Sri K.siva Prasad

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT

VISAKHAPATNAM

PRESENT: K.SIVA PRASAD, B.SC.,B.L.,

DISTRICT JUDGE.

FRIDAY, THE 30TH DAY OF AUGUST, 2013

A.S.NO.233/2012

Between:

Vissarapu Appa Rao, S/o.Nookallamma, 51 yrs., Hindu, Cultivation, R/at Kothakota Village, Ravikamatham Mandal.

…Appellant/Defendant. And:

Ellapu Simhadri, S/o. Chinababulu, Aged 51 years, Hindu, Cultivation, R/o. Madugula Village and Mandal.

…Respondent/Plaintiff.

APPEAL PREFERRED BY THE APPELLANT/DEFENDANT AGAINST THE DECREE AND JUDGMENT, DATED 02.07.2012 PASSED BY THE

SENIOR CIVIL JUDGE, CHODAVARAM AND MADE IN

O.S.NO.63/2011

Between:

Illapu Simhadri. …Plaintiff. And:

Vissarapu Apparao. … Defendant.

This appeal has come up on 16.07.2013 before me for final hearing in the presence of Smt K.Prabhavathi & Sri BVB.Jagannadha Rao, Advocates for the Appellant/Defendant and notice to respondent served personally and called absent; upon hearing the arguments of Appellant, and the same having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This appeal has been preferred by the appellant/defendant aggrieved of the Judgment and Decree in O.S.63/2011 on the file of the Senior Civil Judge, Chodavaram, dated 02.07.2012 directing the appellant to pay to the respondent/plaintiff, a sum of Rs.1,35,671/- with interest at 12% p.a. from the date of suit till the date of decree and at 6% p.a. from the date of decree till the date of realization on

principal sum of Rs.1,00,000/- under the suit promissory note.

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2.The brief facts of the case are that the Respondent filed the suit against the appellant with the following pleadings:

3.On 15.06.2008, the appellant borrowed from the respondent a sum of Rs.1,00,000/- at Kinthali Vallapuram Village in V.Madugula

Mandal to discharge sundry debts agreeing to repay the same with interest at 24% p.a. as and when demanded. Inspite of several oral demands personally and through elders to discharge the debt, the appellant postponed the repayment on one pretext or the other.

Hence, the suit.

4.The appellant filed written statement alleging that he has no necessity to borrow any amount much less Rs.1,00,000/-, that he has never executed any promissory note in favour of the respondent and that due to some family bickerings with regard to Rs.31,000/- between the appellant on one side and the respondent and his son Trinadh on the other, the suit promissory note is created by forging the signature and thumb impression of the appellant. Without prejudice to the plea of forgery, the appellant pleads that the respondent has no capacity to lend the suit amount and that it is materially altered. Hence the suit is liable to be dismissed.

5.On the basis of the pleadings, the following issues are framed:

1. Whether the defendant borrowed Rs.1,00,000/- from plaintiff and executed suit pronote in favour of plaintiff on 15.06.2008?

2. Whether the suit pronote is hit by material alteration?

3. Whether the plaintiff is entitled to get decree as prayed for?

4. To what relief?

6.The respondent/plaintiff examined himself as P.W.1 and exhibited the suit promissory note as Ex.A.1, apart from examining the scribe thereof as P.W.2. The appellant examined himself as D.W.1 but no documents are filed on his behalf. After considering the oral and documentary evidence coupled with various legal propositions 3 including those governing burden of proof under Sec.118A of

Negotiable Instruments Act, the Trial Court has disbelieved the theory of forgery and found the issues in favour of the respondent relying upon the evidence of P.W.1 corroborated by P.W.2. It is pointed out that the appellant ought to have preferred to obtain expert opinion as to the genuineness of his signature and thumb impression on Ex.A.1 and summon the sole attestor of Ex.A.1 to contradict the evidence of

P.W.2 with regard to execution of Ex.A.1 by the appellant. It is further observed that the plea of material alteration of Ex.A.1 is speculative as no such alterations are found in Ex.A.1 when observed with naked eye.

With these observations, the Trial Court granted decree in favour of the respondent.

7.Aggrieved of the Judgment, the appeal is filed contending that the trial court has failed to appreciate the evidence of P.Ws.1 and 2 with regard to the plea of forgery raised by the appellant and erroneously granted the decree. It is further contended that the trial court erred in drawing presumption under sec.118A of N.I.Act in favour of the respondent though the evidence failed to establish due execution of Ex.A.1 by the appellant. It is further contended that the reasoning of the trial court that P.W.2 might have got confused and given evidence contra to that of P.W.1 is erroneous and liable to be set aside, because he had previous experience of giving evidence in the court as admitted by him.

8.It is further contended that though P.W.2 stated that he did not know the appellant prior to Ex.A1, that the respondent introduced a person as the defendant (appellant) and that nobody brought the defendant to him are sufficient to disbelieve his evidence, the trial court erroneously relied upon his statements without calling for corroboration of the attestor of Ex.A.1.

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9.It is further contended that the trial court has not considered the inconsistent evidence of P.W.2 with regard to the place of execution and the village of the respondent/plaintiff and granted the decree erroneously. It is further contended that even according to the respondent, the suit transaction took place at Kinthali Vallapuram but according to P.W.2, the transaction took place at the medical shop of his cousin at Kinthali village. Though P.W.2 admitted that both the said villages are different, the trial court erroneously relied upon his evidence.

10.It is further contended that the trial court has failed to consider the fatal admissions made by PW.1 in the cross examination with regard to identity of the scribe and therefore, the impugned judgment is liable to be set aside. It is further contended that the trial court has not considered the material circumstances to show that the respondent has no capacity to lend Rs.1,00,000/- and granted the decree mechanically.

11.It is further contended that the trial court ought to have framed an issue with regard to rate of interest at which the suit amount has to be paid to the respondent in view of the appellant’s plea relating to Act 4 of 1938. The trial court ought to have scaled down the interest as per the provisions of the said Act.

12.It is contended that the judgments relied upon by the trial court are not applicable to the facts of the case nor favorable to the respondent. The trial court committed grave error in comparing the signature of the defendant by invoking Sec.73 of the Indian Evidence

Act though the evidence throws any amount of suspicion on the plea of execution of Ex.A.1 by the appellant. In fact, the respondent ought to have taken steps to send the document to Expert in view of Sec.102 of the Evidence Act.

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13.It is further contended that the trial court’s observations regarding the burden of proof is erroneous and the appellant has rebutted the presumption by relying upon the evidence of the respondent himself and that the principles of burden proof laid down by the full bench of A.P. High Court in G.Vasu Vs. Sayyed Yasin

Sifuddin Quadri 1987(1) ALT 1 are applicable to the case on hand and accordingly the suit is liable to be dismissed and the impugned judgment be set aside.

14.It is argued for the respondent that the grounds of appeal are speculative in nature, that the trial court has discussed all the pleas raised by the appellant and given cogent findings on the basis of established legal propositions and therefore, the appeal is liable to be dismissed.

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

1. Whether the respondent has proved that the appellant has duly executed Ex.A.1 promissory note and if so, whether the appellant has rebutted the presumption under Sec.118A of N.I.Act that Ex.A.1 is supported by consideration?

2. Whether the impugned Judgment of the trial court is liable to be set aside?

3. To what relief?

16.Point No.1: It is admitted by the appellant/D.W.1 that the respondent is his co-brother. The respondent is resident of Madugula whereas the appellant is resident of Kothakota Village in Ravi

Kamatham Mandal of Visakhapatnam District. P.W.2 is resident of

K.J.Puram Village of Madugula Mandal. According to the respondent, the attestor of Ex.A.1 is one Somireddi Satyanarayana of Kothakota

Village. The respondent’s son Trinadh is the resident of Rajahmundry.

The respondent is admittedly illiterate and marksman. He admitted that there are disputes between his son Trinadh and the appellant. In what context they have disputes is however not revealed. The 6 appellant has his version that due to his dispute with the respondent’s son regarding Rs.31,000/-, Ex.A.1 is forged and fabricated.

17.Since the appellant has pleaded forgery, the burden of proof of execution undisputedly lies on the respondent. The statutory presumption under sec.118A of N.I.Act can be drawn in favour of the respondent only if the initial burden of proving execution is discharged.

The statutory presumption can be rebutted by leading oral, documentary or circumstantial evidence.

18.In this regard, the appellant has relied upon a Three Judge

Bench Judgment of A.P.High Court in G.Vasu Vs. Sayyed Yasin

Sifuddin Quadri (1987) AIR (A.P.) 139. The Honourable A.P. High

Court held as follows:

For the aforesaid reasons, we are of the views that where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S.118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words ‘until’ the contrary is proved in S.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S.118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption ‘disappears’. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions or law or fact.

19.The Hon’ble High Court also referred three principles which are relevant in the context of Sec.118 of the Act. The first one is connected with the practical difficulties that beset a defendant for proving negative namely that no other conceivable consideration 7 exists. In that regard, it is held that negative evidence is always in some sort of circumstantial or indirect and the difficulty of proving a negative lies in discovering a fact or series of facts inconsistent with the fact which we seek to disprove and that in such situations, a lesser amount of proof than is usually required may avail and in fact such evidence as renders the existence of the negative probable may shift on the other party. The second principle is relevant in the context of

Sec.106 of the Evidence Act. The third principle is that when both parties have lead evidence, the onus of proof loses all importance and becomes purely academic.

20.Keeping in view of these legal principles it has to be decided whether the respondent has discharged the burden of proving execution of Ex.A.1 and if so on such discharge whether the presumption that arises under Sec.118 of N.I.Act has been duly rebutted by the appellant.

21.The trial court has relied upon a legal proposition (V.Surya Rao

Vs. G.Gopala Krishna 1999(4) ALT 480) that the conduct of the parties prior to the suit and their silence at relevant point of time goes a long way in considering the plea of forgery. The trial court also relied upon a legal proposition that not sending the disputed document to Expert for comparison is of no consequence in a case of forgery since sec.73 of the Indian Evidence Act empowers the court to compare the signatures to decide their genuineness or otherwise. It also relied upon the proposition that non-examination of attestor is not fatal to the case of the plaintiff in as much as promissory note is not a compulsorily attestable document. It also relied upon the proposition that when the plaintiff fails to examine either the attestor or the scribe, the defendant could have examined them to rebut the presumption under Sc.118 NI Act.

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22.Having examined these legal propositions, the trial court at the outset did not consider the impact or the effect of not issuing a legal notice by the respondent before filing the suit. Evidently, the suit has been filed more than 1 ½ months before the expiry of the limitation period. The respondent simply pleaded that inspite of several demands made personally and through elders, the appellant has postponed on one pretext or the other. He has not named even one the so called elder in his evidence nor explained the reasons why he has not chosen to issue legal notice to know the mind of the appellant behind the indifferent postponement of discharge. In the light of the appellant’s plea that he had no necessity to borrow nor occasion to execute Ex.A.1 in favour or the respondent, the casual approach of the respondent in filing the suit without issuing notice though there was no urgency of limitation reveals that the respondent did not want to give opportunity to the appellant to explain his stand before filing of the suit. No doubt, suit notice is not mandatory, the conduct of issuing or not issuing the same by any plaintiff in the cases of this nature gives prima facie scope to doubt the case of plaintiff who admits in evidence that his son got enmity with defendant as in the present case.

23.In this back ground, it is the evidence of P.W.1 that the appellant borrowed from him Rs.1,00,000/- and executed Ex.A.1 at

Kinthali Vallapuram village in Madugula Mandal. The respondent belongs to Madugula whereas the appellant belongs to Kothakota of

Ravikamatham Mandal P.W.2/scribe belongs to KJ Puram village whereas the attestor belongs to Kothakota village. We do not find any explanation in the pleadings or evidence why the venue of execution of Ex.A.1 has been fixed as the said village to which neither of the parties nor the scribe/attestor belong. Moreover, the actual place of execution in Kinthali Vallapuram is not revealed by P.W.1. Only in the cross examination of P.W.2, it is elicited that the place of execution is 9 a medical store of his cousin in Kinthali Village. P.W.2 himself admits that Kinthali and Kinthali Vallapuram are two different villages.

Moreover, he has not named the medical store or his cousin nor explained why his so called cousin was not chosen as an attestor of

Ex.A.1. This omission is fatal because P.W.1 admitted that he had no transactions with either the scribe or attestor Satyanarayana and that they do not belong to Kinthali village. He further admitted that he cannot explain the circumstances leading to his acquaintance with the scribe and the attestor. He only speculated that he was acquainted with the scribe and attestor in Vijayaramarajupeta but failed to give the particulars of his acquaintance. P.W.2 admitted that he does not know the particulars of the attestor and that he is a stranger to him.

In this context, from the admission of P.W.2 that his cousin did not sign as attestor leaves scope for inference that his cousin was present but he was avoided from the transaction. This circumstance gathers clouds of doubt in the bonafide intention of the respondent to obtain

Ex.A.1 in a natural way and normal course. The avoidance of P.W.2’s cousin from the transaction has defeated the very purpose of fixing the venue as Kinthali or Kinthali Vallapuram Village. In any event, no effort has been made that P.W.2 has any cousin and if so, he has any medical store in that village by the time of Ex.A.1. This circumstance is fatal to the case of the respondent.

24.As already noted, the respondent had no transactions with

P.W.2 and he is unable to explain in what context he knew P.W.2 and was acquainted to him. This admission leaves the prima facie conclusion that P.W.2 is stranger to him. To select a stranger as scribe or a promissory note, one is supposed to have a reasonable cause. Otherwise the evidence of the scribe regarding execution suffers from credit worthiness. P.W.2 simply says that he knows the respondent as villager of Madugula and that he has not scribed any 10 other document of the respondent. However, he has not explained how he was acquainted with the respondent or Madugula Village.

25.The place of execution according to P.W.1 is Kinthali

Vallapuram. P.W.2 contradicted this version by stating the name of the village as Kinthali and also by clarifying that both are different villages.

In this regard, P.W.1 stated that one Karnam of Kinthali Vallapuram scribed Ex.A.1. However, P.W.2 admitted that he never worked as

Karanam of Kinthali or Kinthali Vallapuram. Though P.W.1 has given the material particulars of Ex.A.1 in the chief examination, he admitted in the cross examination that he cannot say the date of Ex.A.1 because of illiteracy. Significantly, he has not corroborated the place of execution as the medical shop of P.W.2’s cousin. These circumstances throw doubt whether Ex.A.1 was scribed by PW.2 in the presence of the respondent.

26.With regard to execution P.W.1 stated that the appellant received Rs.1,00,000/- and executed Ex.A.1 scribed by P.W.2 in the presence of attestor Satyanarayana. P.W.1 has not revealed the time of execution on 15.06.2008. P.W.2 in the cross examination, stated that it was executed between Noon and 2 P.M. at Kinthali village and that money was given all in 100 rupee denominations.

According to him, both the respondent and the appellant together came to him and the respondent introduced the appellant as Visarapu

Apparao and he signed and also affixed thumb impression in Ex.A.1.

He admitted that the thumb impression is not affixed on the revenue stamp. He does not remember whether two stamps have been affixed.

No doubt he has denied the suggestion that the appellant has not signed nor affixed thumb impression in Ex.A.1 but we do not find explanation for the material discrepancies regarding execution of

Ex.A.1 which have been discussed in the earlier part of the Judgment.

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27.Another material defence of the appellant is that the respondent has no capacity to lend Rs.1,00,000/-. In this regard, P.W.1 admitted that he owns half acre agriculture is main source of his income, and since this source of income is not sufficient to maintain family, he is doing agricultural coolie works which is hardly sufficient to maintain his family. Admittedly he is not doing any business. The trial court at para 14 of the judgment, considered P.W.1’s admission that even with the agriculture and coolie works, he is just maintaining his family and held that only on that point, the financial capacity of P.W.1 cannot be doubted because one may have savings while maintaining his family with difficulty.

28.Though this reason is appealing, the trial court has not considered the failure of P.W.1 to explain his source of consideration under Ex.A.1. Only on the basis of a suggestion given to D.W.1 that he borrowed Rs.1,00,000/- to perform marriage of his daughter, the trial court presumed bonafides of P.W.1’s conduct inspite of his admission that the suggested purpose of consideration is inconsistent with the one mentioned in Ex.A.1. It is stated in Ex.A.1 that the appellant borrowed for his family expenses and discharging debts. There is no effort made by P.W.1 to explain what was the family necessity and how the so called debts were incurred and whether those circumstances have any connection with the marriage, if any of the appellant’s daughter. D.W.1 categorically denied his receiving of any consideration for any purpose muchless for his daughter’s marriage.

Moreover, the date or period of the so called marriage is not suggested to D.W.1. Therefore, it can be justifiably concluded that the purpose of borrowing mentioned in Ex.A.1 is speculative and doubtful. But the trial court has condoned this discrepancy by simply observing that ‘Borrowing of amount for some purpose and utilizing that amount for another purpose is immaterial’. If this discrepancy is immaterial, the 12 legal proposition that conduct of the parties prior to and after the transaction is relevant becomes wasteful. In the cases of this nature, the genuineness of the transactions can be examined not only on oral evidence but also on circumstantial evidence on the theory of preponderance of the probability. 29. In the nature of the defence of the appellant, the discrepancy assumes importance to create a doubt if the contents of Ex.A.1 regarding consideration are mentioned by obtaining instructions from the parties or not. P.W.2 has not thrown any light with regard to the purpose of borrowing. He baldly stated that cash of Rs.1,00,000/- was given and the appellant signed and affixed thumb impression in Ex.A.1. It is significant to note that in the chief examination he simply stated that the amount was borrowed for family expenses. However, he has not corroborated that the amount was borrowed for discharging the debts or to perform any marriage.

Even after facing a suggestion that the appellant has not received

Rs.1,00,000/- nor any consideration passed under Ex.A.1 nor was it executed in his presence, PW.2 has not explained what he meant of family expenses. He simply denied the suggestion without further adding anything about the purpose of consideration. The trial court has not considered this intransparent conduct of P.W.2.

30.Evidently, the material discrepancies in the evidence of both

PWs.1 and 2, are condoned by the trial court by simply observing that they were confused while giving evidence. When PW.1 admitted that he does not know the village of the scribe and described the scribe as

Karanam of Kinthali vallapuram, the trial court has not considered the effect of these admissions on the execution of Ex.A.1. The trial court simply observed that since P.W.1 denied in the cross examination a suggestion that he colluded with the attestor and the scribe and brought into existence Ex.A.1 by forging the signature and thumb impression. When P.W.2 fumbled on the place of execution, the trial 13 court simply observed, ‘Evidence as a whole is to be considered to come to a certain conclusion. On one sentence or the other in the deposition of party of witness final conclusion cannot be made. In general, parties and witnesses may get some confusion in witness box.

Therefore, I am of the opinion that P.W.2 might have confused in saying that suit transaction took place at Kinthali village instead of

Kinthali vallapuram village. That aspect also will not throw a doubt on the transaction covered by Ex.A.1.’

31.PW.2 deposed that Plaintiff is resident of Kinthali vallapuram village, but he actually belongs to V.Madugula village. In this regard, the trial court observed ‘PW.2 is resident of K.J.Puram village.

Therefore, he (P.W.2) might have again confused in saying the village of the plaintiff because P.W.2 is not a resident of village of Plaintiff.

But the gist of evidence of P.W.2 is that the transaction under Ex.A.1 took place and that he scribed Ex.A.1’. The trial court has however, not considered the evidence of P.W.1 leading to conclusion that P.W.2 is stranger to him and absence of explanation why a stranger was chosen to act as a scribe of promissory note. In that context, the so called confusions of P.W.2 throw doubt if he knows anything about the contents of Ex.A.1 and it was executed in his presence as claimed.

32.With regard to Sec.73 of the Indian Evidence Act, the trial court has taken the view that on comparison of the signatures of the appellant in Ex.A.1 vis-a-vis the signatures in vakalat, suit summons and deposition, he has not found any dissimilarities in the signatures and therefore, the theory of forgery becomes improbable. Even if the opinion of the trial court in this regard is accepted as reliable for argument sake, it is not understood how the respondent is discharged from the burden of execution of the promissory note by mere showing that the signature in Ex.A.1 is that of the appellant. The trial court has not opined anything about the genuineness of the thumb impression in 14

Ex.A.1 but simply observed that the appellant has pleaded forgery without inspecting Ex.A.1 before filing the written statement as such the denial of execution is not bonafide. According to the trial court, this conduct of the appellant probablises the conclusion that the written statement has been filed only to drag the mater for some time having executed Ex.A.1 and receiving of Rs.1,00,000/- there under from the respondent. This far reaching conclusion suffers from illegality because there is no expert opinion on the thumb impression appearing in Ex.A.1. The trial court has not stepped into shoes of the expert and compared the thumb impression with any admitted one in as much as no admitted thumb impression is available on record.

Therefore, the trial court ought to have called upon the respondent to explain why the appellant’s thumb impression was also obtained and how the burden of proof of the genuineness of thumb impression is discharged.

33. Instead, the trial court has given superficial findings by blaming the appellant that he has not set up a case that he has no financial capacity to send Ex.A.1 to Hand Writing Expert or Finger Print

Expert for opinion. The trial court ought to have held that the respondent failed to seek expert opinion of the Expert particularly

Finger Print Expert since burden of proof of execution lies on him.

Having considered the various suspicious circumstances found in the evidence of P.Ws.1 and 2, the trial court’s conclusion that the respondent has duly discharged his burden of proving execution is liable to be set aside.

34. In view of these circumstances, it can be stated that the respondent has failed to lead satisfactory and creditworthy evidence to prove that the appellant has executed Ex.A1 in the presence of PW2 and the so called attester. The appellant on the other hand elicited material circumstances to throw doubt if Ex.A1 has been executed for 15 consideration. In spite of the specific defense of forgery and existence of various discrepancies in his evidence regarding execution of Ex.A1, the respondent has not sought for the opinion of expert particularly hand writing expert. As if the burden of proof of execution is on the appellant, the respondent has relied upon Pw2 in spite of material discrepancies in his evidence. Therefore I have no hesitation to hold that the findings of the trial Court in favour of the respondent suffer from illegality as such liable to be set aside. The point is accordingly decided.

35.Point No.2:

In view of the findings in the Point No.1, the point goes in favour of the appellant and against the respondent.

36.Point No.3:

In the result the appeal is allowed but without costs and the impugned Judgment in O.S.63/2011 dated 02-07-2012 on the file of

Senior Civil Judge, Chodavaram is set aside and the suit O.S.63/2011

on the file of Senior Civil Judge, Chodavaram is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in Open Court on 30th Day of August, 2013.

DISTRICT JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No additional evidence is adduced on either side.

PDJ::VSP

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

PRL., DISTRICT JUDGE:: VISAKHAPATNAM.

Present: Sri K. Siva Prasad, B.Sc.,B.L., Chairman,MACT cum Prl., District

Judge, Visakhapatnam.

Friday, the 30th day of August, 2013.

M.O.P.1379/2011

Between: Duggirala Seetharatnam alias Sujatha, W/o.Duggirala Venkata Kameswara Gupta, Hindu, aged 40 yrs., R/o.Kasimkota Village and Mandal, Visakhapatnam District.

..Petitioner.

A n d:

1.Peravalli Lova Raju, S/o.Anjaneyulu, Hindu, aged 55 yrs., R/o.H.No.5-447/A, Deepthi Sree Nagar, Madiguda, Miyapur, Srilingeswarapalli, Rangareddy District (Hyderabad).

2.United India Insurance Company Limited, represented by its Regional Manager, Regional Office, Dabagardens, Visakhapatnam. …Respondents.

This petition has coming on 08.08.2013 before me for final hearing in the presence of Sri B.Ramagopala Raju, Advocate for the petitioner and of Sri P.V.Narayana Rao, Advocate for the 2nd Respondent and the 1st Respondent having remained exparte; upon hearing the arguments of the counsel for the petitioner and the 2nd Respondent; and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The petition is filed under Section 166 of M.V Act claiming compensation of Rs.1,70,000/- for the death of one Paluri Mahalaxmi in road accident involving Car bearing No.AP 28 F 6780 owned by the 1st respondent and insured by the 2nd respondent. The petitioner is the married daughter of the deceased and Class I heir.

2.It is pleaded in the petition that the deceased was 60 years old and resident of Kasimkota Village of Visakhapatnam District.

3.On 10.04.2010, the deceased and one D.Ajaya Kumar were going to a shop on foot on the left side of main road at Chanda Nagar area, Hyderabad.

At about 7 P.M., when they were going near Venkata Sai Curry Point, and

Bangalore Ayyangar Sweet Shop at Chanda Nagar, the offending car came from back side to go towards VUDA Colony. When it reached the accident spot, it was driven in rash and negligent manner and has dashed the deceased from 2 back side and dragged the deceased for a distance of three feet. As a result, she fell unconscious by sustaining grievous head injury. Immediately, she was shifted to Mytri Hospital and after taking first aid, she was again shifted to

Yasodha Hospital for treatment. Later she was shifted to Gandhi Hospital and treated as Inpatient upto 15.4.2010. On that day, at 6 P.M., she died due to grievous injuries while undergoing treatment.

4.On a complaint regarding this accident, Chanda Nagar Police initially registered a case in Cr.No.169/2010 under Sec.337 of IPC and later altered the case as the one under Sec.304-A of IPC by filing a memo. The deceased was maintaining a Kirana Shop and earning Rs.7,000/- p.m., by the time of accident. The deceased was widow and she used to contribute her income to the petitioner as she is the only dependent and legal heir. The Respondents are jointly and severally liable to pay the compensation. Hence, the petition.

5.R.1 has appeared through counsel but no counter has been filed by him as per the docket dated 17.7.2012. R.2 filed counter denying the allegations in the petition. They pleaded that there is no truth in the allegations that the car driver is solely responsible for the accident. R.2 does not admit that the petitioner is sole legal heir to claim compensation for the death of the deceased.

The allegation that the deceased was earning Rs.7,000/- p.m., and contributing the whole amount to the petitioner is put to strict proof.

6.It is pleaded that the petitioner has to prove that the driver of the offending vehicle was holding valid and subsisting driving licence at the time of accident. The petitioner has also to prove that the offending vehicle was having valid C Book, Permit etc., at the time of accident. The quantum of compensation is highly exaggerated.

7.The Petitioner is put to strict proof of mandatory provisions under

Sec.64V(B) of the Insurance Act. The Petitioner has not furnished the policy number for verification. The Police have not complied with Sec.158(6) of

M.V.Act and hence, R.2 is not aware of the accident. If any compensation is 3 awarded, the rate of interest shall be restricted at 6% p.a. Hence the petition is liable to be dismissed.

8.On the basis of these pleadings, the following issues are framed:

1. Whether the accident occurred on 10.4.2010 due to the rash and negligent driving of the Driver of the motor vehicle, i.e., Car bearing No.AP.28 F 6780?

2. Whether the petitioner is entitled to compensation as prayed for? If so, to what amount and from whom?

3. To what relief?

9.The Petitioner herself examined as P.W.1 and eye witness to the accident as P.W.2 and marked Exs.A1 to A8. No witness is examined and no documents marked on behalf of the Respondents.

10.ISSUE No.1:

It is argued for the petitioner that there is evidence to hold that the deceased died due to the rash and negligent driving of the offending car by its driver, that the petitioner was dependant of her mother and that the deceased was earning Rs. 7,000/- p.m., by maintaining Kirana Shop. It is argued for R.2 that P.W.1 has not filed any document to show that she is the only legal heir of her mother and that she was depending on her mother as her (P.W.1) husband was sick and therefore, she is not entitled to claim compensation.

11.The documents reveal that the grand son of the deceased by name

Narendar has lodged the complaint about the accident and Police, Chanda

Nagar registered the crime under Sec.337 IPC against the driver of the offending car. Ex.A1 is the copy of FIR. During the course of investigation, the

Police filed Ex.A2 Memo dated 17.4.2010 altering Section of Law under

Sec.304-A IPC for further investigation. This corroborates that the Police received information on 15.4.2010 that the deceased died in Gandhi Hospital while undergoing treatment and immediately, the Police completed the legal formalities. Ex.A3 is the Inquest report and Ex.A4 is the copy of P.M.E Report showing that the death is caused due to accident involving the offending car.

On the basis of investigation, Police filed Ex.A5 Charge sheet under Sec.304-A

IPC against the driver of the offending car.

4

12.P.W.2 is cited as witness (L.W.5 in the charge sheet). He deposed that at the time of accident, he was walking along with the deceased on the left side of main road at Chanda Nagar, near Venkata Sai Curryu Point and that at 7 P.M., the offending car came from their back side and dashed the deceased in rash and negligent manner and dragged the deceased for a distance of three feet. It is alleged in Ex.A1 that after the accident, the offending car was stopped by the driver by the side of a shop at the place of accident and meanwhile, the injured was shifted to Mytri Hospital and the driver of the offending car also came to the hospital after some time and thereafter the deceased was shifted to Yashoda Hospital in an ambulance. P.W2 has been cross examined on behalf of R.2, but nothing material has been elicited to doubt the veracity of his evidence as eye witness and that he has given speculative evidence being the grand son of the deceased (P.W.1’s son). He only admitted that P.W.1 is his mother. R.2 has not led any independent evidence to contradict the evidence of P.W.2 which is corroborated by the contents of Ex.A1 and also the prima facie findings of the investigating officer in the charge sheet Ex.A5. In the circumstances, the petitioner has discharged the burden of proof that the deceased died due to rash and negligent driving of the driver of the offending car. This issue is accordingly decided.

13.ISSUE No.2:

The Petitioner has filed copy of policy issued by R.2 marked as Ex.A6. It shows that the offending vehicle has been insured in the name of R.1 for an effective period from 31.10.2009 to 30.10.2010. Incidentally, the

Respondent/Insured was the driver of the offending car at the time of the accident. Ex.A7 is the copy of the certificate of registration of the car. Ex.A8 is the copy of his driving licence and it was valid upto 5.5.2010 for driving LMV

Non-Transport vehicle. The date of accident was 11.4.2010. R.2 has not led evidence to prove that R.1 was using the car as transport vehicle and that he did not possess valid and effective driving licence at the time of accident. Since the policy was in force as on the date of accident, both the respondents are 5 jointly and severally liable to pay the compensation in as much as R.2 has not proved that any material condition of the policy has been violated by the

Insured.

14.With regard to the eligibility of the petitioner to claim compensation, she (P.W.1) stated that due to sickness of her husband, she was depending upon her mother and that her husband is unable to move form the house. In the cross examination she has stated that she is the only issue of her mother, that her father is no more and that there is no account book showing the income of her mother. R.2 has not led any evidence to show that the deceased had any other legal heir. P.W.2 is the son of P.W.1 and he has stated that his brother is doing private job. P.W.2 is about 20 years old, and there is no evidence that he was maintaining her mother. There is no evidence to show that P.W.1’s husband is earning member of the family and that P.W.1 was not at all depending upon her mother. Therefore, merely because the legal heir certificate has not been filed, it cannot be said that the petitioner is not Class I heir of her mother, since it is not disputed that she is the daughter of the deceased.

15.The petitioner stated that her mother used to earn Rs.7,000/- p.m., but she has not filed any licence or certificate issued by the Municipal authorities to prove that she was earning through any Kirana shop. In Ex.A1, the deceased is shown as house wife by the complainant who is none other than P.W.2. This version is corroborated by the description of the deceased in Ex.A3 also.

Therefore, the petitioner’s version in this regard is speculative.

16.However considering the age of the deceased, and the fact that she was a widowed house wife, and the petitioner is her daughter, it would be reasonable to assess her notional income as Rs.3,000/- p.m., which works out

Rs.100/- per day. This works out to net loss of dependency of Rs.2,000/- p.m., by reducing 1/3rd of her notional income towards her personal and living expenses. At this rate, the annual loss of dependency works out to Rs.24000/-.

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17.According to the petitioner, the deceased was 60 years old but there is no document to corroborate the age of the deceased except the crime records.

Since the deceased was illiterate, it can be stated that she was atleast 65 years old considering the margin of error in the cases of this nature. As per the Apex

Court Judgment in Sarala Verma Vs. Delhi Transport Corporation 2009(3) ALD 83 (S.C), the suitable multiplier for the persons of age group of 65 years and above is 5. At this rate, the net loss of dependency of the petitioner works out to Rs.1,10,000/- (Rs.24,000 X 5). Adding a sum of Rs.10,000/- towards loss of estate and Rs.3,000/- towards funeral expenses, the petitioner is entitled for aggregate compensation of Rs.1,23,000/- under all the heads. This issue is accordingly decided.

18.Issue No.3

In the result, the petition is partially allowed for compensation of

Rs.1,23,000/- (Rupees One lakh Twenty Three thousand only) with proportionate costs and interest at the rate of 7.5% p.a., from the date of the petition i.e., from 08.08.2011 till the date of realisation. The Respondents are directed to deposit the said compensation amount into the Court within one month from the date of this judgment. On such deposit, the petitioner is permitted to withdraw Rs.50,000/- (Rupees Fifty thousand only) immediately. The balance of compensation shall be kept in fixed deposit for a period of two years in any Nationalized Bank. Advocate’s fee is fixed at

Rs.3,000/- (Rupees three thousand only).

Typed to my dictation, corrected and pronounced by me in open Court, this the 30th day of August, 2013.

Chairman, MACT-cum- Prl., District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENTS:

P.W.1 : D.Seetharatnam.-NONE- P.W.2 : D.Ajay Kumar.

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DOCUMENTS MARKED

FOR PETITIONER:

Ex.A1 : Attested Copy of First Information Report. Ex.A2 : Attested Copy of Section Altered Memo. Ex.A3 : Attested Copy of Inquest Report. Ex.A4 : Attested Copy of P.M.E.Requisition. Ex.A5 : Attested Copy of Charge sheet. Ex.A6 : Xerox copy of Insurance Policy. Ex.A7 : Xerox copy of Certificate of Registration. Ex.A8 : Xerox copy of Driving Licence of R1.

FOR RESPONDENTS: -NIL-.

Chairman, MACT-cum- Prl., District Judge, Visakhapatnam.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI K.SIVA PRASAD, B.SC.,B.L.,

DISTRICT JUDGE.

WEDNESDAY, THIS THE 28th DAY OF AUGUST, 2013

G.O.P.NO.1471/2012

(In the matter of appointment of Guardian for Minor childrens namely

Durba Preethi, aged 10 yrs., and Durba Abhishek, aged 6 yrs.,)

Between:

Durba Neeraja, W/o.Durba Srinivasa Rao, Hindu, aged 34 yrs., R/at Flat No.301, Plot No.203, Sector-V, M.V.P.Colony, Visakhapatnam.

(administrator of the properties of the Minors and natural Guardian of the Minors by name Durba Preethi and Durba Abhishek) …Petitioner.

And:

-NIL-. …Respondent.

This petition has come up on 31.07.2013 before me for final hearing in the presence of Sri P.Nooka Raju, Advocate for the Petitioner; upon hearing the arguments of petitioner, and the same having stood over for consideration till this day, this Court made the following:

O R D E R

The petition is filed U/Sec.7 and 29 of Guardians and Wards Act to appoint the petitioner as guardian of her minor children namely Durba Preethi and Durba Abhishek and to permit to sell the property of the minors to discharge the bank loans in the interest of the minors.

2.The petition reveals the following pleadings:

The petitioner was given in marriage to one Durba Srinivasarao. Out of wedlock, they were blessed with the minors in question. While so, disputes arose between them and as a result, they have approached Family Court and got the marriage dissolved by mutual consent U/Sec.28 of Special Marriage Act.

3.It is pleaded that the petitioner’s husband executed registered gift deed

dated 4.1.2011 in the name of both their minor children showing the petitioner

as guardian. In fact, that property was purchased by her husband by availing bank loan and she signed in the loan papers as co-obligant of her husband.

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4.As per their agreement at the time of dissolution, the petitioner has to discharge the outstanding loan amount of Rs.12,00,000/- in Federal Bank of

India, Dabagardens, Visakhapatnam. While so, even as the petitioner was trying to discharge the loan amount, the bank has invoked the provisions of

Securitization Act and issued possession notice u/Sec.13 (2) on 22.2.2010 and demanded to discharge the loan of Rs.9,77,700/- within sixty days.

5.While so, on 24.12.2011, the Court Amin came to the property along with delivery warrant issued in Crl.M.P.1929/2011 on the file of the Chief

Metropolitan Magistrate, Visakhapatnam. The petitioner filed I.A.3/2012 in

S.A.2/2012 on the file of Debt Recovery Tribunal, Visakhapatnam and obtained stay on condition of her depositing 10% of notice amount within five days from 9.1.2012 and another 10% within fifteen days thereafter, failing which the stay stands vacated. As per the direction of the Court, she paid Rs.98,000/- vide

D.D.No.015659 on 20.1.2012 and another Rs.98,000/- vide D.D.No.15730 on 7.2.2012 and Rs.1,00,000/- on 23.4.2012 vide receipt No.16030 to the bank by taking private loans. As directed by the Court, she has to pay Rs.1,00,000/- on or before 27.4.2012 failing which the bank will sell away the property to throw away price. The property is worth about Rs.25,00,000/-

It is pleaded that the first minor Preethi is studying 8th class in Vignan 6.

School and the Second minor Abhishek is studying in MVP School,

Visakhapatnam. She has to meet the expenses of school fee, dresses, transportation, tuition fee etc., apart from discharging the bank loan as directed by Debt Recovery Tribunal. If the loan is not discharged, the bank would sell away the property in open auction for throw away price. If the petitioner is permitted to sell away the property on behalf of the minors, she would be able to discharge the loan of the bank and deposit the remaining amount in the names of the minors. Hence, the petition.

7.The petitioner examined herself as P.W.1 and marked EXs.A1 to A12.

Exs.A1 to 10 are school records of the minors and fee receipts. She has corroborated all the averments in the petition and prayed for granting 3 permission to sell away the property privately for discharging the debts and to safeguard the interest of minors.

8.After hearing arguments, the points for determination are:

1. Whether the petitioner can be permitted to sell away the property of the minors by private sale?

2. Whether the prayer for selling away the property is for the welfare of the minors?

3. To what relief?

9.P O I N T No.1 and 2:-

The parties are Hindus. The petitioner is the natural guardian of the mother in the absence of their father. In EX.A12 gift deed, the petitioner is designated as natural guardian by her would-be-divorced husband. Therefore, for all practical purposes, she can be considered as the natural guardian of the minors in respect of their property as she has no adverse interest therein.

10.Section 8 of Hindu Minority and Guardianship Act, 1956 prohibits the natural guardian from transferring by sale of the property of minors without the previous permission of the Court. As per Section 13 of the Act, in the appointment or declaration of any person as guardian of a Hindu minor by a

Court, the welfare of minor shall be the paramount consideration. In any event, the petitioner is seeking the relief under Guardians and Wards Act. Sec.7 of the Act deals with the power of the Court to make order as to the guardianship. It says that an order can be made by the Court under this provision only if the Court is satisfied that it is for the welfare of the minor that an order is to be made. Sec.10 of the Act deals with the form of application.

Sec.29 of the Act deals with limitation of powers of guardian of property appointed or declared by the Court.

11.In the case on hand, the petitioner has filed EX.A11 certified copy of orders in O.P.246/2010 dated 4.2.2011 on the file of Family Court,

Visakhapatnam. It is an order on a petition U/Sec.28 of Special Marriage Act for dissolution of marriage by mutual consent. The order shows that the petition is allowed and the marriage dated 26.6.1997 between the petitioner and her husband dissolved.

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12.Evidently, the petitioner’s husband executed EX.A12 gift deed dated 4.1.2011 and subsequently the dissolution of marriage has taken place. It is, therefore, obvious that the gift has been given in favour of the minors with the fond hope that they are not suffered due to disturbances between their parents and that their education and maintenance is not affected for want of funds. EX.A11 refers to a clause that the petitioner shall discharge the outstanding loan of Federal Bank and that substantial loan was already discharged by her husband/donor. From the gift and its clauses, it is understood that the petitioner has undertaken to discharge the loan without any reference to gifted property. In other words, it is obvious that the petitioner intended to discharge the loan from out of her own sources without affecting the title of the minors in the gifted property.

13.Further, the petitioner has not named any prospective purchaser who would discharge the loan of the bank and pay the consideration as per the market value of the property to the petitioner. Since the bank has already taken up the Securitization Act proceedings, permitting the petitioner to sell the property leads to creation of title in favour of third party which causes illegality in the light of the right of the bank to invoke the provisions of the Special Act and sell the property to realise their debts as per law.

14.EX.A9 is the copy of order of the Debt Recovery Tribunal dated 9.1.2012 which shows that the petitioner has to comply with certain conditions. Even according to the petitioner, she has contracted private debts and discharged substantial amounts as directed by the Debt Recovery Tribunal. It appears that only a sum of Rs.1,00,000/- was to be deposited as final instalment towards deposit of 10% as per the conditions of granting for stay. Even the time limit for depositing of Rs.1,00,000/- has also expired long back and she is not able to give the present status of the proceedings before the Debt Recovery

Tribunal to know whether the granting of permission would be really in the interests of the minors.

5

15.Section 29 of the Act does no more than empower the Court to make an order authorising the guardian to transfer the properties of wards and such transfer, however, must be according to law applicable to it. In view of the admitted Securitization Act provisions invoked by the bank, granting of the permission to the guardian would amount to encouragement to illegality.

Since the petitioner voluntarily agreed to discharge the bank loan, it is not in the interests of the minors to permit out right sale of the property gifted by their father to safeguard their future. The circumstances show that the petitioner is having good will to secure debts and discharge the loan as per her own documents. EXs.A1 to A7 are the school records of the minors. EX.A8 shows the payments made by the petitioner to the bank. EX.A10 is E.C. These documents have no significant role to deciding the facts in issue.

16.Evidently, the petitioner and the minors are now residing in the house/Flat No.301 which is the gifted property as seen from the particulars given in the cause title and the documents. The petitioner approached the DRT and obtained stay of further proceedings on the possession notice issued by the bank. Obviously stay was obtained to protect her possession of the house. In such even, the petitioner has to explain how she would secure another residence for their living if the house is sold to a third party. No such attempt has been made in the evidence. It can be, therefore, said that the avowed object of the gift would be defeated if the house is permitted to be sold. In the light of circumstances, the petitioner cannot be granted permission in as much as the paramount consideration in respect of the minors is not fulfilled. The points are accordingly decided.

17.P O I N T No.3:-

In the result, the petition is dismissed. No costs.

Typed to dictation, corrected and pronounced by me in open Court, this the 28th day of August, 2013.

District Judge,

Visakhapatnam.

6

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONER: RESPONDENT:

P.W.1: Durba Neeraja.-NIL-

DOCUMENTS MARKED FOR

PETITIONER:

Ex.A.1: Birth Certificate of petitioner’s son. Ex.A.2: Birth Certificate of petitioner’s daughter. Ex.A.3: School Fee Receipt dt.08.08.2011. Ex.A.4: School Fee Receipt dt.20.06.2011. Ex.A.5: School Fee Receipt dt.07.07.2011. Ex.A.6: Pocket Money Receipt dt.21.09.2011 Ex.A 7: Fee Receipts(5) issued by Vignan Vidyalayam. Ex.A8: Comprises of Three counter foils evidencing depositing money with Federal Bank. Ex.A9: Copy of Order given by Debt Recovery Tribunal, Visakhapatnam dt.09.01.12. Ex.A10: E.C given by Joint Sub Registrar, Visakhapatnam. Ex.A11: Certified copy of Marriage Dissolution Order in OP.246/2010 dt.04.02.2011. Ex.A12: Regd. Gift Deed dt 04.01.2011.

RESPONDENT: NIL

PDJ::VSP.

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

PRL., DISTRICT JUDGE:: VISAKHAPATNAM.

Present: Sri K. Siva Prasad, B.Sc.,B.L., Chairman,MACT cum Prl., District

Judge, Visakhapatnam.

Wednesday, the 28th day of August, 2013.

M.O.P.441/2012

Between: Thammina Govind, S/o.Srinu, Hindu, aged 13 yrs., being minor represented by his father, next friend and natural guardian Thammina Srinu, S/o.late Rama Murthy, Hindu, aged 42 yrs., R/at Balaji Nagar, Tagarapuvalasa, Bheemili Mandal, Visakhapatnam District.

..Petitioner.

A n d: Mudapaka Sravan Kumar, S/o.Satyanarayana, Hindu, aged 20 yrs., Owner cum Rider of Bajaj Pulsar motorcycle bearing Regn.No.AP.31 BH 2434, R/at D.No.9-65/1, Varalakshmi Nagar, Vepagunta, Pendurthi Mandal, Visakhapatnam District. …Respondent.

This petition has coming on 08.08.2013 before me for final hearing in the presence of Sri S.Eswara Rao, Advocate for the petitioner and of Sri M.Satyanarayana, Advocate for the Respondent and the matter having stood over for consideration till this day, this Court delivered the following:

O R D E R

The petition is filed U/Sec.166 of M.V Act claiming compensation of

Rs.2,00,000/- for the injuries sustained by the petitioner in a road accident involving motor cycle bearing No.AP 31 BH 2434 owned by the respondent.

2.The Petitioner is minor represented by his father/next friend and resident of Tagarapuvalasa in Bheemunipatnam mandal of Visakhapatnam District. The respondent belongs to a village in Pendurthi mandal of Visakhapatnam District and he is the owner of the offending motor cycle.

3.It is stated in the petition that on 28.5.2011, the petitioner along with his father, brother and sister left their house to attend a marriage function and at about 8.30p.m., they were crossing NH 5 road opposite to Surya Nursing Home.

Then the offending motor cycle came from Vizianagaram side in rash and negligent manner and dashed against the petitioner. The respondent was the driver of the motor cycle. As a result, the petitioner fell on the road and sustained grievous injuries and was shifted to Surya Hospital, Tagarapuvalasa.

2

After taking first aid, he was shifted to Samudra Hospital, Visakhapatnam and was treated as inpatient for one day. He was again shifted to Sagar Durga

Hospital, Visakhapatnam for better treatment.

4.On the complaint given to the police about the accident, Crime

No.102/2011 was registered U/Sec.338 of IPC and 134(a) and (b) of M.V.Act against the respondent. Even as investigation was going on, the petitioner was treated in hospitals for which his father spent Rs.30,000/- for medicines and

Rs.2,000/- towards transportation. Inspite of the treatment, the petitioner did not recover and he became permanently disabled. He is not able to attend normal duties and not able to take hard food due to severe injury to stomach.

He is unable to carry the weights and do any hard work with his left hand. He is not able to attend his studies and he lost one academic year. Hence, the petition for compensation of injuries.

5.The respondent filed counter denying the allegations in the petition and his liability to pay the compensation. He pleaded that the accident has taken place all of a sudden when the petitioner himself crossed the road negligently and there was no negligence on the part of the respondent. Hence the petition is liable to be dismissed.

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

1. Whether the accident occurred on 28.5.2011 due to the rash and negligent driving of the driver of the vehicle, i.e., Bajaj Pulsar bearing No.AP.31 BH 2434?

2. Whether the petitioner is entitled to compensation as prayed for? If so, to what amount and from whom?

3. To what relief?

7.The petitioner has examined his father as P.W.1 and marked Exs.A1 to

A10 on their behalf to prove the accident and the gravity of injuries sustained by him. The respondent has not cross-examined P.W1 on 7.5.2013 and 27.6.2013 inspite of passing conditional orders. On 18.7.2013, he was called absent and there was no representation made on his behalf. Hence, he was set exparte. The petitioner has closed his evidence and later there was no request 3 from the respondent to permit him to lead evidence. After hearing the arguments of the petitioner, the issues are decided as follows:

8.ISSUE No.1

P.W.1 is the father of the petitioner and eye witness to the incident. His evidence is not contradicted. It is his evidence that on 28.5.2011, he along with his family members including the petitioner was crossing NH.5 road opposite Surya Nursing Home, Tagarapuvalasa in order to go to a marriage and that at 8.30 p.m., the respondent came in the offending motor cycle from

Vizianagaram side in a rash and negligent manner and dashed the petitioner and as a result he fell on the road and sustained grievous injuries on the stomach and left hand.

9.Ex.A1 is the copy of FIR registered by Bheemunipatnam P.S U/Sec.338 of

IPC against the respondent. The de facto-complainant is none other than PW.1.

The contents of Ex.A1 corroborate his evidence. It is specifically alleged in

Ex.A1 that the motor cycle was driving in high speed without blowing horn and dashed the petitioner who was then climbing onto the foot path from NH-5.

Ex.A2 is the copy of wound certificate issued by Dr K.Rajasekhar, MLC consultant Sagar Durga Hospital which corroborates that the petitioner was examined in the hospital on 29.5.2011 at 7 p.m., with regard to the injuries sustained by him due to hit of a motor cycle. Ex.A3 is the M.V.I Report which corroborates the identity of the respondent as the owner of the motor cycle and licence holder that is valid upto 9.1.2031. Evidently, the vehicle was not covered by any insurance.

10.On the basis of the investigation, Police filed Ex.A4 charge sheet fixing criminal liability on the respondent U/Sec.338 of IPC and Sec.134(a) and (b) of

M.V.Act. The allegation is that the respondent has not shifted the injured to the hospital nor informed the Police about the accident as such liable for violation of provisions of M.V.Act. In the light of the evidence of P.W.1 coupled with

Exs.A1 to A4, it is established that the respondent has driven the motor cycle in 4 rash and negligent manner and caused the accident. The issue is accordingly decided.

11.ISSUE No.2 :

P.W.1 has filed Exs.A5 to A10 to prove the gravity of injuries sustained by the petitioner and the quantum of medical expenses incurred by him for the treatment of the petitioner. Ex.A5 and A6 are the photographs of the petitioner with bandage arranged by the hospital for the fracture sustained to his left shoulder. Ex.A7 is receipt for Rs.4,000/- issued by Samudra Hospital evidencing the amount collected while discharging the petitioner from their hospital. Ex.A8 shows the details of the bill of Rs.4,000/- collected under

Ex.A7. Ex.A9 is the bunch of medical bills aggregating to Rs.1,812/- towards medicines and Rs.160/- towards transportation charges. Ex.A10 is bill for

Rs.3,600/- issued by Dolphin Diagnostic Services collected for taking C.T brain and whole abdomen. It is not disputed that the petitioner sustained fracture of shaft of humerus as per the X-Ray particulars mentioned in Ex.A2. He was also having shattered spleen with haemoperitonium. There is no allegation that these documents are fabricated and that the petitioner is not treated in any hospital referred in the bills.

12.Considering the gravity of injuries and length of the treatment, it would be reasonable to award aggregate sum of Rs.20,000/- towards pain and suffering of the grievous injuries mentioned in Ex.A2. Further, considering the gravity of injuries and the length of treatment, a sum of Rs.9,452/- rounded of to Rs.9,500/- towards medicines and Rs.500/- towards transportation charges can be awarded as reasonable compensation in as much as Ex.A6 to A10 are bona fide documents.

13.The petitioner has not examined any Medical Officer to prove that he has suffered any disability: partial or permanent. P.W.1 has given elaborate evidence that his son has lost an academic year and not able to maintain himself due to permanent disability. But, he has not examined any school authorities nor filed any school record to corroborate these allegations. Ex.A5 5 photos only show that the petitioner was arranged bandage during the course of treatment for fracture to his left shoulder. No doctor has been examined to speak about the current status of the fracture and the process of its healing after the treatment in the hospital. Therefore, the petitioner cannot be awarded any compensation under the head of permanent disability. Since the petitioner was evidently a student, it is obvious that he was depending upon his father for maintenance and education. Therefore, he is not an earning member of the family and hence the question of any loss of future earnings does not arise.

Since it is proved that the criminal negligence is on the part of the respondent, he is liable to pay the compensation in as much as his vehicle is not shown to have been covered by any insurance. The issue is accordingly decided.

14.ISSUE No.3

In the result, the petition is partially allowed for compensation of

Rs.30,000/- (Rupees Thirty thousand only) with proportionate costs and interest at the rate of 7.5% p.a., from the date of the petition i.e., from 02.02.2012 till the date of realisation. The respondent is directed to deposit the same in the Court within one month from the date of the judgment. On such deposit, P.W.1 being the father of the petitioner is permitted to withdraw the whole compensation immediately. Advocate’s fee is fixed at Rs.2,000/- (Rupees Two thousand only).

Typed to dictation, corrected and pronounced by me in open Court, this the 28th day of August, 2013.

Chairman, MACT-cum- Prl., District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENT:

P.W.1 : Thammina Srinu.Exparte.

6

DOCUMENTS MARKED

FOR PETITIONER:

Ex.A1: Attested Copy of FIR. Ex.A2: Attested Copy of Wound Certififcate. Ex.A3: Attested Copy of M.V.I.Report. Ex.A4: Attested Copy of Charge sheet. Ex.A5 & A6: Photos. Ex.A7: Medical receipt for Rs.4,000/- issued by Samudra Hospitals. Ex.A8: Estimation of Medical Expenditure issued by the SamudraHospital. Ex.A9: Bunch of Five bills issued by different hospitals. Ex.A10: Bill issued by Dolphin Diagnostic Services for Rs.3,600/-.

FOR RESPONDENT: -NIL-.

Chairman, MACT-cum- Prl., District Judge, Visakhapatnam.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI K.SIVA PRASAD, B.SC.,B.L.,

DISTRICT JUDGE.

FRIDAY, THE 30th DAY OF AUGUST, 2013

T.O.P.NO.187/2013

Between: Sri Rama Grama Seva Sangham (Regd. Society), represented by its President and Trustee- All Veerunaidu, S/o.Venkunaidu, Hindu, aged 80 yrs., Trustee, represented Sri Ramulvari Devasthanam, R/at D.No.1-5-25, Gandhinagaram, Anakapalle, Visakhapatnam District. …Petitioner. And:

1.Indukuri Jagannadharaju, S/o.Late Simhadri Raju, Hindu, aged about 53 yrs., Employee, R/at D.No.14-46, Thummapala Village, Anakapalle Mandal, Visakhapatnam District.

2.Indukuri Sharada, W/o.Jagannadharaju, Hindu, aged about 41 yrs., Housewife, rest-do-.

Respondents.

This petition has come up on 07.08.2013 before me for final hearing in the presence of Sri V.V.Jogayya, Advocate for the Petitioner and of Sri P.S.Kumar, Advocate for the Respondents; upon hearing their arguments and the same having stood over for consideration till this day, this Court made the following:

O R D E R

This petition is filed U/Sec.24 of C.P.C., for the transfer of O.S.234/2011 on the file of the Prl. Junior Civil Judge, Anakapalle to the Court of Prl. Senior

Civil Judge, Anakapalle for trial along with O.S.233/2012.

2.It is pleaded that the petitioner is a registered society represented by its

Trustee and President. They filed the suit O.S.233/2012 on the file of the Sr.

Civil Judge, Anakapalle for possession of encroached portion in S.No.486/2 of

Tummapala Grama Panchayat against the respondents. The suit is coming for filing written statement. While so, the respondents 1 and 2 filed O.S.234/2011 against the petitioner on the file of Prl. Junior Civil Judge, Anakapalle for permanent injunction. In that suit, the first respondent filed her affidavit in lieu of evidence and it is coming for cross examination.

3.It is stated that the petitioner filed the suit based on title and the respondents filed the suit for permanent injunction in respect of a part of the suit filed by the petitioner. If both suits are tried together by clubbing, no 2 hardship will be caused to the respondents and in the event of clubbing the suits, the court will have opportunity for better appreciation of the evidence and hence, the petition.

4.The respondents filed their counter admitting their status in both the suits mentioned by the petitioner. They pleaded that they filed O.S.234/2011 for permanent injunction and obtained temporary injunction under orders in

I.A.1218/2011 dated 28.11.2012 and that order became final. The petitioner is contending that the respondents have no title or possession over the plaint schedule property and after considering the merits of those contentions, the temporary injunction has been granted on merits.

5.It is pleaded that the petitioner has filed suit for possession subsequently without any justification to prolong O.S.234/2011 which is ripe for trial for long time. More over, the respondents filed a petition and got orders dated 4.1.2013 advancing the suit for trial. R.1(P.W.1) is attending all adjournments but the petitioner is postponing the trial. The suit was posted from 28.2.2013 to 14.3.2013 and later to 26.3.2013 and thereafter to 18.4.2013. Suppressing the material facts, the petition is filed to delay the disposal of O.S.234/2011.

6.It is also stated that the respondents filed I.A.1219/2011 under order 26

Rule 9 CPC for appointment of commissioner and another petition I.A. /2013 for police aid. The disposal of O.S.233/2012 being title suit would take long time for disposal since it is at the stage of framing of issues. The 1st respondent is medically unfit and the 2nd respondent is his wife. They belong to minority community and the petitioners demolished the boundary wall exposing their house to thieves and goondas. The respondents would lose right appeal if their suit is transferred as prayed for. Hence, the petition is liable to be dismissed.

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

1. Whether the prayer for transfer of the suit as prayed for the petitioner can be considered?

2. To what relief?

3

8.Point No.1:

The Petitioner has filed copies of the plaints in both the suits. The respondents filed the suit O.S.234/2011 against six defendants but the petitioner society represented by Alla Veerunaidu is not a defendant in that suit.

The petitioner filed the suit against 10 defendants including the respondents as

D.1 and D.2. Therefore, it is evident that the parties in both the suits are not common.

9.In O.S.234/2011, the suit schedule is building bearing Door No.14-46 situated in Tummapala Grama Panchayat with specific boundaries. The plaint schedule in O.S.233/2012 in two items of land aggregating to an extent of

Ac.1.62 cents in S.No.486/2 in Tummapala Grama Panchayat Limits. Both the items are described by separate boundaries.

10.Undisputedly, the suit O.S.234/2011 is ripe for trial and the respondents have also taken steps for expeditious trial and they have filed even affidavit in lieu of chief examination. It is alleged that the petitioner who is intentionally protracting the suit to avoid cross examination. In any event, the petitioner society is not a party in O.S.234/2011. It is not the case of the petitioner that they made any attempt to implead the society as Defendant in O.S.234/2011.

On the other hand, it is the case of the respondents that the present suit is filed only to over come the interim injunction obtained by them on merits in respect of the suit schedule in O.S.234/2011. Since, the petitioner is not at all party in

O.S.234/2011, the respondents would suffer hardship and prejudice if that suit

is clubbed with O.S.233/2012. In view of the circumstances, the prayer for transfer of the injunction suit is not tenable and not expeditious. The point is accordingly decided.

11.In the result, the petition is dismissed as devoid of merits.

Typed to my dictation, corrected and pronounced by me in open court, this the 30th day of August, 2013.

SD/- K.SIVA PRASAD

Prl. District Judge, Visakhapatnam.