Sri K.Siva Prasad, District Judge, FAC

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

( Before the District Judge), Anantapur

Present: Sri K. Siva Prasad, B.Sc.,BL.,

Chairman-MACT-District Judge,

Wednesday, this the 21 st day of November, 2012.

O.P.No.154/2012

Between:-

Moodh Krishna Naik. … Petitioner.

A N D

APSRTC, Rep. by its Managing Director, Musheerabad, Hyderabad. … Respondent.

This petition coming on 19.10.2012 for hearing before me in the presence of Sri I. Ravindranath, Advocate for the petitioner and Smt K.Eswaramma, Advocate for the respondent and on perusing the records and upon consideration, this Tribunal passed the following :-

O R D E R

The petition is filed U/S.166 of Motor Vehicles Act for compensation of

Rs.5,83,247/- for the injuries sustained by the petitioner in road accident involving APSRTC BUS belonging to the respondent. The petitioner is working as Toll Assistant, Toll Plaza near Gooty in Anantapur District.

02. It is stated in the petition that the petitioner is working in the Toll

Plaza from 11.4.2011 and getting salary of Rs.7,500/- p.m. On 29.11.2011 he was on duty from 8:00 AM. At about 12:10 PM, the offending RTC Bus of

Kurnool one Depot came from Anantapur side and was stopped near the toll gate for endorsement on the tax ticket for return journey. The petitioner made an endorsement on the ticket and returned it to the driver. While so doing he was standing by the side and adjacent to the driver’s door near the toll booth. Immediately after receiving the endorsed toll ticket, the driver rashly, negligently and suddenly moved the bus and went ahead. As a result, the bus hit the petitioner and he fell aside and sustained injuries. On the passengers making hue and cry, the bus was stopped and the petitioner was shifted to Government Hospital, Anantapur in a private ambulance. He sustained permanent disability and police Peddavadugur registered 2

Cr.No.101/2011 against the driver of APSRTC Bus and investigated into.

Hence the petition.

03. The respondent filed the counter denying the allegations in the petition with regard to the manner of accident as narrated by the petitioner.

They pleaded that there was no negligence on the part of their bus driver. At the toll plaza space is congested at the ticket counters and therefore there is no enough place for the vehicles to pass freely. However the toll ticket collectors are the habit of standing between two counters to collect the toll amount from the vehicle. Likewise the petitioner was standing between two counters. After paying the toll free, the driver of the bus cautioned the petitioner to be careful, but the petitioner did not take care. The driver has moved forward the bus under the impression that the petitioner gave clearance and therefore there was no negligence on his part. In fact even after handing over the ticket to the driver, the petitioner stood between the two counters in order to stop the vehicle present on the back side of the RTC

Bus. Therefore the question of driving the bus in high speed and negligent manner does not arise. Therefore the petitioner is not entitled to compensation as prayed for. Hence the petition is liable to be dismissed.

04. On the basis of these pleadings, the following issues have been framed

1)Whether the accident occurred on 29.11.2011 due to rash and negligent driving of the driver of APSRTC Bus bearing No.AP-28-Z- 5197 and caused injuries to the petitioner?

2)Whether the petitioner is entitled for compensation and if so, to what amount and from which respondent ?

3)To what relief ?

05. PW.1 to 3 are examined and EXs.A-1 to A-19 are marked on behalf of the petitioner. RW.1 is examined and no documents marked on behalf of the respondent.

06. Issue No.1:- The petitioner is examined as PW.1 and Exs.A-1 to

A-3 crime records are marked to prove the accident and the nature of driving 3 of the driver of the offending bus. RW.1 is the conductor of the offending bus on the date of accident. Evidently the accident is not disputed. The petitioner/ PW.1 corroborated his pleadings with regard to the nature of driving, whereas RW.1 corroborated the version of the respondent in the written statement. The time of accident is in the afternoon and therefore there was no difficulty for the driver to take all precautions before moving the bus after paying the toll tax in the counter.

07. It is not the case of the respondent that the petitioner had come under the back side wheels of the bus. It is the case of the petitioner that soon after handing over the toll tax ticket to the driver, the bus was suddenly and negligently moved forward and as a result it hit him. According to him he fell aside due to the impact as the hitting by the bus. RW.1 admitted that any person standing by the side of the driver’s seat at the toll plaza will not be visible from conductor seat and that she was not examined by the police nor in the Departmental enquiry against the driver of the bus. Therefore what she has stated in the chief examination is hear say as such not reliable.

08. The evidence of PW.1 is consistent. His presence at the toll gate for the purpose of collecting the toll tax ticket is not disputed. The place of accident is just at the toll plaza collecting counter. The petitioner was attending duty out side the counter for the purpose of receiving the cash from the vehicles and handover receipts to the drivers. He denied the suggestion that he met with accident by negligently coming across the RTC bus and that the driver was not negligent in moving the vehicle after paying the toll tax ticket.

09. Ex.A-1 FIR has been lodged by one Dadapeera, who was one of the employees of the toll plaza. It is alleged in Ex.A-1 that the petitioner stood by the side of the bus driver and collected money and got the bill prepared and that even as he was handing over the receipt to the driver, the bus which was in starting position moved forward in order to go fast and in that process the front portion of the bus hit the petitioner, who was standing 4 on the right side of the bus and that the bus went away without stopping and that on the passengers raising hue and cry, it was stopped at a distance of half kms. Police investigated the crime and filed the charge sheet with a same opinion that the accident happened due to negligence of the driver. In the circumstances the theory of contributory negligence pleaded by the respondent is not sustainable. The issue is accordingly decided in favour of the petitioner.

10. Issue No.2:- Undisputedly the petitioner sustained fractures in the accident. Ex.A-2 is the certified copy of wound certificate issued by

Government General Hospital, Anantapur. This corroborates that the petitioner sustained fracture of both bones of right fore arm, fracture of iliac wing at the pelvis and fracture lower bone. To prove the gravity of injuries, the petitioner/ PW.1 stated that immediately after the accident he was shifted to Government Hospital, Anantapur and from there to YSR Memorial

Hospital, Anantapur and was treated from 29.11.2011 to 19.12.2011 and again he was admitted in the same hospital on 24.12.2011.

11. PW.2 is Chief of Orthopedics, Dr. YSR Memorial Hospital,

Anantapur. He deposed that PW.1 was admitted in their hospital on 29.11.2011 with a fracture pelvis left side, fracture both bones right fore arm, fracture clavicle left side with liver laceration with intra abdominal bleed with lung contusion injury. He was operated on 1.12.2011 and also 10.12.2011. The fractured bones were affixed with plates and screws. They have done plating of clavicle and iliac bone during surgery. He was discharged on 19.12.2011. Ex.A-13 is the discharge summary to that effect.

In the cross-examination he stated all the fractures on PW.1 are united and on the basis of the previous medical records and X-rays, he noted the injuries in the record. According to him PW.1 is now attending to his normal duties. Therefore it is obvious that the petitioner has sustained three grievous injuries, but not any permanent disability as such.

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12. It is the evidence of PW.1 that for his treatment in YSR Memorial

Hospital, Anantapur, he spent Rs.1,48,740/- towards medical bills. Ex.A-11 is the bunch of 65 medical bills to corroborate this crime. Ex.A-12 is the cash bill dated 29.11.2011 for Rs.1,80,000/- issued by the same hospital. Exs.A-4 to A-10 are the X-rays to prove the insertion of plates in the body of PW.12 during the course of surgery to repair the fractures. PW.2 corroborated that

Exs.A-11 and A-12 are the bonafide bills issued by their hospital / pharmacy and Exs.A-5 to A-10 are the X-rays obtained in their hospital.

13. Ex.A-12 is the cash bill issued by the hospital for the treatment during 29.11.2011 and 20.12.2011 for Rs.1,80,000/-. The bonafides of this bill is not disputed except suggesting to PW.2 that the treatment given in their hospital is also available in Government Hospital. Considering the gravity of the injuries and the evidence of PW.2, the claim of Rs.1,80,000/- for the treatment in the hospital cannot be stated as baseless and exaggerated. Therefore under the head of hospital expenses the petitioner can be awarded Rs.1,80,000/- as compensation.

14. Ex.A-11 is the bunch of 65 bills for aggregate sum of

Rs.1,48,740/- for the treatment during 29.11.2011 and 29.12.2011. The bills are issued in the pharmacy of the hospital which performed the surgery two times on PW.1. Therefore under the head of medicines, the petitioner can be awarded an aggregated sum of Rs.1,48,000/-.

15. The petitioner sustained three fractures. Considering the gravity of the injury and the length and nature of treatment provided to him, it would be reasonable to award an aggregate sum of Rs.45,000/- as compensation under the head of pain and suffering.

16. Evidently the petitioner was working in the toll plaza and getting salary of Rs.7,500/- p.m. Ex.A-15 is the salary certificate. PW.3 was accounts officer of the toll plaza during the relevant period. He corroborated that the petitioner was working as toll assistant and getting Rs.7,500/- per month.

Exs.A-15 and A-16 are the relevant documents to prove the salary of the 6 petitioner and also the date of accident. Therefore considering the length of treatment given to the petitioner, it would be reasonable to award a sum of

Rs.10,000/- ascompensation under the head of loss of income during the treatment period.

17. Under the head of extra nourishment, the petitioner is awarded a sum of Rs.3,000/-. Under the head of transportation expenses, he is awarded a sum of Rs.2,000/- in the absence of any transportation bills. In the light of the circumstances, the petitioner is entitled for aggregate compensation of Rs.3,88,000/- under all the heads. The issue is accordingly decided.

18. Issue No.3:- In the result, the petition is partially allowed against the respondent for compensation of Rs.3,88,000/- with proportionate costs and interest at 8% p.a from the date of the petition till the date of realization. The rest of the claim is dismissed. The respondent is directed to deposit the compensation into court within one month from the date of this order. On such deposit the petitioner is permitted to withdraw Rs.1,00,000/- immediately. The balance of compensation shall be kept in fixed deposit in any nationalized bank for a period of 2 years. Advocate fee is Rs.5,000/-.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in open court on this the 21st day of November, 2012.

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL

(DISTRICT JUDGE), ANANTAPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioner: Respondent:

PW.1 Moodh Krishna Naik. RW.1: P. Uma Devi. PW.2 Dr. Kethi Reddy Mohan Reddy. PW.3 C. Govinda Reddy.

Exhibits marked on behalf of petitioner.

Ex.A.1 Certified Copy of FIR dated 29.11.2011. Ex.A.2 Certified Copy Wound Certificate. Ex.A.3 Certified Copy of Charge Sheet. Ex.A.4 X-rays (5 in number) in one folder.

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Ex.A.5 CT Scan X-rays (7 in number) in a folder. Ex.A.6 X-ray dated 02.12.2011 after insertion of two plates in fore arm. Ex.A.7 X-ray dated 04.12.2011 after insertion of plate in shoulder bone. Ex.A.8 X-ray dated 07.12.2011 after insertion of plate in shoulder bone. Ex.A.9 X-ray dated 13.12.2011 after insertion of plate in left pelvis. Ex.A10 X-ray dated 24.12.2011 after insertion of plate in left shoulder bone. Ex.A11 Bunch of 65 medical bills for aggregate claim of Rs.1,48,740/- of YSR Memorial Hospital, Anantapur. Ex.A12 Cash bill dt.29.11.2011 for a sum of Rs.1,80,000/- of YSR Memorial Hospital, Anantapur. Ex.A13 Discharge Card dt.19.12.2011 issued by YSR Memorial Hospital, Anantapur. Ex.A14 Medical Certificate dt. Nil issued by YSR Memorial Hospital, Anantapur. Ex.A15 Salary-cum-Service Certificate dt.29.11.2011 issued by Administrative Officer of Satyanarayana Enterprises, Jaggampeta, Krishna District. Ex.A16 Accident Certificate dt.30.11.2011 issued by Administrative Officer of Satyanarayana Entrprises, Jaggampeta, Krishna District. Ex.A17 Office Copy of Legal Notice dt.10.1.2012 issued by me to APSRTC. Ex.A18 Postal receipts (2 in number)dt. 11.1.2012. Ex.A19 Postal acknowledgment dt.13.1.2012 signed by clerk, APSRTC.

Exhibits marked on behalf of respondent.

Nil

Chairman,

MACT (D.J).

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

(Before the District Judge), Anantapur

Present: Sri K. Siva Prasad, B.Sc.,BL.,

Chairman-MACT-District Judge,

Monday, this the 19 th day of November, 2012.

O.P.No.144/2011

Between:-

1. Chakala Lakshmaiah.

2. Chakala Lakshmidevi.

3. Chakala Varalakshmi.

4. Chakala Aswini.

5. Chakala Vasantha @ Chinni.

6. Chakala Manikanta. … Petitioners.

A N D

1. Rachineni Vasudeva.

2. The Oriental Insurance Company Ltd., Represented by its Divisional Manager, Anantapur. … Respondents

This petition coming on 31.10.2012 for hearing before me in the presence of Sri P.L. Eswara Reddy, Advocate for the petitioners and Sri

V.Krishna Sharma, Advocate for R-2 and the R-1 remained exparte, and on perusing the records and upon consideration, this Tribunal passed the following :-

O R D E R

The petition is filed U/S.166 of Motor Vehicles Act for compensation of

Rs.8,00,000/- for the death of one Chakala Nagaraju in road accident involving LMV Maxi Cab bearing No.AP-02-TA-0514 owned by the 1st respondent and insured by the 2nd respondent. The petitioners 1 and 2 are parents, the 3rd petitioner is wife and the petitioners 4 to 6 are minor children of the deceased.

02. It is pleaded that the deceased Nagaraju along with others had gone to Sabarimala on pilgrimage. In the return journey they started on 9.1.2011 in the offending vehicle. While so on 11.1.2011 at about 5:00 AM after crossing Danamaiahgari Palli Village on V Kota-Palamaneru Road, their vehicle met with accident due to dashing against a road side tree. As a result, the driver of the vehicle and the deceased died on the spot and the other inmates got injuries. This happened due to rash and negligent driving of the driver. The deceased was hale and healthy and 30 years old 2 washerman and earning Rs.300/- per day aggregating to Rs.8,000/- per month. He was contributing his income for the family. Hence, the petition.

03. The petitioners have filed I.A.433/2012 for enhancement of compensation and the same is allowed under orders dated 6.3.2012 enhancing the compensation from Rs.8,00,000/- to Rs.10,00,000/-.

04. The 1st respondent remained exparte, whereas the 2nd respondent filed the written statement admitting that the offending Jeep has been insured with their company and that the policy was in force as on the date of accident. However, the driver of the Jeep was not holding a valid and effective driving license at the time of accident. The insured has willfully and knowingly handed over the possession of the said vehicle to the driver who has not possessed valid driving license.

05. It is pleaded that the mandatory provisions u/s 134 (C) of the MV

Act and also Sec.158 (6) of the MV Act have not been fulfilled. The petitioners are not entitled to claim any interest on non-pecuniary damages.

The petitioners have to prove the age and income of the deceased as claimed in the petition. The claim is excessive and exorbitant and hence, it is liable to be dismissed.

06. On the basis of these pleadings, the following issues have been framed:-

1)Whether the accident occurred on 11.01.2011 due to rash and negligent driving of the driver of Jeep (LMV Maxi Cab) bearing

No.AP-02-TA-0514 and caused the death of the deceased ?

2)Whether the petitioners are entitled for compensation and if so, to what amount and from which respondent ?

3)To what relief ?

07. The 1st Petitioner examined himself as PW.1 and PWs.2 to 4 are examined on their behalf and marked EXs.A-1 to A-4. RW.1 and 2 are examined and Exs.B-1 to B-3 and Exs.X-1 and X-2 are marked on behalf of the respondents.

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08. Issue No.1:- The accident is not disputed. Ex.A-1 FIR, Ex.A-2

Inquest Report, Ex.A-3 PME Report and Ex.A-4 Final Report filed by S.I of

Police, V Kota P.S corroborate the case of the petitioners that the accident has taken place due to the rash and negligent driving of the deceased driver involving the offending vehicle and that the accident occurred on 11.1.2011 at about 5:00 AM at V. Kota - Palamaneru road, near Danamaiahgaripalli

Village. The death of the deceased, who was one of the passengers in the offending vehicle is accidental involving the offending vehicle in the road accident.

09. PW.4 is eye witness to the accident. He deposed that on 11.1.2011 at about 5:00 AM when their vehicle was proceeding between V. Kota

Palamaneru in Chittoor District, it dashed against one Eucalypts tree, that the deceased Nagaraju and the driver, who were in the front portion of the vehicle died on the spot and that the accident occurred due to rash and negligent driving of the driver. It is in the cross-examination that he sat on the right side of the back seat behind the driver and that the driver got driving license. He denied the suggestion that there was no negligent on the part of the driver and that the accident occurred due to overloading of the vehicle.

10. RW.1 is Officer of the 2nd respondent/Insurer. His evidence is obviously on the basis of the crime records. He gave evidence that more number of passengers were travelling in the vehicle at the time of accident.

However there is no evidence that overloading of the offending vehicle was the cause of the accident. The final report Ex.A-4 corroborates that the accident has taken place only due to rash and negligent driving of the driver of the offending vehicle, who also died in the same accident. In the circumstances, the issue goes in favour of the petitioners and against the respondents.

11. Issue No.2:- Ex.B-1 is the copy of the Insurance Policy. It shows that the offending vehicle was insured for effective period from 25.8.2010 to 4 24.8.2011. The accident dated 11.1.2011 is therefore well within the effective period.

12. RW.2 is Senior Assistant, DTC Office, Anantapur. He deposed that the driver C. Malla Reddy possessed LMV non-transport and LMV transport license with badge No.14394 valid up to 18.5.2011. Ex.X-2 is the extract of the driving license. It shows that the license has been issued on 5.12.1997 and the transport LMV has been issued on 19.5.2005 and has been renewed on 19.5.2008. It is therefore evident that the driver possessed a valid and effective license at the time of accident.

13. The deceased is not literate. As per the crime records he was 30 years old at the time of accident. PW.1 is his father. He stated in the cross- examination that the deceased may be 45 years old. PW.2 is the wife of the deceased. She is 26 years old. They have three children and their eldest child is 8 years old and they were married 15 years back. It is argued that considering the discrepancies in the evidence regarding age of the deceased, the evidence that the deceased was 30 years old is speculative and that for the purpose of the petition he can be taken as person of the age between 40 – 45 years. Since the petitioners have not filed any age certificate, it would be reasonable to take the age of the deceased as between 36 – 40 years. For the purpose of this age group, the suitable multiplier is ‘15’ as the Judgment of Apex Court (Sarla Varma Vs. Delhi Transport Corporation 2009 ACJ 1298).

14. It is the evidence of PW.1 that his son was earning Rs.300/- per day as washerman. PW.2 stated that her husband was earning Rs.350/- per day. According to her he worked in dry cleaning shop at Anantapur and was earning Rs.500/- per day and at the time of accident he was doing cloth ironing work in Singnamala Head Quarters and getting Rs.350/- per day.

15. PW.3 belongs to Singanamala Village. He knows the deceased.

According to him the deceased was maintaining push cart at Singanamala

Village for 4 years and doing cloth ironing work and earning Rs.400/- per day. According to him, the deceased worked in Anantapur in a dry cleaning 5 shop and was earned Rs.500/- per day. In the cross-examination, it is elicited that his evidence is not based on any documents, that there are nine

Dhobis in Singanamala, that there are only two laundries in Singanamala and that a person maintaining laundry bunk will have handful of work. After going through the evidence, it can be said that the income of the deceased is exaggerated by PWs.1 to 3 in as much as the potential of a place like

Singanamala will not substantiate any huge income to a dhobi.

16. Considering the fact that the deceased was hale and healthy in the age of 35 – 40 years and doing dhobi profession regularly, it would be reasonable to take his income as Rs.3,000/- per month @ Rs.100/- per day in the absence of any documentary evidence. The annual income at this rate comes to Rs.36,000/-. Since there are six dependents, 1/5th of the income has to be deducted towards the personal expenses of the deceased.

Therefore the net loss of dependency comes to Rs.28,800/-. Multiplying the same with the multiplier ‘15’, the gross of loss of dependency works out to

Rs.4,32,000/- (28800x15).

17. Adding a sum of Rs.15,000/- towards loss of consortium,

Rs.10,000/- towards loss of estate and Rs.3,000/- towards funeral expenses, the net compensation payable would be Rs.4,60,000 /- under all the heads.

Apportionment of compensation:

Petitioner No.1 / 40,000/- Father

Petitioner No.2/ 80,000 Mother

Petitioner No.3/ Wife 1,50,000/-

Petitioner No.4/ 60,000/- minor daughter.

Petitioner No.5 / 60,000/- minor daughter

Petitioner No.6/ 70,000/- minor daughter.

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Therest of the claim of the petitioners is not substantiated by any evidence as such excessive. The issue is accordingly decided.

18. Issue No.3:- In the result, the petition is partially allowed against the respondents 1 and 2 for compensation of Rs.4,60,000/- with proportionate costs and interest at 8% p.a from the date of the petition till the date of realization. The rest of the claim is dismissed. The respondents 1 and 2 are directed to deposit the compensation into court within one month from the date of this order. On such deposit the 3rd petitioner is permitted to withdraw Rs.50,000/- immediately. The 1st petitioner is permitted to withdraw his entire compensation immediately. The 2nd petitioner is permitted to withdraw Rs.40,000/- immediately. The balance of compensation of the petitioners 2 and 3 shall be kept in fixed deposit in any nationalized bank for a period of 3 years. The entire compensation of the petitioners 4 to 6 shall be kept in fixed deposit in any nationalized bank until they attain majority. Advocate fee is Rs.5,000/-.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in open court on this the 19th day of November, 2012.

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL

(DISTRICT JUDGE),

ANANTAPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioners: Respondents:

PW.1 Chakala Lakshmaiah. RW.1: K. Ram Gopal. PW.2 Chakala Varalakshmi. RW.2: Y. Rajasekhar. PW.3 Chakala Narayanaswamy. PW.4 C. Balappa.

Exhibits marked on behalf of petitioners.

Ex.A.1 Certified Copy of FIR in Cr.No.4/2011. Ex.A.2 Certified Copy Inquest Report. Ex.A.3 Certified Copy of Post Mortem Report. Ex.A.4 Certified Copy of Final Report.

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Exhibits marked on behalf of respondents.

Ex.B.1 True Copy of Insurance Policy. Ex.B.2 Office Copy of Legal Notice sent to the owner, dt.17.5.2011. Ex.B.3 Copy of Driving License extract dt.18.6.2012 .

Exhibits marked on behalf of Respondent No.2.

Ex.X-1 Authorisation Letter. Ex.X-2 Extract of driving license of C. Malla Reddy.

Chairman,

MACT (D.J).

IN THE COURT OF THE DISTRICT JUDGE : ANANTAPUR

Present : Sri. K. Siva Prasad, B.Sc., B.L., District Judge

Monday, the 19 th day of November, 2012.

C.M.A.17/2012

Between:-

1. Pujari Bali Kondappa.

2. Pujari Nagappa.

3. Pujari Paramesappa.

4. Pujari Eswarappa.

5. Pujari Pedda Nagappa.

6. Pujari Chinna Nagappa. ... Appellants.

And

1. Pujari Nagamma.

2. Pujari Nagabushanam.

3. Pujari Chandrasekhar.

4. Pujari Siva.

5. Pujari Nagamani.

6. Pujari Marekka.

7. Pujari Kamakshi.

8. Pujari Mallaka.

9. Pujari Viswanath. 10.Pujari Nagappa. … Respondents.

On Appeal against the order passed by the Senior Civil Judge, Anantapur in C.F.313/2012 dt.6.3.2012 and made in between:-

1. Pujari Bali Kondappa.

2. Pujari Nagappa.

3. Pujari Paramesappa.

4. Pujari Eswarappa.

5. Pujari Pedda Nagappa.

6. Pujari Chinna Nagappa. ... Plaintiffs.

And

1. Pujari Nagamma.

2. Pujari Nagabushanam.

3. Pujari Chandrasekhar.

4. Pujari Siva.

5. Pujari Nagamani.

6. Pujari Marekka.

7. Pujari Kamakshi.

8. Pujari Mallaka.

9. Pujari Viswanath. 10.Pujari Nagappa. … Defendants.

This appeal coming on 5.11.2012 for final hearing before me in the presence of Sri. P.L. Eswara Reddy, Advocate for the appellants and of Sri N.Jayaram, Advocate for the respondents and upon perusing the material available on record and on consideration, this court made the following:

O R D E R

The appeal has been filed against the orders in C.F.313/2012 dated 6.3.2012 on the file of Senior Civil Judge, Anantapur rejecting the plaint under Order 7 Rule 11 CPC.

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2. The suit has been filed by the appellants for cancellation of the

Judgment and decree in O.S.98/1985 dated 16.8.1991 on the file of Junior

Civil Judge, Kalyandurg and to declare the title of the appellants over the suit

schedule mentioned property and to direct the respondents to deliver the suit schedule property as per the partition deed dated 14.8.1937.

3. It is pleaded by the appellants that the land in Sy.No.386 measuring

Ac.41.55 cents originally belongs to Pujari Kunti Kamaiah. He died leaving behind four sons 1) Pujari Rogam Pedda Bommaiah 2) Pujari Paramesappa

3) Pujari Mangappa 4) Pujari Kalla Golla Sanna Bommaiah. Among them

Paramesappa and Mangappa died unmarried. The said Pedda Bommaiah,

Sanna Bommaiah were enjoying the entire property of their family.

4. While so, after the death of the said Pedda Bommaiah, his son

Pedda Kamaiah and brother Sanna Bommaiah got divided their ancestral property under registered partition deed dated 14.8.1937. In that partition ‘A’ schedule measuring Ac.28.19 cents out of 41.55 on eastern side is allotted to Sanna Bommaiah. ‘B’ schedule measuring Ac.13.36 cents out of

Ac.41.55 in Sy.No.386 and Ac.4.64 cents in Sy.No.387-3 were allotted to the share of Pedda Kamaiah. Since then they are enjoying their respective shares.

5. It is pleaded that during his life time, the said Pedda Kamaiah sold

Ac.0.36 cents in Sy.No.386 to one Rangasamudram Thimmappa under registered sale dated 30.5.1959. While so Sanna Bommaiah died leaving behind his sons 1) Chinna Kamaiah, 2) Pujari Mangappa, 3) Bommaiah. The said Pujari Chinna Kamaiah died leaving behind four sons. They are the appellants 1 to 4. Pujari Mangappa died leaving behind two sons. They are the appellants 5 to 6. Bommaiah the third son of Sanna Bommaiah died issueless. Therefore Sanna Bommaiah’s share in Sy.No.386 had devolved upon the appellants to an extent of Ac.28.19 cents.

6. Pedda Kamaiah, who got ‘B’ schedule under the partition deed had four sons namely., 1) Bommanna 2) Paramesappa 3) Ramanna (D-9), 3

4) Nagappa (D-10). D-1 is the wife and D-2 to D-7 are sons of the first brother Bommanna. D-8 is the wife of said Paramesappa. Therefore Pedda

Kamaiah’s share in Sy.No.386 devolved upon the respondents/ defendants to an extent of 13 acres. Out of this R-1 to R-7 together got 1/4th share, whereas R-8 to R-10 have together got 1/4th share in ‘B’ schedule.

7. While so, the four sons of Pedda Kamaiah filed suit O.S.98/1985 on the file of Junior Civil Judge, Kalyandurg and obtained a decree by suppressing the fact of 1937 partition and by playing fraud. Under the court decree the respondents got 7 acres more than the allotted extent of partition and in fact the appellants are enjoying the properties on the basis of the partition deed dated 14.8.1937 till the final decree was passed. As their predecessor in title are illiterate they could not defend the property. Recently they came to know about the earlier partition and issued legal notice, but kept quite. Hence the suit.

8. After hearing the arguments as to the maintainability of the suit, the trial court under the impugned order rejected the plaint holding that there is no cause of action for the relief of setting aside the final decree in

O.S.98/1985 the basis of 1937 partition deed.

9. Aggrieved of this finding, the appeal has been filed contending that the trial court ought to have registered the suit to give opportunity to lead evidence, instead of rejecting the plaint without giving opportunity, that the trial court ought to have seen that the dispute involves legal implications, that giving an opportunity to the appellants to put forth their point of view to prove the merits in the case is necessary and therefore the impugned order is liable to be set aside.

10. After hearing the arguments on both sides, the points for determination are:

1)Whether the appellants are entitled for the relief of cancellation of the decree and Judgment in O.S.98/1985 dated 16.8.1991 on the file of the District Munsif, Kalyandurg?

2)To What relief?

11. The genealogy of the parties is as follows as per pleadings:

Pujari Kunti Kamaiah

Pujari Rogam Pedda Pujari Paramesappa Pujari Mangappa Pujari Kalla Golla Sanna Bommaiah (died)(died unmarried) (died unmarried) Bommaiah (A-schedule) (died (died Son B Schedule

Pedda Kamaiah

Chinna KamaiahPujari MangappaSanna Bommaiah (Died Issueless)

BommannaParamesappaRamanna (D9) Nagappa (D-10)

P-1 P-2 P-3 P-4 P-5 P-6 D-1 Wife D2 to D7 Wife D8 sons

12. Point No.1:- Admittedly the suit O.S.98/1985 has been filed by the respondents 9, 10 and their brothers Paramesappa and Bommanna, who are sons of Pedda Kamaiah for partition and separate possession of their share in the suit Sy.No.386 measuring Ac.41.55 cents. That suit has been decreed and final decree has been passed as prayed for. Later, the defendants in that suit have preferred appeal A.S.100/91 on the file of Addl.

District Judge, Anantapur against the Judgment dated 16.8.1991. After

elaborate consideration of the facts and circumstances, that appeal has been dismissed confirming the Judgment of the lower court. For what reasons the partition of 1937 has not been relied upon by either parties in that suit is not known.

13. In any event, the defendants in that suit have not pleaded anything about 1937 partition and on the other hand the decree has been passed on the basis of the specific plea of the plaintiffs in that suit that the suit property belongs to their ancestor Pujari Kunti Kamaiah, that the plaintiffs and defendants in that suit are members of joint family and that they are entitled for the partition as per their shares. Evidently the defendants in that suit have not challenged the Judgment in A.S.100/1991

dated 14.3.1997 of the Additional District Judge, Anantapur. However

admittedly final decree has been passed and properties allotted as per the shares fixed in the preliminary decree.

14. Admittedly the defendants in that suit have prosecuted the suit by engaging counsels. According to the appellants, they are in possession of the suit property by the date of filing the suit O.S.98/1985. If that is a fact, there was no reason for them to keep quiet without raising their little finger throughout the long drawn suit proceedings in O.S.98/1985 for atleast 12 to 13 years. It is surprising that the appellants did not raise any objection, even at the time of delivery of possession in pursuance of the final decree.

Therefore the allegation that the Judgment and decree in the previous suit has been obtained by playing fraud does not give any fresh cause of action for the suit in respect of the equitable relief now claimed in the present suit.

6

In the light of the circumstances, there are no reasons to interfere with the finding of the trial court that there is no cause of action to file the suit and that the suit is hit by the principles of resjudica. It is the specific admitted case of the appellants that the title of the parties has been finally decided in the previous suit. In such case, the question of considering any other fact afresh by way of another suit does not arise. The point is accordingly decided.

14. Point No.2:- In the result, the appeal is dismissed as devoid of merits. The impugned order passed by the Senior Civil Judge, Anantapur in

C.F.313/2012 dt.6.3.2012 is confirmed. In the circumstances, no costs.

Typed to my dictation, corrected and pronounced by me in open court, this the 19th day of November, 2012.

District Judge,

Anantapur.

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTAPUR

Present: - Sri K.Siva Prasad, B.Sc.B.L.,

District Judge

(FAC)Chairman-cum-Presiding Officer

THURSDAY THE 15 TH DAY OF NOVEMBER, 2012

I.D.No.16/2012

Between:

Sammitha Venkata Chalapathi, Agaed 50 years, E.575383, Ex. Conductor, S/o S.Venkatesu, D.No.6-4-297-2, Venkatarao Nagar, Anantapur. … Petitioner

AND

The Depot Manager, A.P.S.R.T.C, Dharmavaram. … Respondent

This Industrial Dispute is existing between the Petitioner and the Respondent and it is a direct filing of the Claim Statement under Sec. 2-A (2) of the Industrial Disputes Act-1947.

This Industrial Dispute coming on15-11-2012 for hearing before me in the presence of Sri P.Ramachandra, Advocate for the Petitioner and of Sri B.S.Hussain, Law Officer of the Respondent and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

Perused the Memo. I.D is dismissed as prayed for. No costs.

Corrected and passed by me on this the 15th day of November, 2012.

District Judge,

(FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPUR.

APENDIX OF EVIDENCE

-NIL-

District Judge,

(FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPUR.

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In the Court of :Chairman Cum Labor Court, Anantapur

Case No. :EP/0600011/2012 M.Sadik Peera, Driver. Vs The Depot Manager, APSRTC, Mydukur Depot.

Date : 08-11-2012

Business: It is stated that the Respondent has complied the Award. Memo filed by the petitioner. In the circumstances, E.P is terminated as satisfied. Nature of Disposal: TERMINATED Disposal Date: 08-11-2012 Chairman Cum Labor Court, Anantapur 1 of 121/09/24, 19:09