Sri M.Srinivasa Chary

BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-COURT OF

THE XXVII ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT, AT SECUNDERABAD.

Present : M. SRINIVASA CHARY,

XXVII Addl. Chief Judge

FRIDAY, 30th DAY OF JULY, 2021

M V O P. NO. 194 OF 2017

Between:

1. Master Moksh Prasad

2. Sushma Ramchandani --Petitioners.

A N D

1. Shwetabh Kumar

2. Penumetsa Ajay Kumar Raju

3. ICICI Lombard General Insurance Co. Ltd. rep. by its Regional Manager --Respondents.

This O.P is coming before me for final hearing in the presence of Sri E.Balakrishna, Advocate for the petitioners and of Sri G. Raj Kumar, Advocate

for respondent 3 and of Sri Vishnu Vardhan Reddy, Advocate for respondent

No.1 and respondent No.2 remained ex-parte and the matter having been heard and stood over for consideration till this day, the Court delivered the following :

J U D G M E N T

1)In this petition under Sec.166 of the M.V. Act 1988 and Rules 455/1B of A.P.M.V. Rules, 1989 the son and mother of the deceased – Soni Ramchandi, claimed compensation of Rs.2,00,00,000/- together with interest @ 12% per annum from the date of petition till realization for the loss of her life in a road accident that took place on 26.03.2015.

2)In brief, the averments of the petition are as follows:

i)On 26.03.2015, at about 21.00 hours, the deceased-Soni Ramchandi was proceeding as a rider alongwith her son-Moksh and husband-Harish Prasad as rider on Motor Cycle bearing No.AP 28 DE 5461 from Outer Ring Road side towards Gachibowli, Hyderabad with great care and diligence on extreme left side by following traffic rules and on the way when they reached near Women Police

Station, Gachibowli Junction, they stopped motor cycle at red signal and waiting for green signal. Meanwhile, the driver of one Skoda Car bearing No. TS 09 EC 9599 drove it in a rash and negligent manner with high speed and without following traffic rules, lost control, while proceeding in the same direction and dashed motor cycle of the deceased from rear side and also dashed to other vehicles. As a result thereof, the deceased, her husband and son fell down on the road and sustained grievous injuries. Immediately, after the accident, they were shifted to Himagiri Hospital for treatment. On 27.03.2020, the deceased succumbed to injuries at 1.38 hours whereas, her husband-Harish Prasad was shifted to Apollo Hospital, Jubilee Hills, Hyderabad for better treatment and he too died of injuries while undergoing treatment on 04.04.2015.

ii)In this regard, the SHO, PS Gachibowli registered a case vide Crime

No.108/2015 under Sec.304(A), 337 of IPC and Sec.184 MV Act against the driver of the offending vehicle.

iii)The deceased was hale, healthy and was aged about 36 years as on the date of premature death. She was working as a LEAD ETA in Infosys Limited,

Hyderabad and earning a sum of Rs.1,23,876/- per month, which she was contributing for the maintenance of the petitioners. As a result of sudden death, the petitioners suffered lot of mental agony and they lost income source and became destitute as there is no other source of income to them and they are totally depending on the earnings of the deceased. They lost their future life with the deceased, her love and affection and petitioner No.1 became orphan.

iv)R1 is the Driver-cum-Owner (as per RC), R2 is Owner and R3 is

Insurer of offending vehicle, as such all of them are jointly and severally liable to pay the compensation to the petitioners.

3)R1-Driver filed counter denying the averments of the petition and contending interalia that :-

i)The 2nd respondent has sold the offending vehicle bearing TS 09 EC 9599 to the 1st respondent, who is the driver and owner of the said vehicle at the time of accident and holding the required driving license to drive the same. The 2nd respondent has taken insurance policy from the 3rd respondent insurance company. The said insurance policy is in force by the date of accident and therefore, the 3rd respondent would be liable to pay compensation, if any, awarded by this Tribunal. The 1st respondent is not liable to pay compensation to the claim petitioner since insurance against third party is compulsory, and once the insurance company had undertaken liability to the third party, the third party’s right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy.

ii)The object behind the MV Act was that third party right should not suffer on account of failure to comply with those terms of the insurance policy, whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. Therefore, the claim petitioner against the 1st respondent is liable to be dismissed. The claim of Rs.2,00,00,000/- and interest @ 18% per annum by the claim petitioners is highly excessive and exorbitant. The claim petition has no cause of action against the 1st respondent.

Hence, prayed to dismiss the petition against him.

4)R2-Owner of the offending vehicle (as per policy) remained ex parte.

5)R3-Insurer filed counter denying the averments of the petition and contending interalia that :-

i)R3 denies the interest of Sri Penumetsa Ajay Kumar Raju &

Shwetabh Kumar in vehicle Skoda Laura Motor Car bearing No. TS 09 EC 9599 was insured with this respondent at the material time, unless further and better particulars regarding the insurance are disclosed by the petitioners. The petitioners may cause the owner of the offending vehicle to be directed to produce and prove the policy of the insurance failing which, it shall be presumed that this respondent is not the insurer in the instant case and the name of this respondent should be expunged from the case with compensatory costs.

ii)The person driving the offending vehicle has “no relation in force” as on the date of the accident to drive the vehicle.

iii)The driver of offending vehicle was not holding a valid and effective driving license at the time of the accident and further was not qualified for holding or obtaining such driving license and further has not satisfied the requirements of the Rule 3 of the Central Motor Vehicles Rules, 1989. The R1 willfully and knowingly has driven the vehicle without possessing valid and effective driving license as on the date of the accident, therefore, has contravened the provisions of MV Act and the Rules framed thereunder and has committed the breach of the contract and violated the terms and conditions of the policy. Hence, in view of the above stated willful breach of contract made by the respondents 1 and 2, they alone are liable to pay the compensation to the petitioners.

iv)This respondent seeks protection under the Sec. 147 and 149 of

MV Act. As per Sec.134 (c) of MV Act, 1988, it is mandatory duty of

R2/insured to furnish the particulars of policy, date, time and place of accident, particulars of deceased and the name of the driver and particulars of the driving license, which has not been complied with by R2. The SHO Gachibowli

Police Station has failed to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, as per Sec.

158(6) of MV Act, 1988.

v) The petitioners claimed interest @12% which is highly excessive and same is contrary to Sec. 3 of Interest Act, 1978 and the observations of the various judgments of the Hon’ble Apex Court. The petitioners are not entitled to claim any interest on non-pecuniary damages as per the observations of the Judgment of the Hon’ble Apex Court.

vi)The alleged accident took place due to sole negligence on the part of the deceased only, who rode his Bajaj Platina Motor Cycle bearing No. AP 28

DE 5461 in a rash and negligent manner and completely came towards wrong side and as per the rough sketch of the scene of offence, the alleged accident took place in the middle of the road in opposite direction, which clearly shows that there was gross negligence on the part of the deceased only to cause the alleged accident and his negligence may be considered into at greater extent and if the petitioners are entitled to any compensation, it is also payable by the owner and insurer of the Bajaj Platina Motor Cycle and the owner and insurer of the said Bajaj Platina Motor Cycle bearing No. AP 28 DE 5461 are also proper and necessary parties to the proceedings, but the petitioners failed to make them as parties and it is very bad in law for non-joinder of necessary parties and the present claim petition is liable to be dismissed on this sole ground and this respondent is not liable to pay any compensation to the petitioners.

vii) It is the bounded duty of the owner/insured (transferee) to inform the transfer of ownership to another person within fourteen days from the date of transfer in prescribed form to the insurer for making necessary changes in regard to fact of transfer in the certificate of insurance and the policy described in the certificate as per Sec.157(2). Therefore, this respondent shall not be fastened the liability.

viii) The petitioners have to prove that they are the only legal heirs to the estate of the deceased and that there are no other legal heirs to the estate of the deceased by filing legal heirs certificate issued by the competent authority and further they have to prove that they are dependents on the earnings of the deceased as otherwise they are not entitled for any amount of compensation.

ix) The petitioners may be directed to furnish the details of PAN No.,

NEFT Form and KYC Details, which may be required as per the provisions of the IT Act.

x) As per Sec.128 of the Motor Vehicle Act, 1988, wearing of protective head gear by those riding two wheeler is must. The section specifically states that every driver and pillion rider of a motor cycle of any class or description shall wear a protective gear. In this case, the deceased died during treatment due to injuries including head injury and the deceased was driving the Bajaj Platina Motor Cycle without wearing the head gear/helmet, which is mandatory as per above Section. The deceased did not take proper precautions and violated the terms and conditions of the MV Act, as such he had contributed to the alleged accident. Hence, this respondent is not liable to pay any compensation to the petitioners.

xi) This respondent craves for leave of this Tribunal to take all defenses available to R1 under Sec. 170 of MV Act and contest the case on all the grounds apart from those specified under Sec. 149(2) of MV Act.

xii) The amount of Rs.2,00,00,000/- with interest and costs claimed by the petitioners, is more excessive, exorbitant and exaggerated and they are not entitled for the same from this respondent. Hence, prayed to dismiss the petition with costs.

6)On the strength of the above pleadings, the following issues have been settled for trial :-

1) Whether the accident occurred was due to the rash and

negligent driving of the Car bearing No.TS 09 EC 9599?

2) Whether the petitioners are entitled to compensation and

if so from whom and what quantum of amount ?

3) To what relief ?

7)On behalf of petitioners, PWs 1 to 3 examined and Exs.A1 to A12 and

Exs.X1 to X3 marked. Whereas on respondents, RWs 1 and 2 examined and Ex.B1 and Exs.X4 to X8 marked.

8)Respondent No.3 filed written arguments. Heard and perused the record.

9) ISSUE NO.1 :-Whether the accident occurred was due to the rash and negligent driving of the Car bearing No.TS 09 EC 9599?

i)It is well known that in a case relating to MV claims the claimants are not required to prove the case as it is required to be done in a criminal trial. Since the claim petition is filed under Sec.166 of MV Act 1988 the claimants are supposed to prove the rash and negligent act of the driver of the offending vehicle. It is well established principle of law that the roving inquiry, to prove rash and negligence on the part of the driver is not required. In Kaushnumma Begum and others Vs. New India Assurance Company Limited 1, it was held that “the issue of wrongful Act or omission on the part of the motor vehicle involved has been left to a secondary importance and mere usage or involvement of Motor vehicle in causing bodily injuries or a death of human being or damage to property would make the petition maintainable under sec.166 and 140 of the Act. ” ii)In this backdrop, now I shall appreciate the evidence on record. The evidence of PW1-Sushma Ramchandi, mother of the deceased- Soni Ramchandani filed her evidence in the mode of affidavit as required under Order XVIII Rule 4

CPC in lieu of examination-in-chief, which is nothing but reiteration of the substance of the claim petition in respect of the manner of the accident how it had taken place. Through her, Exs.A1 to A5 that are relevant for consideration of this issue have been marked which are certified copies of FIR with report, charge sheet, inquest, PME report and Report of MVI are marked.

1) 2001 ACJ 421 SC ii)In her cross-examination, she admitted that she is not eye witness to the accident. Therefore, what all she did depose in regard to the manner of accident how it had taken place is nothing but hear-say and not useful to consider the factum of rash or negligent driving on the part of R1. However, the petitioners relied upon the evidence of PW2-V.Raju, an eye witness to the accident.

iii)The evidence of PW2 would show that on 26.03.2015, at about 9.00 pm, he was proceeding as a driver in Innova Car bearing No. AP 09 BF 317 alongwith the inmates from Natkafarama, Mekaguda Village towards Miyapur, on the way, when he reached Women Police Station, Gachibowli Junction he stopped his Innova at red signal and awaiting green signal. Meanwhile, the driver of one Motor Cycle bearing No.AP 28 DE 5461 alongwith his wife and son came and one Honda City and other vehicle also stopped there. Meanwhile, the driver of a Skoda Car bearing No. TS 09 EC 9599 drove it in a rash and negligent manner with high speed and without following traffic rules while proceeding in the same direction hit to the motor cycle and other vehicles from rear side and Honda City Car hit to his Innova car. As a result thereof, the rider of motor cycle, his wife and son fell down and sustained grievous injuries.

Immediately, they were shifted to Himagiri Hospital for treatment. On 27.03.2015, at 01.38 hours, Sony Ramchandani W/o Harish Prasad died while undergoing treatment. Whereas, deceased-Harish Prasad died of injuries on 04.04.2015 in Apollo Hospital.

iv)R1-Driver of the offending vehicle though filed counter and subjected PW2 to cross-examination, yet did not lead any evidence in support of the support of the plea he took in the counter. As such what all R1 contended in his counter is of no use in-as-much as in the absence of evidence any amount of pleading would not serve any purpose.

v)R3-Insurer in support of its evidence examined RW1-A.Anupriya,

Legal Manager of R3. Her testimony would show that R1 in a drunken state drove the car and caused the accident as it is clear from Charge Sheet that R1 hit more than four vehicles at traffic signal as such, R3 is not liable to pay any compensation. In addition to that Skoda Laura Car is of five seater car i.e. 4 + 1 whereas in the charge sheet it has been mentioned that in total six members were travelling including the driver (R1) which is against rules of the Motor

Vehicle Act and terms and conditions of the policy, as such R3 is not liable.

However, R3 did not dispute the fact of issuance of Ex.B1-Attested copy of

Policy.

vi)R3 also examined as RW2, J.Ramesh Kumar, Inspector of R.C.Puram

P.S. His deposition would show that he filed charge sheet, as per investigation done by him, R1 is the software employee and owner and driver of offending vehicle is charged with offence under Sec.304(a) IPC, 337 IPC and Sec.134 & 184 of M.V. Act. According to him, R1 was in drunken condition while driving and he was over speeding the vehicle. The statements of witnesses recorded by him do speak the said fact. They are marked Exs.X1 to X5. During the course of such incident, R1 also had dashed to Honda City Car bearing No.TS 07 KT/R 7315 and Bajaj Platina Motor Cycle bearing No. AP 28 DE 5461 belonging to the deceased-Harish Prasad. After accident, R1 left the vehicle and fed away. His evidence further discloses that the statements of witnesses clearly establish the fact that R1 was driving with speed of 150 kmph. He did not bring down the speed even after the inmates warned him to slow down the vehicle as they are approaching the junction and that he did this tortious in intoxicated stage.

vii)In the cross-examination of PW2, no material of whatoever that impeaches his credibility either to doubt his presence at the spot or to hold that he is planted witness, is brought out. Moreover, even according to R3-Insurer,

R1 in an inebriated condition had driven the offending car in a rash and negligent manner with a speed of 150 kmph caused the accident. To disbelieve testimonies of PW2, RW1 and RW2, no material of whatsoever is brought out by R1-Driver/Owner of offending vehicle and that he maintained silence without leading any evidence or without subjecting the Rw2 to cross-examination. The statements under Exs.X1 to X5 recorded by RW2 during the course of investigation under Sec.161 CrPC are indeed admissible in the matters of claim petitions under MV Act as our Hon’ble High Court in Bontu Venkata Rao v.

Kalla Venkataramana and another 2 was pleased to hold in para No.5 as under :- “5. Obviously, the vehicle i.e., a Bajaj chetak scooter bearing No. AP 5A 8470 that is said to have been involved in the accident belongs to the 2nd appellant. The vehicle in this case was not seized by the police on the spot. Four days after the accident it was 2) 2003 (3) ALD 314 seized. The 2nd appellant - the owner of the vehicle has not filed an independent written statement resisting the claim of the 1st respondent - claimant. Instead, he adopted the counter filed by the 1st appellant who denied the factum of accident and driving the scooter by him at the appropriate time. Consequently, there has been no gainsaying about the fact that the scooter involved in the accident indeed was Bajaj chetak scooter bearing No. AP 5A 8470. As can be seen from the evidence on record, the 1st appellant was proceeded against by the investigating agency for the accident and was prosecuted before the Court of the Sub-Divisional Magistrate, Rampachodavaram in C.C. No. 63 of 1991. As can be seen from Ex.B2, the criminal case ended in acquittal giving benefit of doubt to the accused. The contention that Ex.A1 - certified copy of the first information report does not contain the name of the driver of the scooter, Ex.A3 - certified copy of the inquest report does not contain the name of the driver of the scooter and there has been no reference in Ex.A5 - Photostat copy of the Motor Vehicle Inspector's report is of no consequence. Ultimately having regard to the fact that immediately after investigation charge-sheet was laid under Ex.B.3, the absence of the name inter alia in the said documents always and in all circumstances is a matter of appreciation by the Court and it cannot be a decisive factor to conclude that the 1st appellant was not the driver of the scooter at the appropriate time. True, the criminal case ultimately ended in acquittal. The finding of the criminal court is certainly not binding upon the tribunal. As can be seen from Ex.B2, as afore discussed, the criminal court found the accused not guilty by giving benefit of doubt for paucity of evidence and on account of the fact that the crucial witness viz., the claimant could not identify the scooterist. There has been no positive finding given by the trial court that the 1st appellant was not the driver of the vehicle at the appropriate time. It may be reiterated here that there has been no gainsaying of the fact that the vehicle involved in the accident in which the wife of the claimant was dashed against and died was Bajaj chetak bearing No. AP 5A 8470, the owner thereof is obviously the 2nd appellant. It appears he was examined during the course of investigation by the investigating agency and a statement was recorded by the investigating agency from him. The certified copy of the said statement was marked in this case as Ex.A6. Unfortunately the 2nd appellant has not chosen to come into the witness box to deny the involvement of his scooter in the accident and further to deny the statement purported to have been recorded by the investigating agency from him. The contention that since it is in the nature of previous statement its user is for corroboration of the maker and it cannot be treated as a substantive piece of evidence merits no consideration for the mere reason that there is no statement given on oath by the 2nd appellant before the Court in which event Ex.A6 would have been relegated to the status of a previous statement. Although the said statement was recorded by the investigating agency under Section 161 of the Code of Criminal Procedure and its user is limited for the purpose of contradicting the witness in view of the express prohibition contained in Section 162 of the Code of Criminal Procedure, such a bar is not there when the statement is used in the civil proceeding. The bar engrafted under Section 162 of the Code of Criminal Procedure applies only to a criminal trial when a person whose previous statement has been recorded by the investigating agency is examined as a witness. Therefore, Ex.A6 statement can be relied upon since there is no legal prohibition. In this statement the 2nd appellant is said to have squarely admitted that the scooter, which involved in the accident, was driven by the 1st appellant - his brother. Having regard to the non-examination of the 2nd appellant coupled with Ex.A6 I am of the considered view that the finding of the tribunal that appellant Nos.1 and 2 are responsible being driver and the owner of the scooter respectively is quite unassailable. Therefore, there is nothing to interfere with the said finding recorded by the tribunal.” viii) The R3-Insurer no doubt had taken certain defence in the counter that there was contributory negligence on the part of the deceased as neither himself nor his wife or his son wear the helmet. But, contrary to the same, R3 lead the evidence of RW2 attributing the negligence on the part of the R1-

Driver. Thus, R3 appears to have taken inconsistent defence. Nevertheless, non- wearing of helmet by the deceased, his wife and son perse does not amount to negligence on their part in causing the accident and said fact has no proximity with the accident. In this respect. it is not out of place to mention here the authority of the division bench of Kerala High Court in P.J.Jose and

MVOP 194 OF 2017 others v. Vanchankal Niyas and others 3has held that an accident arising out of non-wearing of helmet does not lead to an inference to the case of contributory negligence. It was held therein as under:

“we find it difficult to agree with the proposition that non-wearing of ‘helmet’ though an offence under the relevant provisions of the MV Act, could be taken as a ground to fix contributory negligence on the part of the rider. What is to be considered with regard to the apportionment of negligence is whether the party concerned had any role / part in causing or contributing to the accident. In other words, the consequence pursuant to the `accident is not a circumstance to be weighed for fixation of negligence in causing the accident. With regard to the non-wearing of helmet and resultant death because of the head injury, it is only ‘consequence’ after the accident. Because of the non-wearing of ‘Helmet’, the injury sustained to the head became fatal, leading to the death of the deceased.”

The bench further added :- “it is true that, had the deceased being wearing ‘Helmet’ probably his life could have been saved and the gravity of the injury would not have been this much severe, to have resulted in the death of the decease. But, the consequence because of the non-wearing of ‘Helmet’ was not the reason for knocking down the rider of the motor cycle by the driver of the jeep. Which was coming from the opposite side and this being the position, negligence cannot be fixed on the shoulders of the rider of the vehicle merely for not wearing the ‘Helmet’.

ix)Be that as it may, the evidence on record, is consistent, cogent and reliable to believe that the accident in question had taken place on account of the rash and negligent driving of the offending car by R1. Accordingly, I conclude this issue in favour of the petitioners.

9) ISSUE NO.2 :- Whether the petitioners are entitled to compensation and if so from whom and what quantum of amount ?

i)The petitioners relied upon Ex.A4-PME of the deceased wherein the

Medical Officer, who held autopsy opined the cause of the death to the best of his knowledge and belief was “due to head injury ”. Thus, the petitioners have been able to prove the fact that the deceased died on account of the injuries he received in the fatal road accident that took place on 23.03.2015. As such the petitioners being the legal heirs of the deceased are entitled to receive compensation for the loss of the life of the deceased.

ii)Now the point remains for consideration is the quantum of compensation to be awarded to the petitioners. The proper method of computation is the multiplier method. Basically, three aspects need to be established by the claimants for assessing the compensation in case of death are (1) Age of the deceased, (2) income of deceased and (3) number of Dependents.

The issues that have to be determined by the Tribunal to arrive at the loss of

3) MACA No.2482/2009

MVOP 194 OF 2017 dependency are i) Additions/ Deductions to be made for arriving at income, ii) The deductions to be made towards personal living expenses of the deceased, iii) The multiplier to be applied with reference to the age of the deceased.

iii)Coming to the age of the deceased is concerned, according to PW1 the deceased was 36 years old by the date of accident. Same age is recorded in

FIR, Inquest and PME. Disputing the age of the deceased, R3-Insruer did not lead any evidence. Consequently, I hold that the deceased was aged 36 years as on the date of accident.

iv)Coming to the income of the deceased is concerned, according to

PW1, she was working as LEAD ETA in Infosis Ltd. Hyderabad and thereby earning

Rs. 1,23,876/- per month and thus, relied upon Exs.A8-Original Offer Letter issued by Infosys, Ex.A9-Original pay slip issued by Infosys, Ex.A10- Original

Participation/Excellent Certificate (8 Nos) issued by Infosys, Ex.A11- Original Bank

Statement of the deceased issued by ICICI. The petitioners examined PW2-

Rajashekhar Rao Bharahmarauthu, a Senior Faculties Manager in Infosys Ltd. at

Manikonda. He produced Exs.X1 to X3, which are Authorization dated 14.2.2019 in his favour, Ex.X2 is Appointment Letter of the deceased and Ex.X3 is Pay Slips of the deceased (7 Nos). His testimony would show that the deceased was their employee working as Lead Education and Research and 18.06.2017 till her death and that she was their permanent employee. As per pay slip for the month of

January, 2015 under Ex.X3, her gross salary was Rs.1,23,876/-. At the time of her death, she was in level ‘5’ and had she been alive she could have been promoted to

Level ‘6’. The increase of salary is based on personal performance of employee and performance of the company during such financial year. They used to pay salaries to the employees through bank. The salary amount was reflected in bank statement of the deceased under Ex.A11 in June, increment will be once in year, if there are any promotions salary will be increased. The bonus added for every three months as per quarterly details of the company. Ex.A8 to Ex.A10 are issued by their company. PW2 was subjected to cross-examination at length, but no material of whatsoever is brought out either to diminish his evidentiary value or to discard his testimony on the whole as not reliable. However, reference is made to pay slips under Ex.X3. They are, pay slip for the period from 01.09.2014 to 30.09.2014 wherein the gross salary of the deceased is shown Rs.73,033/-.

Similar amount is mentioned in respect of pay slip for the period from 01.11.2014 to 30.11.2014, 01.12.2014 to 31.12.2014, 01.01.2015 to 31.01.2015 and

MVOP 194 OF 2017 01.02.2015 to 28.02.2015. Coming to pay slip for the month of October, 01.10.2014 to 31.10.2014, her salary is shown Rs. 1,13,707/- in pay slip for the month of January, 2015 from 01.01.2015 to 31.01.2015, her gross salary is shown Rs.1,23,876/-. Whereas, coming to the pay slip of March 01.03.2015 to 31.03.2015, her gross salary is shown Rs.75,589/-. Referring to pay slip for the month of January, 2015, the learned counsel for petitioners submits that gross salary of the deceased was Rs.1,23,876/-, which is to be taken consideration as she was getting performance bonus for every three months and to justify his submission, he has taken aid of the evidence of PW2 in whose chief-examination, he spoke that the bonus added for every three months as per quarters results of the company. On the other hand, the learned counsel for R3-Insurer strenuously opposed the submission of the learned counsel for petitioners and contended that the bonus cannot be taken into consideration as salary. Moreover, his further submission is that such bonus is not being received by the deceased every month.

Therefore, his endeavor is that in the event this Court comes to the conclusion that the deceased was an employee of Infosys, her monthly income to be taken into consideration is @ Rs.76,033/-, which is reflected in many of the pay slips.

v)I have carefully looked into the pay slips referred to above. The pay slips under Ex.X3 are from September, 2014 to 2015 (for seven months out of year) rest of the 5 pay slips have not been filed by the petitioners inspite of granting sufficient opportunity. Moreover, the deceased for all the seven months had received Rs. 4,051/- as bonus, exagretia advance payment, which appears to have been received by her regularly. Therefore, the said amount need not be excluded from the gross earnings. Nevertheless, in so far the performance bonus of Rs.40,674/- found in pay slip for October, 2014, Rs.50,843/- found in January, 2015, and annual bonus of Rs.2,556/- found in pay slip of March, 2015 they are not appeared to have been received by the deceased for every month. No doubt

PW2 stated that for every three months bonus will be added but only under two pay slips such bonus is shown to have been received. Had the petitioners made an attempt to bring on record the rest of the pay slips this Tribunal could have an opportunity to determine and assess the yearly income of the deceased on the strength of the pay slip, but for the reasons best known to the petitioners, they could not bring them on record. In the absence of such five pay lips this Tribunal is unable to accept the contention of the petitioners to hold that the monthly earnings of the deceased was Rs. 1,26,876/-, Rs.1,13,707/- and Rs.75589 as

MVOP 194 OF 2017 found in pay slip for the month of October, 2014, January, 2015 and March, 2015.

However, this Tribunal feels it proper to determine her gross monthly income of

Rs.76033/- which is found in many of the pay slips as gross monthly income. It is seen from the last pay slip i.e. March, 2015, a sum of Rs.200/- plus Rs.703/- is shown to have been deducted from the gross salary of the deceased towards professional tax and income tax. Thus, from Rs.73033/-, Rs.903/- is liable to be deducted. After such deduction, the monthly income of the deceased is proved to the tune of Rs.72,130/-.

vi)Coming to the factum of dependency on the deceased is concerned, admittedly the 1st petitioner is her son and 2nd petitioner is her mother, who appears to be widow as in the cause title her husband name is recorded late

Hariram Ramchandani, therefore, both the petitioners are held to be the dependents of the deceased.

vii)In-as-much as, the monthly income of the deceased is proved to the tune of Rs.72,130/-, in the light of the pronouncement of the Hon’ble Apex Court in National Insurance Company Limited v. Pranay Sethi and other s 4, 50% addition is to be made to her existing income as PW3 stated that she is a permanent employee. Then her established income per month would arrive to the tune of

Rs1,08,195/- (Rs.72,130/- + Rs.36,065/-). Then her yearly income would work out to Rs.12,98,340/- (Rs.1,08,195/- x 12 months). Since the deceased had two dependents, in the light of the authority of the Hon’ble Supreme Court in the matter of Smt. Sarla Varma and others v. Delhi Transport corporation and another5, 1/3rd of her yearly income needs to be deducted towards her personal living expenses. Then her contribution to the family would work out to

Rs.8,65,560/ (Rs.12,98,340/- - Rs.4,32,780/- (@ 1/3rd ). As the deceased was proved to be 36 years old, the multiplier ‘15’ is applicable to the age group of 36 to 40 years. Then, the loss of dependency would work out to Rs.1,29,83,400/- (Rs.8,65,560/- x 15M). This apart, the 1st petitioner is entitled to receive

Rs.44,000/- towards parental consortium. Further, the petitioners are entitled to receive Rs.16,500/- for the loss of estate and Rs.16,500/- for funeral expenses.

Thus, in all a sum of Rs.1,30,72,400/- is awarded towards “just and fair” compensation, which is shown in the table below:- 4) 2017 (3) L.S 44 (S.C)

5) III (2009) ACC 708 (SC)

MVOP 194 OF 2017

1) Loss of dependency Rs.1,29,83,400-00

2) Parental Consortium Rs. 44,000-00

3) Loss of EstateRs. 16,500-00

4) Funeral ExpensesRs. 16,500-00

5) Medical ExpensesRs. 12,000-00 TOTAL Rs.1,30,72,400-00 viii) Now the last point that needs to be considered is regarding the liability of which respondent to compensate the petitioners. R3-Insurer examined

RW1-A.Anupriya, Legal Manager of R3. Her deposition would show that their company issued a policy No. 3001/96996186/00B00 in favour of the offending vehicle i.e. Skoda Laura Car bearing No. TS 09 EC 9599 in the name of R2 to cover the risk of third parties subject to certain terms and conditions mentioned therein.

Ex.B1 is the attested copy of the policy. Her evidence further reveals that offending vehicle was originally belonging to Penumetsa Ajay Kumar Raju (R2).

Subsequently, he might have sold the same to R1, who is its driver at the time of accident. Thus, as per Sec. 157 of MV Act, it is bounden duty of the new registered owner to intimate the same to insurance company within 14 days of such change of ownership and get the insurance transferred in his name, but the respondent No.1 failed to do the same therefore, no liability could be fastened upon R3.

ix)Moreover, her evidence further goes to show that the policy issued was subject to the terms and conditions. As R1 was driving the said vehicle in drunken state as it is revealed from Ex.A2-Charge Sheet that he did so. Moreover, the contents of the charge sheet further discloses that R1 hit more than four vehicles that were stationed at traffic signal awaiting signal. Therefore, this respondent is not liable to indemnify. Her evidence further discloses that as per

Ex.A2-charge sheet R1 was in over speed of 150 kmph in drunken state over took many vehicles by shouting in drunken condition without listening the warnings of the inmates and committed the offence. This apart, the offending vehicle was having capacity of 4 + 1, but six members were travelling therein, which is against

Motor Vehicles Rules and terms and conditions of the policy.

x)The R3 also examined RW2-J.Ramesh Kumar, Inspector of RC Puram

PS. His evidence would show that he is IO, who filed charge sheet after arresting the R1. Exs.X4 to X8 are the statements of the witnesses/inmates of the offending vehicle at the time of accident recorded by the learned Magistrate under Sec.164 CrPC. His investigation findings are that during the incident, R1

MVOP 194 OF 2017 dashed to Honda City Car bearing TS 078 AT/R 7315 and Bajaja Platina motor cycle bearing No. AP 28 DE 5461, which belongs to deceased by name Soni

Ramchandani and her husband Harish Prasad. After the accident, the driver left the vehicle, fed away and thereby committed the offence Sec.134 of MV Act. His investigation further reveals that R1 was driving the car with 150 kmph by the time of accident. In cross-examination of PW2, it has been brought out that he did not file medical report to show that accused was in drunken state at the time of accident and provision under Sec. 185 of MV Act even is not mentioned in charge sheet. Therefore, this Tribunal cannot conclude that the evidence spoken to by PW2 is conclusive in respect of the fact that the R1 was in drunken state at the time of accident. Nevertheless, the intention behind the user of motor cycle in causing the accident is immaterial to decide a claim application under Sec. 166 MV

Act and even in homicidal death besides criminal intention there is element of rash and negligence as it was held in a decision relied upon by the petitioners in Manju and others v. Srinivasa 6 in Paras 12, 13, 14, his lordships was pleased to hold as under :-

12. Under Sec. 165 of the Act, Tribunals are constituted to adjudicate upon claims for compensation in respect of accidents involving the death of or bodily inury to persons arising out of the use of motor vehicles. The intention of user of motor vehicle is not relevant to decide a claim petition filed under section 166 of the Act. It is needless to state that Motor Vehicles Act is a species of law of torts enacted to provide compensation to injured/victims of tortious liability, arising out of use of motor vehicle. The tort is a civil wrong independent of contract. The facts producing it may or may not also constitute an offence punishable by public authority. The same set of circumstances will, in fact from one point of view, constitute a tort, while, from another point of view, amount to a crime.

13. the learned counsel for insurance company would submit that in the absence of proof of rash and negligent act, insurance company cannot be called upon to satisfy liability though such liability had arisen by user of motor vehicle on public road.

14. In my considered opinion, this submission is not tenable. An act may be a tort or a crime. An act may give rise to civil or criminal liability. If tort is made punishable under penal code, it does not absolve tort feasors of their liability under common law. In order to claim damages under Sec. 166 of the Act, it is not necessary to prove that there was no criminal intent user of motor vehicle.” xi)This Tribunal has already on the strength of the evidence of PW3, recorded a finding that mishap took place on account of the rash and negligent driving of the R1. But for the exoneration by the R3-Insurer, the evidence of RW2 appears to have been let in. The learned counsel for R3 vehemently argued that the evidence of RW1 and RW2 coupled with charge sheet and Sec.164 statements of witnesses marked under Exs.X4 to X8 clinchingly established the fact that R1

6) 2014 ACJ 1769

MVOP 194 OF 2017 was in drunken state and drove the offending vehicle as such on account of the violation of the conditions of the policy under Ex.B1, no liability of whatsoever much less liability of indemnity could be fastened upon R3 and thus, his endeavour is that R3 is to be exonerated and liability is to be fixed upon R1 and R2, who have to pay the compensation that may be awarded by this Tribunal.

xii)Per contra, the learned counsel for petitioners has strenuously resisted the submissions of the learned counsel for R3 on the ground that Insurer cannot take the exception of liability of indemnity merely on the ground that R1 and R2 violated the terms and conditions of the policy under Ex.B1 in the absence of any tenable material and when B4 covers third party risk which is applicable to the deceased at whose no fault, he lost his life in that ghastly incident. His endeavor is that R3 cannot be exonerated from the liability and indemnity. In support of his contention he has a judgment in the matter of Bajaj Alliaz General

Insurance Co. Ltd. v. Manju Devi and others7 in paras 31 to 37, the Hon’ble High

Court held as under :- “31. According to the material available on record, the second respondent-Insurance Company by examining RW.2 and marking Exs.X-1 and X-2 established that the driver of the Car was in inebriated state, at the time of accident, lost his control over the Car, on account of his intoxication, which is more than the permissible limit under Section 185 of Motor Vehicles Act; thereby, caused the accident. But, when we advert to the conditions of the policy, drunk and drive only exonerates the Insurance Company from payment of compensation in claims made by the owner or driver etc., but coming to third parties to the policy, as defined under Section 145G of Motor Vehicles Act, third party includes the Government within the definition of third party which is an inclusive definition. However, a person who was the Police Constable attending to duty at the time of accident is certainly a third party. Therefore, the deceased Yongender is not supposed to know whether the driver is in fit condition to drive the vehicle or drive the vehicle in an inebriated state. Even if there is any condition, that driving of a vehicle in intoxicated condition is violation of terms and conditions of the policy, still the Insurance Company is liable for payment of compensation. Undoubtedly, the policy contains clauses regarding eligibility to drive the vehicle by the driver, but the fit state of mind was not included in the eligibility of the driver, in the policy. Undoubtedly, when the driver is in inebriated state, certainly, his consciousness and senses will be impaired besides other ill-affects referred in Para 78 of State, Tr. P.S. (4th supra). Thus, the driver became unfit to drive the Car in such an inebriated state, but the Insurance Company is not liable to be exonerated from payment of compensation. Even otherwise, the inebriated state of driving of the car is not within the knowledge of the insured. Hence, handing over car to driver, who was in drunken state, does not arise. After amendment of Section 149 of Motor Vehicles Act, the Insurance Company cannot avoid its liability to pay compensation to third party.

32. Strangely, in the terms and conditions of the policy, marked as Ex.B-1, a specific term was included which permits the Insurance Company to pay and recover the compensation and the important note mentioned in the first page of the policy, is extracted hereunder for better appreciation: IMPORTANT NOTICE: The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicle Act, 1988 is recoverable from the insured.

7) 2015 ACJ 627

MVOP 194 OF 2017

33. The Insurance Company itself reserved its right to pay and recover the compensation in view of wider terms appearing in the certificate of Insurance, even if there is any violation of terms and conditions of the policy.

34. According to the settled law laid down by the Apex Court in Oriental Insurance Company Limited Vs. Nanjappan and others and in Swaran Singh (2nd supra), when the Insurance company pleaded that the terms and conditions of the policy are violated by the insured, the initial onus of proof is on the Insurance Company to prove such violation of terms and conditions of the policy, which amounts to fundamental breach of terms and conditions of the policy.

35. In Nanjappan and others (7th supra), the Apex Court held as follows: When there is a violation of terms and conditions of the policy, insurance company is held to be not liable, but insurance company has to pay the awarded compensation and recover the same from the insured by initiating the proceedings before the executing Court to protect and safeguard the interests of insurance company.

36. Even if there is any violation of terms and conditions of the policy, the Insurance company is under an obligation to satisfy the claim of third parties; since the liability of the Insurance Company during subsistence of the liability under the policy is statutory in nature and at best, the Insurance Company has to satisfy the compensation and recover the same from the insured.

37. If the position referred above is applied to the present facts of the case, in view of important note mentioned in first page of Ex.B-1 extracted above, the Insurance company is liable to pay compensation and recover the amount from the insured, but Insurance Company cannot avoid its liability totally on account of drunk and driving of the driver of new Skoda car bearing No.AP 09 BN T/R 5591. Hence, in view of the terms and conditions of the policy and in view of law laid down by the Apex Court consistently, we find that drunk and driving is not a ground to avoid liability to exonerate the Insurance Company from payment of compensation.” xiii) There is no dispute about the fact that the deceased was a third party and no where in Ex.B1-Policy such recital that in case of driver found in drunken state while driving vehicle, liability of indemnity of Insurer will be exonerated. In addition to the above, the deceased was not supposed to know whether the R1 was in fit condition to drive the vehicle or inebriated state. Even otherwise, no condition is there that driving of vehicle in intoxicated condition is violation of terms and conditions of the policy, still the R3-Insurer is liable for payment of compensation in-as-much as the policy under Ex.B1 that contains the clauses regarding the eligibility to drive the vehicle by driver but the fit state of mind was indeed not included in eligibility criteria. Moreover, the drunken state of the R1 at the time of accident is not within the knowledge of the Insured-R2 as policy still stands in his name inspite of the fact that the vehicle was purchased by

R1. For all the foregoing reasons, I am unable to fortify with the submission of the learned counsel for R3 to exonerate the R3-Insurer from the liability of Indemnity.

xiv) Therefore, R1 being the driver of the offending vehicle on account of his tortious act he is liable and R2-Insured in whose name by the date of accident policy existed is vicariously liable and R3-Insurer is liable to indemnify by virtue of

Ex.B1-Policy and accordingly, I hold that R1 to R3 are jointly and severally liable

MVOP 194 OF 2017 to compensate the petitioners. Accordingly, I answered this issue.

10) ISSUE NO.3: To what relief?

In the result,

i) the petition is allowed in part and an award is passed for a sum of

Rs.1,30,72,400/- with costs and interest @ 7.5% per annum from the date of petition till realization against respondents No.1 to 3 jointly and severally with a direction to them to deposit the said amount within one month from today.

ii)The compensation awarded is apportioned as under :-

a)The petitioner No.1 (minor son of the deceased) is entitled to receive

Rs.1,20,72,400/- and the same shall be kept in FDR on his name in any nationalized bank till he attains majority. The petitioner No.2 is permitted to withdraw interest thereon periodically for every three months to meet basic needs and for providing education to the petitioner No.1.

b) The petitioner No.2 (mother of the deceased) is entitled to receive

Rs.10,00,000/- and she is permitted to withdraw Rs.5,00,000/-.

iii)Rest of the compensation apportioned in favour of the petitioner

No.2 shall be kept in FDR on her name in any nationalized bank for a period of two years.

iv)Decree shall be drawn-up after payment of exempted court fee as per Order dated 22.06.2017 in I.A. No.958/2017.

v)Advocate fee is fixed at Rs.5,000/-.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 30th day of July, 2021.

CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL - CUM -

XXVII ACJ, CCC, SECUNDERABAD.

APPENDIX OF EVIDENCE

Witnesses Examined.

FOR PETITIONERS :-

PW.1 : Sushma Ramchandani PW.2 : B. Rajashekar Rao PW.3 : V.Raju

MVOP 194 OF 2017

FOR RESPONDENT NO.3 :-

RW.1 :A.Anupriya RW.2 : J.Ramesh Kumar

DOCUMENTS MARKED

FOR PETITIONERS :-

Ex.A1 :Certified copy of FIR with complaint

Ex.A2 :Certified copy of Charge Sheet

Ex.A3 :Certified copy of Inquest Report

Ex.A4 :Certified copy of PME Report

Ex.A5 :Certified copy of MVI Report

Ex.A6 :Original B.SC Marks Memos (3 Nos.)

Ex.A7 :Original MCA Marks Memos (5 Nos.)

Ex.A8 :Original Offer Letter issued by Infosys

Ex.A9 :Original Pay Slips issued by Infosys

Ex.A10 : Original participation/Appreciation/Excellence Certificates (8Nos) issued by Infosys

Ex.A11 : Original Bank Statement of the deceased issued by ICICI Bank

Ex.A12 : Original Medical Bill

MARKED THROUGH PW2

Ex.X1 :Authorization Letter dated14.02.2019

Ex.X2 :Appointment Letter of the deceased

Ex.X3 :Pay Slips of the deceased (7 Nos.)

FOR RESPONDENT NO.3 :-

Ex.B1 – CC of Policy

CHAIRMAN,

MOTOR ACCIDENT CLAIMS TRIBUNAL - CUM -

XXVII ACJ, CCC, SECUNDERABAD.

IN THE COURT OF THE XII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD

Present :M. SRINIVASA CHARY, XXVII Additional Chief Judge, FAC XII Additional Chief Judge

MONDAY, THE 10th DAY OF AUGUST, 2020

O.S. NO. 88 OF 2012

Between:-

1.S.Shivcharan, S/o S.Kali Charan, Aged : 33 years, Occ: Business,

2.S.Kalicharan, S/o. Late S.Venkat Rao, Age: 56 years, Occ: Business, Both R/o. Plot No.24, Bapubagh Colony, PG Road, Secunderabad. --Plaintiffs

And

1. Gorty. Chandrashekar, S/o. Late G.Hanumantha Rao, Aged : 38 years, Occ: Business

2. G. Venkataramana, S/o.Late G.Hanumantha Rao, Aged : 42 years, Occ: Pvt Service

3. G.Janakiram, S/o.Late G.Hanumantha Rao, Aged : 40 years, Occ: Govt Teacher, R/o: H.No.13-2-360/9, Heeralal Nivas, First Floor, Jai Hanuman, Police Line, Raheempur Dhulpet.

4.. G. Sreerama Sastry, S/o.Late G.Hanumantha Rao, Age: 45 years, Occ: Pvt Services, also R/o.225, Kinderkamack, Road Apt-3, River Edge, New Jersey -07661, U.S.A Secunderabad Revenue Mandal, Secunderabad.

5. Smt. G.Bharathi, W/o. Late G.Hanumantha Rao, Aged : 66 years, Occ: House Wife, Defendants No.1, 2, 4 & 5 are R/o.7-2-783, SRT 562, Sanathnagar, Hyderabad. --Defendants

This suit coming before me on 18.09.2019 for final hearing in the presence of Sri Jyothi Rao , Advocate for the plaintiffs and of Sri Mahesh Raje, Advocate for the defendant No.1 and of Sri K.Samuel, Advocate for defendant No.4 and of Sri K.Sailaja, Advocate for the defendant No.5 and defendants 2 and 3 remained ex-parte and the matter having been heard and stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1)This is a suit to direct the defendants to pay to the plaintiffs a sum of Rs.72,30,000/- together with future interest @ 24% p.a from the date of filing of the suit till realization.

2)The averments of the plaint, in brief are as follows :-

i)The plaintiffs are doing business of iron and steel. The defendants family is known to the plaintiffs. There were several� business dealings between the plaintiffs and defendants. Initially, defendants used to give handloan to the firm of the plaintiffs as and when required and the plaintiffs used to repay the same in the account of the business firm of the defendants i.e. Leather

Concepts and Leonine Life Style.

ii)Defendant No.4 is a resident of U.S.A represented to the plaintiffs that he was intending to set-up a business for leather products of Ovion Company, which was a company of repute in�

U.S.A and that he was intending to take the dealership of the said company and set up business for defendants No.1 to 3 at

Hyderabad and for that Rs.50,00,000/- to one crore is required and the profits would be almost 400% on the business. The defendant

No.4 and the other defendants promised the plaintiffs that if they invest in the business, they would either make them partners or give at least 4% to 5% profit on their investment.

iii)Initially, on 05.07.2010, the plaintiffs had given

Rs.15,00,000/- for which the defendant No.1 executed a promissory note. Thereafter, the defendants 2 to 4 informed the plaintiffs that they could arrange for a chit of Rs. 30 to Rs.40 Lakhs and in case, the plaintiffs subscribed to the chit, the installments of the chit amounts could be paid through the profits that would be earned from the business. As such, the plaintiff No.1 on the introduction of defendant No.1, subscribed to one chit of Rs.10,00,000/- and another chit of Rs.25,00,000/- with one P. Krishna Yadava at Gandhi Nagar in the month of July, 2010 and November, 2010 respectively.

Thereafter, on 06.09.2010, the said P. Krishna Yadav gave Rs.6 ½

Lakhs for the chit of Rs.10,00,000/-. Plaintiffs gave Rs.8,00,000/- to the defendants by withdrawing the chit of Rs.10,00,000/- and Rs.1 ½

Lakhs in cash to D1, who executed a promissory note. Thereafter, when the chit of Rs.25,00,000/- was lifted on 15.04.2011, plaintiff No.1 got Rs.17,00,000/- and he has given this amount of defendants No.1 to 3, who executed promissory notes. Thereafter, on 15.07.2011, the plaintiffs gave Rs.16,00,000/- to the defendants No.1 to 3, who executed promissory notes against the amounts taken by them individually as well as in the name of Firms Leather Concepts and� �Leonine Life Style represented by D1 and issued post dated� cheques. The details of promissory notes executed by defendants and post dated cheques issued by them are as follows:-

SL.NO.PARTIES TONATURE OFAMOUNT DATE OF

DOCUMENTDOCUMENTDOCUMENT

1)Defendant No.1Promissory NoteRs.15,00,000/-05.07.2010

2)Defendant No.1Promissory NoteRs. 8,00,000/-06.09.2010

3)Defendant No.3Promissory NoteRs.17,00,000/-15.04.2011

4)Defendant No.2Promissory NoteRs.16,00,000/-15.07.2011

SL.NO.PARTIES TONATURE OFAMOUNT DATE OF

DOCUMENTDOCUMENTDOCUMENT

1)Defendant No.1Cheque No.667841Rs.4,00,000/-10.01.2012 HDFC Bank

2)Defendant No.1Cheque No.002932 Rs.4,00,000/-12.01.2012 ICICI HDFC Bank

3)Defendant No.1Cheque No.667840Rs.10,00,000/-31.03.2012. HDFC Bank

4)Defendant No.1Cheque No.845602Rs. 5,00,000/-31.03.2012. SCB Bank

5)Defendant No.2Cheque No.001830Rs. 5,00,000/-02.04.2012 HDFC Bank

6)Defendant No.2Cheque No.114226Rs. 11,00,000/-14.04.2012 ICICI Bank

7)Defendant No.3Cheque No.535716Rs. 5,00,000/-28.03.2012 Bank of Baroda

8)Defendant No.3Cheque No.535705Rs. 12,00,000/-16.04.2012 Bank of Baroda iv)In August, 2011, the D5 undertook to indemnify the plaintiffs, in case, the D1 to D4 failed to pay the amounts and assured them that the properties standing in her name and her share in her husband s property could be appropriated for the loan� and interest thereon. Likewise, the defendants No.1 to 3 executed

Indemnity Bonds and pledged their shares in the property bearing

No. SRT 562, Sanathnagar, Hyderabad and also plots bearing No.

186, 187 and 171 in Sy.Nos. 197, 270, 271, 272 and 269 at Dommara

Pochampally, Quthbullahpur Mandal, R.R.District

v)D2, who is holding the General Power of Attorney of D4, on a tacit understanding and instruction of D4, executed an

Indemnity Bond assuring the payment of Rs. 56,00,000/- pledging his house bearing No. SRT 143, Sanathnagar, Hyderabad as security towards the amounts of the plaintiffs.

vi)All the cheques when presented were returned unpaid for want of funds. When the cheques were dishonoured and as the defendants were not paying the interest, the plaintiffs demanded for repayment of the amounts, but the defendants dodged the plaintiffs on one pretext or the other.

vii)On 17.01.2012, the plaintiff No.1 on being called by D2 went to his house at SRT 562, Sanathnagar, Hyderabad, then D2 tore his clothes and started creating a bid scene and yelling at the top of his voice. As it was a preplanned affair, the police from PS

Sananthnagar came and took the plaintiff No.1 and his friends into custody. When plaintiff No.2 came to know about the same, he went to Police Station Sananthnagar and questioned the acts of the police. Then Police took the plaintiff no.2 also into custody and booked a false case in Crime No. 36/2012 and produced them

before the IX Metropolitan Magistrate, Kukatpally on 19.01.2012 and

subsequently, the plaintiffs were enlarged on bail.

viii)The plaintiffs tried to approach the defendants through elders and well-wishers, but the defendants have engaged professional rowdies to eliminate the plaintiffs and for which, the plaintiffs had to take the help of the Task Force Police to deter the criminals from their illegal acts.

ix)By the acts of the defendants, it became crystal clear that their intention perse was to deceive the plaintiff and deprive them of the amounts. The plaintiff also presented the following cheques for payment, but they were returned upaid as follows:-

SL.NO.NATURE OFDATE OFREASON FOR DISHONOUR

DOCUMENTDISHONOUR

1)Cheque No. 00293224.01.2012Insufficient Funds

2)Cheque No. 66784124.01.2012Account closed

3)Cheque No. 84560204.04.2012A/c written off

4)Cheque No. 66784004.04.2012Account closed

5)Cheque No. 00183004.04.2012Account closed

6)Cheque No. 11422619.04.2012Account closed

7)Cheque No. 53570519.04.2012Opening Balance Insufficient

8)Cheque No. 53571604.04.2012Opening Balance Insufficient

x)The plaintiffs upon the return of the cheques unpaid, got issued two legal notices. However, D1 got issued a reply dated 08.03.2012 to the notice dated 23.02.2012, denying the claim of the plaintiffs and making preposterous allegations. Therefore, the plaintiffs have no other alternative but to approach this Court for recovery of amount.

xi)The interest calculated @ 2% per month due to the plaintiffs for the principal amounts given to the defendants, is shown below:-

SL.PRINCIPLEINTEREST @TOTAL NUMBER OFTOTAL NO.AMOUNT2 % PERMONTHSINTEREST MONTH

1)Rs.15,00,000/-Rs.30,000/-21 monthsRs..6,30,000/- (05.07.2010 to 05.04.2012)

2)Rs. 8,00,000/-Rs.16,000/-19 monthsRs..3,04,000/- (06.09.2010 to 06.04.2012

3)Rs.17,00,000/-Rs.34,000/-12 monthsRs.4,08,000/- (15.04.2011 to 15.04.2012)

4)Rs.16,00,000/-Rs.32,000/-9 months Rs.2,88,000/- (15.07.2011 to 15.04.2012)

Totally, the principal amount given to the defendants is

Rs.56,00,000/- and the interest accrued thereon is Rs. 16,30,000/-.

Thus, the total amount due to the plaintiffs is Rs. 72,30,000/-.

xii)The defendants fell due several amounts to different traders in the market. However, instead of making payments against the supplies made to them, they have fraudulently diverted the amounts else where so that the amounts due by them cannot be recovered. D1 to D4 have acquired various properties vide doc.

Nos.6345/1999, 6057/1999, 6346/1999 and 2298/2005 from the proceeds of their business and other sources.

xiii)D1 to D5 are the successors of the property admeasuring 150 sq. yards bearing SRT No. 562, situated at

Industrial Housing Colony, Sanathanagar, Hyderabad, which stands in the name of Late G.Hanumanth Rao, who is father of D1 to

D4 and the husband of D5.

xiv)The defendants have put the above said properties for sale and at any moment after disposing of, the defendants may flee from Hyderabad. In case, the defendants are successful in selling out the said properties and leaving Hyderabad, the very purpose of filing the suit will be defeated. So the defendants shall be restrained by way of attaching the said properties before the

Judgment, otherwise the efforts of the plaintiffs will become futile.

Hence, the suit.

3)D1filed a written statement on 19.10.2010, denying the plaint averments and contending interalia that :-

i)The suit is neither maintainable in law nor on facts and is liable to be dismissed in limini. The contentions made in the plaint are vague, vexatious and concocted, laid for the purpose of wrongful gain by causing wrongful loss to this defendant.

ii)In fact G.Srirama Sastry (D4), Sri G.Venkataramana (D2) and D1 are the real brothers and that they do not have any sort of business or commercial transactions in between them and they are carying out their avocations on their own. Due to hard-work and ethical values are commanding good pride and prestige in their circles in the society. The plaintiffs and other family members have been maintaining dubious business concerns have resorted to all sorts of gimmicks including making bald allegations against D4, who does not have any acquaintance with the plaintiffs and he has never seen the plaintiffs or his family members till date.

The contentions are self contrary from the legal notices dated 23.02.2012 and the plaint filed now.

iii)The posted dated cheques and promissory notes said to have been executed by them are absolutely created, false fictitious, vexatious apart from unfounded and there is no iota of truth in the facts averred by the plaintiffs 1 and 2 , as they forced D1 and his other two brothers viz. G.Venkata Ramana and G.Janaki

Ram to execute/ handover cheques and pronotes, for which, the D2 initiated criminal proceedings.

iv)The plaintiffs 1 and 2 have created havoc and nuisance by entering into the house of D2 alongwith some henchmen of him and forcibly took two empty blank cheques and promissory notes from him on 17.01.2012 at abut 9.30 PM against which the D2 lodged a police complaint with local Sanathnagar PS in Crime No.36/1, which is under investigation. On the same day, the plaintiffs 1 and 2 alongwith antisocial elements have resorted to high handedness obtained 14 cheques, 4 promissory notes and one non-judicial stamp paper from the defendants brother G.Janakiram (D3) and� one blank cheque from his wife Smt. G.Jyotna and as the instruments were taken without paying any consideration to them, they have taken immediate steps with their respective bankers. D1 alongwith D1 and D2 and their well wishers approached the plaintiffs and demanded them to return all the valuable documents obtained by them which they have obtained without any consideration, but all their efforts ended in vain.

v)Plaintiffs were using the alleged documents fraudulently and dishonestly as genuine for causing wrongful loss to them and gain wrongfully.

vi)There is no payment of any sum of Rs.56,00,000/- to the defendants in particular D4, as he has no acquaintance with the plaintiffs or any one of his family members as demonstrated in reply notice dated 08.03.2012. The intention of the plaintiffs is to malign the reputation and business of the D1.

vii)The defendant No.1 categorically stated that they do not have any sort of business transactions or payment of interest with the plaintiff No.1 and 2 or with any of his brothers till date and therefore, the question of offering 4% to 5% profit per month on their investment is equally false and baseless and the defendant

No.1 to 3 in proportion to the promissory notes executed by them issued post dated cheques against the promissory notes executed by them are absolutely false. On 17.01.2012 at about 9.30 p.m plaintiff No.1 and 2 entered into the house of defendant No.2 along with some henchmen of him and took two empty blank cheques and promissory notes against which the defendant No.2 lodged a police complaint with Sanathnagar Police Station in Cr.No.36/12 which is under investigation. On the same day plaintiff No.1 and 2 have also resorted to high handedness obtained 14 cheques, 4 promissory notes and one Non-judicial Stamp paper from the defendant No.3 and one blank cheque from his wife. Hence, prayed to dismiss the suit.

4)Defendant No.4 filed written statement on 26.08.2013 denying the averments of the plaint and contending interalia that :-

i)It is crystal clear from 1st paragraph itself there is admission by the plaintiffs that the position of the plaintiffs in respect of financial status is not well and they themselves are in the habit of receiving handloans from the business circles, as such lending and giving handloans to third parties can easily be doubted and the issue of giving amounts by them to defendants including to D4, is nothing but a created story only for the purpose of present suit and for gaining wrongfully and to cause monetary loss to the D4.

ii)D4 admits that he is a Non Resident Indian. There is no business on which 400% profitable. The plaintiff s claim is best� example for misusing, tampering, void and nonest documents.

There is not even a single paper or consent of the D4 by which, it can be said that the D4 s role is involved either directly or� indirectly. This makes it clear that there is no consent, interest, intention of the D4 to enter into any sort of dealing as narrated by the plaintiffs nor D4 has any interest to setup business.

iii)At no point of juncture, D4 had any sort of acquaintance with the plaintiffs, either direct or indirect.

iv)As per the documents furnished by the plaintiffs, it is crystal clear that there are nothing to circle this defendant for any liability. The plaintiffs with an intention to gain wrongfully under present claim, as D4 is a NRI and earning handsome amounts abroad had planted and arrayed him as D4. There is no demand from the side of the plaintiffs to say that there exists any transaction between the plaintiffs and defendants moreover to D4.

v)The entire claim raised on the D4 is solely based on if s,� but s, may s and might be s which has no value under law to��� accept the entire issue of passing consideration to the defendants 1 to 5 to be true and there exists liability to be discharged, as such the suit is liable to be dismissed on the same ground too. As D4 is not the party or witness to any of the documents viz. especially promissory notes and cheques said to have been issued by the defendants 1 to 3, which are filed by the plaintiffs, the contents therein are denied by D4 for want of knowledge and proof.

vi)After going through the entire plaint, it appears that plaintiffs alongwith other defendants colluded with each other as

D4 is a NRI and earning handsome amount in USA, planned the present claim with false, frivolous, created documents with unfounded, misconceived and invented stories only for the purpose of present case. There is no part or full participation of D4 in monetary transaction either with the plaintiffs or any others as

D4 does not have any interest to do any sort of business as created by the plaintiffs and that D4 is well off with his job and getting handsome salary abroad.

vii)There is no iota of truth in version of the plaintiffs in

Para No.6. The D5 never executed any document much less the

Indemnity Bond as she shares everything with D4 before doing so by calling him over phone.

viii)When the plaintiffs are cautious to obtain several documents such as indemnity bonds, etc. what restrained them from obtaining a single scrap of paper from D4 as security, surety, witness or principal debtor. Thus, this makes it clear that the present suit against D4 is raised without there being any consideration passed to him by the plaintiffs, who failed to prove their financial status of giving such a huge amounts to these defendants in order to claim the same under present suit.

ix)When no consideration has been passed to D4, accepting the same and promising to discharge, repayment of the same does not arise at all. The plaintiffs with an intention to over come the case filed by the Police had created a story as narrated in Para No.9 and as such remaining limb of the paragraphs is denied for want of knowledge and the plaintiffs are put to strict proof of the same.

x)D4 is holding good pride and prestige at this living and working circles and has no criminal track record whatsoever and the he does not have any intention of cheating any one more particularly the plaintiffs when they are not known to him and are aliens to D4. D4 reserves his right of initiating appropriate proceedings under criminal procedure for making bald and baseless allegations and branding him as rowdy.

xi)D4 never received any notice. D4 never received any suit amounts. D4 is not at all interested nor having any reason to sell away his property and no necessity to put his property for sale,. The plaintiffs cannot question the right of D4 s interest under� no right, claim, interest, in his properties when there is no transfer of rights can be passed as there is no documentary proof to show his involvement with the present transaction either direct or indirect. Plaintiffs have no right of whatsoever to question D4 s� interest and ownership over his property or cannot raise any claim over his property. They cannot dictate terms to him to do or not to do as per their whims and fancies. The plaintiffs under the attachment is intending/trying to create havoc in the minds of the inmates of his share of property and are intending to grab his property in his absence in the country.

xii)No cause of action arose for the purpose of filing the suit and the cause of action as stated in the plaint is imaginary, misconceived, invented only for the purpose of present suit. This

Court has no jurisdiction to entertain the present suit and the valuation of the suit is improper and deficit court fee is paid, the above suit is undervalued, as such the suit is liable to be rejected.

Hence, D4 prays to dismiss the suit with exemplary costs as devoid of merits.

5)Defendant No.5 filed written statement on 19.10.2012, denying the averments of the plaint and contending interalia that :-

i)The averments and allegations made by the plaintiffs are false and incorrect and are concocted for the purpose of this suit.

ii)This defendant is not aware of the loan transaction between the plaintiffs and his sons and he does not know about the alleged business proposals between the plaintiffs and D4 in respect of the setting up of a business of leather products of �Ovion Company . � iii)D5 is not aware that the plaintiffs gave an amount of

Rs.15,00,000/- on 05.07.2010. It is not mentioned as to whom the plaintiffs gave Rs. 15,00,000/- and in what relation the same is given.

D5 does not know about the chit transaction by the plaintiffs and their giving huge amounts to the defendants 1 to 3, who executed promissory notes in favour of plaintiffs. This defendant hereby questions the validity of generation of money through unregistered and unrecognized chits by the said P.Krishna Yadav.

There is no whisper in the allegations that the plaintiffs gave the said amounts as loans to the defendants 1 to 3, but suddenly jumped to the conclusion that the defendants executed promissory notes. In fact, on 17.01.2012 around 9.30 p.m., the plaintiffs and some others trespassed into this defendant s house� and threatened the family members with death and they obtained signatures on some papers. This defendant does not know on what papers the defendants obtained signatures. D2 has complained to the Police, Sanathnagar PS and a case is registered against the plaintiff and others.

iv)The nature of the details of the indemnity bonds clearly show that those are created by the plaintiffs. The plaintiffs never asked the defendants to execute indemnity bonds and the defendants never agreed to execute indemnity bonds. Had there any such agreement, all the stamp papers would have been purchased at one time, and from one stamp vendor. It is not necessary to this defendant to go to Shankarpally to purchase stamp paper of Rs.100/-. This defendant has not purchased the stamp paper on which an indemnity bond is alleged to have been executed by her. She is a resident of Sanathnagar and she is aged 66 years as on the date of the indemnity bond. The stamp paper shows that she purchased it. She need not go anywhere to purchase stamp paper. Her sons can purchase the stamp papers in the name of all persons, who intended to execute stamp papers.

Moreover, there is no stamp paper for the indemnity bond alleged to have been executed by the defendant No.1. The open spaces in the said indemnity bond, at the top and above the signatures show that the same is created. Further, as per this defendant s� knowledge, D4 has not executed any GPA to receive loan in his name or to execute indemnity bonds in respect of his house property. Further, the stamp paper, on which it is alleged that defendant No.3 executed indemnity bond strengthens this defendant s contention that the indemnity bonds are created. As� stated, a criminal case was already registered against the plaintiffs and others. With a view to divert the case, the plaintiffs have falsely stated that a scene was created by the defendants on the arrival of the plaintiffs.

v)The properties mentioned in the plaint are not liable to be attached. The defendants are not liable to pay any amounts to the plaintiffs. The suit is filed basing on created documents.

Hence, prayed to dismiss the suit with costs.

6)On the strength of the above pleadings, my learned

predecessor-in-office on 28.02.2014 framed the following issues

for trial :-

1. Whether the promissory notes dated 5.7.2010,

6.9.2010, 15.04.2011 and 15.07.2011 are true, valid and

binding?

2. Whether the plaintiffs are entitled for recovery of a

sum of Rs.72,30,000/-? If so, against which

defendant ?

3. To what relief?

7)During course of trial, on behalf of the plaintiffs, PW1 examined and Exs.A1 to A12 marked. Whereas, on behalf of the defendants, DW1 examined and Exs.B1 to B85 marked.

8)Written arguments filed on behalf of D1, D4 and D5. No arguments submitted on behalf of plaintiff.

9) ISSUE NO. 1 :-

i)In-as-much as, the contesting defendants 1, 4 and 5 denied the suit claim including the execution of documents relied upon by the plaintiffs, the initial burden lies on the plaintiffs to prove their claim.

ii)The 1st plaintiff filed his affidavit as required under

Order XVIII Rule 4 CPC in lieu of examination-in-chief. In his affidavit, he went on to speak the facts pleaded in the plaint in respect of their claim. In a nut shell, the sum and substance of his examination-in-chief would show that he alongwith his father have business in iron and steel. They know the defendants for the past several years and there are several business dealings between them. Initially, the defendant used to give handloan to his firm as and when required and they used to pay back the same in the account of business firm of the defendants i.e. Leather Concepts and Leonine Life Style and thus the defendants gained his confidence.

iii)D4 is NRI and living in abroad i.e. USA, represented to him to set-up a business in leather products in the name and style of Ovion Company and cohered them to invest money stating�� that there would be profit of 400%. Further, they promised the plaintiffs that if they invest, they would join them as partners or give atleast 4 to 5 % per month. However, they ruled out to enter into any kind of partnership, but they promised to give some amounts as handloan.

iv)In the backdrop of above terms, initially on 05.07.2010 1st plaintiff gave Rs.15,00,000/- and on the assurance of D2 to D4 to arrange chit for Rs.30 to Rs.40 Lakhs , he subscribed a chit for

Rs.10,00,000/- and another chit for Rs.25,00,000/- with one P.Krishna

Yadav of Gandhi Nagar in July, 2010 and November 2010 respectively. On 6.9.2010 said Krishna Yadav gave him Rs. 6 ½ lakhs for the chit of Rs.10,00,000/- and that he gave Rs.8,00,000/- to the defendant. Subsequently, he lifted chit amount of Rs.25,00,000/- on 15.04.2011 and he got Rs. 17,00,000/- therefrom, which amount, he gave to D1 to D3. Later, he had given Rs.16,00,000/- to the defendants 1 to 3 on 15.07.2011. Thus, in all, he paid them

Rs.56,00,000/-. All the defendants executed promissory notes personally as well as in the name of firms Leather Concepts and

Leonine Lifestyle represented by D1 on 05.07.2010, 06.09.2010, 15.04.2011 and 15.07.2011. It also his further evidence that the defendants 1 to 3 issued post dated cheques. In August, 2011, D5 undertake to indemnify in case D1 to D4 fail to pay the plaintiffs and assured that the properties standing in her name and her share in her husband s property would be appropriated for the� loan and interest thereon. Thus, D1 to D3 executed indemnity bonds pledging their shares in the property bearing No. SRT 562,

Sanathnagar, Hyderabad and also plots bearing No. 186, 187 and 171 in Sy.No.197, 270, 271, 272 & 269 at Dommara Pochampally of

Quthbullapur Mandal, Rangareddy District. D2 being GPA Holder of D4 executed an Indemnity Bond assuring to pay Rs. 56 Lakhs pledging his house bearing No.SRT 143, Sananthnagar, Hyderabad as a measure of security for the said amount. It is further added by him that the cheques that have been drawn by the defendants, on presentation for encashment, dishonoured. As such the plaintiffs were constrained to get issued two legal notices. One notice dated 23.02.2012 was replied by D1 on 08.03.2012 and denied his claim.

Subsequently, inspite of repeated demands, the defendants have not paid any amount and they dodged the matter under one pretext or the other.

v)According to him as on the date of the suit, a sum of

Rs.72,30,000/- is due and payable by the defendant that includes interest.

vi)To substantiate his oral testimony the plaintiffs relied upon Ex.A1 to A4 promissory notes. Exs.A5 to A9 CC of Sale Deeds,

Exs.A9 to A12 indemnity bonds issued by D1 to D3.

vii)On the other hand, the 1st defendant in his examination- in-chief in the mode of affidavit as required under Order XVIII, Rule 4 CPC has reiterated the pleadings he took in defence in the

Written Statement. To avoid repetition once again, his entire affidavit of examination-in-chief, is not hereby reproduced.

However, the sum and substance of their defence in brief is to the effect that in 2003, he commenced Leather Concepts proprietary concern and used to manufacture car seat covers and sofas. He got distributory rights from Ovion Seating of Bangalore. His testimony would further disclose that house of PW1 is situated opposite to his office. Regularly, he used to visit his office. As such, there is acquaintance between them. Accordingly, the plaintiff paid Rs. 1,47,00,000/- and odd during 2007 to 2011. He gave said amount to PW1, Kalicharan and Sripathi Steels and his family members through cheques and bank transfers. According to him,

Sripathi Steels Company was in the name of PW1 (Shiv Charan) and S.Kalchiran, who are partners therein. PW1 regularly obtained loans from him for his business. To substantiate his contention in defence, he filed and exhibited as many as 85 documents which have been marked Ex.B1 to B85. It is his specific evidence that

Exs.A1 to A12 are forged and they do not contain the signatures of

D1 to D3. Ex.A5-Stamp Paper was obtained in the name of

G.Hanumanth Rao, who died on 20.09.2007. He claimed to have filed statement of accounts provided by Union Bank of India showing monetary transactions between himself, PW1, Kalicharan and Sripatih Steel and in all, he paid around 1 ½ crores to PW1,

Kalicharan and his family members and Sripathi Steel. Reference is made to Exs.B1 to B85. Of them, Ex.B1 is extract of Statement of

Account of D1 consisting of 8 sheets, Ex.B2 extract of account of

D1 in 5 sheets and Ex.B3 extract Statement of Account in the name of Leonine Lifestyle. They are showing that DW1 is proprietor of

Leather Concepts and amount was transferred to the account of

DW1, his family members and Sripathi Steels. Whereas under

Ex.B2, amounts were shown to have been transferred to account of

PW1, his family members and Sripathi Steels. Ex.B4 and B5 are letters addressed to Manager, ICICI Bank. Exs.B6 to B9 are

Statement of Accounts in the name of D1 and Leonine Lifestyle. It reflected the monetary transactions between DW1, PW1, his family members and Sripathi Steels. Ex.B10 is postal receipt, Ex.B11 is

Endorsement of Commissioner of Police, Hyderabad to ACP

Saifabad and Ex.B12 is CC of FIR. Ex.B13 and Ex.B14 are protest petitions filed by D1 and CC of FIR.

viii)According to the DW1, their cheques were committed theft, misused and filed complaints against him and other defendants. He enquired with HDFC Bank to know when his account was closed, because cheque bounce cases are filed against him and his family members and he came to know that his account in HDFC was closed on 29.10.2011 which is evident from

Ex.B20.

ix)The documents marked on behalf of defendants establish the fact that there were cases and counter cases filed by them against each other. The DW1 further stated that the suit filed by plaintiffs for recovery of the amount against him and his family members on the Indemnity Bond alleged to have been executed by his mother, is a rank forgery and it does not bear any date. The promissory note under Exs.A1 to A4 relied upon by the plaintiffs are not at all executed by D1 to D3 and that they are forged and brought into existence for the purpose of this suit.

x)With the above testimony, the DW1 is strongly disputing the suit claim.

xi)In the cross examination of PW1, it has been brought out that he is not aware whether or not the suit transactions were shown in his income tax returns for the relevant year. He claimed to be an income tax assessee and paying the taxes from above 6 to 7 years prior to his cross-examination recorded on 15.2.2017 and further brought out that he was Income Tax Assessee as on 2010 and even prior to that also, he was an Income Tax Assessee. He admitted that he did not file any income tax returns showing the suit transaction. It is indeed, the said lacuna on the part of the PW1 in not bringing on record his income tax returns is a serious circumstance that could be taken into consideration to hold that if really he had shown the suit amounts in his IT returns, nothing prevented him in placing on record crucial documentary evidence.

Moreover, such inaction on the part of the PW1 leads the court to entertain a doubt regarding his testimony in respect of suit claim.

It was brought out that he paid the amount in cash and he brought the amount in bidding of chit with one Krishna Yadav and remaining amounts, he borrowed from his father-in-law and mother-in-law. Surprisingly, none of them were examined to lend support to his self-serving statement nor did he atleast file any document to show that he was one of the subscribers of chit business run by so-called Krishna Yadav. It is interesting to note here that in cheque bounce cases, he filed against defendants, he admitted that he cannot say the date of his lending money to the defendants. Moreover, he claimed to have received reply notices from the defendant, but he did not give any rejoinder to such reply notices atleast denying the substance of their reply.

xii)In addition to the above, it was brought out from his cross- examination that he paid Rs.52,00,000/- and his father paid

Rs.4,00,000/-, but he pleaded ignorance regarding their reflection in

IT Returns. Indeed, he claims to have paid such amount personally and his father too paid such money belonging to him and such amount is not pertaining to firm account but here was neither any pleading nor evidence in chief-examination to that effect. Beside this, he admitted that he has not filed the Statement of Account showing the particulars of payment he made to the defendants.

xiii)Be that as it may, Exs.A1 and A3 do contain the names of persons as witnesses, but none of them were examined. It is indeed, the promissory notes are not compulsorily attestable documents. However, when they do contain the names of attestors, when the defendants dispute genuineness of them, the initial burden lies on the plaintiff to prove the promissory notes.

The material brought out in the cross-examination of PW1 makes it clear that there are disputes between plaintiffs and defendants on monetary transactions which do lead them to filing criminal cases and cheque bounce cases. In such circumstances, the self serving- statement of PW1 is not sufficient to hold that the documents relied upon by him are true and genuine.

xiv)Be that as it may, it may be stated here that it is elementary on the part of the parties to suit to lead evidence in support of their assertions so as to take the court affirmatively to accept their version to be true and correct. Here the plaintiffs examined PW1, but did not come forward to cross-examine the

DW1. Consequently, their cross-examination of DW1 was recorded �Nil . As a result thereof, what all DW1 did state in his examination-� in-chief stood uncontroverted. Inaction on the part of the plaintiffs in subjecting the DW1 to cross examination cannot be lightly ignored and that a legitimate presumption under Sec. 114 (g) of the

Evidence Act for withholding best evidence is to be drawn against the plaintiffs for their deliberate inaction in not examining the witnesses to prove the documents they relied upon and in not availing the opportunity to cross-examine the PW1. This leads the

Court to hold that the plaintiffs are not able to discharge the initial burden, which lies on them in proving their claim. Whereas, the contesting-defendants by examining the DW1 and on account of the fact that he was not subjected to cross-examination, are held to have discharged their burden in disproving the claim of plaintiffs.

Consequently, I answered this issue against the plaintiffs.

10) ISSUE NO.2 :-

In view of my finding on issue No.1, in-as-much as the suit promissory notes are not proved to be true and genuine, the plaintiffs are not entitled to suit claim. Accordingly, this issue is also answered against the plaintiffs.

11) ISSUE NO.3 :-

In the result, the suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me, in the open court, on this the 10th day of August, 2020.

XXVII ADDITIONAL CHIEF JUDGE,

FAC XII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS :- PW1 : S.Shivcharan

FOR DEFENDANTS :-

DW1 : G.Chandrasekhar

DOCUMENTS MARKED

FOR PLAINTIFFS :-

Ex.A1 :Promissory Note for Rs.15,00,000/-, dated 05.07.2010

Ex.A2 :Promissory Note for Rs.8,00,000/-, dated 06.09.2010

Ex.A3 :Promissory Note for Rs.17,00,000/-, dated 15.04.2011

Ex.A4 :Promissory Note for Rs.16,00,000/-, dated 15.07.2011

Ex.A5 :CC of Sale Deed Document No.857/1982

Ex.A6 :CC of Sale Deed Document No.2298/2005

Ex.A7 :CCof Sale Deed Document No.6057/1999

Ex.A8 :CC of Sale Deed Document No.6345/1999

Ex.A9 :CC of Sale Deed Document No.6346/1999

Ex.A10 :Indemnity Bond issued by G.Chandra Shekar, dt. 15.07.2011

Ex.A11 :Indemnity Bond Issued by G.Venkataramana, dt. 12.10.2011

Ex.A12 :Indemnity Bond issued by G.Janaki Ram, dated 15.07.2011

FOR DEFENDANTS :-

Ex.B1 : Extract of statement of account of 1st defendant 8 Sheets�

Ex.B2: Extract of statement of account of 1st defendant 5 Sheets�

Ex.B3: Extract of statement of account on the name of Leonine Life Style

Ex.B4: Letter addressed to ICICI Bank Manager, dt.19.01.2015

Ex.B5: Letter addressed to ICICI Bank Manager

Ex.B6: Statement of account provided by ICICI Bank of 1st defendant

Ex.B7: Statement of account provided by Axis Bank Limited of 1st defendant

Ex.B8: Statement of account provided by Axis Bank pertaining to Leonine Life Style

Ex.B9: Statement of account provided by Union Bank Indian of 1st defendant

Ex.B10: Postal receipt

Ex.B11 : Endorsement made by the commissioner of police Hyderabad to ACP Saifabad

Ex.B12: Certified Copy of FIR, dated 27.11.2012

Ex.B13: 1st defendant Protest petition filed before XI ACMM

Ex.B14: Certified Copy of FIR , dated 30.05.2012

Ex.B15: Certified Copy of final report, dated 30.05.2012

Ex.B16: Certified Copy of order passed by XII ACMM, Nampally, Hyderabad, dated 05.02.2014

Ex.B17: Certified Copy of complaint

Ex.B18: Certified Copy of Judgment in CC No.439/2012, dt 29.01.2017

Ex.B19Certified Copy of order in CC No.245/2013 passed by XXII Special Magistrate Court, dated 08.08.2014

Ex.B20 : Letter addressed by HDFC Bank, dated 11.11.2014

Ex.B21 : Letter addressed by Bank of Baroda, dated 10.01.2015

Ex.B22: Certified Copies of front and back of the cheques to B25

Ex.B26 : Certified Copy of cheque in CC.No.302/2012 on the file of V Special Magistrate, Erramanzil

Ex.B27 : Certified Copy of cheque return memo CC.No.302/2012 on the file of V Special Magistrate, Erramanzil

Ex.B28 : Certified copy of promissory note along with the receipt

Ex.B29 : Certified copy of legal notice, 07.02.2012

Ex.B30 : Certified copy of two postal receipts

Ex.B31: Certified copy of returned posted cover

Ex.B32: Certified copy of another returned postal cover

Ex.B33: Certified copy of Docket order in Old CC No.76/2013, new

CC No.112/2016 on the file of XXIII Special Magistrate

Court, Erramanzil, dated 07.09.2016

Ex.B34 : Certified copy of FIR

Ex.B35 : Letter addressed by Deputy General Manager, Andhra Pradesh State Financial Corporation, dated 18.05.2012

Ex.B36: Letter addressed by Ovion Seatings, dated 13.12.2005

Ex.B37: Certified copy of complaint in CC No.1714/2014

Ex.B38 : Certified copy of complaint in CC No.1715/2014

Ex.B39 : Certified copy of complain in CC No.1716/2014

Ex.B40 : Certified copy of letter addressed by Assistant General Manager, Andhra Pradesh State Financial Corporation

Ex.B41: Certified copy of receipt, dated 14.07.2011

Ex.B42 : Certified copy of Demand Draft worth of Rs.77,210/-, dt. 14.07.2011

Ex.B43 : Certified copy of letter addressed by Assistant General Manager report

Ex.B44 : Certified copy of preliminary legal opinion provided by Deputy Manager Law to APSFC, dated 25.08.2011

Ex.B45 : Certified copy of FIR, dated 26.06.2015

Ex.B46 : Certified copy of letter addressed by inspector of police PS Ramgopalpet, Secunderabad

Ex.B47 : Certified copy of complaint in CC No.99/2015

Ex.B48 : Certified copy of complaint in CC No.102/2015

Ex.B49 : Certified copy of complaint in CC No.100/2015

Ex.B50 : Certified copy of complaint in CC No.103/2015

Ex.B51: Certified copy of complaint in CC No.101/2015

Ex.B52 : Certified Copy of copy of memo obtaining copy from CCS, Hyderabad related to ACP, Ramakrishna transfer

Ex.B53: Indemnity Bond Copy from sub-registrar related to G.Hamumanth Rao, dated 19.05.2007

Ex.B54 : Indemnity Bond Copy from sub-registrar related to G.Bharathi, dated 22.05.2017

Ex.B55 : Indemnity Bond Copy from sub-registrar related to G.Venkataramana, dated 22.05.2017

Ex.B56 : Indemnity Bond Copy from sub-registrar related to G.Narayana Rao

Ex.B57: Indemnity Bond Copy from sub-registrar related to Ritish Yadav

Ex.B58 : Indemnity Bond Copy from sub-registrar related to Ritish Yadav

Ex.B59 : Certified copy of reply notice, dated 08.03.2012

Ex.B60 : Legal Notice to D2, dated 05.05.2012

Ex.B61Reply notice, dated 12.05.2012

Ex.B62 : Copy of Criminal complaint in CC No.187/2015, dt 15.06.2012

Ex.B63: Judgment in CC No.187/2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B64 : Legal notice to D1, dated 01.05.2012

Ex.B65 : Reply notice, dated 09.05.2012

Ex.B66 : CC of Criminal complaint in CC No.189/2015, dt.15.06.2012

Ex.B67: Judgment in CC No.189/2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B68 : Legal notice to D2, dated 01.05.2012

Ex.B69 : Reply notice, dated 09.05.2012

Ex.B70 : Certified copy of criminal complaint in CC No.188/2015 on the file of XXIII Special Magistrate Court, Eramanzil, dated 15.06.2012

Ex.B71: Judgment in CC No.188 of 2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B72: Legal notice to D1 dated 01.05.2012

Ex.B73: Reply notice, dated 09.05.2012

Ex.B74 : Certified Copy of criminal complaint in CC No.190/2015,

dated 15.06.2012

Ex.B75 : Judgment in CC No.190 of 2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B76: Legal notice to D1, dated 23.02.2012

Ex.B77: Certified Copy of criminal complaint in CC No.191/2015,

dated 04.04.2012

Ex.B78 : Judgment in CC No.191 of 2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B79 : Legal notice to D3 01.05.2012

Ex.B80 : Certified Copy of criminal complaint in CC No.192/2015,

dated 15.06.2012

Ex.B81: Judgment in CC No.192 of 2015 on the file of XXIII Special

Magistrate Court, Eramanzil 13.04.2017, dated

Ex.B82 : Legal notice to D3, dated 05.05.2012

Ex.B83 : Certified Copy of criminal complaint in CC No.193/2015,

dated 15.06.2012

Ex.B84 : Judgment in CC No.193 of 2015 on the file of XXIII Special

Magistrate Court, Eramanzil, dated 13.04.2017

Ex.B85 : Certified copy of Cheque No.667837 of HDFC Bank of Ch.Appa Rao, dated 11.01.2012

XXVII ADDITIONAL CHIEF JUDGE,

FAC XII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD .

IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : M. SRINIVASA CHARY,

XXVII Additional Chief Judge

MONDAY, THE 31st DAY OF AUGUST, 2020

A.O.P. NO. 8 OF 2019

Between:

Dy. Chief Engineer Railway Electrification having its Office 4th Floor, situated at Rail Nirman, Secunderabad.--Petitioner

A N D

1) Ms/ Jahanvi Construction rep. by its Managing Partner

2) Sri V.K. Agarwal Managing Director, RITES (Retd.) Presiding Arbitrator

3) Shri Harsh Kumar (FA & CAO /C-I/NR/(Retd) Delhi & Co Arbitrator

4) R.K. Bariar ED, RITES (Retd) and Co-Arbitrator --Respondents

Respondents 2 to 4 are not necessary party to this application.

This petition is coming before me for final hearing in the presence of Sri K.Srinivas Rao, Advocate for the petitioner and of Sri A.Madhava Rao, Advocate for respondent No.1 and the matter having been heard and stood over for consideration till this day, the Court made the following :

O R D E R

1)In this application under Sec.34 of the Arbitration and

Conciliation Act, 1996 (which would be hereinafter referred to as Act,“ 1996 ), the petitioner prays to call for original Award dated 17.06.2018” passed by the learned Arbitrators and other relevant records/ documents from the Arbitral Tribunal consisting of R2 to R4 and set aside the Award dated 17.06.2018 whereby the learned Arbitrators awarded a sum of Rs. 31,95,395/- against the petitioner in the matter of

Arbitration between Jahnavi Constructions (claimant) respondent herein and Dy.Chief Engineer Railway Electrification having its Office 4th Floor, situated at Rail Nirman, Secunderabad. The petitioner also prayed to permit him to file rejoinder/reply which has been filed alongwith this petition.

2)In brief, the averments of petition are as follows:-

i)The petitioner called for Tender RES/SC/CIVIL/44/12 dated 11.09.2012 named the work (1) Providing Bridge masts over the bridge pier (2) Protective screens to Foot Over Bridger & Rail Over Bridge and (3)

Modification to Platform Shelters in between Ramanagaram Mysore–

Section of South Western Railway with an approximated value of

Rs.70,49,000/- and Earnest Money Deposit of Rs.1,41,000/- and made sale of tender from 17.09.2012 and the last date was on 17.09.2012.

ii)1st Respondent was a successful bidder and the petitioner has offerred Letter of Acceptance vide No. RESC/W/T/12/125/081 dated 20.02.2013 with completion period of 9 months. Accordingly 1st respondent has entered into an Agreement with the petitioner under

Agt. No. 105/RESC/W/13 dated 01.04.2013 at the office of the Applicant situated at Secunderabad. 1st respondent shall complete the work on or

before 19.11.2013.

iii)The value of Agreement was Rs.87,61,418/-. 1st respondent quoted (+) 44% for Schedule A, (+) 22% for Schedule B(covered by USSR- 2011 of South Western Railway, (+) 23% for Schedule D, (not covered by

USSR-2011). Accordingly, 1st respondent had deposited Rs.1,41,000/- towards Earnest Money Deposit vide FDR No. 0657298 dated 16.10.2012, issued by Saptagir Bank/State Bank of India, Gollapudi Branch,

Vijayawada. It had also submitted the Performance Guarantee vide

STDR-0657460 dated 25.03.2013 for Rs.4,40,000/- issued by State Bank of

India, Vijayawada.

iv)The 1st repondent herein was awarded the connected works of provision of protective screens to Foot Over Bridge and ROB and modification to Platform shelters in the said section and the work was awarded to it on 20.02.2013 with an completion period of 9 months i.e.

upto 19.11.2013 for the value of Rs. 87,61,418./- and further the same was extended upto 31.12.2014, 30.06.2015 and 30.09.2015 respectively without imposing any penalty and (6) bills were passed for a tune of

Rs.40,49,005/-.

v)The Head Quarters of South Western Railway, Hubli has approved (6) Bridges Drawings during December, 2014 and on 22.12.2014 the 1st respondent addressed a letter stating that though one year 10 months passed the approved drawings for provision of bridge masts over bridge piers were not supplied and work was not taken up so far and more than 2 years of completion still drawings are not supplied and requested for short close the agreement due to delay in supplying of approved drawings and rates of the material and labour etc. have abonormally increased during the said period. Accordingly, on 23.12.2014 this office has sent copies of 6 drawings to the 1st respondent and to carry out the work for which extension of currency will be granted suitably.

vi)In the meantime, the 1st respondent had addressed as letter

dated 03.01.2015 requested to close the agreement in view of escalation

of rates heavily and also asked certain payments. Even after granting extension of time upto 31.12.2014, the 1st respondent herein did not complete the other bridge works, such as provison of protective screen and modification of platform shelters in the section Ramanagaram-

Mysore section at Stations Maddur, Byadrhalli, Pandavpur,

Shrirangapattana and Mysore were still pending by that time which were to be carried. Similarly, the 1st respondent did not complete the

Protective Screens to FOB/Rob and which were also still to be carried out in Yeliyur-Mysore section during the said period. Despite giving extension upto 31.12.2014 1st respndent failed to execute the said works of

Protective Screen and Plat form shelter, without penalty.

vii)Though the 1st respndent issued letters dated 03.01.2015, to which, the petitioner gave reply dated 09.01.2015 appraising the position and he did not agree for short closure of Agreement in terms of Item 17-

A(iii)of General Clauses Conditions, which reads as follows :- "In the event of any failure or delay by the Railway to hand over the Contractor possession of the lands necessary for the execution of the works or got give the necessary notice to comemnce the works or to provide necessary drawings or instructions or any other delay caused by the Railway due to any other cause whatsoever, then such failure or delay shall in no way affect or vitiate the contract or alter the character thereof to entitle the contract or to damages of compensation therefor, but in any such case the Railway may grant such extension or extensions of the completion date as may be considered reasonable.” viii)Accordingly the Petitioner had instructed the first respondent to take up the balance work immediately in terms of Item 17-

A (iii) of General Clauses Conditions for which currency of Agreement has been extended for a further period of 6 months i.e. up to 30.06.2015 and necessary Subsidiary Agreement forms were duly extending the currency also sent for his signatures. The first Respondent in its letter

dt. 25-1-2015 addressed to the Petitioner attributing with false, baseless

and frivolous allegations and the Petitioner denied the same and reiterated its stand to the first respondent for completion of balance work without further delay in terms of Item 17- A (iii) of General Clauses

Conditions. As there was no response from the first respondent, the

Petitioner herein, accordingly 7 days notice has been issued on 11-2-2015, which was received by the claimant on 13-2-2105.

ix)After discussions with Chief Project Director of Petitioner finally the first respondent agreed to take up the balance work, with regard to Protective Screen on FOB/ROBs Platform Shelter modifications up to NaganHalli and also agreed to complete Bridge works which drawings were supplied to him on 23-12-2014. Though the first respondent agreed to complete the balance work but could not do so and after prolonged correspondence and meeting with Chief Project

Director of the Petitioner, the first Respondent had neither sought for extension of currency beyond 30-9-2015 nor completed the work entrusted to it. The first respondent attended the office of the Chief

Project Director on 29-07-2016 and expressed his unwillingness to continue the left over works and insisted payment of final bill, security deposit and performance guarantee, etc. and refused to give No Due“

Certificate .”

x)In view of the above and in terms of Railway Board's guidelines vide Letter No. RB/CE/6/2 dated 17-05-2004 with the approval of CPD/RE/SC the contract was terminated vide this office in Letter of even No. 11-08-2016. In terms of guidelines mentioned supra, such contracts can be terminated wtihout 7 days/48 hours notice though there is no valid currency. The said letter was issued without address on it, which is typographical mistake and on oversight this was signed and posted to the first respondent to the correct address on the envelope sent to the first respondent and having received the same on 13-08-2016 and the termination was accepted by him and pointed out about 7 days notice and 48 hours notice in his letter dt. 12-09-2016.

xi)Later, the first respondent made reference seeking for appointment of an Arbitrator accordingly CORE/ALD appointed

Respondent Nos. 2 to 4 herein for the disputes arisen between Petitioner and first respondent. Accordingly the Arbitral Tribunal constituted at

New Delhi and entered into reference and thereafter the first respondent herein made its claim statement and the Petitioner herein has filed its detailed Reply Statement/Counter before the Arbitral Tribunal along with documentary evidence.

xii)The Arbitral Tribunal passed its Award on 17-06-2018 at New

Delhi where the proceedings were commenced. The Arbitral Tribunal without considering the facts and circumstances and the reply denying thecontention of the first respondent basing on the Agreement and

Subsidiary Agreement entered allowed Claim Nos. 1 to 5 for a total sum of Rs. 31,95,395/- to be paid by the Petitioner within 60 days failing which the above amount shall carry post lite interest @ 12% per annum from the date of the Award. The Arbitral Tribunal dated 17.06.2018 passed the above Award has gone beyond the scope of Agreement and Subsidiary

Agreement entered by the 1st respondent with the Petitioner without jurisdiction which is opposed to public policy.

xiii)The learned arbitrators, having taken up the adjudication of the reference, examined and considered the statement of claims, statement of defence, rejoinder and various other documents filed by the parties and on hearing written and oral submissions passed the Award referred to above, which is now challenged by the applicant on the following amongst other:-

GROUNDS

1. The Arbitral Tribunal passed award which is contrary to law and facts on record as such the same vitiates the entire proceedings.

2. The Arbitral Tribunal has failed to notice that there was no repudiation of any claim of the Claimant / First Respondent here in at any point of time on the part of the Petitioner for giving rise to any dispute within the meaning of Section 11 of the Arbitration & Conciliation Act 1996.

3. Unless any claim is repudiated on record, it cannot be called as dispute for invoking the provisions of Arbitration. As such the proceedings before the Arbitrator is wholly without any jurisdiction. The learned Arbitrators failed to appreciate the participation of the Applicant by way of filing its statement, conducting or filing written submissions cannot be termed as waiver or conferral of jurisdiction because it is settled principles of law that jurisdiction has to be conferred by operation of law and never by acquiescence of parties.

4. The approach on the part of the Arbitral Tribunal which is prima facie indicative of misconduct, which vitiates the entire proceedings. The first Respondent/Claimant made its specific claim for Rs.50,000/- by giving a wide discussions, by making false, baseless and frivolous allegations against the Petitioner.

5. Under Claim No.1 the claimant made a claim for Rs.50,000/- and made its final bill for Rs. 22,11,878/- without any basis on false and frivolous allegations that the Petitioner failed to produce Technical Registers and Site Registers though demanded by him is false invented and set up for the purpose of this claim.

6. The Arbitral Tribunal without any documentary evidence produced by the first respondent, has awarded a sum of Rs.11,62,755/- as such the said claim is liable to be rejected by considering the same in this application by this

Hon ble Court’

7. The Arbitral Tribunal has failed to consider the claim made by the respondent in its true perspective manner and ought not to have awarded the claim without any supporting documents or not examining any witnesses on its behalf to prove its claim No.1, which is not in accordance with the Measurement Books that recorded as such the Arbitral Tribunal ought to have rejected its claim in toto.

8. The learned Arbitrators have failed to consider the several contentions raised byt he Applicant with regard to price variation clause, which is not applicable to the facts and circumstances of the case.

9. The learned Arbitrators have failed to consider the contentions of the Applicant. The alleged entire claim awarded was based on the imigination of the Tribunal without verifying the claim made in it true perspective manner as such the Award passed by the Arbitral Tribunal is liable to be set aside on this ground alone.

10. The Arbitral Tribunal has failed to consider the specific plea taken by the petitioner that as per General Clause Condition para 22(5) if any ambiguity arises as to the meaning and intent of any portion Specifications and Drawings or as to its execution or quality of any owrk or material, or as to the measurements of the work the decision of the Engineeer thereon shall be final subject to the appeal within 7 days of such decision being intimated to the contractor and the Chief Engineer who shall have the power to correct any errors, omissions, or discrepancies in aforementioned items and whose decision in the matter in dispute or doubt shall be final and conclusive.

11. The Arbitral Tribunal has failed to consider that in the instant case, the petitioner has approved drawings from Head Quarters/South Western

Railway/UBL for only 6 bridges viz. 610 UP, 622 UP and Dn 725, 726 and 727 respectively, which were issued to the 1 st respondent on 23.12.2014 and also specifically informed him that the necessary extention of currency will be granted suitably in terms of Item No.17-A (iii) of GCC.

12. The Arbitral Tribunal has failed to consider and awarded claim N.2 of Rs. 4,40,000/- Performance Guarantee that the contract was ceased long before it was terminated and the same was no extended by the 1 st respondent and ignoring the Railway Board s letter is not correct and is without any basis.’ It is for the first respondent to get the Performance Guarantee extended periodically as such the said claim is not in accordance with law.

13. The Arbitral Tribunal failed to consider that the Claim No. 3 of Rs.4,38,100/- was awarded under Refund of Security Deposit of Performance Guarantee to 1 st respondent awarding the same has come to wrong conclusion. On one hand the as 1 st respondent contends that CBI has seized the Measurement Books and the Arbitral Tribunal has come to wrong conclusion in awarding the same as such, the same has to be considered by this Hon ble court.

14. The Arbitral Tribunal failed to consider Claim No.4 a sum Rs.11,54,640/- overheads due to prolonged contract and awarded the Petitioner to pay the same is without jurisdiction and not in accordance with the Subsidiary Agreement entered by it. The first respondent without producing any documentary evidence such as payment made to labour who were sitting idle and no receipts were filed to substantiate its contention, as such the total claim is liable to be rejected under this application.

15. The Arbitral Tribunal has passed under Claim No. 5 interest @ 18% per annum on the total claim of Rs. 2,20,000/-+ Rs. 93.000/- = 11,54,640/- on the total claim without jurisdiction and the same is liable to be set aside in this application.

16. The Arbitrators have gone beyond the scope of the Agreement and Subsidiary Agreement entered by the first Respondent with Petitioner wherein it has undertaken to complete the work and the currency was extended without penalty.

17. The Arbitrators did not consider many aspects which were raised by the applicant herein. The Arbitral Tribunal without considering has acted beyond the scope of the Subsidiary Agreement by the 1 st Respondent as such the same was not considered by the said Arbitral Tribunal.

18. The Applicant reserves right to amend, alter and supplement the Memorandum of Application by placing on record any additional facts, documents or questions of law or further grounds of application for consideration.

3)Respondent No.1 filed counter denying the averments of the petition and contending interalia that :

i)The application is not maintainable under Sec. 34 of the

Arbitration and Conciliation Act, 1996. If the applicant furnishes proof of any one of the ingredients given under Sec. 34(2), the Arbitral Award may be set aside.

ii)The Arbitral Tribunal has rightly passed the award and the above mentioned provisions are not at all attracted, it is settled law that the scope of Civil Court to intervene with the Arbitration is very much less.

iii)The grounds on which the application was filed are all vague and invented for the purpose of filing the application. The 1st, 2nd, 3rd and 4th grounds questioning the authority of the Arbitral Tribunal for want of constituting dispute within the meaning of Section 11 of the Act was‘’ not raised by the applicant in their statement of defense filed before the

Arbitral Tribunal, as such the applicant is not entitled to take such grounds. The participation of the applicant in the Arbitration proceedings before the Arbitral Tribunal without raising such defense establishes that the applicant has given 'consent' for Arbitration.

iv)The allegations made by the applicant against Arbitral

Tribunal attributing "misconduct" is unwarranted, as the Arbitral

Tribunal was appointed by the highest Railway Authority, i.e. the Railway

Board, consisting of 3 higher officials, who retired from the Railway

Department at the level of Managing Director, Executive Director and

Financial Advisor of various wings of the Railway Department, for whom there would be no need to vitiate the Arbitration proceedings by their alleged misconduct, for the sake of a ‘Contractor , who is respondent’

No.1 herein.

v)As R1 was deprived of having technical register and site order book due to which he was unable to make claim properly and the

Arbitral Tribunal passed the Award and rightly directed applicant herein to produce the same and by considering all the technicalities only, granted Claim No.1 for Rs.11,62,755/-. The Arbitral Tribunal has awarded

Rs.11,62,755/- basing on the proofs submitted by the respondent no.1 herein.

vi)The 7th ground that the claim made by the respondent No.1 was not considered in true prospect and awarded the Claim without any supporting documents or not examining the witnesses on its behalf to prove Claim no.1 is not correct and the applicant never sought permission for the Cross examination of the R1 or any other witnesses,

before the Arbitral Tribunal during the Arbitration proceedings. It is

further incorrect to say that the Claim No.1 is not in accordance with the measurement books, as the technical details such as correct measurements were furnished by the respondent no.1 during the course of the Arbitration proceedings, the Claim No.1 was awarded for

Rs.11,62,755/-.

vii)The aspect of price variation clause, was not raised before the Arbitral Tribunal by the applicant and in fact the R1 is entitled to raise such clause as there is delay established on the part of the applicant in providing drawings etc.

viii)The Arbitral Tribunal passed the Award not on the imagination but basing on the documentary evidence and major lapses on the part of the Applicant. The General Clause condition para 22(5) is not applicable, as it is meant for ambiguities, clarifications or errors but not major lapses like failure to furnish proper drawings to the contractor for months together or terminating the contract after agreement period etc., which resulted into financial loss to the R1.

ix)As admitted by the Applicant, the drawings have to be furnished to the R1 at the time of calling the tenders or finalizing the tender or at the time of entering into the agreement by the contractor.

The R1 entered into the agreement on 01.04.2013. The drawings were not given at the time of issuance the letter of acceptance and as admitted they have given the same on 23-12-2014. The drawings given at the time also incorrect drawings and became useless, when the R1 herein tried to execute the work with the said drawings, could realize the same and all the material fabricated was sold by R1 as 'scrap' due to which the R1 sustained huge financial loss. The work for which the drawings were also left unexecuted by the applicant as the work is not necessary for an abandoned bridges, 725A, 726 and 727. When the applicant knew that the bridges are abandoned, the applicant should not have called for tenders.

x)The performance guarantee, was in force till the completion of the work. The contract was terminated on 11.08.2016 but in reality the work was completed by 30.09.2015 the date of measurement was 26.12.2015 and final bill was prepared. It is clear that after the agreement period and after the measurement and preparation of the final bill only the contract was terminated which is infectious. Thus, the question of extending the performance guarantee periodically does not arise.

xi)The Arbitral Tribunal considered the Claim Nos .2 and 3 for

Rs.4,40,000/-, Rs. 4,38,100/- and rightly awarded, towards the performance guarantee and refund of security deposit, respectively. As the performance guarantee was in force during the entire contract period and the contract period was completed, the refund of the security of performance guarantee is legal. The CBI case is not related with the present contract and as such the applicant, knowing fully well about the same, made the misrepresentation about the CBI Case. The respondent sustained loss due to prolonged contract, i.e. more than 19 months beyond the usual date of completion, the drawings were provided to the

R1. In such drawings there were mistakes regarding diameter of holes and as such award the compensation from over heads due to idling‘ man power' that the prolonged contract period is an admitted fact and the receipts obtained from the labour were also produced by the R1 herein, before the Arbitral Tribunal.

xii)The Arbitral Tribunal disallowed the claim of the Rl, towards claim No.5 for Rs.22,43,720/- and no amount was granted towards the interest the amount shown ground No. 15 was the amount granted under claim No.4. The subsidiary agreement evolved was due to the prolonged contract at the instance of the applicant herein. The currency was thus extended without penalty by the applicant herein. The Arbitral Tribunal considered all the aspects and pleadings of both the parties and without any bias, passed the award. The total claim made by the applicant was

Rs.74.01,698/- and whereas award was granted for Rs.31,95,395/-.

xiii) The applicant from the beginning put him to hardship in one way or other, resulted into severe financial loss to him and also caused mental agony. Though the Arbitral Tribunal passed award for

Rs.31,95,395/- instead of his original claim Rs. 74,01,698/-, the R1 did not choose to file any application challenging the same, with an intention to an end to the litigation and for getting the award amount on an early date in view of his poor financial situation. The applicant though knew pretty well that they did not have prima facie case in their favour to challenge the award, yet only with an intention to harass him filed

before this Court, which further caused him mental agony and financial

loss. Therefore, the R1 prayed to dismiss the application with costs.

4)Written arguments filed on behalf of both the parties, which would form part of this judgment under Order XVIII Rule 2 (3A).

5) Now the points for consideration are :-

1) Whether the Award of learned Arbitrators is factually

tenable and legally sustainable or needs to be setaside ?

2) To what relief?

6) POINT NO.1 :-

i)It is not out of place to mention here that arbitration is a form of alternative dispute resolution where the parties to the lis can settle the dispute out of the Court by arbitral tribunal appointed by the parties to the dispute or by the court at the request by the parties.

Indeed, the law relating to arbitration in India is based on the English arbitration law. In 1940, the Indian Law on arbitration has been drafted in the form of Arbitration Act, 1940 which remained in force till it was replaced by new Arbitration and Conciliation Act, 1996 which removed many serious defects of the earlier Arbitration Law but also incorporated new concepts of arbitration.

ii)The Arbitral award has been treated at par with the decree of the Court and enforced in the manner as if it were a decree.

iii)It is indeed, no provision is there for appeal against anarbitral award and it becomes final and binding between the parties.

Nevertheless, an aggrieved party may take recourse to law court in order to set aside arbitral award on such grounds envisaged under Sec.

34 of the Arbitration and Conciliation Act, 1996.

iv) Be that as it may, the parties cannot prefer appeal against the arbitral award as to its merits and the Court cannot interfere on its merits. The Hon ble Apex Court of land held that Arbitrator is a Judge’“ appointed by the parties and as such an Award passed by him is not to be lightly interfered with. But it does not mean that there is no check on the arbitrators conduct. In order to check such conduct of the arbitrator and so as to assure proper conduct of the proceedings law indeed allows certain remedies against the award.

v) It is worthy to note here that the following are the grounds under Sec. 34 of the Arbitration and Conciliation Act, 1996 so as to set aside the arbitration award.

1) Incapacity of a party;

2) Arbitration Agreement not being valid;

3) Party not given proper notice of arbitral proceedings;

4) Nature of dispute not falling within terms of submission to arbitration and

5) Arbitral procedure not being in accordance with the agreement.

vi)Apart from the above, two more grounds under Sec. 34(2) (b) of Arbitration and Conciliation Act, 1996 provided which are left with the

Court itself to decide whether to set aside the arbitral award or not, those are 1) dispute is not capable of settlement of arbitral process2)

Award is in conflict with the public policy of India.

vii)In this backdrop, now I shall advert into the grievances putforth by the petitioner in this AOP.

viii)It appears that the petitioner issued tender notice dated 11.9.2012 for the work of (1) providing bridge mast over bridge pier (2) protective screen to FOB & ROB (3) modification to platform shelter between Ramanagaram Mysore section of SW Railway. Accordingly,– the work was awarded to the respondent/claimant vide letter dated 20.02.2013 and accordingly, contract agreement dated 1.4.2013 was entered into between them for a total value of Rs.87,61,418/- within the stipulated period on or before 19.11.2013.

ix)Since certain disputes arose between the parties, the respondent/claimant submitted before Arbitral Tribunal as many as five claims as under:-

1) Claim No.1 –Final Bill for Rs.22,07,878/-;

2) Claim No.2 – Refund of Performance Guarantee to a sum of Rs.4,40,000/-;

3) Claim No.3 – Refund of Security Deposit Rs.4,38,100/-

4) ClaimNo.4 –Overheads due to prolonged contract (they had worked out an amount of Rs.59,53,200/-, but had to restrict their claim to a sum of Rs.20,68,000/-

5) ClaimNo.5 –Interest @18% from the date of completion of work i.e.30.9.2015 till the date of actual payment Rs.22,43.720/-.

Thus, in all the total claim of respondent/claimant is Rs.74,01,698/-.

x)The learned Arbitrators under Claim No.1 awarded

Rs.11,12,755/- as against the claim of respondentto the tune of

Rs.22,11,878/-. For claim No.2, the entire amount of Rs.4,40,000/- claimed for by the respondent/claimant towards refund of performance guarantee has been awarded. Coming to claim No.3 in respect of refund of security deposit of Rs.4,38,000/-, the entire amount has been awarded that includes earnest money plus Rs.2,97,100/- deducted from RA Bill No.1 to 6. Coming to claim No.4 in respect of overheads due to prolonged contract, Rs.11,54,640/- was awarded as against the claim of Rs.20,68,000/-.

Coming to the last claim No.5 in respect of granting interest @18% per annum from the date of completion of work till the actual payment i.e.

calculated to the tune of Rs. 22,42,720/-, the learned Arbitrators did not allow. Admittedly, the respondent/claimant did not initiate any proceedings available under law in respect of disallowing his claim No.5 and partially awarding the claim Nos.1 to 4.

xi)Be that as it may, the contention of the applicant is that the respondent/claimant under the first claim sought for awarding

Rs.50,000/- and made its bill Rs.22,11,878/- without any basis on false and frivolous allegations that the applicant therein failed to produce technical registers and site registers. Reference is made to the findings of the learned Arbitrators in respect of claim No.1. It appears that the applicant as respondent was directed to submit the documents, but he did not. Consequently, they had to observe that the applicant has falsely claimed that the technical register was never being maintained despite admitting the existence of such registers in the statement of defence. The learned arbitrators concluded that various claims in the contract arose on account of the failure of the respondent therein (applicant herein) in not providing correct drawings fit for execution of the work at the site well in advance and in time. According to them, since the drawings are not supplied in time, there is also a delay in handing over various sites. Except a bald contention found in the grounds of application, the applicant could not demonstrate his contentions with reference to tenable material. Therefore, such contention has no force to accept.

xii)So far as claim No.2 is concerned, it is the greivance of the applicant that the Arbitral Tribunal has miserably failed to appreciate the contentions he raised. Reference is made to the findings of the learned Arbitrators in that respect. They found that the applicant incorrectly relied upon the Railway Board Circulars and they have categorically held that the delay was solely on account of applicant, who is not able to supply the correct drawings and making site available within the stipulated time mentioned in LAO, thereby the applicant allowed the contract to expire. Consequently, they felt that it is not proper to hold the claimant responsible for non performance and having considered the terms of Clause 35 of the Tender Form (Fit Sheet)

Schedule II (Part I), the entire amount of Rs.4,40,000/- was awarded towards refund of performance guarantee. No tenable or acceptable material is brought on record by the applicant to hold their finding is arbitrary and without any substance. Since the contract seems to have been terminated on 11.8.2016 even though the work was completed by 30.09.2015 the performance of guarantee was indeed in force during the entire contract period as such,the finding of the Arbitral Tribunal to refund the security of performance guarantee can be neither held to be invalid nor illegal. For the above reasons, the contention of applicant has no force to stand.

xiii)Except contending that the Arbitral Tribunal failed to address the claim No.3 and erroneously awarded Rs.4,38,100/- towards refund of security deposit, nothing could be brought on record by the applicant to sustain such contention. Nevertheless, looked into the findings of the Aribral Tribunal in that respect. A sum of Rs. 1,41,000/- was under earnest money deposit, as per LAO through FDR so as to complete the contract as per clause 37 of Contract Agreement. Balance was to be deducted in the form of cash from every bill at 10% till 5%.

According to SOD dated 20.10.2017 upto VI Running Bill a sum of

Rs.40,49,000.005.43 was paid to claimant. So full amount of security deposit of Rs.4,38,100/- was obtained by the applicant. As per Clause 39 of Contract Agreement of Tender Form, the security deposit needs to be returned after expiry of the maintenance period and passing final bill.

The applicant entered into final bill VII on 26.12.2015 as per R4. Copies of measurement book contain such running bills I to VIII. The finding of

Arbitral Tribunal is that in the works executed by respondent / claimant, during the hearing before them i.e. later half of 2017 i.e after more than 18 months. Under those circumstances, it was held that full amount of security deposit to be and as such, allowed. In-as-much as, the applicant is not able to succeed in substantiating his contention that Arbitral

Tribunal erroneously awarded Rs. 4,38,100/- towards Refund of Security

Depsoit of Performance Guarantee, there is no reason to interfere with such findng of Arbitral Tribunal.

xiv)In respect of claim No.4 “Overheads due to prolonged contract , it is the contention of the applicant that the Arbitral Tribunal” without any jurisdiction awarded a sum of Rs.11,54,640/- which is not in accordance with Subsidiary Agreement. The endeavour of learned counsel for applicant is that the respondent/claimant failed to produce any documentary evidence and as such, the said claim awarded is liable to be set aside. Reference is made to findings of the learned Arbitrators.

Their view was that clause 17(a) (iii) in the instant case has been stretched a bit too far and the claimant has a case for compensation for overheads due to idling manpower holding that the appellant has“” simply relied upon such clause. They further found that it was a routine type of work in the contract for which, a completion period of 9 months was envisaged. However, till 30.06.2015 for more than 19 months beyond such stipulation the drawings were being provided to the claimant and few of them were having mistakes in respect of diameter of holes. It seems that as against the claim of Rs.20,68,000/- and inspite of the fact that the payment details of workmen provided at the site to a sum of

Rs.46,73,200/-, the Arbitral Tribunal partly allowed to the extent of

Rs.11,54,640/-. The applicant is not able to substantiate his contention in respect of the fact that the findings of Arbitral Tribunal suffer from any material irregularities or improprieties. Therefore, there is no merit in the contention of the applicant to disturb such finding of Arbitral

Tribunal.

xv)In so far as claim No.5 is concerned, it is in respect of interest @ 18% per annum from the date of completion of the work i.e.

from 30.9.2015 till the date of actual payment, it is the contention of applicant that the Arbitral Tribunal without jurisdiction passed the claim thereunder. It is surprising to note here that, as a matter of fact the

Arbitral Tribunal indeed noted that as per GCC which is a part of contract agreement payment of interest is an excepted matter and thus, it did not allow such claim, but the applicant mistakenly seems to have raised contention that the Arbitral Tribunal without jurisdiction passed claim of interest under claim No.5. Therefore, the said contention which appears to be feeble does not have any merit to consider.

xvi)Be that as it may, in South East Asian Marine Engineering &

Constructions Ltd. (SEAMEC Ltd) v. Oil India Limited1, the Hon ble Apex’

Court of the land paras 12 and 13 held as under:- “12. It is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the Courts. Recently, this Court in Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd. [2019 SCC Online SC 1656] laid down the scope of such interference. This Court observed as follows 26. There is no dispute that “Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award.

Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. (emphasis supplied).”

13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning. This Court in Dyna Technologies (supra) observed as under 27. Moreover, umpteen number of judgments of this Court have“ categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act. (emphasis supplied) ”” xvii)The grounds mentioned in Sec.34 (2) (a) entitles the Court to set aside an Award only when the parties seeking such relief furnishes

1) 2020 (4) ALT 47(SC) proof as regards the existence of the grounds mentioned therein. In the instant case, the first respondent made reference seeking for appointment of an Arbitrator accordingly CORE/ALD appointed

Respondent Nos. 2 to 4 herein for resolving the disputes arisen between claimant and applicant herein. Accordingly, the Arbitral Tribunal constituted at New Delhi and entered into reference and thereafter the first respondent herein made its claim statement and the Petitioner herein has filed its detailed Reply Statement/Counter before the Arbitral

Tribunal along with documentary evidence. After extending sufficient opportunity to the parties, the Arbitral Tribunal had to pass the award duly following the principles of natural justice. Therefore, the applicant, who is none other than the Deputy CE/ RE Secunderabad from whose department, the Arbitrators were appointed, in the absence of any positive proof of the assertions he made in the appeal against the award, the application is neither factually tenable nor legally sustainable.

Therefore, the application is liable for dismissal. Accordingly, I hold under this point.

6) POINT NO.2 :-

In the result, this AOP is dismissed as devoid of merits. In the circumstances of the case, there is no order as to costs.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 31st day of August, 2020.

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED NIL–

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : M. SRINIVASA CHARY, XXVII Addl. Chief Judge

MONDAY, THE 02nd DAY OF NOVEMBER, 2020

A.O.P. NO. 652 OF 2015

Between:

M/s M.V.V. Satyanarayana--Petitioner

A N D

Union of India, rep. by

1) Sr. DEN(Coord.)/HYB Division South Central Railway, Secunderabad

2) Sunil Kumar Gupta CME/PLG/SC Railway, Rail Nilayam, South Central Railway, Secunderabad.

3) E.V. Krishna Reddy FA & CAO /S&W/SC Railway, Lekha Bhavan, South Central Railway, Secunderabad.

4) Sanjiv Agarwal CE/TP/SC Railway, Nirman Bhavan, South Central Railway, Secunderabad.--Respondents

This petition is coming before me for final hearing in the presence of Sri Prasadrao Vemulapalli, Advocate for the petitioner and of Sri K.Suryanarayana, Advocate for respondent No.1 and the matter having been heard and stood over for consideration till this day, the Court made the following :

O R D E R

1)The learned Arbitrators / respondents 2 to 4 passed the

Award dated 23.02.2015 and granted a sum of Rs.21,42,551/- (after statutory deductions if any) under Claim No.1 Release of Final Bill– amount of Rs.24,15,252/- and rejected the other two claims i.e. 2) interest on claim No.1 on final bill amount at 2% per month, monthly rests i.e. cumulative (from 1.11.2006 to 30.06.2012) and (3) interest on claim No.2 from 01.07.2012 till date of payment at 2% per month, monthly rests i.e. cumulative.

Feeling aggrieved in respect of rejection of claims 2 and 3 referred to above the present application under Sec.34 (2)(a)(iv) &(b)

(ii) read with Sections (1) (a) of Section 28 of the Arbitration and

Conciliation Act, 1996 is filed by the petitioner praying :

i)to set aside the Award dated 23.02.2015 passed by the respondents 2 and 3 in respect of claim Nos.2 and 3; ii)to allow the claim of the petitioner to an extent of 1.32 crores and interest @ 18% per annum on the said amount from 23.02.2015 till the date of payment; iii)to award costs of the proceedings; and iv)to pass such further other order as this Court may deem fit and proper in the circumstances of the case and in the interest of justice.

2)In brief, the averments of petition are as follows:-

i)The respondent No.1 awarded a work to the petitioner in respect of construction of new office building for Hyderabad

Division of South Central Railway at Secunderabad, through

Acceptance Letter dated 04.01.2005. Thereafter an agreement was entered into between the parties. In terms of the Acceptance Letter, the initial value of the work was Rs. 3,06,72,250.22 with a completion period of eight months reckoned from the date of acceptance letter i.e. the work should be completed on or before 03.06.2006. Due to change in the work , execution of certain additional items and extra quantities were necessitated due to which, the work could not be completed within the original period and was completed on 31.04.2006 with due and valid extension without penalty. The final measurements were recorded on 10.01.2007. As against the original value of Rs.3,06,72,250.22, the final value of the work was more than

Rs. 4,9 crores.

ii)In terms of agreement, the petitioner was bound to execute 25% of additional items and extra quantities beyond the agreement/value quantities at the agreed rates. Any work beyond 25% was to be negotiated in respect of rates if the work had to be executed by the petitioner. The negotiations can only take place after the competent authorities prove the additional terms and extra quantities. Since the additional items and extra quantities were necessary to complete the work, the petitioner was promised that he will be paid reasonable rates after getting the approval from the competent authority, basing upon which, the petitioner completed the work including additional items and extra quantities.

iii)Due to internal problems of South Central Railway during the relevant point of time, the executing authority-1st respondent could not get the approval for the additional items and extra quantities that have already been executed due to which there was abnormal delay in releasing the final bill amount of

Rs.21,42,551/-, which is yet to be paid. In view of the disputes as to the quantity of work the competent authority constituted an Arbitral

Tribunal with respondents 2 to 4. The Tribunal passed the impugned Award for an amount of Rs. 21,42,551/- in respect of claim

No.1 and rejected the other two claims. This petition is filed challenging the Award only in respect of claims 2 and 3.

iv)Due to abnormal delay in releasing the final bill, the petitioner had to pay bank charges to its banker thereby sustained losses. If the petitioner was put to notice about the internal squabbles and the delay in getting the additional items and extra quantities approved, it would not have ventured to execute

additional items and extra quantities beyond the agreement

quantities. In addition to the interest paid to his bankers, the petitioner was also deprived of utilizing the amount due to it in subsequent agreements, thus disabled it in improving its turnover.

The Tribunal after due deliberations held that there was abnormal and undue delay in recording the final measurements, preparation of final bill and consequent release of amount. However, the

Tribunal refused to award any compensation for the abnormal value of more than eight years due to which, this petition is filed on the following amongst other:-

GROUNDS

1. The Award passed by the Arbitral Tribunal (respondents 2 to 4) in respect of claims No.2 and 3 is contrary to the probabilities of the case and weight of evidence and hence, contrary to the law for the time being in force.

2. The Arbitral Tribunal committed a grave error in rejecting the claims No.2 and 3 relying on a Judgment whose facts are entirely different from that of the case on hand.

3. The Arbitral Tribunal failed to note that when a statute provides a remedy, the same had to be vigorously adhered to and implemented and any agreement contrary to statue is void. In the instant case, the Arbitral Tribunal gave a clear finding that the respondent railways have inordinately delayed recording of measurements and consequent preparation of Final Bill. However, the Arbitral

Tribunal on an erroneous appreciation of law did not grant any relief in respect of claims 2 and 3 which is against public policy.

4. The rejection of claims 2 and 3 by the Arbitral Tribunal is contrary to the law laid down by a Constitution Bench of Apex Court in Central Bank case.

5. The Arbitral Tribunal failed to appreciate the case in proper perspective. When a person is deprived of use of his lawful money he is entitled for compensation that may be called by any name. In the instant case, the Arbitral Tribunal refused to grant relief in respect of claims 2 and 3 only on the ground that Clause 64.5. is a bar in granting interest, which is against the settled law and hence against public policy.

3)Respondent No.1 filed counter denying the averments of the petition and contending interalia that :

i)The application is not maintainable either in law or on facts as the grounds urged by the petitioner do not comply with

Section 34 of the Arbitration and Conciliation Act, 1996. An award passed in Arbitration proceedings under new Act can only be interfered within the grounds provided under Sec. 34 and on no other grounds urged. Section 5 of the Arbitration and Conciliation

Act, 1996 restricts the interference of the courts only to the provisions provided in Part I. Thus, unlike Arbitration Act, 1940 the interference of the Courts has been minimized under Arbitration and Conciliation Act, 1996.

ii)The joint Arbitrators have passed the Award after due consideration of all the relevant documents and also in accordance with the law. Full opportunity was given to both the parties and the

Award passed by the Joint Arbitrators is in accordance with the public policy. Hence, there is no error apparent on the face of the

Award.

iii)The completion period of the work is 8 months and due date of completion is on 03.06.2006. Subsequently, the currency of the Agreement was extended upto 31.10.2006, 31.12.2006 on the request of the petitioner/contractor without any penalty to complete the balance works leftover by the petitioner. The work was commenced on 04.05.2005 and completed on 31.10.2006.

iv)During the course of execution, the quantities in the foundations and other items are increased based on the site condition, soil classification and design criteria. The additional items are introduced on account of the improvements to have aesthetic appearance and durability. Subsequently, all the extra quantities required and additional items to be operated have been processed under first variation and finalized subsidiary Agreement for the value of Rs. 5,04,71,079/- on 15.11.2006. The respective increase in quantities and additional items have been paid in CC XIV for the total value of Rs. 4,68,59,393/- on 16.11.2006 without any delay against the original agreement value of Rs. 3,15,93,917.92 ps. The final variation statement on completion of work with additional items which are not available in original agreement and not paid was prepared, accordingly the revised estimate was processed for

Railway Board/New Delhi s sanction. The Railway Board sanctioned’ the revised estimate vide letter No. 2006/LMB/3/28 dated 20.07.2012.

The final variation statement of this work prepared for the value of

Rs.4,98,13,899/-and the negotiations completed with the petitioner and entered the subsidiary agreement vide SA No.36/Sr.DEN/Co- ord/HYB/SA3 dated 26.02.2013. This is statutory process for processing of the variations and for processing the additional items required to be carried out beyond the scope of the original agreement. The process will be initiated after mutually agreed between the petitioner and respondent vide Clause No. 39(i) 41 and 51(1) of GCC and Agreement Clause No.21.

v)The final bill was prepared based on this Final Variation

Statement and requested contractor to submit the No Objection“

Certificate so as to finalize this agreement. The petitioner has not” submitted the No Claim Certificate. However, as per guidelines for processing the final bill vide Hqrs letter No. W.148/P/Vol.VI dated 12.06.2009, the final bill was passed and Final Bill amount was kept under suspense account. The Respondent Railway has not made any delay at any point of time.

vi)The variations for the extra quantities and additional items required to be carried out beyond the scope of the original agreement have been assessed and this extra scope discussed with the petitioner vide Clause No. 39(i) 41 and 51(1) of the General

Conditions of Contract (GCC) and Agreement Clause No.21.

Accordingly, the final variation statement prepared for the extra quantities and additional items executed at site and processed for sanction. This process was initiated after mutual agreement between the petitioner and respondent. Subsequently 1st variation has been processed and finalized Subsidiary Agreement for the value of Rs.5,04,71,079/- on 15.11.2006. The respective increase in quantities and additional items has been paid in CC XIV for the total value of Rs. 4,68,59,393/- on 16.11.2006 without any delay. The final variation statement was prepared and submitted for vetting. As per the directions of the Finance Department, the revised estimate was prepared and sent to Railway Board for approval. Finally, the revised estimate was sanctioned for the total values of Rs. 5.43 crores( Net) vide Railway Board s Letter No. 2006/LMB/3/28 dated’ 20.07.2012. The final variation statement vetted by the Finance on 27.09.2010 for the value of Rs. 4,98.13,899/-. The negotiation for the final variation is finaziled on receipt of the sanction of the revised estimate. The negotiations completed with the petitioner and the rates were mutually agreed with the petitioner, finalized and entered the Subsidiary Agreement vide Subsidiary Agreement

No.36/Sr.DEN/Co-Ord/HYB/SA3 DATED 26.02.2013. There is no delay for processing the variations and additional items required to be executed and the final payment was arranged based on the

Arbitration Award.

vii)Pending the submission of No Claim Certificate , the“”

FCC was processed. However, as per guidelines, FCC passed and kept in deposit on 12.09.2013. The respondent railway has not made any delay at any point of time but, the petitioner preferred the arbitration with three claims. The General Manager, South Central

Railway has appointed the Arbitration Tribunal for the settlement of disputes/claimsaroseovertheAgreementNo.

36/Sr.DEN/Co-Ord/HYB dated 18.10.2005. Accordingly, the Arbitral

Tribunal awarded the claim No.1 for an amount of Rs. 21,42,551/o on 23.02.2015. PCE/SC vide letter No. W.148/Y/ARB/MVVS/Agt.36 dated 04.05.2015 has advised that the competent authority i.e. General

Manager has communicated sanction for payment of Rs. 21,42,551/- for the claims as per the Arbitration Award dated 23.02.2015. As per the contract agreement between the petitioner and respondent, there is no provision for any compensation in the form of interest payment or damages due to delay in payment for extra quantities beyond the original agreement and additional items. During the course of execution, the respondent has not made any promise or indication to the petitioner for making the payment or any kind of interest or damages or losses for delay in arranging the payment for the extra quantities/additional items executed. The Arbitral

Tribunal did not consider any merit in claims No.2 and 3 and therefore, awarded NIL amount for these two claims. The Arbitral“”

Tribunal considers the Judgment in the case of involving M/s Sri

Kamatchi Ammal v. DRM/Works/Palghat, Supreme court (reported in 2010 (3) Arb. LR 442 (SC)) and the judgment has clearly stated that no interest is payable to the petitioner on the amounts payable to him under the contract, since there is specific bar under Clause 16 (2) of General Conditions of the Contract (GCC of Railway), which is a part of the agreement agreed by both the parties. Since the petitioner has agreed to execute the extra quantities and the

additional items as per the provisions in the agreement conditions

to read in conjunction with GCC conditions. The respondent railway has not rendered any consent for making any kind of interest, compensation, damages, losses, directly or indirectly for the quantities executed beyond the scope of the agreement with

additional items. Therefore, the claims 2 and 3 of the petition is an

afterthought with malafide intentions.

viii)The findings recorded by the Arbitral Tribunal are based on record and proper appreciation of evidence. In none of the grounds urged by the petitioner, it is stated how these findings effects the public policy. In the absence of any proof, this Court cannot disturb the findings of fact recorded by the Arbitral Tribunal.

The Arbitral Tribunal has given cogent reasons for arriving at such conclusion and the reasons recorded by the Joint Arbitrators are based on material available on ground, the award is not vitiated by any clause under Sec.34 of the Arbitration and Conciliation Act, 1996. Hence, there are no grounds to interfere with the Award passed by the learned Arbitrators and the petition filed by the petitioner is liable to be dismissed.

ix)The Award cannot be set aside merely on the ground of mis-reading, mis-construction or misappreciation of material on record nor can it be set aside merely because on courts assessments an alternative view is possible, as held in the State of

Rajasthan v. Puri Construction Company Ltd. (1994 (6) SCC 485)

x) The court cannot re-examine or reappreciate the evidence taken into consideration by the Arbitrators in arriving at their conclusions as pointed out in Sarbjit Singh v. State (AIR 1985 P & H 179). The Arbitrators cannot be questioned about the factors taken into account by them in determining the quantum of compensation or in exercises of his discretionary powers as held in

State of Orissa v. Niranjan Swain (AIR 1973 Ker 262). In the present petition, the petitioner/claimant miserably failed to prove the ground on which he asserted that the Award be set aside.

xi)The Arbitrators given out reasons for arriving at their conclusions, referred several documents relied upon by the parties, no error apparent on the face of the record as held in N.C.T. of Delhi v. R.K. Construction Company in 2003 (a) Arb.LR 465 (Delhi). There is no error apparent on the face of the Award passed by the respondents 2 to 4 /Joint Arbitrators. Hence, prayed to dismiss the petition with costs.

4)Written Arguments filed on behalf of petitioner and the same shall form part of the record. Heard the counsel for petitioner and R1 and perused the record.

5) Now the points for consideration are :-

1) Whether the Arbitrators could Award any interest in view of Clause 16(3) and Clause 64(5) of the

General Conditions of Contract ?

2) Whether the impugned Award dated 23.2.2015 in respect of rejection of claims 2 and 3 is against

public policy of India and liable to be set aside ?

3) To what relief?

6) POINTS NO.1 AND 2 :-

i)It is not out of place to mention here that arbitration is a form of alternative dispute resolution where the parties to the lis can settle the dispute out of the Court by arbitral tribunal appointed by the parties to the dispute or by the court at the request by the parties. Indeed, the law relating to arbitration in India is based on the English arbitration law. In 1940, the Indian Law on arbitration has been drafted in the form of Arbitration Act, 1940 which remained in force till it was replaced by new Arbitration and Conciliation Act, 1996 which removed many serious defects of the earlier Arbitration

Law but also incorporated new concepts of arbitration.

ii)The Arbitral award has been treated at par with the decree of the Court and it can be enforced in the manner as if it were a decree.

iii)It is indeed, no provision is there for appeal against an arbitral award and it becomes final and binding between the parties. Nevertheless, an aggrieved party may take recourse to law court in order to set aside arbitral award on such grounds envisaged under Sec. 34 of the Arbitration and Conciliation Act, 1996.

iv) Be that as it may, the parties cannot prefer appeal against the arbitral award as to its merits and the Court cannot interfere on its merits. The Hon ble Apex Court of land held that’ “Arbitrator is a Judge appointed by the parties and as such an

Award passed by him is not to be lightly interfered with. But it does not mean that there is no check on the arbitrators conduct. In order to check such conduct of the arbitrator and so as to assure proper conduct of the proceedings, law indeed allows certain remedies against the award.

v) It is worthy to note here that the following are the grounds under Sec. 34 of the Arbitration and Conciliation Act, 1996 so as to set aside the arbitration award.

1)incapacity of a party;

2) Arbitration Agreement not being valid;

3) Party not given proper notice of arbitral proceedings;

4) Nature of dispute not falling within terms of submission to arbitration and

5) Arbitral procedure not being in accordance with the agreement.

vi)Apart from the above, two more grounds under Sec. 34(2)

(b) of Arbitration and Conciliation Act, 1996 provided which are left with the Court itself to decide whether to set aside the arbitral award or not, those are 1) dispute is not capable of settlement of arbitral process 2) Award is in conflict with the public policy of

India.

vii)In this backdrop, now I shall advert into the grievances putforth by the petitioner in this AOP. The learned counsel for petitioner has vehemently argued that the ambit of Section 34 of the

Arbitration and Conciliation Act, 1996 (for short Act, 1996 ) to“” interfere with Award is further restricted by Section 5 of the Act, 1996; thus, the law stands that Arbitral Award can be interfered only if it is against public policy of India as held by the Hon ble Apex’

Court in Associated Builders v. Delhi Development Authority 1 . He has drawn my attention to paragraphs 17,19, 21, 22 26 to 29 31, 32, 40, 42.1.

and 43 whereunder stated what is public policy. His endeavor is that there is no bar for the Arbitrators under Clause 16(2) of General

Conditions of Contract in awarding interest on the amount awarded.

According to him, the Judgments relied upon by the respondents need to be scrutinized in view of conflicting and contradictory judgments rendered by the coordinate benches of the Hon ble Apex’

Court inspite of the fact that issue was set to rest by three Judges

Bench and Constitution Benches.

1) (2015) 3 SCC 491 viii)It is his further submission that as per the findings of the

Arbitral Tribunal, the work was completed on 31.10.2006 and it was held that there has been undue delay in releasing the payment for the work done and admitted. Having given such finding and further finding no fault on the part of the petitioner for such delay, the learned Arbitrators ought not to have rejected claims 2 and 3. He has strenuously argued that the learned Arbitrators relying upon the Judgment cited on behalf of respondents inM/s

Kamatchiamman Construction v. Divisional Railway Manager (Works),

Palghat and others 2 without reference to the other judgments of the

Hon ble Apex Court and of the Division Bench of AP High Court,’

which is against public policy as annunciated by the Hon ble’

Supreme Court in Associated Builders Case cited supra. His endeavor is that when a person is deprived of use of his lawful amount on account of the delay on the part of the other side, he is entitled for compensation or call it by any name. Such a settled principle of law is overlooked by the Arbitral Tribunal. He has relied upon a decision in State of UP v. Harishchandra 3and contended that a three judge bench while dealing with clause similar to Clause 16(2) of GCC held that such bar is only on department and it does not apply to the Arbitrator. For the same principle he has also cited authorities of the Hon ble Apex Court in ’Madnani Constructions

Corporation Pvt. Ltd. v. Union of India (Railway Case) 4 and contends that the Hon ble Apex Court reiterated the same while dealing with’

Clause 16(2) of GCC. It is also further contended that similar was the ratio in Board of Trusties for the Port of Calcutta v. Engineers-De-

2) 2010 (7) SCJ 625 = 2010 (8) SCC 767

3) (1999) 1 SCC 63

4) (2010) 1 SCC 549 space-Age 5. He has also relied upon an authority of the Hon ble’

Apex Court in Union India v. Ambika Constructions 6and argued that it was held that Clause 16(2) cannot by itself be construed as a bar and holistic view has to be taken while interpreting the said clause.

He has also cited an authority in Vedanta Ltd. Shenjen Shandong

Nuclear Power Construction Co. Ltd. 7 and contended that what is the “interest was defined and held further while allowing the interest” the Arbitrator should consider the losses that accrue due to withholding the amount due to the contractor. Further he has cited another authority in Union of India v. Susaka Pvt. Ltd. 8and contends that the Hon ble Court upheld the award of interest. Another’ decision he relied upon is M/s Raveechee and Co. v. Union of India 9 and contends that the Hon ble Apex Court explicated and’ expounded the meaning, intent and purport of granting interest which is in tune with the ratio laid down by two Constitution

Benches of the Hon ble Apex Court in ’Secretary, Irrigation

Department, Govt. of Orissa and others v. G.C. Roy 10, and Executive

Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others v.

N.C. Budharaj (deceased) by LRS. and others11 .

ix)On the other hand, the learned counsel for R1 argued that the learned Arbitrators passed the Award in accordance with the powers conferred upon them and with reference to the terms of contract and general conditions of contract. His endeavour is that

5) 1996) 1 SCC 516

6) AIR 2016 SC 1441

7) AIR 2018 SC 4773

8) (2018) 2 SCC 182

9) AIR 2018 SC 3109 = (2018) 7 SCC 664 10) (1992) 1 SCC 508 11) (2001) 2 SCC 721

Clause 64.5 of the General Conditions of Contract specifically speaks the fact that where the Arbitral Award is for payment of money, no interest shall be payable on whole or any part of the money for any period till the date on which the Award is made.

Thus, the impugned Award cannot be questioned as it is not passed against the public policy. So contending, the following authorities have been relied upon on behalf of the R1:-

1) Sri Chittaranjan Maity v. Union of India 12

2) Sri Kamachiamman constructions v. the Divisional Railway Manager (Works) Palghat and others 13

3) Union of India v. Krafters Engineering and Leasing Pvt. Ltd. 14

4) Food Corporation of India v. Chandu Construction and another 15

x)Having due regard to the rival submissions canvassed on either side, reference is made to General Conditions of Contract, in which, Clause 64.5 runs as under :- “Where the Arbitral Award is for the payment of money, no interest shall be payable on whole or any part of the money for any period till the date on which the Award is made.” xi)Now it is relevant to extract here the provision under

Sec. 31(7) (a) (b) of the Act, 1996 for brevity and better understanding:- 31(7)(a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

12) 2017 (9) SCJ 183

13) 2010 (3) Arb.LR 442 (SC)

14) 2011 (3) Arb.LR 153 (SC)

15) 2007 (2) Arb.LR 74 (SC) 1 [b) A Sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two percent higher than the current rate of interest prevalent on the date of award, from the date of award to the date of payment.

Explanation – The expression ‘current rate of interest’ shall have the same meaning as assigned to it under Clause (b) of Section 2 of the Interest Act, 1978 (14 of 1978)] (substituted for clause (b) by Act No.3/2016 w.e.f. 23.10.2015). Prior to substitution, it reads as under :-

A Sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen percentum per annum, from the date of award to the date of payment.

xii)In-as-much as, a specific provision has been engrafted under Sec. 31(7) (a) of the Act, 1996, if the Agreement prohibits award of interest for the pre-award period (pre-referrence) and pendente lite period, the Arbitrator cannot grant interest for the said period.

Here Clause 64.5 specifically states that no interest shall be payable on whole or any part of the money for any period till the date on which the Award is made, hence, the Arbitrators seems to have not granted any interest. The words used in Sec. 31(7) of the Act, 1996 i.e unless otherwise agreed by the parties clearly indicate that the

Arbitrators are bound by the terms of the contract in so far as granting any amount in respect of interest from the date of cause of action to the date of Award.

xiii)There are some judgments under Arbitration Act, 1940 that allowed interest despite a bar in the contract, but under the 1996

Act, the law is well settled by upholding such clauses that imposes a bar to grant pre-reference and pendente lite interest. The Hon ble’

Supreme Court in a recent judgment in Jaiprakash Associates Ltd. v.

Tehri Hydro Development upheld the Judgment of the Hon ble High’

Court of Delhi that set aside an arbitration award that granted interest ignoring the bar in the contract.

xiv)The position of law stands crystalized today that findings of fact as well as of law of the Arbitrator or Arbitral Tribunal are not amenable to interfere either under Sec. 34 or Sec. 37 of the Act, 1996.

Moreover, the scope of interference is limited only where the finding of the tribunal is either contrary to the terms of contract between the parties or ex-facie perverse, then interference by the

Court is absolutely necessary. It is pertinent to note here that the

Arbitrator / Tribunal is the final Arbiter on facts and law as well and even errors, factual or legal which stop short of perversity do not have any merit for interference.

xv)Moreover, Clause 16(3) of the General Conditions of

Contract makes it clear that no interest will be payable upon the earnest money and security deposit or amounts payable to the contractor under the contract, but government securities deposited in terms of sub clause (1) of this Clause will be payable with the interest accrued thereon. When admittedly GCC that governs the contract between the petitioner and R1 does have such clause barring the payment of interest on any amount due and payable to the contractor, the learned arbitrators seemed to have not considered the claims 2 and 3 of the petitioner. Similar and identical issue had been considered by the Hon ble Apex Court in’

Sri Kamatchiaman Constructions Case relied upon by the respondents and held that where the parties had agreed that“ interest shall not be payable the Aribtral Tribunal cannot award interest between the date on which the cause of action arose to the date of the Award. In the said authority, the Hon ble Apex referred”’ to the two decisions i.e. Board of Trustees for the Port of Calcutta and Madani Constructions and held in para No.9 at the outset, it“ should be noticed that Engineers-De-space-Age and Madani Case arose under the old Arbitration Act, 1940 which did not contain provision similar to Sec. 31(7) of the New Act. It was further held that in Syed Ahmed ((2009) 12 SCC 26) the decision rendered under the old Act may not be of assistance to decide the validity of grant of interest under the New Act).

xvi)Be that as it may, in a recent decision in Jaiprakash

Associates Ltd. vs Tehri Hydro Development 16 discussed the scope of an Arbitral Tribunal power in granting pendente lite interest. The said decision reiterates the position of law laid down in several earlier cases that includes most of the authorities relied upon by the petitioner and R1. The decision of the Hon ble Supreme Court’ laid down the principle in respect of Arbitral Tribunal power to award pendente lite interest to depend on the terms of Agreement between the parties. It was held that if the agreement prevented the

Award of such interest, there would be no scope to contend that the

Tribunal has jurisdiction to do so and it is in accordance with Sec.

31(7) of the Act , 1996. Further, the Hon ble Apex Court reiterated the’ distinction between the position under the Act, 1940 and Act, 1996.

The Hon ble Supreme Court relied on its observations in a recent’ judgment in the case of Reliance Cellulose Products Limited v. Oil and Natural Gas Corporation Limited 17, “the entire case law on the subject is revisited and legal position re- emphasised. That was also a case which arose under the 1940 Act. The Court held that under the 1940 Act, an arbitrator has power to grant pre-reference interest under the 16) 2019 SCC Online SC 143 17) (2018) 9 SCC 266

Interest Act as well as pendente lite and future interest, however, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendente lite interest. Further, the Court has evolved the test of strict construction of such clauses, and unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Further, unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest. Further, the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the arbitrator, and on what items the power to award interest has been taken away and for which period. Also, the position under Section 31(7) of the 1996 Act, is wholly different, inasmuch as Section 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered.

xvii)In para 15 of the Judgment, the Hon ble Supreme’

Court held that “After discussing and analysing almost all the judgments on this subject, the legal position is summed up in the following manner:

"24. A conspectus of the decisions that have been referred to above would show that under the 1940 Act, an arbitrator has power to grant pre-reference interest under the Interest Act , 1978 as well as pendente lite and future interest. However, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendente lite interest. Since interest is compensatory in nature and is parasitic upon a principal sum not having been paid in time, this Court has frowned upon clauses that bar the payment of interest. It has therefore evolved the test of strict construction of such clauses, and has gone on to state that unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Thus, when one contrasts a clause such as the clause in Second Ambica Construction case [Ambica Construction v. Union of India , (2017) 14 SCC 323 : (2018) 1 SCC (Civ) 257] with the clause in Tehri Hydro Development Corpn. Ltd. [Tehri Hydro Development Corpn. Ltd. v. Jai Prakash Associates Ltd ., (2012) 12 SCC 10 : (2013) 2 SCC (Civ) 122] , it becomes clear that unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest under the 1940 Act. As has been held in First Ambica Construction case [Union of India v. Ambica Construction , (2016) 6 SCC 36 : (2016) 3 SCC (Civ) 36] , the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the arbitrator, and on what items the power to award interest has been taken away and for which period. We hasten to add that the position as has been explained in some of the judgments above under Section 31(7) of the 1996 Act, is wholly different, inasmuch as Section 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered. ” xviii) In view of the reasons enumerated above, and in the light of the annunciation of the Hon ble Apex Court, it is manifest’ that under Act, 1996, the Arbitral Tribunal may be prevented from awarding pendente lite interest even if the Arbitration Agreement does not state so expressly. General bar on payment of interest is quite sufficient to prevent the Arbitral Tribunal from awarding the interest.

xix)Be that as it may, in Steel Authority of India Ltd. v. Gupta

Brothers Tubes Ltd. 18 the Hon ble Apex Court of the land held that’

18) (2009) 10 SCC 63 “an error relatable to the interpretation of contract by an Arbitrator is an error within his jurisdiction and such error is not amenable to correction by

Courts.” The same principle has been followed in later case i.e.

Sumitomo Heavy Industries Ltd. v. Oil and Natural Gas Commission of

India 19 .

xx)For all the foregoing reasons, viewing from any angle, the impugned Award does not appear to have been passed in conflict with public policy of India warranting interference by this

Court, as such the petition is liable for dismissal as devoid of merits.

Accordingly, I hold under these points.

7) POINT NO.3 :-

In the result, this AOP (Arbitration Original Petition) is dismissed. No costs.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 02nd November, 2020.

XXVII Additional Chief Judge, City Civil Court, Secunderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED NIL–

XXVII Additional Chief Judge, City Civil Court, Secunderabad.

19) (2010) 11 SCC 296

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL -

CUM-COURT OF THE XXVII ADDL. CHIEF JUDGE, CITY CIVIL COURT,

AT SECUNDERABAD.

Present : M. SRINIVASA CHARY,

XXVII Addl. Chief Judge.

DATED THIS MONDAY, THE 09th DAY OF NOVEMBER, 2020.

M V O P. NO. 379 OF 2018

Between:-

1. Mrs. Purimitla Rani Kumari

2. Mr. P.Raju

3. Mr. P. Prasant --Petitioners.

A N D

1. Mr. Sudhakar Sandepogu

2. Cholamandalam MS General Insurance Co. Ltd. Rep. by its Legal Manager --Respondents.

This O.P is coming before me for final hearing in the presence of Sri C.Venugopal Reddy, Advocate for the petitioners and of Sri S.A.Ghani, Advocate for respondent and respondent No.1 remained exparte and the matter having been heard and stood over for consideration till this day, the court delivered the following :

J U D G M E N T

1)This is a petition filed under Sec.166 of the M.V. Act 1988 and

Rule 455 of M.V.Rules, by the wife and sons of the deceased Sri Jaya–

Rao, claiming compensation of Rs.8,00,000/-, for the loss of his life in a road accident that took place on 12.05.2016.

2)In brief, the averments of the petition are as follows:

i)On 12.05.2016, at about 07.00 hours, the deceased-Sri Jaya

Rao was proceeding from Mattigunta Village to Parchur Village on his

Scooty bearing No.AP 27bd 2396 and when he reached near Ramanaidu

Varadhi, Karamchedu to Parchur Road Karmachedu, Prakasham District, the driver of one Auto Rickshaw bearing No. AP 24TX 0792 drove the same in rash and negligent manner and while overtaking another vehicle dashed to the scooty of the deceased from opposite direction. As a result thereof, the deceased fell down from his vehicle and sustained fatal injuries on his head and he was immediately shifted to Government

Hospital, Chirala by 108 Ambulance, therefrom to Star Hospital at Guntur for better treatment. While undergoing treatment, he died on the same day.

ii)In this regard, the SHO, PS Karamchedu registered a case vide Crime No.26/2016 under Sec.304(A) IPC against the driver of the offending vehicle.

iii)The deceased was aged 67 years and retired Head Master at the time of accident. He was getting pension of Rs. 27,650/-per month and also additional income of Rs. 8,000/- per month as a pastor in the Church.

Since the deceased died, the petitioners are facing severe financial difficulties in maintaining their house.

iv)The petitioners are dependents on the income of the deceased. The deceased used to contribute the said sum entirely on his family. Due to his sudden death, all the petitioners became helpless and they have also lost their bread earner. They suffered financially besides suffering mental agony and shock. The petitioner No.1 lost conjugal happiness and petitioners 2 and 3 have lost financial support of their father in difficult times. There is none to look after their needs.

3)R2-Insurer filed counter denying the averments of the petition and contending interalia that :-

i)The petition is not maintainable either on facts or at law against R2, hence, the petition is liable to be dismissed in limini with costs against R2.

ii)The R1-driver-cum-owner of the offending vehicle was not holding a valid and effective driving license to drive the passenger carrying commercial vehicle at the time of accident as he was holding

AR (Non-Transport) driving license and to drive a passenger Auto the driver requires badge number and AR (Transport) endorsement and also the vehicle had no valid permit and fitness thereby R1 has committed blatant breach of the terms and conditions of the policy as such R2 is not liable to pay compensation to the claim petitioners and hence, the claim petition is liable to be dismissed against R2.

iii) R2 has not furnished the particulars of the policy, date, time and place of the accident, particulars of the deceased and the name of the driver and particulars of the driving license and thereby failed to comply with statutory demand under Sec. 134(c) of MV Act. Likewise, the concerned Police has not forwarded all the relevant documents to the concerned insurer within 30 days and thereby failed to comply with the statutory demand as per Sec.158(6) MV Act.

iv) The petitioners are called upon to make the owner and insurer of the Scooty bearing No. AP 27 BD 2396 as parties for proper adjudication of the case otherwise, the petition is not maintainable for non joinder and misjoinder of parties.

v)The R2 is not aware that the Police Karamchedu, Prakasham

District registered a case in Crime No.26/2016 under Sec.304-A IPC. It is a case of accident and did not adhere to traffic rules as such the deceased was solely responsible for the cause of accident and this Tribunal ought to have taken into account contributory negligence on the part of both the drivers while determining the case. The vehicle was falsely implicated in collusion with R1 and by managing the Police to secure illegal benefit and to cause wrongful loss to the R2, therefore, R2 is not liable.

vi)The petitioner No.1 is a government servant working as MPHS (Health Supervisor) in the Government Hospital at Cherukuru and the petitioners 2 and 3 are majors working and having own avocations and married. Hence, not dependents on father and as such are not entitled for any compensation.

vii)The petitioner No.1 is entitled to family pension as per the

Pension Rules and she continues to get pension, as such there is no loss of income to the petitioners and also the retired government servants are eligible to get medical treatment free of costs and could claim medical bills reimbursement under the government scheme extended to government servants, as such the petitioner cannot claim medical expenses once again and the petitioner is called upon to file all the documents relied upon by them soon.

viii)The deceased was a retired government servant pension after superannuation and after thought invented the plea of working as pastor in a church and earning income only in order to secure more compensation and the R2 is not liable.

ix)No interest shall accrue or be awarded for the periods covered by the adjournment granted at the instance of the claimants or their witnesses unless there are very special reasons to be recorded in writing for such adjournments. No man shall take advantage of his own fault.

x)No interest is to be awarded towards future prospects, because interest on one time payment of total amount of future prospects which the deceased would have earned after investing years of work and accumulated the same in the span of 10 to 20 years of time, which the claimants is getting instantly from the Tribunal is not justifiable.

xi)With a change in economic policy and the policy of Reserve

Bank of India, the interest rate has been lowered and the Nationalized

Banks are now granting interest at the rate of 6% per annum on fixed deposits for one year, hence, the interest ought not to be granted more than the bank rate.

xii)The respondent craves for leave of this Tribunal to take all defenses available to the R2 under Sec. 170 of MV Act and contest the case on all the grounds apart from those specified under Sec. 149(2) of the MV Act. The R1 has not intimated the accident occurrence which is contrary to policy terms and conditions and has not issued any notice in collusion with the petitioners, as such, R2 is not liable.

xiii)The petitioners are the residents of Prakasham District hence, this Tribunal has no jurisdiction to try the case.

xiv)The petitioners may be directed to furnish the details of the

PAN number NEFT and KYC details, which may be required under the provisions of the IT Act.

xv)The amount of Rs.8,00,000/- with interest and costs claimed by the petitioners is more excessive, exorbitant and exaggerated and also the petition is not maintainable under the MV Act and the petitioners are not entitled for the same from the R2. Hence, prayed to dismiss the petition with costs.

4)On the strength of the above pleadings, the following issues have been settled for trial :-

1) Whether the accident occurred was due to rash and

negligent driving of the offending vehicle by R1?

2) Whether the petitioners are entitled to compensation? If so, to what extent and from whom?

3) To what relief ?

5)On behalf of petitioners, PWs 1 and 2 examined and Exs.A1 to

A9 marked. R2 reported no oral evidence, however, Ex.B1 is marked.

6)Written Arguments were filed on behalf of petitioners and respondent No.2.

7) ISSUE NO.1 :- Whether the accident occurred was due to rash and negligent driving of the offending vehicle by R1?

i)It is well known that in a case relating to MV claims the claimants are not required to prove the case as it is required to be done in a criminal trial. Since the claim petition is filed under Sec.166 of MV Act 1988 the claimants are supposed to prove the rash and negligent act of the driver of the offending vehicle. It is well established principle of law that the roving inquiry, to prove rash and negligence on the part of the driver is not required. In Kaushnumma Begum and others Vs. New India

Assurance Company Limited, it was held that “the issue of wrongful Act or omission on the part of the motor vehicle involved has been left to a secondary importance and mere usage or involvement of Motor vehicle in causing bodily injuries or a death of human being or damage to property would make the petition maintainable under sec.166 and 140 of the Act.” ii)In this backdrop, now I shall examine the evidence on record.

The 1st petitioner, who is wife of the deceased-Jaya Rao is examined as

PW1. In her affidavit in lieu of examination-in-chief, stated the facts regarding the manner of accident how it had taken place and in respect of their claim as folded in the claim petition. In support of her say, Exs.A1 to A8 have been marked, which are certified copies of FIR, report, charge sheet, Inquest, PME Report, MVI Report, Panchanama and Rough Sketch.

iii)In the cross-examination, PW1 admitted that she is not the eye witness to the accident. Therefore, her testimony will not throw any light to consider the factum of rashness or negligent driving on the part of the R1-Driver-cum-Owner of offending vehicle. However, petitioners relied upon the testimony of PW2-Devarkonda Nanchariah as an eye witness to the accident.

iv)The evidence of PW2 would show that on 12.05.2016 at about 7.00 am, he was proceeding from Nagulapalem towards Chirala on the motor cycle of his friend and when he reached Ramanaidu Varadi, he noticed a male person proceeding Mattilgunta to Parchur on his scooty bearing No.AP 27 BD 2396, suddenly the driver of Auto bearing No.AP 27

TX 0792 drove it in a rash and negligent manner and while over taking another vehicle dashed to the scooty of the deceased from backside. As a result thereof, he fell down and sustained grievous injuries then, he alongwith, the son of motor cyclist shifted him to Government Hospital

Chirala in 108 Ambulance. Later, he came to know that he died at 10.30 hours and his name is Jaya Rao.

v)Inspite of subjecting PW2 to the cross-examination at some length, no material of whatsoever that impeaches his credibility, could be elicited to discard his testimony. Be that as it may, the R2-Insurer though filed counter setting up the defence of contributory negligence, yet reported no oral evidence. Consequently, what all R2 contended in the counter is of no use since it is settled principle that any amount of pleading without evidence has no significance. In view of the above circumstances, the evidence of PW2 coupled with Exs.A1 to A8 clinchingly establishes the fact that it is R1 on account of his rash and negligent driving the accident in question had taken place. Accordingly,

I answered this issue in favour of the petitioners.

8) ISSUE NO.2 :- Whether the petitioners are entitled to compensation? If so, to what extent and from whom?

i)The petitioners relied upon Ex.A5-PME Report of the deceased, in which, the Medical Officer, who held autopsy opined the cause of the death to the best of his knowledge and belief was “shock and haemorrage due to head injury . Thus, the petitioners are able to” succeed in proving the fact that on account of the injuries the deceased received in the fatal road accident, he died.

ii)The petitioner No.1 claims to be wife and petitioners 2 and 3 are claiming to be sons of the deceased. In Ex.A4-Inquest, names of petitioners 1 and 2 are shown to be wife and son of the deceased. So far

as 3rd petitioner is concerned, no contrary evidence is adduced by R2

disputing his relationship. This apart, in Column No. XV of Ex.A4, it was mentioned that the deceased had two sons and a daughter. Thus, the petitioners are able to prove that they are kith and kin of the deceased and as such they are entitled to claim and receive compensation for the loss of life of the deceased in fatal road accident.

iii)Now the point remains for consideration is the quantum of compensation to be awarded to the petitioners. The proper method of computation is the multiplier method. Basically, three aspects need to be established by the claimants for assessing the compensation in case of death are (1) Age of the deceased, (2) income of deceased and (3) number of Dependents. The issues that have to be determined by the Tribunal to arrive at the loss of dependency are i) Additions/ Deductions to be made for arriving at income, ii) The deductions to be made towards personal living expenses of the deceased, iii) The multiplier to be applied with reference to the age of the deceased.

iv)Coming to the age of the deceased is concerned, in the claim petition, he was shown to be 67 years old. In Ex.A4 and A5-Inquest and

PME Report, same age is recorded. It is indeed the R2 is not disputing the age of the deceased, therefore, the deceased held to be 67 years old as on the date of accident.

v)Coming to the income of the deceased is concerned, according to PW1, the deceased was a retired Head Master getting pension of Rs.27,650/- per month and also earning Rs.8,000/- per month

additional income as a pastor in the church. In the cross-examination of

PW1, she stated that she did not file any document to substantiate the aforesaid fact. In absence of any cogent material, such claim of petitioners in respect of additional earnings of the deceased as a pastor per month Rs.8,000/- cannot be taken into consideration. The petitioners filed Ex.A9-Bank Statement of the deceased issued by the State Bank of

India, Parchur Branch, Prakasham District. Perusal of Ex.A9, discloses that it was in the name of deceased and it contains the information as regular SBCHQ-PENSIONERS vide Account No.11321031976 which contains the entries of crediting amount of Rs.40,530/- and Rs.28602/- from CEMTEX Department. Moreover, the R2 is not disputing the factum of the deceased drawing pension as a retired Head Master. However, the learned counsel for R2 contends that when the PW1 in her cross- examination dated 4.3.2020 stated that she has been getting family pension, she is not entitled to any amount towards compensation, but such contention appears to be feeble for the reason that no such rule exists. Once, the deceased being a pensioner died on account of the injuries he received in the fatal road accident, his monthly pension needs to be taken into consideration so as to estimate his monthly earnings. As such, the said contention of learned counsel for R2 is rejected. Thus, the monthly income of the deceased as on the date of accident is proved to the tune of Rs.27,650/- vi)Coming to the factum of dependency on the deceased is concerned, the petitioners are claiming to be wife and sons of deceased.

Indeed, there is no dispute regarding the relationship of the petitioners with the deceased. However, the learned counsel for R2 contends that 1st petitioner is working as Multipurpose Sale Supervisor at Parchur in

Government Hospital, after deductions she has been getting net salary of

Rs.55,000/-. Whereas, petitioners 2 and 3 are the major sons and working as pastor and doing business respectively, all the petitioners cannot be considered to be the dependents of the deceased. As such, claim for loss of dependency is unavailable to the petitioners and that they may be entitled only to compensation under conventional heads.

It is not out of place to mention here that Sec.166 of the MV Act, 1988 provides for filing an application to claim compensation by the persons mentioned in the clauses (a) to (d) of Sub section (1) thereof. For brevity and better understanding, Section 166 of MV Act, 1988 is extracted hereunder :- “Section 166 . Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in sub- section (1) of section 165 may be made

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under subsection (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) *** (4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act.”

It is manifest from the above provision of law that the legal representatives of the deceased can move claim petition for compensation by virtue of clause (c) of sub-section (1) of Sec.166 MV

Act. Nowhere, the married sons who are earning are held to be not dependents of the deceased, as such they would be covered the expression legal representatives of the deceased . In “”Manjuri Bera vs Oriental Insurance Company Ltd. 1 , the Hon ble Supreme Court had’ to expound the liability to pay compensation under the Act does not cease because of the absence of the dependency of the concerned legal representative. In the said decision, the Hon ble Apex Court’ held in paras 6, 8 to 10 as under :-

1) 2007(10 ) SCC 643 “6. …..In terms of Clause (c) of Sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

8. The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

9. According to Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act , 1996, i.e. under Section 2(1)(g) .

10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr . [1987]3SCR404 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.

Recently, the Hon ble Apex Court in a decision’- National Insurance

Company Ltd. vs Birender and ors.2 on 13 January, 2020, having referred to the decision of the Manjuri Bera vs Oriental Insurance Company Ltd.

2007(10 ) SCC 643, in paras 14 and 15 held as under :- ….. In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between “right to apply for compensation” and “entitlement to compensation . The compensation constitutes part of the estate of the” 2) Civil Appeal Nos. 242 to 243 OF 2020 (Arising out of SLP (Civil) Nos. 976977 of 2020) deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.

15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. Therefore, in the light of the annunciations of the Hon ble Apex Court’ referred to above, the contention of learned counsel for R2 cannot be countenanced. Consequently, the petitioners 1 to 3 being the legal representatives of the deceased are entitled to claim and receive compensation which is not limited to the extent of conventional heads and they can be awarded compensation towards loss of dependency.

vii)In-as-much as, the monthly income of the deceased is held to be Rs.27,650/- per month his yearly income would work out to Rs.3,31,800/- (Rs.27,650/- x 12 months).

viii)Since the deceased had his wife and sons as dependents, in the light of the authority of the Hon ble Supreme Court in the matter of’

Smt.Sarla Varma and others v. Delhi Transport corporation and another, 1/3rd of his yearly income needs to be deducted towards his personal living expenses. Then his contribution to the family would work out to

Rs.2,21,200/- (Rs.3,31,800/- - Rs.1,10,600/- (@ 1/3rd). As the deceased was 67 years old, the multiplier applicable to the age group of above 65 years is ‘ ’5 . Then, the loss of dependency would work out to Rs.11,06,000/- (Rs.2,21,200/- x 5M). This apart, the 1st petitioner is entitled to Rs.40,000/- towards spousal consortium. Further, the petitioners are entitled to receive Rs.15,000/- for funeral expenses and Rs. 15,000/- for Loss of Estate.

As this Tribunal awarded Rs.40,000/- to the petitioner No.1 towards consortium no further amount is being awarded for the loss of love and affection in the light of the Judgment of the Hon ble Apex Court in the’ case of United India Insurance Co. Ltd. v. Satinder Kaur3 wherein it was held by the Hon ble Apex Court that ’“there is no justification to award compensation towards loss of love and affection as a separate head” and directed the Tribunal and High Courts to award compensation for loss of consortium, which is a legitimate conventional head. Thus, in all a sum of Rs.11,76,000/- can be awards.

ix)Now the point that falls for consideration is whether the tribunal can award the compensation more than the amount claimed. In this respect, it is relevant to cite an authority in Nagappa Vs. Gurudayal

Singh and others 4wherein at para-7 with respect to the provisions of

M.V.Act, the Hon ble Apex Court has observed that:’ “there is no restriction that compensation could be awarded only upto the amount claimed by the claimant. In appropriate case, where from the evidence brought on record, if the tribunal/court considered that the claimant is entitled to get more compensation than claimed, the tribunal may pass such award. The only embargo is that it should be just compensation, that“” is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident; by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.”

x) In the light of the above authority, a sum of Rs.11,76,000/- (subject to the petitioners payment of court fee on Rs.3,76,000/-) is awarded towards just and reasonable compensation to the petitioners as against their claim for Rs.8,00,000/-. For brevity and better understanding, the compensation awarded is shown in the table below:-

1) Loss of dependencyRs. 11,06,000-00

2)Spousal Consortium Rs. 40,000-00

3) Loss of EstateRs. 15,000-00

4) Funeral ExpensesRs. 15,000-00 TOTAL Rs.11,76,000-00

3) 2020 SCC Online SC 410

4) 2002 (8) Supreme 497 xi)Now the last point to be considered is the liability of which respondent to compensate. Admittedly, the R1 and R2 did not lead any evidence in support of their defence. Moreover, R2 did not dispute the factum of its role as insurer of the offending vehicle and issuance of

Policy under Ex.B1 marked by consent, which was in force as on the date of accident. Therefore, R1 being the driver-cum-owner and R2 being the

Insurer of the offending vehicle are jointly and severally liable to compensate the petitioners and R2 by virtue of Ex.B1 has to indemnify.

Accordingly, I answered this issue.

9) ISSUE NO.3: To what relief?

In the result,

i) The petition is allowed and an award is passed for a sum of

Rs.11,76,000/- (subject to the petitioners payment of court fee on

Rs.3,76,000/-) with costs and interest @ 7.5% per annum from the date of petition till realization against respondents No.1 and 2 jointly and severally with a direction, to deposit the said amount within one month from today.

ii)The compensation awarded is apportioned as under :-

a)The petitioner No.1 (wife of the deceased) is entitled to receive Rs.9,76,000/- and she is permitted to withdraw Rs.4,50,000/- .

b)The petitioners Nos.2 and 3 (sons of the deceased) are entitled to receive Rs.1,00,000/- each and they are permitted to withdraw

Rs.50,000/- each.

iii)Rest of the compensation apportioned in favour of the petitioners shall be kept in FDRs on their names in any nationalized bank for a period of two years.

iv)Decree shall be prepared after the payment of court fee on

Rs.3,76,000/-.

v)Advocate fee is fixed at Rs.3,000/-.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 09th day of November, 2020.

SD/-

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE

Witnesses Examined.

FOR PETITIONERS :-

PW.1 : Purimitla Rani Kumari PW.2 : Deverakonda Nanchariah

FOR RESPONDENT NO.2 :-

- None -

DOCUMENTS MARKED

FOR PETITIONERS :-

Ex.A1 :CC of FIR Ex.A2 :CC of Report Ex.A3 :CC of Charge Sheet Ex.A4 :CC of Inquest Report Ex.A5 :CC of PME Report Ex.A6 :CC of MVI Report Ex.A7 :CC of Panchanama Ex.A8 :CC of Rough sketch of the accident Ex.A9 :Bank Statement of the Deceased

FOR RESPONDENT NO.2 :-

Ex.B1 - Policy

SD/-

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.