Sri G.Vallabha Naidu

1 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019. Common Judgment in M.V.O.P.No 366/10 (old No.376/2008) and 400/10 (old No.280/2009)

In M.V.O.P.No 366/10 (old No.376/2008) Between:

1. Gandikota Hemalatha

2. Gandikota Hymavathi (At the time of filing claim petition petitioners 1 and 2 are minors represented by their paternal grand father i.e. 4th petitioner. Later as per orders in I.A.1201/2018 dated 4.9.2018 and I.A.917/2018 dated 10.08.2018 petitioners 1 and 2 are declared as majors respectively.)

3. Gandikota Anjamma (died)

4. Gandikota Venkateswara Rao

….. Petitioners/Claimants.

A N D

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota China Venkateswaramma

5. Gandikota Pavan Kumar

6. Gandikota Jagadeesh … Respondents.

In MVOP 400/10(old No.280/2009)

1. Gandikota Venkateswaramma

2. Gandikota Pavan Kalyan

3. Gandikota Jagadeesh (petitioners 2 and 3 being minors represented by their mother and guardian 1st

petitioner) .. petitioners/claimants

and

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota Hemalatha

5. Gandikota Hymavathi

6. Gandikota Anjamma

7. Gandikota Venkateswsara Rao … respondents.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Narasimha Rao Advocate for Petitioners/Claimants in MVOP 366/10 and Advocate for R4 to R6 in MVOP 400/10, and of Sri B.Nageswara Rao, Advocate for R1 in both OPs, Sri A.Gopala Sastry., Advocate for R2in both OPs, Sri P.Ramamohana Rao 2 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Advocate for R3 in both OPs, Sri G.Appaiah., Advocate for R4 to R6 in MVOP 366/10 and Advocate for petitioners 1 to 3 in MVOP 400/10 and having stood over the matter for consideration till this day, upon consideration this Tribunal delivered the following :

O R D E R

1) The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor

Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

2) The averments of the petition in brief are that, the petitioners 1 and 2 are the children of the deceased and petitioners 3 and 4 are the parents of the deceased

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao. On 16.05.2007 at about 2.30a.m. the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to vacant place situated near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada to answer natural calls at that time the 1st respondent being the driver of the crime vehicle i.e. dumber bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner and reversed the dumper neglently and dashed against the said

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao as a result he sustained injuries all over the body. It is further averred in the petition that immediately said Gandikota

Mallikarjuna Rao @ Venkata Mallikarjuna Rao was shifted to Government General

Hospital, Vijayawada and while undergoing treatment on the same day at about 4.45a.m. the said Mallikarjuna Rao succumbed to injuries. Basing on the report given by one Nakka Ramakrishna, Station House Officer of Nunna Rural Police Station registered the same as case in Cr.No.174/2007 u/s.304-A IPC against the 1st respondent and took up investigation. During the course of investigation the Motor Vehicle Inspector inspected the crime vehicle and opined that the accident was not due to any mechanical defects of the crime vehicle. The Station House Officer of Nunna Rural Police Station conducted inquest over the dead body of the deceased and sent the dead body of the deceased to the Government General Hospital, Vijayawada for autopsy. The medical officer conducted autopsy over the dead body of the deceased and issued postmortem certificate.

3 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 ii) It is further averred in the petition that the deceased is aged about 35 years and he was hale and healthy at the time of accident and he is working as a mason and also doing private construction work on contract basis and earning Rs.16,000/- per month.

Due to sudden and premature death of the deceased the petitioners are put to hardship and mental agony. It is further averred in the petition that the petitioners 1 and 2 are the children of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao born through his first wife by name Siva Nageswari @ Siva Nageswaramma. The first wife of the deceased died on 16.11.1996 due to ill health. Subsequently the said

Mallikarjuna Rao got married 4th respondent and gave birth to the respondents 5 and 6 through his second wife. After the second marriage he handed over the custody of the petitioners 1 and 2 to his parents i.e. petitioners 3 and 4 and since then the petitioners 1 and 2 are under the care and custody of petitioners 3 and 4. Though the said

Mallikarjuna Rao got married second time he used to attend petitioners and used to contribute for the welfare of the petitioners. It is further averred in the petition that as the respondents 4 to 6 are not cooperating with the petitioners they preferred the present petition seeking the compensation for their share excluding the compensation payable to the respondents 5 to 6. It is further averred in the petition that the 1st respondent is driver of the crime vehicle and the 2nd respondent is owner of the crime vehicle and he insured the same with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force and 1st respondent is having valid driving licence at the time of accident. There are no other legal heirs to the deceased except the petitioners and the respondents 4 to 6. Under these circumstances the petitioners 1 to 4 filed the present petition claiming compensation of Rs.1,00,000/- for the death of the deceased in road accident. Hence, the petition.

2) The respondents 1 to 6 contested this claim petition by filing their separate counter denying all the avermrtners made in the petition. The contention of the 1st respondent who is driver of the crime vehicle that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 1st respondent that he is driver of the dumper bearing Regn.No.AP16TU 6496. It is further averred in the counter of 1st respondent that he never driven the 4 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 crime vehicle in negligent manner as alleged by the petitioners and he is working under the employment of 2nd respondent and he is having valid driving licence and the 3rd respondent is insurer of the crime vehicle. The compensation as claimed by the petitioners is highly excessive and arbitrary. Hence, the 1st respondent prays the Court to dismiss the petition with costs.

ii) The contention of the 2nd respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 2nd respondent that the 2nd respondent/Municipal Corporation is having open site near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada and the said site is using as waste garbage dumping yard after collecting garbage from various places in the city. As usual garbage carrying lorry went to the said site for un- loading the garbage in its own site. The lorry is provided lift system.

The 1st respondent who is driver applied lift from the cabin and the garbage fallen at dumping yard and how the deceased was present at that time that too in garbage dumbing yard in the mid night. It is further averred in the counter of 2nd respondent that there is no lighting system in garbage dumping yard. The driver of the vehicle noticed after dumping garbage and immediately taken the injured to Government hospital for treatment. The garbage dumping yard is prohibited area and no one shall enter into that area. The deceased might have died under the garbage and not in negligent manner as alleged in the petition. The occupation and monthly earnings of the deceased are created for the purpose of getting compensation. Hence, the 2nd respondent prays the Court to dismiss the petition with costs.

iii) The contention of the 3rd respondent/Insurance Company as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the written statement of 3rd respondent/Insurance Company that there was no rash and negligence on the part of 1st respondent and the dumper bearing

Regn.No.AP16TU 6496 was coming with minimum speed as such the 3rd respondent/

Insurance Company is not liable to pay any compensation to the petitioners. It is 5 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 further averred in the written statement of 3rd respondent/Insurance Company that the compensation claimed by the petitioners is highly excessive and arbitrary and the interest claimed by the petitioners is also excessive. There is no privity of contract between the petitioners and the 3rd respondent/Insurance Company as such 3rd respondent/Insurance Company is not liable to pay compensation. Hence, the 3rd respondent/Insurance Company prays the Court to dismiss the petition with costs.

iv) The contention of respondents 4 to 6 as per the counter filed by them that they filed a petition before the Accidents Claims Tribunal i.e. MVOP 400/2010 (old number MVOP 280/2009) and subsequently the same was transferred to this

Tribunal which is renumbered as MVOP 400/2010. It is further averred in the counter of respondents 4 to 6 that the petitioners in MVOP 366/2010 filed petition claiming compensation impleading them as petitioners by showing them as respondents 4 to 6 alleging that they are not cooperating in filing the claim petition and the said allegation is not at all correct. The petitioners played fraud against them. It is further averred in the counter of respondents 4 to 6 that they are not entitled to claim compensation for the death of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao due to the death of the deceased 4th respondent who is 2nd wife of the deceased and respondents 5 and 6 who are the children of the deceased sustained irreparable loss and suffered mental agony. They also filed amendment petition in MVOP 400/2010 seeking enhancement of compensation to Rs.2,00,000/- to Rs.10,00,000/- and the same was allowed by this Tribunal. It is further averred in the counter of respondents 4 to 6 that they are also entitled compensation along with petitioners. Hence the respondents 4 to 6 pray the court to pass orders as per law.

3)MVOP 400/2010 :-

The petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 filed petition U/s.166 of Motor Vehicles Act claiming compensation of

Rs.10,00,000/- for the death of the deceased in respect of the same accident. The petitioners 1 to 3 in MVOP 400/2010 are respondents 4 to 6 in MVOP 366/2010.

6 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

4) The averments of the petition in brief are that, the 1st petitioner is second wife of Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao and the petitioners 2 and 3 are the sons of late Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao born to the deceased through his second wife i.e., 1st petitioner. The petitioners 2 and 3 who are minor children of the 1st petitioner. On 16.05.2007 at about 2.30a.m. the husband of 1st petitioner by name Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to answer natural calls near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada the 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner at high speed and while reversing the said vehicle without observing the persons simply reversed the same as a result, the said

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao crushed to death under neath the vehicle and immediately he was shifted to Government General Hospital, Vijayawada and while undergoing treatment on the same day at about 4.45a.m. he succumbed to injuries. It is further averred in the petition that basing on the report given by Nakka

Ramakrishna the Station House Officer, Nunna Rural Police Station registered the said report as case in Cr.No.174/2007 u/s.304-A of IPC against the 1st respondent and took up investigation. During the course of investigation the Motor Vehicle Inspector inspected the crime vehicle and issued a report, stating that the accident was not due to any mechanical defects of the crime vehicle. The Station House Officer conducted autopsy over the dead body of the deceased and issued postmortem examination certificate. After completion of investigation the Station House Officer of Nunna Rural

Police Station filed charge sheet against the 1st respondent. It is further averred in the petition that the deceased was aged about 35 years at the time of accident and he was hale and healthy and he is working as mason and doing private contacts on contact basis and earing Rs.16,000/- per month and due to sudden and prematured death, the petitioners suffered physical and mental agony. It is further averred in the petition that earlier the respondents 4 to 7 filed petition claiming compensation in respect of the same accident i.e. MVOP 366/2010. The respondents 4 to 7 by suppressing the facts filed the said petition i.e. MVOP 366/10 without impleading them as petitioners but showing them as the respondents 4 to 6 alleging that they are not cooperating in filing 7 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 the claim petition. The respondents 4 to 6 have played fraud against them. It is further averred in the petition that the 1st respondent is the driver of the crime vehicle and the 2nd respondent is owner of the crime vehicle and he insured the same with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force and the 1st respondent is having valid driving licence as such all the respondents are jointly and severally liable to pay compensation. Under these circumstances, the petitioners filed the present petition claiming compensation of Rs.10,00,000/- for the death of the deceased in road accident. Hence, the petition.

5) The respondents 1 to 7 contested this claim petition by filing separate counters denying all the averments made in the petition. The contention of the 1st respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 1st respondent that the compensation as claimed by the petitioners is highly excessive and arbitrary. If at all any compensation is ordered to be paid the 3rd respondent/Insurance

Company is liable to pay as the 2nd respondent duly insured the crime vehicle with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force.

Hence, the 1st respondent prays the court to dismiss the petition.

ii) The contention of the 2nd respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 2nd respondent that the 2nd respondent/ Municipal corporation is having open site near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada and the said site is using as waste garbage dumping yard after collecting garbage from various places in the city. As usual carrying garbage went to said site for unloading its own site provided lift system. The driver of the Corporation applied lift and the garbage fallen at dumpling yard. The 2nd respondent/ Corporation does not know how the deceased was present at that time that too in garbage dumping yard in the night. It is further averred in the counter of 2nd respondent that there is no lighting system in the garbage dumping yard and it is a dark area and no one shall enter into that area, deceased might have died under the garbage dumping yard but not due to negligent 8 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 driving of the 1st respondent as alleged in the petition. Hence, the 2nd respondent prays the Tribunal to dismiss the petition with costs.

iii) As per the written statement filed by the 3rd respondent/Insurance

Company that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the written statement of 3rd respondent/Insurance

Company that there was no negligence on the part of 1st respondent. The petitioners have no locus standi to file the petition as they are already shown as respondents in

MVOP 366/2010. There is no privity of contract in between the 3rd respondent/Insurance

Company and the petitioners and the 3rd respondent /Insurance Company is not liable to pay compensation and the compensation as claimed by the petitioners is highly excessive. Hence, the 3rd respondent/Insurance Company prays the Tribunal to dismiss the petition.

6) The respondents 4 to 6 filed a memo adopting the counter filed by the 7th respondent. The contention of the 7th respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 7th respondent that the respondents 4 to 7 got filed MVOP 366/2010 i.e. old MVOP No.376/2008 before IV Addl.District Court, Vijayawada wherein the petitioners in the present claim petition were shown as respondents 4 to 6.

Subsequently the said claim petition was transferred to this Tribunal and numbered as

MVOP 366/2010. It is further averred in the counter of 2nd respondent that the 1st petitioner is second wife and the petitioners 2 and 3 are the minor sons of 1st petitioner born through the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao as the mother of the respondents 4 and 5 died prior to the death of the deceased. The deceased contacted second marriage with the 1st petitioner and himself looking after the welfare of respondents 4 to 7. Hence the respondents 4 to 7 pray the court to dismiss the claim petition filed by the petitioners i.e., MVOP 400/2010.

7) On the strength of the pleadings of both parties the following issues were settled for trial:

in MVOP 366/2010 9 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 1.Whether the accident was occurred due to rash and negligent driving of dumper vehicle bearing Regn.No.AP16TU 6496 driven by the driver ?

2. Whether the petitioners are entitled to any compensation and if so, to what amount, from which of the respondents?

3. To what relief?

in MVOP 400/2010 :- 1.Whether the accident was occurred due to rash and negligent driving of dumper vehicle bearing Regn.No.AP16TU 6496 driven by the driver ?

2. Whether the petitioners are entitled to any compensation and if so, to what amount, from which of the respondents?

3. To what relief?

8) Both the claim petitions filed by the petitioners are in respect of the same accident and the deceased is one and the same in both the claim petitions. In view of the memo filed by the petitioners in MVOP 400/2010 the evidence is recorded in MVOP 366/2010. The MVOP 400/2010 is clubbed in MVOP 366/2010. As seen from the record, the issues framed in both these claim petitions are one and the same. To avoid the repetition of discussion the claim petition filed by the petitioners in MVOP 400/2010 (old No.280/09) was clubbed in MVOP 366/2010 (old No.376/2008) and common evidence was recorded.

9) In the trial afforded by both parties on behalf of the petitioners in both claim petitions the 4th petitioner in MVOP 366/2010 was examined as P.W.1 and got marked Exs.A1 to A5. On behalf of the respondents 4 to 6 who are petitioners in

MVOP 400/2010 filed the evidence affidavit of 4th respondent as R.W.1 and also examined one third party witness as R.W.2 and got marked Exs.B1 to B9. No evidence is adduced on behalf of other respondents.

10) Issue No.1 in MVOP 366/2010 and MVOP 400/2010 :

It being the petitions filed u/s.166 of Motor Vehicles Act it is incumbent on the part of petitioners to establish the accident the identity of the vehicle involved in the accident and the accident is out come of rash and negligent driving of crime vehicle by its driver and the deceased died of injuries due to the said accident.

10 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

11) In order to establish the case of petitioners in MVOP 366/2010 the counsel for petitioners filed the evidence affidavit of 4th petitioner as P.W.1 and got marked Exs.A1 to A3. As seen from the evidence affidavit of P.W.1 who is 4th petitioner in MVOP 366/2010 and none other than the father of the deceased categorically reiterated all the contents of petition. According to the case of petitioners in MVOP 366/2010 and MVOP 400/2010 that on 16.05.2007 at about 2.30a.m. his son

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to answer natural calls near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada the 1st respondent being the driver of the crime vehicle i.e. dumper bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner and reversed the dumper negligently and dashed against his son as a result his son sustained simple injuries all over his body. P.W.1 who is father of the deceased further stated in his evidence that immediately his son was shifted to Government General Hospital, Vijayawada and on the same day while under going treatment in the hospital, his son succumbed to injuries at 4.45a.m. P.W.1 further stated in his evidence that basing on the report given by one Nakka Ramakrishna the Station House Officer, Nunna Rural Police

Station registered the same as case in Cr.No.174/2007 u/s.304-A IPC against the 1st respondent and took up investigation and the Motor Vehicle Inspector inspected the vehicle and issued a report by duly opining that the accident was not occurred due to any mechanical defect of the crime vehicle and after completion of investigation the

Station House Officer, Nunna Rural Police Station filed the charge sheet against the 1st respondent. P.W.1 further stated in his evidence that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496.

12) In order to substantiate the case of petitioners in MVOP 366/2010 and the petitioners in MVOP 400/2010 the petitioners relied upon Exs.A1 to A5. Ex.A1 is attested true copy of FIR. As seen from the contents of Ex.A.1 it is evident that basing on the report given by the one Nakka Ramakrishna S/o Venkateswara Rao the

Station House Officer, Nunna Rural Police Station registered the said report as case in 11 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Cr.No.174/2007 u/s.304-A IPC. As seen from the contents of the report given by the said Nakka Ramakrishna it was clearly mentioned that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of dumper bearing

Regn.No.AP16TU 6496.

13) The learned counsel for 3rd respondent/Insurance Company submits that there is no negligence or rashness on the part of 1st respondent in driving the crime vehicle at the time of accident and the deceased is not supposed to enter into said place i.e. Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada. The learned counsel for 3rd respondent/ Insurance Company further argued that the said accident had occurred due to the negligence of the deceased but not on the part of 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496. On the other hand the counsel for petitioners submits that the said accident was occurred due to rash and negligent driving of 1st respondent as the 1st respondent drove the same in rash and negligent manner without following traffic rules he reversed the dumper bearing Regn.No.AP16TU 6496 negligently and dashed against the deceased, as a result, the deceased sustained simple injuries all over the body and died and while undergoing treatment in the hospital he succumbed to injuries.

14) In view of the submission made by the respective counsel of both parties as seen from the record, the accident was occurred on 16.5.2007 at about 2.30a.m.

near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada and in the said accident the deceased namely Gandikota Mallikarjuna Rao @ Venkata

Mallikarjuna Rao sustained severe injuries and while under going treatment in the

Government General Hospital, Vijayawada he succumbed to injuries on the same day at about 4.45a.m. There is no dispute with regard to the accident and the death of the deceased in the said accident. It is also not in dispute that the 1st respondent is driver of the said dumper bearing Regn.No.AP16TU 6496. In a petition filed u/s.166 of

Motor Vehicles Act it is for the petitioners to establish that the said accident was occurred due to rash and negligent driving of driver of crime vehicle.

12 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

15) In the present petition in order to establish the case of petitioners the petitioners relied upon by Ex.A2 attested true copy of inquest report. Admittedly after registration of the case basing on the report given by one Nakka Ramakrishna, the Station House Officer, Nunna Rural Police Station conducted inquest over the dead body of the deceased in the presence of inquestdars and blood relatives and issued the original of Ex.A2 report. As seen from the contents of Ex.A2 inquest report all the inquestdars came to an opinion that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of crime vehicle i.e. dumper bearing

Regn.No.AP16TU 6496. After conducting inquest over the dead body of the deceased it was sent for postmortem examination. The Assistant Professor, Department of

Forensic Medicine, Siddartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and issued postmortem examination certificate by duly opining that the deceased died due to rupture of spleen and hemorrhage into peritoneal cavity. Ex.A3 is attested true copy of postmortem examination certificate of the deceased. There is no dispute that basing on the requisition the Motor Vehicle

Inspector inspected the crime vehicle and issued a report by duly opining that the accident was not due to any mechanical defect of the crime vehicle. Ex.A4 relied upon by the petitioners is attested true copy of Motor Vehicle Inspector report. As seen from the cross examination of P.W.1 the counsel for 3rd respondent/Insurance Company put a specific suggestion that the said accident was occurred due to negligence of the deceased as such the 3rd respondent/Insurance Company is not liable to pay compensation, but he denied the said suggestion.

16) Admittedly the petitioners in MVOP 400/2010 who are the second wife and the children of the deceased filed the said petition claiming compensation of

Rs.10,00,000/- for the death of the deceased in respect of the same accident. The petitioners in MVOP 400/2010 are the respondents 4 to 6 in MVOP 366/2010.

Admittedly both these claim petitions were filed before the Motor Accidents Claim

Tribunal, Vijayawada and subsequently those two claim petitions were made over tho this Tribunal for disposal according to law, as both the claim petitions were filed in respect of same accident.

13 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

17) In order to substantiate the case of petitioners 1 to 3 in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 the counsel for petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 filed the evidence affidavit of 1st petitioner in MVOP 400/2010 who is 4th respondent in MVOP 366/2010 as R.W.1.

As seen from the evidence affidavit of R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 she categorically reiterated all the contents of the petition. There is no dispute with regard to manner of the accident and death of the deceased in the said accident. As seen from the evidence affidavit of R.W.1 who is 4th respondent in MVOP 366/2010 and the 1st petitioner in MVOP 400/2010 she categorically stated about the death of the deceased in the said accident. As seen from the averments of the petition filed by the petitioners in MVOP 366/2010 and the evidence of P.W.1 who is 4th petitioner in MVOP 366/2010 he is not disputing that the 4th respondent is second wife of the deceased and the respondents 5 and 6 are the children of the deceased born through R.W.1 to the deceased. The counsel for respondents 4 to 6 in order to substantiate their case also relied upon Exs.B1 to B9.

Ex.B1 is attested copy of FIR in Cr.No.174/10 of Nunna Rural Police Station, which is equallent to Ex.A1 relied upon by the petitioners in MVOP 366/2010, Ex.B2 isi attested copy of inquest report which is equalent to Ex.A2, Ex.B3 is attested copy of postmortem examination certificate which is equalent to Ex.B4 is attested copy of

Motor Vehicle Inspector which is equalent to Ex.A4 relied upon by the petitioners in

MVOP 366/2010.

18) The respondents 4 to 6 in order to substantiate their case also examined

R.W.2 who is said to be an independent witness. As seen from the evidence of R.W.2 who is said to be an independent witness he categorically stated that on 16.5.2007 at about 2.30a.m. the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to the vacant place situated at Sriram Energy Power Plant, Wambay Colony,

Payakapuram, Vijayawada to answer natural calls and at that time the 1st respondent who is driver of crime vehicle drove the same in rash and negligent manner without following the rules and observing the persons or any other obstructions simply reversed the vehicle and dashed against Gandikota Mallikarjuna Rao @ Venkata 14 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Mallikarjuna Rao and caused grievous multiple injuries all over the body. R.W.2 further stated in his evidence that immediately the injured was shifted to Government General

Hospital, Vijayawada and while undergoing treatment in the hospital he succumbed to injuries at about 4.45 a.m. on the same day. R.W.2 further stated in his evidence that on the report given by Nakka Ramakrishna, Station House Officer, Nunna Rural Police

Station registered the same as case in Cr.No.174/2007 u/s.304-A of IPC. As seen from the cross examination of R.W.1 who is 4th respondent in MVOP 366/2010 and the petitioner in MVOP 400/2010 put a specific suggestion that the death of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao is not accidental death and he died due to natural death, but R.W.1 denied the said suggestion. As seen from the cross examination of R.W.2 he categorically admitted that he has no personal knowledge with regard to said accident. It is not the case of respondents 2 and 3 that the deceased was not died in the said accident. Except taking a plea that the said accident was occurred due to the negligence of the deceased there is no iota of evidence adduced by the respondents 1 to 3 in MVOP 366/2010. Even the respondents 2 and 3 did not make any efforts to examine the 1st respondent who is driver of the crime vehicle. Even the 1st respondent did not come to the witness box to say anything on oath. Of course, mere allegations in the charge sheet, do not take place of proof but they are adding circumstances probablising the contention of the petitioners. As seen from the cross examination of P.W.1 who is 4th petitioner in

MVOP 366/2010 and R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 nothing was elicited to disbelieve their testimony. There is no reason to suspect the evidence of P.W.1 and R.Ws.1 and 2.

19) Considering the evidence of P.W.1 and the evidence of R.Ws.1 and 2 and coupled with the documents relied upon by them, this Tribunal is of the opinion that the petitioners in MVOP 366/2010 and the petitioners MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 have established the factum of accident, identity of the vehicle involved in the accident, and the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of the crime vehicle and the deceased died of the injuries sustained in the said accident. Accordingly these 15 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 points are answered in favour of the petitioners in MVOP 366/2010 and petitioners in

MVOP 400/2010 and against the respondents 1 to 3 in both petitions MVOP 366/2010 and MVOP 400/2010.

20) Issue No.2 in MVOP 366/2010 and MVOP 400/2010 :-

2. Whether the petitioners are entitled to any compensation if so, to what amount, from which of the respondents?

So far as this issue is concerned, as seen from the averments of the petition filed by the petitioners in MVOP 366/2010 at the first instance they filed the petition claiming compensation amount of Rs.2,00,000/- for the death of the deceased and subsequently they filed a petition for amendment for enhancement of the said compensation amount of Rs.2,00,000/- to Rs.10,00,000/- and the same is allowed. It is also fact that as per the orders in I.A.917/18 dated 10.08.2018 the second petitioner in MVOP 366/2010 was declared as a major and as per the orders in

I.A.1201/2018 dated 4.9.2018 the 1st petitioner in MVOP 366/2010 was declared as a major. As seen from the averments of the petition filed by the petitioners in both the claim petitions they are claiming compensation of Rs.10,00,000/- in respect of the same accident. There is no dispute in between the parties with regard to their relationship. According to the case of petitioners in both the claim petitions, the deceased was aged about 35 years at the time of accident and he was hale and healthy. As seen from the evidence of P.W.1, who is 4th petitioner in MVOP 366/2010 and the evidence of R.W.1 who is 4th respondent in MVOP 366/2010 and the 1st petitioner in MVOP 400/2010 they categorically stated that the deceased at the time of accident working as a mason and doing private contracts work on contact basis and he was earning Rs.16,000/- per month. P.W.1 and R.W.1 further stated in their evidence that due to the death of the deceased they lost their bread winner and they suffered mental agony.

21) In order to substantiate the case of petitioners they also examined R.W.2 who is independent witness. As seen from the evidence of R.W.2 he categorically stated that previously he worked as mason. R.W.2 further stated in his evidence that by the date of death the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao 16 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 is a mason by profession and doing private contracts and earning Rs.16,000/- to

Rs.20,000/- per month. R.W.2 further stated in his evidence that his wife and children are depending upon the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao.

Due to the death of Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao the respondents 4 to 6 suffered mental agony as they lost their bread winer. Admittedly except the oral say of P.W.1 and R.Ws.1 and 2 there is no iota of document is filed by the petitioners to prove the earnings of the deceased. The learned counsel for 3rd respondent/Insurance Company submits that the deceased is not working as a mason and he is not doing any works on contract basis and he is not getting an amount of

Rs.16,000/- per month as alleged by the petitioners. The learned counsel for 3rd respondent/Insurance Company further argued that the petitioners with a view to getting huge compensation claiming that the deceased during the life time worked as mason and also did contract works and earning Rs.16,000/- per month.

22) In view of the submission made by the 3rd respondent/Insurance

Company as seen from the cross examination of P.W.1 who is 4th petitioner in MVOP 366/2010 who is none other than the father of the deceased he categorically admitted that he did not file any documentary proof to prove the earnings of his deceased son.

The learned counsel for 3rd respondent/Insurance Company put a specific suggestion that while cross examining Pw.1 that his son during his life time was not earning an amount of Rs.16,000/- per month, but P.W.1 denied the said suggestion. As seen from the cross examination of R.W.1 the counsel for 3rd respondent/ Insurance

Company put a specific suggestion that the compensation as claimed by them is highly excessive and arbitrary, but R.W.1 denied the said suggestion. Even though the petitioners did not file any iota of document to prove the earnings of the deceased it cannot be said that he was not earning member.

23) Considering the circumstances of the case and the evidence of P.W.1 and

R.Ws.1 and 2 this tribunal is of the opinion that the monthly income of the deceased would be taken as Rs.5,000/- per month. Admittedly the deceased was aged about 34 years at the time of accident. There is no dispute with regard to the age of the deceased at the time of accident. As seen from the contents of inquest report and the 17 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 contents of postmortem examination report the age of the deceased is described as 35 years at the time of accident. As seen from the cross examination of P.W.1 who is 4th petitioner and who is none other than the father of deceased and R.W.1 who is second wife of the deceased and R.W.2 who is an independent witness they categorically stated that the age of the deceased is 35 years at the time of accident. The respondents 1 to 3 did not dispute about the age of the deceased at the time of accident. Therefore this Tribunal is of the opinion that the deceased was aged about 35 years at the time of accident and the annual income of the deceased comes to

Rs.60,000/- per annum (Rs.5,000/- X 12).Since the deceased was aged about 35 years at the time of accident the multiplier applicable as per the table suggested by the Hon’ble Apex Court in the case of Sarala Verma and others vs. Delhi Transport

Corporation Limited and another reported in 2009 ACJ 1298 Supreme Court is ‘17’.

Where the deceased was married deduction towards personal and living expenses of the deceased should be 1/3rd where the number of family members is 2 to 3, 1/4th where the number of family members is 4 to 6 and 1/5th where the number of family members is exceeds six.

24) In the instant case the petitioners 1 and 2 in MVOP 366/2010 are the children of the deceased born through the first wife of the deceased and the petitioners 3 and 4 are the parents of the deceased. So far as the MVOP 400/2010 is concerned the first petitioner is 2nd wife of the deceased and the petitioners 2 and 3 are minor children of the deceased born through his second wife. So this Tribunal is of the opinion that, 1/5th of the amount shall be deducted towards personal and living expenses of the deceased as the number of family members exceed six. The multiplier applicable to the age of the deceased is 17. Thus the contribution to the family members is 1/5th of his annual income i.e., Rs.12,000/-. Therefore, the dependency of the petitioners construed i.e., Rs.48,000/- X ‘17’ = Rs.8,16,000/-. So this amount of compensation under the head of loss of dependency to petitioners are entitled. The petitioners are entitled to the compensation under the following heads:

1. Loss of DependencyRs. 8,16,000-00 18 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

2. Funeral ExpensesRs. 5,000-00

3. Loss of love and affectionRs. 20,000-00

Total 8,41,000-00 -------------------

25) The learned counsel for petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 submits that the petitioners 1 and 2 in MVOP 366/2010 are not entitled to claim compensation in respect of the death of the deceased as they are not dependents of the deceased. The learned counsel for petitioner submits that petitioners in MVOP 400/2010 who are respondents 4 to 6 in

MVOP 366/2010 further argued that 4th petitioner who is father of the deceased is not entitled to claim any share of compensation as he is getting pension. He further argued that the petitioners in MVOP 400/2010 are the real dependents of the deceased and they are entitled to the compensation as awarded by the Tribunal and the petitioners in

MVOP 366/2010 are not entitled to claim share in the compensation awarded for the death of the deceased.

26) On the other hand, the counsel for petitioners in MVOP 366/2010 argued that the petitioners 1 and 2 are the natural children of the deceased and at the time of filing of the petition they are minors and subsequently they were declared as majors and the petitioners 3 and 4 who are the parents of the deceased as such, all the petitioners in MVOP 366/2010 are entitled to claim compensation.

27) In view of the submission made by the respective counsel of both parties as seen from the record, admittedly there is no dispute with regard to the relationship in between the parties. The petitioners in MVOP 400/2010 in order to substantiate their contention also relied upon Exs.B5 to B9. Ex.B5 is attested copy of insurance policy of the crime vehicle which is equalent to Ex.A5 relied upon by the petitioners in MVOP 366/2010. There is no dispute that the 1st respondent is the driver of the crime vehicle i.e. dumper bearing Regn.No.AP16TU 6496 and he is having valid driving licence at the time of accident and the vehicle was insured with the 3rd respondent/ Insurance

Company and the policy in respect of crime vehicle is in force at the time of accident.

19 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

The petitioners in MVOP 400/2010 in order to substantiate their contention also filed the attested copy of identity card which is marked as Ex.B6 and the original Adhar

Cards of petitioners 1 to 3 who are respondents 4 to 6 in MVOP 366/2010 which are marked as Ex.B7 to B9. As seen from the cross examination of R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 he categorically admitted that the first wife of the deceased was predeceased him. R.W.1 further admitted in her cross examination that her father-in-law and the children of 1st wife of

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao filed MVOP 366/2010 for compensation after the death of the said Mallikarjuna Rao. The learned counsel for petitioners in MVOP 366/2010 put a specific suggestion that the petitioners in MVOP 366/2010 are entitled to claim compensation of the deceased but R.W.1 denied the said suggestion. As seen from the cross examination of P.W.1 who is 4th petitioner in MVOP 366/2010 categorically admitted that the 3rd petitioner who is his wife in MVOP 366/2010 was no more. P.W.1 further admitted in his cross examination that the petitioners 1 and 2 are the daughters of the 1st wife of the deceased. P.W.1 further admitted in his cross examination that the respondents 5 and 6 are the daughters of the first wife of the deceased. PW.1 further admitted in his cross examination that the respondents 5 and 6 are the children of 4th respondent and brother of 4th respondent and the respondents 4 to 6 are depending upon the parents of 4th respondent and brother of 4th respondent for their livelihood. The learned counsel for respondents 4 to 6 while cross examining P.W.1 i.e., 4th petitioner in MVOP 366/2010 put a specific suggestion that if any amount is awarded towards compensation respondents 4 to 6 are entitled to receive the same, but not the petitioners, but P.W.1 denied the said suggestion. It is not the case of 3rd respondent/insurance company that the 1st respondent is not having any valid and effective driving licence at the time of accident and the policy in respect of crime vehicle is not in force. As long as the policy in respect of crime vehicle is in force and the 1st respondent is having valid and effective driving licence at the time of accident, the 3rd respondent/Insurance Company cannot escape liability to pay compensation.

20 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

28) To avoid is liability towards insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of the policy relating to use of the vehicles. The Insurance Company however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish the breach on the part of the owner of the vehicle, the burden of proof therefore would be of them.

29) In the instant case, except taking a plea that the compensation as claimed by the petitioners is highly excessive and arbitrary no evidence is let in by the respondents 1 to 3 in MVOP 366/2010. As seen from the record, the counsel for petitioners filed a memo on 2.2.2018 stating that the 3rd petitioner died on 10.01.2018 and the petitioners 1, 2 and 4 arte only heirs of the deceased 3rd petitioner.

Considering the evidence of P.W.1, R.Ws.1 and 2 and coupled with the documents relied upon by them this Tribunal is of the opinion that the respondents 1 to 3 in

MVOP 366/2010 are jointly and severally liable to pay compensation to the petitioners in MVOP 366/2010 and the respondents 4 to 6 in MVOP 366/2010. Accordingly this point is answered.

30) Point No.3 in MVOP 366/2010 :

3. To what relief ?

In the result, the petition filed by the petitioners in MVOP 366/2010 is allowed in part and the petition filed by the petitioners in MVOP 400/10 is dismissed as infructious, as the petitioners in MVOP 400/10 were already arrayed as respondents 4 to 6 in MVOP 366/2010, awarding compensation of Rs.8,41,000/- (rupees eight lakh forty one thousand only) with proportionate costs and with interest @ 7.5% p.a. from the date of filing of the petition till the date of deposit of compensation. The respondents 1 to 3 are jointly and severally liable to pay compensation. The 3rd respondent/insurance company is directed to deposit the said compensation amount of Rs.8,41,000/- including interest within one month from the date of order.

21 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 ii) On such deposit, the petitioners 1 and 2 in MVOP 366/2010 who are major children of the deceased are entitled an amount of Rs.1,25,000/- each (Rupees one lakh twenty five thousand each only) and they are permitted to withdraw an amount of Rs.75,000/- each including interest out of Rs.1,25,000/- each and remaining balance amount of compensation of Rs.50,000/- each shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

iii) The 4th petitioner in MVOP 366/2010 i.e., father of the deceased is entitled an amount of Rs.1,91,000/- (Rupees one lakh ninety one thousand only) and he is permitted to withdraw an amount of Rs.1,00,000/- including interest out of Rs.1,91,000/- and the remaining balance amount of Rs.91,000/- shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

iv) The 4th respondent in MVOP 366/2010 who is 1st petitioner in MVOP 400/2010 is entitled an amount of Rs.1,00,000/- and she is permitted to withdraw an amount of Rs.75,000/- including interest out of Rs.1,00,000/- and the remaining balance amount of Rs.25,000/-shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

v) The respondents 5 and 6 in MVOP 366/2010 who are minor petitioners 2 and 3 in MVOP 400/2010 are entitled an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) each and they are permitted to with draw entire amount including interest after they attain the age of majority.

An amount of Rs.4,000/- is awarded towards Advocate Fee.

31) Point No.3 in MVOP 400/2010:-

4. To what relief ?

In the result, the petition filed by the petitioners in MVOP 400/2010 is dismissed as infructious.

Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected

and pronounced by me in open Court, this the 18th day of March, 2019.

CHAIRMAN, MOTOR VEHICLES

ACCIDENTS CLAIMS TRIBUNAL–CUM–

XI-ADDL. DISTRICT JUDGE, GUDIVADA.

22 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

APPENDIX OF EVIDENCE:

Witnesses examined for petitioners

P.W.1:G.Venkateswara Rao

Documents marked on behalf of petitioners Ex.A1: Attested true copy of FIR Ex.A2: Attested true copy of inquest report Ex.A3: Attested true copy of postmortem certificate Ex.A4: Attested true copy of Motor Vehicle Inspector report Ex.A5: Attested true copy of insurance policy

Witnesses examined for respondents R.W.1 Smt.G.Venkateswaramma R.W.2 N.Sambaiah

Documents marked on behalf of respondents

Ex.B1: Attested copy of FIR in Cr.No. 174/07 of Nunna Rural Police Station Ex.B2: Attested copy of inquest report Ex.B3: Attested copy of postmortem certificate Dt.17.05.2007. Ex.B4: Attested copy of Motor Vehicles Inspector report. Ex.B5: Attested copy of insurance policy of crime vehicle. Ex.B6: Attested copy of identity card of the deceased Ex.B7: original Adhar Card of RW 1 Ex.B8: original Adhar Card of 5th respondent Ex.B9: original Adhar Card of 6th respondent

CHAIRMAN, M.A.C.T.-

CUM XI ADJ, GDV.

23 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019.

M.V.O.P.No 366/10 (old No.376/2008)

Between:

1. Gandikota Hemalatha

2. Gandikota Hymavathi (At the time of filing claim petition petitioners 1 and 2 are minors represented by their paternal grand father i.e. 4th petitioner. Later as per orders in I.A.1201/2018 dated 4.9.2018 and I.A.917/2018 dated 10.08.2018 petitioners 1 and 2 are declared as majors respectively.)

3. Gandikota Anjamma (died)

4. Gandikota Venkateswara Rao….. Petitioners/Claimants.

A N D

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota China Venkateswaramma

5. Gandikota Pavan Kumar

6. Gandikota Jagadeesh … Respondents.

The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

Petition presented on : 19-12-2008

Value of the petition for the purpose of court fee and jurisdiction is Rs.2,00,000/- on which a court fee of Rs.1,360/- is paid herewith under section 475 of A.P.M.V.Act.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Narasimha Rao Advocate for Petitioners/Claimants and of Sri B.Nageswara Rao, Advocate for R1 and Sri A.Gopala Sastry., Advocate for R2 and Sri P.Ramamohana Rao Advocate for R3 and Sri G.Appaiah., Advocate for R4 to R6 and having stood over the matter for consideration till this day, upon consideration this Tribunal while allowing the petition doth order and decree… i.that the respondents 1 to 3 be and are hereby directed to deposit an amount of Rs.8,41,000/- with interest at 7.5% p.a from the date of the filing of the petition till the date of deposit towards compensation within one month from the date of this order; ii.that on such deposit the petitioners 1 and 2 be and are hereby entitled an amount of Rs.1,25,000/- each and they are permitted to withdraw an amount of Rs.75,000/- each including interest out of Rs.1,25,000/- each and remaining balance 24 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 amount of compensation of Rs.50,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; iii.that the 4th petitioner be and is hereby entitled an amount of Rs.1,91,000/- and he is permitted to withdraw an amount of Rs.1,00,000/- including interest out of Rs.1,91,000/- and the remaining balance amount of compensation of Rs.91,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; iv.that the 4th respondent be and is hereby entitled a sum of Rs.1,00,000/- and she is permitted to withdraw an amount of Rs.75,000/- including interest out of Rs.1,00,000/- and remaining balance of compensation of Rs.25,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; v.that the 5th and 6th respondents who are minors be and are hereby entitled an amount of Rs.1,50,000/- each and they are permitted to withdraw entire amount including interest after they attained the age of majority; vi.that the advocate fee be and the same is hereby fixed at Rs.4,000/-.

vii.that there are no order as to costs.

Given under my hand and the seal of this Court, this the 18th day of March, 2019.

CHAIRMAN:MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE, GUDIVADA.

MEMORANDUM OF COSTS

Sl.No. Description Petitioner Respondents 4 to 6

1. Vakalat 2-00 2-00

2. Plaint fee 9,360-00 -- 3 Stamp on petition --

4. Process fee 200-00 --

5. Advocates fee 4,000-00 4,000-00

6. Typing charges 100-00 100-00

7. Writing charges 100-00 100-00 Total 13,762-00 4,202-00

CHAIRMAN:MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE,GUDIVADA.

25 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019.

M.V.O.P.No. 400/10 (old No.280/2009)

Between:

1. Gandikota Venkateswaramma

2. Gandikota Pavan Kalyan

3. Gandikota Jagadeesh (petitioners 2 and 3 being minors represented by their mother and guardian 1st

petitioner) .. petitioners/claimants

and

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota Hemalatha

5. Gandikota Hymavathi

6. Gandikota Anjamma

7. Gandikota Venkateswsara Rao … respondents.

The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

Petition presented on : 23-06-2008.

Value of the petition for the purpose of court fee and jurisdiction is Rs.10,00,000/- on which a court fee of Rs.9,360/- is paid herewith under section 475 of A.P.M.V.Act.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Appaiah, Advocate for Petitioners/Claimants and of Sri B.Nageswara Rao, Advocate for R1 and Sri A.Gopala Sastry., Advocate for R2 and Sri P.Ramamohana Rao, Advocate for R3 and having stood over the matter for consideration till this day, upon consideration this Tribunal doth order and decree….

i.that the petition be and the same is hereby dismissed as infructious.

ii.that there are no order as to costs.

Given under my hand and the seal of this Court, this the 18th day of March, 2019.

CHAIRMAN:MOTOR VEHICLES CCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE, GUDIVADA.

26 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

MEMORANDUM OF COSTS

Sl.No. Description Petitioner Respondent

1. Vakalat 2-00 --

2. Plaint fee 9,360-00 -- 3 Stamp on petition -- --

4. Process fee 200-00 --

5. Advocates fee 4,000-00 --

6. Typing charges 100-00 --

7. Writing charges 100-00 -- Total 13,762-00 --

CHAIRMAN: MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE,GUDIVADA.

1 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019. Common Judgment in M.V.O.P.No 366/10 (old No.376/2008) and 400/10 (old No.280/2009)

In M.V.O.P.No 366/10 (old No.376/2008) Between:

1. Gandikota Hemalatha

2. Gandikota Hymavathi (At the time of filing claim petition petitioners 1 and 2 are minors represented by their paternal grand father i.e. 4th petitioner. Later as per orders in I.A.1201/2018 dated 4.9.2018 and I.A.917/2018 dated 10.08.2018 petitioners 1 and 2 are declared as majors respectively.)

3. Gandikota Anjamma (died)

4. Gandikota Venkateswara Rao

….. Petitioners/Claimants.

A N D

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota China Venkateswaramma

5. Gandikota Pavan Kumar

6. Gandikota Jagadeesh … Respondents.

In MVOP 400/10(old No.280/2009)

1. Gandikota Venkateswaramma

2. Gandikota Pavan Kalyan

3. Gandikota Jagadeesh (petitioners 2 and 3 being minors represented by their mother and guardian 1st

petitioner) .. petitioners/claimants

and

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota Hemalatha

5. Gandikota Hymavathi

6. Gandikota Anjamma

7. Gandikota Venkateswsara Rao … respondents.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Narasimha Rao Advocate for Petitioners/Claimants in MVOP 366/10 and Advocate for R4 to R6 in MVOP 400/10, and of Sri B.Nageswara Rao, Advocate for R1 in both OPs, Sri A.Gopala Sastry., Advocate for R2in both OPs, Sri P.Ramamohana Rao 2 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Advocate for R3 in both OPs, Sri G.Appaiah., Advocate for R4 to R6 in MVOP 366/10 and Advocate for petitioners 1 to 3 in MVOP 400/10 and having stood over the matter for consideration till this day, upon consideration this Tribunal delivered the following :

O R D E R

1) The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor

Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

2) The averments of the petition in brief are that, the petitioners 1 and 2 are the children of the deceased and petitioners 3 and 4 are the parents of the deceased

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao. On 16.05.2007 at about 2.30a.m. the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to vacant place situated near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada to answer natural calls at that time the 1st respondent being the driver of the crime vehicle i.e. dumber bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner and reversed the dumper neglently and dashed against the said

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao as a result he sustained injuries all over the body. It is further averred in the petition that immediately said Gandikota

Mallikarjuna Rao @ Venkata Mallikarjuna Rao was shifted to Government General

Hospital, Vijayawada and while undergoing treatment on the same day at about 4.45a.m. the said Mallikarjuna Rao succumbed to injuries. Basing on the report given by one Nakka Ramakrishna, Station House Officer of Nunna Rural Police Station registered the same as case in Cr.No.174/2007 u/s.304-A IPC against the 1st respondent and took up investigation. During the course of investigation the Motor Vehicle Inspector inspected the crime vehicle and opined that the accident was not due to any mechanical defects of the crime vehicle. The Station House Officer of Nunna Rural Police Station conducted inquest over the dead body of the deceased and sent the dead body of the deceased to the Government General Hospital, Vijayawada for autopsy. The medical officer conducted autopsy over the dead body of the deceased and issued postmortem certificate.

3 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 ii) It is further averred in the petition that the deceased is aged about 35 years and he was hale and healthy at the time of accident and he is working as a mason and also doing private construction work on contract basis and earning Rs.16,000/- per month.

Due to sudden and premature death of the deceased the petitioners are put to hardship and mental agony. It is further averred in the petition that the petitioners 1 and 2 are the children of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao born through his first wife by name Siva Nageswari @ Siva Nageswaramma. The first wife of the deceased died on 16.11.1996 due to ill health. Subsequently the said

Mallikarjuna Rao got married 4th respondent and gave birth to the respondents 5 and 6 through his second wife. After the second marriage he handed over the custody of the petitioners 1 and 2 to his parents i.e. petitioners 3 and 4 and since then the petitioners 1 and 2 are under the care and custody of petitioners 3 and 4. Though the said

Mallikarjuna Rao got married second time he used to attend petitioners and used to contribute for the welfare of the petitioners. It is further averred in the petition that as the respondents 4 to 6 are not cooperating with the petitioners they preferred the present petition seeking the compensation for their share excluding the compensation payable to the respondents 5 to 6. It is further averred in the petition that the 1st respondent is driver of the crime vehicle and the 2nd respondent is owner of the crime vehicle and he insured the same with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force and 1st respondent is having valid driving licence at the time of accident. There are no other legal heirs to the deceased except the petitioners and the respondents 4 to 6. Under these circumstances the petitioners 1 to 4 filed the present petition claiming compensation of Rs.1,00,000/- for the death of the deceased in road accident. Hence, the petition.

2) The respondents 1 to 6 contested this claim petition by filing their separate counter denying all the avermrtners made in the petition. The contention of the 1st respondent who is driver of the crime vehicle that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 1st respondent that he is driver of the dumper bearing Regn.No.AP16TU 6496. It is further averred in the counter of 1st respondent that he never driven the 4 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 crime vehicle in negligent manner as alleged by the petitioners and he is working under the employment of 2nd respondent and he is having valid driving licence and the 3rd respondent is insurer of the crime vehicle. The compensation as claimed by the petitioners is highly excessive and arbitrary. Hence, the 1st respondent prays the Court to dismiss the petition with costs.

ii) The contention of the 2nd respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 2nd respondent that the 2nd respondent/Municipal Corporation is having open site near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada and the said site is using as waste garbage dumping yard after collecting garbage from various places in the city. As usual garbage carrying lorry went to the said site for un- loading the garbage in its own site. The lorry is provided lift system.

The 1st respondent who is driver applied lift from the cabin and the garbage fallen at dumping yard and how the deceased was present at that time that too in garbage dumbing yard in the mid night. It is further averred in the counter of 2nd respondent that there is no lighting system in garbage dumping yard. The driver of the vehicle noticed after dumping garbage and immediately taken the injured to Government hospital for treatment. The garbage dumping yard is prohibited area and no one shall enter into that area. The deceased might have died under the garbage and not in negligent manner as alleged in the petition. The occupation and monthly earnings of the deceased are created for the purpose of getting compensation. Hence, the 2nd respondent prays the Court to dismiss the petition with costs.

iii) The contention of the 3rd respondent/Insurance Company as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the written statement of 3rd respondent/Insurance Company that there was no rash and negligence on the part of 1st respondent and the dumper bearing

Regn.No.AP16TU 6496 was coming with minimum speed as such the 3rd respondent/

Insurance Company is not liable to pay any compensation to the petitioners. It is 5 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 further averred in the written statement of 3rd respondent/Insurance Company that the compensation claimed by the petitioners is highly excessive and arbitrary and the interest claimed by the petitioners is also excessive. There is no privity of contract between the petitioners and the 3rd respondent/Insurance Company as such 3rd respondent/Insurance Company is not liable to pay compensation. Hence, the 3rd respondent/Insurance Company prays the Court to dismiss the petition with costs.

iv) The contention of respondents 4 to 6 as per the counter filed by them that they filed a petition before the Accidents Claims Tribunal i.e. MVOP 400/2010 (old number MVOP 280/2009) and subsequently the same was transferred to this

Tribunal which is renumbered as MVOP 400/2010. It is further averred in the counter of respondents 4 to 6 that the petitioners in MVOP 366/2010 filed petition claiming compensation impleading them as petitioners by showing them as respondents 4 to 6 alleging that they are not cooperating in filing the claim petition and the said allegation is not at all correct. The petitioners played fraud against them. It is further averred in the counter of respondents 4 to 6 that they are not entitled to claim compensation for the death of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao due to the death of the deceased 4th respondent who is 2nd wife of the deceased and respondents 5 and 6 who are the children of the deceased sustained irreparable loss and suffered mental agony. They also filed amendment petition in MVOP 400/2010 seeking enhancement of compensation to Rs.2,00,000/- to Rs.10,00,000/- and the same was allowed by this Tribunal. It is further averred in the counter of respondents 4 to 6 that they are also entitled compensation along with petitioners. Hence the respondents 4 to 6 pray the court to pass orders as per law.

3)MVOP 400/2010 :-

The petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 filed petition U/s.166 of Motor Vehicles Act claiming compensation of

Rs.10,00,000/- for the death of the deceased in respect of the same accident. The petitioners 1 to 3 in MVOP 400/2010 are respondents 4 to 6 in MVOP 366/2010.

6 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

4) The averments of the petition in brief are that, the 1st petitioner is second wife of Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao and the petitioners 2 and 3 are the sons of late Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao born to the deceased through his second wife i.e., 1st petitioner. The petitioners 2 and 3 who are minor children of the 1st petitioner. On 16.05.2007 at about 2.30a.m. the husband of 1st petitioner by name Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to answer natural calls near Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada the 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner at high speed and while reversing the said vehicle without observing the persons simply reversed the same as a result, the said

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao crushed to death under neath the vehicle and immediately he was shifted to Government General Hospital, Vijayawada and while undergoing treatment on the same day at about 4.45a.m. he succumbed to injuries. It is further averred in the petition that basing on the report given by Nakka

Ramakrishna the Station House Officer, Nunna Rural Police Station registered the said report as case in Cr.No.174/2007 u/s.304-A of IPC against the 1st respondent and took up investigation. During the course of investigation the Motor Vehicle Inspector inspected the crime vehicle and issued a report, stating that the accident was not due to any mechanical defects of the crime vehicle. The Station House Officer conducted autopsy over the dead body of the deceased and issued postmortem examination certificate. After completion of investigation the Station House Officer of Nunna Rural

Police Station filed charge sheet against the 1st respondent. It is further averred in the petition that the deceased was aged about 35 years at the time of accident and he was hale and healthy and he is working as mason and doing private contacts on contact basis and earing Rs.16,000/- per month and due to sudden and prematured death, the petitioners suffered physical and mental agony. It is further averred in the petition that earlier the respondents 4 to 7 filed petition claiming compensation in respect of the same accident i.e. MVOP 366/2010. The respondents 4 to 7 by suppressing the facts filed the said petition i.e. MVOP 366/10 without impleading them as petitioners but showing them as the respondents 4 to 6 alleging that they are not cooperating in filing 7 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 the claim petition. The respondents 4 to 6 have played fraud against them. It is further averred in the petition that the 1st respondent is the driver of the crime vehicle and the 2nd respondent is owner of the crime vehicle and he insured the same with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force and the 1st respondent is having valid driving licence as such all the respondents are jointly and severally liable to pay compensation. Under these circumstances, the petitioners filed the present petition claiming compensation of Rs.10,00,000/- for the death of the deceased in road accident. Hence, the petition.

5) The respondents 1 to 7 contested this claim petition by filing separate counters denying all the averments made in the petition. The contention of the 1st respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 1st respondent that the compensation as claimed by the petitioners is highly excessive and arbitrary. If at all any compensation is ordered to be paid the 3rd respondent/Insurance

Company is liable to pay as the 2nd respondent duly insured the crime vehicle with the 3rd respondent/Insurance Company and the policy in respect of crime vehicle is in force.

Hence, the 1st respondent prays the court to dismiss the petition.

ii) The contention of the 2nd respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 2nd respondent that the 2nd respondent/ Municipal corporation is having open site near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada and the said site is using as waste garbage dumping yard after collecting garbage from various places in the city. As usual carrying garbage went to said site for unloading its own site provided lift system. The driver of the Corporation applied lift and the garbage fallen at dumpling yard. The 2nd respondent/ Corporation does not know how the deceased was present at that time that too in garbage dumping yard in the night. It is further averred in the counter of 2nd respondent that there is no lighting system in the garbage dumping yard and it is a dark area and no one shall enter into that area, deceased might have died under the garbage dumping yard but not due to negligent 8 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 driving of the 1st respondent as alleged in the petition. Hence, the 2nd respondent prays the Tribunal to dismiss the petition with costs.

iii) As per the written statement filed by the 3rd respondent/Insurance

Company that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the written statement of 3rd respondent/Insurance

Company that there was no negligence on the part of 1st respondent. The petitioners have no locus standi to file the petition as they are already shown as respondents in

MVOP 366/2010. There is no privity of contract in between the 3rd respondent/Insurance

Company and the petitioners and the 3rd respondent /Insurance Company is not liable to pay compensation and the compensation as claimed by the petitioners is highly excessive. Hence, the 3rd respondent/Insurance Company prays the Tribunal to dismiss the petition.

6) The respondents 4 to 6 filed a memo adopting the counter filed by the 7th respondent. The contention of the 7th respondent as per the counter that the petition filed by the petitioners is not maintainable either on law or at facts. It is further averred in the counter of 7th respondent that the respondents 4 to 7 got filed MVOP 366/2010 i.e. old MVOP No.376/2008 before IV Addl.District Court, Vijayawada wherein the petitioners in the present claim petition were shown as respondents 4 to 6.

Subsequently the said claim petition was transferred to this Tribunal and numbered as

MVOP 366/2010. It is further averred in the counter of 2nd respondent that the 1st petitioner is second wife and the petitioners 2 and 3 are the minor sons of 1st petitioner born through the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao as the mother of the respondents 4 and 5 died prior to the death of the deceased. The deceased contacted second marriage with the 1st petitioner and himself looking after the welfare of respondents 4 to 7. Hence the respondents 4 to 7 pray the court to dismiss the claim petition filed by the petitioners i.e., MVOP 400/2010.

7) On the strength of the pleadings of both parties the following issues were settled for trial:

in MVOP 366/2010 9 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 1.Whether the accident was occurred due to rash and negligent driving of dumper vehicle bearing Regn.No.AP16TU 6496 driven by the driver ?

2. Whether the petitioners are entitled to any compensation and if so, to what amount, from which of the respondents?

3. To what relief?

in MVOP 400/2010 :- 1.Whether the accident was occurred due to rash and negligent driving of dumper vehicle bearing Regn.No.AP16TU 6496 driven by the driver ?

2. Whether the petitioners are entitled to any compensation and if so, to what amount, from which of the respondents?

3. To what relief?

8) Both the claim petitions filed by the petitioners are in respect of the same accident and the deceased is one and the same in both the claim petitions. In view of the memo filed by the petitioners in MVOP 400/2010 the evidence is recorded in MVOP 366/2010. The MVOP 400/2010 is clubbed in MVOP 366/2010. As seen from the record, the issues framed in both these claim petitions are one and the same. To avoid the repetition of discussion the claim petition filed by the petitioners in MVOP 400/2010 (old No.280/09) was clubbed in MVOP 366/2010 (old No.376/2008) and common evidence was recorded.

9) In the trial afforded by both parties on behalf of the petitioners in both claim petitions the 4th petitioner in MVOP 366/2010 was examined as P.W.1 and got marked Exs.A1 to A5. On behalf of the respondents 4 to 6 who are petitioners in

MVOP 400/2010 filed the evidence affidavit of 4th respondent as R.W.1 and also examined one third party witness as R.W.2 and got marked Exs.B1 to B9. No evidence is adduced on behalf of other respondents.

10) Issue No.1 in MVOP 366/2010 and MVOP 400/2010 :

It being the petitions filed u/s.166 of Motor Vehicles Act it is incumbent on the part of petitioners to establish the accident the identity of the vehicle involved in the accident and the accident is out come of rash and negligent driving of crime vehicle by its driver and the deceased died of injuries due to the said accident.

10 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

11) In order to establish the case of petitioners in MVOP 366/2010 the counsel for petitioners filed the evidence affidavit of 4th petitioner as P.W.1 and got marked Exs.A1 to A3. As seen from the evidence affidavit of P.W.1 who is 4th petitioner in MVOP 366/2010 and none other than the father of the deceased categorically reiterated all the contents of petition. According to the case of petitioners in MVOP 366/2010 and MVOP 400/2010 that on 16.05.2007 at about 2.30a.m. his son

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to answer natural calls near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada the 1st respondent being the driver of the crime vehicle i.e. dumper bearing Regn.No.AP16TU 6496 drove the same in rash and negligent manner and reversed the dumper negligently and dashed against his son as a result his son sustained simple injuries all over his body. P.W.1 who is father of the deceased further stated in his evidence that immediately his son was shifted to Government General Hospital, Vijayawada and on the same day while under going treatment in the hospital, his son succumbed to injuries at 4.45a.m. P.W.1 further stated in his evidence that basing on the report given by one Nakka Ramakrishna the Station House Officer, Nunna Rural Police

Station registered the same as case in Cr.No.174/2007 u/s.304-A IPC against the 1st respondent and took up investigation and the Motor Vehicle Inspector inspected the vehicle and issued a report by duly opining that the accident was not occurred due to any mechanical defect of the crime vehicle and after completion of investigation the

Station House Officer, Nunna Rural Police Station filed the charge sheet against the 1st respondent. P.W.1 further stated in his evidence that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496.

12) In order to substantiate the case of petitioners in MVOP 366/2010 and the petitioners in MVOP 400/2010 the petitioners relied upon Exs.A1 to A5. Ex.A1 is attested true copy of FIR. As seen from the contents of Ex.A.1 it is evident that basing on the report given by the one Nakka Ramakrishna S/o Venkateswara Rao the

Station House Officer, Nunna Rural Police Station registered the said report as case in 11 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Cr.No.174/2007 u/s.304-A IPC. As seen from the contents of the report given by the said Nakka Ramakrishna it was clearly mentioned that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of dumper bearing

Regn.No.AP16TU 6496.

13) The learned counsel for 3rd respondent/Insurance Company submits that there is no negligence or rashness on the part of 1st respondent in driving the crime vehicle at the time of accident and the deceased is not supposed to enter into said place i.e. Sriram Energy Power Plant, Wambay Colony, Payakapuram,

Vijayawada. The learned counsel for 3rd respondent/ Insurance Company further argued that the said accident had occurred due to the negligence of the deceased but not on the part of 1st respondent who is driver of dumper bearing Regn.No.AP16TU 6496. On the other hand the counsel for petitioners submits that the said accident was occurred due to rash and negligent driving of 1st respondent as the 1st respondent drove the same in rash and negligent manner without following traffic rules he reversed the dumper bearing Regn.No.AP16TU 6496 negligently and dashed against the deceased, as a result, the deceased sustained simple injuries all over the body and died and while undergoing treatment in the hospital he succumbed to injuries.

14) In view of the submission made by the respective counsel of both parties as seen from the record, the accident was occurred on 16.5.2007 at about 2.30a.m.

near Sriram Energy Power Plant, Wambay Colony, Payakapuram, Vijayawada and in the said accident the deceased namely Gandikota Mallikarjuna Rao @ Venkata

Mallikarjuna Rao sustained severe injuries and while under going treatment in the

Government General Hospital, Vijayawada he succumbed to injuries on the same day at about 4.45a.m. There is no dispute with regard to the accident and the death of the deceased in the said accident. It is also not in dispute that the 1st respondent is driver of the said dumper bearing Regn.No.AP16TU 6496. In a petition filed u/s.166 of

Motor Vehicles Act it is for the petitioners to establish that the said accident was occurred due to rash and negligent driving of driver of crime vehicle.

12 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

15) In the present petition in order to establish the case of petitioners the petitioners relied upon by Ex.A2 attested true copy of inquest report. Admittedly after registration of the case basing on the report given by one Nakka Ramakrishna, the Station House Officer, Nunna Rural Police Station conducted inquest over the dead body of the deceased in the presence of inquestdars and blood relatives and issued the original of Ex.A2 report. As seen from the contents of Ex.A2 inquest report all the inquestdars came to an opinion that the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of crime vehicle i.e. dumper bearing

Regn.No.AP16TU 6496. After conducting inquest over the dead body of the deceased it was sent for postmortem examination. The Assistant Professor, Department of

Forensic Medicine, Siddartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and issued postmortem examination certificate by duly opining that the deceased died due to rupture of spleen and hemorrhage into peritoneal cavity. Ex.A3 is attested true copy of postmortem examination certificate of the deceased. There is no dispute that basing on the requisition the Motor Vehicle

Inspector inspected the crime vehicle and issued a report by duly opining that the accident was not due to any mechanical defect of the crime vehicle. Ex.A4 relied upon by the petitioners is attested true copy of Motor Vehicle Inspector report. As seen from the cross examination of P.W.1 the counsel for 3rd respondent/Insurance Company put a specific suggestion that the said accident was occurred due to negligence of the deceased as such the 3rd respondent/Insurance Company is not liable to pay compensation, but he denied the said suggestion.

16) Admittedly the petitioners in MVOP 400/2010 who are the second wife and the children of the deceased filed the said petition claiming compensation of

Rs.10,00,000/- for the death of the deceased in respect of the same accident. The petitioners in MVOP 400/2010 are the respondents 4 to 6 in MVOP 366/2010.

Admittedly both these claim petitions were filed before the Motor Accidents Claim

Tribunal, Vijayawada and subsequently those two claim petitions were made over tho this Tribunal for disposal according to law, as both the claim petitions were filed in respect of same accident.

13 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

17) In order to substantiate the case of petitioners 1 to 3 in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 the counsel for petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 filed the evidence affidavit of 1st petitioner in MVOP 400/2010 who is 4th respondent in MVOP 366/2010 as R.W.1.

As seen from the evidence affidavit of R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 she categorically reiterated all the contents of the petition. There is no dispute with regard to manner of the accident and death of the deceased in the said accident. As seen from the evidence affidavit of R.W.1 who is 4th respondent in MVOP 366/2010 and the 1st petitioner in MVOP 400/2010 she categorically stated about the death of the deceased in the said accident. As seen from the averments of the petition filed by the petitioners in MVOP 366/2010 and the evidence of P.W.1 who is 4th petitioner in MVOP 366/2010 he is not disputing that the 4th respondent is second wife of the deceased and the respondents 5 and 6 are the children of the deceased born through R.W.1 to the deceased. The counsel for respondents 4 to 6 in order to substantiate their case also relied upon Exs.B1 to B9.

Ex.B1 is attested copy of FIR in Cr.No.174/10 of Nunna Rural Police Station, which is equallent to Ex.A1 relied upon by the petitioners in MVOP 366/2010, Ex.B2 isi attested copy of inquest report which is equalent to Ex.A2, Ex.B3 is attested copy of postmortem examination certificate which is equalent to Ex.B4 is attested copy of

Motor Vehicle Inspector which is equalent to Ex.A4 relied upon by the petitioners in

MVOP 366/2010.

18) The respondents 4 to 6 in order to substantiate their case also examined

R.W.2 who is said to be an independent witness. As seen from the evidence of R.W.2 who is said to be an independent witness he categorically stated that on 16.5.2007 at about 2.30a.m. the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao went to the vacant place situated at Sriram Energy Power Plant, Wambay Colony,

Payakapuram, Vijayawada to answer natural calls and at that time the 1st respondent who is driver of crime vehicle drove the same in rash and negligent manner without following the rules and observing the persons or any other obstructions simply reversed the vehicle and dashed against Gandikota Mallikarjuna Rao @ Venkata 14 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

Mallikarjuna Rao and caused grievous multiple injuries all over the body. R.W.2 further stated in his evidence that immediately the injured was shifted to Government General

Hospital, Vijayawada and while undergoing treatment in the hospital he succumbed to injuries at about 4.45 a.m. on the same day. R.W.2 further stated in his evidence that on the report given by Nakka Ramakrishna, Station House Officer, Nunna Rural Police

Station registered the same as case in Cr.No.174/2007 u/s.304-A of IPC. As seen from the cross examination of R.W.1 who is 4th respondent in MVOP 366/2010 and the petitioner in MVOP 400/2010 put a specific suggestion that the death of the deceased Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao is not accidental death and he died due to natural death, but R.W.1 denied the said suggestion. As seen from the cross examination of R.W.2 he categorically admitted that he has no personal knowledge with regard to said accident. It is not the case of respondents 2 and 3 that the deceased was not died in the said accident. Except taking a plea that the said accident was occurred due to the negligence of the deceased there is no iota of evidence adduced by the respondents 1 to 3 in MVOP 366/2010. Even the respondents 2 and 3 did not make any efforts to examine the 1st respondent who is driver of the crime vehicle. Even the 1st respondent did not come to the witness box to say anything on oath. Of course, mere allegations in the charge sheet, do not take place of proof but they are adding circumstances probablising the contention of the petitioners. As seen from the cross examination of P.W.1 who is 4th petitioner in

MVOP 366/2010 and R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 nothing was elicited to disbelieve their testimony. There is no reason to suspect the evidence of P.W.1 and R.Ws.1 and 2.

19) Considering the evidence of P.W.1 and the evidence of R.Ws.1 and 2 and coupled with the documents relied upon by them, this Tribunal is of the opinion that the petitioners in MVOP 366/2010 and the petitioners MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 have established the factum of accident, identity of the vehicle involved in the accident, and the said accident was occurred due to rash and negligent driving of 1st respondent who is driver of the crime vehicle and the deceased died of the injuries sustained in the said accident. Accordingly these 15 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 points are answered in favour of the petitioners in MVOP 366/2010 and petitioners in

MVOP 400/2010 and against the respondents 1 to 3 in both petitions MVOP 366/2010 and MVOP 400/2010.

20) Issue No.2 in MVOP 366/2010 and MVOP 400/2010 :-

2. Whether the petitioners are entitled to any compensation if so, to what amount, from which of the respondents?

So far as this issue is concerned, as seen from the averments of the petition filed by the petitioners in MVOP 366/2010 at the first instance they filed the petition claiming compensation amount of Rs.2,00,000/- for the death of the deceased and subsequently they filed a petition for amendment for enhancement of the said compensation amount of Rs.2,00,000/- to Rs.10,00,000/- and the same is allowed. It is also fact that as per the orders in I.A.917/18 dated 10.08.2018 the second petitioner in MVOP 366/2010 was declared as a major and as per the orders in

I.A.1201/2018 dated 4.9.2018 the 1st petitioner in MVOP 366/2010 was declared as a major. As seen from the averments of the petition filed by the petitioners in both the claim petitions they are claiming compensation of Rs.10,00,000/- in respect of the same accident. There is no dispute in between the parties with regard to their relationship. According to the case of petitioners in both the claim petitions, the deceased was aged about 35 years at the time of accident and he was hale and healthy. As seen from the evidence of P.W.1, who is 4th petitioner in MVOP 366/2010 and the evidence of R.W.1 who is 4th respondent in MVOP 366/2010 and the 1st petitioner in MVOP 400/2010 they categorically stated that the deceased at the time of accident working as a mason and doing private contracts work on contact basis and he was earning Rs.16,000/- per month. P.W.1 and R.W.1 further stated in their evidence that due to the death of the deceased they lost their bread winner and they suffered mental agony.

21) In order to substantiate the case of petitioners they also examined R.W.2 who is independent witness. As seen from the evidence of R.W.2 he categorically stated that previously he worked as mason. R.W.2 further stated in his evidence that by the date of death the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao 16 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 is a mason by profession and doing private contracts and earning Rs.16,000/- to

Rs.20,000/- per month. R.W.2 further stated in his evidence that his wife and children are depending upon the said Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao.

Due to the death of Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao the respondents 4 to 6 suffered mental agony as they lost their bread winer. Admittedly except the oral say of P.W.1 and R.Ws.1 and 2 there is no iota of document is filed by the petitioners to prove the earnings of the deceased. The learned counsel for 3rd respondent/Insurance Company submits that the deceased is not working as a mason and he is not doing any works on contract basis and he is not getting an amount of

Rs.16,000/- per month as alleged by the petitioners. The learned counsel for 3rd respondent/Insurance Company further argued that the petitioners with a view to getting huge compensation claiming that the deceased during the life time worked as mason and also did contract works and earning Rs.16,000/- per month.

22) In view of the submission made by the 3rd respondent/Insurance

Company as seen from the cross examination of P.W.1 who is 4th petitioner in MVOP 366/2010 who is none other than the father of the deceased he categorically admitted that he did not file any documentary proof to prove the earnings of his deceased son.

The learned counsel for 3rd respondent/Insurance Company put a specific suggestion that while cross examining Pw.1 that his son during his life time was not earning an amount of Rs.16,000/- per month, but P.W.1 denied the said suggestion. As seen from the cross examination of R.W.1 the counsel for 3rd respondent/ Insurance

Company put a specific suggestion that the compensation as claimed by them is highly excessive and arbitrary, but R.W.1 denied the said suggestion. Even though the petitioners did not file any iota of document to prove the earnings of the deceased it cannot be said that he was not earning member.

23) Considering the circumstances of the case and the evidence of P.W.1 and

R.Ws.1 and 2 this tribunal is of the opinion that the monthly income of the deceased would be taken as Rs.5,000/- per month. Admittedly the deceased was aged about 34 years at the time of accident. There is no dispute with regard to the age of the deceased at the time of accident. As seen from the contents of inquest report and the 17 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 contents of postmortem examination report the age of the deceased is described as 35 years at the time of accident. As seen from the cross examination of P.W.1 who is 4th petitioner and who is none other than the father of deceased and R.W.1 who is second wife of the deceased and R.W.2 who is an independent witness they categorically stated that the age of the deceased is 35 years at the time of accident. The respondents 1 to 3 did not dispute about the age of the deceased at the time of accident. Therefore this Tribunal is of the opinion that the deceased was aged about 35 years at the time of accident and the annual income of the deceased comes to

Rs.60,000/- per annum (Rs.5,000/- X 12).Since the deceased was aged about 35 years at the time of accident the multiplier applicable as per the table suggested by the Hon’ble Apex Court in the case of Sarala Verma and others vs. Delhi Transport

Corporation Limited and another reported in 2009 ACJ 1298 Supreme Court is ‘17’.

Where the deceased was married deduction towards personal and living expenses of the deceased should be 1/3rd where the number of family members is 2 to 3, 1/4th where the number of family members is 4 to 6 and 1/5th where the number of family members is exceeds six.

24) In the instant case the petitioners 1 and 2 in MVOP 366/2010 are the children of the deceased born through the first wife of the deceased and the petitioners 3 and 4 are the parents of the deceased. So far as the MVOP 400/2010 is concerned the first petitioner is 2nd wife of the deceased and the petitioners 2 and 3 are minor children of the deceased born through his second wife. So this Tribunal is of the opinion that, 1/5th of the amount shall be deducted towards personal and living expenses of the deceased as the number of family members exceed six. The multiplier applicable to the age of the deceased is 17. Thus the contribution to the family members is 1/5th of his annual income i.e., Rs.12,000/-. Therefore, the dependency of the petitioners construed i.e., Rs.48,000/- X ‘17’ = Rs.8,16,000/-. So this amount of compensation under the head of loss of dependency to petitioners are entitled. The petitioners are entitled to the compensation under the following heads:

1. Loss of DependencyRs. 8,16,000-00 18 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

2. Funeral ExpensesRs. 5,000-00

3. Loss of love and affectionRs. 20,000-00

Total 8,41,000-00 -------------------

25) The learned counsel for petitioners in MVOP 400/2010 who are respondents 4 to 6 in MVOP 366/2010 submits that the petitioners 1 and 2 in MVOP 366/2010 are not entitled to claim compensation in respect of the death of the deceased as they are not dependents of the deceased. The learned counsel for petitioner submits that petitioners in MVOP 400/2010 who are respondents 4 to 6 in

MVOP 366/2010 further argued that 4th petitioner who is father of the deceased is not entitled to claim any share of compensation as he is getting pension. He further argued that the petitioners in MVOP 400/2010 are the real dependents of the deceased and they are entitled to the compensation as awarded by the Tribunal and the petitioners in

MVOP 366/2010 are not entitled to claim share in the compensation awarded for the death of the deceased.

26) On the other hand, the counsel for petitioners in MVOP 366/2010 argued that the petitioners 1 and 2 are the natural children of the deceased and at the time of filing of the petition they are minors and subsequently they were declared as majors and the petitioners 3 and 4 who are the parents of the deceased as such, all the petitioners in MVOP 366/2010 are entitled to claim compensation.

27) In view of the submission made by the respective counsel of both parties as seen from the record, admittedly there is no dispute with regard to the relationship in between the parties. The petitioners in MVOP 400/2010 in order to substantiate their contention also relied upon Exs.B5 to B9. Ex.B5 is attested copy of insurance policy of the crime vehicle which is equalent to Ex.A5 relied upon by the petitioners in MVOP 366/2010. There is no dispute that the 1st respondent is the driver of the crime vehicle i.e. dumper bearing Regn.No.AP16TU 6496 and he is having valid driving licence at the time of accident and the vehicle was insured with the 3rd respondent/ Insurance

Company and the policy in respect of crime vehicle is in force at the time of accident.

19 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

The petitioners in MVOP 400/2010 in order to substantiate their contention also filed the attested copy of identity card which is marked as Ex.B6 and the original Adhar

Cards of petitioners 1 to 3 who are respondents 4 to 6 in MVOP 366/2010 which are marked as Ex.B7 to B9. As seen from the cross examination of R.W.1 who is 4th respondent in MVOP 366/2010 and 1st petitioner in MVOP 400/2010 he categorically admitted that the first wife of the deceased was predeceased him. R.W.1 further admitted in her cross examination that her father-in-law and the children of 1st wife of

Gandikota Mallikarjuna Rao @ Venkata Mallikarjuna Rao filed MVOP 366/2010 for compensation after the death of the said Mallikarjuna Rao. The learned counsel for petitioners in MVOP 366/2010 put a specific suggestion that the petitioners in MVOP 366/2010 are entitled to claim compensation of the deceased but R.W.1 denied the said suggestion. As seen from the cross examination of P.W.1 who is 4th petitioner in MVOP 366/2010 categorically admitted that the 3rd petitioner who is his wife in MVOP 366/2010 was no more. P.W.1 further admitted in his cross examination that the petitioners 1 and 2 are the daughters of the 1st wife of the deceased. P.W.1 further admitted in his cross examination that the respondents 5 and 6 are the daughters of the first wife of the deceased. PW.1 further admitted in his cross examination that the respondents 5 and 6 are the children of 4th respondent and brother of 4th respondent and the respondents 4 to 6 are depending upon the parents of 4th respondent and brother of 4th respondent for their livelihood. The learned counsel for respondents 4 to 6 while cross examining P.W.1 i.e., 4th petitioner in MVOP 366/2010 put a specific suggestion that if any amount is awarded towards compensation respondents 4 to 6 are entitled to receive the same, but not the petitioners, but P.W.1 denied the said suggestion. It is not the case of 3rd respondent/insurance company that the 1st respondent is not having any valid and effective driving licence at the time of accident and the policy in respect of crime vehicle is not in force. As long as the policy in respect of crime vehicle is in force and the 1st respondent is having valid and effective driving licence at the time of accident, the 3rd respondent/Insurance Company cannot escape liability to pay compensation.

20 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

28) To avoid is liability towards insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of the policy relating to use of the vehicles. The Insurance Company however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish the breach on the part of the owner of the vehicle, the burden of proof therefore would be of them.

29) In the instant case, except taking a plea that the compensation as claimed by the petitioners is highly excessive and arbitrary no evidence is let in by the respondents 1 to 3 in MVOP 366/2010. As seen from the record, the counsel for petitioners filed a memo on 2.2.2018 stating that the 3rd petitioner died on 10.01.2018 and the petitioners 1, 2 and 4 arte only heirs of the deceased 3rd petitioner.

Considering the evidence of P.W.1, R.Ws.1 and 2 and coupled with the documents relied upon by them this Tribunal is of the opinion that the respondents 1 to 3 in

MVOP 366/2010 are jointly and severally liable to pay compensation to the petitioners in MVOP 366/2010 and the respondents 4 to 6 in MVOP 366/2010. Accordingly this point is answered.

30) Point No.3 in MVOP 366/2010 :

3. To what relief ?

In the result, the petition filed by the petitioners in MVOP 366/2010 is allowed in part and the petition filed by the petitioners in MVOP 400/10 is dismissed as infructious, as the petitioners in MVOP 400/10 were already arrayed as respondents 4 to 6 in MVOP 366/2010, awarding compensation of Rs.8,41,000/- (rupees eight lakh forty one thousand only) with proportionate costs and with interest @ 7.5% p.a. from the date of filing of the petition till the date of deposit of compensation. The respondents 1 to 3 are jointly and severally liable to pay compensation. The 3rd respondent/insurance company is directed to deposit the said compensation amount of Rs.8,41,000/- including interest within one month from the date of order.

21 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 ii) On such deposit, the petitioners 1 and 2 in MVOP 366/2010 who are major children of the deceased are entitled an amount of Rs.1,25,000/- each (Rupees one lakh twenty five thousand each only) and they are permitted to withdraw an amount of Rs.75,000/- each including interest out of Rs.1,25,000/- each and remaining balance amount of compensation of Rs.50,000/- each shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

iii) The 4th petitioner in MVOP 366/2010 i.e., father of the deceased is entitled an amount of Rs.1,91,000/- (Rupees one lakh ninety one thousand only) and he is permitted to withdraw an amount of Rs.1,00,000/- including interest out of Rs.1,91,000/- and the remaining balance amount of Rs.91,000/- shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

iv) The 4th respondent in MVOP 366/2010 who is 1st petitioner in MVOP 400/2010 is entitled an amount of Rs.1,00,000/- and she is permitted to withdraw an amount of Rs.75,000/- including interest out of Rs.1,00,000/- and the remaining balance amount of Rs.25,000/-shall be kept in any Nationalised Bank by way of fixed deposit for a period of one year.

v) The respondents 5 and 6 in MVOP 366/2010 who are minor petitioners 2 and 3 in MVOP 400/2010 are entitled an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) each and they are permitted to with draw entire amount including interest after they attain the age of majority.

An amount of Rs.4,000/- is awarded towards Advocate Fee.

31) Point No.3 in MVOP 400/2010:-

4. To what relief ?

In the result, the petition filed by the petitioners in MVOP 400/2010 is dismissed as infructious.

Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected

and pronounced by me in open Court, this the 18th day of March, 2019.

CHAIRMAN, MOTOR VEHICLES

ACCIDENTS CLAIMS TRIBUNAL–CUM–

XI-ADDL. DISTRICT JUDGE, GUDIVADA.

22 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

APPENDIX OF EVIDENCE:

Witnesses examined for petitioners

P.W.1:G.Venkateswara Rao

Documents marked on behalf of petitioners Ex.A1: Attested true copy of FIR Ex.A2: Attested true copy of inquest report Ex.A3: Attested true copy of postmortem certificate Ex.A4: Attested true copy of Motor Vehicle Inspector report Ex.A5: Attested true copy of insurance policy

Witnesses examined for respondents R.W.1 Smt.G.Venkateswaramma R.W.2 N.Sambaiah

Documents marked on behalf of respondents

Ex.B1: Attested copy of FIR in Cr.No. 174/07 of Nunna Rural Police Station Ex.B2: Attested copy of inquest report Ex.B3: Attested copy of postmortem certificate Dt.17.05.2007. Ex.B4: Attested copy of Motor Vehicles Inspector report. Ex.B5: Attested copy of insurance policy of crime vehicle. Ex.B6: Attested copy of identity card of the deceased Ex.B7: original Adhar Card of RW 1 Ex.B8: original Adhar Card of 5th respondent Ex.B9: original Adhar Card of 6th respondent

CHAIRMAN, M.A.C.T.-

CUM XI ADJ, GDV.

23 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019.

M.V.O.P.No 366/10 (old No.376/2008)

Between:

1. Gandikota Hemalatha

2. Gandikota Hymavathi (At the time of filing claim petition petitioners 1 and 2 are minors represented by their paternal grand father i.e. 4th petitioner. Later as per orders in I.A.1201/2018 dated 4.9.2018 and I.A.917/2018 dated 10.08.2018 petitioners 1 and 2 are declared as majors respectively.)

3. Gandikota Anjamma (died)

4. Gandikota Venkateswara Rao….. Petitioners/Claimants.

A N D

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota China Venkateswaramma

5. Gandikota Pavan Kumar

6. Gandikota Jagadeesh … Respondents.

The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

Petition presented on : 19-12-2008

Value of the petition for the purpose of court fee and jurisdiction is Rs.2,00,000/- on which a court fee of Rs.1,360/- is paid herewith under section 475 of A.P.M.V.Act.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Narasimha Rao Advocate for Petitioners/Claimants and of Sri B.Nageswara Rao, Advocate for R1 and Sri A.Gopala Sastry., Advocate for R2 and Sri P.Ramamohana Rao Advocate for R3 and Sri G.Appaiah., Advocate for R4 to R6 and having stood over the matter for consideration till this day, upon consideration this Tribunal while allowing the petition doth order and decree… i.that the respondents 1 to 3 be and are hereby directed to deposit an amount of Rs.8,41,000/- with interest at 7.5% p.a from the date of the filing of the petition till the date of deposit towards compensation within one month from the date of this order; ii.that on such deposit the petitioners 1 and 2 be and are hereby entitled an amount of Rs.1,25,000/- each and they are permitted to withdraw an amount of Rs.75,000/- each including interest out of Rs.1,25,000/- each and remaining balance 24 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019 amount of compensation of Rs.50,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; iii.that the 4th petitioner be and is hereby entitled an amount of Rs.1,91,000/- and he is permitted to withdraw an amount of Rs.1,00,000/- including interest out of Rs.1,91,000/- and the remaining balance amount of compensation of Rs.91,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; iv.that the 4th respondent be and is hereby entitled a sum of Rs.1,00,000/- and she is permitted to withdraw an amount of Rs.75,000/- including interest out of Rs.1,00,000/- and remaining balance of compensation of Rs.25,000/- each shall be kept in fixed deposit for a period of one year in any Nationalized Bank; v.that the 5th and 6th respondents who are minors be and are hereby entitled an amount of Rs.1,50,000/- each and they are permitted to withdraw entire amount including interest after they attained the age of majority; vi.that the advocate fee be and the same is hereby fixed at Rs.4,000/-.

vii.that there are no order as to costs.

Given under my hand and the seal of this Court, this the 18th day of March, 2019.

CHAIRMAN:MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE, GUDIVADA.

MEMORANDUM OF COSTS

Sl.No. Description Petitioner Respondents 4 to 6

1. Vakalat 2-00 2-00

2. Plaint fee 9,360-00 -- 3 Stamp on petition --

4. Process fee 200-00 --

5. Advocates fee 4,000-00 4,000-00

6. Typing charges 100-00 100-00

7. Writing charges 100-00 100-00 Total 13,762-00 4,202-00

CHAIRMAN:MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE,GUDIVADA.

25 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-XI ADDL.

DISTRICT JUDGE, KRISHNA : GUDIVADA

Present: Sri G.Vallabha Naidu, XI Addl. District Judge-cum-Chairman., Motor Accidents Claim Tribunal, Gudivada.

Monday, this the 18th day of March, 2019.

M.V.O.P.No. 400/10 (old No.280/2009)

Between:

1. Gandikota Venkateswaramma

2. Gandikota Pavan Kalyan

3. Gandikota Jagadeesh (petitioners 2 and 3 being minors represented by their mother and guardian 1st

petitioner) .. petitioners/claimants

and

1. G.Venkateswara Rao

2. The Vijayawada Municipal Corporation represented by its Commissioner

3. United India Insurance Company Ltd.,

4. Gandikota Hemalatha

5. Gandikota Hymavathi

6. Gandikota Anjamma

7. Gandikota Venkateswsara Rao … respondents.

The petitioners in MVOP 366/2010 filed a petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased in a road accident.

Petition presented on : 23-06-2008.

Value of the petition for the purpose of court fee and jurisdiction is Rs.10,00,000/- on which a court fee of Rs.9,360/- is paid herewith under section 475 of A.P.M.V.Act.

This petition is coming on 19.02.2019 for hearing before me in the presence of Sri G.Appaiah, Advocate for Petitioners/Claimants and of Sri B.Nageswara Rao, Advocate for R1 and Sri A.Gopala Sastry., Advocate for R2 and Sri P.Ramamohana Rao, Advocate for R3 and having stood over the matter for consideration till this day, upon consideration this Tribunal doth order and decree….

i.that the petition be and the same is hereby dismissed as infructious.

ii.that there are no order as to costs.

Given under my hand and the seal of this Court, this the 18th day of March, 2019.

CHAIRMAN:MOTOR VEHICLES CCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE, GUDIVADA.

26 XI-ADJ Court, Gudivada. MVOP 366/10&400/10 dt.18.3.2019

MEMORANDUM OF COSTS

Sl.No. Description Petitioner Respondent

1. Vakalat 2-00 --

2. Plaint fee 9,360-00 -- 3 Stamp on petition -- --

4. Process fee 200-00 --

5. Advocates fee 4,000-00 --

6. Typing charges 100-00 --

7. Writing charges 100-00 -- Total 13,762-00 --

CHAIRMAN: MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL – CUM –

XI ADDL. DISTRICT JUDGE,GUDIVADA.

1

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

IN THE COURT OF XI ADDL. DISTRICT & SESSIONS JUDGE, KRISHNA,

GUDIVADA.

PRESENT:- SRI G.VALLABHA NAIDU

XI-ADDL. DISTRICT & SESSIONS JUDGE, GUDIVADA.

WEDNESDAY, THIS THE 20th DAY OF MARCH, 2019.

A.S.12 OF 2012

in O.S.251/2009 on the file of Addl.Senior Civil Judge’s Court (FTC), Gudivada

Between:

1. Malireddy Rama Devi …appellant/2nd defendant

A N D

1. Malireddy Nagamanimma and others …respondents

Appeal filed by the appellants U/o.41 Rule 1 and section 96 of C.P.C. against the decree and judgment in O.S.251/2009 on the file of Additional Senior Civil Judge’s Court (FTC), Gudivada dated 20.12.2011.

Between: Malireddy Nagamanimma … plaintiff

A N D

Gadireddy Basava Poorna Reddy and others …defendants

This appeal is coming for final hearing before me on 6.3.2019 in the presence of Sri N.Prabhakara Rao., Advocate for appellant and of Sri D.Veeraiah., Advocate for 1st respondent and R2 to R4 remained exparte and upon perusing the material on record, and on considering the connected material papers and submissions of both side counsel and the matter having been stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

1) This is an appeal preferred by unsuccessful appellant/ 2nd defendant aggrieved by the common judgment and decree passed in O.S.251/2009 dt.20.12.2011 on the file of Additional Senior Civil Judge's Court (FTC), Gudivada.

2) The parties are arrayed as depicted in the suit in O.S.251/09 for the sake of convenience.

The plaintiff in O.S.251/09 filed the suit against the defendants for partition of plaint schedule properties into five equal shares as per good and bad qualities and to 2

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

put her in separate possession of one such share and to grant future profits and for costs of the suit.

3) The averments of the plaint in O.S.251/09 in brief are that:

The 1st defendant is her brother and the defendants 2 to 4 are her sisters. The plaint schedule properties are self acquired properties of their father late

G.Parasuramireddy. Their father by name G.Parasuramireddy and his wife

Smt.Nagabhushanamma died intestate and so their five children being their legal heirs are entitled to 1/5th share each in the schedule properties and that the only son of

G.Parasuramireddy namely Basava Purna Reddy has been cultivating landed property which is an extent of Ac.01.08 cents situated in R.S.No.89/2 and residing in the house property bearing door No.1/12 situated in an extent of Ac:16-00 cents situated in

Jagannadhapuram. It is further averred in the plaint that subsequent to the death of

Smt.Nagabhushanamma her son by name Basava Purna Reddy filed O.S.98/2003 seeking declaration of title and injunction in respect of schedule properties and shown their mother as a party in the said suit. Subsequent to the death of their mother

Smt.Nagamanimma who is sole plaintiff in O.S.251/2009 was added as a party to that suit. But she was advised to file the present suit for partition of schedule properties into five equal shares and for allotment of one such share to her in stead of contesting

O.S.98/2003. It is further averred in the plaint that she came to know that her mother

smt. Nagabhushanamma had executed a sale deed on 21.04.2003 conveying the said landed property to the 2nd defendant without any right or authority and her consent and knowledge the said sale deed does not bind her and the said sale deed contains false recitals. Under these circumstances the plaintiff in O.S.251/2009 filed the suit against the defendant for partition of plaint schedule properties into five equal shares as per good and bad qualities and put her in a separate possession of one such share and to grant future profits and for such other reliefs and for costs of the suit. Hence the plaint.

3

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

4) The 2nd defendant alone contested the suit, by filing her written statement denying all the averments made in the plaint. The defendants 1,3 and 4 are remained set exparte. The contention of the 2nd defendant as per her written statement that the suit filed by the plaintiff i.e. O.S.251/2009 is not maintainable either on law or at facts.

It is further averred in the written statement of 2nd defendant that their father late

G.Parasuramireddy had executed a Will dated 21.6.1987 prior to his death on 13.3.1987 in a sound and disposing state of mind bequeathing the schedule properties to his wife

Smt.Nagabhushanamma. After his death his wife by name Smt. Nagabhushanamma took possession of schedule properties with absolute rights and had been in possession and enjoyment of the same. The said house property consisting of two portions and in one portion her brother namely Basava Purna Reddy has been residing separately since the time of his marriage i.e., 23.06.1965. Whereas the parents and Smt.Jayamma had been living in another portion of the said house as the husband of Jayamma died.

It is further averred in the written statement of 2nd defendant that she purchased the said landed property on 21.4.2003 for valuable consideration of Rs.62,700/- from Smt.

Nagabhushanamma under a registered sale deed and her mother had executed a Will by giving life interest to Sri Basava Purna Reddy and vested remainder to all the daughters of Smt. Nagabhushanamma in the said house property and that all other parties in both the suits are aware of the Will dated 26.1.1987 executed by their father and also about the said Will and sale deed dated 21.4.2003 executed by Smt.

Nagabhushanamma. Subsequent to the said sale deed she has taken possession of the said landed property and has been enjoying the same. It is further averred in the written statement of 2nd defendant in O.S.251/2009 that Basava Purna Reddy taking advantage of their mother being blind and Smt.Jayamma residing at Hyderabad had been taken away gold Jewellery belonging to Smt. Nagabhushanamma and all the documents which are in the name of their mother including the Will dated 26.1.1987.

It is further averred in the written statement of 2nd defendant that her brother namely

Basava Purna Reddy has got prepared a Will dated 22.02.2002 from their mother who 4

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

does not know the contents of said Will because of her blindness and having come to know about that Will, her mother by name Smt. Nagabhushanamma had canceled the same by executing a Registered Will dated 21.04.2003. Hence the 2nd defendant in

O.S.251/2009 prays the Court to dismiss the suit with costs.

5) Basing on the strength of the pleadings of both parties to the suit, the following issues were settled for trial before the trial court:

1) Whether the plaint schedule properties are self-acquired properties of Parasuramireddy ?

2) Whether Parasuramireddy executed a Will dated 26.1.1987 ?

3)Whether the Will dated 21.04.2003 is true, valid and executed by Smt. Nagabhushanamma and binding on the plaintiff ?

4) Whether the 2nd defendant purchased item No.1 of plaint schedule property for valid consideration ?

5) Whether the plaintiff is entitled to seek partition of plaint schedule property, if so to what share ?

6) Whether the plaintiff is entitled for future profits ?

7) To what relief ?

6) During the course of trial before the trial court on behalf of the plaintiffs, sole plaintiff in O.S.251/2009 got herself examined as P.W.1 and got marked Exs.A1 to

A6. On behalf of the 2nd defendant the 2nd defendant herself was examined as D.W.1 and also examined D.W.2 and no documents are marked.

7) As seen from the record the plaintiff by name Basava Purna Reddy filed a suit against the defendants for declaration i.e., O.S.98/2003 to declare that he is absolute owner of plaint schedule properties and to grant permanent injunction restraining the defendants, their men, and followers from interfering with his possession and enjoyment of the schedule properties. The plaintiff in O.S.251/09 is 2nd defendant in the said suit and she alone contested the said suit. Even though the trial in both suits was held separately for each case and the evidence was recorded separately in both the suits during the course of arguments on the memo filed by the 5

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

counsel for 2nd defendant, both the suits are clubbed together and pronounced a common judgment in order to avoid conflict of finding separately by the trial court.

8) Given, the evidence let-in by the parties in both the suits, and after hearing arguments of both parties the learned Additional Senior Civil Judge (FTC),

Gudivada dismissed the suit in O.S.98/2003 filed by the plaintiff namely Basava Purna

Reddy and passed a preliminary decree in O.S.251/2009 filed by the plaintiff for partition of schedule properties into five equal shares and for allotment of one such share to the plaintiff and she is entitled to future profits from the date of presentation of the suit in O.S.251/2009 till the date of recovery of possession of her 1/5th share therein as per the common judgment and decree passed in O.S.251/2009 and 98/2003.

The parties in O.S.98/2003 did not prefer any appeal aggrieved by the said common judgment and decree. But the 2nd defendant in O.S.251/2009 had preferred this appeal aggrieved by the said common judgment and decree passed in O.S.251/2009 dated 20.12.2011.

9) As seen from the appeal grounds, the common judgment and decree passed in respect of O.S.251/2009 are contrary to law, weight of evidence and probabilities of the case, trial court ought to have dismissed the suit in stead of passing preliminary decree, trial court did not appreciate the evidence of 2nd defendant in

O.S.251/2009 in correct perspective, trial court ought to have observed that the plaintiff

did not file any proof of document to prove the death of late Parasuramireddy, trial court ought to have dismissed the suit in O.S.251/2009 in view of the evidence of

D.Ws.1 and 2 and the documents i.e. Exs.B1 to B10 relied upon by the 2nd defendant, trial court ought to have observed that the plaintiff herself admitted the fact that her father had executed a Will on 26.1.1987, trial court ought to have seen that the 2nd defendant filed a memo demanding the plaintiff in O.S.98/2003 to produce the original

Will executed by late Parasuramireddy in favour of his wife by name Smt.

Nagabhushanamma on 26.1.1986 title deed and pattadar pass book executed by Smt.

6

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

Nagabhushanamma in favour of Basava Purna Reddy which was in his custody on that ground alone the suit filed by the plaintiff in O.S.251/2009 is liable to be dismissed, trial court ought to have observed that the certificate issued by the Panchayat Secretary,

Jagannadhapruam dated 4.7.2003 stating that the pattadar pass book and title deed were given in respect of item No.2 of schedule property, trial court ought to have believed Ex.B7 and would have been dismissed the suit i.e. O.S.251/2009, trial court ought to have seen the evidence of D.W.2 who is none other that the son of plaintiff who deposed quite contrary the version of both plaintiffs and proved the version of 2nd defendant on that ground, the suit in O.S.251/2009 ought to have dismissed by the trial court, trial court ought to have observed that the father executed a Will on 26.1.2007 and died on 13.03.1987 trial court ought to have seen that the plaintiff admitted that her father died one day prior to the festival of Renuka Putlamma which toPurnima day of March every year, trial court ought to have seen that it is the specific case of plaintiff that as per the Will dated 14.3.1987 he was in possession of plaint schedule property after the death of Parasuramireddy but he did not choose to file any land revenue receipt or house tax receipt, on that ground alone the suit of the plaintiff in O.S.251/2009 the trial ought to have been dismissed by the trial court ought to have seen that Basava Purna Reddy used to look after the welfare of Smt.

Nagabhushanamma and used to give some portion of the income derived from the landed property is false, the trial court ought to have seen that it is specific case of 2nd defendant that her mother is suffering with lack of eye vision and the Will executed by her husband in her favour dated 20.6.1987 and the original revenue records including gold ornaments which were kept in her almyrah taken away by her son BasavaPurbna

Reddy, trial court ought to have seen that the plaintiff who filed the suit has to establish her case and she cannot depend on the weakness of the defendants case, trial court ought to have observed that Ex.B9 photographs and the evidence of defendants as

D.Ws.1 and 2 would have prove that the 2nd defendant is in possession of the schedule property, the observation of the trial court is wholly erroneous, un sound and liable to 7

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be set aside. Hence, the appellant/2nd defendant prays the Court to allow the appeal by setting aside the judgment and decree passed in O.S.251/2009 dt.20.12.2011 on the file of Additional Senior Civil Judge's Court (FTC), Gudivada and consequently to dismiss the suit.

10) Given, the appeal grounds and on hearing the arguments of the respective counsel of both parties, the following points that arise for consideration are:

1) Whether the plea of the plaintiff in O.S.251/2009 that the plaint schedule properties are self-acquired properties of late G.Parasuramireddy are true and correct ?

2) Whether the Will dated 26.1.1987 said to have been executed by the father of 2nd defendant namely G.Parasuramireddy in favour of his wife namely Smt. Nagabhushanamma is true and correct and binding on the plaintiff ?

3) Whether the plea of 2nd defendant that their mother by name Smt. Nagabhushanamma had executed a Will on 21.04.2003 is true, valid and binding on the plaintiff ?

4) Whether the 2nd defendant is a bonafide purchaser in respect of item No.1 of plaint schedule property ?

5) Whether the plaintiff is entitled to seek partition of plaint schedule property as prayed for ?

6) Whether the plaintiff is entitled for future profits as prayed for ?

7) Whether the judgment and decree of the trial court in O.S.251/2009 dt.20.12.2011 needs any interference ?

8) To what relief?

11) POINT NO. 1 :-

1) Whether the plea of the plaintiff in O.S.251/2009 that the plaint schedule properties are self-acquired properties of late G.Parasuramireddy are true and correct ?

The onus to prove this point at the first instance lies on the plaintiff, as the plaintiff filed the suit for partition of plaint schedule properties into five equal shares as per good and bad qualities and put her in separate possession of one such share and to grant future profits. The learned counsel for plaintiff in O.S.251/2009 submits that 8

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the schedule properties are self-acquired properties of late G.Parasuramireddy. The learned counsel for plaintiff further argued that the learned trial court rightly observed in its judgment that the schedule properties are self-acquired properties of

G.Parasuramireddy. On the other hand, the learned counsel for 2nd defendant submits that the plaint schedule properties are not self-acquired properties of late

G.Parasuramireddy. The learned counsel for 2nd defendant further argued that the father of the 2nd defendant by name G.Parasuramireddy purchased item No.2 of plaint schedule property from Malireddy Ramaiah and his undivided minor sons under a registered sale deed dated 21.11.1953. The learned counsel for 2nd defendant further argued that the plaint schedule properties are self-acquired properties of

G.Parasuramireddy.

12) In view of the submission made by the respective counsel of both parties as seen from the record, admittedly there is no dispute in between the parties with regard to their relationship. One G.Parasuramireddy and his wife

Smt.Nagabhushanamma are the parents of 1st defendant in O.S.98/2003 and the plaintiff in O.S.251/2009 and 2nd defendant in O.S.98/2003 and one Smt.Gottam

Swarna Kumari. Admittedly defendants 1, 3 and 4 are remained set exparte and they did not contest the suit. As seen from the evidence of P.W.1 who is plaintiff in this suit, she categorically stated that the plaint schedule properties are self-acquired properties of G.Parasuramireddy. P.W.1 further stated in her evidence that item No.1 of plaint schedule property and some other properties were acquired by her paternal grand mother Smt. Narasamma through a sale deed dated 1.10.1933, item No.2 of the schedule property was acquired by late G.Parasuramireddy through the sale deed 21.11.1953. In order to establish the case of plaintiff, the plaintiff in O.S.251/2009 relied upon by Exs.A1 to A6. Coming to the landed property which is an extent of

Ac.1.08 cents situated in R.S.No.89/2 of Jagannadhapuram which is shown as item

No.1 in O.S.251/2009 originally it belonged to Smt.Narasamma who is mother of D2

G.Parasuramireddy. Ex.A1 relied upon by the plaintiff is registration extract of the sale 9

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deed dated 1.10.1933. As seen from the contents of Ex.A1 registration extract of sale deed dated 1.10.1933 discloses that Smt.Narasamma purchased the said property covered under the original of Ex.A1. There is no dispute in between the parties that late G.Parasuramireddy is the only son to Smt. Narasamma. It is also not in dispute that Smt.Narasamma died intestate and consequently G.Parasuramireddy acquired that property with absolute rights as sole legal heir and possessed and enjoyed the same during his life time. So it can be safely come to a conclusion that the said landed property i.e item No.2 of plaint schedule property is self-acquired properties of late

G.Parasuramireddy.

13) So far as item No.1 of plaint schedule property is concerned, there is no dispute in between the parties that the said property is self-acquired properties of

G.Parasuramireddy. As seen from the cross examination of P.W.1, who is plaintiff in this suit nothing was elicited to disbelieve her testimony. Considering the evidence adduced by both parties and coupled with the documents relied upon by the plaintiff this Court is of the opinion that the schedule properties in O.S.251/2009 are self- acquired properties of late G.Parasuramireddy. Accordingly this point is answered.

14) Point No.2:

2. Whether the Will dated 26.1.1987 said to have been executed by the father of 2nd defendant namely G.Parasuramireddy in favour of his wife namely Smt. Nagabhushanamma is true and correct and binding on the plaintiff ?

So far this point is concerned, the burden lies on the 2nd defendant to establish the genuineness and validity of the Will dated 26.1.1987 said to have been executed by

G.Parasuramireddy in favour of Smt. Nagabhushanamma as 2nd defendant traces her title to the schedule properties basing on the said Will dated 26.1.1987. If the 2nd defendant is able to establish the same by adducing legal and documentary evidence then only the burden shifts on the plaintiff.

15) The learned counsel for 2nd defendant submits that during the life time of G.Parasuramireddy he executed a Will dated 26.1.1987 in favour of his wife by name

Smt. Nagabhushanamma bequeathing his properties in sound and disposing state of 10

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mind. The learned counsel for 2nd defendant further argued that after the death of

G.Parasuramireddy his wife by name Smt. Nagabhushanamma acquired the schedule properties and has been in possession and enjoyment of the same as absolute owner.

The learned counsel for 2nd defendant further argued that the admission of

G.Parasuramireddy is sufficient to prove that the Will dated 26.1.1987 is true and correct and binding on the plaintiff.

16) On the other hand, the learned counsel for plaintiff submits that

G.Parasuramireddy during his life time never executed the alleged Will dated 26.1.1987 in favour of his wife. The learned counsel for plaintiff further argued that the non production of the alleged Will dated 26.1.1987 said to have been executed by the father of 2nd defendant namely G.Parasuramireddy in favour of his wife namely Smt.

Nagabhushanamma is fatal to the case of 2nd defendant. The learned counsel for plaintiff further argued that even assuming for argument sake that the 1st defendant was admitted about the execution of Will in his cross examination that itself is not sufficient to prove the Will according to Sec.68 of the Evidence Act. The learned counsel for plaintiff further argued that the learned trial court rightly held in its judgment that the 2nd defendant has failed to prove that Basava Purna Reddy has executed the Will dated 26.1.1987.

17) In view of the submissions made by the respective counsel of both parties the onus to prove the genuinity and its validity of the will dated 26.1.1987 is on the 2nd defendant as she traces her title to the schedule properties basing on the said

Will dated 26.1.1987.

With regard to the proof of the Will the law is well settled that:

“mode of proof a Will does not ordinarily differ from that of proof of any other document except as to the special requirement prescribed in the case of Will by Sec.63 of the Indian Succession Act”.

The law in regard to proof of valid Will is now well settled.

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“It has to be proved not only by proving the signature of the executant but it should be found to be found to be free from any suspicious circumstances.”

18) In the instant case in order to substantiate the case of 2nd defendant the counsel for 2nd defendant filed the evidence affidavit of 2nd defendant as D.W.1, but no documents are marked. As seen from the evidence affidavit of D.W.1, who is 2nd defendant in this suit, she categorically stated that her father executed a

Will dated 26.1.1987 in favour of his mother by name Smt. Nagabhushanamma in sound and disposing state of mind and the said Will is his last testament. D.W.1 who is 2nd defendant in this suit further stated in her evidence that after the death of her father namely G.Parasuramireddy her mother Smt. Nagabhushanamma took possession of schedule properties with absolute rights and paid necessary taxes to the Government till she sold away the item No.1 of schedule properties to her. In order to substantiate the case of 2nd defendant that her father by name G.Parasuramireddy had executed a

Will dated 26.1.1987 in favour of Smt. Nagabhushanamma in sound and disposing state of mind, except her oral say no iota of document is filed. The alleged Will dated 26.1.1987 said to have been executed by G.Parasuramireddy was not filed in the suit for the reasons best known to her. As seen from the cross examination of D.W.1 who is 2nd defendant in this suit, she categorically admitted that she did not file the Will

dated 26.1.1987. The learned counsel for 2nd defendant submits that as the 1st

defendant admitted about the execution of the said Will in O.S.98/2003, the question of disputing the said Will executed by G.Parasuramireddy in favour of his wife does not arise. In view of the submission made by the counsel for 2nd defendant as seen from the record, even assuming for argument sake, that the 1st defendant who is plaintiff in

O.S.98/2003 admits about the execution of said Will it cannot be said that during his life

time G.Parasuramireddy had executed the alleged Will dated 26.1.1987.

19) As seen from the cross examination of D.W.1 who is 2nd defendant in this suit she categorically admitted that she did not file the death certificate of her father to show that he died on 13.3.1987. D.W.1 further admitted in her cross examination that 12

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the she did not file any document to show that the schedule properties were in possession and enjoyment of her mother after the death of her father. When the 2nd defendant relies upon the said will dated 26.1.1987 said to have been executed by her father in favour of his wife, it is for the 2nd defendant to prove the validity and genuineness of the alleged Will by examining the attestors and by producing the said

Will. As per Sec.63(c) of Indian Succession Act, 1925 it should be attested by two or more witnesses and the Will is to be used in evidence, as per Sec.68 of Indian Evidence

Act 1872 atleast one attesting witness should be called for proving it. In order to prove the due execution of said Will dated 26.1.1987 the 2nd defendant also examined

D.W.2 who is said to be one of the attestor of the said Will. As seen from the evidence of D.W.2 who is none other than the son of plaintiff he categorically stated that his maternal grand father executed a Will on 26.1.1987 bequeathing all his self-acquired properties in favour of his maternal grand mother and died on 13.3.1987. D.W.2 further stated in his evidence that after the death of his maternal grand father his maternal grand mother took possession of the schedule properties. D.W.2 further stated in his evidence that he put his signature on the said Will as one of the attestor.

As seen from the cross examination of D.W.2 he categorically admitted that there is no document to show that G.Parasuramireddy who is his maternal grand-father died on 13.3.1987. D.W.2 further admitted in his cross examination that he never seen the Will executed by G.Parasuramireddy in favour of his wife. The contention of the 2nd defendant that taking advantage of the death of G.Parasuramireddy all the documents including the said Will were taken away by the 1st defendant. Admittedly the 2nd defendant issued a memo to the 1st defendant in this suit who is plaintiff in

O.S.98/2003 for cause production of the original documents, but he denies the very

execution and existence of the Will dated 26.1.1987. This Court is of the opinion that unless and until the said Will dated 26.1.1987 is placed before the Court it is very difficult to find out as to who are attestors of the said Will and whether it contains the signature or thumb impression of G.Parasuramireddy. The oral testimonies of D.Ws.1 13

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and 2 is no way helpful to substantiate the contention of the 2nd defendant that the said Will dated 26.1.1987 is true and correct. When the very execution and existence of the Will dated 26.1.1987 is specifically denied by the plaintiff in this suit it is for the 2nd defendant to prove the genuineness and validity of the said Will.

“It is trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances.

When such evidence was brought on record, the court may take aid of the presumptive evidence also.

20) The learned counsel for 2nd defendant submits that the very admission of Basava Purna Reddy in his cross examination in O.S.98/2003 as P.W.1 itself is sufficient to believe the Will dated 26.1.1987. In view of the submission made by the counsel for the 2nd defendant this Court is of the opinion that unless and until the said Will dated 26.1.1987 is filed before the Court it cannot be said that the said Will dated 26.1.1987 is true and valid. Mere admission of Basava Purna Reddy who is 1st defendant in this suit cannot be taken as a proof of admitting the Will dated 26.1.1987. As seen from the cross examination of P.W.1 she categorically stated that her father executed a Will on 26.1.1987 but it was not registered. Even assuming for argument sake that P.W.1 admitted in her cross examination about the due execution of Will dated 26.1.1987 without producing the said Will before the Court the contention of the 2nd defendant that her father during his life time had executed a Will dated 26.1.1987 bequeathing the schedule properties in favour of his wife, cannot be believed.

It is well settled that “Men may lie, but the recitals of the documents will speak truth. Documentary evidence is best proof which excludes oral evidence”.

It is well established that “Prepounder of the Will has to prove the Will according to law”.

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21) In the instant suit the 2nd defendant who proposed the Will dated 26.1.1987 has not placed the same before this Court. So the oral evidence of D.Ws1 and 2 is not sufficient to believe the Will dated 26.1.1987 said to have been executed by G.Parasuramireddy in favour of his wife by name Smt. Nagabhushanamma. As seen from the judgment of the trial court the learned Additional Senior Civil Judge (FTC),

Gudivada rightly observed in para 22 at page no.11 that the 2nd defendant has failed to prove that G.Parasuramireddy executed a Will dated 26.1.1987. Accordingly this point is answered in favour of plaintiff and against the 2nd defendant.

22) Point No.3:

3) Whether the plea of 2nd defendant that their mother by name Smt. Nagabhushanamma had executed a Will on 21.04.2003 is true, valid and binding on the plaintiff ?

So far as this point is concerned it is for the 2nd defendant to prove that her mother by name Smt. Nagabhushanamma executed a Will on 21.4.2003 in her favour. In order to prove this point as seen from the evidence affidavit of D.W.1 who is 2nd defendant in this suit she categorically stated that the 1st defendant got obtained a Will dated 22.2.2002 from his mother who is completely blind who does not know the contents of the Will and subsequently after knowing the said fact her mother by name Smt. Nagabhushanamma cancelled the previous Will got prepared by 1st defendant in his favour and executed a Will on 21.04.2003 by giving life interest to the 1st defendant in item No.2 of plaint schedule property and vested remaining rights to all her four daughters equally. D.W.1 who is 2nd defendant in this suit further stated in his evidence that one Malireddi Srinivasareddy i.e., elder son of plaintiff was also one of the attestor of the said Will dated 21.04.2003. D.W.1 further stated in her evidence that since 21.04.2003 she is in possession and enjoyment of item No.1 of plaint schedule property. She further stated in her evidence that her mother executed the said Will dated 21.04.2003 giving 1/4th share to the plaintiff subsequent to the death of 1st defendant. D.W. 1 who is 2nd defendant in this suit 15

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further stated in his evidence that the plaintiff is aware of the execution of the said

Will dated 21.04.2003.

23) In order to substantiate the case of 2nd defendant the 2nd defendant also examined the elder son of plaintiff who is said to be one of the attestor of the said Will as D.W.2. As seen from the evidence of D.W.2 he categorically stated that on 21.04.2003 his grand mother executed a Will in sound and disposing state of mind by giving life interest to his maternal uncle Basava Purna Reddy and vested remainder rights to all her female children. D.W.2 further stated in her evidence that himself and one P.Krishna Reddy are the attestors and he witnessed the putting of thumb impression of his maternal grand mother on the document. D.W.2 further stated in his evidence that since 21.04.2003 the 2nd defendant is in possession of said property after the death of her maternal grand mother.

24) Admittedly the mother of 2nd defendant by name Smt.

Nagabhushanamma died on 1.12.2004. Ex.A4 in the suit i.e. O.S.251/2009 is the death certificate of Smt. Nagabhushanamma. The 2nd defendant did not file the alleged Will dated 21.04.2003 she filed the same in O.S.98/2003 and marked as

Ex.B2. According to the case of 2nd defendant and as per her evidence that her mother executed the said Will on 21.04.2003 about one and half years prior to the death of her mother. But as seen from the cross examination of D.W.1 she categorically admitted at page No.2 of her cross examination in the suit that since 2002 her mother by name Smt. Nagabhushanamma lost vision completely. So it cannot be said that executant of the alleged Will namely Smt. Nagabhushanamma had seen the attestor namely Malireddy Srinivasa Reddy i.e. D.W.2 and another witness attesting the Will on 21.04.2003. Admittedly by the time of execution of that Will

Smt. Nagabhushanamma was living with the 2nd defendant. So the signatures of

Smt. Nagabhushanamma might have obtained on the Will dated 21.04.2003.

It is well settled that:

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“The onus of proving the Willis is on the preponder and in the absence of suspicious circumstances surrounding the execution of the Will proof of testament capacity and signature of the attestor as required by law is sufficient to discharge the onus. Where however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine”.

25) In the present suit as seen from the evidence of D.Ws.1 and 2 their evidence is inconsistent and untrustworthy with regard to the due execution of the alleged Will dated 21.4.2003 by Smt. Nagabhushanamma in favour of 2nd defendant.

This Court already discussed in detail on point No.2 and came to a conclusion that the 2nd defendant failed to prove the Will dated 21.06.1987 said to have been executed by her father namely G.Parasuramireddy as such the wife of

G.Parasuramireddy by name Smt. Nagabhushanamma could not have acquired title to the house property and the Will dated 21.04.2003 even if it was executed by her it is not valid in respect of the entire house property. There is no dispute that

G.Parasuramireddy died leaving behind him, his wife Smt. Nagabhushanamma and her five children. Smt. Nagabhushanamma got only 1/6th share in the property so the Will dated 21.04.2003 said to have been executed by Smt. Nagabhushanamma in favour of 2nd defendant cannot be treated as valid document. This Court is of the opinion that the 2nd defendant failed to prove the Will dated 21.04.2003 said to have been executed by Smt. Nagabhushanamma in her favour and the same is not true, valid and not binding on the plaintiff. Accordingly this point is answered.

26) Point No.4:

4. Whether the 2nd defendant is a bonafide purchaser in respect of item No.1 of plaint schedule property ?

So far as this point is concerned, it is for the 2nd defendant to prove that she is a bonafide purchaser in respect of item No.1 of plaint schedule property from her mother for valuable sale consideration under a registered sale deed. The learned counsel for 2nd defendant submits that the 2nd defendant who is none other than the own daughter purchased item No.1 of plaint schedule property from her mother for valuable sale consideration amount of Rs.62,700/- under a registered sale deed dated 17

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21.04.2003 as her mother agreed to sell the same to meet her maintenance and medical expenditure. The learned counsel for 2nd defendant further argued that since the date of purchase of item No.1 of plaint schedule properties the 2nd defendant has been in peaceful possession and enjoyment of the same by paying necessary taxes to the revenue authorities. The learned counsel for 2nd defendant further argued that the plaintiff in this suit is not entitled to claim share in the plaint schedule properties.

27) On the other hand, the learned counsel for plaintiff submits that the mother of the 2nd defendant by name Smt. Nagabhushanamma has no right to sell item No.1 of plaint schedule property to the 2nd defendant. The learned counsel for plaintiff further argued that the alleged sale deed dated 21.4.2003 said to have been executed by Smt. Nagabhushanamma in favour of 2nd defendant in respect of item

No.1of plaint schedule property is not valid and not binding on the plaintiff and it is a old document and the said sale deed contains false recitals. The learned counsel for plaintiff further argued that the mother of 2nd defendant by name Smt.

Nagabhushanamma has no right to execute the alleged sale deed dated 21.04.2003.

The learned counsel for plaintiff further argued that the alleged sale deed dated 21.4.2003 was brought into existence in collusion with the attestors and scribe with a view to grab item No.1 of plaint schedule property.

28) In view of the submission made by the respective counsel of both parties as seen from the record in order to substantiate the case of plaintiff the plaintiff relied upon Ex.A5 registration extract of the sale deed dated 21.4.2003 in respect of item No.1 of plaint schedule property. In order to prove the case of 2nd defendant as seen from the evidence affidavit of D.W.1 who is 2nd defendant in this suit she categorically stated that she purchased item No.1 of schedule property from her mother by name Smt. Nagabhushanamma for total sale consideration of Rs.62,700/- and obtained a registered sale deed dated 21.4.2003 from her mother. Right from the beginning the case of plaintiff that the mother of 2nd defendant has no right to execute a registered sale deed under the original of Ex.A5 in favour of 2nd defendant 18

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in respect of item No.1 plaint schedule property. As seen from the contents of Ex.A5 registration extract of sale deed dated 21.4.2003 it was mentioned that the sale consideration amount was paid at the time of scribe the said sale deed. According to the case of 2nd defendant and as per the evidence of D.W.2 that the sale deed was scribed on 21.4.2003 at the office of the scribe. As per the recitals in the sale deed the sale consideration amount was paid at the office of the scribe. As seen from the evidence of D.W.2 who is said to be one of the attestor of original of Ex.A5 there is no whisper that he has witnessed the payment of sale consideration amount under the original of Ex.A5 and he did not specify whether it was done at the house of 2nd defendant or at the office of the scribe. It is not in dispute that by the date of execution of said sale deed i.e., original of Ex.A5 Smt. Nagabhushanamma was staying in the house of 2nd defendant ie. D.W.1. So passing of considerationunder the sale deed is doubtful.

it is well settled that “mere registration of document does not create title unless and until the vendor has clear and absolute right to sell the property.“

29) To get valid title the 2nd defendant has to prove that her vendor by name Smt. Nagabhushanamma had got title and entitled to transfer that title and that title was admittedly in favour of 2nd defendant and she was put in possession of that property. This Court is of the opinion that merely because the sale deed was registered in the name of 2nd defendant in respect of item No.1 of plaint schedule property it cannot be said that the mother of 2nd defendant by name Smt.

Nagabhushanamma had executed the sale deed after receiving the entire sale consideration. As seen from the cross examination of D.W.1 who is 2nd defendant in this suit she categorically admitted that she did not file any document to show that item Nos.1 and 2 of schedule properties were in possession and enjoyment of her mother after death of her father. D.W.1 further admitted in her cross examination that she did not file any cisth receipts stand in the name of her mother in respect of that 19

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property. This court is of the opinion that if really the mother of 2nd defendant by name Smt. Nagabhushanamma had acquired the schedule properties in pursuance of the Will dated 26.1.1987 what would prevent her to mutate her name in the revenue records. Except the oral say there is no iota of document filed by the 2nd defendant to substantiate her contention that her mother in pursuance of the Will dated 26.1.1987 executed by her father was in possession and enjoyment. Hence in the absence of any legal and documentary evidence it cannot be said that the 2nd defendant is a bonafide purchaser of item No.2 of plaint schedule property. Accordingly this point is answered.

30) Point No.5:

5. Whether the plaintiff is entitled to seek partition of plaint schedule property as prayed for ?

So far as this point is concerned, the burden is on the plaintiff to establish that she is entitled to seek partition of plaint schedule properties. In a suit for partition the burden to prove that a property sought to be partitioned belonged to the joint family lies on the person who claims it partition. The burden would undoubtedly lies on the party, who asserts the existence of a particular state of things on the basis of which she claims relief. Admittedly the plaintiff in this suit is daughter of G.Parasuramireddy who is original owner of schedule property. This court is already discussed in detail on point Nos.1 to 4 and came to a conclusion that the 2nd defendant failed to prove about the execution of the Will dated 26.1.1987. According to the case of plaintiff and as per her evidence that her father by name G.Parasuramireddy died intestate. When the father of the plaintiff by name G.Parasuramireddy died intestate his wife Smt. Nagabhushanamma all his five children are entitled to seek shares in the schedule property. In the earlier discussion in respect of point No.3 this Court came to a conclusion that the Will dated 21.4.2003 said to have been executed by Smt. Nagabhushanamma is not true and valid. So it must be considered that Smt. Nagabhushanamma also died intestate. Now there remained only five 20

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children of G.Parasuramireddy and Smt. Nagabhushanamma who are entitled to equal share in the schedule property.

31) As seen from the judgment of trial court the learned Additional Senior

Civil Judge (FTC), Gudivada categorically observed at page No.21 in para 33 of his

judgment that the plaintiff in this suit is entitled to seek partition of plaint schedule properties into five equal shares and for allotment of one such share along with future profits. The 1st defendant being son and the 2nd defendant by name Smt.

Nagabhushanamma and Smt.Swarna Kumari being the daughters of late

G.Parasuramireddy are entitled to other four shares one each in the schedule property.

Accordingly this point is answered in favour of plaintiff and against the defendant.

32) Point No.6:

6. Whether the plaintiff is entitled for future profits as prayed for ?

So far as this point is concerned the future profits shall be determined on a separate application filed by the plaintiff. As seen from the judgment of the trial court the learned Additional Senior Civil Judge (FTC), Gudivada in para 35 at page No.22 categorically observed that the plaintiff is entitled to future profits from the date of presentation of the suit i.e. O.S.251/2009 till the date of recovery of possession of 1/5th share therein. Considering the totality of the facts and the evidence adduced by both parties and coupled with the documents relied upon by them this Court is of the opinion that the case of plaintiff is more probable than the case of 2nd defendant.

Accordingly this point is answered.

33) Point No.7:

7. Whether the judgment and decree of the trial court in O.S.251/2009 dt.20.12.2011 needs any interference ?

So far as this point is concerned as seen from the judgment of the trial court the learned Additional Senior Civil Judge(FTC), Gudivada rightly discussed the evidence adduced by both parties and coupled with the documents relied upon by them and rightly answered the submissions made by the respective counsel of both 21

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

parties. I do not find any reasons to interfere with the reasoned judgment passed by the learned Additional Senior Civil Judge(FTC), Gudivada. Accordingly this point is answered.

34) Point No.8:

8. To what relief?

In the result, the appeal is dismissed, by confirming the common judgment and decree passed in respect of O.S.251/2009 dt.20.12.2011 on the file of

Additional Senior Civil Judge Court (FTC), Gudivada. In view of the relationship

between the parties there shall be no order as to costs.

Dictated to the Stenographer Grade-I of this Court, transcribed and typed by her,

corrected and pronounced by me in open Court, on this the 20th day of March, 2019.

XI-Addl.District Judge, Krishna, Gudivada.

APPENDIX OF EVIDENCE

-NIL-

XI-Addl.District Judge, Krishna, Gudivada.

22

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

IN THE COURT OF XI ADDL. DISTRICT & SESSIONS JUDGE, KRISHNA,

GUDIVADA.

PRESENT:- SRI G.VALLABHA NAIDU

XI-ADDL. DISTRICT & SESSIONS JUDGE, GUDIVADA.

WEDNESDAY, THIS THE 20th DAY OF MARCH, 2019.

A.S.12 OF 2012

in O.S.251/2009 on the file of Addl.Senior Civil Judge’s Court (FTC), Gudivada

Between:

Malireddy Rama Devi, W/o. Ramireddy, Hindu, 58 years, House wife, R/o. Nuthulapadu, Janardhanapuram Panchayat, Nandivada Mandal. …appellant/2nd defendant

A N D

1.Malireddy Nagamanimma, W/o. Veerabrahmareddy, Hindu, 65 years, Properties, R/o. Janardhanapuram, Nandivada Mandal.

2.Gadireddy Basava Purna Reddy, S/o. Late Parasurami Reddy, Hindu, 57 years, Cultivation, R/o. Janardhanapuram, Nandivada Mandal.

3.Malireddy Jaya, W/o M.T.S.Reddy, Hindu, 62 years, Properties, D.NO.9-49, New Dalshu Nagar Colony, Near Little Citizen Schook, Hyderabad.

4.Gotta Swarna Kumari, W/o. Galireddy, Hindu, 55 years, House wife, C/o. R.Vijayasri, Plot No.67, Suryanagar, IDPL, Balanagar, Hyderabad. …respondents

Appeal filed by the appellants U/o.41 Rule 1 and section 96 of C.P.C. against the decree and judgment in O.S.251/2009 on the file of Additional Senior Civil Judge’s Court (FTC), Gudivada dated 20.12.2011.

Between: Malireddy Nagamanimma … plaintiff

A N D

Gadireddy Basava Poorna Reddy and others …defendants

This is an appeal preferred by unsuccessful appellant/ 2nd defendant aggrieved by the common judgment and decree passed in O.S.251/2009 dt.20.12.2011 on the file of Additional Senior Civil Judge's Court (FTC), Gudivada.

Appeal presented on : 30-01-2012.

Value of the appeal for the purpose of court fee and jurisdiction is Rs.77,587-50 p.s on which a fixed court fee of Rs.200/- is paid herewith under section 34(2) r/w. Sec.49 of APCF and SV Act.

This appeal is coming for final hearing before me on 6.3.2019 in the presence of Sri N.Prabhakara Rao., Advocate for appellant and of Sri D.Veeraiah., Advocate for 1st respondent and R2 to R4 remained exparte and upon perusing the material on record, and on considering the connected material papers and submissions of both side counsel and the matter having been stood over till this day for consideration, this Court doth order and decree… 23

AS.12/12 dt.20.3.2019. XI-ADJ, Gudivada.

i.that the appeal be and the same is hereby dismissed by confirming the Judgment and decree passed in OS.No.251/2009, Dt.20-12-2011 on the file of Addl. Senior Civil Judge’s Court (FTC), Gudivada; ii.that there shall be no order as to costs.

Given under my hand and the seal of this Court, this the 20th day of March, 2019.

XI-Addl. District Judge, Krishna, Gudivada.

MEMORANDUM OF OCOSTS.

Sl.No. Description Appellant Respondent No.1

1. Stamp on power -- 2-00

2. Process fee -- --

3. Plaint fee -- --

4. Advocate’s fee -- 5,431-00

5. Writing charges -- 100-00

6. Typing charges -- 100-00 Total -- 5,633-00

XI-Addl. District Judge, Krishna, Gudivada.

1

IN THE COURT OF XI ADDL. DISTRICT AND SESSIONS JUDGE,

KRISHNA :: GUDIVADA PRESENT: Sri G.Vallabha Naidu, XI Addl. District & Sessions Judge, Krishna, Gudivada. Friday, this the 22nd day of March, 2019.

A.S.NO.46/2016.

BETWEEN: Pamarthi Rajesh Khanna, S/o Prasada Rao, Hindu, aged 33 years, Business, R/o D.No.59A-21/6-1, SFI, Sri Vijaya Durga Towers, R.R. Gardens, Patamata, Vijayawada. ..…. Appellant.

A N D

Lukka Omkaram, S/o Late Venkateswara Rao, Hindu, aged 58 years, Agriculturist, R/o Royyuru Village, Thotlavalluru Mandal, Krishna District.

…. Respondent.

This is an appeal preferred against the Judgment and decree

dt.14-07-2016 on the file of Junior Civil Judge’s Court, Vuyyuru passed in

O.S.No.106/2015.

BETWEEN:

Lukka Omkaram, S/o Late Venkateswara Rao, Hindu, aged 58 years, Agriculturist, R/o Royyuru Village, Thotlavalluru Mandal, Krishna District. …. Plaintiff. AND

Pamarthi Rajesh Khanna, S/o Prasada Rao, Hindu, aged 33 years, Business, R/o D.No.59A-21/6-1, SFI, Sri Vijaya Durga Towers, R.R. Gardens, Patamata, Vijayawada. ..…. Defendant.

This appeal coming for final hearing before me in the presence of Sri P.Venkatappaiah, Advocate for the Appellant and Sri A.Venkata Narayana and Sri B.Sarat Babu, Advocates for Respondent and upon perusing the material on record and upon considering the submissions of both side counsel and the matter having been stood over till this day for consideration, this Court delivered the following:

J U D G M E N T:

1. This is an appeal preferred by the un successful defendant aggrieved by the Judgment and decree dt.14-07-2016 passed in

O.S.No.106/2015 on the file of Junior Civil Judge Court, Vuyyuru.

2. The parties are arrayed as depicted in the suit for the sake of convenience.

3. The plaintiff filed the suit against the defendant for recovery of an amount of Rs.2,85,030/- being the principal and interest due on a promissory note dated 1-2-2014 with subsequent interest at 24% p.a. on the principal 2 amount of Rs. 2,00,000/- -from the date of suit till its realization and for such other reliefs and costs of the suit.

4. The averments of the plaint in brief are that the defendant borrowed an amount of Rs. 2,00,000/- from the plaintiff for his family expenses agreeing to repay the same with interest at 24% per annum with yearly rests and executed a demand promissory note on 1-2-2014 in favour of the plaintiff. It is further averred in the plaint that inspite of repeated demands made by the plaintiff, the defendant did not pay the amount covered under the promissory note and he has been postponing the same on one pretext or other. Then the plaintiff got issued a registered lawyer’s notice to the defendant and the defendant received the same but did not pay any amount and did not give any reply.

Under these circumstances the plaintiff filed the suit against the defendant for recovery of an amount of Rs. 2,85,030/- with subsequent interest at 24% per annum from the date of the suit to its realization and for such other reliefs and for costs of the suit.

5. The defendant contested the suit by filing written statement denying all the averments made in the plaint. The contention of the defendant as per his written statement that the suit filed by the plaintiff is not maintainable either on law or on facts. It is further averred in the written statement of the defendant that he never borrowed an amount of Rs.2,00,000/- from the plaintiff at any point of time and did not execute the alleged suit promissory note in favour of the plaintiff. He is none other than the son-in-law of the plaintiff. His wife who is no other than the daughter of the plaintiff received landed property and huge amount from her 1st husband at the time of divorce and they were handed over to the plaintiff. It is further averred in the written statement of the defendant that himself and his wife demanded the plaintiff to hand over the said property but the plaintiff did not return the same. The plaintiff has no capacity to lend such huge amount and the signature on the alleged suit promissory note does not belongs to him. Hence, he prays the court to dismiss the suit with costs.

3

6. Basing on the strength of the pleadings of the parties to the suit, the following issues were settled for trial before the trial court:

1. Whether the suit promissory note is true, valid and binding on the defendant or not ?

2. Whether the plaintiff is entitled to recover the suit amount as prayed for?

3. To what relief ?

7. During the course of the trial on behalf of the plaintiff, PWs 1 to 3 were examined and Ex.A1 to A3 are marked. On behalf of the defendant, the defendant examined himself as DW1 and no documents are marked.

8. Given, the evidence, let in by the plaintiff to the suit and after hearing arguments on both sides, the learned Junior Civil Judge, Vuyyuru decreed the suit with costs for sum of Rs. 2,85,030/- with subsequent interest at 12% p.a.

from the date of the suit till the date of decree and thereafter at 6% p.a. till realization on principal amount of Rs. 2,00,000/- as per the judgment and decree dated 14-07-2016 in O.S.106/2015 against which the present appeal was preferred by the un successful defendant.

9. As seen from the appeal grounds the judgment and decree of the trial court are contrary to law weight of evidence and probabilities of the case, the trial court failed to see that the plaintiff did not discharge his burden of proof regarding execution of the suit promissory note, trial court failed to observe that as per the evidence of PWs 1 to 3 the defendant did not execute the suit promissory note, trial court failed to observe that the alleged suit promissory note was created, trial court failed to consider the evidence of PWs 2 and 3 which falsifies the case of the plaintiff , trial court failed to observe that the contents of the promissory note not proved, trial court ought to have held that non issuance of reply to the plaintiff by the defendant is not fatal, trail court ought to have seen that the execution of promissory note was not proved.

Hence the appellant/defendant prays the court to allow the appeal by setting aside the judgment and decree passed in O.S.No.106/2015 dated 14-07-2016 on the file of Junior Civil Judge court, Vuyyuru.

4

10. Given, the appeal grounds, the following points that arise for consideration are :

1. Whether the suit promissory note dated 1-2-2014 is true, valid and supported by consideration and binding on the defendant ?

2. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for ?

3. Whether the judgment and decree of the trial court dated 14-07-2016 in

O.S.No.106/2015 needs any interference ?

4. To what relief ?

11. POINT No1:

1. Whether the suit promissory note dated 1-2-2014 is true, valid and supported by consideration and binding on the defendant ?

The onus to prove this point lies on the plaintiff. In order to prove the case of the plaintiff, PWs 1 to 3 were examined and Exs.A1 to A3 were marked. PW1 is the plaintiff in this suit. As seen from the evidence affidavit of PW1, he categorically reiterated all the contents of the plaint. According to the case of the plaintiff and as per his evidence that the defendant borrowed an amount of Rs.2,00,000/- from him for his family expenses agreeing to repay the same with interest at 24% per annum and executed Ex.A1 promissory note on 1-2-2014 in his favour. PW1 further stated in his evidence that inspite of repeated demands made by him the defendant did not pay the amount covered under the promissory note and postponing the same on one pretext or other.

PW1 further stated in his evidence that then he got issued a registered lawyer’s notice to the defendant under the original of Ex.A2 and the defendant received the same under Ex.A3 postal acknowledgment but did not give any reply and did not pay the amount.

12. In a suit for recovery of money based on promissory note, the burden squarely rests upon the plaintiff to prove the due execution of the promissory note in all respects as required under law. In order to prove the due execution of Ex.A1 promissory note the plaintiff also examined the attestor and scribe of the promissory note as PWs 2 and 3. As seen from the chief examination 5 affidavits of PWs 2 and 3, they have supported the version of PW1 with regard to due execution of Ex.A1 promissory note and passing of consideration under it to the defendant from the plaintiff. As seen from the evidence of PWs 2 and 3, their evidence is consistent and corroborated with the evidence of PW1 with regard to due execution of promissory note and passing of consideration.

13. On the other hand it is the case of the defendant that he never borrowed an amount of Rs. 2,00,000/- from the plaintiff at any point of time and did not execute the alleged suit promissory note in favour of the plaintiff.

In order to substantiate the case of the defendant, the counsel for defendant filed the evidence affidavit of the defendant as DW1. As seen from the evidence affidavit of DW1, who is the defendant in the suit, he categorically reiterated all the contents of his written statement

14. In view of the specific plea taken by the defendant no doubt it is well settled the initial burden is on the plaintiff to prove the due execution of promissory note by examining the attestors and scribe. When the defendant specifically denied about the execution of Ex.A1 promissory note in favour of the plaintiff, it is for the plaintiff to prove the same by examining the attestor or the scribe. In the present case the plaintiff examined the attestor and scribe as PWs 2 and 3. As seen from the cross examination PWs 1 to 3 except putting suggestions nothing was elicited to disbelieve their testimony. There is no reason to suspect the evidence of PW1 who is the father-in-law of the defendant.

15. The initial burden of proving the due execution of Ex.A1 promissory note was discharged by the plaintiff by examining the attestor and scribe as

PWs 2 and 3 and the onus of disproving the document otherwise shifts to the defendant. Section 118 of Negotiable Instrument Act lays down the conditions in which the presumption shall be made. In a case based on the promissory note the initial burden lies on the plaintiff to prove the due execution of the promissory note and when this burden is discharged then the court shall raise 6 a presumption in favour of the plaintiff for holding that the promissory note was for consideration and it will be for the defendant to rebut the presumption.

16. In the present case as seen from the evidence of PWs 1 to 3 their evidence is consistent and corroborated with regard to the due execution of

Ex.A1 promissory note by the defendant in favour of plaintiff and passing of consideration under it.

17. In the present case the defendant categorically denied his signature found on Ex.A1 promissory note by contending that the signature on the alleged suit promissory note does not belongs to him. Even though he took a specific plea of forgery he has not taken any steps to send Ex.A1 promissory note to the handwriting expert for comparison of his disputed signature found in Ex.A1 promissory note with his admitted signatures. Without taking any steps the plea taken by the defendant regarding forgery of his signature is of no use in the eye of law. However, on the plea of forgery the defendant invites upon himself the shifting of burden but no serious attempts were made to prove forgery. Mere suggestion to the witness would not suffice.

18. Admittedly the plaintiff got issued a registered lawyer’s notice to the defendant under the original of Ex.A2 and the defendant received the same under Ex.A3 postal acknowledgement but did not give any reply. This court is of the opinion that if really the contention of the defendant as taken in his written statement and in his evidence is true what would prevent him to issue a suitable reply to the plaintiff on receipt of the notice from the plaintiff. The non issuance of reply to the plaintiff by the defendant falsifies his contention.

As seen from the judgment of the trial court the learned Junior Civil Judge at page No.4 of his judgment rightly observed that when the defendant pleads forgery it is for him to establish the same to the satisfaction of the court with cogent and convincing evidence. Mere denial of the promissory note as a forged one without taking any steps to prove the same is not enough.

19. considering the totality of the facts and the evidence adduced by both parties and coupled with the documents relied upon by the plaintiff, this court 7 is of the opinion that the case of the plaintiff is more probable than the case of the defendant. Accordingly this point is answered in favour of the plaintiff and against the defendant.

20. POINT No2:

2. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for ?

So far as this point is concerned, this court already discussed in detail on point No1 and came to a conclusion that the suit promissory note dated 1-2-2014 ie., Ex.A1 was executed by the defendant in favour of plaintiff and the same is true valid and supported by consideration and binding on the defendant and the plaintiff is entitled to recover the suit amount from the defendant as prayed for. Accordingly, this point is answered.

21. POINT NO.3:

3. Whether the judgment and decree of the trial court dated 14-07- 2016 in O.S.No.106/2015 needs any interference ?

So far as this point is concerned as seen from the judgment of the trial court, the learned Junior Civil Judge, Vuyyuru rightly discussed the evidence adduced by both parties and coupled with the documents relied upon by the plaintiff and rightly decreed the suit. I do not find any reasons to interfere with the reasoned judgment passed by the learned Junior Civil Judge, Vuyyuru in

O.S.No.106/2015 dated 14-07-2016. Accordingly this point is answered.

22. POINT NO.4: To what relief ?

In the result, the appeal is dismissed with costs all through by confirming the judgment and decree passed in O.S.No.106/2015, dated 14-07- 2016 on the file of Junior Civil Judge Court, Vuyyuru.

Dictated to the Typist, typed by her, corrected and pronounced by me, in

the open Court, this the 22nd day of March, 2019

XI ADDL. DISTRICT & SESSIONS JUDGE,

KRISHNA:GUDIVADA.

APPENDIX OF EVIDENCE:

8 -NIL –

XI ADJ., GDV.

9

IN THE COURT OF XI ADDL. DISTRICT AND SESSIONS JUDGE,

KRISHNA :: GUDIVADA

PRESENT: Sri G.Vallabha Naidu,

XI Addl. District & Sessions Judge, Gudivada.

Friday, this the 22nd day of March, 2019.

A.S.NO.46/2016.

BETWEEN:

Pamarthi Rajesh Khanna, S/o Prasada Rao, Hindu, aged 33 years, Business, R/o D.No.59A-21/6-1, SFI, Sri Vijaya Durga Towers, R.R. Gardens, Patamata, Vijayawada. ..…. Appellant.

A N D

Lukka Omkaram, S/o Late Venkateswara Rao, Hindu, aged 58 years, Agriculturist, R/o Royyuru Village, Thotlavalluru Mandal, Krishna District.

…. Respondent.

This is an appeal preferred against the Judgment and decree

dt.14-07-2016 on the file of Junior Civil Judge’s Court, Vuyyuru passed in

O.S.No.106/2015.

BETWEEN:

Lukka Omkaram, S/o Late Venkateswara Rao, Hindu, aged 58 years, Agriculturist, R/o Royyuru Village, Thotlavalluru Mandal, Krishna District.

…. Plaintiff. AND

Pamarthi Rajesh Khanna, S/o Prasada Rao, Hindu, aged 33 years, Business, R/o D.No.59A-21/6-1, SFI, Sri Vijaya Durga Towers, R.R. Gardens, Patamata, Vijayawada. ..…. Defendant.

This is an appeal preferred by the un successful defendant aggrieved by the Judgment and decree dt.14-07-2016 passed in O.S.No.106/2015 on the file of Junior Civil Judge Court, Vuyyuru.

Appeal presented on : 17-08-2016.

Value of the appeal for the purpose of court fee and jurisdiction is Rs.3,03,630/- on which a fixed court fee of Rs.5,526/- is paid herewith under section 49 of APCF and SV Act.

This appeal coming for final hearing before me in the presence of Sri P.Venkatappaiah, Advocate for the Appellant and Sri A.Venkata Narayana and Sri B.Sarat Babu, Advocates for Respondent and upon perusing the material on record and upon considering the submissions of both side counsel and the matter having been stood over till this day for consideration, this Court doth order and decree… i.that the appeal be and the same is hereby dismissed all through by confirming the Judgment and decree passed in OS.No.106/2015, Dt.14-07-2016 on the file of Junior Civil Judge’s Court, Vuyyuru and; 10 ii.that the appellant do pay to the respondent for sum of Rs.NIL towards costs of the appeal (As no bill of costs filed).

Given under my hand and the seal of this Court, this the 22nd day of March, 2019.

XI-Addl. District Judge, Krishna, Gudivada.

MEMORANDUM OF OCOSTS.

-NIL-

XI-Addl. District Judge, Krishna, Gudivada.

1

IN THE COURT OF XI ADDL. DISTRICT JUDGE,KRISHNA :: GUDIVADA

Present: Sri G.Vallabha Naidu,

XI Addl. District Judge, Krishna, Gudivada.

Monday, this the 18th day of March, 2019.

O.S.No.78/2017

Between:

Chalamalasetti Srinivasa Rao, S/o Veera Venkata Chalapathi Rao, Hindu, aged about 49 years, Properties, Residing at Mini-Bypass Road, Near Gowtham School, Gudivada, Krishna District. … Plaintiff. A N D

Alladisetti Chandramohana Rao, S/o Panduranga Rao, Hindu, aged about 62 years, Retd. employee, Residing at MIG 26, A.P.H.B.Colony, Machilipatnam, Krishna District. … Defendants.

This suit is coming on 18-03-2019 for hearing before me in the presence of Sri Ch.Venkata Ramana, Advocate for plaintiff and the defendant is remained set exparte, and having stood over the matter for consideration till this day, this Court delivered the following :

J U D G M E N T.

Suit for recovery of an amount of Rs.17,25,073/-(Rupees 1.

Seventeen lakhs twenty five thousand and seventy three only) being the

principal and interest due on a promissory note, dated 9-9-2009 with

subsequent interest at 24% p.a. on the principal amount of

Rs.6,00,000/- from the date of the suit till its realization and for such other reliefs and for costs of the suit.

2. The averments of the plaint in brief are that the defendant borrowed an amount of Rs. 6,00,000/- from the plaintiff for his family expenses and to discharge his sundry debts agreeing to repay the same with interest at 24% per annum and executed a demand promissory note on 9-9-2009 in favour of the plaintiff. It is further averred in the plaint 2 that in spite of repeated demands made by the plaintiff, the defendant made part payment of Rs.10,000/- on 1-9-2012 and made an endorsement on the reverse of the promissory note with his own hand writing and again the defendant made part payment amount of

Rs.10,000/- on 20-8-2015 and made another endorsement on the reverse of the original promissory note with his own hand writing. It is further averred in the plaint that in spite of repeated demands made by the plaintiff the defendant did not choose to repay the amount due under the promissory note. Under these circumstances the plaintiff filed the suit against the defendant for recovery of an amount of Rs.17,25,073/- (Rupees Seventeen lakhs twenty five thousand and seventy three only) being the principal and interest due on a promissory note, dated 9-9-2009 with subsequent interest at 24% p.a. on the principal amount of Rs.6,00,000/- from the date of the suit till its realization and for such other reliefs and for costs of the suit.

3. After filing of the suit, summon was issued to the defendant. The defendant appeared before this court after receiving the summon and engaged an advocate but he failed to file written statement within stipulated period of 90 days. The defendant was remained set exparte as per the docket order dated 11-9-2018.

4. The points for consideration are

1.Whether plaintiff is entitled to recover the suit amount from

the defendant as prayed for?

2. To what relief?

5. POINT NO.1:

Whether plaintiff is entitled to recover the suit amount from

the defendant as prayed for?

3

In order to establish the case of the plaintiff, the counsel for the plaintiff filed the evidence affidavit of the plaintiff as PW1 and got marked

Exs.A1 to A3. As seen from the evidence affidavit of PW1, who is plaintiff in the suit, he categorically reiterated all the contents of the plaint.

According to the case of the plaintiff and as per his evidence that the defendant borrowed an amount of Rs.6,00,000/- from him for his family expenses and to discharge his sundry debts agreeing to repay the same with interest at 24% per annum and executed Ex.A1/Promissory note

dated 9-9-2009 in his favour. PW1 further stated in his evidence that

inspite of repeated demands made by him, the defendant made part payment of Rs.10,000/- on 1-9-2012 and made Ex.A2/part payment endorsement on the reverse of Ex.A1 with his own hand writing. PW1 further stated in his evidence that again the defendant made part payment amount of Rs.10,000/- on 20-8-2015 and made Ex.A3/ endorsement on the reverse of Ex.A1. PW1 further stated in his evidence that subsequently inspite of repeated demands made by him, the defendant did not pay the amount covered under Ex.A1 promissory note and postponing the same on one pretext or other.

6. In a suit for recovery of money based on a promissory note, the burden squarely rests upon the plaintiff to prove the promissory note in all respects as required under law. In a case based on the promissory note the initial burden lies on the plaintiff to prove the due execution of the promissory note and when this burden is discharged it is then that the Court shall raise a presumption in favour of the plaintiff for holding that the promissory note was for consideration and it will be for the defendant to rebut that presumption.

4

7. In the present suit, the defendant was remained set exparte for non filing of his written statement as per the docket order dated 11-9-2018.

The evidence of PW1 who is the plaintiff in the suit is unchallenged.

Considering the evidence of PW1 and coupled with Exs.A1 to A3 relied upon by the plaintiff, this court without any hesitation come to a conclusion that the defendant executed Ex.A1 promissory note in favour of the plaintiff and the same is true, valid and supported by consideration and binding on the defendant and also made part payment endorsements under Exs.A2 and A3 on the reverse of Ex.A1 promissory note as such the plaintiff is entitled to recover the suit amount from the defendant as prayed for. Accordingly, this point is answered.

8. POINT NO.2: To what relief?

In the result, the suit is decreed exparte with costs against the defendant for a sum of Rs.17,25,073/- (Rupees Seventeen lakhs twenty five thousand and seventy three only) with subsequent interest at 12% pa from the date of the suit till the date of decree and thereafter at 6% per annum from the date of decree till its realization on the principal amount of Rs.6,00,000/-.

Dictated to the Typist, typed by her, corrected and pronounced by me

in the open court, this the 18th day of March,2019.

XI Addl. District Judge,

GUDIVADA.

Appendix of Evidence

For plaintiff: For Defendant PW1:Ch.Srinivasa Rao None

Exhibits marked for

For plaintiff:

Ex.A1: Original Promissory note dated 9-9-2009 for Rs.6,00,000/- executed by the defendant in favour of PW.

5

Ex.A2: Part payment endorsement dated 1-9-2012 on the reverse of Ex.A1.

Ex.A3: Another part payment endorsement dated 20-8-2015 made on the reverse of Ex.A1.

For defendant: NIL

XI Addl. District Judge,

GUDIVADA.

6

IN THE COURT OF XI ADDL. DISTRICT JUDGE,KRISHNA :: GUDIVADA

Present: Sri G.Vallabha Naidu,

XI Addl. District Judge, Krishna, Gudivada.

Monday, this the 18th day of March, 2019.

O.S.No.78/2017

Between:

Chalamalasetti Srinivasa Rao, S/o Veera Venkata Chalapathi Rao, Hindu, aged about 49 years, Properties, Residing at Mini-Bypass Road, Near Gowtham School, Gudivada, Krishna District. … Plaintiff. A N D

Alladisetti Chandramohana Rao, S/o Panduranga Rao, Hindu, aged about 62 years, Retd. employee, Residing at MIG 26, A.P.H.B.Colony, Machilipatnam, Krishna District. … Defendants.

Suit for recovery of an amount of Rs.17,25,073/-(Rupees Seventeen lakhs twenty five thousand and seventy three only) being the principal and interest due on a promissory note, dated 9-9-2009 with subsequent interest at 24% p.a. on the principal amount of Rs.6,00,000/- from the date of the suit till its realization and for such other reliefs and for costs of the suit.

Suit presented on : 09-10-2017.

Value of the suit for the purpose of court fee and jurisdiction is Rs.17,25,073/- under section 50 of A.P.C.F. and S.V Act on which a court fee of Rs.19,726/- is paid here with under section 20 of A.P.C.F. and S.V.Act.

Cause of action for the suit arose on and after, 09-9-2009 when the defendant borrowed an amount of Rs.6,00,000/- from the plaintiff for the purpose o his family expenses and to discharge his sundry debts, on the even date the defendant executed a promissory note in favour of the plaintiff with his own handwriting (Swahastham) agreeing to repay the said sum together with 24% p.a; on and after, on 1-9-2012 when the defendant made a part payment and endorsed the same on the reverse of the promissory note with his own handwriting acknowledging his liability due under the aforesaid promissory note; on and after on 20-8-2015; at the Gudivada within the jurisdiction of this court.

This suit is coming on 18-03-2019 for hearing before me in the presence of Sri Ch.Venkata Ramana, Advocate for plaintiff and the defendant is remained set exparte, and having stood over the matter for consideration till this day, this Court doth order and decree… 7 i.that the suit be and the same is hereby decree against the defendant for sum of Rs.17,25,073/- with subsequent interest at 12% p.a from the date of the suit till the date of the decree and thereafter at 6% p.a from the date of the decree till its realization on the principal amount of Rs.6,00,000/- ii.that the defendant do pay to the plaintiff a sum of Rs.NIL towards costs of the suit (as no bill of costs filed)

Given under my hand and the seal of this court, this the 18th day of March, 2019.

XI ADDL. DISTRICT JUDGE,

GUDIVADA.

Memorandum of costs.

-NIL-

XI ADDL. DISTRICT JUDGE,

GUDIVADA.