Kuchi Syamala Devi

IN THE COURT OF THE ADDL DISTRICT JUDGE-CUM-JUDGE, FAMILY COURT:

GUNTUR

Present: Smt Kuchi Syamala Devi, B.Sc., B.L.,

ADDL. DISTRICT JUDGE-CUM-JUDGE, FAMILY COURT, GUNTUR.

Monday, the 19th day of March, 2012

A.S. No.200/2010

Between: Nadipalli Gandhi, S/o. Purushottam, aged about 53 years, Hindu, business, Resident, resident of Vaddavalli, Sattenapalli village, Sattenapalli Mandal, Sattenapalli JCJC, Guntur District. ……….Appellant/R12 -And-

1. Sri Lalitha Chit Funds, Sole Proprietor, Korrapati Seetharamanjaneya Sarma, S/o. Venkata Seshagiri Rao, aged about 55 years, Hindu, Business, House No.5-48-6/B, 1st floor, 2nd line, Pandaripuram, Guntur, Guntur Mandal and lJCJC, Guntur District.

2. Bikki Dhanalakshmi, D/o. Rama Rao, Teacher, aged about 48 years, Hindu, resident of Nandigama, Sattenapalli Mandal and JCJC.

3. Vankayalapati Jayalakshmi, W/o. Rama Krishna, aged about 36 years, Hindu, Teacher, U.P. School Bandlamodu, Vinukonda Mandal and JCJC.

4. Shaik Syda Saheb S/o. Doulat Khan, Muslim, aged about 68 years, Draughts man in NSRT canals Division, Sattenkapalli, Sattenapalli Mandal and JCJC.

5. Vadlamudi Lakshmi W/o. V.P. Suryanarayana, aged about 48 years, Hindu, House wife, resident of Amaravathi, Amaravathi Mandal, Sattenapalli JCJC.

6. Thondaopu Satyanarayana, S/o. Narasimha Rao, aged about 85 years, Hindu, resident of Dharanikota, Amaravathi Mandal, Sattenapalli JCJC.

7. Nukana Sivarama Krishna, S/o. Raghavaiah, aged about 40 years, Hindu, resident of Madala, Muppalla Mandal, Sattenapalli JCJC.

8. Gatrami Ramalakshmi, W/o. G. Prasad, Craft Teacher, aged 45 years, SHH School, Sattenapalli, Sattenapalli Mandal and JCJC.

9. Athota Maruthamma, W/o. Neelambaram, aged about 60 years, B.C. Hostel, resident of Chebrolu, Chebrolu Mandal, Guntur JCJC.

10.Kokkiligadda Raja Rao, S/o. Late Ramaiah, aged about 60 years, resident of Hierpet, Sattenapalli, Sattenapalli Mandal and JCJC.

11.Thumuluri Sivaram Chandra Sharma, S/o. Venkarteswarlu, aged about 56 years, Hindu, Teacher, Z.P. High School, Ganapavaram,

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Rajupalem Mandal, Sattenapalli JCJC. 12.Sakhamuri Srinivasa Rao, S/o. Gopala Krishnaiah, Hindu, aged about 48 years, resident of Komerlapadu, Sattenapalli Mandal and JCJC.

13.Shaik KHasim, S/o. not known, attender in CTO (Commercial Tax Office), aged about 40 years, Muslim, Sattenapalli, Sattenapalli Mandal.

14.Gatram Ramulu, S/o. Raghavulu, aged about 60 years, resident of Gandhipet, Chilakaluripet, Chilakaluripet Mandal and JCJC.

15.Cherukuri Ramakrishna Sastry, S/o. Late Seetharamaiah, aged about 60 years, Hindu Mandal Revenue Officer, Bapatla, Bapatla Mandal and JCJC.

16. Tirumalasetti Subbarao, S/o. Tirupataiah, Hindu, aged 55 years, H.No.5-8-21, Nagarjuna Nagar, Sattenapalli, Sattenapalli Mandal and JCJC.

17.Puppala Veeraraju, S/o. Subrahmanyam, aged about 53 years, Revenue Inspector, Krosuru, Krosuru Mandal and Sattenapalli JCJC.

18. Vadlamudi Peda Suryanarayana, S/o. China Ramaiah, aged about 50 years, Teacher, resident of Amaravathi, Amaravathi Mandal and Sattenapalli JCJC.

19.Bondili Srihari Singh, S/o. Bhavani Singh, aged about 40 years, Sankar Electronics, resident of Station Road, Sattenapalli, Sattenapalli Mandal and JCJC.

20.Krosuri China Ankaiah, S/o.Pothuluraiah, aged 45 years, Goldsmith, 2nd ward resident of Sattenapalli, Sattenapalli Mandal and JCJC.

21.Peddinti Sambasiva Rao, C/o. P. Ananda Rao, aged 50 years, H.No.6-8-15, Hyerpet, Sattenapalli, Sattenapalli Mandal and JCJC.

22.Peddinti Prabhudas S/o. Ratnam, aged 45 years, resident of Nuthalapativaripalem, Attaluru Post, Amaravathi Mandal and Sattenapalli JCJC.

23.Garikapati Prakasarao, S/o. not known, Retired Teacher, aged about 71 years, Bhatluru Post, Sattenapalli Mandal and JCJC.

24.Pochiraju Vedsnkiata Anjaneya Sarma, S/o. Chalapati Rao, aged about 45 years, resident of Achempet road, Sattenapalli, Sattenapalli Mandal and JCJC.

25.Muppalla Nityananda Sarma, S/o. Naga Brahma Sarma, aged about 50 years, Hindu, resident of Atchampet Post, Sattenapalli Mandal and JCJC.

26. Bhrugubanda Malikarjunarao, S/o. Late Venkateswarlu, Hindu, aged about 45 years, document writer, resident of Sattenepalli

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Mandal and JCJC. 27.Kancherla Punnaiah, S/o. Rama Swami, aged about 50 years, RTC conductor, resident of Sattenapalli, Sattenapalli Mandal and JCJC.

28. M. Sivaji Rao, S/o. Kotaiah, aged about 55 years, APSRTC, resident of Sattenapalli, Sattenapalli Mandal and JCJC.

29.Javangula Nageswararao, S/o. Brahmanandam, aged about 45 years, C/o. Nataraju Printers, State Bank of India Road, Sattenapalli, Sattenapalli Mandal and JCJC 30.Bahatam Satyanarayana Raju, S/o. Venkateswara Raju, aged about 60 Hindu, C/o.Natajaju printers, State Bank of India Road, Sattenapalli, Sattenapalli Mandal and JCJC.

31.Pallapogu Anandarao, S/o. Kotaiah, aged about 60 Hindu, resident of Hyerpet, Sattenapalli, Sattenapalli Mandal and JCJC.

32.Yatham Brahmareddy, S/o. Venkata Reddy, aged about 55 Hindu, resident of near FCI, Sattenapalli, Sattenapalli Mandal and JCJC.

33.Vijaya Saradhi father’s name not known, aged about 60 Hindu, resident of OPP. to FCI, Sattenapalli, Sattenapalli Mandal and JCJC.

34.Shaik Basha father’s name not known, aged about 50 years, Muslim, resident of Netaji Commerce College, near State Bank of India, Sattenapalli, Sattenapalli Mandal and JCJC.

35.Singarapu Kotamma Husband name not known, aged about 60 years, resident of Abburu, Sattenapalli Mandal and JCJC.

36.Gubba Venkata Subrahmanyam father’s name not known, aged about 65 years, Hindu, LIC, agent, resident of Amaravathi, Amaravathi Mandal, Sattenapalli JCJC.

37.Panem Lakshmi Koti, S/o. Peda Jagannadham, aged about 43 years, resident of Salipet, Sattenapalli, Sattenapalli Mandal and JCJC.

38.Manikonda Bhupathirao, S/o. not known, aged about 45 years, Hindu, resident of Abburu, Sattenapalli Mandal JCJC.

39.Narra Siva Nageswararao, S/o. Late Appa Rao, aged about 40 years, Hindu resident of Madhuri Musicals, Surya Talkies Road, Sattenapalli, Sattenapalli Mandal and JCJC.

40. Regula Kotiswami, S/o. not known aged about 60 years, Hindu, Driver in Commercial Tax Office, Sattenapalli, Sattenapalli Mandal and JCJC.

41.Billa Dayamma, W/o. B. Vasantha Rao, Christianpet, aged about 60 years resident of Sattenapalli, Sattenapalli Mandal and JCJC.

42.Induri Brahmareddy, S/o. not known , aged about 60 years, Jayalakshmi Fertilisers, resident of Madala Post, Muppalla Mandal and Sattenapalli JCJC.

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43. Kalluri Subba Rao, S/o. Lakshmaiah, aged about 55 years, Sri Lakshmi Traders, resident of Madala Post, Muppala Mandal, Sattenapalli JCJC.

44. Bandi Anjaneyulu, S/o. Subbaiah, aged about 63 years, ZPH School, resident of Muppalla post, Muppala Mandal and Sattenapalli JCJC.

45. V. Ramalingeswararao, S/o. Narayana Rao, aged about 50 years, Hindu, Paid Secretary, resident of Krosuru Post, Krosuru Mandal and Sattenapalli JCJC.

46.Parasaram Satyanarayanacharyulu, S/o. Venkata Charyulu, RMP Doctor, aged about 55 years, Hindu, resident of Panidaram Post, Sattenapalli Mandal and JCJC.

47. Jaladi Miltom Prem Raj, S/o. Rajendra Prasad, aged about 45 years, resident of Hyerpet, Sattenpalli, Sattenapalli Mandal and JCJC.

48. Parisa Malleswari, S/o. Shakeena Devi, aged about 50 years, Park Road, Vaddavali, Sattenapalli, Sattenapalli Mandal and JCJC.

49. Sukamanchi Malleswari, W/o. Pulla Rao, aged about 45 years, Mandal, Development Officer’s Office, Atchampet, Atchampet Mandal, Sattenapalli JCJC.

50.Darla Venkateswararao, S/o. not known, aged about 50 years, resident of Abburu Post, Sattenapalli Mandal and JCJC.

51. Gannavarapu Srinivasarao S/o. not known, aged about 40 years, Hindu, resident of Krosuru Post, Krosuru Mandal, Sattenapalli JCJC.

52.Muppuri Sambasivarao, S/o. not known, aged about 50 years, Hindu, Kantepudi, Sattenapalli Mandal and JCJC.

53.Puppala Venkateswarlu, S/o. Bhaskara Rao, aged about 42years, Hindu, H.No.4-3-20, Pulipati street, Sattenapalli, Sattenapalli Mandal and JCJC.

54.Challa Nagaraju S/o. Raghurama Sarma, aged about 45 years, Hindu, Attender in Commercial Tax Office, Sattenapalli, Sattenapalli.

55. Radiraju Raja Sulochana, W/o. Jagapati Raju, aged about 50 years, resident of Rajula Colony, Sattenapalli, Sattenapalli Mandal and JCJC. 56.Yarram Kanthaiah, S/o. not known, aged about 45 years, Teacher, resident of Atchampet, Atchampet Mandal, Sattenapalli JCJC.

57.Shaik Jilany, S/o. Syda, aged about 45 years, Teacher, resident of Atchampet, Atchampet Mandal, Sattenapalli JCJC.

58.Dr. N.L. Narasdimha Murthy, S/o. not known, aged about 63 years, resident of Korrapadu, Medikonduru Mandal and

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Sattenapalli JCJC.

59.Dhulipalla Venkata Krishna Prasad, S/o. Surya Narayana, aged about 38 years, Hindu, resident of Nagarjuna Nagar, Sattenapalli, Sattenapalli Mandal and JCJC.

60.Dhupalla Ramarao, S/o. Narayana, aged about 35 years, Hindu, resident of Nagarjunagar, Sattenapali Mandal and JCJC.

61.Dharanikota Chennakesavulu, S/o. Venkata Subbaiah, aged about 75 years, Hindu, resident of near Sub Registrar’s Office, Sattenapalli, Sattenapalli Mandal and JCJC.

62. B.V. Subrahmanyam, S/o. not known, aged about 50 years, resident of Christianpet, Sattenapalli, Sattenapalli Mandal and JCJC.

63.T. Sitarama Mohana Babu, S/o. Satyanarayana, aged about 50 years, Paid Secretary, resident of Krosuru Post, Krosuru Mandal and Sattenapalli JCJC.

64. A.Satyanarayana Charyulu, S/o. not known, aged about 60 years, GDCC Bank, resident of Krosuru Post, Krosuru mandal and Sattenapalli JCJC.

65. S.Leyamma, W/o. Jayanthi Babu, aged about 55 years, resident of Atchampet, Atchampet Mandal and Sattenapalli JCJC.

66. Yempu Ratna Susil Kumar, S/o. Jakab, aged about 45 years, resident of Rajavolu Post, Rajahmundry Mandal and JCJC.

67. Kallam Ramanjaneya Reddy, S/o. not known, aged about 45 years, Hindu, resident of Nagarjuna Nagar, Sattenapalli, Sattenapalli Mandal and JCJC.

68. K. Rani Bose W/o. K.T. Bose, aged about 50 years, resident of Vengalreddy Nagar, Sattenapalli, Sattenapalli Mandal and JCJC.

69. V. Sangameswarachary, S/o. not known, aged about 60 years, Teacher, Resident of Amaravathi post, Amaravathi Mandal and Sattenapalli JCJC.

70. Gopidevi Sambasivarao, S/o. not known, aged about 66 years, Teacher, resident of Chigurupadu Post, Atchampet Mandal and Sattenapalli JCJC.

71.Nathani Tirupatamma, aged about 75 years, resident of Dharanikota Post, Amaravathi Mandal and Sattenapalli JCJC.

72. Vemulapalli Raghavendra W/o. Nageswara Rao, aged about 50, Grameena Chaitanya Bank, resident of Geethamandir Street, Narasaraopet, Narasaraopet Mandal and JCJC.

73.Kancherla Punnaiah, S/o. not known, aged about 50 years, Hindu, Conductor, APSRTC, Sattenapalli, Sattenapalli JCJC.

74. Tadiboina Kistamma, Contractor, resident of Atchampet Post,

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Atchampet Mandal and Sattenapalli JCJC.

75. Bikki Mahesh, S/o. not known, aged about 45 yeas, MRO, Krosuru Post and Mandal, Sattenapalli JCJC.

76. Bandrbeddi Sambireddy, S/o. not known, Teacher, aged about 66 years, Hindu, resident of Phirangipuram Post and Mandal, Sattenapalli JCJC.

77. Vadlamudi Peda Suryanarayana, S/o. not known aged about 50 years, Hindu, Teacher, resident of Amaravathi, Amaravathi Mandal and Sattenapalli JCJC.

78. Dasari Venkateswarlu, S/o. not known, aged about 50 years, Hindu, Lorry Driver, residing at Vengalareddy Nagar, Sattenapalli, Sattenapalli mandal and JCJC.

79. Kondaveeti Krishna Mohan, S/o not known, aged about 40 years, Sree Ureka Financiers, near Head Post Office, Sattenapalli, Sattenapalli Mandal and JCJC.

80. Ankala Gopalarao, S/o. not known, aged about 50 years, RTC Conductor, APSRTC, Sattenapalli.

81.P.V. Nageswararao, S/o. not known, aged about 40 years, Hindu, Clerk in Sub Registrar’s Office, Sattenapalli, Sattenapalli Mandal and JCJC.

82. Chiluka Chandrasekhar, S/o. not known, aged about 45 years, Advocate C/o. P. Pamulaiah, resident of Sattenapalli, Sattenapalli Mandal and JCJC.

83. Polisetti Rama Mohan S/o. not known, aged about 42 years, Vijaya Durga Financiers near China Maszid, resident of Sattenapalli, Sattenapalli Mandal and JCJC.

84.Ankala Kotaiah, S/o. not known, aged about 65 years, RTC driver, in APSRTC, Sattenapalli, Sattenapalli Mandal and JCJC.

85. Jada Papaiah, S/o. not known, Teacher, aged about 60 years, Hindu, resident of Peda Makkena, Sattenapalli Mandal and JCJC.

86. S. Meenakshi, Village Development Officer, aged about 40 years, resident of Atchampet, Atchampet Mandal and Sattenapalli JCJC.

87. V. Venkatareddy S/o. not known, aged about 63 years, Hindu, Work Inspector, resident of Pesapadu Post, Krosuru, Mandal and Sattenapalli JCJC.

88.T. Srinivasarao S/o. not known aged about 42 years, Hindu, work Inspector resident of Atchampet, Atchampet Mandal and Sattenapalli JCJC.

89.Puthota Hrudaya Raju, S/o. Lurdhu Raju, aged about 45 years, Christian, Teacher, ZPH School, Phirangipuram Post, Phirangipuram Mandal and Sattenapalli JCJC.

90. D. Yanaiah, S/o. not known, aged about 55 years, conductor,

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resident of Rentapalla Post, Sattenapalli Mandal and JCJC.

91.G. Srinivasarao, S/o. not known, aged about 45 years, Hindu, Librarian, resident of Atchampet post, Atchampet Mandal and Sattenapalli JCJC.

92. Life Insurance corporation of India, Sattenapalli (Given up)

93. V. Ramalingeswararao, S/o. not known, aged about 50 years, Hindu, paid Secretary, resident of Krosuru Village and Mandal, Sattenapalli JCJC.

94. V. Drakshayani, W/o. V. Ramalingeswara Rao, aged about 48 years, Hindu, resident of Krosuru, Krosuru Mandal and Sattenapalli JCJC.

95. Yakkitala Peda Hanumaiah, S/o. not known, aged about 75 years, resident of Dodleru Post and Krosuru Mandal, Sattenapalli JCJC.

96. Chowta Venkateswararao, S/o. not known, aged about 53 years, Back side of State Bank of India Road, Sattenapalli, Sattenapalli Mandal and JCJC.

97. Katakam Sambasivarao, S/o. not known, aged about 54 years, Hindu, C/o. GHV Babu Rao, behind State Bank of India, Sattenapalli, Sattenapalli and JCJC.

98. Akkiraju Venkata Subbamma, W/o. Seeteha Ramaiah, aged about 43 years, Hindu, H.No.7-2-50, Old Town police Station Road, Narasaraopet Mandal and JCJC (died) 99.Dodleti Durga Prasad, S/o. Gopala Krishnaiah, aged about 54 years, Hindu, resident of Narasaraopet, Narasaraopet Mandal and JCJC.

100. Aluri Dattatreya Sarma, S/o. not known, aged about 77 years, Hindu, resident of Narasaraopet, Narasaraopet Mandal and JCJC.

101.Dodleti Seetearamaiah, S/o. not known, aged about 77 years, Hindu resident of Narasaraopet Mandal and JCJC.

102.Dodleti Annapurnamma, W/o. Papaiah, aged about 55 years, Hindu, resident of Narasaraopet, Narasaraopet Mandal and JCJC.

103.Palutla Anjaneyulu, S/o. Kotaiah, aged about 68 years, Hindu, resident of Jangalapalli, Vinukonda Mandal.

104.Akkiraju Mallikarjunarao, S/o. Venkata Subba Rao, aged about 45 years, Hindu, resident of Takkellapadu, Dachepalli Mandal.

105.Ilapavuluri Adiseshaiah, S/o. Subba Rao, aged about 56 years, resident of Railpet, Guntur and Gfuntur JCJC.

106.Gangaraju Srinivasarao, S/o. Srirama Murthy, aged about 44 years, Lakshmi Sai Electronics, Resident of Gorantla Post.

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107.Surampalli Brahmaiah, S/o. not known, aged about 55 years, C/o. Rama Rao, Lalitha Chit Funds, Sattenapalli, Sattenapalli Mandal and JCJC.

108.Vadlamudi Peda Suryanarayana, S/o. China Ramaiah, aged about 55 years, Hindu, resident of Dharanikota Post, Amaravathi Mandal and Sattenapalli JCJC.

109.Mateti Vedavathi, W/o. Raghava Rao, aged about 48 years, Hindu, C/o. D. Seetha Ramaiah, H.No.7-2-50, Old Town Police Station Road, Narasaraopet, Narasaraopet Mandal and JCJC.

110.Mateti Appa Rao, S/o. Hanumantha Rao, aged about 53 years, Hindu, Tea Stall, resident of Old Town Police Station road, Narasaraopet, Narasaraopet Mandal and JCJC.

111.Akula Ramakrishna S/o. not known aged about 52 years, C/o. Jayalakshmi Enterprises, Old Town Police station road, Narasaraopet Mandal and JCJC.

112.Potluri Hanumantha Rao, S/o. Subba Rao, aged about 50 years, Hindu, resident of Kothapet, Vinukonda Post and Mandal, Guntur District, Vinukonda JCJC. …Respondents

On appeal against the decree and Order passed in IP No 28/1996 dated 19-1-2009 on the file of Additional Senior Civil Judge, Narasaraopet.

Between: Sri Lalitha Chit Funds, Sole Proprietor, Korrapati Seetharamanjaneya Sarma.

...Petitioner

And

1. Bikki Dhanalakshmi

2. Vankayalapati Jayalakshmi

3. Shaik Syda Saheb

4. Vadlamudi Lakshmi

5. Thondaopu Satyanarayana

6. Nukana Sivarama Krishna

7. Gatrami Ramalakshmi

8. Athota Maruthamma

9. Kokkiligadda Raja Rao 10.Thumuluri Sivaram Chandra Sharma 11.Sakhamuri Srinivasa Rao 12.Nadipalli Gandhi 13.Shaik KHasim 14.Gatram Ramulu 15.Cherukuri Ramakrishna Sastry 16.Tirumalasetti Subbarao 17.Puppala Veeraraju

18. Vadlamudi Peda Suryanarayana 19.Bondili Srihari Singh 20.Krosuri China Ankaiah 21.Peddinti Sambasiva Rao 22.Peddinti Prabhudas 23.Garikapati Prakasarao

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24.Pochiraju Vedsnkiata Anjaneya Sarma 25.Muppalla Nityananda Sarma

26. Bhrugubanda Malikarjunarao 27.Kancherla Punnaiah 28.M. Sivaji Rao 29.Javangula Nageswararao 30.Bahatam Satyanarayana Raju 31.Pallapogu Anandarao 32.Yatham Brahmareddy 33.K. Vijaya Saradhi 34.Shaik Basha 35.Singarapu Kotamma 36.Gubba Venkata Subrahmanyam 37.Panem Lakshmi Koti 38.Manikonda Bhupathirao 39.Narra Siva Nageswararao

40. Regula Kotiswami 41.Billa Dayamma 42.Induri Brahmareddy

43. Kalluri Subba Rao

44. Bandi Anjaneyulu 45.V. Ramalingeswararao 46.Parasaram Satyanarayanacharyulu 47.Jaladi Miltom Prem Raj

48. Parisa Malleswari

49. Sukamanchi Malleswari 50.Darla Venkateswararao

51. Gannavarapu Srinivasarao 52.Muppuri Sambasivarao 53.Puppala Venkateswarlu 54.Challa Nagaraju 55.Radiraju Raja Sulochana 56.Yarram Kanthaiah 57.Shaik Jilany 58.Dr. N.L. Narasdimha Murthy 59.Dhulipalla Venkata Krishna Prasad 60.Dhupalla Ramarao 61.Dharanikota Chennakesavulu

62. B.V. Subrahmanyam 63.T. Sitarama Mohana Babu 64.A.Satyanarayana Charyulu 65.S.Leyamma 66.Yempu Ratna Susil Kumar 67.Kallam Ramanjaneya Reddy

68. K. Rani Bose 69.V. Sangameswarachary

70. Gopidevi Sambasivarao 71.Nathani Tirupatamma

72. Vemulapalli Raghavendra 73.Kancherla Punnaiah 74.Tadiboina Kistamma

75. Bikki Mahesh

76. Bandrbeddi Sambireddy

77. Vadlamudi Peda Suryanarayana

78. Dasari Venkateswarlu

79. Kondaveeti Krishna Mohan

80. Ankala Gopalarao

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81.P.V. Nageswararao

82. Chiluka Chandrasekhar

83. Polisetti Rama Mohan 84.Ankala Kotaiah

85. Jada Papaiah

86. S. Meenakshi

87. V. Venkatareddy 88.T. Srinivasarao 89.Puthota Hrudaya Raju

90. D. Yanaiah 91.G. Srinivasarao

92. Life Insurance corporation of India, Sattenapalli (Given up)

93. V. Ramalingeswararao

94. V. Drakshayani

95. Yakkitala Peda Hanumaiah

96. Chowta Venkateswararao

97. Katakam Sambasivarao

98. Akkiraju Venkata Subbamma (died)

99. Dodleti Durga Prasad 100.Aluri Dattatreya Sarma 101.Dodleti Seetearamaiah 102.Dodleti Annapurnamma 103.Palutla Anjaneyulu 104.Akkiraju Mallikarjunarao 105.Ilapavuluri Adiseshaiah 106.Gangaraju Srinivasarao 107.Surampalli Brahmaiah 108.Vadlamudi Peda Suryanarayana 109.Mateti Vedavathi 110.Mateti Appa Rao 111.Akula Ramakrishna 112.Potluri Hanumantha Rao

... Respondents/R1 to R11,

R13 to R112 * * *

This appeal is coming on before me for final hearing on 23-1-2012, upon perusing the Decree and Judgment of the Lower Court and other material papers in the case and on hearing of Sri P.V. Narasimha Sastry, Advocate for the Appellant and of Sri M. David Lalith Babu, Advocate for the Respondents No.5, 18, 77; Sri K. Devanand, Advocate for the 10th Respondent; Sri J. Ranga Raju, Advocate for the 69th Respondent, and of Sri Syed Nabi Zilani, Advocate for the Respondents No.36, 89, 103 to 105; and the Respondents No.1 to 4, 6 to 9, 11 to 17, 19 to 35, 37 to 68, 70 to 76, 78 to 88, 90 to 102, 106 to 112 having remained exparte and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT:

This is an appeal filed by the appellant against the Decree and Judgment in IP.28/1996 dated 19-1-2009 on the file of Additional Senior

Civil Judge, Narasaraopet.

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1st respondent filed IP.28/96 under Section 10 of the 2. Provincial Insolvency Act to adjudge the 1st respondent/petitioner as insolvent and to appoint an official receiver for the purpose of administration of his estate.

1st respondent filed the petition with the following 3. allegations. The petitioner is running a chit business as a sole Proprietor under the name of Sree Lalitha Chit Funds and conducting chits of different volumes ranging from Rs.10,000/- to Rs.15,000/-. He got the chits duly registered with the Registrar of Chits. He registered the chits as per the Rules and deposited the amount with the concerned authorities. Thus, there are 200 members as subscribers in the chit run by the petitioner in which respondents 1 to 91 are the non- prized subscribers. Respondents 93 to 112 are also subscribers namely prized subscribers to whom the petitioner has to pay the prize amount in the respective chits. As the respondents 1 to 91 failed to pay the prize amount to the prized subscribers, therefore he had to borrow amount from the third parties and the creditors are pressing to pay the money to him and his debtors are not paying the amount. Consequently, he is indebted of paying the money to the subscriber.

89th respondent and 78th respondent filed a suit OS.16/1996 on the file of the Munsif Magistrate, Sattenapalli. The other respondents are threatening to file suits against the petitioner and also to take coercive steps against him. He stopped the chit fund business, the petitioner is forced to pay the money by borrowing money from the creditors.

4.The liabilities are shown in ‘A’ schedule and the assets are shown in ‘B1’ to ‘B5’ schedules. The house property is subject to loan to 92nd respondent and there is an outstanding amount of Rs.45,000/-. As the liabilities exceed his assets, the present petition is filed.

5.The amounts payable to the petitioner as shown in B2 schedule is Rs.10,00,050/-, whereas the liabilities are Rs.15,00,000/-.

6.R8, R9, R21, R22, R23, R31, R76, R95, R101, R103, R104, R105 and R111 adopted the counter filed by R89.

7.Similarly, R12, R26, R27, R52 and R58 filed common counter which was adopted by R10 and R84.

8.R2, R41 and R97 are filed separate counters.

2nd respondent pleaded that he is a member of the chit 9. and participated in 26 auctions and paid instalments as a non-prized subscriber of Rs.25,000/- from March, 1994 to March 1996.the petitioner with a view to avoid the payment of the amounts filed this petition. Hence the petition is liable to be dismissed.

10.R77 contended that the petition is a gross abuse of process of law. He floated the chit fund company and induced the public to become subscriber of the chit series in the company and collected an amount of Rs.2,50,000/- and escaped thereof. The present petition is filed to escape the criminal liability.

11.R89 filed counter contending that he filed a suit

12

OS.340/1996 on the file of Prl. District Munsif Court, Sattenapalli and

also R78 filed OS.16/1996. The petitioner has got cash of Rs.10,00,000/- and gold ornaments and other valuable articles. He is collecting the amount from the subscribers and suddenly absconded with the above amounts and gold articles.

12.R12 filed counter stating that the Provincial of Insolvency Act are not applicable and the petitions are liable to be dismissed.

13.R41 contended that he is a member of the chit and paid Rs.15,000/- as non-prized subscriber.

14.R97 filed counter stating that the debts are created in the name of his friends and kith and kin. He avoided to perform his duty and absconded. He caused damage to the respondent to an extent of Rs.1,00,000/-.

15.The learned trial Judge framed the following points for consideration:

1. Whether the petition is not maintainable under the provisions of the Provincial Insolvency Act, in view of the provisions of the A.P. Chit Funds Act as contended by the respondents?

2. Whether the petitioner committed acts of insolvency?

3. Whether the petitioner is entitled to be adjudicated as insolvent?

4. To what relief?

16.On behalf of the petitioner, P.W.1 was examined and marked no documents and on behalf of the respondent, R12 is examined as R.W.1 and marked no documents.

17.The learned trial Judge after considering the oral evidence came to a conclusion and gave a finding that the petitioner committed an act of insolvency and adjudged him as an insolvent and also appointed an official receiver to take the properties.

18.Aggrieved by the said decree and Judgment of the learned trial Judge, R12 preferred this appeal.

19.In this appeal, the appellant contended that the cause title in the IP of the petition is itself wrong. The filing of the petition in individual capacity is wrong in fact, it was filed by the chit fund company. The trial Court should have seen that there is no act of insolvency committed by the petitioner and he suppressed all his efforts on the date of filing of the petition Conducting of private chits is an offence under the Act and a person who came to a Court by committing offence is not entitled for any relief. The petitioner failed to file the bank account or pass books or ledger copy into the Court and though the burden is on the respondent that the petitioner is not an insolvent. Hence he prayed to allow the appeal.

On the other hand, R69 supported the Judgment of the learned trial Judge. The other respondents did not advance any arguments.

20.Now the points for determination are -----

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1. Whether the 1 st respondent/petitioner committed an act of 

insolvency?

2. Whether he is entitled to be adjudicated as insolvent?

3. Whether there are any grounds to set aside the findings of 

the learned trial Judge?

4. To what relief?

21.The learned counsel for the appellant raised various grounds in the course of arguments that Section 13 of the Act is not applicable because he collected the amounts and absconded to defraud the creditors. Secondly, he stated that the petitioner firm being not a chit fund the winding up proceedings have to be made before the Chit fund Act. Thirdly, it is stated that the petitioner had not showed all his properties and suppressed the movable properties.

22.Next it is urged that no IP against R92 which is a corporate body is maintainable and not pressing the IP will not cure the debt and the whole IP goes. There is no evidence to show the losses sustained by the petitioner and it is not borne out by the record. There is no proof that he is indebted to the respondents. And it is not shown that whom he is indebted. Lastly, it is urged that where the petitioner/1st respondent registered himself under the Chit Fund Act he is guided under the Act and cannot be treated as an individual.

23.Now with these various arguments advanced by the appellant I shall consider each aspect one by one. For the purpose of convenience, the 1st respondent in this appeal who filed the IP to declare him as insolvent will be referred as petitioner/debtor and the respondents will be referred as respondents /creditors.

Point Nos.1 to 3:

24.The petitioner/ debtor in Para 3 of the petition pleaded that he traded in the name of “Sree Lalitha Chit Funds” as sole Proprietor and conducted the chits. He stated that he registered the chit fund company under the Society Registration Act with its bye-laws, but the bye-laws of his firm are not produced. Further, he pleaded that he registered the Chit Fund Company under the Chit Funds Act before the Registrar of Chits.

25.P.W.1 deposed in his evidence that he conducted both private and public chits. Originally, the petitioner is a Teacher by profession and he admitted his running the chits unofficially. Though he is having accounts and documents to the chits, he did not file in the Court. Admittedly, he repeated some of the names in the petition as its creditors. He further admitted that he did not issue any legal notice to the subscriber demanding the amount nor filed the suit against them.

26.During the course of cross-examination by R12/appellant, P.W.1 admitted that he is the foreman and Proprietor of Sri Lalitha Chits and he filed this IP on behalf of the Sri Lalitha Chits as sole Proprietor. He further admitted that he followed the provisions of the Chit Funds Act while conducting the chits. So, it is clear that the chits which the petitioner had conducted is under the A.P. Chit Funds Act and it is also

14

clear that he is governed by the Provisions of the Act. Admittedly and evidently, he did not file the bank account books or ledgers into the Court showing his accounts. He further admitted that he did not show his movable properties in the petition though he is having all the movable properties. He further admitted that without locking his residential portion, he went out from Sattenapalli by over night. On a reading of the evidence of P.W.1, it is clear that he did not maintain any accounts or proof to show that he borrowed loans for his chit business and there is no evidence to show by the petitioner that his liabilities are more than his assets.

27.He admitted that he has no evidence to show that he sustained loss in his personal chits as well as Sri Lalitha Chits. It is evident from his evidence that he obtained certificates from the Registrar of Chits to run the chits under Sri Lalitha Chits, but he did not file any of the certificates. When the petitioner chits are registered under the Chit Fund Act, he should be guided under the provisions of the Act and not individually. It is the contention of the petitioner that he followed the procedure under the Chit Funds Act and then in such a case, he will be guided by the provisions of the Chit funds Act only. He cannot approbate and reprobate. For conducting the chits. he cannot rely under the provisions of the Chit Funds Act and now for the purpose of this petition, the petitioner cannot contend that the provisions of the Chit Fund Act are not applicable.

28.Now the next question is whether the petition in the firm laid by the petitioner is maintainable. It is seen from the record that he impleaded a corporate body LIC of India as his creditor who is R92.

Section 8 of the Insolvency Act contemplates exemption of corporation from insolvency proceedings. It lays down that no petition can be presented against any corporation or association or company registered under any enactment. However, the petitioner had not pressed his claim against R92.

29.The learned counsel for the appellant contended that not pressing the IP against R92 will not cure the defect and the whole IP goes. Section 8 of the Act did not contemplate any such provision. No authority is placed by the appellant in this regard. So, in the absence of any specific authority when the petition against R92 is dismissed, it cannot be said that the entire IP will fall back. The petitioner had showed 112 respondents in plaint A schedule stating that he is indebted to them under various pronotes. None of these creditors were examined nor any document is filed by the petitioner to prove his contention. The respondent contended that P.W.1 collected amounts from the subscribers to a tune of Rs.12,00,000/- and overnight he absconded from Sattenapalli with those amounts. According to him the petitioner only swallowed the amounts of the public without their being loss in the business. He cheated the public. Except the debts of R.W.1, R10, R26, R27, R52, R58, R84, the other debts in A schedule are all false and fictitious.

30.The cross-examination of the witness R.W.1 and the discussion of the learned Senior Civil Judge is in the lines that the creditor should prove the fact that the petitioner had sustained act of insolvency. The burden is not on the creditors and it is for the petitioner to prima-facie establish his case. The petitioner did not show the persons who are really indebted as respondents. Except R93 to

15

R112 who are the prized subscribers, there is no evidence to show that R1 to R90 are also prized subscribers.

31.Now we have to see whether the petitioner committed act of insolvency.

32.Under Section 10 of the Insolvency Act, a debtor shall not be entitled to present an insolvency petition unless he is unable to pay his debts. What the Court has to see in a case of this nature is that it should be satisfied that the debtor prima-facie on the basis of enquiry has proved that he is unable to pay his debts. So, a prima-facie evidence is to be adduced as to the existence of the debts other than under the decree. Thus, there should be a prima-facie material before the Court for the existence of the debts. As already discussed, the petitioner did not place any evidence much less prima-facie evidence to show the existence of the debts as mentioned in 'A' schedule nor did he implead the creditors to whom he borrowed under the pronotes nor examined them.

33.In the absence of prima-facie evidence, he cannot be adjudicated as insolvent. So, therefore in this case also the petitioner having failed to file prima-facie evidence cannot be adjudicated as an insolvent. When the very genuineness of the transaction of obtaining loan under pronotes as shown in 'A' schedule is disputed. It is for the petitioner to adduce some legal evidence before the Court to come to a conclusion that the petitioner has prima-facie proved his right to get himself adjudicated as insolvent. But the petitioner had not placed any iota of evidence either oral or legal or otherwise in this case to prove existence and genuineness of the debts.

34.Lastly, another contention that is pointed out by the learned counsel for the appellant is with regard to the suppression of the assets of the debtor.

35.Section 13 (1) (e) of the Act specifies that the insolvency petition presented by a debtor shall contain the amount and particulars of all his properties together with their value and the place where such property is to be found and a declaration of his willingness to place at the disposal of the Court all such properties.

36.Here the expression property within the meaning of this Act would not only mean immovable property, but any other property which the debtor owned and possessed. During the course of trial, which is elicited through the petitioner P.W.1 that the petitioner has got other properties which he did not show in B5 schedule. His contention that he did not hold any properties stood belied with admission in his evidence that he got other properties which he had not shown in the schedule.

Their Lordships of our Hon'ble High Court in Dasari Sri Hari  37. Rao Vs. Talluri Harnath Babu reported in 2002 (3) ALT 484 clearly held that gany suppression of any material particulars before the Court, the petitioner debtor cannot be declared as insolvent. h

38.Some of the respondents in their counter pleaded that the petitioner in order to defeat their claims had absconded to Sattenapalli. Therefore the contention of the respondents come within

16

the clause 6 (1) (d) of the Act. There is no evidence in support of the pleadings of that effect. The respondents who filed their counters as such have not adduced any evidence. Before considering the aspect that the petitioner absconded himself only to defeat or delay his creditors, the petitioner has to prima-facie establish the fact of the existence of the debts. That aspect was not considered by the learned trial Judge. He was taken away from the pleadings in the counter and came to a conclusion that the petitioner committed act of insolvency. He came to an erroneous conclusion that since the debts are more than his assets, he is entitled to be adjudicated as insolvent without placing any prima-facie legal evidence as to debts. If an interim receiver in pursuance as to the order of the Court acted and administered the estate of the petitioner during the pendency of the proceedings, that would not suggest as observed by the learned trial Judge in Para 18 of the Judgment as to the act of insolvency. The purpose of Section 10 of the Act for adjudication of a person as insolvent is that he has no other property what so ever except his wearing apparel. The learned trial

Judge observed that non filing the bank accounts or bank account

ledger into the Court cannot be a ground to dismiss the petition because it is for the respondent to prove that the petitioner got amounts in the bank account by the date of petition. P.W.1 in his evidence stated that he maintained accounts for both the private and public chits on behalf of the company, but he did not file those account books in this IP.

39.The petitioner is conscious and deposed that the chit fund business which he was running was on behalf of the company.

40.He ran both private and public chits. He himself admitted in his evidence that he has no evidence to show that he sustained loss. This admission is sufficient to disclaim the relief of the petitioner. Further he stated that he has other movable properties, but he did not show them in his petition or handover to official receiver. The petitioner however after giving evidence in the cross-examination amended the schedule of movables. But on the date of filing of the petition, he suppressed these properties in his petition. So, viewed in any angle, the petition filed by the petitioner debtor lacks merits and is not maintainable. Therefore, the findings of the learned trial Judge are liable to be set aside. The points are answered accordingly.

Point No.4:

41.In the result, the appeal is allowed setting aside the findings of the learned trial Judge in IP.28/1996 dt.19-1-2009 on the file of Addl. Senior Civil Judge, Narasaraopet. The IP.28/96 is hereby dismissed.

In the circumstances no costs.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in open Court this the 19th day of March, 2012.

Sd/- Kuchi Syamala Devi,

17

ADDITIONAL DISTRICT JUDGE-CUM-

JUDGE, FAMILY COURT, GUNTUR.

// T.C.F. B.O.C. //

Administrative Officer

IN THE COURT OF JUDGE, FAMILY COURT-CUM-ADDITIONAL DISITRICT

JUDEGE: GUNTUR

Present: Smt Kuchi Syamala Devi, B.Sc., B.L.,

JUDGE, FAMILY COURT-CUM-ADDL. DISTRICT JUDGE, GUNTUR.

Friday, the 9th day of March, 2012.

DOP.90/2010 & GWOP.112/2010

DOP.90/2010

Between: Gunturu Swarna Jackline, W/o Gunturu Navakanth, Christian, aged about 25 yrs, Care of her father Mr.P.C. Jacob, Flat No.101, Aishwarya Towers, 14/3, Arundelpet, Guntur-522 002.

...Petitioner

-And- Gunturu Navakanth, S/o Mr. G. Ramesh, Christian, aged about 25 yrs, R/o P.S. Nagar, Guntur.

...Respondent

GWOP.112/2010

Between: Gunturu Navakanth, S/o Ramesh, Christian, aged about 24 yrs, Law Student/Private Employee, R/o D.No.4-16-232/A, 2nd lane, P.S. Nagar, Amaravathi Road, Guntur.

...Petitioner

-And- Gunturu Swarna Jacklin, W/o Navakanth, D/o P.C. Jacob, aged about 26 yrs, R/o Flat No.101, Aishwarya Towers, 14/3 Arundelpet, Guntur.

...Respondent

* * *

These petitions coming on before me for final hearing on 3-1-2012 in the presence of Sri B. Chandra Sekhar, Advocate for the petitioner in DOP.90/10 and and Advocate for the respondent in GWOP.112/10; Sri G. Joseph Ravi Kumar, Advocate for the respondent in DOP.90/10 and Advocate for the petitioner in GWOP.112/10, upon perusing the material on record, after hearing both sides and having stood over for consideration till this day, this Court delivered the following:

COMMON JUDGMENT:

DOP.90/10 is filed by the petitioner/wife for dissolution of the marriage under Section 10 (1) (x) of the Divorce Act by a decree of divorce.

2.The marriage of the petitioner took place on 2-12-2005 with the respondent as per Christian Rites and Customs. Taking advantage of the vulnerable situation of pregnancy of the petitioner through the

2

respondent,the parents of the respondent demanded dowry and ultimately the petitioner and her parents agreed to gave Rs.1 ½ lakh cash in which

Rs.1,00,000/- was kept in the Fixed Deposit in the name of the spouses jointly and Rs.50,000/- cash was paid to the respondent.

3.The respondent is a lazy fellow, a vagabond and irresponsible husband and a bad father and an awkward drunkard and wanderer. He started boozing everyday and quarrelling with the petitioner. On 23rd

January 2006, he came home during night in debriated condition and when questioned by the petitioner, he got enraged and fisted forcibly on her eyes, resulting in blood clot in the left eye. She had to take treatment as her eyesight was impaired for several weeks. Without caring even for the pregnancy, he beat her several times.

4.The respondent's mother carried tales to him against the petitioner and poisoned his mind. On 17-8-2006, the respondent came in a drunken state and ill treated the petitioner both physically and mentally.

On 21-8-2006 she was sent out of the house along with the baby having no other alternative she took refuge in her parents house.

5.On 8-10-2006 on the promise made by the respondent that he would not touch alcohol. The parents of the petitioner sent her to the house under the mediation of the junior paternal uncle of the petitioner, but again the respondent ill treating her. She was not allowed to feed the baby properly. The mother of the respondent used to give money to him for consuming liquor. On 17-4-2007, the respondent came in a drunken state when she requested him to give up the habit of drinking, he pulled up her hair and beat her. He beat her on her left shoulder and twisted her left hand. The respondent and his parents did not allow either to take away the baby or her belongings and she was sent out unceremoniously with her nighty without her baby.

6.Later the petitioner complained to Arundelpet Police Station on that day. He was sent her to medical examination by the Police to Govt.,

General Hospital. Police could not get the respondent. On the next day,

C.I. arranged escort of two Cops in getting the belongings of her from the respondent's house. She was not allowed to take the gold presented by her parents to her and the baby or the FD bonds. Thus the petitioner is apprehending danger to her life and also the baby in his hands.

Respondent sent legal notice on 5-7-2008 to her surprise, he demanded

3

reunion with the petitioner. He also filed PLC before the Legal Services

Authority after keeping quite for one year. There is no cohabitation between the petitioner and the respondent for more than three years and there are no chances for reunion. Hence the petition.

7.Respondent filed counter denying the allegations in the petition and contended that he got acquainted with the petitioner while he was studying Intermediate in the house of his aunt. Later, they developed intimacy which grew into love and she became pregnant. He being the only son, his father performed the marriage with the respondent at his own expense and both the parents agreed to invest Rs.50,000/- each in the joint names. The petitioner developed hatred ness towards the respondent and inspite of his waiting she did not mend her attitude. She proclaimed that she has no interest to lead marital life with him. This respondent is unable to fulfil the desires of the petitioner.

GWOP.112/10:

8.This petition is filed under Section 7 and 10 of Guardian and

Wards Act by the petitioner who is the husband of the respondent for custody of the minor son Gunturu Halwin. He stated in this petition that for all these years, there is no communication with his son and he was not allowed to see his son. He is not aware about the welfare. The respondent has no care and concern for his son and his son was not provided any food and education. Filing of divorce petition indicates that the respondent wants to mould her life at the risk of her son. The maternal grandparents have no concern of his son. When he went to the house of the petitioner/father, he threatened him and did not allow to see his son.

Hence the petition.

9.Respondent filed counter denying the allegations in the petition and contended that he was harassing her and coming in a drunken condition and whenever she asked him to mend his attitude he was beating her. It is not safe for the minor child to be in the custody of the petitioner. The present petition is filed as a counter blast to the OP filed by her.

10.Both these two petitions were clubbed and common evidence was recorded in DOP.90/10 filed by the wife for a decree of divorce.

11.Basing on the above pleadings, the following points arise for consideration:

4

1. Whether the conduct of the respondent/husband towards the 

petitioner/wife amounts to cruelty?

2. Whether the petitioner/wife is entitled for dissolution of the 

marriage by a decree of divorce on the ground of cruelty?

3. Whether the petitioner is entitled for the custody of the 

minor Gunturu Halwin?

4 . To what relief?

12.The petitioner in DOP.90/2010 is the wife of the respondent who filed the GWOP for custody of the minor child and to appoint him as

Guardian. And the wife filed the petition in DOP.90/10 for a decree of divorce.

13.For the purpose of convenience, the parties arrayed in DOP will be referred.

14.On behalf of the petitioner, P.Ws.1 and 2 were examined and marked Exs.A1 to A8 and on behalf of the respondent, R.Ws.1 to 3 were examined and marked Exs.B1 to B6.

Point Nos.1 and 2:

15.There is no dispute with regard to the relationship between the parties. They were blessed with a son by name Gunturu Halwin who is aged about 5 years. The main reason for the petitioner to file the divorce

OP is that she was subjected to cruelty both physically and mentally and it is not safe for her to lead any more marital life with the respondent as she is apprehending danger with her life.

16.The petitioner narrated the specific events during their wedlock about the conduct of the respondent and the ill treatment she meted out in his hands. She seeks dissolution of the marriage on the ground of cruelty. The word cruelty is not denied anywhere in the Act.

17.It is the case of the petitioner that she was subjected to untold agony and harassment from the hands of the respondent. Whether the conduct of the respondent is reprehensible making the petitioner unable to live with him is the question for consideration. The petitioner in her evidence narrated all the specified events. She deposed that he used to beat her having been addicted to alcohol and also tried to kill her. There is no love lost between them. She further deposed that in August 2006, the respondent invited the petitioner to attend a Gruhapravesam function and

5

when she went to him on that day, he beat her and on the next day morning the respondent informed his father as she quarrelled with him and unnecessarily weeping. It is her case on 21-8-2006 she was necked out from the house. It is seen from the evidence that the respondent time and again beating the petitioner and sending her out and again going to the petitioner and telling sweet words that he would not harass her. She categorically deposed that the respondent also tried to kill his father with a knife and his mother instigated him to desert the petitioner.

18.The main incident upon which the petitioner stressed is on 17-4-2007, the respondent came to her in a drunken state, beat her black and blue when she advised him to give up drinking and also mounted on her making her breathless. He caused injuries on her body. This fact mentioned by P.W.1 of causing assault on her and injuries to her body is admitted by R.W.1 in his evidence. He deposed during the cross- examination admitting that the petitioner gave a complaint against him and also she was sent to Government Hospital by the Police for treatment for the injuries. He also admitted that she was escorted by the Police to his house to take her belongings from his house. So, this makes clear that there is truth in the version of the petitioner. It also shows she sustained injuries only in his hands. The respondent did not explain anything in his evidence. His admission of this fact is a clear proof of his conduct and treatment towards the petitioner. The fact that she was admitted in the

Govt., Hospital for the injuries on her and treated in the hospital is a clear proof that the respondent manhandled her caused physical harassment besides the mental harassment. P.W.2 the mother of the petitioner also gave evidence about the conduct of the respondent and his behaviour towards the petitioner. She is working as a Lecturer in Govt., Degree

College for Women, Guntur.

19.The father of the respondent was examined as R.W.2. He is a retired MEO. His evidence shows that there were complaints against him from the Teacher's Union about his behaviour towards lady employees.

The evidence of R.W.2 shows that there were differences between petitioner and respondent which resulted in her separation. He also admitted that the petitioner came with the Police and took her belongings and clothes. So, the contention of the petitioner shows from her evidence that there is separation between the petitioner and respondent since 5-7-2008 and her leaving the house with the child while he was seven months old shows that it is only in pressed circumstances that she left the house. Further, it is made clear from the evidence on record that the

6

complaint given by the petitioner against the respondent of his cruel treatment is proved not only from the evidence of P.W.1 and Ex.A4, but also from the admission of R.W.1. It is also admitted that petitioner sustained injuries and she was sent for medical examination by the Police.

Thus the conduct of the respondent clearly amounted to cruelty. It is also a fact that the Police escorted the petitioner to the respondent's house to take her belongings which also indicates that she was necked out by the respondent with wearing apparel.

20.Though the respondent filed PLC Exs.B5 and B6 it cannot be said that it is filed as a measure of conduct that he wants to hold the marital tie. The petitioner also filed the same documents marked as

Exs.A7 and A8. Similarly, Ex.A1 is equal to Ex.B2 and Ex.A4 is equal to

Ex.B3 and Ex.A5 is equal to Ex.B4. Even the filing of pre litigation by the respondent is after a lapse of more than one year of issue of the reply notice by the petitioner herein. It is admitted by the respondent in his notice marked as Ex.A4 that the parents of the petitioner deposited an amount of Rs.1,00,000/- in the bank in the joint account of both petitioner and respondent. Contrary to this admission, the respondent now contends that in the fixed deposit, he contributed Rs.50,000/- out of Rs.1,00,000/- which is not at all correct.

21.Coming to the custody of the minor boy, there is already a strained relationship between the parties for the last more than four years.

The respondent did not take any steps and it appears from his evidence that the present Guardian OP is filed as the petitioner filed the petition for divorce. The respondent has no fixed occupation. The petitioner alleges that he is a vagabond. Keeping in view of the conduct of the respondent and that he is living with his parents, it is not desirable to have the custody of the minor child with the respondent/husband.

22.There is no doubt that the petitioner in GWOP is the natural guardian being the father of the minor child (Gunturu Halwin). This Court has to see whether it is permissible to give the custody of the minor child to the respondent or not.

23.In case of custody of the minor child is concerned, the paramount consideration is the welfare of the minor. The Court has to look into this aspect particularly whether the welfare can be protected and taken care of with the petitioner or not. The law is laid down by the

Hon'ble Supreme Court in quite number of cases as to this welfare of the

7

minor being the paramount consideration.

The recent Judgment of the Hon'ble Supreme Court in Anjali  24.

Kapoor Vs. Rajiv Baijal, reported in 2009 (7) S.C.C. 322 had laid down certain factors that are to be considered in granting the custody of the child. In Vishnu Vs. Jaya reported in AIR 2010 SC 2092 the Hon'ble

Supreme Court observed that there are certain relevant considerations to be taken not of while granting the custody of the child. Their Lordships observed that the wishes of the minor children are important while granting the custody. The Court has to take into consideration so-many factual aspects while granting the custody. The children cannot be forcibly taken away which will dramatise them and will not do any good to anybody. Keeping in mind about the legal position, it is to be now look into whether the petitioner is entitled for the custody of the children. Though the petitioner is the natural guardian of the minors the question of guardianship is different from having custody of the children.

25.Now turning down to the factual aspect, the child is a small boy of five years old and he needs the care and protection of the mother than that of the petitioner at this age. The respondent/husband has no access to the child, from the movement both the petitioner and respondent are living separately. R.W.3 was examined to show that he brought the minor child to the respondent.

26.So, keeping the observations of the Hon'ble Supreme Court into consideration, I am of the considered view that the minor child cannot take the custody of the petitioner, it would not only disturb the mind of the child, but it would also disturb his future. He is not accustomed to his father ever since from his birth which is amicable for growth. The welfare of the child prevails over the legal rights of the parties while deciding over the custody of the child. Though the respondent is the natural guardian of the minor child in the interest of his well-being and welfare, I am of the considered view that the minor can be well brought up if he is in the custody of the mother/petitioner.

27.Thus taking into consideration of all the facts discussed above this Court is of considered view that the minor son can be protected if he remains in the custody of the mother. However, the respondent/husband being the natural guardian of the minor have visitation rights to see his

8

son. The respondent/husband who is petitioner in Guardian OP can be at liberty to spend time with his son on every second Saturday and Sunday between 10-00 A.M. to 4-00 P.M. The petitioner shall not object for the visitation rights. The respondent/husband shall have the visiting rights either at the place of the house of the petitioner or at any other place of their relatives which is preferable to both petitioner and respondent. The points are answered accordingly.

Point No.4:

28.In the result, DOP.90/2010 is allowed. The marriage between the petitioner and respondent dated 2-12-2005 is dissolved by a decree of divorce. No costs.

GWOP.112/10 is dismissed. However, the petitioner shall have visitation rights to visit his minor son (Gunturu Halwin) on every Second

Saturday and Sunday between 10-00 A.M. to 4-00 P.M. in the house of the respondent in this OP/wife or any other place which is preferable to both the petitioner and respondent. The petitioner/husband shall inform the respondent/wife in advance if it is not possible for him to meet the child on the specified date of his inconvenience. The respondent/wife shall not object for the visitation of the petitioner to see the minor son. No costs.

Dictated to the Personal Assistant, transcribed by her,correctedand

pronounced by me in open Court on this the 9th day of March, 2012.

JUDGE, FAMILY COURT-

CUM-ADDL. DISTRICT JUDGE,

GUNTUR.

Appendix of Evidence:

Witness examined:

For Petitioner: For Respondent:

P.W.1 Gunturu Swarna Jackline R.W.1 Gunturu Navakanth P.W.2 Bombay Suvarna Latha R.W.2 Gunturu Ramesh Babu R.W.3 E. Madhusudhana Reddy

Documents marked for Petitioner:

Ex.A1/--:Certificate copy of Marriage Extract Ex.A2/--:Marriage Photo Ex.A3/--:Marriage Photo Ex.A4/--:Legal notice dt.5-7-2008 Ex.A5/--:Reply legal notice dt.21-7-2008 Ex.A6/--:Acknowledgement Ex.A7/--:Petition in PLC.2/10 Ex.A8/--:Reply filed in PLC.2/10

9

Documents marked for Respondent:

Ex.B1/--:Birth Certificate of Gunturu Halwin Ex.B2/--:Marriage Certificate Ex.B3/--:Legal Notice dt.5-7-2008 Ex.B4/--:Reply notice dt.21-7-2008 Ex.B5/--:Office copy of PLC No.2/10 before DLSA, Guntur. Ex.B6/--:Reply for PLC proceedings dt.6-2-2010

JUDGE, FAMILY COURT-

CUM-ADDL. DISTRICT JUDGE,

GUNTUR.

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL (ADDL

DISTRICT JUDGE-Cum-JUDGE, FAMILY COURT): GUNTUR

Present: Smt Kuchi Syamala Devi, B.Sc., B.L.,

ADDL. DISTRICT JUDGE-Cum-JUDGE, FAMILY COURT, GUNTUR.

Monday, the 19th day of March, 2012.

M.V.O.P.No.233/2011

Syed Sirajuddin, S/o Syed Rahamtulla, aged about 40 yrs, R/o 2nd line, Sangadigunta, Guntur, Guntur DMC.

...Petitioner

-Versus-

1. Uddanti Ram Mohan Rao, S/o Giri Babu, Owner of Lorry No.AP 31 V 2325, Avanigadda, Avanigadda DMC, Krishna District.

2. National Insurance Co., Ltd., Rep. by its Divisional Manager, Vijayawada, Krishna Dt., Vijayawada DMC. Policy No.550400/31/07/6300005851, Validity from 28-1-2008 to 27-1-2009.

3. T. Srinivasa Rao (Policy holder) S/o Nageswara Rao, Door No.6-160, Kapileswarapuram, Mamidimukkala Mandal, Krishna District, Vijayawada DMC.

...Respondents

* * *

This petition coming on before me for final hearing on 16-2-2012 in the presence of Sri R. Sanjeeva Reddy, Advocate for the petitioner; and of Sri V. Brahma Reddy, Advocate for the 1st respondent; and of Sri Paladugu Venkateswarlu, Advocate for the 2nd respondent, and the 3rd respondent having remained exparte upon perusing the material on record, after hearing both sides and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT:

This petition is filed by the petitioner Under Section 166 of Motor

Vehicles Act and Rules 455 and 476 of APMV Rules for compensation of

Rs.1,00,000/- on account of the injuries sustained by him in a Motor accident dated 19-9-2008.

2.Petitioner is an employee working as Health Extension

Officer, Primary Health Centre, Kanagala Village, Cherukupalli Mandal.

2

3.On 19-9-2008 at about 2-30 P.M., the petitioner was travelling in the APS RTC Bus coming from Nizampatnam to Guntur and he was sitting near the window seat. At that time, the lorry bearing

No.AP 31 V 2325 driven by its driver came in a rash and negligent manner without maintaining minimum distance between the two vehicles dashed the bus, thereby the right hand of the petitioner sustained fracture and was in the hospital and operated. The accident took pace near over bridge of Nidubrolu village, Ponnur Mandal of Guntur District.

After the accident, the petitioner was immediately shifted to Govt.,

Hospital, Ponnur.

4.The petitioner was aged about 40 years, and is an employee getting Rs.19,227/- per month as Health Extension Officer, hale and healthy at the time of accident. He was on loss of pay and on leave.

Due to the injuries sustained in the accident, he was unable to work. He lost his earnings and earning capacity. He became disabled person. He under went major operation to his right hand below the elbow by inserting steel rods and screws. He was deprived physically, mentally and financially. He required further operations to his right hand for removal of implants. He cannot raise his right hand normally due to the disability, the disability suffered by the petitioner is permanent one.

Hence the petition.

1st

5.respondent filed written statement denying the allegations in the petition and contended that the alleged accident was caused only due to the own negligence of the petitioner who put his hand outside from the bus without observing the traffic. As per the contentions of the petitioner, it is a case of collision of two vehicles.

Hence this petition is bad for non joinder of necessary and proper party i.e. owner of the bus and RTC authorities. Hence without impleading the

RTC authorities, this petition is not maintainable. The petitioner is put to strict proof of age, income and occupation. The claim made by the petitioner is highly excessive and illegal. Hence the petitioner is liable to be dismissed against this respondent.

2nd respondent who is the insurer of the 1st respondent filed 6.

counter denying the allegations in the petition and contended that the accident occurred on account of the negligent act of the petitioner. The driver has no valid and effective driving licence to drive the vehicle. The

3

claim is excessive and the petitioner is therefore not entitled for compensation. Hence this petition is liable to be dismissed.

3rd respondent remained exparte and did not contest the 7.

proceedings. He is the policyholder.

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

1. Whether the accident occurred due to rash and negligent driving of the driver of Lorry bearing No.AP 31 V 2325?

2. Whether the petitioner is entitled to the compensation, if so, from whom?

3. To what relief?

9.On behalf of the petitioner P.Ws.1 and 2 were examined and marked Exs.A1 to A5 and Exs.X1 and X2 and on behalf of the respondents

R.Ws.1 and 2 were examined and marked Exs.B1 to B4 and Exs.X3 and

X4.

Issue No.1:

10.The claim of the petitioner is made under Section 166 of the

M.V. Act. The accident occurred while the petitioner was proceeding in the RTC Bus. The 2nd respondent contended that there is negligence on the part of the petitioner by keeping his hand on the window outside protruding his hand.

11.Contributory negligence refers to a case where the injured himself contributed to some extent of his own negligence. The petitioner is a third party to the claim.

12.The evidence of P.W.1 shows that he is an employee in the

Primary Health Centre, and on account of the negligence of the lorry driver, he sustained injuries. But his cross examination shows that he kept his right hand on the window railing and his elbow was protruding.

According to his evidence he is aware that he should keep his hand on the window protruding his hand. Therefore, it is clear that he contributed to some extent to the injury he sustained.

The 2nd respondent examined R.W.1 and R.W.2 to prove the 13.

4

defence. Their evidence shows that the license is in force by the date of the accident and the policy. The driver of the lorry is holding LMV NON

TRANSPORT TVEH (HGV). Thus it is made clear that the driver of the 1st respondent is having valid license on the date of the accident. Thus the 2nd respondent cannot absolve its liability from paying the compensation.

14.So far as the manner of accident is concerned, there is no evidence placed by the 1st respondent to disprove the contention and the evidence of the petitioner. The first respondent did not examine his driver to deny the averments and the negligence attributed to him. He remained exparte and or even did not participate in the trial.

15.Thus from the evidence of P.W.1 and R.Ws.1 and 2, it is clear that both the respondents are jointly and severally liable to pay compensation. The issue is answered accordingly.

Issue No.2:

16.The petitioner examined P.W.2 the Doctor who treated him.

His evidence reveals that the patient was operated on 22-9-2008 and intra-medullary nail was fixed for both the injuries. His evidence further shows that there is restriction of the right elbow and forearm movements and he cannot carry some sort of work involving the rotation of forearm.

There is possibility for reduction of restriction of movements to some extent if the nails are removed. But however he deposed that as an employee, there is no functional disability to attend his employment.

There is only physical disability to 10% to 15%.

The Hon’ble Supreme Court inRaj Kumar Vs. Ajay Kumar and  17.

another reported in 2011(1) An.W.R page 411 dealt thread bare about the aspect of permanent disability and other aspects illustratively. It is the land mark Judgement on the aspect of injuries in a motor accident.

Their Lordships distinguished and clearly explained the difference between permanent and temporary disability at para 6 it was held that ---

“Disability refers to any restriction or lack of ability to 

perform an activity in the manner considered normal for a

human being. Permanent disability refers to the residuary

5

incapacity or loss of use of some part of the body, found

existing at the end of the period of treatment and recuperation, 

after achieving the maximum bodily improvement or recovery 

which is likely to remain for the remainder life of the injured. 

Temporary disability refers to the incapacity or loss of use of 

some part of the body on account of the injury, which will

cease to exist at the end of the period of treatment and

recuperation. Permanent disability can be either partial or 

total. Partial permanent disability refers to a person's

inability to perform all the duties and bodily functions that he 

could perform before the accident, though he is able to

perform some of them and is still able to engage in some

gainful activity. Total permanent disability refers to a

person's inability to perform any avocation or employment

related activities as a result of the accident.”

18.While dealing with the loss of future earnings, their Lordships at para 8 of the Judgment clearly observed that the assessment of compensation in such case would depend upon the effect and impact on such permanent disability on his earning capacity. It was emphasized that there is difference between permanent disability and percentage of loss of earning capacity.

19.So this tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability like the effect of the disability of the limb on the functioning of the entire body and also whether the permanent disability has affected or will affect his earning capacity.

20.It was further held by the Apex Court that the Tribunal has to first to ascertain what activities the claimant could carry inspite of the permanent disability and what he could not do as a result of the permanent disability. Secondly, it has to ascertain the avocation, profession and nature of work before the accident and also his age.

Lastly it has to ascertain inspite of the disability whether the claimant would still effectively carry on the activities and the functions which he was earlier carrying on and whether he was prevented or restricted from discharging his previous activities and function but would carry on some other lesser scale of activities”.

21.The petitioner though deposed that he is a Health Extension

6

Officer, he did not file his employment particulars or his income. It is not as if it is not available with him. For the reasons best known to him, he did not produce any of the necessary particulars to determine the loss of earnings. Thus it is evident that there is no functional disability and

P.W.1 clearly deposed that he applied loss of pay and after expiry of leave, he joined duty. There is no impact of the injuries on his earning capacity. In view of the evidence that he was operated and was admitted in the hospital and treated as in-patient for four days and the injuries sustained are grievous in nature, the petitioner is entitled for compensation under the head pain and suffering to a tune of Rs.70,000/-.

22.As already discussed, there is contributory negligence on the part of the petitioner which is to an extent of 10%. Which comes to

Rs.7,000/- (70,000 X 10%). Apart from this, he gave evidence that he received medical reimbursement to a tune of Rs.18,000/- which amount has to be deducted. Thus the total compensation which he is entitled comes to Rs.45,000/- (70,000 – 25,000). The issue is answered accordingly.

Issue No.3:

23.In the result, the petition is allowed in part with proportionate costs.

a)The petitioner is entitled for compensation to a tune of Rs.45,000/- (Rupees forty five thousand only).

b)R1 and R2 are jointly and severally liable to pay the compensation.

c)R2 as Insurer is directed to deposit the said amount with interest at 6% p.a from the date of petition (11-2-2011) till realization within 30 days from the date of award.

d)On such deposit, the petitioner is permitted to withdraw the entire amount with accrued interest thereon by filing an application.

e)Petition against R3 is dismissed.

f)Advocate fees is fixed at Rs.1,500/-.

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

ADDITIONAL DISTRICT JUDGE-Cum-

JUDGE, FAMILY COURT, GUNTUR.

7

Appendix of Evidence:

Witnesses examined:

For Petitioner: For Respondents:

P.W.1 Syed Sirajuddin R.W.1 G.V.B. Devanand P.W.2 Dr. A. Srinivasa Rao R.W.2 K. Ramachandra Raju

Documents marked for Petitioner:

Ex.A1/-- :Certified copy of FIR Ex.A2/-- :Certified copy of Charge sheet Ex.A3/-- : Certified copy of Wound certificate Ex.A4/-- : Prescriptions issued by Lalitha Super Speciality Hospital, Guntur. Ex.A5/-- : Four X-ray films

Ex.X1/-- :Case sheet Ex.X2/-- :Check X-ray

Documents marked for Respondents:

Ex.B1/-- :C.C. of Insurance Policy Ex.B2/-- :O/c of Regd. Letter sent by R2 to R1 Ex.B3/-- :Postal acknowledgment Ex.B4/-- :Photostat copy of Certificate of Registration

Ex.X3/-- :Authorization letter Ex.X4/-- :Driving Licence Extract particulars

ADDITIONAL DISTRICT JUDGE-Cum-

JUDGE, FAMILY COURT, GUNTUR.

1

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL (ADDL

DISTRICT JUDGE-Cum-JUDGE, FAMILY COURT): GUNTUR

Present: Smt Kuchi Syamala Devi, B.Sc., B.L.,

ADDL. DISTRICT JUDGE-Cum-JUDGE, FAMILY COURT, GUNTUR.

Monday, the 19th day of March, 2012.

M.V.O.P.No.281/2011

Shiak Rasheed, S/o Mabu Vali, aged about 5 yrs, Being minor rep. by father Shaik Mabu Vali, S/o Niranjan, aged about 34 yrs, House No.127, Chalapathi Grounds, Ring road, Guntur Town.

...Petitioner

-Versus-

1. S. Siva Sambagiri Rao, S/o Suryanarayana, Syndicate Travels, Opp. to RTC Bus Stand, Guntur Town.

2. United India Insurance Co., Ltd., Rep. by its Divisional Manager, Arundelpet, Guntur. Policy No.1508013110P000916610 Valid upto 26-8-2011

...Respondents

* * *

This petition coming on before me for final hearing on 16-2-2012 in the presence of Sri G. Suresh Babu, Advocate for the petitioner; and of Smt P. Mallika Brahmaramba, Advocate for the 2nd respondent; and the 1st respondent having remained exparte, upon perusing the material on record, after hearing both sides and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This petition is filed by the petitioner for grant of compensation of

Rs.1,80,000/- for the injuries sustained by him.

2.The petitioner is a minor boy of 5 years. On 29-10-2010 at about 11-30 P.M. while the petitioner, the guardian of the petitioner i.e.

father and mother of the petitioner went to Chilakaluripet after completing their work, they were returning to Guntur in a tourist bus bearing No.AP 7X 2599, when they reached near RTC bus stand on main road, Chilakaluripet, the driver of the bus driven in a rash and negligent manner, with high speed and applied the brakes and the petitioner fell 2 down in the bus and he received head injury and immediately he was shifted to Hi-tech Trauma Critical Care Hospital, Amaravathi Road, Guntur for treatment.

3.The petitioner is aged about 5 years, hale and healthy at the time of accident. Due to the accident, he received head injury and underwent operation by spending huge amount for treatment in addition to the mental agony and suffering. The disability caused to the petitioner is a permanent one and he lost his future earning power.

Hence the petition.

4.The first respondent is the owner of the Mini Bus which was insured with the 2nd respondent.

1st respondent did not contest the proceedings and he 5.

remained exparte.

2nd

6.respondent filed written statement denying the allegations in the petition and contended that no other passengers were received any injuries in the bus, except this petitioner, the injuries sustained by the petitioner are purely carelessness of the mother of the petitioner who hold the petitioner over her ampet. The driver of the vehicle is not having any proper licence to drive such vehicle. The injuries caused to the petitioner are simple in nature and healed very quickly. Though better facilities are available in Govt., Hospital, the petitioner had got treatment in the private hospital to get more compensation. The claim made by the petitioner is highly excessive.

Hence the petition is not maintainable and liable to be dismissed.

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

1. Whether the accident occurred due to rash and negligent driving of the driver of Bus bearing No.AP 7X 2599?

2. Whether the petitioner is entitled to the compensation, if so, from whom?

3. To what relief?

3

8.On behalf of the petitioner P.Ws.1 and 2 were examined and marked Exs.A1 to A6 and Ex.X1 and on behalf of the respondents R.Ws.1 and 2 were examined and marked Exs.B1 and B2 and Ex.X2.

Issue No.1:

9.The claim is made by the petitioner who is a minor boy of 5 years represented by his father. According to the case of the petitioner, himself and his parents were travelling in the bus of R1 and when the bus reached near the place of the accident due to the negligence of the driver of the bus, who applied brakes, the petitioner fell down and sustained head injury.

10.P.W.1 who is the father of the minor, gave evidence, that the petitioner sustained head injury and he was operated and on account of the accident he sustained mental agony and pain.

11.The claim is under Section 163-A of the M.V. Act. Moreover, the evidence of R.W.1 shows that there is no dispute as to the manner of the accident.

12.Now we have to see how far the respondents are liable to pay the compensation and whether the accident occurred on account of the negligence of the 1st respondent and the liability thereof.

The evidence of R.W.2 reveals that the driver of the 1st 13.

respondent was holding only LMV NON TRANSPORT AND MTL license and he was not holding any HEAVY GOODS PASSENGER LICENSE at the time of the accident.

14.The crime vehicle is a Minibus with 38 seater. It is in the evidence of RW2 the RTA Authorities, that the driver should possess the

HGP license and the license which he holds is not sufficient. Further the learned counsel for the 2nd respondent contended that the Non transport license expired by 22-8-2008 and on the date of the accident i.e. on 4 29-10-2010, he has no valid license to drive the vehicle.

15.The Hon'ble Supreme Court in (2008) 12 S.C.C. 70, held that where there is no license on the date of the accident, even if he obtained subsequently, the Company is exonerated of its liability. Therefore, it is clear from the evidence of R.W.1 and R.W.2 that there is no valid license for the driver of R1 to drive the crime vehicle on the date of the accident.

The 2nd respondent cannot be made liable to pay compensation. The 1st respondent alone is liable to pay compensation.

16.The first respondent who is the owner of the Minibus remained exparte and did not contest the petition. It is the obligation on the part of the owner to take care to see that the driver had an appropriate license to drive the vehicle.

The Hon'ble Supreme Court in New India Assurance Co., Ltd.,  17.

Vs. Roshanben Rahemansha Fakir & Anr.Reported in L.C.ACR 2009(6)

S.C.1 held that ------

“As per Rule.41 of the Central Motor Vehicles Rules the 

driver should have possessed a valid driving license at the time 

of the accident to make the Insurance Company liable for

paying the compensation.”

18.Thus, there is a violation of the policy conditions by the driver as seen from the oral and documentary evidence in this case. Therefore, I hold that the Insurance Company cannot be made liable to pay the compensation.

19.In view of the above discussion, I hold that the accident occurred and the injuries caused on account of the rash and negligent driving of the driver of the crime. The issue is answered accordingly.

Issue No.2:

20.Now coming to the quantum of compensation, the petitioner claimed a sum of Rs.1,80,000/-.

5

21.The evidence of P.W.2 who is the Doctor who treated the petitioner reveals that the he was operated and removed the depressed fracture on the right frontal region. He however stated that there is no physical disability. The question of loss of earnings or earning capacity or functional disability does not arise in this case because the petitioner is a small boy of 5 years. Therefore taking into consideration of the facts that the petitioner was operated and admitted as inpatient, he is entitled for compensation under the head pain and suffering to a tune of Rs.50,000/-.

22.P.W.2 stated that Ex.A5 and Ex.A6 bills were issued from their hospital. They are to a tune of Rs.54,470/-. These bills are preceded by medical prescriptions. These bills in the light of the evidence of P.W.2 can be accepted. Thus the total compensation which the petitioner is entitled is Rs.1,04,470/- (Rupees one lakh four thousand four hundred and seventy only).

23.The learned counsel for the petitioner stated that the petitioner incurred huge medical expenses and extra nourishment and requested to release some amount for the welfare of the minor. Taking into consideration of the above circumstances, the guardian of the petitioner is permitted to withdraw Rs.40,000/- from out of total amount of compensation granted.

The learned counsel for the 2nd respondent,urged that this 24.

Tribunal cannot order Pay and Recovery.

25.Wherein, it was held that it is the discretion of the Tribunals can order pay and recovery depending upon the circumstances of the case.

The Hon'ble Supreme Court in National Insurance Co., Ltd.,Vs.  26.

Swaran Singh and others , reported in AIR 2004 Supreme Court 1531 a full Bench Judgment of the Hon'ble Supreme Court held in para 78 of the

Judgment stating that under Section 149 of the Act by considering the various Supreme court Judgments, earlier observed that the Insurer who is made statutorily liable to pay compensation to third parties on account 6 of certificate of Insurance at para 78 as follows:

“Sub­Section (5) of the Section 149 which imposes a 

liability on the insurer must also be given its full effect

The insurance Company may not be liable to satisfy the

decree and therefore, its liability may be zero but it does 

mean that it did not have initial liability at all. Thus, if the 

insurance Company is made liable to pay any amount,

it can recover the entire amount paid to the third party on

behalf of the assured. If this interpretation is not given to 

the beneficent provisions of the Act having regard to its

purport and object, we fail to see a situation where

beneficent provisions can be given effect to. Sub­section 

(7) of Section. 149 of the Act, to which pointed attention of 

the Court has been drawn by the learned counsel for the 

petitioner, which is in negative language may now be

noticed. The said provisions must be read with subsection 

(1) thereof. The right to avoid liability in terms of

subsection (2) of Section 149 is restricted as has been

discussed herein before. It is one thing to say that the

insurance companies are entitled to raise a defence but it is 

another thing to say that despite the fact that its defence has 

been accepted having regard to the facts and circumstances 

of the case, the Tribunal has powerto direct them to satisfy 

the decree at the first instance and then direct recovery of 

the same from the owner. These two matters stand

apart and require contextual reading”

27.Thus from the above Judgment of the Hon'ble Supreme court and also our Hon'ble High Court, this Court is of considered view, the

Tribunal can order pay and recovery. The issue is answered accordingly.

Issue No.3:

28.In the result, the petition is allowed in part with proportionate costs.

a) The petitioner is entitled for compensation of Rs.1,04,470/- (Rupees one lakh four thousand four hundred and seventy only).

b) R1 alone is liable to pay the compensation.

7

c) R2 as Insurer is directed to deposit the amount with interest @ 6% p.a from the date of filing of the petition (8-3-2011) till the date of realization within two months.

d) The guardian of the petitioner is permitted to withdraw Rs.40,000/- (Rupees forty thousand only) and the remaining balance amount has to be kept in Fixed Deposit in any Nationalized Bank till the minor attains majority. Thereafter after, after attaining majority and after its maturity, the petitioner is permitted to withdraw the balance amount along with accrued interest thereon by filing an application.

e)R2 which is the Insurance company is entitled to pay compensation in the first instance and then recover it from the first respondent.

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

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

ADDITIONAL DISTRICT JUDGE-Cum-

JUDGE, FAMILY COURT, GUNTUR.

Appendix of Evidence:

Witnesses examined:

For Petitioner: For Respondents:

P.W.1 Shaik Mabu Vali R.W.1 J. Prasanthi Kumar P.W.2 Dr. C. Jagannadha Rao R.W.2 K. Siva Prasad

Documents marked for Petitioner:

Ex.A1/-- :Certified copy of FIR Ex.A2/-- :Certified copy of Charge sheet Ex.A3/-- : Certified copy of Wound certificate Ex.A4/-- : Discharge summary Ex.A5/-- : Hospital bills for a sum of Rs.40,500/- Ex.A6/-- :Medical bills for a sum of Rs.13,970/- 8

Ex.X1/-- :Case sheet

Documents marked for Respondents:

Ex.B1/-- :Policy copy Ex.B2/-- :Driving Licence Extract

Ex.X2/-- :Driving Licence Extract particulars

ADDITIONAL DISTRICT JUDGE-Cum-

JUDGE, FAMILY COURT, GUNTUR.

IN THE COURT OF JUDGE, FAMILY COURT-CUM-ADDITIONAL DISITRICT JUDEGE

GUNTUR

Present: Smt Kuchi Syamala Devi, B.Sc., B.L.,

JUDGE, FAMILY COURT-CUM-ADDL. DISTRICT JUDGE, GUNTUR.

Wednesday, the 21st day of March, 2012.

HMOP.111/2010

Between: Ragi Naga Malleswara Chary @ Malli, S/o Venkata Chary, Hindu, aged about 34 yrs, Carpenter, R/o D.No.1179, Parvathipuram, Sampath Nagar, Guntur, Guntur District, Guntur JCJC.

...Petitioner

-And- Ragi Sunitha, W/o Malleswara Chary, D/o Rallabandi Suryanarayana, Hindu, aged about 26 yrs, R/o Chinchinapet Village, Yadlapadu Mandal, Guntur District, Chilakaluripet JCJC.

...Respondent

* * *

This petition coming on before me for final hearing on 7-3-2012 in the presence of Sri Divvi Srinivasa Rao and of Sri B. Murali Mohan, Advocates for the petitioner and of Sri P. Venkata Rao, Advocate for the respondent, upon perusing the material on record, after hearing both sides and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT:

This petition is filed by the petitioner/husband Under section 13 (1) (ia) (ib) of the Hindu Marriage Act for dissolution of marriage dt.13-8-1998 by a decree of divorce.

2.The parties are Hindus. The petitioner is the husband of the respondent and residing at Sampath Nagar, Guntur. Their marriage took place on 13-8-1998 as per Hindu Rites and Customs. They are blessed with a son and a daughter out of their wedlock.

3.From the beginning, the respondent used to threatened the petitioner and raised petty quarrels. She wanted a luxurious life and used to demand money from him. This petitioner is a meagre income earner.

The respondent is having illicit intimacy with several persons and used to leave the house frequently without intimating him or his family members.

She is leading adulterous life. Inspite of mediations, she did not mend her attitude and did not join him. They have been living separately since last

2

six years prior to the filing of the petition. Hence the petition.

4.The respondent filed counter denying the allegations in the petition and contended that the petitioner used to harass the respondent.

They also lived at Puttaparthi for one year, but he suspected the character of the respondent and tortured her. The family members of the petitioner demanded the respondent to give divorce. There are no grounds to give divorce. She is ready and willing to join the petitioner. Hence the petition is therefore liable to be dismissed.

5.Basing on the above pleadings the following points arise for consideration:

1. Whether the petitioner was subjected to cruelty in the hands of the respondent?

2. Whether the respondent deserted the petitioner?

3. Whether the petitioner is entitled for divorce?

4. To what relief?

6.On behalf of the petitioner, P.Ws.1 and 2 were examined and marked Exs.A1 to A3 and on behalf of the respondent, R.Ws.1 was examined and marked no documents.

Point Nos.1 to 3:

7.The petitioner who is the husband filed this petition for divorce on the ground of cruelty and desertion.

8.It is the contention of the petitioner that out of their wedlock of thirteen years, two children were born. The evidence of the petitioner shows that the respondent never cared for marital life and was in the habit of leaving the house frequently without intimating to the petitioner or his parents. P.W.2 the mother of the petitioner also deposed the same fact. It is admitted in the evidence of the respondent R.W.1 that she was leaving the house, but however she stated that she was going to her parents house. R.W.1 further deposed that her in-laws questioned about her conduct of leaving the house and for her behaviour for which she raised quarrel with them. She also admitted that she never informed either her husband petitioner or her in-laws whenever she went out of the matrimonial home. The reason mentioned by her is she was not having

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phone number of the petitioner. So, it is clear from the evidence that the respondent was leaving the house without intimating to the petitioner or her in-laws. The pressing circumstances to leave the matrimonial house without informing anybody is not spoken to by R.W.1. The conduct of the respondent from the above evidence is so reprehensible that it is not possible for the petitioner to lead matrimonial life with her.

9.Another important aspect is the two children of the petitioner and respondent are with the petitioner/husband. No where she pleaded in the counter that the children were taken away by the petitioner forcibly from her. She did not take any steps for their custody so-far. If really, the children were forcibly taken, the evidence of R.W.1 goes contra to this fact.

10.It is evident from the evidence on record that since six years they have been living separately with cessation of conjugal life.

11.Now taking the over all contentions of both the parties into consideration it is clear that the conduct of respondent amounted cruelty.

The Hon'ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh,  12.

reported in (2007) 4 SCC 511 had clearly stated that as to what constitutes mental cruelty. It is observed by their Lordships that gon consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty; and on comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. h

13.The next point is who is responsible for the estrangement between the parties. The petitioner stated that he was subjected to severe untold mental agony by the respondent in the matrimonial home, on account of her conduct.

14.Here is a case where the petitioner and the respondent are at a point of no return and living separately for the last five years.

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15.The fact in this case that the respondent voluntarily deserted the petitioner without any justifiable cause and made his life miserable leading to mental depression and the respondent is not coming with true colours her inconsistent versions would all prove that the petitioner was deserted by her and her conduct constituted mental cruelty, Apart from this, her admission that she is living separately from the petitioner for last more than six years leaving the children to the petitioner speaks about her conduct and behaviour and interest towards the marital life and duties on her part. The necessary animus to desert the petitioner is made clear from her evidence and also from the evidence of P.Ws.1 and 2. Therefore the petitioner established the conduct of the respondent as amounting to cruelty and there is separation between them for more than statutory period with sufficient animus.

16.In view of the above discussion, I hold that the petitioner is entitled for dissolution of his marriage. The points are accordingly answered.

Point No.4:

17.In the result, the petition is allowed dissolving the marriage

dated 13-8-1998 between the petitioner and the respondent by a decree of

divorce. In the circumstances no costs.

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

pronounced by me in open Court on this the 21st day of March, 2012.

JUDGE, FAMILY COURT-

CUM-ADDL. DISTRICT JUDGE,

GUNTUR.

Appendix of Evidence:

Witness examined:

For Petitioner: For Respondent:

P.W.1 Ragi Naga Malleswara Chary @ Malli R.W.1 Ragi Suneetha P.W.2 Ragi Prameela

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Documents marked for Petitioner:

Ex.A1/--:Marriage Certificate Ex.A2/--:Lagna Patrika Ex.A3/--:Marriage Photo

Documents marked for Respondent: Nil

JUDGE, FAMILY COURT-

CUM-ADDL. DISTRICT JUDGE,

GUNTUR.