Sri K. Sai Mohan

IV Addl.District Court. M.V.O.P.No.1300/051

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-

CUM-IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: - Sri K. Sai Mohan., M.A., M.S., (PR)., LL.B.,(Hon’s) Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool. Friday the 27th day of July, 2012.

M.V.O.P.No.1300 of 2005.

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K. Ravindar Reddy S/o K.Nagi Reddy, Hindu, aged about 30 years, cultivation, Resident of Uppair village, Dharur Mandal, Mahaboobnagar District now residing at N.R.Peta, Kurnool town and district. … Petitioner.

-Versus-

1. Y. Viswanath S/o Pandarinath, Hindu, major, Owner of the bus bearing No.AP 22.U.8608, Resident of H.No.4-4-92, Gobburi House, Shivajinagar, Gadwal Mahaboobnagar District.

2. M/s National Insurance Company Limited rep., by its Branch Manager, Kurnool, policy No.501602/31/04/6004000, Gadwal Branch, Mahaboobnagar district valid from 15-04-04 to 14-04-2005.

3. Andhra Pradesh State Road Transport Corporation rep., by its Managing Director cum vice-chairman Musheerabad, Hyderbad. … Respondents.

This petition coming on this day i.e., on 26-07-2012 for final hearing before me in the presence of Sri B. Narendranatha Reddy, Advocate

for the petitioner and of Sri M. Ananda Rao, Advocate for the first

respondent, and of Sri P.Sunkanna, Advocate for the second respondent, and of Sri C. Raghava Reddy, Advocate for the third respondent and upon hearing the arguments and having stood over for consideration, till this day, this court made the following:

O R D E R

This original petition is filed by the injured claiming compensation of Rs.1,00,000/- against the respondents 1 to 3 U/s 166 of

M.V.Act 1988.

2.The facts set out in the petition briefly are that on 9-10-2004 the petitioner was going to his native place Uppair on Hero Honda Motor Cycle bearing No. AP 22 C 5612 after completion of work at Gadwal and when he reached the outskirts of Setty Atmakur Village on B.T.Road at about 6.30 p.m., one hired R.T.C bus bearing No.AP 22.U.8608 which was driven at high speed and in rash and negligent manner, as a result of which he fell down

IV Addl.District Court. M.V.O.P.No.1300/052 and sustained multiple injuries including fractures of both legs and head injuries. Immediately he was taken to Government Hospital Gadwal where he took treatment as inpatient for about one month by also incurring

Rs.20,000/- towards medical and attendant charges.

3.The petitioner was hale and healthy at his age of 30 years and doing cultivation thereby earning Rs.80,000/- per annum and because of the injuries sustained in the accident he could not attend to his regular work and hence he made a claim for Rs.1,00,000/-.

4.The first respondent owner of the hired bus No.AP 22.U.8608 filed counter raising the following brief contentions that he was not aware of the circumstances which caused the accident and the petitioner shall prove that the accident was occurred as in the manner he elicited and he sustained with multiple injuries including fractures and spent Rs.20,000/- towards medical and attendant charges and he could not attend to his regular work of doing cultivation and so lost his annual income of Rs.80,000/- out of his agriculture. Further his bus was hired with third respondent A.P.S.R.T.C and it was also duly insured with the second respondent Insurance Company with the policy No.501602/31/04/6004000 which is valid from 15-04-04 to 14-04- 2005 covering the date of accident.

5.Second respondent the Insurance Company filed separate counter by raising the following brief contentions that the accident occurred exactly not due to rash and negligent driving of driver RTC bus No.AP 22.U.8608, the factum of accident shall be established by the petitioner by adducing substantial evidence. The petitioner shall also prove that he sustained with the injuries including fracture to his both legs and head injury and he spend Rs.20,000/- towards medicine and attendant charges while taking treatment as inpatient for about one month at Government Hospital

Gadwal. He shall also prove that he was possessing valid driving licence to drive the motor cycle this insurance company is not aware of the fact that the first respondent owner of the bus entered into agreement with A.P.S.R.T.C

IV Addl.District Court. M.V.O.P.No.1300/053 (R.3) for leasing out the bus and the policy was not covered the risk of contractual liability and hence the Insurance Company cannot be made liable to pay compensation to the petitioner. Moreover, the first respondent did not pay premium of Rs.125/- as per conditions in I.M.T.44 to “Indemnity to hirer package policy” dashed negligence owner or the hirer in the absence of which, the Insurance Company cannot be liable for any claim.

6.The owner of the motor cycle and the Insurance Company are also necessary parties to the proceedings, as the accident might have occurred due to his own negligence. The petitioner shall also prove that the driver of hired R.T.C bus was possessing valid and subsisting driving licence and fitness certificate to the bus as on the date of accident. Therefore the

Insurance Company is not liable to pay compensation.

7.The third respondent A.P.S.R.T.C represented by its standing counsel filed separate counter raising the following brief contentions that there was no negligence or rash driving of A.P.S.R.T.C hired bus No.AP 22.U.8608 by its drove and a false case was foisted against the driver of the bus. The bus was insured by R.1 its owner with second respondent Insurance

Company and so the Insurance Company and the owner of the bus only liable to pay any compensation as since the bus was hired to A.P.S.R.T.C under the agreement with the same terms of conditions. The petitioner shall also prove his age, income and occupation and he sustained with the injuries as he elicited with substantial evidence and therefore the third respondent

A.P.S.R.T.C is not liable to pay any compensation.

8.The issues here under mentioned have been settled for the trial of O.P.

1. Whether the petitioner sustained injuries in a

motor accident that was occurred on 09-10-2004

at about 6.30 p.m on account of rash and negligent

driving of driver of APSRTC bus bearing No.AP

22.U.8608 belongs to the negligence on the part of

IV Addl.District Court. M.V.O.P.No.1300/054

the driver of Hero Honda Motor Cycle bearing No.

AP 22.C.5612?

2. Whether the petitioner is entitled to claim

compensation if so to what amount from which of

the respondent?

3. To what relief?

9.The petitioner himself was examined as PW.1 and produced the certified copies of FIR, Wound Certificate and Charge Sheet to establish his claim for compensation. But the first respondent has not chosen to adduce any evidence, where as the second respondent Insurance Company got examined the assistant in their office as R.W.2 and exhibited the office copy of the letter dt.13-03-2007, office copy of letter dt.04-04-2007, office copy of letter dt.16-04-2012 and the acknowledgement under Ex.B.2 to B.5 and the third respondent A.P.S.R.T.C got examined the Typist cum Clerk in A.P.S.R.T.C

Depot Gadwal as R.W.1 and produced the un registered agreement dt.07-06- 2004 as entered between R.1 and A.P.S.R.T.C for hiring the bus Ex.B.1 in order to disprove the claim of the petitioner.

10.Second respondent Insurance Company was also accorded with permission U/s 170 of M.V.Act to defend its case on all aspects.

11.Heard the learned counsel for all the parties represented by their counsel.

12.Issue No.1:- The claim is made by PW.1 for the compensation of

Rs.1,00,000/- towards bodily injuries sustained by him in the accident occurred on 09-10-2004.

13.The fact that he sustained injuries when he met with accident by the hitting of his Hero Honda Motor Cycle AP 22.C.5612 was hit by A.P.S.R.T.C hired bus No.AP 22.U.8608 on B.T. Road near the outskirts of Uppair Village is undisputed. Admittedly R.1 is owner of the bus which was rendered with the policy under the original of Ex.B.2 with the second respondent Insurance

Company and the same was also valid as on the date of occurrence of accident. It is also not in dispute that the same offending vehicle was also

IV Addl.District Court. M.V.O.P.No.1300/055 hired by R.1 to R.3 A.P.S.R.T.C by entering into agreement under the original of Ex.B.1 un registered agreement dt.07-06-2004 and therefore as on the date of accident, the offending vehicle No.AP 22.U.8608 was under the control of third respondent A.P.S.R.T.C to insure with the second respondent

Insurance Company.

14.From the evidence of PW.1 it is disclosed that when he was proceeding to his village Uppair starting from Gadwal on his Hero Honda

Motor Cycle, the opposite coming hired A.P.S.R.T.C bus No.AP 22.U.8608 dashed his Motor Cycle at about 6.30 p.m. nearing to the village Uppair and so he sustained with multiple injuries including fracture to his both legs and head injuries.

15.From his evidence it is made clear that the same accident was occurred since the bus was driven at high speed and in rash and negligent manner even without blowing horn when he was left side towards his route.

Therefore he has attributed the liability for the causing of accident against the driver of the bus accordingly he also gave a report to the police under

Ex.A.1 FIR and the driver of the bus was also prosecuted for his rash and negligent driving U/s 338 IPC bySubInspector ofpolice Gadwal Rural.

Which is evident by the certified copy of Charge Sheet, filed under Ex.A.3 all the respondents, except throwing the burden against the petitioner to prove the factum of accident, not adduced any sort of evidence to elicit different circumstances for the occurrence of accident and so to absolve the driver of the bus from his any liability. The accident was occurred admittedly not due to any mechanical defect of the vehicle. But nothing has been disclosed also for the intervening of any other un avoidable circumstances in the occurrence of accident, except the rash and negligent driving of the bus by its driver.

16.Therefore it is well proved by the petitioner that the accident was occurred due to rash and negligent driving of the driver of the bus only.

Accordingly this issue is answered.

IV Addl.District Court. M.V.O.P.No.1300/056

17.Issue No.2:- Now the crucial question is whether the petitioner is entitled for compensation of Rs.1,00,000/- or to what just amount and from whom the same shall be recovered?

18.They are already been elaborately discussed and decided in foregoing issue that the accident was occurred exactly due to rash and negligent driving of driver A.P.S.R.T.C hired bus No.AP 22.U.8608 by its driver and there by fixing liability against the first respondent as its owner, second respondent Insurance Company since rendered policy to the bus which was enforce by the date of accident and third respondent since the bus was hired to A.P.S.R.T.C as under the original of Ex.B.1 hired agreement, by their joint and several liability.

19.However the second respondent-Insurance company has declined for its any liability to pay compensation to the petitioner on the ground that when the accident was caused even by the hired bus of the

APSRTC it was under the custody of APSRTC by also employing driver of their own and since the first respondent and entered in to hire agreement with

APSRTC without knowledge of the Insurance Company and for not paying the extra premium for the passengers to the hired bus U/s.C Commercial Vehicle

Tariff as required for hired bus and also for not paying the additional premium for carrying passengers in a hired bus, then it amounts to violation of terms under the policy and therefore it is only the first respondent or the third respondent who are liable to pay compensation.

20.Where as the learned counsel for the 3rd respondent- APSRTC while referring the allegations of the Insurance Company also declined for the liability of the APSRTC as it is only the owner of the Insurance Company since insured rendering policy, liable to pay any compensation to the victims, but not APSRTC by also referring to the decided case in:

Uttar Pradesh State Road Transport Corporation

Versul

Kulsum and others

Reported in 2011 (8) SCC 142.

IV Addl.District Court. M.V.O.P.No.1300/057

21.Therefore the question arises whether it is the Insurance

Company or the APSRTC liable to indemnify the owner of the vehicle in case he becomes liable to pay the compensation to the victims in the accident on account of the use of the vehicle.

22.It is settled law that the policy rendered to any vehicle would run always with the vehicle and the liability of the insurer will not cease even if the contract of the hire is not intimated to him.

23.In the present case admittedly there is no evidence as the registered owner of the vehicle first respondent intimated about hiring of his bus to APSRTC to the insurer. But the contention of the learned counsel for the Insurance Company that the insured (owner of the vehicle) shall also pay extra premium in case of any such transactions for hiring of his bus to any other agency, is not prove by any authority. Admittedly the insurance policy rendered to the crime vehicle was in vogue on the date of accident. The offending vehicle which is hired bus of the first respondent to the 3rd respondent- APSRTC was under the contract of Ex.B.2. therefore the learned counsel for the 3rd respondent- APSRTC contended that by the said agreement under the original of Ex.B.2 APSRTC becomes only custodian of the vehicle, but the policy as rendered to it for the Insurance under the original of Ex.B.1 runs with the vehicle and therefore the liability of the insurer will not be ceased and it is the Insurance Company who has to indemnify the owner of the vehicle, if any contingencies arose to pay compensation to the victims because of casing accident by the same vehicle.

24.The learned counsel placed his reliance in the case of

Uttar Pradesh State Road Transport Corporation

Versul

Kulsum and others

Reported in 2011 (8) SCC 142.

In the cited case, the facts are that the hired bus to UPSRTC who was involved in the accident causing the death of the passengers, the claim petitions for compensation by the members of the legal heirs and

IV Addl.District Court. M.V.O.P.No.1300/058 dependants of the deceased families, the question arose who would be liable to pay the compensation whether the Insurance Company or UPSRTC. When the question arose in the appeals Their Lordships elaborately discussing on that aspect regarding the liability to pay the compensation, made it clear that when the vehicle since insured at the first instance of the original owner is in substance and as the corporation had become owner of the vehicle since hired by its original owner for its use of the bus for specific period, it shall be deemed that the vehicle was transferred along with the insurance policy in existence to the corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation. Their

Lordships held that when the insurance of the vehicle is made compulsory to the vehicle or to the owner to protect the risk of the third parties in respect of the death or bodily injuries or damage to the property while using the vehicle in public places, such policy would no cease by itself just because of transfer of the vehicle from its owner SRTC, who later becomes owner of the same vehicle but a specific period. Their Lordships also held that the vicarious liability of both the registered owners RSTC becoming owner since hired by registered for the use of the said vehicle for any specific period also would not cease but the insurer shall liable to indemnify both the registered owner and corporation.

25.Therefore there is no substance in the contentions of the learned counsel for the insurance company that since the bus was hired to APSRTC by the registered owner first respondent the liability of the insurance company would cease and it is only the APSRTC who is liable to indemnify the owner by paying any amount of compensation to the victims.

26.The learned counsel also high lighted the issue for exemption of the vehicle of APSRTC from insurance because it is self subsisting from meeting any quantum of amount to pay the compensation being an undertaking of the Government. But the exemption of the vehicle of APSRTC from the Insurance is permissible only to the buses owned by APSRTC, but

IV Addl.District Court. M.V.O.P.No.1300/059 not to the buses taken on hire by APSRTC and therefore it shall be deemed that the policy as rendered to such hired buses by its original owner would run with the bus even after it is hired to APSRTC. Therefore the liability of the insurance company will not cease even if the contract of hire is not intimated to the insurance company and the vicarious liability of the corporation coexists with the registered owner. Therefore the Insurance Company is liable to indemnify both the registered owner and the corporation who is deemed to the owner of the vehicle because of the hire agreement.

27.Now the core question is whether the petitioner is entitled for the compensation of Rs.1,00,000/- or to what just amount?

28.From the evidence of PW.1 it is disclosed that he sustained with fracture of both legs and grievous head injuries. He also produced the certified copy of wound certificate under Ex.A.2 disclosing the following injuries.

1. Grage injury 4 inches forehead

2. Grage injury 4X2 inches dorsum of bone

3. Grage injury 3X3 inches chin

4. burning injury damaging right hand

5. blunt injury right leg dislocation upper 2/3rd to lower 1/3rd of tibia and fibula.

on further investigation by also obtaining X-Ray reports, the lost injury

No.5 is found to be fracture injury because of dislocation and so grievous one. And the other four injuries are simple in nature.

29.But the learned counsels for the respondents raised objection for consider the nature of injuries even in the absence of examination of Doctor.

Admittedly the petitioner has not chosen to examine the Doctor. But mere non examination of the Doctor would not belie the contents of wound certificate it is meant only for the purpose of understanding the nature of injuries but not for assessing in disability. Even in the case of

IV Addl.District Court. M.V.O.P.No.1300/0510

Bathuluru Ravi minor represented by its natural father

B.Sayanna Versus

V.Shankar Rao and another reported in 2007 (1) Andhra weekly

Reporter, 672,

Their Lordships held that the non examination of Doctor would not belie the contents of wound certificate when the purpose is limited only to understand the nature of injuries but not for assessing any kind of disability of the patient.

30.However petitioner made a separate claim for Rs.30,000/- also for his suffering with disability but without in proof. The wound certificate as produced by him will be taken into consideration only to understand the nature of injuries and so he is sustained with four simple injuries and one grievous injury.

31.Therefore the petitioner is entitle to claim for Rs.12,000/- towards simple injuries and Rs.15,000/- towards fractured one being grievous injury.

Totaling Rs.27,000/-.

32.The petitioner also made a claim for pain and suffering on

Rs.9,000/- but considering the nature of injuries and as he was hospitalized at least for a week days, he is also granted Rs.5,000/- towards pain and suffering.

33.The petitioner also made a claim for Rs.1,000/- towards hospital expenses and Rs.20,000/- towards medical expenses. Admittedly he took treatment in Government General Hospital where the treatment was free of cost. The petitioner also did not produced separate medical bills for incurring in expenses and therefore he is granted Rs.2,000/- towards transport expenses to hospital and attendant charges but not considered for any other expenses.

34.The petitioner also made a claim for Rs.40,000/- towards loss of earning even if he is an agriculturist and prevented from attendant to his agricultural work it cannot be expected for his sustaining loss of Rs.40,000/- by considering the nature of injuries and for his inability to attend to his

IV Addl.District Court. M.V.O.P.No.1300/0511 regular work since hospitalized at least for one week and while taking bed rest at least one month, he is granted Rs.6,000/-.

35.Therefore the petitioner is totally granted Rs.40,000/- towards compensation for the simple and fractured injuries sustained by him in the accident, which shall be recovered from R.1 to R.3 by their joint and several liability.

36.Issue No.3:- In the result, the petition is partly allowed granting

Rs.40,000/- towards compensation for the injuries sustained by the petitioner in the accident occurred, with proportionate costs and interest at the rate of 9% per annum from the date of petition till the date of realization against respondents 1 to 3 but excluding interest from 12-07-07 to 21-10-2010 as per order in I.A.487/10 dt.29-07-2011.

37.Time for 30 days is granted to deposit the awarded amount by the second respondent and on such deposit, the petitioner is permitted to with draw the entire amount. The second respondent is granted relief U/s 170 of Motor Vehicle Act.

38.Advocate fee is fixed at Rs.1,500/- (As per amended Advocate’s

Fees rules 2010)

Dictated to the Personal Assistant, corrected and pronounced by

me in open Court, this the 27 th day of July, 2012.

Chairman, Motor Accidents Claims Tribunal cum IV Additional District Judge, Kurnool.

Appendix of Evidence

Witnesses examined.

For Petitioner For Respondent

PW1. K. Ravindar Reddy RW.1.K. Narendar RW.2.C.Pavitra Kumar

Exhibits marked for the Petitioner.

Ex.A1. C.C. of FIR. Ex.A2. C.C. of Wound certificate. Ex.A3. C.C. of Charge Sheet.

marked for the Respondents.

Ex.B1. Un Registered Agreement dt.07-06-2004.

IV Addl.District Court. M.V.O.P.No.1300/0512

Ex.B2. O/c of letter dt.12-03-2007. Ex.B3. O/c of letter dt.04-04-2007. Ex.B4. O/c of letter dt.16-04-2012 sent to R.1. Ex.B5. Acknowledgement Card.

Chairman, Motor Accidents Claims Tribunal cum IV Additional District

Judge, Kurnool.

VI Addl. District Court M.V.O.P.No.560/091

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-

CUM-IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: - Sri K. Sai Mohan., M.A., M.S., (PR)., LL.B.,(Hon’s) Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool. Monday the 30th day of July, 2012.

M.V.O.P.No.560 of 2009.

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1. P.Obulamma W/o.Late P.Laxmanna, Aged about 38 years, Hindu, coolie,

2. P.Rani W/o.Madhu, Aged about 20 years, Hindu, coolie,

3. P.Laxmi D/o.Late P.Laxmanna, Aged about 19 years, Hindu, coolie

4. P.Rama Devi D/o.Late P.Laxmanna, Aged about 15 years, Petitioner No.4 being minor rep. by their next friend Natural guardian

and

their mother petitioner No.1 All are R/o.Kocheruvu Village, Dhone Mandal, Kurnool District. … Petitioners. -Versus-

1. G. Thimmaiah S/o.G.Sunkanna, Major, Owner of Lorry, R/o.H.No.21-111, Kondapeta, Dhone Town and Mandal Kurnool District..

2. National Insurance Company Limited rep., by its Divisional Manager, Anantapur. … Respondents.

This petition coming on this day i.e., on 23-07-2012 for final hearing before me in the presence of Sri M.L.Srinivasa Reddy, Advocate for the petitioner and of Sri P.Sunkanna, Advocate for the second respondent, and the first respondent remained exparte and upon hearing the arguments and having stood over for consideration, till this day, this court made the following:

O R D E R

The legal representatives and dependants of the deceased

P.Laxmanna made a claim for the compensation of Rs.3,50,000/- against the respondents 1 and 2 U/s 166 of M.V.Act 1988.

2.The facts set out in the petition briefly are that the deceased

P.Laxmanna who was working as cleaner for the Lorry bearing No.AP 21 X 8913 was going in the said Lorry on duty and when the lorry reached near

Peraipalli Metta on Kadapa Nandyal road, N.H.No.18, was driven at high speed and in rash and negligent manner by its driver and so he lost his control and dashed against the stationed lorry on the left side of the road

VI Addl. District Court M.V.O.P.No.560/092 bearing No.AP 21 T 3224 and later fell into a near by ditch as a result of which, he sustained fatal injuries and died on spot.

3.First respondent owner of the lorry was remained exparte, where as the second respondent insurance company filed counter with the following brief contentions that the accident was occurred exactly not due to rash and negligent driving of the driver of the lorry bearing No.AP 21 X 8913, the factum of which accident shall be established by the petitioners by producing substantial evidence. There is also no proof that the deceased was cleaner to the said lorry and he was traveling in the lorry as on duty, but he was traveling as un authorized passenger.

4.Further the driver of the crime vehicle was also not possessing valid and effective driving licence as on the date of accident. The owner of the lorry has not valid the statutory provisions of M.V.Act and also valid the terms and conditions of the insurance policy and so the insurance company is not liable to pay any compensation to the petitioners. Further it is learnt that the lorry bearing No.AP X 8913 dashed against the lorry bearing No.AP 21 T 3224 as it was suddenly stopped without taking required precautions and so the entire negligence was on the part of driver of lorry AP 21 T 3224.

The claim of the petitioner is also highly excessive and exorbitant.

5.The following issues have been settled for the trial of O.P.

1. Whether the accident occurred due to rash

and negligent driving of the driver of Lorry

bearing No. AP X 8913?

2. Whether the claimant is entitle to the

compensation of Rs.3,50,000/- or to what

just amount and from whom the same shall

be recovered?

3. To what relief?

6.The first petitioner wife of the deceased was examined as PW.1 where as one R.Srinivasa Singh, eye witness to the occurrence of accident

VI Addl. District Court M.V.O.P.No.560/093 was examined as PW.2 and produced the certified copy of FIR, Inquest

Report, P.M.Report, Charge Sheet under Ex.A.1 to A.4 in order to establish their claim for compensation. The Insurance Company got examined its working Assistant as R.W.1 and produced the certified copy of policy under

Ex.B.1 to disprove the claim of the petitioners. R.2 was also accorded permission U/s 170 of M.V.Act to defend its case on all aspects since R.1 the owner of the vehicle was remained exparte.

7.Issue No.1:- The claim is made for the compensation of

Rs.3,50,000/- by the wife and the children of the deceased Laxmanna, since he died in the accident occurred on 02-07-2009 while traveling in lorry bearing No.AP 21 X 8913 as cleaner on duty.

8.The fact that the deceased died in the lorry accident when it had hit the stationed lorry AP 21 T 3224 is undisputed. But the rash and negligent driving of the driver of the said lorry AP 21 X 9813 has been attributed against its driver since he dashed against the stationed lorry AP 21 T 3223 for the no fault of its driver or owner.

9.The petitioner also produced certified copies of FIR and Charge

Sheet, under Ex.A.1 and A.4 to reveal the circumstances which caused the accident. Admittedly the accident was occurred not due to any mechanical defect of the offending vehicle, as it is also nor the case of either of the parties.

10.It is only the driver of the offending vehicle AP 21 X 8913 who was prosecuted for his rash and negligent driving by filing the charge sheet in C.C.No.254/2009 by police, which is evident by Ex.A.4. R.1 the owner of the lorry was remained exparte and made no contest, there by conceding for his vicarious liability because of rash and negligent driving of his driver. But it is only R.2 who has declined for its liability on the score that there was also contributory negligence on the part of the driver and owner of stationed lorry AP 21 T 3224, since parked the vehicle on the

VI Addl. District Court M.V.O.P.No.560/094 road without following required precautions and also as the driver of the crime lorry AP 21 X 8913 had no valid and subsisting licence dashed at the time of accident.

11.The second respondent raised another serious objection to ascribe for the liability of the insurance company, as the deceased was traveling in the said lorry not on duty as cleaner but only as un authorized passenger.

12.The intriguing question whether the deceased was a lorry cleaner on duty or un authorized passenger will be discussed and decided at later and relevant point. But now the question is with regard to factum of accident. Second respondent has not produced any sort of evidence to reveal the different circumstances also to attribute contributory negligence against the crew of the stationed lorry likewise he also did not produce any satisfactory evidence to prove that the driver of the crime lorry bearing

No.AP 21 X 8913 was not possessing valid and effective driving licence.

The respondents cannot throw liability against the petitioners to prove the category of licence held by the driver of the crime lorry, as it is their burden. The first respondent has not raised any such objection perhaps for the reason and to its own his liability. But the respondent Insurance

Company has also not initiated any legal steps to cause produce driving of crime lorry. In order to prove that he was possessing no valid and effective driving licence. Therefore the respondent Insurance Company cannot skip of its liability on that score.

13.Now the core question is whether the deceased was traveling in the crime lorry as un authorized passenger or as cleaner on duty. It is the owner of the vehicle who is competent to speak to the same fact but he was remained exparte and made no contest. Merely because the owner of the vehicle is remained exparte, it would not an indication to infer for his any collusion with the petitioners. The second respondent,

VI Addl. District Court M.V.O.P.No.560/095 simply by entertaining same doubt, cannot deny for his any liability. The petitioners no doubt did not produce any other evidence to reveal the fact that the deceased was working as cleaner to the same lorry met with accident. But the certified copies of Inquest report and P.M.Report produced under Ex.A.2 and A.3 are clearly showing as the deceased was cleaner for the lorry AP 21 X 8913. It is also disclosed from the investigation of the police as deceased died since the crime lorry AP 21 X 8913 met with accident, while the deceased was traveling in the said lorry only as a cleaner but not passenger. The second respondent the only contesting party has not produced any evidence in contra and to elicit fact that the deceased was traveling in the said lorry only as un authorized passenger.

14.It cannot be expected that the owner of the lorry would maintain any record also to show that the deceased was working as a cleaner and for his any salary particulars. Generally both driver and cleaner would travel in the lorry whenever it is enrouted for any trip.

Therefore it cannot be expected that the driver was taking the lorry without the cleaner at the time of accident. Therefore the deceased died in the accident when he was traveling as cleaner and as the accident was caused since driven by its driver in rash and negligent manner.

15.Therefore R.1 as owner and R.2 as Insurance Company since rendered the policy to the crime vehicle under the original of Ex.B.1 which was in force by the date of accident are jointly and severally liable to pay compensation to whatever quantum the petitioner is entitled. Accordingly this issue is answered.

16.Issue No.2:- Now the crucial question is whether the petitioners are entitle to claim for compensation for Rs.3,50,000/- or to what just amount?

VI Addl. District Court M.V.O.P.No.560/096

17.The first petitioner is wife, petitioners 2 to 4 are the minor children of deceased Laxmanna which relationship is not disputed.

Therefore the petitioners are legal representatives and dependants of the deceased. From the evidence of PW.1 the wife of the deceased it is disclosed that her husband was working as a lorry cleaner to the crime vehicle AP 21 X 8913 and drawing monthly salary of Rs.4,000/- and because of his sudden death, they had lost not only his love and affection but also dependency. However the petitioners could not produce any documentary evidence to prove for his actual income. R.2 is the owner of the same lorry who employed the deceased as his cleaner. But he was remained exparte and made no contest and thereby it shall be presumed that the deceased was being paid Rs.4,000/- per month towards his monthly salary by him. However the respondent Insurance Company raised strong objection to consider for the same salary being drawn by the deceased, as it is the total denial even for his working as lorry cleaner. But it has already been elaborately discussed and decided in the foregoing issue, that the deceased died in the accident, while traveling in the said lorry only as cleaner but not as un authorized passenger. Any cleaner cannot be expected to work for the salary for less than Rs.4,000/- it is guaranteed by the government even under AP Minimum Wages Act for the minimum salary of Rs.5,000/- for a cleaner of any Motor Vehicle. The learned counsel for the petitioners also produced the notification issued by

G.O.Ms.No.90, LET and F (Lab.II) dept., dt.28-09-2007 as issued by minimum rates of wages in employment in private Motor Transport with fact from 01-10-2010 to 31-03-2011, where in the details of the salary to be drawn by cleaner which shown at









VI Addl. District Court M.V.O.P.No.560/097 13,370.006.401760.005,130.00

18. Therefore it is the minimum of Rs.5,130/- which a lorry cleaner expected to get towards monthly salary. However the petitioners put it for only Rs.4,000/- towards monthly salary of the deceased. It is most reasonable and justified and so the same is taking into consideration for the reaching of the annual income of the deceased to Rs.48,000/-

19.In order to determine the loss of dependency, loss of income suffered by the family of the deceased shall be capitalized with the appropriate multiplier which shall be decided by taking into consideration the age of the deceased at the time of his death.

20.The deceased died at the age of 39 even as shown in Ex.A.2 and Ex.A.3 certified copies of Inquest and P.M.Report. When the age of the deceased is taken for 39 years the appropriate multiplier will be 16 as given under second schedule of Sec 163 A for the persons with the age group of 35 years not exceeding 40 years.

21.When the deceased was getting annual income of Rs.48,000/-, considering the strength of the family consisting of only wife and childrens (petitioners 2 to 4), it is expected for his contribution of at least 2/3rd of his income to the benefit of the family, while keeping the remaining 1/3rd of his income for his personal expenses.

22.Therefore it is expected that the deceased was contributing

Rs.32,000/- to the benefit of the family while spending Rs.16,000/- towards his personal expenses.

23.Therefore the loss of dependency comes to Rs.32,000 X 16= 5,12,000/-.

24.Therefore the petitioners are entitled for the compensation of

Rs.5,12,000/- on account of sudden demise of the deceased but the petitioners are also entitled for Rs.3,000/- towards funeral expenses and

Rs.5,000/- towards loss of estate and also for exclusive amount of

VI Addl. District Court M.V.O.P.No.560/098

Rs.5,000/- payable to the first petitioner as she had lost the company of her husband at her age of 38 years and therefore the petitioners are totally entitle for Rs.5,25,000/- towards compensation.

25.But the petitioners claimed for the compensation restricted to

Rs.3,50,000/- including the loss of consortium exclusively payable to the first petitioner, which is more justified and reasonable also granted for

Rs.3,50,000/- which shall be recovered from R.1 and R.2 by their joint and several liability.

26.Now the petitioners are entitled to receive the same amount by apportionment considering their relationship with the first petitioner is the wife of the deceased and she had lost the company of her husband at her age of 38 years also entitle for loss of consortium and so she is granted Rs.1,25,000/- petitioners 2 to 4 are daughters and so they are granted Rs.75,000/- to each totaling Rs.2,25,000/-.

27.Issue No.3:- In the result, the petition is allowed and award is passed for the compensation of Rs.3,50,000/- with costs and interest at the rate of 9% per annum from the date of petition till the date of realization against R.1and R.2 by their joint and several liability and time granted for 30 days for depositing the awarded amount of Rs.3,50,000/- by

R.2.

28.On such deposit, the first petitioner is entitle to withdraw

Rs.50,000/- out of the awarded amount of Rs.1,25,000/-, while the remaining amount shall be deposited in any nationalized bank for a period of 2 years. The amount awarded to the petitioners 2 to 4 is at Rs.75,000/- each, P.4 being minor, shall be deposited in any nationalized bank till she attains majority. P.2 and P.3 are permitted to withdraw the entire amount.

29.Advocate fee is fixed at Rs.3,500/-.

30.R.2 is granted relief U/s 170 of M.V.Act.

VI Addl. District Court M.V.O.P.No.560/099

31.If any amount is paid under no fault liability U/s 140 of M.V.Act, the same amount shall be deducted proportionately from the awarded amount to the petitioners.

Dictated to the Personal Assistant, corrected and pronounced

by me in open Court, this the 30 th day of July, 2012.

Chairman, Motor Accidents Claims Tribunal cum IV Additional District Judge, Kurnool.

Appendix of Evidence

Witnesses examined.

For Petitioner For Respondent

PW1. P. ObulammaRW.1.C.Pavitra Kumar PW2. R. Srinivasa Singh

Exhibits marked for the Petitioner.

Ex.A1. C.C. of FIR. Ex.A2. C.C. of Inquest Report. Ex.A3. C.C. of P.M.Certificate. Ex.A4. C.C. of Charge Sheet.

marked for the Respondents.

Ex.B.1.Policy Copy.

Chairman, Motor Accidents Claims Tribunal cum IV Additiional District

Judge, Kurnool.

IV Addl. District Court. M.V.O.P.No.495/081

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-

CUM-IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: - Sri K. Sai Mohan., M.A., M.S., (PR)., LL.B.,(Hon’s) Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool. Tuesday the 31st day of July, 2012.

M.V.O.P.No.495 of 2008.

---

1. S. Padma S/o S.Maddilety, aged about 16 years, Rep. by its next friend i.e., father S.Maddilety S/o Ayyanna, aged about 40 years, R/o H.No.40/702, Dharmapeta, Kurnool. … Petitioner. -Versus-

1. Ch. Sambasiva Rao S/o Venkateswara Rao, Major, Owner of Tipper bearing No.AP.16.W.1790, R/o H.No.59A-15/2, Bhadraiah Nagar, Patamata, Andhra Pradesh.

2. M/s. The Oriental Insurance Company Limited rep., by its Divisional Manager, Kurnool. … Respondents.

This petition coming on this day i.e., on 27 -07-2012 for final hearing before me in the presence of Sri A. Rama Subba Reddy, Advocate for the petitioner and of Sri R.M.Sampath Kumari, Advocate for the second respondent, and the first respondent remained exparte and upon hearing the arguments and having stood over for consideration, till this day, this court made the following:

O R D E R

The petitioner being minor represented by father, the natural guardian filed this petition claiming compensation of Rs.1,00,000/- against the respondents 1 and 2 U/s 166 of M.V.Act 1988.

2.The facts set out in the petition briefly are that on 28-01-2007 the petitioner along with her sister and other persons were coming to Kurnool by traveling in a Lorry. But the lorry was dashed by the opposite coming

Tipper AP.16.TW.1790, since it was driven at high speed and in rash and negligent manner as a result of which the petitioner and other persons traveling in the lorry sustained with injuries. The petitioner was immediately taken to Siri Noble Hospital Kurnool and took treatment as inpatient for about one month by also spending an amount of Rs.5,000/- towards medical and attendant charges. Her right hand ring fingers had cut resulting in amputation and so she is suffered partial permanent disability. She was earning Rs.1,000/- per month by working as servant maid. Hence claim is made for Rs.1,00,000/-.

IV Addl. District Court. M.V.O.P.No.495/082

3.The first respondent owner of the crime Tipper was remained exparte and made no contest.

4.The second respondent Insurance Company represented by its standing counsel filed counter by raising the following brief contentions that the accident occurred exactly not due to any rash and negligent driving of the driver of the Tipper, the factum of which shall be proved by the petitioner by producing substantial evidence. The petitioner shall also prove her age and earnings by working as servant maid and also for her sustaining injuries resulting in amputation of right ring finger causing permanent disability.

Further the driver of the Tipper was also not having valid and effective driving licence at the time of accident and thereby R.1 the owner of the

Tipper had violated the terms and conditions of the policy. There was also contributory negligence on the part of the driver of the lorry for which the petitioner was traveling and so the non joinder of owner and Insurance

Company of their Lorry are also necessary parties.

5.The claim of the petitioner is also highly excessive and exorbitant.

6.The issues here under have been settled for the trial of O.P.

1. Whether the petitioner sustained injuries in a

motor accident that was occurred on 28-01-

2007

at about 1.30 p.m., on account of rash and

negligent driving of driver of Tipper registration

bearing No.AP 16 TW 1790 belongs to the first

respondent and insured with second respondent?

2. Whether the petitioner is entitled to claim

compensation, if so to what amount and from

which of the respondents?

3. To what relief?

7.The petitioner being minor got examined her father as PW.1 along with one K. Kishore Kumar eye witness to the occurrence of accident as

IV Addl. District Court. M.V.O.P.No.495/083

PW.2 and also the orthopedic surgeon of Siri Noble Hospital, who rendered treatment to her as PW.3 and exhibited the certified copies of FIR, Charge

Sheet, Wound Certificate under Ex.A.1 to A.3 and the bunch of medical bills under Ex.A.4 in order to prove her claim for compensation. The second respondent, the only contesting party however has not chosen to adduce any either oral or documentary evidence to disprove the claim of the petitioner.

But the second respondent was accorded permission U/s 160 of M.V.Act to defend its case on all aspects. Since R.1 the owner of the crime Tipper was remained exparte.

8.Issue No.1:- The clam is made by the petitioner for the compensation of Rs.1,00,000/- as she sustained injuries in the accident occurred on 28-01-2007.

9.The petitioner is a minor aged about 16 years and so got represented by her father the natural guardian who was examined as PW.1.

It is undisputed fact that the petitioner sustained with accident when she was traveling in a lorry to come to Kurnool along with her sister and other persons, as it was dashed by the opposite coming Tipper bearing No.

AP.16.TW.1790. PW.1 is admittedly not an eye witness but one of the eye witnesses was examined as PW.2 who made it clear that when he was traveling in the same lorry along with the minor daughters of PW.1, the lorry was hit by the opposite coming Tipper bearing No. AP.16.TW.1790 since it was driven at high speed and in rash and negligent manner. The petitioner also produced the certified copies of FIR and Charge Sheet under Ex.A.1 and

A.2 to reveal the same circumstances which caused the accident. The first respondent owner of the vehicle was remained exparte and made no contest and thereby he conceded for his vicarious liability because of rash and negligent driving of the Tipper by its driver. Admittedly the accident was occurred not due to any mechanical defect, since not challenged for the same. The second respondent, except throwing the burden against the petitioners has not elicited any sort of evidence to reveal the different

IV Addl. District Court. M.V.O.P.No.495/084 circumstances which caused the accident so as to absolve the liability of the driver of the Tipper. It is only the driver of the Tipper who was prosecuted for his rash and negligent driving by filing charge sheet, under the original of

Ex.A.2 by police.

10.Therefore it is no other than the driver of the Tipper who caused the accident and nothing is elicited also to presume for any contributory negligence on the part of the lorry in which the petitioner and other injured were traveling.

11.Therefore R.1 as owner of the Tipper and R.2 the Insurance

Company since rendered policy to the crime vehicle which was in force as on the date of accident are jointly and severally liability to pay compensation to the petitioner to what amount she is entitled. Accordingly this issue is answered.

12.Issue No.2:- Now the crucial question is whether the petitioner is entitle for the compensation of Rs.1,00,000/- or to what just amount?

13.The evidence of PW.1 disclosed that his daughter who was aged about 16 years sustained with crush injury to right ring finger, second finger and the same was amputated and she also received injury to her right elbow.

He produced certified copies of wound certificate under Ex.A.3 which disclosed the injury for the loss of half fringe at the middle inter phalange joint of right ring finger and the same is also described as grievous injury.

PW.3 the Orthopeadic Surgeon of Siri Noble Hospital who attended on her for rendering treatment and conducted operation also made clear that the petitioner was admitted into hospital with loss of half of right ring finger at the level of middle inter phalange. After conducting arbitration of the same finger she was discharged from hospital on 29-01-2007 and she was prescribed for using of medicines. The disability suffered by the petitioner because of loss of finer is assessed for 8% partial permanent. But the case sheet of the patient could not be produced since lost during floods. Nothing has been suggested to differ from his assessment since not cross-examined.

IV Addl. District Court. M.V.O.P.No.495/085

14.Therefore the petitioner having sustained with injury to her ring finger also lost the same because of amputation which made her to suffer at 8% of partial permanent disability but the petitioner was minor and not earning person for assessing the disability of 8% suffered by her because of amputation of ring finger at the base level and also being it a grievous injury, she is granted Rs.20,000/- towards injury and Rs.50,000/- for the disability suffered by her.

15.The petitioner is also granted Rs.15,000/- for pain and suffering because of the nature of injury sustained by her.

16.The petitioner also made a separate claim for Rs.5,000/- towards medical and transport expenses and also produced the bunch of medical bills under Ex.A.4 for the total amount of Rs.1,700/- but without corresponding prescriptions which was also not suggested to PW.3 for the using of same medicines on giving any prescriptions. When it is fact that the petitioner took treatment in Siri Noble Hospital after her discharging from Government

Hospital and underwent surgery for amputation by PW.3 it cannot be expected that she was given the same treatment free of cost and she made a claim only for Rs.5,000/- by producing the bills of total amount of

Rs.1,700/-. By considering the nature of injuries and in the circumstances she is granted Rs.2,000/- towards medical and hospital expenses.

17.The petitioner however made a separate claim for Rs.6,000/- towards loss of earning but without proof that she is earning Rs.1,000/- by working as maid servant. It cannot be expected that she being a minor also earning any such amount by working as maid servant in the absence of any evidence. However the petitioner is already granted Rs.50,000/- for her suffering with 8% of partial permanent disability considering all other aspects for the loss of amenities.

18. Therefore the petitioner is totally granted 87,000/- towards compensation for the bodily injuries sustained by her.

IV Addl. District Court. M.V.O.P.No.495/086

19. In the result, the petition is partly allowed granting Rs.87,000/- towards compensation with proportionate costs and interest at the rate of 9% per annum from the date of petition till the date of realization against R.1 and R.2 by their joint and several liability.

20.R.2 is granted time for 30 days for depositing the awarded amount of Rs.87,000/- and the same amount shall be deposited in any nationalized bank till the petitioner attains majority she being minor.

21.Advocate fee is fixed at Rs.1,500/-

22.R.2 is granted relief U/s 170 of M.V.act.

Dictated to the Personal Assistant, corrected and pronounced by

me in open Court, this the 31 st day of July, 2012.

Chairman, Motor Accidents Claims Tribunal cum IV Additional District Judge, Kurnool.

Appendix of Evidence

Witnesses examined.

For Petitioner For Respondent

PW1. S. Maddilety (guardian) PW2. K. Kishore Kumar PW3. Dr.D.V. Ramana

Exhibits marked for the Petitioner.

Ex.A1. C.C. of FIR. Ex.A2. C.C. of Charge Sheet. Ex.A3. C.C. of Wound Certificate. Ex.A4. Bunch of medical bills.

marked for the Respondents.

Nil.

Chairman, Motor Accidents Claims Tribunal cum IV Additiional District Judge, Kurnool.

IV Addl. District Court. M.V.O.P.No.496/081

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-

CUM-IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: - Sri K. Sai Mohan., M.A., M.S., (PR)., LL.B.,(Hon’s) Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool. Tuesday the 31st day of July, 2012.

M.V.O.P.No.496 of 2008.

---

1. S. Saraswathi,D/o S.Maddilety, Aged about 14 years, Rep. by its next friend i.e., father S.Maddilety S/o Ayyanna, aged about 40 years, R/o H.No.40/702, Dharmapeta, Kurnool. … Petitioner. -Versus-

1. Ch. Sambasiva Rao S/o Venkateswara Rao, Major, Owner of Tipper bearing No.AP.16.W.1790, R/o H.No.59A-15/2, Bhadraiah Nagar, Patamata, Andhra Pradesh.

2. M/s. The Oriental Insurance Company Limited rep., by its Divisional Manager, Kurnool. … Respondents.

This petition coming on this day i.e., on 27-07-2012 for final hearing before me in the presence of Sri A. Rama Subba Reddy, Advocate

for the petitioner and of Sri R.M.Sampath Kumari, Advocate for the second

respondent, and the first respondent remained exparte and upon hearing the arguments and having stood over for consideration, till this day, this court made the following:

O R D E R

The petitioner being minor represented by father, the natural guardian filed this petition claiming compensation of Rs.1,00,000/- against the respondents 1 and 2 U/s 166 of M.V.Act 1988.

2.The facts set out in the petition briefly are that on 28-01-2007 the petitioner along with her sister and other persons were coming to

Kurnool by traveling in a Lorry. But the lorry was dashed by the opposite coming Tipper AP.16.TW.1790, since it was driven at high speed and in rash and negligent manner as a result of which the petitioner and other persons traveling in the lorry sustained with injuries. The petitioner was immediately taken to Siri Noble Hospital Kurnool and took treatment as inpatient for about one month by also spending an amount of Rs.5,000/- towards medical and attendant charges. She has received injury to her right fore arm and so she is suffered partial permanent disability. She was

IV Addl. District Court. M.V.O.P.No.496/082 earning Rs.1,000/- per month by working as servant maid. Hence claim is made for Rs.1,00,000/-.

3.The first respondent owner of the crime Tipper was remained exparte and made no contest.

4.The second respondent Insurance Company represented by its standing counsel filed counter by raising the following brief contentions that the accident occurred exactly not due to any rash and negligent driving of the driver of the Tipper, the factum of which shall be proved by the petitioner by producing substantial evidence. The petitioner shall also prove her age and earnings by working as servant maid and also for her sustaining injuries resulting in amputation of right fore arm causing permanent disability. Further the driver of the Tipper was also not having valid and effective driving licence at the time of accident and thereby R.1 the owner of the Tipper had violated the terms and conditions of the policy. There was also contributory negligence on the part of the driver of the lorry for which the petitioner was traveling and so the non joinder of owner and Insurance Company of their Lorry are also necessary parties.

5.The claim of the petitioner is also highly excessive and exorbitant.

6.The issues here under have been settled for the trial of O.P.

1. Whether the petitioner sustained injuries in a

motor accident that was occurred on 28-01-

2007 at about 1.40 p.m., on account of rash

and negligent driving of driver of Tipper

registration bearing No.AP 16 TW 1790

belongs

to the first respondent and insured with

second respondent?

2. Whether the petitioner is entitled to claim

compensation, if so to what amount and from

which of the respondents?

IV Addl. District Court. M.V.O.P.No.496/083

3. To what relief?

7.The petitioner being minor got examined her father as PW.1 along with one K. Kishore Kumar eye witness to the occurrence of accident as PW.2 and also the orthopedic surgeon of Siri Noble Hospital, who rendered treatment to her as PW.3 and exhibited the certified copies of

FIR, Charge Sheet, Wound Certificate under Ex.A.1 to A.3 and the bunch of medical bills under Ex.A.4 in order to prove her claim for compensation.

The second respondent, the only contesting party however has not chosen to adduce any either oral or documentary evidence to disprove the claim of the petitioner. But the second respondent was accorded permission U/s 160 of M.V.Act to defend its case on all aspects. Since R.1 the owner of the crime Tipper was remained exparte.

8.Issue No.1:- The clam is made by the petitioner for the compensation of Rs.1,00,000/- as she sustained injuries in the accident occurred on 28-01-2007.

9.The petitioner is a minor aged about 14 years and so got represented by her father the natural guardian who was examined as

PW.1. It is undisputed fact that the petitioner sustained with accident when she was traveling in a lorry to come to Kurnool along with her sister and other persons, as it was dashed by the opposite coming Tipper bearing No. AP.16.TW.1790. PW.1 is admittedly not an eye witness but one of the eye witnesses was examined as PW.2 who made it clear that when he was traveling in the same lorry along with the minor daughters of PW.1, the lorry was hit by the opposite coming Tipper bearing No. AP.16.TW.1790 since it was driven at high speed and in rash and negligent manner. The petitioner also produced the certified copies of FIR and Charge Sheet under Ex.A.1 and A.2 to reveal the same circumstances which caused the accident. The first respondent owner of the vehicle was remained exparte

IV Addl. District Court. M.V.O.P.No.496/084 and made no contest and thereby he conceded for his vicarious liability because of rash and negligent driving of the Tipper by its driver.

Admittedly the accident was occurred not due to any mechanical defect, since not challenged for the same. The second respondent, except throwing the burden against the petitioners has not elicited any sort of evidence to reveal the different circumstances which caused the accident so as to absolve the liability of the driver of the Tipper. It is only the driver of the Tipper who was prosecuted for his rash and negligent driving by filing charge sheet, under the original of Ex.A.2 by police.

10.Therefore it is no other than the driver of the Tipper who caused the accident and nothing is elicited also to presume for any contributory negligence on the part of the lorry in which the petitioner and other injured were traveling.

11.Therefore R.1 as owner of the Tipper and R.2 the Insurance

Company since rendered policy to the crime vehicle which was in force as on the date of accident are jointly and severally liability to pay compensation to the petitioner to what amount she is entitled.

Accordingly this issue is answered.

12.Issue No.2:- Now the crucial question is whether the petitioner is entitle for the compensation of Rs.1,00,000/- or to what just amount?

13.From the evidence of the petitioner it is disclosed that his daughter PW.1 minor aged about 14 years sustained with injury to right fore arm. Ex.A.3 the certified copies of Wound Certificate disclosed only for the loss of skin measuring 15 cms X 15 cms on right fore arm which is described as grievous injury but not disclosed for any other injuries.

14.The petitioner has also not produced any disability certificate and therefore she is entitled for the compensation only towards grievous injury which she sustained and so she is granted Rs.20,000/-. She is also

IV Addl. District Court. M.V.O.P.No.496/085 granted Rs.10,000/- towards pain and suffering because of the nature of injury.

15.The petitioner also made a separate claim for 5,000/- towards medical and transport expenses and produced the bunch of medical bills under Ex.A.4 but without corresponding prescriptions. However she took treatment in private hospital Siri Noble Hospitals, Kurnool after her discharging from Government Hospital and so she is granted Rs.2,000/- towards Hospital and Medical expenses considering the nature of injury.

The petitioner also made a separate claim for Rs.59,000/- towards loss of earnings but she being a minor aged about 14 years cannot be expected to do any work and there is also no proof for her earning Rs.1,000/- per month by working as a servant maid. However by considering the fact and as she cannot work properly even as a servant maid in future she is granted Rs.8,000/- towards loss of earning. The petitioner is totally granted Rs.40,000/-. Therefore the petitioner is entitle for the compensation of Rs.40,000/- towards bodily injuries sustained in the accident which shall be payable by R.1 and R.2 by their joint and several liability.

16.Issue No.3:-In the result, the petition is partly allowed granting Rs.40,000/- towards compensation with proportionate costs and interest at the rate of 9% per annum from the date of petition till the date of realization against R.1 and R.2.

17.R.2 is granted 30 days time for depositing the awarded amount of Rs.40,000/- and on such deposit, the amount shall be deposited in any nationalized bank till the petitioner attains majority she is being minor.

18.Advocate fee is fixed at Rs.1,500/-

19.R.2 is granted relief U/s 170 of M.V.act.

Dictated to the Personal Assistant, corrected and pronounced

by me in open Court, this the 31 st day of July, 2012.

IV Addl. District Court. M.V.O.P.No.496/086

Chairman, Motor Accidents Claims Tribunal cum IV Additional District Judge, Kurnool.

Appendix of Evidence

Witnesses examined.

For Petitioner For Respondent

PW1. S. Maddilety (guardian) PW2. K. Kishore Kumar PW3. Dr.D.V. Ramana

Exhibits marked for the Petitioner.

Ex.A1. C.C. of FIR. Ex.A2. C.C. of Charge Sheet. Ex.A3. C.C. of Wound Certificate. Ex.A4. Bunch of medical bills.

marked for the Respondents.

Nil.

Chairman, Motor Accidents Claims Tribunal cum IV Additiional District

Judge, Kurnool.

IV Addl. District Court. Crl.Rev.Petition No.44/20121

IN THE COURT OF THE IV ADDITIONAL DISTRICT AND SESSIONS

JUDGE, KURNOOL.

Present:- Sri K.Sai Mohan., M.A., M.S., (P.R.)., LL.B., (Hon’s)

IV Addl.District and Sessions Judge, Kurnool.

Tuesday the 21 st day of August, 2012.

Crl.Rev. Petition No.44 of 2012

---

B. Upendra S/o Janaki Ram, Aged about 39 years, Hindu, Pvt. Employee, R/o B/B-15, B.Camp, Kurnool. … Rev.Petitioner.

-Versus-

S. Satyanarayana S/o Subramanyam, 57 years, Hindu, Business, R/o H.No.49/50M, Madduru Nagar, Kurnool. … Respondent.

This Criminal Revision Petition coming on this day i.e., on 14-08- 2012 for final hearing before me in the presence of Sri R.Murali Krishna, Advocate for the petitioner and of Sri T. Eswar Babu, Advocate for the respondent, upon hearing the arguments and having stood over for consideration, till this day, this court made the following:-

O R D E R

This application is filed U/s 45 of Indian Evidence Act to refer the disputed cheque Ex.P.1 to the hand writing expert for his opinion with regard to the difference in hand writing age of ink of the columns therein, as it is his defence that he had issued only blank cheque in the year 2009 having borrowed a sum of Rs.30,000/- from the complainant towards security for the contents therein but it was manipulated as Ex.P.1 and so to prove that the Ex.P.1 cheque was issued long back in the year 2009 but not on the date of it i.e., 13-07-2011 for the amount of Rs.1,60,000/-.

2.The respondent complainant however resisted the petition by claiming that Ex.P.1 cheque was issued by the petitioner for the amount of

Rs.1,60,000/- on 13-07-2011 drawn on HDFC Bank Kurnool and so towards legally enforceable debt but not issued as blank cheque or towards any security of the existing debt of Rs.30,000/-. Therefore there is no necessity to refer Ex.P.1 cheque to any hand writing expert seeking for his opinion with regard to the difference of hand writing and the age of the ink.

IV Addl. District Court. Crl.Rev.Petition No.44/20122

3.But the learned Magistrate appreciating the facts in the case and submissions of the counsel appearing for both the parties, however has dismissed the petition and declined to refer Ex.P.1 cheque to any hand writing expert seeking for his opinion, on the ground that there has been inconsistent in the defence set up by the accused and also as there is no such expert to find out the difference of age of ink by adapting any scientific method, even as held by their lordships in the case of

V.Makesan

Versus

T.Dhanalakshmi

Reported in 2010 (1) Crimes 833 (Mad.)

4.The petitioners since aggrieved by the said order of the Learned

Magistrate, challenged for its illegality and correctness preferring this

Revision Petition U/s 379 Cr.P.C on the ground that the learned Magistrate has not appreciated the purpose of the petition as it is more helpful to find the truth in the transactions, since the Ex.A.1 cheque was issued not towards legally and enforceable debt on 13.07.2011 but it was issued in blank with his signature and later the contents were filed in which is very clear even by perusing by naked eye as there is change of ink in the contents and signature of the cheque with material alterations. However the learned

Magistrate by holding that it will be a futile exercise and no purpose will be

served in seeking opinion of the expert regarding age of the ink used for the writings in question, simply dismissed the petition, which order is against law and principles of natural justice.

5.Heard the learned counsel appearing for both the parties.

6.The only point for consideration is whether the disputed Ex.A.1 cheque may be referred to hand writing expert to obtain his report with regard to the hand writing and age of ink to find the differences of writings for the columns filled in and the signature of the issuer?

IV Addl. District Court. Crl.Rev.Petition No.44/20123

7.The issuing of Ex.A.1 cheque with the signature of the Revision

Petition in favour of the respondent is not disputed. But he claims as he issued the same cheque in blank as security towards the borrowed amount of Rs.30,000/- in the year 2009 where as the respondent/complainant claimed as said cheque was issued with its contents for the amount of

Rs.1,60,000/- on 13.07.2011 when demanded for the two pronote debts dt.11.12.2010 for Rs.1,00,000/- and dt.10.02.2011 for Rs.60,000/- as he fail to discharge the same. The fact with regard to the actual borrowing of the same pronotes debt and the issuing of cheque under Ex.A.1 is a different aspect which have to be discussed and decided by referring to the evidence on record, in order to decide for the existence of legally enforceable debt to make Ex.A.1 cheque is valid for its enforcement under Negotiable Instrument

Act.

8.The Revision petitioner having received the statutory notice issued to him by the respondent when the Ex.A.1 cheque was bounced and returned since dishonoured from the drawers bank under the office copy of

Ex.B.5 evident by Ex.B.6 Postal Acknowledgement, has not chosen to give reply eliciting the same fact for his issuing a blank cheque with his signature.

He has also not availed earliest opportunity to make a request to the court to refer the disputed cheque to any hand writing expert to obtain any such opinion with regard to the age of ink and so to prove the said cheque was issued not on the date mentioned there on i.e., 13.07.2011 but only in the year 2009. He could not also give any specific reason for his not able to giving exact date of the cheque issued in blank even as admitted by him.

But at belated stage after the evidence on both sides is at the verge of the close, and taken up for hearing arguments, in the case, he preferred this petition in Cr.M.P.No.2035/2012 to refer the disputed Ex.A.1 cheque to hand writing expert to elicit the same facts.

IV Addl. District Court. Crl.Rev.Petition No.44/20124

9.It is the settled law that there is no scientific method available so far to study the difference in the age of the ink used for the writings in any document to find out the difference and so to fix any particular period for creating such document.

10.The same are the views expressed by Their Lordships in the case of

V.Makesan

Versus

T.Dhanalakshmi

Reported in 2010 (1) Crimes 833 (Mad.)

as relied on by the learned counsel for the respondent/complainant since held that there is no expert in terms of Sec.45 of Evidence Act available who could be in a position to offer any opinion regarding the age of ink by adapting any scientific method.

11.The cited case also found with the similar facts, since sought for the opinion of the hand writing expert for the purpose of ascertaining age of the writings and the age of the ink used for the writing and as their lordships felt for no such availability of scientific method in finding out the difference age of the ink from one period to another period. Even in the case of the

Yes Pal

Versus

Kartar Singh

Reported in AIR 2003 Punjab & Haryana 344

relied on by the learned counsel for the respondent, their lordships held that there is no such investigation likely to hold to prove the difference of age of ink in order to elicit the fact that their writings dt.11.02.1988 brought to the litigation was in fact recorded much earlier.

12.Therefore the learned Magistrate has rightly held that to seek the report of expert after adducing the entire evidence by both the parties and when the same is available on record for perusal, it will be a futile effort. If

IV Addl. District Court. Crl.Rev.Petition No.44/20125 the disputed cheque is again sent to the hand writing expert seeking for his any opinion to find out such difference in the age of the ink, as there is no such scientific method available to the handwriting expert, as established by various case laws, it would be come mere waste of time, only to procrastinate the proceedings. Therefore the order of the learned Magistrate has not suffered with any legal infirmity and so to correct the same. The revision powers cannot be exercised U/s 397 Cr.P.C when there is no such glaring illegality or injustice carried on by the orders of the Lower Court and therefore the petition is devoid of merits and liable to be dismissed.

13.In the result, the revision petition is dismissed by confirming the order of the Lower Court in Cr.M.P.No.2035/12 in C.C.255/2012 dt.10-07-2012 passed by the Judicial Magistrate of First Class, Special Mobile Court, Kurnool.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open Court, this the 21st day of August, 2012.

IV Addl. District Judge,

Kurnool.