Sri.k.chidananda

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IN THE COURT OF THE IX ADDL. DISTRICT JUDGE,

CHITTOOR.

Present: Sri K. Chidananda, B.Com., LL.M., VIII Additional District Judge. FAC-IX Addl. District Judge

Wednesday the 6th (sixth) day of January, 2016

A.S. No. 7 of 2009

Between:

Rajendra.. Appellant

And:

G. Bhanumathi ..Respon- dent

On appeal against the Judgment and decree dated 14-08-2007 of the II Addl. Junior Civil Judge of Chittoor, made in:

O.S. No. 1335 of 2002

Between:

Banumathi..Plaintiff

And:

Rajendra..Defendant

This Appeal is coming on for final hearing before me on 06.08.2015 and upon perusing the material papers on record and grounds of appeal and upon hearing the arguments of Sri V. Jayakumar, Advocate for appel- lant and of Sri N. Dwarakanatha Reddy, Advocate for respondent, and the matter having stood over for consideration till this day, this Court deliv- ered the following:

J U D G M E N T

This is an appeal filed by the appellant/defendant against the decree passed by the learned II Addl. Junior Civil Judge, Chittoor in O.S. No.

1335/2002 dated 14-8-2007. By the impugned judgment the lower court 2 decreed the suit with costs by declaring that the plaintiff has got right and title over the plaint schedule property. Further, the lower court directed the defendant to remove the shed constructed in the plaint ‘B ‘ schedule property and also restore the land to its original condition and deliver the same to the plaintiff. Aggrieve d by the judgment and decree the appel- lant has filed the present appeal.

2.The appellant herein is the defendant and respondent herein is the plaintiff in the lower court. For the sake of convenience the parties would be referred to in this judgment as they were arrayed in trial court.

3.The case of the plaintiff as can be seen from the averments of the plaint in brief are as follows:

The contention of the plaintiff is that she purchased a house plot situate in S.No.1511/1 to an extent of 880 sq. feet from one D.

Rajasekhar Naidu on 9-2-1981 for valid consideration and possession was delivered to her on the even date. The said site is shown as ‘AEFD’ in the site plan. The plaintiff was staying in Penumur village along with her husband who is working as Purohit who inspects the vacant site shown in ‘A’ schedule property whenever she visits Chittoor. Similarly, on 15-6- 2000 she visited the plaint ‘A’ schedule property and found the vacant site and there was no encroachment from any site. On 16-10-2000 she received a caveat petition from the defendant and one T. Jayalakshmi stating that the defendant purchased the caveat schedule property from 3

Jayalakshmi on 24-1-2000 and later on the defendant constructed a house etc. Then the plaintiff immediately rushed to Chittoor and noticed that the defendant illegally occupied a portion of ‘A’ schedule property to an extent of 44 feet from east to west and 6 feet from north to south and constructed a shed abutting his house. The plaintiff issued a legal notice requiring the defendant to pull down the illegal occupation and to hand over the possession, but the defendant failed to comply the demands made by the plaintiff. The defendant, who is in no way connected to the plaint ‘A’ schedule property has been claiming that he purchased a plot adjacent to her site on the southern side from one T. Jayalakshmi, taking advantage of the absence of the plaintiff, as the plaintiff is residing at

Penumur village and she has not visited ‘A’ schedule property in between 15-6-2000 and 16-10-2000. The defendant who claims to have purchased the plot on the southern portion to the plot of the plaintiff illegally extended his house and occupied a portion of ‘A’ schedule to an extent of 44 feet from east to west and 6 feet from north to south and the total extent is 264 sq. feet which is described as ‘B’ schedule and which is shown as ‘ABCD’ in the site plan in red colour. The said ‘B’ schedule was constructed illegally which is under the occupation of the defendant. The defendant in spite of advice of the elders refused to hand over the possession. Hence, the suit.

4.Per contra, the defendant has filed his written statement by denying all material allegations of the plaint. The contention of defendant is that the plaint schedule property is the property that was purchased by the defendant which originally belonged top one Rajasekhar Naidu. He sold 4 his properties in S.No.150/1 to one R. Jayalakshmi measuring East to

West 40 feet and north to south 40 feet which in toto comes to 1600 sq.

feet with specific boundaries. Towards east his land, towards west the property that was sold to Navaneethamma, towards north the land of plaintiff namely Bhanumathi and towards south Kalva poramboke are situated. The possession of the said property was delivered to

Jayalakshmi on 25-02-1985 and since then she was in possession and enjoyment of the same. The above referred T.R. Jayalakshmi sold her property to the defendant for valid consideration under a registered sale deed dated 24-1-2000 measuring east to west 40 feet and north to south 15 feet which in toto comes to 600 sq. feet. Towards the east of the said property, the newly formed road by Rajasekhar Naidu, towards west the property of Navaneethamma towards north the land of Bhanumathi, i.e.

plaintiff herein and towards south the land of T.R. Jayalakshmi are situated. Immediately after purchasing the property the defendant constructed a house and started residing therein on the southern side of the property in S.No. 151/1 there is a kalva poramboke (channel) since long time. The said Rajasekhar Naidu sold the property to Jayalakshmi and the extent from north to south is 40 feet and towards southern side

Kalva poramboke is shown as its boundary. Therefore, from that channel the vendor of the defendant had 40 feet towards north. The sale that was affected in favour of the defendant by his vendor is extended 40 feet on north from the said channel. So, the plaintiff has no right over the property of 40 feet on the north of the channel. The plaintiff has got property on the north of the property of the defendant and the same was occupied by some others on the northern side and it is learnt that the 5 plaintiff has taken consideration for the land that was occupied on the northern side and she filed the suit to harass the defendant to get wrongful gain. The defendant is an illiterate and he purchased the property with his own savings and constructed a small shed with asbestos sheet and obtained loan from the bank and third parties. Presently he is residing along with his wife and children. The suit is bad for non-joinder of necessary parties. The plaintiff ought to have impleaded her vendor and the house owner on the northern side of the suit property and also the vendor of the defendant.

5. Basing on the above pleadings, the trial Court has framed the following issues for trial:

1. Whether the plaintiff has got right and title over the ‘B’ schedule property?

2. Whether the plaintiff is in possession and enjoyment of ‘B’ schedule property as on the date of filing of the suit?

3. Whether the plaintiff is entitled for delivery of possession of ‘’B’ schedule property?

4. Whether the plaintiff is entitled for grant of mandatory injunction against the defendant and removal of shed and structures in the plaint ‘B’ e property?

5. To what relief?

6. During the course of enquiry the trial court examined PWs. 1 to 4 and marked Exs. A 1 to A 4 on behalf of the plaintiff. On behalf of the 6 defendants DWs. 1 to 3 were examined and Exs. B. 1 to B 5 were marked.

7.After assessing the entire evidence on record trial court has de- creed the suit with costs as mentioned supra.

8.This appeal is coming for arguments since 2009. In spite of suffi- cient opportunity given to both parties, both parties failed to argue the matter. Hence, the arguments are treated as heard and posted the mat- ter for judgment.

9. Now the points that arise for consideration in this appeal are:

1. Whether the plaintiff is entitled for declaration of right and title over the plaint schedule property and entitled for grant of mandatory injunction as prayed for?

2. Whether the findings of the lower court are sustainable in law or on facts?

3. To what relief?

POINT No.1 & 2 :

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10.This suit is filed by the plaintiff against the judgment of the lower court seeking the relief of declaration of her right and title over the plaint ‘B’ schedule property, directing the defendant to deliver the possession of the plaint schedule property if necessary through process of court and grant of mandatory injunction against the defendant to remove the constructions in the plaint ‘B’ schedule property and to restore the land to it s original condition and deliver the same to the plaintiff.

11.The initial burden is on the plaintiff to prove her right and title over the suit schedule property by producing cogent and convincing evidence.

In this suit, the suit schedule property is shown as ‘A’ and ‘B’ schedule properties. The plaint ‘A’ schedule property is a plot measuring 880 sq.

feet situate in S.No. 151/1 in Balajinagar Colony, Chittoor town,

Greamspet village. The plaint ‘B’ schedule property is 264 sq. ft. is also situate in S.No.151/1 in Balajinagar Colony, Chittoor town, Greamspet village. This is the property where the plaintiff is seeking declaration of her right and title and also for delivery of possession of ‘B’ property to her by granting mandatory injunction.

12.In this suit the plaintiff has produced voluminous evidence by examining PWs. 1 to 4 and marking Exs. A1 to A4. The defendant also produced voluminous evidence i.e. DWs. 1 to 3 and Exs. B1 to B.5.

13.Now it has to be seen whether the plaintiff who has filed the suit has proved her right and title and entitled for the reliefs sought.

14.The contention of the plaintiff is that she has purchased the plot situate in S.No. 151/1 an extent of 880 sq. feet from one Rajasekhar 8

Naidu on 9-2-1981 for valid consideration and she was put in possession and enjoyment of the same on the same day and the said property is shown as ‘AEFD’ in the plaint plan. It is the further contention of the plaintiff that on 16-10-20000 she received caveat petition from the defendant and one T. Jayalakshmamma stating that the defendant has purchased the caveat schedule property from Jayalakshmamma on 24-1- 2000 and that the defendant constructed a house. The plaintiff immediately rushed to Chittoor and noticed the defendant illegally occupied a portion of ‘A’ schedule property to an extent of 44 feet from east-west and 6 feet from north-south and constructed a shed abutting her house. Later the plaintiff got issued a legal notice but in spite of that the defendant failed to comply the demands made by the plaintiff.

15.To shore up these contentions the plaintiff herself was examined as

PW 1. She clearly testified all the averments made in the plaint. In support of her oral evidence she got marked Exs. A1 to A4. Ex.A 1 is the certified copy of registered sale deed dated 9-2-1981 It shows that one

Rajasekhar Naidu sold the schedule property to the plaintiff in the year 1981. Ofcourse, this document is not disputed by the defendant herein.

Therefore, the plaintiff can rely upon Ex.A1 in support of her oral evidence. The plaintiff also marked Ex.A2 which is site plan and the land of plaintiff. It shows ‘AEFD’ and the encroached portion is shown as ‘ABCD’. This site plan shows the encroachment made by the defendant which supports the version of plaintiff. Ex.A1 is the caveat petition and Ex.

A4 is the reply notice issued by the defendant to the plaintiff.

16. Of-course the defendant cross-examined this witness at length and 9 put a suggestion to Pw1 that the plaintiff has filed this suit against the defendant with an intention to grab his property and deposing falsely for the purpose of this case, the said suggestion was denied by Pw1 in support of his evidence of Pw1 the plaintiff examined Pw2 who is her own husband and the testimony of Pw2 reveals that he purchased the suit site in the name of Pw1 situated in S.No. 151/1 to an extent of 880 sq. feet from one D.Rajasekar Naidu on 19-2-1981 for valid consideration and took possession of the same and ever since the plaintiff was in possession and enjoyment of the same and absolute rights. His evidence further reveals that on 16-10-2000 Pw1 received copy of Caveat petition from the defendant and P.Jayalakshmi, stating the defendant purchased the property shown in the caveat from P.Jayalakshmi on 24-1-2000 and they constructed house and living in that house and there after immediately rushed to Chittoor and found that the defendant illegally occupied a portion of A schedule to an extent of 44 feet on the east – west and 6 feet on north – south and constructed shed abutting the defendants house, immediately she gave reply notice to the defendant by denying the contention of the defendant. Later Pw2 went panchayat in the presence of K.Narasimhulu Naidu, P.Rudraiah Naidu and others it was agreed by the defendant that he will vacate the illegal occupation of the land but he is postponing the same. He also clearly deposed that the defendant has no way connected with the plaint A schedule property which was illegally occupied by him and constructed shed in B schedule property and also further extended for another 4 feet totally 10 feet on the north – south of his site and on east – west 44 feet. But he denied the suggestion that the suit is bad for non joinder of necessary party and in fact the question of 10 adding the vendor of the plaintiff and vendor of defendants does not arise by virtue of the facts of the present case.

17.The plaintiff also examined Pw3, the evidence of Pw3 reveals that the Pw1 and Pw2 purchased A schedule property on 9-2-1981 from

Rajasekar Naidu and the plaintiff was present at the time of transaction and took possession of the suit property. Pw3 further reveals that he and one P.Rudraiah Naidu approached the defendant and the defendant in turn agreed to remove the constructions said to have been illegally raised by the defendant. But the defendant did not remove the same. Therefore this part of evidence he also clearly supports the version of the plaintiff.

18.The plaintiff also examined Pw4, in his evidence that as the plaintiff informed about the illegal encroachment of defendant who acted as mediators and the defendant agreed to pull down the alleged illegal construction. Of-course the defendant cross examined the witness and he admits that there is no documentary proof that he held mediation, but this fact is not fatal therefore the testimony of Pw4 clearly supports the case of plaintiff, after they came to know the illegal encroachment of the defendant they conducted panchayat in the presence of Pws 3 and PW4.

But the defendant did not remove the illegal encroachment in the land of the plaintiff.

19.On the other hand, the defendant strongly contended that he purchased the plaint B schedule property which originally belonged to one

B.Rajasekar Naidu. The said Rajasekar naidu sold his property in S.No.

151/1 to one T.R.Jayalakshmi measuring East to West 40 feet totally 11 1600 sq. feet with specific boundaries. He also deposed that later the said

Jayalakshmi sold the said property to the defendant on 24-1-2000 and ever since the defendant is in possession of the same. Immediately after the purchase the property the defendant constructed house and started to residing in the same. On the southern side of the property in S.No. 151/1 there is a kalva poramboke since long time. Further the contention of the defendant is that the said Rajasekar Naidu sold the property to

Jayalakshmi with an extent of 40 feet South – North and towards

Southern side Kalva poramboke he shown as his boundaries. Therefore the plaintiff has no right over the property of 40 feet on the north of the channel.

20. To support those contentions the defendant was examined as DW1, but in the cross examination he stated that he cannot say the existing boundaries as on the date of purchase by him and he admits that after 2 months of purchase of the property he stated raising constructions and it was completed within 1 ½ months and there are no specific reasons for constructing house within 1 ½ months. He also admits that he purchase the property situated adjacent to the property of the plaintiff in an extent of 15 x 40 feet. Of course the defendant denied the suggestion that he has to remove the illegal construction.

21.When the plaintiff disputing the property of the defendant, the defendant must have appointed an Advocate –Commissioner to show that there is no illegal encroachment but here the defendant has not taken such steps to show that there is no illegal encroachment made by the defendant.

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22.The defendant also examined DW2. Of – course his evidence reveals that the defendant purchased the property belong to Rajasekar Naidu and after purchasing the property the defendant immediately constructed house and he has been residing therein. The same witness in cross examination he admits that the plaintiff purchased the plaint schedule property about 2 or 3 years prior to the date of purchasing the property by one Jayalakshmi and he also admits that the plaintiff purchased the property under S.No. 151/1 from Rajasekar Naidu measuring East – west 44 feet, north – south 20 feet. But he denied the suggestion that the defendant itself encroached the northern side of the property and the plaintiff is the owner of the said property, he also denied that the adjacent to the above referred property, the defendant encroached to an extent of 44 feet from east – west and to an extent of 10 feet from north to south.

23.The defendant also examined the husband of the vendor of the defendant, of course the evidence of DW3 similar lines to the evidence of

DW1 but in the cross examination he admits that the plaintiff purchased the land to an extent of 880 sq. feet covered under S.No. 151/1 from

D.Rajasekar Naidu in the year 1951 besides he admits that D.Rajasekar

Naidu handed over the possession of the property to the plaintiff on the even date. Further he made a clear admission by stating that after 4 or 5 years prior to the purchase of the land by his wife the plaintiff purchased the land from D.Rajasekar Naidu and she was put in possession by him.

24.When coming to the documentary evidence placed by both parties the plaintiff has marked Ex.A1 to A4 and defendants marked Ex.B1 to 13

Ex.B5. Ex.A1 Certified copy of registered sale deed which goes to show that Rajasekar Naidu sold the said property to the plaintiff on 9-2-1981.

Of-course the defendant is not disputing the Ex.A1. Therefore the plaintiff can rely upon the Ex.A1. Further the plaintiff marked Ex.A2 Site plan and the land of the plaintiff is shown as AEFD and the encroached portion is shown as ABCD. This document shows that the encroached portion of the defendant in the land of the plaintiff. Ex.A3 is Caveat petition sent by the defendant to the plaintiff and this document is also not disputed by the defendant. Ex.A4 is the reply notice issued by the plaintiff to one

Jayalakshmi and defendant therefore all these documents clearly supports the version of the plaintiff herein.

25.When coming to the documentary evidence placed by the defendants Ex.B1 under this document shows that on 25.2.1985 one

Jayalakshmi purchased the property from Rajasekar Naidu situated in

S.No. 151/1 and the said property of the defendant is shown as southern boundary to the property of the plaintiff. Ex.B2 is certified copy of sale deed executed in favour of defendant by Jayalakshmi and the defendant purchased the property covered under S.No. 151/1. There also the property of the plaintiff is shown as northern boundary to the property covered under Ex.B1.

26.More over the admission made by the defendant in his own evidence it is very clear that the defendant must have encroached the plaint B schedule property and made construction illegally. Though the plaintiff conducted mediation with Pws 3 and Pw4 but it went vain. Therefore it is certainly the plaintiff proved her right and title over the plaint “A and B” 14 schedule properties and he is entitled to get relief of delivery of possession of plaint B schedule property to the plaintiff, further the plaintiff is entitled for grant of mandatory injunction for removal of illegal construction made by the defendant in the plaint “B” schedule property and to restore the same to the original condition and deliver the possession of the “B” schedule property to the plaintiff. Accordingly this point is answered in favour of plaintiff and against the defendant.

27.I perused the judgment of the lower court, the lower court rightly scrutinized the evidence of both parties the defendant has encroached the plaint schedule properties of the plaintiff illegally and the plaintiff is entitled for grant of mandatory injunction for removal of the illegal construction and also delivery of the possession of vacant site to the plaintiff. Therefore, the above observations of the lower court are convincing and this court see there are no grounds what-so-ever to interfere with the findings of the lower court at this state and the findings of the trial court are sustainable in law and on facts. Accordingly this point is answered.

. POINT No.3:28 .In the result the appeal has been dismissed by confirming the judgment and decree passed by the learned II Additional Junior Civil

Judge, Chittoor in O.S.No.1335 /2002 dated 14-8-2007.

Dictated to the Personal Assistant, transcribed by him, corrected by me

and pronounced in Open Court, this the 6t h day of January, 2016.

VIII ADDL. DISTRICT JUDGE,

15

FAC- IX Addl. District Judge

CHITTOOR.

Appendix of evidence

NIL

VIII ADJ

FAC; IX ADJ / CTR

Draft Judgment in

AS 7/09 dt. 6-1-2016

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IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE ::

CHITTOOR

Present : Sri K. Chidananda,

VIII Additional District & Sessions Judge FAC/ IX Additional District & Sessions Judge, Chittoor.

Thursday, the Thirty First (31st) day of December, 2015

A.S.No. 04 of 2006

Between: 1.C. Guravaiah Naidu 2.Dhanamjaya Naidu

.. Appellants/Plaintiffs

And : 1.V.C. Munaswamy Naidu (died)

2.Dhinabhooshana Naidu ... Respondents/Defendants

On appeal from the Judgment and Decree dated.02.11.2005 of the I Additional Junior Civil Judge of Chittoor, made in;

O.S.No. 961 of 1999

Between: 1.C. Guravaiah Naidu 2.Dhanamjaya Naidu

.. Plaintiffs

And : 1.V.C. Munaswamy Naidu (died)

2.Dhinabhooshana Naidu ... Defendants

This Appeal coming on for final hearing before me on 18.12.2015 and upon perusing the material papers on record and grounds of appeal and upon hearing the arguments of Sri.K.P. Kumaraswamy, Advocate

for appellants and of Sri T.K.Sundarakumar, Advocate for the

respondents and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

2

This is an appeal preferred by the appellants/plaintiffs against the Decree and Judgment passed by the I Additional Junior

Civil Judge, Chittoor in O.S.No. 961/1999 dated.02.11.2005. By the

impugned Judgment, the learned trial Judge dismissed the suit with costs.

02.Having been aggrieved by the said judgment, the appellants/plaintiffs has filed the present appeal. The appellants herein are the plaintiffs and the respondents herein are the defendants in the trial court.

03.For the sake of convenience and to avoid confusion, the parties would be referred to in this judgment as they were arrayed

before the trial court.

04.The case of the plaintiff as can be seen from the allegation in the plaint in brief are as follows:

The contention of the plaintiff is that the plaint B schedule property is the ancestral property of the plaintiff and their joint family and they are in possession and enjoyment of the same since generations as absolute owners. The plaintiff constructed a terraced house in A1,

A2 and A3 plaint plan, a tiled house in A4, A5, A6 and A7 and they have got vacant place, biogas plant and bore well with 3 HP electric motor pumpset as shown in the rough sketch which is marked as

Ex.A1. The defendants have got a thatched house as shown in the rough sketch as B1, B2, B3, there’re is a private lane existing in ABCD plaint sketch, in plaint ‘A’ schedule since times immemorial for the exclusive use of the plaintiff to approach the road from his tiled house and the plots containing bio gas plant, bore well etc., the plaintiffs have 3 no other way to approach their terraced house, tiled house, bathroom and also the biogas plant, bore well and the place which is used for tethering cattle, except the above said 4 feet width lane which is of 80 feet of length.

The defendants are attempting to construct a pucca house in the place of their thatched house, while doing so, they are trying to encroach into the said plaint A schedule lane and to reduce the width of the lane from 4 feet to 2 feet. On 22.09.1999 the defendants attempted to lay a foundation by encroaching two feet to the west of their property I,e, in the suit schedule lane and the same was prevented by the plaintiffs. Since the defendants may renew their acts by encroaching the plaint ‘A’ schedule lane, the plaintiff filed this suit for permanent injunction in respect of plaint ‘A’ schedule lane.

05.Per contra the defendants filed their written statement, denying the allegations made against them and all the plaint averments. They contended that there is no lane in existence as mentioned in the rough sketch and the entire property to the east of the plaintiffs house belongs to the defendants and they purchased the same under a title deed dated.3.8.1935 with specific boundaries. The rough sketch filed by the plaintiff is absolutely false and there is an entrance to the plaintiffs house from the Raja veedhi towards northern side and the same was omitted by the plaintiff intentionally in the rough sketch as well as in the plaint averments.

The plaintiffs and their ancestors have been tethering their cattle on the northern side and at no point of time, they tethering their cattle in the plaint ‘B’ schedule property. The property purchased by the defendants lies immediately to the house of the plaintiffs towards the eastern side and there is no passage or lane in existence in between the 4 house of the plaintiffs and the defendants. They never laid any underground pipeline.

They further contended that the 1st defendant is an aged person and practically confined to bed and is not in a position to move. After demolition of their thatched house, the defendants wanted to construct a new house, hence they were forced to take shelter under the trees, and at that juncture to stop the construction and to harass the defendants, the plaintiffs filed this suit. The defendants left three feet width place on the western side of their house for the purpose of light and air.

The plaintiffs have no right, title or interest or possession of the suit schedule lane, there is no such lane in existence. There are no windows or doors towards the disputed place from the plaintiff house, hence the absence of windows or doors of the plaintiff is a clear proof of the absence of any form of rights of the plaintiffs. Since they have no title or possession over the suit lane, the plaintiffs are not entitled for permanent injunction. Hence for all the above reasons, the suit is liable to be dismissed.

06.During the course of trial, the trial court has framed the following issues:

1) Whether the plaint iff s are enti tl ed to perpetua l injunc ti on as prayed for?

2) What reli ef, the plain ti ffs are entit led to in the facts and circum stance s of the case?

07.During the course of trial, the trial court has examined

P.Ws.1 to 4 and got marked Ex.A1 to A10 on behalf of the plaintiff. On behalf of the defendants, D.W.1 was examined and Ex.B1 was marked.

Ex.X1 was marked.

08.After assessing the entire evidence on record, the learned 5 trial Judge has dismissed the suit with costs as mentioned supra.

09.Having been aggrieved by the said judgment, the appellants/plaintiffs have filed the present appeal.

10.Heard arguments on both sides. The learned counsel for the plaintiff vehemently argued that this is the suit filed for permanent injunction against the defendants restraining them from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule properties. The dispute is only with regard to the passage which is situated in between the house of the plaintiffs and defendants.

The case of the plaintiff is that the suit property is their ancestral properties.

11.He also argued that the commissioner report filed by the commissioner revealed that there is a passage reveals that there is a passage existing more than 9 years. Further Ex.A2 resolution revealed that the plaintiff has taken permission from gram panchayat to lay a public lane. Further the evidence of P.Ws.3 and 4 is also clearly supporting the version of the plaintiffs with regard to the usage of passage by the plaintiffs. He also argued that Ex.A1 to A10 clearly supported the version of the plaintiff. Therefore the plaintiffs are entitled for grant of permanent injunction. He also argued that the lower court dismissed the suit without considering the evidence of the plaintiffs.

12.On the other hand the learned counsel for the defendants vehemently argued that this is the suit filed by the plaintiff for grant of 6 permanent injunction. Therefore the initial burden is on the plaintiffs to prove that they are in possession and enjoyment of the disputed lane on the date of filing of the suit and the plaintiff have to prove that they have got title over the suit property. He also argued that admittedly the suit is not filed for declaration of easementary right over rastha and the plaintiffs have not added neighbors of the defendant in the suit.

13.He also argued that Ex.A9 is the document of the defendant and the plaintiffs cannot rely upon the documents of the defendants.

More over in Ex.A9 it is clear that on the western side of the property of the defendant there is a property of plaintiff that shows there is no passage at all in between house of the plaintiffs and defendants. In those circumstances how the public lane was laid about 16 years ago when there is a house of the defendants.

14.More over in the cross examination P.W.1 clearly admits that there is a passage on the western side of his house to reach

Rajaveedhi. More over the commissioner report cannot shows the rights of the parties. All the documentary evidence placed by the plaintiff do not disclose the absolute right of the plaintiffs over the suit passage and as the suit is filed for permanent injunction the relief sought by the plaintiffs cannot be granted and the trial court disbelieved the evidence of the plaintiffs and dismissed the suit with costs. Therefore there are no merits in this appeal the appeal is liable to be dismissed with costs.

15. Basing on the rival contentions the following points are settled for consideration:

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1) Wheth er the plaintiffs are entitled for grant of perm an ent injun ction against the defen da nts as praye d for ?

2) Wheth er the findings of the lower court are sustain able in law and on facts?

3) To what relief?

POINT NO.1:

16. This is the suit filed by the plaintiffs for grant of permanent injunction against the defendants restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint ‘B’ schedule properties. Therefore the initial burden is on the plaintiff to prove their possession and enjoyment over the said properties on the date of filing of the suit. Otherwise the plaintiffs are not entitled for the discretionary and equitable relief of permanent injunction.

17.The plaint schedule properties are shown as ‘A’ and ‘B’ schedule. Plaint ‘A’ schedule property is lane measuring East-West 4 feet north to south 80 feet situated in Kolavooru village of Gudipala mandal and the plaint ‘B’ schedule property is a vacant space and residential terraced tiled house bearing S.C. No. 306, bore well fitted with 3 HP motor and Biogas plant and tamarind tree. The dispute is only with regard to the plaint ‘A’ schedule property which is a lane.

18.Admittedly this is not the suit filed for claiming easementary right by the plaintiffs over the disputed rastha which is shown as plaint ‘A’ schedule property. But it is the suit of permanent injunction simplicitor. Therefore it is the initial burden is on the plaintiffs to prove that there is an existing lane which is in his 8 possession since long time prior to the filing of the suit and defendants have no right over the same.

19.Coming to the evidence placed by the plaintiffs, plaintiffs have examined P.Ws.1 to 4 and marked Ex.A1 to A10. So with this evidence whether the plaintiffs could able to prove the exclusive right over the plaint ‘A’ schedule property or not.

20.The strong contention of the plaintiffs is that there is a private lane existing which is shown as ABCD in the plaint rough sketch in the plaint ‘A’ schedule properties since time immemorial and it is in exclusive use of the plaintiffs to approach the Rajaveedhi from the tiled house of the plaintiffs and the plots containing Biogas plant and bore well etc and the plaintiffs have no other way to approach the terraced house, tiled house, bath room , Biogas plant, bore well and the place which is used for tethering the cattle.

21.To prove the said contentions the 2nd plaintiff was examined as P.W.1, in the chief examination he clearly testified about the existence of plaint ‘A’ and ‘B’ schedule property and they were in exclusive possession and enjoyment of the plaintiffs since time immemorial. But where as in the cross examination the same witness admits as follows:

“That there is no docu me ntary evide nc e to show that there is a lane betwee n my house and the hou se of the defe nd ant. It is true that there is no recitals in Ex.P9 Sale deed regardin g the pass ag e in the A sche dul e lane”.

22.Therefore the above admission made by the plaintiff, it is 9 very clear that the plaintiffs have no documentary evidence to shows that there is a lane between their house and defendants house. Further the plaintiffs are mainly relied upon Ex.A9 which is the document of the defendant but not the plaintiffs. Even in Ex.A9 that there are no recitals with regard to the disputed passage. Therefore certainly the plaintiffs cannot rely upon Ex.A9 which is the main document placed by the plaintiffs.

23.In the cross examination, P.W.1 further admits that Ex.A9 sale deed relates to the properties of the defendants and the property covered under Ex.A9 is situated towards eastern side of their house.

Further he admits that the contents of Ex.A9 are true, he obtained the said document prior to filing of the suit. Therefore this admissions made by the 2nd plaintiff certainly goes to the root of the case of the plaintiff and on the other hand the plaintiffs cannot relied upon Ex.A9 which is the document of the defendants.

24.Further P.W.1 admits that the ad interim injunction granted by the lower court was vacated by the Hon’ble District Judge in an appeal preferred by the defendants against the said order. Therefore these admissions also is very clear the interim injunction granted by the lower court at the time of filing of the suit was also vacated and this fact is also add fatal to the case of the plaintiff.

25.Further in the cross examination P.W.1 also admits that there is no documentary proof to show that he is the absolute owner of the plaint ‘B’ schedule property also. On the other hand the defendants denied the contentions of the P.W.1 and put suggestion that there are no revenue records or panchayat records to show that P.W.1 has got 10 right and title over the lane in order to create rights and P.W.1 has filed suit by creating a new right over the lane of the defendants and the house of the defendants is situated in the place where the plaintiffs are claiming right. The said suggestion was denied by P.W.1. Therefore by putting the said suggestion the defendants are claiming right over the land where the plaintiffs are claiming the existence of rasta.

26.When coming to the documentary evidence placed by the plaintiffs the plaintiffs have filed Ex.A1 to A10. Ex.A1 is the plaint rough sketch. Admittedly Ex.A1 is not a document of title since it is only a rough sketch, the plaintiffs cannot rely upon those documents.

Further the plaintiffs has marked Ex.A2 resolution passed by the

Basavapalle gram panchayat. Of course this document was marked subject to objection. More over this document is not a document of title. Further this document cannot create the rights of the plaintiffs over the disputed rastha and as it is only a resolution. Ex.A3 is the legal notice dated.11.10.99, Ex.A4 is the ration card issued in the name of the first plaintiff. Ex.A5 to A7 are the electricity demand notices issued in the name of the first plaintiff. Ex.A8 is the electricity connection pass book for the electricity charges stands in the name of the first plaintiff.

Ex.A10 is the certified copy of the voters list.

27.On perusal of these documents, it is clear that they are not the document of title and hence the plaintiffs cannot rely upon those documents. In the above discussion it is already observed that Ex.A9 which is the certified copy of sale deed dated.16.6.1952 which belongs to defendants. Therefore the plaintiffs cannot rely upon the documents of defendants. On perusal of documents placed by the plaintiffs i.e.Ex.A1 to A10 it is clear that none of the documents do not disclose 11 that there is a passage between the plaintiffs house and defendants’ house and it was used by the plaintiffs time immemorial.

28.The plaintiffs further examined P.Ws.2 to 4 who is the third parties to the suit and of course in the chief examination they clearly deposed that there is a suit passage is inexistence since time immemorial being used by the plaintiffs and the plaintiffs have been using the said passage from Rajaveedhi to take their cows into the backyard and the defendants have no right and title or possession or use of the suit passage at any time.

29.PW.2 clearly, admits in the cross examination that there are no documents to show that the suit passage belongs to the plaintiffs and this fact of admission made by P.W.2 clearly do not support the case of the plaintiffs. Further the facts admitted by the P.Ws.3 and 4 in the cross examination also do not support the case of the plaintiffs herein.

30.Since the plaintiffs herein have not produced relevant documentary evidence to show their right and title over the suit passage (plaint A schedule property) the original evidence of the

P.Ws.2 to 4 cannot create the right of the plaintiffs over the disputed rastha.

31.On the other hand the strong contention of defendants is that they have purchased a thatched house and vacant site and Ex.B1 sale deed to the west of the house of the plaintiffs and when an intention to construct a pucca terraced house they have demolished the thatched house,. Thereafter the plaintiffs are claiming 4 feet width 12 passage a there was no such lane is in existence previously. The defendants also contended that the plaintiff have got another way towards the west of their house and there is a main entrance towards the terraced house from Rajaveedhi.

32.To prove those contentions the defendants examined DW.1 who is the D2 in the main suit and he clearly testified those contentions in his evidence and in support of his evidence he has marked Ex.B1 which is the Regd. Sale deed dated.03.08.1935 the plaintiffs cross examined this witness at length.

33.DW.1 in the cross examination deposed that from

Rajaveedhi the plaintiffs can go their backyard, bathing place, Biogas plant and bore well. Further the suggestions put to DW.1 during the cross examination could reveal that defendants purchased 5 ankanams of property out of which 2 ankanams were left to Bodebba naidu and said Bodebba naidu has got 2 ankanams of property towards north of the defendants house i.e south of the main road, that means according to the plaintiffs, house of the defendants is not situated by the side of the road i.e. Rajaveedhi. But the plaint rough sketch is different which would goes to show that the house of the defendants is situated by the side of the main road i.e. Rajaveedhi.

34.Though the plaintiffs cross examined DW.1 at length but the plaintiffs could not elicit anything from DW.1 to prove their possession over the disputed rastha.

35.It is settled law the plaintiff who has filed suit for permanent injunction simplicitor has to prove the possession and 13 enjoyment of the disputed rastha on the date of filing of the suit and the court has to consider the title of the plaintiffs incidentally. In the case on hand, admittedly the plaintiff have not file any documents to show their right and title over the disputed rastha which is shown as plaint ‘A’ schedule properties.

36.Even P.W.1 also clearly admits in his cross examination he has no documentary evidence to prove his right and title over the plaint ‘A’ schedule property. Therefore it is clear that the plaintiffs were seeking equitable relief of permanent injunction failed to prove their right and title much less possession over the suit schedule property. In those reasons, certainly the plaintiffs are not entitled for the discretionary and equitable relief of permanent injunction against the defendants in respect of the plaint ‘A’ schedule property i.e, the disputed rastha.

37.Further the plaintiffs without filing the suit for easementary, simply filed this suit for permanent injunction and claiming easementary right which is against the Law. The argument put forth by the learned counsel for the plaintiffs is not convincing and the argument put forth by the defendant is supported the version of the defendant. Therefore this court is of the opinion that the oral and documentary evidence placed by the plaintiffs is not cogent and conniving and certainly the plaintiffs are not entitled for discretionary and equitable relief of permanent injunction against the defendants and accordingly this point is settled in favour of the defendant and against the plaintiffs.

38. POINT NO.2:

14

I have perused the Judgment of the lower court, the lower court rightly observed that the plaintiffs seeking equitable relief of permanent injunction and approach the court with unclean hands and the plaintiffs failed to prove their right, title and possession over the disputed rastha and accordingly the lower court dismissed the suit of the plaintiffs. These observations made by the trial Judge are convincing. This court find that there are no grounds what so ever to interfere with the findings of the trial Judge at this stage. Accordingly, the Judgment of the lower court is sustainable in law and on facts.

Accordingly this point is answered.

39. POINT NO.3:

In the result, this appeal has been dismissed with costs by confirming the Judgment and Decree passed by the learned I

Additional Junior Civil Judge, Chittoor in O.S.No.961/1999 dated

02.11.2005.

Dictated to the Personal Assistant, transcribed by her, corrected and pronounced by

me in open court, this the 31st day of December, 2015.

VIII Additional District Judge, FAC/IX Additional District Judge, Chittoor.

APPENDIX OF EVIDENCE

No oral or documentary evidence was adduced in this appeal.

VIII Additional District Judge,

FAC/IX Additional District Judge, Chittoor.

1

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL

-CUM- VIII ADDL. DISTRICT JUDGE, CHITTOOR.

Present: Sri K. Chidananda,

Chairman, Motor Accident Claims Tribunal -cum- VIII Additional District Judge, Chittoor.

Monday, the Twenty Nineth (29th) day of May, 2017

M.V.O.P. No. 299 of 2015

Between:

1.Smt.T.Radha

2.Smt.M.Aruna

3.Smt.M.Lakshmidevi

4.T.Vinod Kumar

5.T. Ranjith Kumar ... Petitioners

And:

1.Satharam Sunil

2.Satharam Ramamurthy

3.M/s. TATA AIG General Insurance Company Limited, rep. by its Divisional Manager, having its office at 4th floor, My home Tycoon, Begumpet, Hyderabad.

… Respondents

This petition came up before me for final hearing on 22.05.2017 and upon perusing the petition, written statements and other relevant papers on record and upon hearing the arguments of Sri C.Sudhakar Guptha, Advocate for petitioners and of Sri E.Sugunasekhar Reddy, Smt.P.Hima Bindu, Advocates for R1 and R2, and Sri K.Suresh, Advocate for R3 and the matter having stood over for consideration till this day, this Court made the following:

A W A R D

This is a claim petition filed under Sec. 166 of the Motor Vehicles

Act claiming compensation of Rs.10,00,000/- on account of death of

T.Chengaiah in a motor vehicle accident which occurred on 18.05.2015 at about 7.00 P.M. near Varadappa Naidu Mango gardens, on Aragonda – Madhavaram Road, Thavanampalli Mandal, Chittoor district, involving the crime vehicle TATA ACE bearing No. AP-03-TC-5933.

2. The brief facts of the petition are as follows:

On the fateful day i.e., on 18.05.2015 at about 7.00 P.M. while the deceased after completion of his work at Diguvamagam was 2 proceeding to his village Swasthik Nagar, Madhavaram Post on his motor cycle bearing No. AP-03-BE-5634 as pillion rider driven by one

Chandra and when the motorcycle reached near near Varadappa Naidu

Mango gardens, on Aragonda – Madhavaram Road, at that time the crime vehicle TATA ACE bearing No. AP-03-TC-5933 driven by its driver in high speed in a rash and negligent manner and hit the motor cycle of the deceased as a result the deceased fell down on the road and the deceased and the rider of the motor cycle sustained injuries. They were immediately removed to Apollo Hospital, Aragonda, and on the way the deceased Chengaiah succumbed to injuries.

A case in Crime No.36 /2015 U/Sec. 304-A of IPC was registered by the S.H.O., Thavanampalli Police Station against the driver of the crime vehicle.

The further contention of the petitioners is that the deceased was the sole breadwinner of the family and he was working as a mason and getting Rs.500/- per day besides he has some landed property and getting Rs.2,00,000/- per annum. Due to the sudden death of the deceased, all the petitioners lost the sole breadwinner of the family and also the love and affection of the deceased and hence all the respondents are liable to pay compensation of Rs.10,00,000/- to the petitioners.

3. The 2nd respondent filed written statement by denying all the material allegations of the petition. R1 filed memo adopting the written statement of R2.

The contention of R2 is that the petition is bad for nonjoinder of necessary parties as all the petitioners failed to add the insured and insurer of the motor cycle of the deceased. Further they contended that R1 had valid insurance policy on the date of accident and there is 3 no negligence on the part of the driver of crime vehicle, therefore, R3 is liable to pay the compensation to the petitioners.

4. The 3rd respondent filed written statement.

The learned counsel for the petitioners vehemently argued that the evidence of RW.1 is very clear that the counsel for R3 cannot file written statement and the written statement has to be filed by the authorized signatory.

So, in that connection R3 has filed petition in I.A.No. 59/2017 and after contest the said I.A. was dismissed and this court did not grant permission for R3 to receive the written statement which contain the signature of authorized signatory as it is filed at a very bela6ted stage i.e., at the time of arguments. Therefore, it is clear that the written statement filed by the counsel for R3 is not considered and the written statement filed by the authorized signatory of R3 company is not received by this court and hence it is clear that the 3rd respondent has no pleadings at all to prove his case.

5. Basing on the above pleadings, the following issues are framed for trial:

1. Whether the accident occurred due to rash and

negligent driving of the driver of the crime vehicle ?

2. Whether the petitioners are entitled to any

compensation, if so, to what amount and from whom ?

3. To what relief ?

6. During the course of enquiry, on behalf of the petitioners PWs.1 and 2 were examined and Exs.A.1 to A.5 and Ex.X.1 were marked. On behalf of the respondents RWs.1 and 2 were examined and Exs.B.1 to

B.3 were marked.

7. Heard arguments of both sides.

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8. The learned counsel for the petitioners vehemently argued that this O.P. was filed claiming compensation of Rs.10,00,000/- for the death of the deceased. The petitioners proved the accident by examining PWs.1 and 2 and by marking Exs.A.1 to A.5 and Ex.X.1. He also argued that RW.1 in his cross-examination categorically admits that his Zonal Manager is authorized to file written statement on behalf of R3 but not his counsel. Admittedly the first written statement filed by the counsel for R3 but not by the Zonal Manager. Therefore, the first written statement can not be taken into consideration. Though the 3rd respondent examined RWs.1 and 2 by marking Exs.B.1 to B.3, without pleadings he cannot rely upon such evidence.

9. On the other hand, the learned counsel for R3 argued that the advocate for R3 is entitled to file written statement. Further, the evidence of RWs.1 and 2 and Exs.B.1 to B.3 is very clear that the driver of the crime vehicle had no driving licence on the date of accident and hence R3 is not liable to pay compensation to the petitioners.

10. ISSUE No.1:

This petition is filed U/Sec. 166 of M.V.Act, therefore, the initial burden is on the petitioners to prove the accident occurred was only due to rash and negligent driving of the driver of the crime vehicle TATA

ACE bearing No. AP-03-TC-5933, otherwise the petitioners are not entitled for any claim under this petition.

11. To prove the said fact, the petitioners examined PW.1 who is the wife of the deceased. Her evidence is very clear that the accident occurred due to the rash and negligent act of the driver of the crime vehicle. In support of her evidence, PW.1 has marked Ex.A.1 certified copy of First Information Report, Ex.A.2 certified copy of Charge sheet and Ex.A4 certified copy of Accident Information Report. On perusal of 5 these documents, it is clear that all these documents are clearly supporting the version of the petitioner. But, in the cross-examination the same witness admits that she has not witnessed the accident. In support of the evidence of PW.1, the petitioners examined PW.2 who is a direct eye witness for the accident and his evidence is very clear that the accident occurred only due to rash and negligent act of the driver of the crime vehicle. The respondents cross-examined this witness at length and put a suggestion that the accident took place due to his rash and negligent driving and there was no fault on the part of the crime vehicle. The said suggestion was denied by PW.2 and he has stick on to his chief-examination. Therefore, the evidence of PW.2 clearly supports the version of PW.1 with regard to the accident.

12. On the other hand, the respondents examined RWs.1 and 2.

RW.1 is the Senior Executive – Legal claims of R3’s company and RW.2 is Senior Assistant in RTA office. Admittedly RWs.1 and 2 are not eye witnesses for the accident. Therefore, the respondents cannot rebut the evidence of the petitioners.

13. On the other hand, the petitioners by examining PWs.1 and 2 and marking Exs.A.1, A.2 and A.4 could able to prove the fact that the accident occurred only due to the rash and negligent driving of the driver of the crime vehicle. Accordingly this point is settled in favour of the petitioners and against the respondents.

14. ISSUE No.2:

In view of my findings on issue No.1 that the accident occurred only due to the rash and negligent act of the driver of the crime vehicle, the petitioners are entitled for compensation for the death of the deceased Chengaiah.

6

15. Now it has to be decided what is the just compensation payable to the petitioners. The compensation should be awarded reasonably and proportionately for the death of the deceased and it should be neither excessive nor any meager amount.

16. To prove the death of deceased, the petitioners examined PWs.1 and PW2. PW.1 is the wife of the deceased and PW.2 is the direct eye witness for the accident. PW.2 clearly deposed that the deceased died in the accident. In support of the evidence of PW.2, the petitioners marked Ex.A3 Postmortem Certificate and this document clearly supports the version of the petitioners. On the other hand, the respondents are not denying the death of the deceased. Therefore, by virtue of the evidence of PWs.1 and 2 and Ex.A3 the petitioners could able to prove the death of the deceased.

17. Now it has to be decided as to what amount the petitioners are entitled towards compensation for the death of the deceased under the both heads i.e., special damages and general damages.

18. Under the head of special damages, the petitioners are claiming damages towards transport expenses. It is the evidence of PW.1 that soon after the accident the deceased was shifted to Apollo Hospital,

Aragonda and on the way to the hospital the deceased succumbed to the injuries and hence they incurred some expenses towards transportation. This fact is not denied by the respondents. Therefore, the petitioners must have incurred some expenses towards transport and hence awarding of Rs.10,000/- under this head is just reasonable, and accordingly, the petitioners could be granted Rs.10,000/- under this head.

19. The petitioners also claimed damages towards funeral expenses of the deceased. It is the evidence of PW.1 is that the deceased died in the 7 accident and hence they incurred some expenses towards funeral of the deceased. Therefore, awarding of Rs.25,000/- under this head is just reasonable. Accordingly, the petitioners could be granted Rs.25,000/- under this head.

20. The petitioners also claimed damages under the head of damages to the clothes and articles of the deceased. It is the evidence of PW.1 that as the deceased died in the accident, the clothes and articles of the deceased got damaged. The petitioners already proved the accident and also the death of the deceased. Therefore, the clothes and articles of the deceased must have been damaged in the accident and awarding of

Rs.5,000/- under this head is just reasonable. Accordingly the petitioners could be granted Rs.5,000/- under this head.

21. The petitioners also claimed damages under the head of loss of consortium for the 1st petitioner. It is the evidence of 1st petitioner that she is the wife of deceased and due to the sudden death of the deceased she has lost consortium. It is admitted fact that the 1st petitioner is the wife of deceased. Therefore, due to the sudden death of the deceased the 1st petitioner has lost her consortium and awarding of Rs.1,00,000/- under this head is just reasonable. Accordingly, the 1st petitioner could be granted Rs.1,00,000/- under this head.

22. Thus in total under the special damages, the petitioners could be granted Rs. 1,40,000/- (10,000 + 25,000 + 5,000 + 1,00,000/-).

23. When coming to the general damages, the petitioners are claiming damages under the head of loss of love and affection of the deceased. It is the evidence of PW.1 that due to the sudden death of the deceased, all the petitioners have lost the love and affection of the deceased. Any amount granted under this head will not compensate the loss of love and affection. However, awarding of Rs.1,00,000/- under this head is 8 just reasonable. Accordingly, the petitioners could be granted

Rs.1,00,000/- under this head.

24. The petitioners also claimed damages under the head of dependency and loss of estate of the deceased. It is the evidence of

PW.1 that prior to the accident her husband was working as mason and he was getting Rs.500/- per day, besides the deceased had some landed properties and getting Rs.2,00,000/- per annum on those lands. But, here the petitioners failed to produce any documentary evidence to show the income of the deceased. It is settled law that if the claimants failed to prove the income of the deceased, the income of the deceased will be fixed to that of the income of the unskilled labour @ Rs.3,500/- per month. Hence, in this petition the income of the deceased is fixed @

Rs.3,500/- per month.

25. The age of the deceased is mentioned in the petition as 50 years.

Even in the postmortem report the age of the deceased is mentioned as 50 years. Therefore, the said age has to be taken into consideration for fixing the multiplier.

26. As per Sarla Verma’s case reported in 2009 (6) SCC 121 the multiplier that would be applied in this case is ‘13”.

In this petition, there are 5 claimants. Therefore, as per Sarla

Verma’s case 1/5th income of the deceased shall be deducted from the total income of deceased.

Therefore, all the petitioners are entitled for the following damages:- 3,500 x 12 = 42,000 – 8,400 = 33,600 X 13 = 4,36,800/-.

Thus, in total under the head of dependency and loss of estate, the petitioners are entitled to Rs.4,36,800/-.

9

27. Thus, under the head of general damages, the petitioners could be granted Rs.5,36,800/- in total. (Rs.1,00,000/- + 4,36,800/-).

28. Thus, under both heads i.e., special damages and general damages, the petitioners could be granted the following damages:

1. Damages towards transportation Rs.10,000-00

2. Damages towards funeral expenses Rs.25,000-00

3. Damages towards clothes and articles Rs.5,000-00 4 Damages towards consortium to the 1stRs.1,00,000-00 petitioner

5. Damages towards loss of love and affection is Rs.1,00,000-00

6. Damages towards loss of estate and Rs.4,36,800-00 Dependency Total : Rs. 6,76,800-00

Thus, all the petitioners are entitled for Rs.6,76,800/- under both the heads.

29. Now it has to be decided what percentage of interest the petitioners are entitled for the said awarded compensation amount. As per the judgment of the Hon’ble Supreme Court of India reported in

Tamilnadu Transport Corporation Limited vs. Raja Priya – 2005 (4)

ALT 14 SC, the petitioners are entitled to simple interest @ 7.5% p.a.

Therefore, the petitioners are entitled to simple interest @ 7.5% p.a. for the said awarded amount.

30. Now it has to be decided who has to pay the said awarded amount to the petitioners. In this petition the respondents 1 and 2 filed written statements and strongly contended that there is no negligence on the part of the driver of the crime vehicle and the accident took place only due to the negligent driving of the rider of the motor cycle and the policy of the crime vehicle was in force on the date of accident and 10 hence they are not liable to pay compensation to the petitioners. To prove those contentions, the respondents 1 and 2 failed to examine any witnesses nor marked any documentary evidence. Therefore, the respondents 1 and 2 could not prove their contentions.

31. On the other hand, R3 contended that the accident occurred only due to the rash and negligent act of the rider of the motor cycle and the driver of the crime vehicle had no Driving licence on the date of accident, hence R3 is not liable to pay compensation. R3 examined

RW.1 who is the Executive-Legal of R3 company. This witness in the cross-examination clearly admits that his counsel cannot file written statement personally and only the Zonal Manager is authorized to file written statement. Therefore, the evidence of RW.1 cannot prove their contentions without any written statement. Admittedly R3 filed

I.A.No.59/2017 when the matter is posted for arguments and it was dismissed on merits, therefore the written statement filed by the counsel for R3 was not considered and when there are no pleadings the oral evidence of RW1 cannot be taken into consideration, hence R3 cannot rely upon the evidence of RW.1. R3 also examined RW.2 who is the Senior Assistant in RTO office, Chittoor, and his evidence goes to show that the driver of the crime vehicle had no Driving licence on the date of accident. RW.2 has filed Ex.X.1 and this document clearly supports the version of RW.2. Therefore, it is clear that the driver of crime vehicle had no driving licence on the date of accident.

32. At this juncture, it is pertinent to rely upon the decision reported in Kusumlatha and others Vs. Satbir and others - 2011 ACJ p.9 to 6 (SC)wherein the Hon’ble Supreme Court of India observed that :

“In respect of dispute about licence the Tribunal has held and in our view rightly that the insurance company has to pay and then may recover it from the owner of the vehicle. This court is affirming that 11 direction in view of the principles laid down by a three Judge Bench of this court in the case of National Insurance Co., Ltd., Vs. Swaran

Singh – 2004 ACJ 1 (SC).”

33. As per the above decision of law, if there is a dispute with regard to the Driving licence of the driver of the crime vehicle it is necessary to order directing the R3 to pay the award amount to the petitioners and later recover the same from R1 and R2. Hence, in this case also there is a dispute with regard to the Driving licence. Therefore, this court hold that it is right, just and necessary to direct the R3 insurance company to pay the award amount to the petitioners initially and later recover the said amount from R1 and R2. Therefore, in view of the above discussion, it is clear that the petitioners by examining PWs.1 and 2 and by marking Exs.A.1 to A.5 could able to prove their contentions.

Hence, the R3 is directed to pay the amount to the petitioners initially and later recover the same from R1 and R2 as per law. Accordingly this issue is answered in favour of the petitioners and against the respondents.

34. ISSUE No.3:

In the result, this petition is allowed in part with

proportionate costs by granting the following reliefs:

1) All the petitioners are entitled for a total compensation of

Rs.6,76,800/- (Rupees Six lakh Seventy six thousand eight hundred only).

2) Out of the compensation awarded, the 1st petitioner is entitled for the amount of Rs.4,76,800/- and the petitioners 2 to 5 are entitled for Rs.50,000/- each.

3) All the petitioners are entitled to interest @ 7.5% p.a. on the amount awarded from the date of petition till the date of deposit.

12

4) The 3rd respondent is directed to deposit the amount awarded within 30 days from the date of this order and recover the same from R1 and R2 as per law.

5) On making such deposit, the 1st petitioner is entitled to withdraw an amount of Rs.3,76,800/- with costs and interest initially, and the rest of the amount shall be kept in fixed deposit in any

Nationalized Bank for a period of one year or until further orders.

6) The petitioners 2 to 5 are permitted to withdraw their share of

Rs.50,000/- each immediately.

7) Rest of the petition claim is dismissed without costs.

8) Advocate’s fee is fixed at Rs.2,000/-.

9) This award is subject to any compensation awarded under Sec.

140 of the MV Act.

10) The petitioners are not entitled for any interest for a period where the petition was dismissed for default and till it was restored, if any.

11) This award is subjected to payment of DCF if any.

Dictated to the Stenographer, transcribed by him, corrected

by me and pronounced in Open Court, this the 29 th day of May,

2017.

Sd/- K.Chidananda

Chairman, Motor Accident Claims Tribunal -cum- VIII Additional District Judge, Chittoor.

APPENDIX OF EVIDENCE:

Witnesses examined on behalf of the

Petitioners: Respondents: PW.1 : T.Radha RW.1 : M.Eswara Reddy PW.2 : K.Chandra RW.2 : K.G.Usharani 13

EXHIBITS MARKED ON BEHALF OF THE

Petitioners: Ex.A.1 : Certified copy of F.I.R. in Crime No.36/2015 of Thavanampalle P.S., dt.18.05.2015. Ex.A.2 : Certified copy of Charge sheet in C.C.No.322/2015 on the file of IV Addl.J.M.F.C., Chittoor. Ex.A.3 : Certified copy of Postmortem certificate. Ex.A.4 : Certified copy of Accident Information Report. Ex.A.5 : Bunch of 4 adangals issued by mee-Seva in favour of deceased Chengaiah dt.27.09.2015

Respondents: Ex.B.1 : Copy of Insurance policy;. Ex.B.2 : Office copy of Notice issued to R1 dt.17.11.2015. Ex.B.3 : Office copy of Notice issued to R1 dt.27.05.2016.

Through Witness (R.W.2) : Ex.X.1 : Report and Authorization letter from the O/o. the Dy. Transport Commissioner, Chittoor.

Id/- K.Chidananda Chairman, MACT-cum-VIII ADJ, CTR.

1

IN THE COURT OF THE VIII ADDL. DISTRICT & SESSIONS JUDGE,

CHITTOOR

PRESENT: Sri K. CHIDANANDA., VIII Addl. District & Sessions Judge

Tuesday, this the Twenty Third (23rd ) day of May, 2017.

SESSIONS CASE No. 278 of 2016

PRC No. 23 of 2016 of IV Addl.JMFC, Chittoor. Cr. No.37/2016 of II Town PS, Chittoor.

Complainant : State, represented by the Inspector of Police, Chittoor II Town Police Station.

Names & description of : A.Rekha, age 20 years, W/o. Raju, D.No.4- the Accused 2019, Durga Nagar Colony, Chittoor.

Charges framed : Murder, punishable under Sec.302 of IPC.

Prosecution conducted by : Sri V.R.Ramakrishna, Additional Public Prosecutor, Chittoor.

Accused defended by : Smt.C.Rekha, Advocate/Legal Aid counsel

for accused.

Plea of the accused : Pleaded not guilty

Finding of the Court : Accused is found not guilty for the offence punishable under Sec. 302 of IPC.

Sentence or Order : In the result, the accused is found not guilty and she is acquitted under Section 235(1) Cr.P.C. for the offence punishable under Section 302 I.P.C. The accused shall be released forthwith if there are no other cases pending against her. M.O.1 shall be destroyed after the appeal time is over.

This Sessions Case coming for hearing before me on 22.05.2017 in the presence of Addl. Public Prosecutor for State and of Smt.C.Rekha, Advocate/Legal Aid counsel for the accused, and upon perusing the material papers on record and upon hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This is a case where the prosecution alleged that the accused has committed the offences punishable under Secs. 302 and 201 of IPC.

2

2. The brief facts of the case, as could be seen from the charge sheet, are as under:

LW.1 A.Chinna Babu is the grand father of the deceased.

The deceased Yaswanth, aged about 3 months, is the son of the accused, who is residing in D.No.4-2019, Durga Nagar colony, Near Cheruvukatta,

Chittoor town, as tenant. The character of the accused is questionable.

While so, about seven years back, the accused eloped with an unknown person and stayed at Bangalore with her paramour. About four years back, the accused came back to Chittoor by discarding her paramour by quarreling with him. Since then, the accused is moving here and there and she got pregnant and she delivered a male child by name Sai Prasad.

About one year back, as the accused is not taking care of the baby, LW.1

A.Chinna Babu took the baby and he is looking after the welfare of the child. The accused is residing in the house of LW.6 B.Mohanama as a tenant since five months. While so, about three months back the accused gave birth to another male child. The legs of baby are in bent and stout since his birth. Due to his deformities, the accused is not showing any interest to feed breast milk to the baby and providing cow milk to the baby. While so, on the night of 08.03.2016 around 10 P.M.

the accused slept in her house alone with the deceased baby. On the next day i.e., on 09.03.2016 morning at about 8.00 A.M the accused laid her baby on laundry cart of LW.9 Reeta and stated that her baby is suffering with breathing problem and he is not crying. When the accused cried, Reeta and some others gave some amount to the accused and asked her son to hospital. On that, LW.8 Jayavelu Sudha and accused took the baby to Government Hospital, Chittoor for treatment, 3 where LW.14 Dr.M.Hemanth Kumar examined the baby and stated that the baby was killed and brought to hospital and it is police case, and so, asked them to stay at the hospital. Due to fear of police, the accused escaped from the hospital with the dead baby and brought back the dead body. On that, all the public, who gathered there, have chastised the accused that she might have killed her son by throttling in order eliminate him from her life due to her questionable character and the baby is obstacle to her and also the baby is physically challenged person.

When the public chastised the accused, she took the dead body to the house of LW.1 A.Chinna Babu and laid the dead baby in front of the house and escaped. Unaware of the above, LW.1 A.Chinna Babu created the dead body. When the public expressed doubt on the death of the baby, on seeing the contusion wounds around the neck of the baby,

LW.1 A.Chinna Babu preferred complaint in the police station.

On 09.03.2016 at 8.30 P.M. on receipt of the complaint,

LW.22 one B.Prasad, Sub-Inspector of Police, Chittoor II Town P.S., registered a case in Crime No.37/2016 under Sec. 174 of Cr.P.C. and took up investigation. During the course of his investigation, he examined the witnesses and recorded their statements and also prepared an observation mahazar at the scene of offence. As the dead body of deceased was already buried in the Greamspet burial ground, he filed a requisition to the Tahsildar with request to exhume the dead body of the deceased and conduct inquest over the dead body. Accordingly, the

Tahsildar conducted exhumation of the dead body and held inquest over the dead body of the deceased at the Burial ground. After completion of inquest, the Tahsildar forwarded the dead body of deceased Yaswanth for 4 postmortem examination. LW.21 Dr.A.Latha, Civil Assistant Surgeon, who conducted postmortem examination over the dead body of deceased

Yaswanth, opined that the deceased would appear to have died of

Asphyxia and Cerebral Anoxia due to Strangulation. Basing on the opinion in her postmortem certificate, the S.I. of police altered the section of law into Sec. 302 and 201 IPC and submitted copies of express FIRS to all the concerned. Later, the Inspector of Police took up further investigation in this case and examined the witnesses and recorded their detailed statements. On 13.05.2016 at 12.00 noon the Inspector of

Police arrested the accused under the cover of mahazar. After completion of entire investigation, the Inspector of Police filed charge sheet against the accused.

3. The learned IV Addl. Judicial Magistrate of First Class,

Chittoor, has taken the case on file for the offence punishable under

Secs. 302 and 201 of IPC against the accused. After securing the presence of the accused, he furnished copies of documents to the accused under Sec. 207 Cr.P.C. The learned Magistrate found the said offences alleged against the accused are exclusively triable by the Court of Sessions and hence he committed the case to the Court of Sessions,

Chittoor in P.R.C.No. 23/2016 dated 28.09.2016. Later, the said case was numbered as S.C.No.278/2016 and subsequently the said Sessions

Case is transferred to this court for disposal according to law.

4. After appearance of the accused before this court and on hearing the learned Addl. Public Prosecutor and Defence counsel, this court find that there is a prima facie case against the accused for the offence punishable under Sec. 302 of IPC and framed charge for the said 5 offence against accused under Sec.228(1)(b) of Cr.P.C. and read over and explained the contents of the charge to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution examined PWs.1 to 20 and marked Exs.P.1 to P.26 and M.O.1 on behalf of the prosecution. On behalf of accused no witnesses were examined and no documents were marked.

6. After closure of evidence of prosecution, accused was examined under Sec.313 Cr.P.C. to enable her to answer the incriminating material available on record against her. The accused denied the evidence of prosecution and reported no defence evidence on her behalf.

7. Heard the arguments on both sides.

8. Now the points for consideration are:

1. Whether the prosecution has established the guilt of the accused for the offences punishable under Sec.302 of IPC against the accused beyond all reasonable doubt ?

2. To what relief ?

9. POINT No.1:

Whether the prosecution has established the guilt of the accused for the offences punishable under Sec. 302 of IPC against the accused beyond all reasonable doubt ?

This is a case where the prosecution alleged that the accused has committed the offence punishable under Sec. 302 of IPC. Therefore, the 6 initial burden is on the prosecution to prove those offences against the accused by producing positive and cogent evidence.

10. In this case, the prosecution has come up with voluminous evidence i.e., PWs.1 to 20 and Exs.P.1 to P.26 and M.O.1. Now, it has to be seen whether this evidence is sufficient to connect the accused with the alleged offence or not.

11. To establish the guilt of the accused, the prosecution initially examined PW.1 who is the defacto-complainant. But, on perusal of the evidence of PW.1 it is clear that he is not supporting the version of the prosecution as he turned hostile. The evidence of PW.1 is clear that he does not know anything about the facts of the case except putting his signature in the complaint which is marked as Ex.P.1. Therefore, the prosecution cannot rely upon the evidence of PW.1.

12. The prosecution also examined PWs.2 to 4, 6 to 10 as eye witnesses for the incident, but all these witnesses at one voice deposed that they do not know the facts of the case and they were not examined by the police. All these witnesses have turned hostile and they have not attributed anything against the accused. Therefore, the evidence of

PWs.2 to 4 and 6 to 10 cannot support the case of prosecution and prosecution cannot rely upon their evidence.

13. The prosecution also examined PW.5 the inquest pancha- yatdar and on perusal of his evidence it is clear that he is also not supporting the case of prosecution because he clearly admits that he does not know the contents of inquest report except his signature, which 7 is marked as Ex.P6, therefore, the prosecution cannot rely upon the evidence of PW.5 also.

14. The prosecution also examined PWs.12 and 13, who are also inquest panchayatdars. But, their evidence reveals that on 10.03.2016 police called them to burial ground and conducted inquest over the dead body of the deceased and they put signatures in the inquest report.

Ex.P.14 is the inquest report. Therefore, the evidence of PWs.12 and 13 is clear that they are not attributing anything against the accused.

Hence, the prosecution cannot rely upon their evidence.

15. The prosecution also examined PW.14 who is the V.R.O. of

Yarravaripalyam and his evidence is that on 13.05.2016 the accused came to his office and informed him that her son is disabled person and requested him for help and on the same day he visited the house of the accused and recorded the statement of the accused. Ex.P.17 is the statement of accused. Later he gave report to the police. Ex.P.16 is the report given by him to the police. Later, he accompanied the police to the scene of offence and police observed the scene. Therefore, the evidence of PW.14 is only with regard to giving report to the police under Ex.P.16 and recording the statement of accused under Ex.P.17. Further, the evidence of PW.14 does not reveal as to where he has recorded the statement of accused and in whose presence. Therefore, the prosecution cannot rely upon Ex.P.17 the statement of accused.

16. The prosecution also examined PW.15 who is the Tahsildar, and his evidence is that on 10.03.2016 at about 11 A.M. he and V.R.O.

8 and two mediators proceeded to burial ground and conducted inquest over the dead body of the deceased by getting excavated the body of the deceased. Ex.P.14 is the inquest report. All the panchayatdars opined that the deceased died due to lack of mother milk. Therefore, the evidence of PW.15 is also not attributing anything against the accused with regard to the alleged offence.

17. The prosecution has also examined PW.16 who is a mahazar witness. But, he also not supported the version of prosecution. He deposed that he does not know the contents of confessional statement of the accused. Therefore, the prosecution cannot rely upon the evidence of

PW.16.

18. The prosecution has also examined PW.17 who is the doctor who conducted the postmortem examination on the dead body of the deceased and he found seven injuries on the body of the deceased. The doctor opined that the deceased would appear to have died of asphyxia and cerebral anoxia due to strangulation. Ex.P.20 is the Postmortem

Examination certificate issued by him. In the cross-examination, the doctor clearly admits that while the dead body was removing from the grave by holding neck the hyoid bone may get fracture. He also admits that if the milk enters into the lungs, the asphysia death may occur.

Therefore, the evidence of PW.17 is clear that hyoid bone may get fracture while removing the dead body from the grave and death of the deceased may occur if the milk enters into the lungs of the deceased.

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19. The prosecution examined PWs.18, 19 and 20 who are the police officials and they deposed only with regard to the investigation.

20. The evidence of PW.18 is that on 09.03.2016 at about 8.30

P.M. PW.1 came to his police station and gave complaint and he registered the same as Cr.No.37/2016 under Sec. 174 Cr.P.C and issued

F.I.R under Ex.P.21 and later he proceeded to the grave yard at

Greamspet, Chittoor and PW.1 showed the place where the dead body was buried and later he returned to the police station and sent a requisition to the M.R.O for excavation and later on the next day he along with PWs.15, 19 and others proceeded to burial ground and got the dead body excavated and he also sent requisition to the doctor for conducting postmortem examination and accordingly the doctor conducted postmortem examination over the dead body of the deceased and later he conducted inquest over the dead body of the deceased and handed over the dead body to PWs.1 to 5. He also deposed that he prepared a rough sketch under Ex.P.22. He also deposed with regard to the examination of the witnesses and recording their statements. On 21.03.2016 after he received the postmortem certificate from the doctor, he altered the section of law and issued the altered F.I.R under Ex.P.25 and later he handed over the entire record to PW.19. Therefore, the evidence of PW.18 is only with regard to the investigation i.e., registering the complaint and proceeding to the burial ground and getting excavation of the dead body and getting the postmortem examination conducted through doctor. This part of evidence of PW.18 is not attributing anything against the accused as it relates to only investigation.

10

21. The prosecution also examined PW.19, who is the Inspector of

Police. His evidence is that PW.18 informed him that he received postmortem certificate in respect of deceased and he immediately instructed PW.18 to alter section of law and accordingly PW.18 altered the section of law from Sec. 172 Cr.P.C to Sec. 302 and 201 of IPC and he received F.I.R and took up investigation. During the course of investigation, he visited the scene of offence and examined PWs.1 to 9 and recorded their statements and he also visited the scene of offence and observed the scene. Therefore, the part of evidence of PW.19 is only with regard to the issuing F.I.R and examining the witnesses and visiting the scene of offence.

22. The prosecution also examined PW.20 who is also the

Inspector of police and he also took up investigation by visiting the scene of offence and examining the scene. His evidence further reveals that on 13.05.2016 while he was in the police station PWs.11 and 14 came to his police station and surrendered the accused and he examined PWs.11 and 14 and recorded their statements and later he arrested the accused.

Later the accused led the police party to the scene of offence and brought the thread which is marked as MO.1 and he has seized the same under the cover of mahazar dated 13.05.2016 and later he has filed charge sheet against the accused after receipt of postmortem certificate and other documents. Therefore, the evidence of PW.20 is only with regard to the investigation i.e., arresting the accused and recording the statements of PWs.11 and 14.

11

23. In this case, the prosecution though examined PWs.1 to 4, 6 to 11 as the eye witnesses for the incident, but all these witnesses have turned hostile and not supported the case of prosecution. Therefore, the prosecution cannot rely upon their evidence. Though the prosecution examined PW.14 the witness for Scene observation report and PW.15 who is the Tahsildar who was present at the time of dead body was excavated, but these witnesses have not deposed anything against the accused.

24. Now, the prosecution is left with the evidence of Doctor and investigating officers. The doctor opined that the death of the deceased would appear to have because of asphyxia and cerebral anoxia due to strangulation. But, no witnesses examined by the prosecution have deposed that the accused caused strangulation over the neck of the deceased and due to that the deceased died. Therefore, there is no corroborating evidence for the evidence of PW.17 the doctor.

25. The evidence of PWs.18 to 20 is only with regard to the investigation. Naturally the police officials support the version of the prosecution. As there is no corroboration for the evidence of PWs.18 to 20, the prosecution certainly cannot rely upon their evidence. Further, it is highly dangerous to rely upon the evidence of police officials to connect the accused for the alleged offences. As there is no corroborating evidence for the evidence of PWs.18 to 20, this court hold that the prosecution cannot rely upon their evidence.

12

26. Therefore, on perusal of the entire evidence on record, it is clear that the evidence of PWs.1 to 20 and Exs.P.1 to P.26 and M.O.1 is not sufficient to connect the accused with the alleged offence. Further, this court hold that the prosecution failed to establish the alleged offence against the accused beyond all reasonable doubt. Hence, certainly the accused is entitled for acquittal. Accordingly, this point is answered in favour of the accused and against the prosecution.

27. POINT No.2:

To what relief ?

In the result, the accused is found not guilty and she is acquitted under Section 235(1) Cr.P.C. for the offence punishable under

Section 302 I.P.C. The accused shall be released forthwith if there are no other cases pending against her.

M.O.1 shall be destroyed after the appeal time is over.

Dictated to the Stenographer, after his transcription, corrected and

pronounced by me in the open court on this the 23rd day of May, 2017.

Sd/- K.Chidananda

VIII ADDL. DISTRICT & SESSIONS JUDGE,

CHITTOOR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PROSECUTION: DEFENCE:

PW.1 : A.Chinna Babu -Nil- PW.2 : K.Ramaiah PW.3 : B.Subramanyam PW.4 : T.Tirumala PW.5 : T.B.Muralikrishna PW.6 : M.Hyder Shareef PW.7 : J.Sudha PW.8 : B.Mohanamma PW.9 : T.Saroja 13

PW.10 : R.Mamatha PW.11 : M.Chandu PW.12 : R.Ravindranatha Reddy PW-13 : S.Arunachalam PW-14 : M.Venkatramana PW-15 : Arun Kumar PW-16 : P.David PW-17 : Dr.A.Latha PW-18 : B.Prasad PW-19 : M.Adinarayana PW-20 : K.Venkatappa

EXBHITS MARKED ON BEHALF OF PROSECUTON:

Ex.P1 : Signature of PW.1 in the complaint. Ex.P2 : Sec.162 Cr.P.C. statement of PW.1. Ex.P3 : Sec.162 Cr.P.C. statement of PW.2. Ex.P4 : Sec.162 Cr.P.C. statement of PW.3. Ex.P5 : Sec.162 Cr.P.C. statement of PW.4. Ex.P6 : Signature of PW.5 in the Inquest report dt.10.03.2016. Ex.P7 : Sec.162 Cr.P.C. statement of PW.5. Ex.P8 : Sec.162 Cr.P.C. statement of PW.6. Ex.P9 : Sec.162 Cr.P.C. statement of PW.7. Ex.P10 : Sec.162 Cr.P.C. statement of PW.8. Ex.P11 : Sec.162 Cr.P.C. statement of PW.9. Ex.P12 : Sec.162 Cr.P.C. statement of PW.10. Ex.P13 : Sec.162 Cr.P.C. statement of PW.11. Ex.P14 : Inquest report. Ex.P15 : Signature of PW.13 in the Inquest report. Ex.P16 : Report given by PW.14 dt.13.05.2016. Ex.P17 : Statement of accused recorded by police dt.13.05.2016. Ex.P18 : Signature in mahazar dt.13.05.2016 at 2.30 PM. Ex.P19 : Signature of pw.16 in Confession statement dt.13.05.2016. Ex.P20 : Postmortem certificate. Ex.P21 : F.I.R in Cr.No.37/2016 of Chittoor II Town P.S. Ex.P22 : Rough sketch-I. Ex.P23 : Rough sketch-II. Ex.P24 : Rough sketch-III. Ex.P25 : Altered F.I.R in Cr.No.37/2016 of Chittoor II Town P.S. Ex.P26 : Mahazar dt.13.05.2016 at 2.30 PM.

EXHIBITS MARKED ON BEHALF OF DEFENCE: -NIL-

M.Os. MARKED:

M.O.1 : Waist thread.

Id/-K.Chidananda

VIII AD&SJ,

CTR.

1

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-

CUM-I ADDL. DISTRICT JUDGE, CHITTOOR.

Present: Sri K. Chidananda, Chairman-cum-VIII Additional District Judge FAC/ I Additional District Judge, Chittoor.

THURSDAY, THE FIRST (1ST ) DAY OF SEPTEMBER, TWO

THOUSAND AND SIXTEEN

M.V.O.P. No. 273 of 2010 Between:

H. Thaheer Hussain

... Petitioner

And:

1.M/s Venson Transport Pvt. Ltd., rep. by its Managing Director, Tadipathri

2.M/s National Insurance Company Ltd. Rep. by its Divisional Manager, Divisional Officer, Bangalore

3.Y. Lakshmi Reddy

4.Oriental Insurance Company Ltd. rep. by its

Branch Manager, Anantapur

... Respondents

This petition is coming on for hearing before me on 22-08-2016 and upon perusing the petition, written statements and other relevant papers on record and upon hearing the arguments of Sri. V. Ramakrishna Advocate for petitioner and Sri E. Sundaramurthy Naidu, Advocate for Respondent No.2 and of Sri K. Rajendran, Advocate for respondent No.4, the respondents 1 and 3 set exparte and having stood over for consideration till this day, this Court made the following:

A W A R D

This claim petition is filed under Sec. 163 (a) of the Motor

Vehicles Act, 1988 claiming compensation of Rs.15,00,000/- for the injuries sustained by the petitioner in a motor vehicle accident occurred on 6-1-2008 at about 4.00 A.M. near Old Kalluru, Guddalapalle village,

Garladinna Mandal, Anantapur District involving the crime vehicle 2 bus bearing No. AP 02 U 9244 and tractor and trailer bearing No. AP 02 K 2290.

02. The brief facts of the petition are as follows :-

On the fateful day i.e, on 6-1-2008 at about 4.00 a.m. the petitioner was the driver of 1st respondent’s bus bearing No. AP 02 U 9244 and while he was driving the bus from Hyderabad to

Bangaloreand when he reached near Old Kallur on 6-1-2008 while he was driving the bus slowly, cautiously and observing roads rules and regulations, by that time one tractor and trailer AP 02 K 2290 was stopped on the middle of the road without signals and lights. As a result, the bus dashed against the tractor and trailer .Due to the said impact the petitioner being driver of bus received grievous injuries and fractures all over the body.

The petitioner was taken to Government Head Quarters hospital, Anantapur and after first-aid he was shifted to C.M.C.

Hospital, Vellore for better treatment.

03. A case was reported in crime No. 2/2008 U/Sec. 337 of IPC by the Garladinna police station, Anantapur District .

04. The further contention of petitioner is that he incurred huge expenses towards treatment and medicines and his right leg was amputated above the knee. Further the petitioner due to the injuries he is not having any vision in the left eye and he is suffering a lot and has become permanent disabled person. Therefore the respondents are liable to pay compensation of Rs. 15,00,000/- to the petitioner.

05. The respondents 1 and 3 remained exparte.

3

06. The 2nd respondent filed written statement by denying the contention of the petitioner. The contention of the 2nd respondent is that the accident was occurred due to negligence of 3rd respondent’s driver and respondents 3 and 4 are liable to pay compensation to the petitioner. Further the petitioner has no valid driving license on the date of accident. Further the claim of the petitioner is very high and excessive . Therefore the 2nd respondent is not liable to pay compensation.

05. Respondent No.4 filed written statement by denying all the material allegations of the petitioner. The contention of 4th respondent is that the claim of the petitioner is very high and excessive. Further the petition is bad for mis-joinder of parties i.e. respondents 3 and 4.

Further the accident was occurred due to rash and negligent act of the driver of the 2nd respondent. Therefore respondents 3 and 4 are liable to pay compensation to the petitioner.

06. Basing on the above pleadings, the following issues are settled for trial:

I. Whether the accident was occurred due to the rash and negligent driving of the petitioner in driving the bus bearing No. AP 02 U 9224 or the negligence of the driver of the Tractor and trailer bearing No. AP 02 K 2290 ?

II.Whether the petition is bad for mis joinder of the respondents 3 and 4? III.Whether the petitioner is entitled for any compensation ? If so, to what amount, and from whom?

07. To prove the case of petitioner, P.Ws. 1 to 3 were examined and Exs.A.1 to A.13 , Exs.X.1 to X.5 were marked on behalf of petitioner. On behalf of respondents R.W.1 was examined and Ex.B.1 was marked. But the evidence of R.W.1 was eschewed by this court.

4

08. Respondents 2 and 4 filed a petition under section 170(B) of

M.V.Act and the same were allowed.

09. Heard arguments on both sides.

10. ISSUE NO.1:-

The contention of the petitioner is that the accident was occurred due to rash and negligent act of the driver of the tractor cum trailer as he kept the tractor in the road without putting on the signal lights. Admittedly this petition filed under section 163(a) of

M.V. Act . The petitioner need not prove the rash and negligent act of driver of 3rd respondent.

11. At this juncture it is pertinent to refer the decision of

Hon’ble Supreme Court of India observed in Managing Director

Bangalore Metropolitan Transport Corporation Vs. Sarojamma and

another reported in 2008 (4) ALD page 1 ( SC) wherein it was observed that:

“ Section 163-A of the Act was inserted by Act No.54 of 1994 with effect from 14-11-1994. For invoking the said provision, it is not necessary for a claimant to establish any act of negligence on the part of the driver . It is not necessary even to plead that the death had occurred owing to any wrongful act or negligent or default of owner of the crime vehicle.”

12. In this petition the petitioner is claiming compensation under section 163(a) of M.V.Act for the injuries sustained in the motor vehicle accident. So, as per the above decision, it is not necessary for the petitioner to establish rash and negligent act of the driver of the tractor. Accordingly, this issue is settled in favour of the petitioner and against the respondents.

5

ISSUE NO.2 :

13. The strong contention of the 4th respondent is that the petition is bad for mis-joinder of parties i.e. respondents 3 and 4 and the petitioner could have figured respondents 3 and 4 as proforma parties for just decision to know claiming compensation against 4th respondent. To prove the said fact, the respondents 3 and 4 have not examined any witnesses nor produced any documentary evidence. It is the contention of the petitioner being the driver of bus and he clearly deposed that the driver of the tractor cum trailer negligently kept the tractor in the middle of the road without having signal lights.

Therefore the contention of the petitioner is not challenged by respondents 3 and 4 and hence certainly this petition is not bad for mis-joinder of parties i.e. respondents 3 and 4. Accordingly this issue is answered.

ISSUE No. 3:

14. In view of my findings on issue No.1 that the accident was occurred only due to negligent act of the driver of the tractor and trailer, it follows that the petitioner is entitled for compensation for his injuries sustained in the said accident.

15. Now it has to be decided what is just compensation to be payable to the petitioner. Compensation should be awarded reasonably, proportionately for the injuries of the petitioner and it should be neither excessive nor very meager amount.

16. It is the burden of the petitioner to prove that he has sustained injuries in the said accident. The strong contention of the petitioner is that he sustained injuries in the said accident due to negligent act of the drive of the tractor cum trailer . To prove the same 6 he has marked Ex.A.3 wound certificate, Ex.A.4 discharge summary issued by C.M.C. hospital, Vellore. Ex.A.6 is the certificate issued by

C.M.C. Hospital, Vellore. Ex.A.7 is certificate issued by Ophthalmology department, C.M.C. Hospital , Vellore. On perusal of these documents, it is clear that the petitioner sustained injuries in the said accident.

17. Further the petitioner examined P.W.2 who is doctor, who examined P.W.1 and issued wound certificate. The doctor found the following injuries:

(i) closed segmental fracture both bones right fore-arm

(ii) closed supracondylar fracture left femur

(iii) Left supra inferior public Rami fracture

(iv) crush injury right leg below knee.

The doctor found four grievous injuries on the body of the petitioner. Therefore the evidence of P.W.2 supports the version of

P.W.1 with regard to injuries. Of course, in this case the respondents herein are not denying the injuries on the body of the petitioner.

Therefore by the evidence of P.Ws. 1 and 2, Exs.A. 3 to A.7 the petitioner could able to prove the injuries on him.

19. Now, it is has to be decided as to what amount the petitioner is entitled towards compensation for his injuries.

20. In this petition, the petitioner is claiming compensation of

Rs.15,00,000/- under both the heads i.e., special and general damages.

21. Under the special damages, the petitioner is claiming damages under the head of transport expenses. It is the evidence of

P.W.1 is that soon after the accident the petitioner was shifted to

Government hospital, Anantapur and after first-aid he was shifted to

CMC hospital, Vellore and hence he incurred some expenses towards 7 transportation. This fact is not denied by the respondents. Therefore the petitioner must have incurred some expenses towards transport and awarding of Rs.20,000/- is reasonable under this head. Accordingly, the petitioner could be granted Rs.20,000/-.

22. Further the petitioner also claimed damages under the head of extra nourishment. It is the evidence of P.W.1 that the petitioner sustained grievous injuries in the said accident and during treatment he incurred some expenses towards extra nourishment. On perusal of evidence of P.W.2 and Ex.A.3, it is clear that the petitioner sustained crush injuries. Hence he must have incurred some expenses towards extra nourishment in the hospital and awarding of

Rs. 50,000/- under this head is reasonable and accordingly the petitioner could be granted under this head.

23. Further petitioner also claiming damages under the head of damages to the cloths and articles. It is the evidence of P.W.1 is that in the said accident the petitioner’s articles and cloths were got damaged.

The petitioner already proved the accident. Therefore clothes and articles of the petitioner must have been damaged and awarding of

Rs.5,000/- under this head is reasonable. Accordingly, petitioner could be granted Rs.5,000/- under this head.

24. The petitioner also claiming damages under the head of medicines and treatment. It is the evidence of PW.1 is that he incurred expenses towards medicines and treatment in C.M.C. hospital,

Vellore. To prove the said fact the petitioner has marked Ex.A.10 medical bills issued by the C.M.C. hospital, Vellore. On perusal of the same, the petitioner incurred medical expenses of Rs. 1,40,447/- . Hence the petitioner is entitled for Rs. 1,40,447/- under this head.

8

25. Thus, in total, under special damages the petitioner could be granted Rs. 2,15,447/- (Rs.20,000 + 50,000 + 5,000 + 1,40,447/-).

26. When coming to the general damages, the petitioner also claiming damages under the head of pain and suffering. It is the evidence of P.W.1 is that in the accident he sustained four grievous injuries on his legs and left eye and he suffered pain due to those injuries. Therefore awarding of Rs. 25,000/- for each grievous injury totally Rs. 1,00,000/- is just and reasonable. Accordingly, petitioner could be granted Rs.1,00,000/- under this head.

27. Further the petitioner also claimed damages under the head of permanent disability. It is the evidence of P.W.1 is that prior to the accident he was hale and healthy and he was doing driver in the bus of 1st respondent and getting Rs. 10,000/- per month. Due to the injuries sustained by him in the accident, he sustained grievous injuries on is right leg and left eye , as a result, his right leg was amputated above the knee and has become permanent disabled person. The petitioner filed this petition under section 163 (a) of M.V. Act.

Therefore the income of the petitioner shall be restricted to Rs.

40,000/- per annum.

28. The age of the petitioner is mentioned as 46 years. As per

Sarla Verma’s case in 2009 (6) SCC page 121 the multiplier that could be applied in this case is ‘13’.

Further contention of petitioner is that his right leg was amputated above the knee and he got less vision on the left eye and he has become permanent disabled person. To prove the said fact the petitioner examined P.W.2 who is the doctor, who treated him and issued disability certificate. P.W.2 clearly deposed that the petitioner 9 has permanent disability of 100% for right lower limb and 35% of

Disability for his entire body . Ex.A.8 is the disability certificate issued by C.M.C. hospital. HE also deposed that the petitioner is not fit for driving profession and he has to depend on prosthesis and /or

Orthosis life long and it is difficult to perform his normal duties without help. Therefore by considering this fact, it is clear that the petitioner has permanent disability of 100% . Therefore the petitioner is entitled for the following damages.

40,000 X 13X 100% = 5,20,000/-

29. Thus, in total under the General damages the petitioner could be granted Rs. 6,20,000/- (1,000,000 + 5,20,000)

30. Thus, in total, under both the heads i.e., special and general damages, the petitioner is entitled for the following damages:

01. Damages towards Transportation is Rs. 20,000/-

02. Damages towards extra nourishment is Rs. 50,000/-

03. Damages towards clothes and articles Rs. 5,000/-

03. Damages towards medical expenses Rs. 1,40,447/-

04. Damages towards pain and suffering is Rs. 1,00,000/-

Rs. 5,20,000/-

05. Damages towards permanent disability is

Total : Rs. 8,35,447 /-

Thus, the petitioner is entitled for Rs. 8,35,447 /- (Rupees

Eight lakhs thirty five thousand four hundred and forty seven only) in total under both the heads.

31. Now it has to be decided what percentage of interest the

Petitioner is entitled for the said awarded compensation amount. As per 10 the Judgment of the Hon’ble Supreme Court of India reported in Tamil nadu

Transport Corporation Limited Vs., Raja Priya – 2005(4) ALT 14 S.C., the simple interest is fixed at the rate of 7.5% p.a. Therefore, the Petitioner is entitled to simple interest at the rate of 7.5% p.a., for the said awarded amount.

32. Now it has to be decided who has to pay the said awarded amount to the Petitioner.

33. In this petition, it is the strong contention of 2nd respondent that the driver of the 3rd respondent’s vehicle parked the tractor without putting on the signal lights and he is responsible for the accident. The 2nd respondent examined R.W.1, who is the Branch

Manager of the 2nd respondent Company. But his evidence was eschewed by this court. Therefore 2nd respondent can not rely upon the evidence of R.W.1. Further on perusal of record, it is clear that the other respondents have not examined any witnesses on their behalf nor produced any documentary evidence. Therefore it is clear that the contention of the petitioner is not challenged by the respondents. It is the strong contention of the petitioner that the accident was occurred due to negligent act of the driver of the tractor cum trailer. Therefore certainly the 3rd respondent who is the owner of the tractor and 4th respondent who is the Insurance company of the tractor are liable to pay the compensation to the petitioner. On the other hand, the petitioner by examining P.Ws. 1 to 3 and by marking

Exs.A.1 to A.13 , Exs.X.1 to X.5 could able to prove those contentions.

Hence respondents 3 and 4 are jointly liable to pay the compensation and respondents 1 and 2 are not liable to pay compensation to the petitioner. Accordingly this issue is settled in favour of the petitioner and against the respondents.

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34. ISSUE NO.3:

In the result, the petition is allowed in part with proportionate costs with the following reliefs:

1. The Petitioner is entitled for compensation of Rs. 8,35,447 /- (Rupees

Eight lakhs thirty five thousand four hundred and forty seven only)

2. The Petitioner is entitled for the interest at the rate of 7.5% per annum on the amount awarded from the date of the petition till the date of deposit;

3. The Respondents 3 and 4 are directed to deposit the said amount within 30 days from the date of this award, otherwise the petitioner is entitled for the interest at the rate of 9% p.a.

4. On making such deposit, the petitioner is permitted to withdraw

Rs.5,00,000/- initially and rest of the amount shall be kept in any nationalized bank for a period of one year or until further orders.

5. The rest of the claim is dismissed without costs.

6.The claim against respondents 1 and 2 is dismissed

7. Advocate’s fee is fixed at Rs.2000/-.

8. This award is subject to any compensation awarded under Sec. 140 of the MV Act.

9. The petitioner is not entitled for any interest for a period where the petition was dismissed for default and till it was restored, if any.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in Open Court, this the 1st day of September, 2016. Sd/ Sri K. Chidananda

CHAIRMAN,

MACT-CUM-VIII ADDL. DISTRICT JUDGE,

FAC/I ADDITIONAL DISTRICT JUDGE

CHITTOOR.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE

PETITIONER: RESPONDENTS:

PW. 1: H. Taheer Hussain R.W.1 : V.Chandra Babu PW. 2 : Dr. Alfred Cyril Roy ( eschewed) PW. 3 : P. Gunaskhar

EXHIBITS MARKED ON BEHALF OF THE

PETITIONER: Ex. A.1: Certified Copy of FIR in Cr. No. 2/2008 of Garladinne P.S. Ex. A.2: Certified Copy of Charge sheet in .C.No. 376/2008 of JFCM, Anantapur Ex. A.3: Wound certificate. Ex. A.4 : Discharge summary issued by CMC hospital, Vellore. Ex. A.5: Discharge summary issued by CMC hospital, Vellore. Ex. A.6 : Certificate issued by the CMC hospital, Vellore dt. 21-4-2008 Ex.A.7 : Certificate issued by the Ophthalmology Department CMC hospital, Vellore. Ex. A.8 : Disability certificate issued by the CMC hospital, Vellore dt.21-4-2008 Ex. A.9 : Disability certificate issued by the District Medical Board, Chittoor.

Dt. 8-10-2008

Ex.A.10 : Medical bills numbering 89 Ex.A.11 : Photos of the petitioner ( Two) Ex.A.12 : Insurance Policy of the bus bearing No. AP 02 U 9244 belongs to 2nd respondent. Ex.A.13 : Insurance Policy of the tractor and trailer bearing No. AP 02 K 2290 belongs to 4th respondent. RESPONDENTS: Ex.B1 : Policy copy filed by 2nd respondent X-SERIES : Ex.X1 : Admission Record dt. 7-1-2008 issued by CMC Hospital,Vellore. Ex.X2 : Admission Record dt. 10-3-2008 issued by CMC Hospital,Vellore. Ex.X3 : Admission Record dt. 30-11-2009 issued by CMC Hospital,Vellore. Ex.X4 : Authorisation letter dt. 22-1-2015 issued by Venson Transport, Bangalore. Ex.X5 : Salary Certificate dt. 18-12-2014 issued by Venson Transport, Bangalore.

Sd/ Sri K. Chidananda CHAIRMAN-cum-VIII ADJ FAC I ADJ, Chittoor.