Sri.L.Srirama Murthy B.Sc.B.L.,

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IN THE COURT OF THE PRL.DISTRICT JUDGE, NELLORE

FRIDAY, the 17thday of MAY, 2013

Present:- Sri L. SREERAMA MURTHY, B.Sc., B.L., Prl.District Judge

O.S. No.24/2007

1. Gummadi Stalin Babu,

2. Guduru Hari Babu Reddy. … Plaintiffs

Vs.

1. M. Pulla Reddy (died),

2. M. Vijayabhaskar Reddy,

3. M. Vijayamma,

4. M. Venku Reddy,

5. M. Chandra Sekhar Reddy,

6. M. Sudhakar Reddy,

7. M. Ravindra Reddy.

(Defendants 4 to 7 are added as L.Rs. of the deceased 1st defendant as per the Orders in I.A.No.61/2010, dated 14-9-2010). … Defendants

This suit coming on 12-4-2013 for final hearing before me in the presence of Sri N. Sudheer Reddy, advocate for plaintiffs and of Sri P.V. Ramana Reddy, advocate for defendants 2 and 3 and of Sri P.V. Sai Kumar Reddy, advocate for 1st defendant and subsequently, the 1st defendant having been reported dead and the defendants 4 to 7 having been set exparte and having stood over for consideration till this day, this Court delivered the following:-

JUDGMENT

This suit is filed by the plaintiff for specific performance based on the agreement of sale, dated 29-4-2005 executed by the defendants in favour of the plaintiffs wherein the 1st defendant is the father of 2nd defendant and defendants 4 to 7 and 3rd defendant is the daughter-in-law of 1st defendant and wife of 2nd defendant who are absolute owners of the suit schedule 2 property. The defendants 1 to 3 jointly offered to sell the suit schedule property at the rate of Rs.4,60,000/- per acre on which the plaintiffs paid an amount of Rs.6,00,000/- to the defendants 2 and 3 on 29-4-2005 towards part of sale consideration and obtained an agreement of sale, dated 29-4-2005 from the defendants 2 and 3 even though the said agreement was recited as defendants 1 to 3 are the executants. The defendants 2 and 3 assured the plaintiffs that they will obtain the signature of the 1st defendant on the agreement of sale letter as the 1st defendant is not readily available and he was out of station on that day. As per the terms of the agreement of sale, the balance of sale consideration of Rs.53,80,000/- to be paid by the plaintiffs to the defendants on or before 18-7-2005 and shall obtain a regular sale deed from the defendants 1 to 3 with the expenses of the plaintiffs. The defendants 2 and 3 also informed the plaintiffs on 29-4-2005 that the original title deeds and other documents relating to the schedule property have been deposited with Primary Agricultural Cooperative Credit Society (PACS) and Bank and they will be released at the earliest before the date of stipulation and that the defendants 2 and 3 approached the 1st plaintiff in the month of June, 2005 and requested them to pay Rs.4,00,000/- for clearing the Society loan and payment of fee for education of their son for M.B.B.S., in China and daughter for Dental Surgeon Course at Chennai and to clear off the other hand loans and they have also assured to the 1st plaintiff that necessary endorsement of part payment of Rs.4,00,000/- including the signature of the 1st defendant will be obtained on the sale agreement.

Accordingly, the 1st plaintiff paid Rs.4,00,000/- to the defendants 2 an 3 on 21-6-2005 in the presence of Magunta Narendra Reddy, Jalli Kumar (PW-5) and Budigi Guruswamy (PW-3) having believed the words of the defendants 3 2 and 3. Having received the amount of the said Rs.4,00,000/-, they failed to make any endorsement on the sale agreement as promised by them. In total, the plaintiffs paid Rs.10,00,000/- towards part payment of the sale agreement, dated 29-4-2005. The defendants did not choose to produce necessary clearances from the PACS and Agricultural Banks through whom the defendants mortgaged the suit schedule property documents even though the plaintiffs are always ready and willing to perform their part of the contract as per the terms of the sale agreement and demanding the defendants 2 and 3 to produce all the title deeds, link documents, loan clearance certificates, encumbrance certificates so as to enable to obtain legal opinion but the defendants failed to produce the same and postponed with their pre-occupied mind. As per the terms of the agreement of sale,

dated 29-4-2005, the plaintiffs have to pay the balance sale consideration

after deducting the advance amount within two months 20 days from the date of agreement of sale and the defendants have to execute registered sale deed either in favour of the plaintiffs or in favour of their nominee with their own expenses. Inspite of repeated requests to measure the land, the defendants 1 to 3 have been postponing the same on some pretext or other with malafide intention to sell the same to third parties. After receipt of the amount, the defendants have satisfied their needs without clearing the PACS mortgage loan and not obtained title deeds and other documents relating to the suit schedule property. The plaintiffs also came to know that nearly an extent of one acre of land belonging to third parties is situated in the middle of the schedule mentioned property for which the defendants promised to purchase the said land and it will be got registered to the plaintiffs in which the defendants are not having any right or title over the said land and entered 4 into an agreement with the plaintiffs including the said land but they failed to purchase the said land and failed to produce any documentary proof thereof but got issued notice, dated 17-8-2005 with false allegations which was received by them on 24-8-2005 and they got issued reply to the defendants on 28-8-2005 expressing their readiness and willingness to perform their part of the contract and demanding them to clear off the outstanding dues to the Society and Banks within 7 days. The defendants admitting that there is an extent of Ac.0.70 cents of land situated in the middle of the schedule land which belongs to third parties and failed to purchase the same and did not fulfill their promise inspite of several mediations and failed to perform their part of the contract by receiving the balance of sale consideration. The 1st plaintiff is a registered Civil contractor, the 2nd plaintiff is a builder and they wanted to start the business under self employment and they paid an advance amount of Rs.10,00,000/- for purchase of the schedule properties but due to the malafide acts of the defendants, they got irreparable loss and paid interest towards the amount advanced for purchase of the schedule mentioned property and they are not in a position to purchase any alternative site due to the present agreement of sale. The defendants are trying to alienate the schedule property for higher sale consideration to third parties as the property is situated abutting to NH-5 though the agreement of sale, dated 29-4-2005 in favour of the plaintiffs is subsisting. Hence the suit.

2) After the death of the 1st defendant, the defendants 4 to 7 are added as per the Orders in I.A.No.61/2010, dated 14-9-2010 as legal heirs of the 1st defendant along with the defendants 2 and 3.

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3) The 2nd defendant filed written statement which was adopted by the 3rd defendant admitting the relationship in between the defendants and the execution of the agreement of sale, dated 29-4-2005 by the defendants 2 and 3 and receipt of advance amount of Rs.6,00,000/- and denied their right, title over the entire schedule property of the said agreement of sale and denied the execution of agreement of sale by the 1st defendant and contends that out of the suit schedule property, the 3rd defendant is entitled to Ac.1.14 cents in

Survey Nos.533/1 and 533/2 and rest of the suit property belongs to the joint family consisting of the defendants 1, 2 and his other 4 brothers namely

Venku Reddy, Chandrasekhar Reddy, Sreedhar Reddy and Ravindra Reddy and also Sana Ramaiah, Polamreddy Ramanamma and that the joint family of the defendants is entitled to Ac.8.58 cents in the suit schedule property and that the defendants 2 and 3 alone made the said offer but not all the defendants jointly proposed to sell the schedule property to the plaintiff but they did so under the impression that the 1st defendant will also agree therefor but on being informed about the same, the 1st defendant expressed his unwillingness to sell his share in the suit schedule property. Though the 1st defendant is one of the vendors but the 1st defendant is not really a party thereto and he has not signed in the agreement. Hence, the suit agreement is incomplete and invalid and cannot be enforced even against the shares of the defendants 2 and 3. The defendants also further denied the receipt of

Rs.4,00,000/- from the plaintiffs by the defendants 2 and 3 on 21-6-2005 in the presence of Mungara Narendra Reddy, Jalli Kumar and Budigi

Guruswamy at Nellore and the defendants 2 and 3 never approached the plaintiffs in the month of June, 2005 and never promised for necessary 6 endorsement of part payment of Rs.4,00,000/- including the signature of the 1st defendant on the agreement of sale and denied the payment of the said

Rs.4,00,000/- and never assured to produce necessary clearance certificates from the Banks and PACS and encumbrance certificates and also denied the plaintiffs requesting the defendants 1 to 3 to measure the land and promise to purchase the land of third parties but they simply promised to see that they also join the execution of the sale deed. So, the question of defendants purchasing the said land of third parties doesn’t arise. The plaintiffs never expressed their willingness and readiness to perform their part of the contract. Even now the plaintiffs have not deposited the balance of sale consideration into the Court except making false averments that they are ready and willing to perform their part of the contract though they are not having balance of sale consideration with them. Hence, the defendants 2 and 3 sent registered notice, dated 17-8-2005 through their advocate to the plaintiffs with true and correct facts. The 1st defendant did not give any consent to the said notice, dated 17-8-2005 got issued by the defendants 2 and 3; similarly, to the publication made in Eenadu daily. Having received the notice, the plaintiffs sent a reply with false allegations. They clearly denied the sending of mediators by the plaintiffs and the plaintiffs are ready and willing to perform their part of the contract and on account of the failure of the plaintiffs to comply the terms of the agreement of sale, the defendants cancelled the suit agreement and forfeited the advance amount paid by the plaintiffs and that the defendants 1, 2 and other co-sharers sold their shares in the suit property for an extent of Ac.4.43 cents to Thumati Varada Reddy on 24-3-2007 by executing an agreement with possession-cum-general power of attorney and another agreement of sale, dated 9-2-2007 and put the 7 vendor in possession of the land and eversince he has been in possession and enjoyment thereof. Hence, the plaintiffs are not entitled for the reliefs prayed in the suit and pray for dismissal of the suit.

4) The 1st defendant filed separate written statement, prior to his death, denying the execution of agreement of sale and contends that he is not a party to the same and he never agreed to perform the terms thereof. The suit agreement is an incomplete and inchoate document and not enforceable and that the 1st defendant did not receive any portion of consideration and he never gave instructions to any advocate to send reply to the plaintiffs on his behalf and that the publication in Eenadu was not made at his instance and pray for dismissal of the suit.

5) The defendants 4 to 7 remained exparte.

6) In view of the above rival contentions, the following issues are framed for consideration—

1. Whether the suit agreement is valid and binding on the defendants?

2. Whether the defendants are the owners of the entire suit property?

3. Whether the plaintiffs paid Rs.4,00,000/- to the defendants 2 and 3 on 21-6-2005?

4. Whether the plaintiffs have been ready and willing to perform their part of the suit agreement?

5. Whether the plaintiffs are entitled for the specific performance of the suit agreement?

6. To what relief?

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7) During the course of trial, PWs.1 to 7 are examined and got marked

Exs.A-1 to A-14 and X-1 to X-6 on behalf of the plaintiffs. The 2nd defendant alone was examined as DW-1 on behalf of the contesting defendants and did not mark any documents on their behalf.

8) Issues 1 to 5 are interlinked with each other and they are to be dealt with simultaneously to arrive at a just conclusion in respect of the reliefs claimed in the suit.

9) ISSUE Nos.1 to 5:-

As seen from the evidence on record, the 1st plaintiff Gummadi Stalin

Babu is examined as PW-1. PW-2 is the 2nd plaintiff. PW-3 Budigi

Guruswamy is the attestor of Ex.A-1 agreement of sale executed by the defendants 2 and 3 in favour of the plaintiffs. Admittedly, it doesn’t contain the signature of the 1st defendant who died during the pendency of the suit; though it was recited that it was executed by the defendants 1 to 3. PW-4

Kamireddy Sreenivasulu Reddy is the plaintiff in O.S.144/2006 on the file of Senior Civil Judge, Gudur filed against the defendants 2 and 3 herein in respect of some other property of the defendants; clarifies that the defendants 2 and 3 are having some other landed property in and around

Manubolu village apart from the suit schedule properties. PW-5 Jalli Kumar was examined to prove that the defendants 2 and 3 are in the habit of getting advance amounts from the vendors with an evil and malafide intention and executing agreements of sale in their favour for wrongful gain. PW-6 Pool

Chand was also examined by the plaintiffs to the same effect. PW-7 M.

Chenchu Ogulu, the Chief Executive Officer of PACS, Manubolu was 9 examined to establish that the defendants availed crop loans and fish pond loans from ACS, Manubolu by mortgaging the suit schedule properties and got released their documents from PACS, Manubolu on 8-7-2009 under

Exs.X-1 to X-6. The 2nd defendant was testified as DW-1 in support of their contentions, who clearly deposed in his cross-examination that as per the documents, he has executed agreement of sale in favour of the plaintiffs for an extent of Ac.12.66 cents under Ex.A-1; at the time of execution of

Ex.A-1, except 1 or 2 acres of land, there are no loans for the remaining land mentioned in Ex.A-1 and that he did not remember now on how many acres in Ex.A-1 land, he borrowed loans from PACS, Manubolu. He further adds that he has also borrowed loans in his name in respect of Ex.A-1 properties from State Bank and Syndicate Bank. He admits that he made it mention in

Ex.A-1 that he will register the sale deed on his behalf and also through their other sharers who are having right in Ex.A-1 land along with him and that.

The land documents of Ex.A-1 relating to his share of property was kept by him in PACS, Manubolu at the time of obtaining loan. Himself and his wife obtained loan from PACS, Manubolu of Rs.4,00,000/-. But, he does not remember now when he repaid those loans to PACS, Manubolu. But, as seen from the evidence of PW-7, the defendants availed crop loans and fish pond loans from PACS, Manubolu by mortgaging the suit schedule properties along with other properties of their own on 22-2-1996 and got released the documents from PACS, Manubolu only on 8-7-2009 as per

Exs.X-1 to X-6 which clearly discloses the loan discharge details given by

PW-7.

10) PW-1 stated in his cross-examination that the 1st defendant did not sign in Ex.A-1 agreement of sale. The defendants 2 and 3 told him that the 10 1st defendant was not available at the time of execution of Ex.A-1 agreement of sale and that he agreed to purchase 13 acres covered under Ex.A-1 at the rate of Rs.4,60,000/- per acre. Even as per the admission of PW-1, apart from the 2nd defendant, there are 4 other children to the 1st defendant. Their names are Venku Reddy, Chandrasekhar Reddy, Sudhakar Reddy and

Ravindra Reddy. He further stated that an extent of Ac.3.50 cents stands in the name of 2nd defendant but he did not file any document to that effect and that he purchased the total extent of Ac.12.56 cents approximately under

Ex.A-1. Admittedly, though the 1st defendant name was also mentioned as executants of Ex.A-1 agreement of sale along with the defendants 2 and 3, the defendants 2 and 3 are alone signed in Ex.A-1 and that the 1st defendant did not sign in Ex.A-1 and kept as blank. It is in the admission of PW-1 that Sana Ramanaiah and Polamreddy Ramanamma are also having right for an extent of Ac.0.70 cents in Ex.A-1 land. PW-2 is the 2nd plaintiff also admitted in his cross-examination that all the suit schedule properties doesn’t belong to the defendants and that he doesn’t know how much extent the 1st defendant is having right in the plaint schedule property and pleaded ignorance whether all the family members of the 2nd defendant were having 9 acres of land in the plaint schedule property for the suggestion given to him in his cross-examination. PW-2 never asked the defendants with regard to their title deeds nor verified with their title deeds and that their title deeds are with the Bank even as per the evidence of PW-2. Except the statements of PWs.1 and 2 that the defendants 2 and 3 undertook to obtain the signature of the 1st defendant in the agreement of sale subsequently, no satisfactory evidence is forthcoming on behalf of the plaintiffs to establish the said fact.

Even as per their admission, the 1st defendant was not available at the time of 11 execution of Ex.A-1 and there is no evidence on record that the 1st defendant also offered to sell his share in the suit schedule property. Even as per the admissions of PWs.1 and 2, Ac.0.70 cents of land in Ex.A-1 schedule land belongs to third parties who were not at all parties to Ex.A-1. There is no satisfactory evidence that the defendants 2 and 3 are having entire right and title over the suit schedule properties to sell the same to the plaintiffs. The other brothers and father of the 2nd defendant i.e., the 1st defendant is also having right, title over the suit schedule properties and they are not parties to

Ex.A-1 agreement of sale and there is no satisfactory evidence that they received any part of advance sale consideration received by the defendants 2 and 3 from the plaintiffs under Ex.A-1. Since all the parties who are having right, title over the suit schedule properties are not signed in Ex.A-1, Ex.A-1 agreement of sale cannot be said as complete and valid for the entire schedule mentioned land mentioned in Ex.A-1. Even as per the admissions of PWs.1 and 2, they did not peruse any documents before obtaining Ex.A-1 agreement of sale to verify whether the defendants 2 and 3 are having right, title over the entire suit schedule properties. Under section 55 of the

Transfer of Property Act, seller is bound –

(a) to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.

(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power.

© to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto.

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As seen from the recitals in Ex.A-1, it was not disclosed that Ac.0.70 cents in the schedule property belongs to third parties and the alleged promise that the defendants shall obtain sale deeds from third parties and undertook to execute registered sale deeds in respect of the said Ac.0.70 cents also as contended by the plaintiffs. The plaintiffs did not place any evidence in respect of the said promise as alleged contrary to the recitals in Ex.A-1. In such circumstances, the contention of the plaintiffs that the defendants promised to purchase the land of Ac.0.70 cents belongs to third parties covered under Ex.A-1 and promised to execute the registered sale deeds along with the said Ac.0.70 cents of land cannot be believed, as there is no satisfactory evidence in that regard. Since the 1st defendant and other brother of the 2nd defendant did not join in Ex.A-1 as executants, Ex.A-1 agreement of sale can be said as incomplete and cannot be said as valid in the eye of law, as rightly contended by the defendants’ counsel. Though

PWs.1 and 2 deposed that the 1st plaintiff paid an amount of Rs.4,00,000/- to the defendants 2 and 3 on 21-6-2005 in the presence of Mungara Narendra

Reddy, Jalli Kumar and Budigi Guruswamy at Nellore, PW-1 clearly stated in his cross-examination that there is no document to show that he paid

Rs.4,00,000/- on 21-6-2005. PW-2 was not even present at the time of such payment. But Pw-2 clearly stated in his cross-examination that there is no proof that they paid Rs.4,00,000/- on 21-6-2005 to the defendants 2 and 3.

It was not in dispute that as per the terms of Ex.A-1, the plaintiffs have to pay the entire balance of sale consideration on or before 18-7-2005. There is no satisfactory evidence on behalf of the plaintiffs about the payment of

Rs.4,00,000/- to the defendants 2 and 3 on 21-6-2005 except the oral testimony of PWs.1, 3 and 5. PW-5 Jalli Kumar did not depose anywhere in 13 his evidence about the payment of the said Rs.4,00,000/- by PW-1 to the defendants 2 and 3 on 21-6-2005 to corroborate the evidence of PWs.1 and 3 nor there is any payment endorsement of the said Rs.4,00,000/- on Ex.A-1 nor there is any other documentary proof to establish the said fact of payment of Rs.4,00,000/- by PW-1 to the defendants 2 and 3 on 21-6-2005.

In the absence of any such satisfactory evidence, it is not just and reasonable to believe the evidence of PWs.1 and 3 about the payment of Rs.4,00,000/- by the 1st plaintiff on 21-6-2005. Apart from it, the plaintiffs did not even issue any notice to the defendants till the receipt of Ex.A-2 notice from the defendants 2 and 3 nor placed any satisfactory evidence to prove the said payment of Rs.4,00,000/- and demanding for execution of registered sale deed by paying the balance of sale consideration as per the recitals under

Ex.A-1. Though the defendants did not get release the suit schedule property documents from Manubolu PACS covered under Exs.X-1 to X-6, the plaintiffs are not entitled for the discretionary relief of specific performance of agreement of sale since Ex.A-1 is incomplete and that the plaintiffs did not take any precautionary measures that the defendants 2 and 3 are alone having right, title over the plaint schedule properties covered under Ex.A-1 before obtaining Ex.A-1 agreement of sale from the defendants 2 and 3. Even as per the admissions of PWs.1 and 2, some third parties are having right, title in respect of Ac.0.70 cents of land in the land covered under Ex.A-1 and that the 1st defendant and other sons of the 1st defendant are also having right, title over the suit schedule property along with the defendants 2 and 3. In such circumstances, the plaintiffs are not entitled for the discretionary relief of specific performance of agreement of sale under Ex.A-1 only from the defendants 2 and 3 since they are not the 14 sole owners of the entire extent of the land covered under Ex.A-1. Even as per the admission of the defendants 2 and 3, they received the advance amount of Rs.6,00,000/- from the plaintiffs and executed Ex.A-1 agreement of sale without disclosing the material defects of their title in Ex.A-1 land.

So they cannot forfeit the advance amount received under Ex.A-1 agreement of sale and cannot avoid the payment of Rs.6,00,000/- admittedly received by them under Ex.A-1. Even as per the evidence of PWs.2 to 6, the defendants 2 and 3 are in the habit of taking advances from the intending purchasers and executing agreements of sale in their favour even though they are not having full rights and title over the properties in respect of such lands. It is also evident from the evidence of DW-1 that he did not disclose the full details in respect of the property covered under Ex.A-1 before entering into the contract with the plaintiffs in respect of Ex.A-1. In such circumstances, he cannot forfeit the advance amount under Ex.A-1 agreement of sale and cannot avoid the payment of advance amount of

Rs.6,00,000/- admittedly received by the defendants 2 and 3 from the plaintiffs with interest. In view of the above all circumstances, it can be said without any hesitation that the suit agreement cannot be said as valid and binding on the defendants and that the defendants are not the owners of the entire suit schedule property and that the plaintiffs failed to adduce any satisfactory evidence that they paid Rs.4,00,000/- to the defendants 2 and 3 on 21-6-2005. Even as per the admissions of PW-1, he did not deposit the balance of sale consideration into the Court even on the date of filing of the suit to show that he is having capacity to pay the balance of sale consideration. In such circumstances, it cannot be said that the plaintiffs are always ready and willing to perform their part of the contract covered under 15 the suit agreement and answered issues 1 to 5 against the plaintiffs and that the plaintiffs are not entitled for the discretionary relief of specific performance of agreement of sale. But, however, the plaintiffs are entitled for refund of the amount of Rs.6,00,000/- with interest at 12% per annum from the date of Ex.A-1 agreement of sale within two months from today as the Plaintiffs failed to prove that they paid Rs.4,00,000/- to D-2 & D-3 and that D-2 and D-3 are the absolute owners of the suit schedule property. If the defendants 2 and 3 failed to repay the same within two months, the plaintiffs are entitled to get the same with interest at 24% per annum from the date of decree till realization, as there are clear laches on the part of the defendants 2 and 3 while entering into the contract with the plaintiffs under

Ex.A-1.

11) ISSUE No.6:-

IN THE RESULT, the suit of the plaintiffs for specific performance is dismissed. However, the plaintiffs are entitled for refund of Rs.6,00,000/- with interest at 12% per annum from the date of Ex.A-1 agreement of sale within two months from today. If the defendants 2 and 3 failed to repay the same within two months, the plaintiffs are at liberty to get the same with interest at 24% per annum from the date of decree till realization. In the above circumstances, each party do bear their own costs.

Dictated to Senior (Personal) Assistant, transcribed by him, Corrected

and pronounced by me in Open Court, this the 17th day of MAY, 2013.

PRL. DISTRICT JUDGE,

Nellore.

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APPENDIX OF EVIDENCE

Witnesses examined

FOR PLAINTIFFS:FOR DEFENDANTS:

PW-1 G.Stalin Babu DW-1: M.Vijaya Bhaskar Reddy PW-2 G.Hari Babu Reddy

DOCUMENTS MARKED FOR PLAINTIFFS

Ex.A-1/Sale agreement dt:29-4-05. Ex.A-2/Office copy of notice dt:17-8-05 Ex.A-3/Paper publication dt:17-8-05. Ex.A-4/Reply notice dt:28-8-05. Ex.A-5/Certified copy of plaint in OS.144/06 on the file of Sr.Civil

Judge's Court, Gudur.

Ex.A-6/C.C of decree in OS.144/06 Ex.A-7/C.C of judgment in OS.144/06 Ex.A-8/Agreement of sale dt:15-4-08 Ex.A-9/Agreement of sale dt:16-5-08 Ex.A-10/Publication in Eenadu dt:14-6-08 Ex.A-11/C.C of sale deed dt:25-6-08 Ex.A-12/C.C of sale deed dt:25-6-08 Ex.A-13/CC of sale deed dt:25-6-08 Ex.A-14/C.C of sale deed dt:25-6-08

DOCUMENTS MARKED BY ADVOCATE-COMMISSIONER

Ex.X-1/ attested xerox copy of loan disbursement cum ledger bearing loan no:37 of D-2. Ex.X-2/ “ xerox copy of the registered mortgage bonds to loan no:37 of D-2 Ex.X-3/ “ xerox copy of in loan disbursement cum loan ledger in respect of loan no:47 of 2nd defendant. Ex.X-4/ “ xerox copy of the register mortgage bond of D-2. Ex.X-5/ “ xerox copy of the loan disbursement cum ledger relating to the loan no:42 belongs to D3 Ex.X-6/ “ xerox copy of the registered mortgage bonds of D-3.

Prl.D.J., Nellore.

-: 1 :-

BEFORE THE PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL

(PRL.DISTRICT JUDGE, NELLORE)

WEDNESDAY, the 12th day of JUNE, 2013

Present:-Sri L. SREERAMA MURTHY, B.Sc., B.L., Chairman, Prl. Motor Accident Claims Tribunal

ORIGINAL PETITION No.263/2009

1. Mangaduddu Abbaiah,

2. Mangaduddu Subbamma. …Claimants

Vs.

Andhra Pradesh State Road Transport Corporation represented by its Managing Director, Hyderabad. …Respondent

This petition coming on 11-6-2013 for final hearing before me in the presence of Sri G. Suresh, advocate for petitioners and of Sri M. Ramachandra Reddy, advocate for respondent and having stood over for consideration till this day, this Tribunal made the following:-

ORDER

This is a petition filed u/s 166 of the Motor Vehicles Act claiming compensation of Rs.8,00,000/- together with interest and costs against the respondent on account of death of Mangaduddu Mahesh in a motor accident,

dated 15-10-2008 at 7.30 a.m. near Gowravaram canal turning,

Ananthasagaram Mandal due to the rash and negligent driving of the driver of APSRTC bus bearing No.A.P.10/Z-3813 of the respondent while the deceased was proceeding on motor cycle A.P.26/L-7616 towards

Ananthasagaram village along with pillion rider. Immediately after the accident, he was shifted to Bollineni hospital by his relations in a Car.

Later, he was shifted to Apollo hospital, Chennai in a Car on the advice of the doctors for better treatment; where the doctors examined him and -: 2 :- advised to take him to his village as there are no chances to survive. Then he was brought back to the Government hospital, Atmakur where the doctors examined him and declared him dead at 6.00 a.m. on 17-10-2008. They spent Rs.5,000/- towards transport charges and Rs.15,000/- towards medical expenses while undergoing treatment. The Station House Officer,

Ananthasagaram Police Station registered a case in Crime No.42/2008 u/ss 304-A and 337 I.P.C. against the driver of the R.T.C. bus. The deceased was aged 28 years, hale and healthy, working as Agriculture Extension Officer,

Community Based Tank Management Pannaki Tank, Kothapalem, Kota

Mandal and earning Rs.8,000/- per month and contributing the income to the 1st claimant for their family maintenance. The claimants 1 and 2 are the parents of the deceased.

2) The respondent filed written statement disputing the death of the deceased due to the rash and negligent driving of the driver of the bus along with other averments of the petition and wanted the claimants to put to strict proof that the death of the deceased was only due to the rash and negligent driving of the driver of the bus; age, health condition, the alleged earning capacity of the deceased and the alleged medical expenditure and transportation charges and contends that the accident took place only due to the rash and negligent riding of the rider of the motor cyclist who came in opposite direction in rash and negligent manner by overtaking ahead autorickshaw on wrong direction and hit the RTC bus on its right side head light though the driver of the bus observed and took his vehicle to the extreme left side of the road and there is no rashness and negligence on the part of the driver of the bus for such motor accident and that the petition is liable to be dismissed for non-joinder of the owner and insurance company -: 3 :- of the motor cycle; the rate of interest and the claim is excessive and that the claimants are the legal heirs of the deceased and pray for dismissal of the petition.

3) During the course of enquiry, PWs.1 and 2 are examined and got marked Exs.A-1 to A-5 on behalf of the petitioners. RW-1 is examined in rebuttal. No documents are marked on behalf of the respondent.

4) The points that arise for consideration are—

1. Whether the death of the deceased in the motor accident was only due to the rash and negligent driving of the driver of APSRTC Bus A.P.10/Z-3813?

2. Whether the claimants are entitled for any compensation; if so, how much amount and against whom?

3. To what relief?

5) POINT Nos.1 and 2:-

In order to prove their claim, the 2nd claimant who claims to be the mother of the deceased, narrated the averments of the petition and filed

Exs.A-1 to A-5 attributing rash and negligence to the driver of the bus; but she is not an eye witness to the motor accident. PW-2 K. Venkateswarlu who claims to be the pillion rider of the motor cycle and LW-2 in Ex.A-4 attested xerox copy of charge sheet attributed rash and negligent driving on the part of the driver of the bus and stated that the driver came in opposite direction in a rash and negligent manner and hit their motor cycle.

According to him, they were proceeding from Kamireddipalem to

Ananthasagaram village on that date and that he does not know the driving licence particulars of the deceased Mahesh and whether he is having any driving licence or not. However, he denied the suggestion that Mahesh -: 4 :- drove the motor cycle in a rash and negligent manner with heavy speed, dashed the RT.C. bus to overtake an Auto and that it was occurred only due to the fault of the deceased Mahesh and there is no fault on the part of the driver of the R.T.C. bus. According to him, he gave report to the police; he received injury on his right leg in the motor accident and he filed claim application in that regard. Ex.A-4 is attested xerox copy of charge sheet filed by the police against the driver of the R.T.C. bus u/ss 304-A and 337

I.P.C. As per the recitals of Ex.A-4, it is head on collision. RW-1 is the driver of the said bus, corroborated the contention of the respondent that the rider of the motor cycle came in opposite direction in rash and negligent manner by overtaking ahead autorickhsaw on wrong direction and hit his bus on the right side head light. But, he stated in his cross-examination that

Ananthasagaram police registered a case u/s 304-A I.P.C. against him and denied the suggestion that the accident was occurred due to his negligence and there is no negligence on the part of the opposite motor cyclist and that the motor cyclist did not overtake ahead autorickshaw on wrong direction and did not hit his bus on its right side head light. Except his oral testimony, the respondent did not adduce any evidence that the rider of the motor cycle came in wrong direction while overtaking the autorickshaw on wrong direction, hit their bus on right side as alleged. The alleged overtaking of autorickshaw on wrong direction was not even recited in the charge sheet nor produced the scene observation panchnama to verify the said allegation of rash and negligence. Unless such verification in scene observation panchnama and rough sketch, it is very difficult to attribute rash and negligence against the rider of the motor cycle or against the driver of the bus since the motor accident appears to be held in head on collision, even as per the evidence of PW-2 and the evidence of RW-1. In view of the above -: 5 :- evidence, the drivers of both the vehicles had sufficient opportunity to avoid the accident. Admittedly, the motor cycle is a smaller vehicle than the bus.

The driver of the bus had greater responsibility to drive the vehicle with care and caution on the road. Hence, the rash and negligence is certainly on greater footing, than the bus driver since the accident took place was head on collision as the respondent did not place any corroborative evidence that the rider of the motor cycle overtook the autorickshaw by coming on wrong direction as alleged by RW-1 more over the charge sheet is filed against

RW-1 without having any recital of such overtaking by the rider of the motor cycle. In those circumstances, the rashness and negligence on the part of the bus driver can be attributed as 75% and rashness and negligence on the part of the rider of the motor cycle can be attributed as 25%.

Accordingly, I answered the 1st point in favour of the claimants.

6) With regard to the 2nd point, the respondent clearly admitted that he is the owner of the APSRTC bus. Accordingly, he is liable to answer the claim of the petitioners at 75% in view of the finding on point No.1 inspite of non impleading of the owner and insurance company of the motor cycle.

7) As seen from the recitals of Ex.A-2 attested xerox copy of inquest report and Ex.A-3 attested xerox copy of post-mortem certificate, the deceased was aged 28 years. The claimants 1 and 2 are the parents of the deceased. Admittedly, the deceased Mahesh is an unmarried. So, the age of the parents particularly the age of the mother is material in awarding compensation. Except the recitals in the chief affidavit that the age of the mother is shown as 49 years, the claimants did not place any other evidence.

Her age was shown as 47 years even in the claim application. Hence, the relevant multiplier would be 13 as per the guidelines given in Sarla Verma’s -: 6 :- case reported in 2009 ACJ 1298, taking into consideration of the age of the mother. Except filing Ex.A-5 salary certificate issued by the President,

Asyard – NGO, Dargamitta, Nellore that her son was earning Rs.8,000/- per month, she did not file the appointment order copy; she did not file bank account and did not examine the person who issued Ex.A-5. In those circumstances, much credence cannot be given to Ex.A-5 to prove the earnings of the deceased at Rs.8,000/- per month as Agriculture Extension

Officer. In the absence of any satisfactory evidence with regard to the earnings of the deceased as Rs.8,000/- per month, the earnings of the deceased can be taken into account at the rate of Rs.100/- per day as per the dictum of our Apex Court in 2008 ACJ 1488 (SC) in Laxmi Devi and others

Vs. Mohammad Tabbarwherein Their Lordships of our Apex Court have taken the income of an unskilled labourer at the rate of Rs.100/- per day which would be Rs.3,000/- per month and Rs.36,000/- per annum in which half of the income shall be deducted towards the personal expenditure of the deceased as unmarried and half of the income shall be taken into account as contribution of the deceased to their joint family. Taking into consideration of the multiplier 13 and 75% negligence as held in point No.1, the future contribution of the deceased towards their joint family would be Rs.36,000/- x ½ x 13 x 75% = Rs.1,75,500/-. Apart from it, the claimants are also entitled to get Rs.5,000/- towards transportation, Rs.5,000/- towards loss of estate and another Rs.5,000/- towards funeral expenses. In total, the claimants are entitled to get Rs.1,90,500/- against the respondent and answered the 2nd point accordingly in favour of the claimants.

8) POINT No.3:- -: 7 :-

IN THE RESULT, the petition is partly allowed awarding compensation of Rs.1,90,500/- (Rupees one lakh, ninety thousand and five hundred only) with proportionate costs and interest at the rate of 7.5% per annum from the date of petition till the date of realization against the respondent. The rest of the petition claim is dismissed. The 2nd claimant is entitled to get Rs.1,20,000/- and the 1st claimant is entitled to get the remaining balance amount of Rs.70,500/-. The 1st claimant is permitted to withdraw Rs.20,000/- and the 2nd claimant is permitted to withdraw

Rs.40,000/- as and when the awarded amount is deposited and their balance amount shall be kept as fixed deposit in any Nationalised Bank for a period of 5 years and shall renew the same from time to time thereafter.

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

Dictated to the Senior Assistant, transcribed by him, Corrected and

pronounced by me in the Open Court, this the 12th day of JUNE, 2013.

CHAIRMAN (PRL.DISTRICT JUDGE),

MOTOR ACCIDENT CLAIMS TRIBUNAL,

Nellore.

APPENDIX OF EVIDENCE

Witnesses examined

FOR PETITIONERS FOR RESPONDENT

PW-1 Mangaduddu Subbamma, RW-1 Sk. Khaja Peer. PW-2 K. Venkateswarlu.

DOCUMENTS MARKED FOR PETITIONERS

Ex.A-1/Attested xerox copy of First Information Report in Crime No.42/2008 of Ananthasagaram Police Station.

Ex.A-2/Attested xerox copy of inquest report.

Ex.A-3/Attested xerox copy of post-mortem certificate.

-: 8 :-

Ex.A-4/Attested xerox copy of charge sheet in C.C.No.293/2008 on the file of Judicial Magistrate of First Class, Atmakur.

Ex.A-5/Salary certificate, dated 15-12-2008 of the deceased issued by the President, Asyard-NGO, Dr. Ambedkar Society for Youth and Rural Development, Nellore.

DOCUMENTS MARKED FOR RESPONDENT

- NIL -

PRL. M.A.C.T.

(Prl. D.J)., Nellore.

-: 1 :-

BEFORE THE PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL

(PRL.DISTRICT JUDGE, NELLORE)

THURSDAY, the 6th day of JUNE, 2013

Present:-Sri L. SREERAMA MURTHY, B.Sc., B.L., Chairman, Prl. Motor Accident Claims Tribunal

ORIGINAL PETITION No.276/2010

1. Challa Kotamma,

2. Challa Pushpalatha,

3. Challa Venkata Krishna alias Challa Venkata Krishnaiah,

4. ChallaKoteswara Rao alias Kotaiah,

5. Challa Challamma.

(Claimants 3 and 4 being minors represented by their next friend and guardian-mother Challa Kotamma).…Claimants

Vs.

1. M. Srinivasulu,

2. IFFCO-TOKIO General Insurance Company Ltd., represented by its Branch Manager, Nellore. …Respondents

This petition coming on 5-6-2013 for final hearing before me in the presence of Sri K.B.S. Mani, advocate for petitioners and of Sri I. Bhaskara Prasada Rao, advocate for 2nd respondent and the 1st respondent having been set exparte and having stood over for consideration till this day, this Tribunal made the following:-

ORDER

This is a petition filed u/s 166 of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- together with interest and costs in favour of the claimants for the death of Challa Chengaiah, son of late Chengaiah in the motor accident, dated 13-8-2009 at about 7.00 p.m. near Kothapalem road,

Chendodu village, Kota Mandal, Sri Potti Sriramulu Nellore District due to the rash and negligent driving of the rider of the motor cycle bearing -: 2 :-

No.A.P.26/V-TR-2858 owner by the 1st respondent, insured with the 2nd respondent while the deceased Chengaiah was proceeding on Kothapelem road towards Chendodu village by walk, the driver of the said Hero Honda motor cycle drove the same in a rash and negligent manner with high speed, came from Kothapalem road side and hit the deceased from his back side.

Then the said Chengaiah fell down on the road and sustained severe bleeding injuries on the back side of his head, blood was came out from his right ear. Immediately, he was taken to Government hospital, Kota for medical treatment. After first aid, he was shifted to D.S.R. Headquarters hospital, Nellore for better treatment. Later, he was shifted to S.V.R.R.

hospital, Tirupati for expert treatment and while undergoing treatment, he succumbed to the injuries at 8.45 p.m. on 14-8-2009 at S.V.R.R. hospital,

Tirupati. The claimants spent Rs.20,000/- towards medical expenses and brought the dead body to their village in a Car by spending Rs.5,000/-. The

Station House Officer, Kota Police Station registered a case in Crime

No.107/2009 u/s 337 I.P.C. against the rider of the Hero Honda motor cycle and altered the section of law into section 304-A I.P.C. The 1st respondent insured his motor cycle with the 2nd respondent and thus, the respondents 1 and 2 are jointly and severally liable to pay the compensation as the accident was occurred due to the rash and negligent driving of the rider of the said motor cycle. The deceased Chengaiah was aged 45 years, hale and healthy, doing coolie work, earning Rs.200/- per day and contributing his entire income to the 1st claimant towards the family maintenance. The 1st claimant is the wife, claimants 2 to 4 are the children and 5th claimant is the mother of the deceased, depending on the sole earnings of the deceased.

2) The 1st respondent remained exparte. The 2nd respondent filed counter and additional counter disputing the rash and negligent driving of -: 3 :- the rider of the Hero Honda motor cycle and wanted the claimants to put to strict proof that the death of the deceased was only due to the rash and negligent driving of the rider of the Hero Honda motor cycle, age, health condition, earning capacity of the deceased as on the date of the motor accident and the claimants are the legal heirs of the deceased, valid driving licence to the rider of the Hero Honda motor cycle and contends that the accident was occurred only due to the negligent act of the deceased and there is no rash and negligence on the part of the rider of the motor cycle, seeks protection u/ss 149 and 170 of the Motor Vehicles Act and pray for dismissal of the petition against the 2nd respondent and also contends that the motor cycle was not registered as on the date of the motor accident and tax has not been paid in respect of the crime vehicle A.P.26/V-TR-2858 which is clear violation of policy conditions under the M.V. Act and the 2nd respondent is not liable to pay any compensation.

3) During the course of enquiry, PWs.1 and 2 are examined and got marked Exs.A-1 to A-5 on behalf of the petitioners. The 2nd respondent did not adduce any oral or documentary evidence in rebuttal except marking copy of the insurance policy as Ex.B-1 with the consent of the other side admitting the existence of valid insurance policy to the crime vehicle.

4) The points that arise for consideration are—

1. Whether the death of the deceased Challa Chengaiah was only due to the rash and negligent driving of the rider of the Hero Honda motor cycle A.P.26/V-TR-2858 of the 1 st respondent?

2. Whether the claimants are entitled for any compensation; if so, how much amount and against which of the respondents?

3. To what relief?

-: 4 :-

5) POINT Nos.1 and 2:-

As seen from the evidence on record, PW-1 Challa Kotamma claims to be the wife of the deceased Challa Chengaiah, narrated the contents of the petition though she is not an eye witness to the motor accident. PW-2

Challa Venkateswarlu claims to be the eye witness to the motor accident, said to have proceeding along with the deceased Challa Chengaiah at the material time of the motor accident from Kothapalem towards Chendodu side by walk at which time the rider of the Hero Honda motor cycle

A.P.26/V-TR-2858 drove his motor cycle from their back side in a rash and negligent manner with high speed without taking any precautionary measures, dashed Challa Chengaiah resulting Chengaiah fell down, sustained head injury, blood oozed from his right ear and nose and succumbed to the injuries while undergoing treatment at S.V.R.R. hospital,

Tirupati. According to him, the Hero Honda motor cycle came behind them and hit Chengaiah and clearly denied in his cross-examination that he did not witness the motor accident. Merely because PW-2 is a distant relative, his evidence cannot be discarded since no material contradictions are elicited in his cross-examination. On the other hand, he was shown as LW-2 as an eye witness in Ex.A-5 attested xerox copy of charge sheet filed by the police for the motor accident u/s 304-A I.P.C. in Crime No.107/2009 of Kota

Police Station against the rider of the Hero Honda motor cycle A.P.26/V-

TR-2858 attributing rash and negligence for commission of the death of the deceased Challa Chengaiah in such motor accident. Except mentioning in the counter that the accident was occurred due to the negligent act of the deceased while walking on the road, the 2nd respondent did not place any material to substantiate their contention. Apart from it the recitals in Ex.A-1 -: 5 :- attested xerox copy of F.I.R., Ex.A-2 attested xerox copy of inquest report,

Ex.A-3 attested xerox copy of post-mortem report, Ex.A-4 attested xerox copy of Motor Vehicles Inspector’s report, Ex.A-5 attested xerox copy of charge sheet clearly corroborates the contention of the petitioners that the death of the deceased was only due to the rash and negligent driving of the rider of the Hero Honda motor cycle. In those circumstances, I have no hesitation to believe the evidence of PW-2 coupled with Exs.A-1 to A-5 and answered the 1st point in favour of the claimants.

6) With regard to the 2nd point, the 2nd respondent themselves filed

Ex.B-1 copy of the insurance policy admitting the existence of the valid insurance policy to the crime vehicle Hero Honda motor cycle A.P.26/V-

TR-2858 and failed to show any violations of such policy conditions including valid driving licence to the rider of the Hero Honda motor cycle, valid registration of the motor cycle and non payment of tax as alleged and hence, the 2nd respondent is also held liable to answer the claim jointly and severally along with the 1st respondent, in view of Ex.B-1 covering the period of motor accident.

7) With regard to the quantum of compensation, except claiming that her husband was earning Rs.200/- per day as coolie, PW-1 did not produce any other corroborative evidence to prove such earnings and clearly stated in her cross-examination that she did not file any document to show such earnings. No document is filed evidencing the expenditure of Rs.20,000/- towards treatment of her husband or payment of transport expenses of

Rs.5,000/-. In such circumstances, the income of the deceased cannot be taken into consideration at the rate of Rs.200/- per day but can be taken into -: 6 :- account at the rate of Rs.100/- per day as per the decision reported in 2008

ACJ 1488 (SC) in Laxmi Devi and others Vs. Mohammad Tabbarwherein our Hon’ble Apex Court have taken the income of an unskilled labourer at the rate of Rs.100/- per day, since there is no satisfactory evidence on behalf of the petitioners for the earning proof of Rs.200/- per day as claimed by

PW-1. As per the recitals in Ex.A-2 inquest report and Ex.A-3 post-mortem certificate, the age of the deceased was shown as 45 years can be taken into account as there is no other contradictory evidence on record. The relevant multiplier will be 14 for the age group of 41 to 45 years and 1/4th shall be deducted towards his personal expenditure, as per the guidelines given in

Sarla Verma’s case reported in 2009 ACJ 1298. Hence, the future contribution of the deceased towards their joint family would be Rs.100/- x 30 x 12 x ¾ x 14 = Rs.3,78,000/-. Since the claimants failed to adduce any satisfactory evidence with regard to the expenditure incurred towards medical treatment, the claimants are not entitled to claim any amount on that head. But the claimants are entitled to get Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate and the 1st claimant is also entitled to get another Rs.10,000/- towards loss of consortium. In total, the claimants are entitled to get Rs.3,98,000/- against the respondents 1 and 2 jointly and severally. Accordingly, I answered the 2nd point in favour of the claimants.

8) POINT No.3:-

IN THE RESULT, the petition is partly allowed awarding compensation of Rs.3,98,000/- (Rupees three lakhs, ninety eight thousand only) with proportionate costs and interest at the rate of 7.5% per annum -: 7 :- from the date of petition till the date of realization against the respondents 1 and 2 jointly and severally. The rest of the petition claim is dismissed. The claimants 2 to 5 are entitled to get Rs.50,000/- each and the balance amount of Rs.1,98,000/- is apportioned to the share of the 1st claimant. The 1st claimant is permitted to withdraw Rs.55,000/-, the petitioners 2 and 5 are permitted to withdraw Rs.10,000/- each as and when the awarded amount is deposited and their balance amount shall be kept as fixed deposit in any

Nationalised Bank for a period of 5 years and shall renew the same from time to time thereafter. The share amount of the minor petitioners 3 and 4 shall be kept as fixed deposit in the same Nationalised Bank until they attain majority. Advocate’s fee is fixed at Rs.2,000/-.

Dictated to the Senior Assistant, transcribed by him, Corrected and

pronounced by me in the Open Court, this the 6th day of JUNE, 2013.

CHAIRMAN (PRL.DISTRICT JUDGE),

MOTOR ACCIDENT CLAIMS TRIBUNAL,

Nellore.

APPENDIX OF EVIDENCE

Witnesses examined

FOR PETITIONERS FOR RESPONDENTS

PW-1 Challa Kotamma, - NONE - PW-2 Challa Venkateswarlu.

DOCUMENTS MARKED FOR PETITIONERS

Ex.A-1/Attested xerox copy of First Information Report in Crime No.107/2009 of Kota Police Station.

Ex.A-2/Attested xerox copy of inquest report.

Ex.A-3/Attested xerox copy of post-mortem certificate.

-: 8 :-

Ex.A-4/Attested xerox copy of Motor Vehicles Inspector’s report.

Ex.A-5/Attested xerox copy of charge sheet in C.C.No.156/2009 on the file of Judicial Magistrate of First Class, Kota.

DOCUMENTS MARKED FOR RESPONDENTS

Ex.B-1/Attested xerox copy of insurance policy relating to the vehicle owned by the 1st respondent insured with the 2nd respondent- Firm.

PRL. M.A.C.T.

(Prl. D.J)., Nellore.

-: 1 :-

BEFORE THE PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL

(PRL.DISTRICT JUDGE, NELLORE)

WEDNESDAY, the 15th day of MAY, 2013

Present:-Sri L. SREERAMA MURTHY, B.Sc., B.L., Chairman, Prl. Motor Accident Claims Tribunal

ORIGINAL PETITION No.47/2011

1. Yembeti Kondaiah,

2. Yembeti Pushpamma,

3. Yembeti Subrahmanyam,

4. Yembeti Srinivasulu. …Claimants

Vs.

1. B.R.M. Hospitals Private Ltd., Nellore,

2. National Insurance Company Ltd., represented by its Branch Manager, Nellore. …Respondents

This petition coming on 18-4-2013 for final hearing before me in the presence of K. Neeraja Rani, advocate for petitioners and of Smt. N. Rajyalakshmi, advocate for 2nd respondent and the 1st respondent having been set exparte and having stood over for consideration till this day, this Tribunal made the following:-

ORDER

This is a petition filed u/s 166 of the Motor Vehicles Act claiming compensation of Rs.7,00,000/- together with interest and costs in favour of the claimants on account of the death of Yembeti Siva Kumar, son of

Kondaiah in a motor accident, dated 20-12-2010 at about 11.15 a.m.

opposite to Maruthi Service Station, Mini bypass road, Nellore City due to the rash and negligent driving of the driver of Maruthi Ambulance Van bearing No.A.P.26/X-8010 of 1st respondent, insured with the 2nd respondent when the deceased and his friend Ingilala Venugopal were proceeding on their motor cycle A.P.26/AD-7919 towards Atmakur bus-stand for -: 2 :- purchasing iron bolts, the driver of the above said Maruthi Ambulance Van

A.P.26/X-8010 drove it in a rash and negligent manner at high speed, came and hit their motor cycle from its behind resulting the deceased and his friend fell down on the road and sustained severe bleeding injuries; immediately, the deceased was shifted to Narayana General hospital, Nellore for medical treatment and later, he was shifted to Chennai hospital for better treatment on medical advice but he was succumbed to the injuries on the way to the hospital at about 7.30 p.m. on 20-12-2010. Pot-mortem examination was conducted at Nellore Government Headquarters hospital.

The Station House Officer, VI town Police Station, Nellore registered a case in Crime No.182/2010and filed charge sheet against the driver of Maruthi

Ambulance Van u/ss 304-A and 337 I.P.C. The 1st respondent is the owner and 2nd respondent is the insurer of the Ambulance Van are jointly and severally liable to pay compensation to the claimants who are the parents and brothers of the deceased. The deceased is an agriculturist having

Ac.3.00 cents of wet land and earning Rs.5,000/- per month on personal cultivation and also taken Ac.10.00 cents of land from the village ryots and doing prawn culture and able to earn Rs.5,000/- per month and maintaining the family with his total earnings of Rs.10,000/- per month. Hence the claim.

2) The 1st respondent remained exparte. The 2nd respondent filed counter disputing the rash and negligence on the part of the driver of

Maruthi Ambulance Van and wanted the claimants to put to strict proof that the motor accident was occurred only due to the rash and negligent driving of the driver of the Maruthi Ambulance Van; age, health condition and earning capacity of the deceased and also disputing the valid insurance -: 3 :- policy and valid driving licence to the driver of Maruthi Ambulance Van and also to the deceased to drive the motor cycle and wanted the claimants to put to strict proof of the same and seeks protection u/ss 149 and 170 of the

Motor Vehicles Act and attributed collusion in between the petitioners and the 1st respondent and pray for dismissal of the petition.

3) The following issues are framed for enquiry—

1. Whether the death of the deceased Yembeti Siva Kumar was due to the rash and negligent driving of the driver of Maruthi Ambulance Van bearing registration No.A.P.26/X- 8010?

2. Whether the claimants are entitled for any compensation; if so, how much amount and against which of the respondents?

3. To what relief?

4) At the time of enquiry, PWs.1 and 2 are examined and got marked

Exs.A-1 to A-4 on behalf of the claimants. Except marking Ex.B-1 copy of the insurance policy of Maruthi Ambulance Van, the contesting 2nd respondent did not adduce any other oral or documentary evidence in support of their contention.

5) ISSUE Nos.1 and 2:-

As seen from the above evidence on record, PW-1 Yembeti Kondaiah who is the father of the deceased was not an eye witness to the motor accident. PW-2 Ingilala Venugopal, the pillion rider of the motor cycle and eye witness to the motor accident clearly narrated the averments of the petition and attributed rash and negligence on the part of the driver of the

Maruthi Ambulance Van A.P.26/X-8010 for commission of such motor -: 4 :- accident stating that the driver of Maruthi Ambulance Van came in a rash and negligent manner with high speed, hit their motor cycle from its behind and caused the accident when they reached opposite to Maruthi Service

Station, mini bypass road at 11.15 a.m. on their motor cycle. Ex.A-4 is the attested xerox copy of charge sheet clearly discloses that the Maruthi

Ambulance Van hit the motor cycle from its behind and caused such motor accident and the police filed charge sheet against the driver of Maruthi

Ambulance Van. PW-2 Ingilala Venugopal was shown as LW-3 in Ex.A-4 as injured eye witness and reporting the incident to the police and he clearly deposed about the receipt of injuries in such motor accident as pillion rider of the motor cycle. Nothing was elicited in his cross-examination to discredit his evidence as an eye witness to the motor accident. Merely because the driver of the motor cycle is not having valid driving licence, rash and negligent driving cannot be attributed to the deceased since the motor accident was occurred only due to the rash and negligent driving of the driver of the Maruthi Ambulance Van because the Ambulance Van dashed the motor cycle from its behind. According to PW-2, he received only simple injuries in that motor accident and so, he did not file any claim petition. In such circumstances, the evidence of PW-2 can be taken into account along with the documentary evidence of Exs.A-1 to A-4 and can be said without any hesitation that the motor accident was occurred only due to the rash and negligent driving of the driver of Maruthi Ambulance Van and answered the 1st issue in favour of the claimants.

6) With regard to the 2nd issue, since the motor accident was occurred only due to the rash and negligent driving of the driver of the Maruthi

Ambulance Van, there is no need to implead the owner and insurance -: 5 :- company of the motor cycle. Though the 2nd respondent is disputing valid insurance policy and valid driving licence, the 2nd respondent themselves filed Ex.B-1 copy of the insurance policy admitting the existence of valid insurance policy to the Maruthi Ambulance Van and failed to adduce any evidence that the said Maruthi Ambulance Van is not having valid insurance policy and the driver of the Maruthi Ambulance Van is not having valid driving licence to drive the said Maruthi Ambulance Van at the material time of the motor accident and failed to show any violations of Ex.B-1 policy conditions to avoid their liability. In those circumstances, the 2nd respondent is also held liable along with the 1st respondent jointly and severally to answer the claim.

7) With regard to quantum of compensation, according to PW-1, the deceased was aged 20 years, unmarried at the material time of the motor accident and earning Rs.10,000/- per month both on agriculture and prawn culture. But, they did not file any pattadar pass book or any other revenue record to show that the deceased Siva Kumar was having Ac.3.00 cents of wet land and it was cultivated by him personally and they did not file any document that the deceased had taken Ac.10.00 cents of land on lease for prawn culture and earning Rs.5,000/- per month on that land. As per Ex.A-2 attested xerox copy of inquest report, the age of the deceased was shown as 20 years; his father’s age was shown as 48 years. The age of the mother of the deceased was not given in Ex.A-2. PW-1 also did not state anywhere in his evidence about the age of the mother of the deceased nor it was elicited in the cross-examination of PW-1 or PW-2. The age of the 2nd claimant i.e., the mother of the deceased was shown as 44 years in the claim application.

The age of the 1st claimant is shown as 48 years. But the claimants did not -: 6 :- adduce any iota of evidence about the age of mother of the deceased which is vital to take the relevant multiplier. Taking into consideration of the above all facts and circumstances, the relevant multiplier would be 14 in view of the age of the mother of the deceased shown as 44 years in the claim application, as per the guidelines given in Sarla Verma’s case reported in 2009 ACJ 129, since the deceased is unmarried. As there is no satisfactory evidence with regard to the earnings of the deceased at the rate of

Rs.10,000/- per month as claimed by PW-1, the income of the deceased can be taken into account at the rate of Rs.100/- per day as an unskilled labourer as per the guidelines given in the Apex Court decision in 2008 ACJ 1488 (SC) in Laxmi Devi and others Vs. Mohammad Tabbar in which half of the amount can be deducted towards his personal expenditure and half of the amount can be taken into account for computation as per the guidelines given in the above said Sarla Verma’s case. The future contribution of the deceased towards their joint family would be Rs.100/- x 30 x 12 x ½ x 14 =

Rs.2,52,000/-. The claimants are also entitled to get Rs.5,000/- towards funeral expenses and another Rs.5,000/- towards loss of estate. In total, the claimants are entitled to get Rs.2,62,000/-. The claimants 3 and 4 are the elder brothers and majors and they are not supposed to be depending on the earnings of the deceased. The claimants 1 and 2, the parents are alone entitled to receive the compensation as per the settled principles of law.

Accordingly, I answered the 2nd issue in favour of the claimants 1 and 2.

8) ISSUE No.3:-

IN THE RESULT, the petition is partly allowed awarding compensation of Rs.2,62,000/- (Rupees two lakhs, sixty two thousand only) -: 7 :- with proportionate costs and interest at the rate of 7.5% per annum from the date of petition till the date of realization against the respondents 1 and 2 jointly and severally. The rest of the petition claim is dismissed. The claim of the claimants 3 and 4 is dismissed. The 1st claimant is entitled to get

Rs.1,00,000/- and the 2nd claimant who is the mother of the deceased is entitled to get the balance amount of Rs.1,62,000/- towards her share. The 1st claimant is permitted to withdraw Rs.30,000/- and the 2nd claimant is permitted to withdraw Rs.50,000/- as and when the awarded amount is deposited and their balance amount shall be kept as fixed deposit in any

Nationalised Bank for a period of 3 years and shall renew the same from time to time thereafter. Advocate’s fee is fixed at Rs.2,500/-.

Dictated to the Senior Assistant, transcribed by him, Corrected and

pronounced by me in the Open Court, this the 15th day of MAY, 2013.

CHAIRMAN (PRL.DISTRICT JUDGE),

MOTOR ACCIDENT CLAIMS TRIBUNAL,

Nellore.

APPENDIX OF EVIDENCE

Witnesses examined

FOR PETITIONERS FOR RESPONDENTS

PW-1 Yembeti Kondaiah, - NONE - PW-2 Ingilala Venugopal.

DOCUMENTS MARKED FOR PETITIONERS

Ex.A-1/Attested xerox copy of First Information Report in Crime No.182/2010 of VI town Police Station, Nellore.

Ex.A-2/Attested xerox copy of inquest report.

-: 8 :-

Ex.A-3/Attested xerox copy of post-mortem certificate.

Ex.A-4/Attested xerox copy of charge sheet in C.C.No…/2011 on the file of V Additional Judicial Magistrate of First Class, Nellore.

DOCUMENTS MARKED FOR RESPONDENTS

Ex.B-1/Attested xerox copy of insurance policy relating to the vehicle owned by the 1st respondent issued by the 2nd respondent.

PRL. M.A.C.T.

(Prl. D.J)., Nellore.

 1 

IN THE COURT OF SESSION : NELLORE DIVISION : NELLORE

THURSDAY, the 16th day of MAY, 2013

Present:- Sri L. SREERAMA MURTHY, B.Sc., B.L., Prl. Sessions Judge

CRIMINAL REVISION PETITION No.37/2012

1. Shaik Rizwan,

2. Shaik Shanawaz. … Revision Petitioners

Vs.

1. Shaik Gulabi Jahn,

2. Shaik Khajavali,

3. Md. Riyaz,

4. Shaik Nazunnisa,

5. P. Suresh,

6. P. Rajagopal,

7. K. Vijaya Kumar,

8. Chennakesavulu,

9. Lakshmaiah,

10. Saheramunnisa,

11. State represented by Public Prosecutor Nellore. … Respondents

This Criminal Revision petition coming on this day for hearing before me in the presence of Sri M. Surya Prakash Rao, advocate for Revision petitioners and of Sri R. Roja Reddy, advocate for respondents 5, 9 and 10 and of Public Prosecutor for 11th respondent and the respondents 1 to 4 and 6 to 8 having been called absent and having stood over for consideration till this day, this Court made the following:-

ORDER

This Criminal Revision petition is filed u/s 397 Cr.P.C. against the

Orders of the Judicial Magistrate of First Class, Atmakur, dated 4-4-2012 in

C.F.No.2958/2011 in C.C.No.39/2012 by the Revision petitioners to set aside the Orders of the Trial Court and direct the Lower Court to take cognizance against A-5 and A-9 under the sections attributed against them as per the prayer made in the complaint filed by the Revision petitioners in the

Lower Court in the interest of justice as the Order of the Trial Court is  2  perverse, who did not apply his judicious mind and did not give weightage to the evidence of PWs.1 to 3 and failed to appreciate prima facie case against the respondents/accused for the offences u/ss 325, 327, 354, 342, 457, 418, 426, 427 and 307 I.P.C.

2) The Revision petitioners filed private complaint in

C.F.No.2958/2011 against the respondents/accused stating that the 1st respondent/accused is doing private chit business at J.R.Peta, Atmakur; the 2nd respondent is a mason and he was assisting his wife. The 2nd Revision petitioner is a subscriber in a private chit run by the 1st respondent and paid a sum of Rs.1,10,000/- towards two chits each for Rs.55,000/- besides the 1st respondent borrowed Rs.50,000/- and executed promissory note in favour of the 2nd Revision petitioner. The mode of chit is that the 1st respondent has to pay 1½ times of amount of the subscribed amount after ten months. Later, the 1st respondent discontinued the said chit business and the 2nd Revision petitioner approached her and demanded about the money and she assured that she will repay the said amounts by the end of April, 2010. The 2nd

Revision petitioner informed the same to the 1st Revision petitioner who was then in abroad thereby the 1st Revision petitioner intimated the same to the 3rd respondent who is no other than the maternal uncle to him requesting him to approach the 1st respondent and to collect the amount from her and pay to the 2nd Revision petitioner thereby the 3rd respondent herein joined hands with the respondents 1 and 2 in selling away the immovable property of the respondents 1 and 2 and secreted the money from reaching the Revision petitioners and no amount was paid to the 2nd Revision petitioner. The 4th respondent actively participated in the said fake transaction with an ulterior object of helping the respondents 1 and 2 and sold the same to his sister’s  3  husband for very lesser value and the same was questioned by the Revision petitioner after he had come to India. Instead of paying the amount to the 2nd

Revision petitioner, the 1st respondent gave a false complaint to the 6th respondent herein and on his direction and with the instigation of the respondents 2 to 4 herein, the respondents 6 and 7 came to the house of the

Revision petitioners on 14-9-2011 at 1.00 p.m. and informed them that the 5th respondent called upon them to appear before the Police Station and that the Revision petitioners represented that they would come in their vehicle.

Accordingly, the Revision petitioner went to the Police Station and on seeing them, the 6th respondent provoked and abused in vulgar language with abusive words mentioned in the complaint and beat the 1st Revision petitioner and on that the 2nd Revision petitioner questioned 6th respondent as to why he was beating the 1st Revision petitioner and then the 6th respondent also scolded with abusive words in the same unparliamentary language and hit her on her left cheek and thereby the 6th to 10th respondents raising with vulgar language abused them and pulled the burakha of the 2nd

Revision petitioner rashly thereby 5th to 10th respondents took them by beating them with their hands and legs and retained them in open room in front of the lockup room and the 5th respondent detained them unlawfully till next day morning due to which the 2nd Revision petitioner fell unconscious due to the injuries thereby to save their skin, they falsely created false story, registered a case in Crime No.105/2011 for the offences u/ss 448, 354, 334, 323 and 506 I.P.C. and produced them before the Hon’ble Judicial

Magistrate of First Class, Atmakur and they were sent to judicial custody.

Hence, the private complaint is filed under the above sections of law against all the accused. On enquiry, the learned Magistrate passed the impugned  4  order with erroneous findings that the respondents 1 to 4 committed offences u/ss 420, 506 and 509 I.P.C. and 6th respondent u/ss 323, 506 and 509 I.P.C., against respondents 7, 8 and 10 only u/s 323 I.P.C. and dismissed the complaint against the respondents 5 and 9 u/s 203 Cr.P.C. without considering the prima facie evidence available on record against them.

3) Heard both sides.

4) The point for determination is whether the Revision petitioners are entitled for the relief as prayed for and whether the Order of the Trial Court is sustainable?

5) POINT:-

As seen from the record, based on the private complaint filed by the

Revision petitioners against A-1 to A-10 u/ss 325, 327, 341, 342, 354, 357, 406, 418, 420, 426, 427, 506, 509 I.P.C. r/w sec.34 I.P.C., the learned

Magistrate recorded the sworn statements of PWs.1 to 3 and came to a

conclusion that there is prima facie case against A-1 to A-4 for the offences u/ss 420, 506 and 509 I.P.C. and there is prima facie case against A-6 u/ss 323, 506 and 509 I.P.C. and there is prima facie case u/s 323 I.P.C. against

A-7, A-8 and A-10 and dismissed the complaint against A-5 and A-9 as there are no allegations made out prima facie against A-5 and A-9 for any offences alleged in the complaint and the learned Magistrate also observed that though the accused A-6 to A-8 and A-10 are police personnel, the acts alleged against them are not within the purview of discharging of their official duties and hence, sanction u/s 197 Cr.P.C. is not necessary to take cognizance against them. Admittedly, A-6 to A-8 and A-10 did not prefer  5  any revision or appeal against the Orders of the learned Magistrate except the present Revision filed by the Revision petitioners aggrieved upon the dismissal order against A-5 and A-9 for not taking cognizance against them on the ground that there is prima facie case made out against them also along with the other accused against whom the cognizance was taken by the learned Magistrate.

6) At the time of arguments, the learned counsel for the Revision petitioners brought to the notice of the Court with regard to prima facie evidence against A-5 and A-9 also in the evidence of PWs.1 to 3. But the learned counsel for the respondents 5, 9 and 10 on the other hand supported the Order of the Lower Court by contending that there is contradictory evidence in between PWs.1 and 2 and that PW-3 is not an eye witness to the incident and prays to dismiss the Revision petition by confirming the Order of the Lower Court.

7) As seen from the evidence on record, PW-1 Sk. Rizwan clearly stated at the bottom of page No.3 and page No.4 as follows— “When my wife entered into the premises to the Police Station, A-6/ Rajagopal came upon my wife torn Burakha of my wife. Then I intervened. For that the said Rajagopal abused her in filthy language. … … … Torn the additional burakha of my wife from her face and torn the burakha. When I intervened, he also abused me in filthy language … … … and fisted on my face. Then other police constables Vijaya Kumar, Chennakesavulu, Lakshmaiah, Women Police Constable Sahira Munnisa including Rajagopal rounded us, they pushed us on the ground, kicked with hands and legs and dragged us on the floor in the presence of Trainee S.I. P.Suresh. The said Trainee S.I. also followed the said constables by saying … … … (filthy language). A-6 who is woman constable while my wife sitting on the bench in police station, she beat my wife on her knees with her legs; by that time, my wife undergone knee operation. Police detained me and my wife on the entire night by abusing in filthy language. For that, myself and my wife humiliated and suffered mental agony. These acts were committed by A-5 to A-10 with the influence of A-1 to A-4.”  6 

PW-2, the 2nd Revision petitioner Shaik Shanawaz also stated in her evidence as follows— “By the time A-7 to A-10 along with A-6 surrounded us, pushed PW-1 and me on the ground and dragged into the police station by beating us with their hands and legs. They abused me and PW-1 in filthy language … … … and thrown us in a room while A-6 to A-10 were beating us, the Trainee S.I. Suresh came to the said place. He also abused us in filthy language.” She further deposed that at the instance of A-1 to A-4, all the above said acts were committed by A-5 to A-10. As seen from the above evidence of PWs.1 and 2, it is crystal clear that there is prima facie evidence against A-5 and

A-9 also to take cognizance along with other accused shown in the complaint against whom the learned Magistrate has taken cognizance based on the self same evidence of PWs.1 to 3. Hence, the Order of the learned

Magistrate for not taking cognizance against A-5 and A-9 is unsound and

illegal and shall be rectified in the present Revision; directing the learned

Magistrate to take cognizance against A-5 and A-9 also in view of the prima

facie evidence available against A-5 and A-9 also. Accordingly, the Order of the learned Magistrate is liable to be set aside.

8) IN THE RESULT, the revision petition is allowed. The learned

Magistrate is directed to take cognizance against A-5 and A-9 also along

with the other accused and directed to proceed against A-5 and A-9 also along with the other accused in accordance with law.

Dictated to the Senior (Personal) Assistant, transcribed by him,

Corrected and pronounced by me in Open Court, this the 16th day of MAY, 2013.

PRL.SESSIONS JUDGE,

Nellore.