition till the date of deposit or realization and proportionate costs thereon, directing the respondent Nos.1 & 2 are severally and jointly liable to deposit the compensation amount with accrued interest and proportionate costs within (30) days from the date of this order and after depositing the same, the petitioner No.1 is awarded a sum of
Rs.17,09,216/ (Rupees Seventeen Lakhs Nine Thousand Two
Hundred and Sixteen only) along with costs and accrued interest thereon, out of which the petitioner No.1 is permitted to withdraw an amount of Rs.3,00,000/ (Rupees Three Lakhs only) along with accrued interest and costs and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of three years; the petitioner No.2 is awarded a sum of Rs.5,00,000/ (Rupees Five Lakhs only) along with costs and accrued interest thereon, the petitioner
No.2's share amounts shall be kept in the fixed deposit in the name of the petitioner No.2 under the guardianship of his mother i.e., petitioner No.1 in any nationalized bank till attainment of age of majority; the PW1/petitioner No.1 is permitted to withdraw the interest periodically on the FD's of minor children i.e., petitioner No.2 for his welfare; the petitioner Nos.3 & 4 are awarded an amount of
Rs.3,00,000/ (Rupees Three Lakhs only) each along with costs and accrued interest thereon, the petitioner Nos.3 & 4 are permitted to withdraw their entire share amounts along with costs and accrued interest. Advocate fee is fixed at Rs.25,000/ (Rupees Twenty Five
Thousand only).
14 O.P.No.1633 of 2014
Dictated to the Stenographer, transcribed by him, corrected
and pronounced by me in open court on this the 23rd day of September, 2016. Sd/
FAC II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDEREABAD.
APPENDIX OF EVIDENCE
Witnesses Examined for
Petitioners Respondents
P.W.1: K. Laxmi Thirupathamma NIL P.W.2: P.Muralidhar P.W.3: Sk. Mohammed Ali
DOCUMENTS MARKED FOR
Petitioners: Ex.A1: Certified copy of FIR.
Ex.A2: Certified copy of Final Result.
Ex.A3: Certified copy of Inquest Report.
Ex.A4: Certified copy of PME Report.
Ex.A5: Original Salary Certificate.
Ex.A6: Statement of Account of the deceased
Ex.A7: Statement of Account of the employer
Ex X.1 : Appointment Letter of Late K Srinivas Rao
Ex X.2 : Letter of Confirmation
Ex X.3 : Annual Increment Letter
Ex X.4 : Payment Voucher
Ex X.5 : Authorization Letter
Respondents:
NIL
Sd/
FAC II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.
15 O.P.No.1633 of 2014
Order Record 26 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| OS/12/2006 | SMT. PADAMATI KUSUMA vs S.HANMANTHA RAO | 16 Feb 2017 | Award | — |
| OP/528/2012 | S. Govind Bhatt vs Mohd.Mazar Ali | 31 Oct 2016 | Order On Exgibit | — |
| AS/333/2011 | V.N.Reddy vs G.Ravinder | 17 Oct 2016 | Order On Exgibit | — |
| OP/1633/2014 | K.Laxmi Thirupathamma vs D.Ravi Kumar | 23 Sep 2016 | Order On Exgibit | — |
| AS/286/2015 | S.Mallesh vs T.Venkat Lakshmi | 16 Sep 2016 | Order On Exgibit | — |
| OS/754/2015 | P.Vigneshwar vs Mr. Anand Nivas alias Anand Nivas Sarma | 16 Sep 2016 | Order On Exgibit | — |
| OS/559/2006 | Sri John Santiyago vs Clement Dass | 15 Jul 2016 | Judgement | — |
| EP/122/2014 | Shriram Transport Finance Rb B.A. Rao vs Sardar Rajender Singh and Others | 21 Sep 2015 | Orders | — |
| OP/1671/2012 | Smt. P.Yadamma vs G.Srinivasa Rao | 28 Aug 2014 | Order On Exgibit | — |
| OP/1444/2012 | Smt. Esarapu Vani vs B.Satyanarayana | 25 Jun 2014 | Order On Exgibit | — |
| L.A.O.P/2434/2013 | Spl. Dy. Collector-cum LAO vs Dhan Raj died as LR Sri Dharam Raj Ranka | 04 Jun 2014 | Order On Exgibit | — |
| OP/1280/2012 | Smt. Barishetti Yadamma vs Maqbool Mohd. | 24 Apr 2014 | Order On Exgibit | — |
| OP/182/2011 | KUNDENAPALLY PRAKASH vs Vs86,FUTURE INS | 23 Apr 2014 | Order On Exgibit | — |
| OP/1816/2011 | B Laxmaiah alias Laxman alias Lachanna vs Ch Narsimha | 23 Apr 2014 | Order On Exgibit | — |
| OP/391/2012 | Gade Gangaiah vs Katipally Prabhakar | 21 Apr 2014 | Order On Exgibit | — |
| OP/451/2012 | L. Krishna Reddy vs Mohd Abdul Mannan | 21 Apr 2014 | Order On Exgibit | — |
| OP/45/2013 | Ch.Renuka vs Siba Shanker Nayak | 17 Apr 2014 | Order On Exgibit | — |
| OP/265/2010 | L.Tara Bai @ Tara Devi vs K.Jangaiah And Another | 29 Mar 2014 | Order On Exgibit | — |
| OP/295/2011 | -- vs Vs--- | 29 Mar 2014 | Order On Exgibit | — |
| OP/207/2012 | Nallagonda Vasantha Chary vs APSRTC., | 25 Mar 2014 | Order On Exgibit | — |
| OP/1144/2012 | B.Sujatha vs Md. Ahmad | 25 Mar 2014 | Order On Exgibit | — |
| OP/1892/2011 | Uni Ads Limited vs The Branch manager | 25 Mar 2014 | Order On Exgibit | — |
| OP/2260/2012 | A.Chandrakala vs Venkata Krishna Rao Thotakura | 25 Mar 2014 | Order On Exgibit | — |
| OP/149/2012 | Mohd. Waheed vs V.Venkatesh | 11 Mar 2014 | Order On Exgibit | — |
| OP/1382/2010 | D.Bhavya vs Apsrtc | 21 Feb 2014 | Order On Exgibit | — |
| OP/2449/2010 | Smt. Habeeb Unnisa @ Tayabba vs Apsrtc | 08 Aug 2013 | Order On Exgibit | — |
Monthly Orders (Last 12 Months)
| Feb 2017 | 1 | |
| Oct 2016 | 2 | |
| Sep 2016 | 3 | |
| Jul 2016 | 1 | |
| Sep 2015 | 1 | |
| Aug 2014 | 2 | |
| Jun 2014 | 2 | |
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Frequently Asked Questions
How many cases has SMT G V N BHARATHA LAXMI handled?
SMT G V N BHARATHA LAXMI has handled 30 court orders since 2013 at HYD, City Civil Court Complex. The average disposal rate is 1 orders per month.
What types of cases does SMT G V N BHARATHA LAXMI hear?
Based on available records, SMT G V N BHARATHA LAXMI primarily handles Civil matters (Original Petitions, Original Suits) at HYD, City Civil Court Complex.
Where is SMT G V N BHARATHA LAXMI currently posted?
SMT G V N BHARATHA LAXMI is posted as IX ADDITIONAL CHIEF JUDGE at HYD, City Civil Court Complex, Hyderabad, Telangana.
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Yes. 10 judgments by SMT G V N BHARATHA LAXMI are available on Legistro with full text, outcome, and sections cited.
How fast does SMT G V N BHARATHA LAXMI dispose cases?
SMT G V N BHARATHA LAXMI disposes approximately 1 cases per month, based on 30 orders handled over their tenure at HYD, City Civil Court Complex.
Since when is SMT G V N BHARATHA LAXMI serving?
SMT G V N BHARATHA LAXMI has been serving at HYD, City Civil Court Complex since 2013.
Case Types
Posting History
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Mar 2017 — Mar 2017IX ADDITIONAL CHIEF JUDGE
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Feb 2017 — Mar 2017XI ADDITIONAL CHIEF JUDGE
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Sep 2016 — Feb 2017II ADDITIONAL CHIEF JUDGE · 6 orders
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Jul 2016 — Jan 2017XI ADDITIONAL CHIEF JUDGE · 1 orders
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Sep 2015 — Sep 2015IX ADDITIONAL CHIEF JUDGE
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May 2015 — May 2015IX ADDITIONAL CHIEF JUDGE
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May 2015 — May 2015X ADDITIONAL CHIEF JUDGE
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Jul 2013 — Jun 2016XI ADDITIONAL CHIEF JUDGE · 23 orders
Other Judges at this Court