Smt M. Venkata Ramana Kumari
VIII Additional District and Session Judge (FTC) Vijayawada
II Addl DJ Court Vijayawada · Krishna · Andhra Pradesh
Based on 4 recent ordersSmt M. Venkata Ramana Kumari, VIII Additional District and Session Judge (FTC) Vijayawada, is posted at II Addl DJ Court Vijayawada, Krishna, Andhra Pradesh, India. 4 court orders on record since 2019. 4 judgments with full text available. Primarily handles MVOP, SC cases.
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IN THE COURT OF VIII ADDITIONAL DISTRICT JUDGE AT
VIJAYAWADA
PRESENT: Smt. M.V. RAMANA KUMARI,
VIII ADDITIONAL DISTRICT JUDGE CUM V METROPOLITAN
SESSIONS JUDGE, VIJAYAWADA
THURSDAY, THIS THE 07 th DAY OF FEBRUARY, 2019
SESSIONS CASE No. 247 OF 2018
(Preliminary Register Case No.50/2018 on the file of the Chief Metropolitan Magistrate Court, Vijayawada) (Crime No.14/2018 of I Town Police Station)
1. Name of the complainant: State: Sub Inspector of Police, I Town P.S.
2. Name of the accused : Nallani Purushotham, S/o. Rangachari, 47 years, R/o. Kutukuru Village, Sirisilla, Karimnagar District at present he used to stay as beggar at Fish Market, I town, Vijayawada.
3. Offence with which the accused is charged : U/s. 304 I.P.C.
4. Plea of the accused: Not guilty.
5. Finding of the court : Found not guilty.
6. Sentence of order: In the result, accused is acquitted U/s.235 (1) Cr.P.C. for the offence U/s.304 IPC. M.Os.1 to 9 shall be destroyed after expiry of appeal time.
This sessions case is coming on 05.02.2019 before me for final hearing in the presence of Smt. G.Kalyani, Addl. Public Prosecutor for the prosecution, and of Miss. P. Sridevi, legal aid counsel for accused and upon perusing the charge sheet, and other connected material on record and the matter having stood over for consideration till this day, this court has delivered the following:
2
J U D G M E N T
It is the case of the prosecution –
1.The accused Nallani Purushotham is native of Kutukuru
Village, Sirisilla, Karinagar District came down to Vijayawada leading his life as beggar in I town area, Vijayawada. The deceased
Donga Madusudhana Rao @ Madhava Rao @ Venkateswara Rao @
Srinu, S/o. Syamala Rao is native of Thadepalligudem, West
Godavari District and he is property offender and his father
Syamala Rao is also a property offender. The deceased got married but discarded his wife deceased is property offender having involved in Cr.Nos. 51,52 and 37/2005 U/s.379 IPC of Thadepalli gudem
Town P.S. and also in Cr.Nos.21, 137 of 2007 U/Secs.379 IPC of
Nedadavolu Railway P.S. The deceased left his native place and move neighboring towns and living earnings of begging six moths prior to the incident he is living I town area as beggar along with others, he used to move with other beggars on the streets and used to sleep on the front floors of the closed commercial establishments after 11.00P.M.
2.It is the further case of the prosecution that both the accused and deceased move together for the last five or six months in I town area on 19.01.2018 both of them as usual came to
Sri. Kanakadurga Honda Authorized service center, R.R Apparao street, I town Vijayawada to sleep on the front portion of the closed establishment, around 11.00P.M. both the deceased and accused started altercations on pretty issue and the same was witnessed by
PWs. 2, 3 and 4 and treated the scuffle as usual among the beggars 3 and silently maintained 15 minutes later their verbal altercation turn into serious fighting and pitch of emotion deceased picked up bamboo stick available on the floor and tried to hit on the accused, when the accused forcibly took away bamboo stick and hit on his head, as a result deceased received severe head injury collapsed on the floor in a pool of blood and died on the spot. Ellapu
Satyanarayana, (PW.6), Krishna (PW.7), who are familiar to both the deceased and accused witnessed the incident and identified them as
Purushotham and Srinu but out of fear they left the scene. At around 01.00AM P.W.1 Mamidikuduru Vasu Kumar a Video grapher by profession by going to his house by his motor cycle observed the deceased in pool of blood in R.R. Apparao street, opp. Bharathi X ray center came to I town P.S. and gave a written report.
3.A crime was registered in Cr.No.14/2018 U/s.302 IPC of
I town P.S. on the written complaint of PW.1 on 20.01.2018 at 03.00AM by the then Inspector police I town P.S. D. Kasi
Viswanadh (PW.11) and took up investigation during the course of investigation the inspector police visited the Scene of Offense observed the scene of offense in the presence of mediators Ummidi
Venkateswara Rao (LW.10) and Uttamchand Bandari (PW.9) and prepared rough sketch, seized the blood stained Bamboo stick and blood stained earth and controlled earth from the Scene of Offense in the presence of mediators under the cover of mediators report.
The inspector police D. Kasi Viswanadh examined witnesses and recorded their statements and held inquest over the dead body of the deceased in the presence of inquest panchayatdars, Ummidi
Venkateswara Rao (LW.10), Uttamchand Bandari (PW.9), Gobi 4
Someswara Rao, (LW.12) and eye witnesses P.Ws.2 to 4 under cover of inquest report on 22.01.2018 on 07.00AM to 09.00AM and sent the dead body of the deceased to GGH, Vijayawada for Postmortem examination. Medical Officer Dr. D. Srinu Nayak Asst. Professor
G.G.H., Vijayawada (PW.8) conducted autopsy over the dead body of the deceased and issued Postmortem certificate opined that the deceased died due to head injury.
4.The dead body of the deceased was burred at Burier grounds
Krishna Lanka Vijayawada as the identity of the deceased is not known except calling him as Srinu. During the course of investigation, the Inspector of Police I Town P.S., PW.11 altered the section of law from 302 IPC to 304 IPC, as the findings reveal that the assertional ingredients of motive preparation to kill the deceased are not present and the accused kill the deceased only on spur of emotion.
5.The inspector of police D. Kasi Viswanadh I Town P.S.
arrested the accused at Madapati Club I town, Vijayawada on 21.01.2018 at 04.00P.M. in the presence of mediators and got recorded his confessional statement under the cover of mediators report and the send the accused to the court for remand.
6.During the course of investigation the finger prints of the deceased were sent to Finger print unit CID, Vijayawada with a view to trace of the identity of the deceased on that A Prasad Rao,
Inspector of police finger print expert, FPU, Vijayawada (PW.10) analised and tallied the finger prints of the deceased with their of available thereon the finger prints and issued report. Established the identity of deceased as Donga Madusudhana Rao, @
Venkateswara Rao, S/o. Syamala Rao, Settibalija, R/o. Weakers 5 colony, Thadepalli, as property offender in Cr.Nos.51,52 and 237 of 2005, U/s.379 IPC of Thadepalli gudem P.S. and also Cr.No. 21,137 of 2007 U/s.379 IPC of Nedadavolu Railway P.S. The inspector police also examined Bandaru Nageswara Rao,, R/o Weakers colony
Thadepalli Gudem (LW.8) and Manupati Krishna resident of R/o
Weakers colony Thadepalli Gudem (PW.7) and confirmed the identity of the deceased. Inspector police I town P.S., forwarded the
M.Os. Seized from the Scene of Offense to RFSL Vijayawada along with authorization letter after completion of investigation filed charge sheet against the accused for the offence U/s.304 IPC.
7.For the offence U/s.304 IPC the prosecution examined Pws.1 to PW. 10 and got marked Exs. P1. To P.9 and M.O.1 to M.O.9.
Exs.D1 and D.2 marked on behalf of accused to support the version of the defence.
8.The prosecution relied on the evidence of PW.1, the defacto complainant who gave Ex.P.1 written complaint in I Town P.S.
Vijayawada and also examined PW.2 and PW.3, to prove that there was a galata in between the deceased and accused at or about 10.00P.M. on 19.01.2018, PW.2 is owner of Bharati Xray shop and neighbor of PW.3 Uaday shah who is the owner of batteries and
Sanitary shop situated opposite to Honda Service center. The prosecution also relied on the evidence of PW.4 Mokesh Kumar,
PW.5 Jantitit Musalaiah, PW.6 Yellapu Satyanarayana who are the eye witnesses to the incident. The prosecution also relied on the evidence of PW.9 to prove the inquest to the dead body of the deceased in the presence PW.9 as inquest panchayatdar. The prosecution also relied on the evidence of PW.9 who acted as a mediator for seizer of M.Os.1 to 3 under the cover of mediators 6 report. The prosecution also relied on the evidence of Medical officer Dr. G. Srinu Nayak (PW.8) who conducted Postmortem examination to the dead of the deceased and who issued
Postmortem certificate with an opinion that the deceased died due to multiple injuries. Prosecution also relied on the evidence of PW.7
M. Krishna resident of ST weakers colony, Thadepalli Gudem.
PW.10 A Prasad Rao Inspector of police finger prints expert FPU
Vijayawada he established the identity of the deceased Donga
Madusudhana Rao @ Venkateswara Rao (Property offender). The prosecution also relied on the evidence of PW.11 the inspector of police I town, P.S. who registered the crime basing on the written report of PW.1 as Cr.No.14/2018 of I town P.S., Vijayawada
U/s.302 IPC against unknown person and subsequently altered the section of law into 304 IPC and filed charge sheet against the accused.
9.The points for determination are
1.Whether the prosecution established that the death of deceased culpable homicide or suicide?
2.Whether the accused bet the deceased with stick on his head with knowledge that he is likely by such act to cause death?
3.Whether the prosecution established guilt of the accused for the offence U/s.304 IPC ?
10.POINT NO.1
It is the case of the prosecution that the deceased and accused are beggars and are living by begging in I Town Police
Station Area, Vijayawada six months prior to the incident and as per the evidence of witnesses examined on behalf of the prosecution and the cross examination of the prosecution witnesses by the 7 learned defence counsel by giving suggestions that the accused is noway connected with the incident and no material available on record to show that the cause of the death of the deceased is suicide but not homicider and on the other hand the medical officer (PW.8) who conducted Postmortem examination, and issued Postmortem certificate (Ex.P.3) opined that the cause of the death of the deceased is due to head injury which is laceration of 3 X 3 cms vertically present with irregular margin of right side of head established that the cause of the death of deceased is homicide but not suicide and hence I find that the prosecution has established the cause of the death of deceased is homicide but not suicide.
11.POINT NO.2
It is the case of the prosecution that both the deceased and accused are beggars and are living begging in I town area of
Vijayawada and used to sleep in front places of the shops in I town area, for the last six months prior to the incident. In order to prove that the accused bet the deceased on his head with stick with knowledge that the injury caused by the accused might have resulted the death of the deceased. In order establish the fact that the accused and deceased used to sleep on the pial of the Honda
Service center, R.R. Apparao street, I town, Vijayawada. The prosecution relied on the evidence of PW.1, the defacto complainant who gave Ex.P.1 written complaint in I town P.S., Vijayawada. He deposed that he is a photographer and also a videographer and on the intervening night of 19/20.01.2018 around 01.00AM after completion of his work while he was proceeding on motor cycle from II Town towards his residence, while he was 8 proceeding R.R.Apparao street, opposite to Bharati Xray near
Honda Service center he found a male person aged about 45 to
50 years lying in pool of blood on the road and he found nobody present there. Subsequently around 02.15 AM he gave written report in his own hand writing in I Town P.S.,
Vijayawada. Thereafter police taken him to the said place and at their request he took some photos of the said person.
During his cross examination the learned counsel for accused it is elicited that there was darkness and no sufficient light but he stated that he could take the photos with flash available in his camera. It is also elicited during cross examination that he found some articles at the place of offence which fell in felmel condition but he taken the photos of body of the person which was lying on the road in distance between the road and Honda service center is about 10 mts. Thus it is clear from the evidence of PW.1 during his cross examination that there was a darkness and no sufficient light to take photos. The evidence of PW.1 in his examination in chief further shows that he found a male person who is aged about 47 to 50 years lying in pool of blood on the road. The evidence of PW.1 further goes to show that the Scene of Offense is on the road.
A perusal of the photograph also shows that marked as Ex.P.2 shows that the body was lying on the metal road. On perusal of the observation report marked as Ex.P.4 prepared by the
Investigating officer who was examined as PW.11 and also the contents of Ex.P.4 shows that the dead body of the deceased 9 lying in the pool of blood on the road. The contents of Ex.P.1 written report given by the PW.1 shows that the dead body of deceased lying on the road in a pool of blood. As per the evidence of PW.11 the investigating officer on 20.01.2018 at about 03.00A.M one Mamidikuduru Vasu Kumar came to police station and presented written report, he received the same and registered it FIR in Cr.No.14/2018 U/s.302 IPC and took up investigation he further stated that he observed the
Scene of Offense and prepared observation report on the Scene of Offense in the presence of mediators which is Ex.P.4 he recovered blood stained stick, blood stained earth and controlled earth marked as M.O.1, M.O.2 and M.O.3 which creates any amount of doubt regarding genesis of the prosecution case as there is no possibility to recover blood stained earth and controlled earth from a metal road where the dead body of the deceased was lying in a pool of blood. There is no evidence produced by the prosecution that PW.1 is working as a photographer or video grapher and no proof on behalf of the prosecution even as seen from the photographs that the photographs were taken on intervening night of 19/20 .01.2018 to prove that PW.1 is a photographer and took photographs of the dead body of the deceased on 19/20.01.2018 at around 01.00AM. It is the consistent evidence of PW.1 and PW.11 Investigation Officer that the dead body of the deceased was lying on the road in pool of blood at 01.00AM. As per the evidence of P.W.11 the investigating 10 officer inquest was conducted on 22.01.2018 and forwarded the dead body of the deceased to Postmortem examination to
G.G.H., Vijayawada.
12. As per the evidence of the medical officer Dr. Srinu
Nayak who is examined as P.W.8 is stated in his examination in chief that on 22.01.2018 he conducted the Postmortem examination of the dead body of the male person namely
Mr. Srinu in the Government General Hospital, Vijayawada from 10.00AM and noted down the injuries found on the dead body and also noted down the observation made by him during the course of his examination. He issued Postmortem certificate which is marked as Ex.P.3. The evidence of PW.8 medical officer coupled with the contents of Postmortem certificated issued by him under Ex.P.3 it is mentioned that it is approximate time of death is 3 to 4 days prior to
Postmortem examination. But coming to the column 18 of inquest report, the dead body was sent to 19.01.2018 for preservation as no blood relations came to identify the dead body and take the dead body. Further the medical officer described in head injury as laceration of “3 X 3” cms vertically present with irregular margins on the right side of the head and it was red in color. If really a postmortem was conducted on 22.01.2018 to the dead body found in a pool of blood in intervening night of 19/20.01.2018 they may not be a red color injury found on the head of the deceased which throws any amount doubt regarding the case of the prosecution that 11 the deceased died on 19/20.01.2018. During cross examination of medical officer stated that the blood is found fresh in the dead body is kept in freezer within 24 hours. But there is no evidence on the evidence of Investigating Officer that he shifted the dead body within 24 hours in GGH mortuary and the dead body was kept in freezer on the other hand the Investigating officer in his examination in chief itself stated that on 22.01.2018 he conducted inquest over the dead body of the deceased and forwarded the dead body of the deceased to Postmortem to G.G.H., Vijayawada. It is clear from the evidence of medical officer who issued Postmortem certificate and investigating officer who conducted investigation that there is a lot of discrepancy regarding the genesis of the prosecution in turn creates doubt regarding the version of the prosecution that the deceased died on intervening night of 19/20.01.2018. This evidence of prosecution creates any amount doubt regarding the date and time of death of the deceased.
13.The evidence of Investigating officer is not clear from where he seized black green white and red color lungi with blood stain M.O.4 and Full hands shirt with blood stains
M.O.5, violet color T shirt M.O.6, Navi blue color full hands shirt with blood stains M.O.7, Green color shirt with blood stains M.O.8, white and red color kalankari lungi M.O.9. The evidence of Investigating officer is also silence what are the cloths were found on the dead body of the deceased at the time 12 of incident and what are the other cloths staying with blood and in what way they are collected with the incident from where the cloths were recover to connect the incident to M.Os.
Seized by Investigating Officer. This also one of the circumstances shows that the prosecution has not come up with true and correct facts.
14.Coming to the evidence of prosecution to prove the fact that the accused bet the deceased on his head with stick which resulted the death of the deceased on the intervening night of 19/20.01.2018, the prosecution has relied on the evidence of
P.Ws.4 Mukesh Kumar, P.W.5, Musalaiah, P.W.6 Yellapu
Satyanarayana who are cited as eye witnesses to the incident. The evidence of P.W.4 was escheved as he fails tender for cross examination. PW.5 in his examination in chief stated that he is running coconuts business near Amma Hotel Center in I town,
Vijayawada on 19.01.2018 at about 10.30PM while he was pushing his cart through R.R.Apparao street accused and deceased making galata against each other at the pial of Honda Service center. The deceased was sleeping on the pial and then the accused came and woke him up and the deceased told him that it was his place and asked the accused to go to other place. Then the deceased bet the accused with stick but the stick got slipped on the hands of deceased, accused have taken that stick bet the deceased on his head and the deceased sustained bleeding injury but he was examined 15 days thereafter by the police. Even according to his evidence in examination in chief he did not state as to how he knows both deceased and accused and how he can identified both 13 the deceased and the accused and what is the distance between him and the pial of Honda Service center where the deceased and accused were making galata. During his cross examination he stated that he used to do business in different places the beggars used to move at all places his business. The distance of between his place of business and Amma hotel center and the place of offence is about half kilometer. He used to take away his cart after closer of his business to his house is at a distance of about 5 KMs from Amma Hotel center. There are other ways to go to his house from his place of business. He used to purchase coconuts from the brokers who supplied the same at Vijayawada which runs contrary to his evidence in his examination in chief as he stated that he went
Machilipatnam for getting coconuts. There is no peace of evidence placed before the court by the prosecution either oral or documentary that PW.5 is doing coconut business and he witnessed the incident as stated by him in his examination in chief. On the other hand the evidence of PW.1 there is no sufficient light to identify the dead body of the deceased as on the intervening night of 19/20.01.2018 creates any amount of doubt regarding the witnessing of the incident narrated by PW.5 wherein that he witnessed there was a galata is going on between the deceased and accused and the deceased try to bet the accused with stick but it was slip and with that stick accused bet the deceased on his head.
A perusal of the Postmortem certificate issued by P.W.8 is clear that the injury found on the dead body of the deceased is on the right side of the head, which also runs contrary to the occur evidence of
PW.5 who is the alleged eye witness in view of the above 14 circumstances I find that the prosecution fail to establish that
P.W.5 is a direct witness to the occurrence.
15.Coming to the evidence of P.W.6 who is also examined as direct witness as relied on by the prosecution to prove the incident that the accused bet the deceased with stick on his head which resulted the death of the deceased, he stated in his examination in chief that he is running a tiffin center near Chitturi complex, I town,
Vijayawada, he knows both accused and deceased as they are beggars, he knows the deceased who can be seen in the photo under Ex.P.2. He further stated that on 19.01.2018 at about 10.30P.M while he was proceeding in his house both deceased and accused making galata against each other between 10.45 P.M. and 11.00PM by then the deceased is sleeping on the pial at the Honda
Servicing center. His evidence further shows that the evidence of
PWs.5 and 6 are stereo type as his evidence in his examination in chief is nothing but the replica of evidence of PW.5 in his examination in chief regarding the fact that he witnessed the galata occurred between the deceased and accused and the accused bet the deceased with stick on his head. Though witness identified
M.O.1 is the said stick his evidence do not disclose the descriptive particulars of the stick whether it is a simple or stought stick of the dimensions with which the accused bet the deceased on his head resulting the death of the deceased. During the cross examination he stated that about 10 to 15 beggars moves in that area he cannot say names of all the beggars they are not in the habit of begging constantly near his business but they moved in that area. There were several persons present near that place but he cannot identify them. He did not tried to stop the galata. He do not know the 15 places where the deceased and accused used to beg and stay. He used to return his house Through R.R.Apparao street. He admits that it will proceed through Bavanarayana street his house is near from Chitturicomplex via Ramanayya cool drink shop. The distance between his place of business and Scene of Offense is less than one kilometer. He was examined by 10 days after the incident. This evidence PW.6 as no basis that he is running a tiffin center near
Chittur complex in I town Vijayawada and accused and deceased are beggars and are used visit his tiffin center. Even his evidence does not disclose the name of the deceased or the accused if really the evidence of PW.6 is true that the deceased and accused are visiting his tiffin center he might have know the names of the deceased and accused. But he did not state any where in his evidence that in the names of both deceased and accused. Except the evidence of PW.6 who was examined 10 days after the incident.
Who described the incident as if he having fresh memory with whom has no relation ship shows that the incident narrated by
PW.6 is not reliable and is not trust worthy.
16.Coming to the other evidence produced by the prosecution to connect the accused to the incident that the accused was arrested by the investigation officer on 22.01.2018 in the presence of a mediator Uttamchand Bandari. The evidence of Uttamchand
Bandari as PW.9 shows that on 21.01.2018 morning around 05.50AM he received phone call from I town Police Station,
Vijayawada and on the next day around 03.30AM again he received phone call from I town P.S. Vijayawada and he went to the police station within few minutes one U. Venkateswara Rao also came to police station. They accompanied the police to Madapati club 16 situated near Vijayawada railway station on its back side and then they found person running away on seeing the police, but he was caught hold by the police and accused is the said person, one hour thereafter he gave statement regarding the offence in this case which was recorded by police. This evidence of PW.9 is hit under
Section 25 of the Indian Evidence Act as any confessional statement made to the police is in admissible. Except this evidence of PW.9 and the evidence investigation officer PW.11 there is no other evidence to prove that the accused was arrested on the next date of the incident. A perusal of arrest memos of the accused it is clear that accused was arrested on 31.01.2018 at goods shed road near railway exist gate. Whereas the evidence of the
Investigating Officer shows he was arrested at Railway west booking center, Vijayawada. The evidence of Uttam chand
Bandari in whose presence Investigating Officer arrested the accused shows that the accused was arrested near Madapati club situated near Vijayawada Railway station on 21.01.2018.
17.According to the evidence of PW.5 an eye witness to the incident he was examined 15 days after the incident. So also
PW.6 stated that police examined him and recorded his statement about 10 days after the incident. Whereas
Investigating Officer who was examined as PW.11 he was stated that he examined PW.1, PW.2, PW.3 and one Abdul salam on 20.01.2018 and recorded their statements. He also stated that he recorded the statements of Bandaru Nageswara
Rao LW.8 and PW.7 Krishna no where in his examination in 17 chief. he stated that he examined J Musalaiah PW.5, Y
Satyanarayana PW.6 and recorded their statements. This fact is said is sufficient to discard the evidence of PW.5 and PW.6 who are cited as eye witnesses and examined eye witnesses on behalf of the prosecution.
18.Coming to the evidence produced by the prosecution to establish the identity of the deceased that the dead body lying in pool of blood on the road in front of Honda Service Center is the dead body of one Donga Madusudhana Rao @ Madhava
Rao @ Venkateswara Rao @ Srinu. The prosecution relied on the evidence of PW.7 who is said to be the resident of
Thadepalligudem. He stated in his examination in chief the deceased namely M. Srinu is the son of Syamala Rao and
Syamala Rao left Thadepalligudem about 10 years back and nobody belonging to their family is residing near there place and deceased went away along with his father. This evidence of PW.7 does not inspire any truth that PW.7 is known to deceased and he identified the photograph shown to him by the police four months after the incident is that of them one
Srinu S/o. Syamala Rao. The other evidence produced on behalf of the prosecution to establish identity of the deceased he is one Srinu is evidence of PW.7 who stated the name of deceased is Srinu, S/o. Syamala Rao.
19.The evidence of P.W.10 the finger prints expert he stated in his examination in chief that on 17.03.2018 their finger print unit received finger prints of the deceased male person 18 from the Inspector police of I town, Vijayawada containing several finger prints of that person. He verified finger prints and submitted the same to the state Finger print burro with tin No.53900042 on the same day those finger prints are identical to the finger prints of Mr. Donga Madusudhana Rao @ Venkateswara Rao, S/o. Syamala Rao who was previously arrested and convicted in Cr.No.237/2005 of Thadepalligudem village for the offence U/s.379 IPC and also arrested in
Cr.No.136 of 2007 of Nidadavolu Railway P.S. for the offence
U/s.379 IPC. But the evidence produced on behalf of the prosecution and the evidence of Investigating officer do not disclose that as to how the investigation officer obtained the finger prints of one Donga Madhusudana Rao @ Venkateswara
Rao accused in Cr.No.237/2005 of Thadepalligudem and
Cr.No.136/2007 of Nidadavolu Railway P.S. in absence of any such connecting evidence on the part of the Investigating
Officer that he collected the finger prints of that Donga
Madhusudana Rao @ Venkateswara Rao from that respective police stations. The evidence of PW.10 and PW.11 that the finger prints of deceased are identical with that of the finger prints of Donga Madhusudhana Rao @ Venkateswara Rao cannot the believed.
20.Evidence of PW.7 that he identified the deceased on seeing the photo under Ex.P.2 is that of one Srinu S./o.
Syamala Rao who left the Thadepalli gudem 10 years prior to incident is silent regarding his surname and that the deceased 19 also called as Donga Madhusudana Rao @ Venkateswara Rao.
I find that the prosecution failed to establish the identity of the deceased as one Donga Madhusudhana Rao @ Venkateswara
Rao @ Srinu.
21. Apart from all these facts the evidence of Investigation
Officer does not disclose he conducted identification parade to connect the accused to the incident, even as per the statements of all the witnesses examined on behalf of prosecution that the accused is not the relative and he is not familiar to them.
22.As per the principle laid down in a decision reported in “Arun Bhanu Das Pawar VS State of Maharastra” 2008(4)SCJ794.
Wherein it was held,
PWs.1 and 2 independent witnesses not identified appellant on the sport no identification parade conducted.
Rejection of evidence regarding recovery of weapon of offence, prosecution fail to prove that it was the appellant none else who caused the death of the deceased findings on the trial court suffer from manifest error in proper and misappropriation of evidence on record. Appellant entitled to benefit of doubt.
23.By applying the above principle to the facts on hand, here in this case Investigation Officer has not stated that he examined and recorded the statements of the alleged eye witnesses examined as P.Ws.5 and 6 and no identification 20 period was conducted to identify the accused of the incident occurred at 10 to 11.00P.M. on the road in front of Honda
Service center. Where is there is no sufficient light to identify accused.
24.The learned counsel for accused filed written arguments as I have already discussed all the points raised by the defence counsel. I find it is not necessary to reiterate the same as it amounts to repetition.
25.POINT No.3
In view of the forgoing discussion I find that the prosecution failed to establish the geneses of the prosecution case. As stated by the prosecution and also failed to establish the identity of the accused as well as deceased with cogent, sufficient and reliable evidence to point out the guilt of the accused that the accused alone has committed offence
U/s.304 IPC and hence I find accused is entitled for benefit of doubt.
In the result, accused is acquitted U/s.235 (1) Cr.P.C. for the offence U/s.304 IPC. M.Os.1 to 9 shall be destroyed after expiry of appeal time.
Directly typed to my dictation by Typist, corrected and
pronounced by me in open court, this the 07th day of February,
2019.
Sd/ M.V.Ramana Kumari,
VIII ADDITIONAL DISTRICT & SESSIONS JUDGE,
VIJAYAWADA
21
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PROSECUTION DEFENCE
P.W1/Mamidikuduru Vasu Kumar NONE P.W2/Vishnubathla Siva Kumar P.W.3/Uday Saha P.W.4/Mukesh Kumar P.W.5/Jantikurthy Musalaiah P.W.6/Yallapu Satyanarayana P.W.7/Manupati Krishna. P.W.8/Dr. B. Srinu Naik. P.W.9/Uttamchand Bandari. P.W.10/Sri. A. Prasad Rao. PW.11/D. Kasi Viswanath.
DOCUMENTS MARKED FOR
PROSECUTION
Ex.P1: Written complaint Ex.P2: Photos Ex.P3: Postmortem Report. Ex.P4: Scene Observation Report. Ex.P5: Inquest Report. Ex.P6: Covering Letter of Finger Print Slip Ex.P7: Report of finger print expert. Ex.P8: FIR. Ex.P9: RFSL Report along with covering letter.
DEFENCE
Ex.D.1: A portion of 161 Statement of PW.5. Ex.D.2: A portion of 161 Statement of PW.6.
MATERIAL OBJECTS MARKED
M.O.1 Bamboo Stick. M.O.2 Blood stained earth. M.O.3 Control earth. M.O.4 Black green and white and red flowers Lungi with blood stains. M.O.5 White colour stripes full hand shirt with blood stains. M.O.6 Violet Color TShirt. M.O.7 Navy blue color full hands shirt with blood stains. M.O.8 Green color full hand shirt with blood stains. M.O.9 White and red color Kankari Lungi.
Sd/ M.V.Ramana Kumari, VIII Additional District & Sessions Judge,
Vijayawada.
1
BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL-CUM- VIII
ADDL. DISTRICT & SESSIONS JUDGE, VIJAYAWADA.
Present: SMT.M.VENKATA RAMANA KUMARI VIII Addl. District & Sessions Judge, Vijayawada.
Thursday, this the 24 th day of January, 2019
M.V.O.P.No.48 of 2015
Between:
Smt.Karnati Ramanamma, W/o.K.Malyadri, aged 40 years, Occ: Agriculturist, R/o.H.No.19-13-33, Judicial Colony, Rajarajeswarraopet (Old), Vijayawada, Krishna District. … Petitioner
AND
1) M/s.Shiva Parvathi Logistics, Rep. By A.Koti Reddy, S/o.Not known, aged 50 years, Occ: Business, R/o.H.No.2-58, Bahadurpally Village, Rangareddy District – 501 401.
2) M/s.H.D.F.C. ERGO General Insurance Co. Ltd., Rep. By its Divisional Manager, Off: 6th floor, Leela Business Park, Andheri-Kurla Road (E), Mumbai – 400 059. (Police No.2315 2006 8705 8400 002
dated 6.2.2014 to 5.2.2015)… Respondents
This Petition is coming on 22.1.2019 before me for final hearing in the presence of Sri P.Chenchuramaiah, Advocate for Petitioner and of Sri T.Veerabhadra Rao, Advo- cate for the 2nd respondent and 1st respondent remained exparte and upon considera- tion of the material on record, and the matter having stood over till this day for consid- eration, the court made the following:
O R D E R
1.This petition is filed by the petitioner Under Section 166 of the Motor Vehicles
Act 1988 and Rules 445 and 446 of Andhra Pradesh Motor Vehicles Rules, 1989 claiming compensation of Rs.2,00,000/- to the petitioner towards compensation with subsequent interest @18% per annum and costs of the petition.
2.The brief facts of the petitioner case is that:- 2 the petitioner is the resident of Rajarajeswaraopet, Vijayawada, Krishna District and she is the wife of K.Malyadri. On 22.6.2014 at 10.30 P.M. while the petitioner and six persons were proceeding on a Quallies bearing No.AP 27 W 9493 from Guntur to
Vijayawada for attending engagement of her relatives, at that time, one tanker bearing
No.AP 28 TD 7789 belongs to the 1st respondent, which was proceeding towards
Vijayawada came at high speed manner without following any indication suddenly applied brake, for which driver of the Quallies, wherein she was travelling, lost control and dashed behind the tanker bearing No. AP 27 TD 7789, due to which, the petitioner sustained injuries to her spinal and her right leg was got fractured back and she also received grievous injuries and one of them traveller died on the spot.
3)The petitioner and other victims were immediately shifted to the Government
General Hospital for immediate treatment and thereafter shifted to Andhra Hospital,
Vijayawada and spent huge amounts towards treatment and the petitioner became partial disabled and that prior to the accident she was hale and healthy and presently she is bedridden and she is not in a position even to look after herself and required constant attendance, for which, she engaged a maid servant agreeing to pay
Rs.1000/- per month.
4)Regarding the said accident, a case was registered in Tadepalli Police Station in
Crime No.273/2014 Under Sec.338 of IPC against the driver of the said Tanker bearing
No.AP-28-TD-7789 and the accident occurred only due to rash and negligent driving of the driver of the Tanker bearing No. AP-28-TD-7789 . The petitioner is claiming a total compensation of Rs.2,00,000/- in the said Motor Vehicle Accident. The 1st respondent is the owner and the 2nd respondent is the insurer of the said tanker vide policy
No.2315 2006 8705 8400 002 which is valid from 5.2.2014 to 5.2.2015 are jointly and severally liable to pay the compensation to the petitioner.
5).The 1st respondent remained exparte.
3
6)The 2nd respondent alone filed written statement denying the petition averments and specifically contending that the petitioner has to plead and prove the claim by adducing the cogent, convincing and substantial legal evidence by examining the material witnesses along with the officer in charge of police station who alleged to have conducted investigation in the alleged crime. The claim of the petitioner is fraudulent claim as the alleged accident is false, frivolous and they were fabricated for wrongful gain and unjust enrichment and the respondent is not liable for the said accident and the alleged accident is a case of hit and run motor accident and that it falls Under
Sec.161 (1) (b) of the Motor Vehicles Act, 1988 caused by unknown to the petitioner.
The 2nd respondent is not liable to Indemnify the owner of the vehicle bearing No. AP- 28-TD-7789 as there is no rash and negligent driving of the driver of the vehicle bearing No. AP-28-TD-7789 and the driver of the vehicle bearing No.AP 27/W 9493, who dashed against the vehicle No. AP-28-TD-7789 is materially contributed for the cause of accident and that the petitioner is guilty of self negligence and the petition is bad-in-law for non adding of owner and insurer of the vehicle bearing No.AP 27/W.9493 as its driver drove it without valid driving licence with badge transport endorsement.
7)It is the further contention of the 2nd respondent that the owner of the vehicle in question committed wanton wilfull violation and fundamental breach of the terms and conditions of alleged policy and the owner of the vehicle in question contravened
Sections 39, 56, 66, 147 and 149 (2) of the Motor Vehicles Act, 1988. The Petitioner is not entitled to claim medical expenses towards her treatment. The burden of proof is on the petitioner only when the vehicle in question, pay valid premium covering 3rd party risk.
4
8)It is the further contention of the 2nd respondent that as on the date of accident, the driver of the vehicle in question is not holding valid and effective driving license to drive the vehicle in question. The interest claimed by the petitioner @18% per annum is highly excessive and the amount of Rs.2,00,000/- claimed by the petitioner is excessive and the petitioner is not entitled to any compensation. Hence prays to dismiss the claim petition in the interest of justice.
9)Basing on the above pleadings, my learned predecessor framed the following issues for trial:-
1) Whether the petitioner sustained injuries due to the motorvehicle accident occurred on 22.6.2014 at about 10.00 P.M. near Praturu Cross Road on NH-5, at Tadepalli?
2) Whether the petitioner is entitled to compensation as prayed for, and if so, from whom, and to what amount?
3) To what relief?
10)During the course of enquiry, on behalf of the petitioner, PW1 and PW2 were examined and got marked Exs.A1 to A11. On behalf of the 2nd respondent, RW1 was examined and Ex.B1 was marked.
11.Heard both sides.
12)ISSUE No. 1 :
This petition is filed by the petitioner Under Sec.166 of Motor
Vehicle Act claiming compensation of Rs.2,00,000/ against the respondents 1 and 2 that the accident occurred due to driver of the tanker bearing No.AP 28 TD 7789 drove the vehicle with high speed without following any indication and suddenly applied brake, as a result, the driver of the Quallies vehicle lost control and dashed behind the tanker bearing No.AP 28 TD 7789, due to that the petitioner 5 sustained injuries. When once the petitioner filed petition Under
Section 166 of Motor Vehicle Act, the burden is on the petitioner to prove that the accident occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789, without following any indication suddenly applied brake, as a result, the driver of the said
Qualish lost his control and dashed the Tanker bearing No.AP 28 TD 7789 on its rare side due to that the petitioner sustained injuries.
13)In order to discharge her burden, the petitioner herself examined as PW1 and got examined PW2 and got marked Exs.A1 to A11. Ex.A1 is the attested copy of F.I.R. in Cr.No.273/2014, dated 22.6.2014. Ex.A2 is the copy of the charge sheet. Ex.A3 is the attested copy of discharge summary of the petitioner issued by the Andhra Hospital, Vijayawada,.
Ex.A4 is the attested copy of R.C. Ex.A5 is the original R.K. Scan report.
Ex.A6 is the attested copy of driving license of the petitioner. Ex.A7 is the original medical prescription of the petitioner. Ex.A8 is the attested copy of insurance policy. Ex.A9 is the original medical bills. Ex.A10 is the attested copy of M.V.I. report. Ex.A11 is the attested copy of wound certificate of the petitioner. On the other hand, the 2nd respondent got examined its Manager as RW1 and got marked Ex.B1 insurance policy .
14)The petitioner as PW1 filed her examinationinchief affidavit by reiterating all the facts stated by her in her petition that on 22.6.2014 at 10.30 P.M. she along with six persons were coming in a Quallies bearing
No.AP 27 W 9493 from Guntur to Vijayawada by attending engagement 6 of her relatives, one tanker bearing No. AP 28 TD 7789 going towards
Vijayawada and the driver of the vehicle drove the vehicle with a high speed manner and without following any indication suddenly applied brake, due to which, the driver of the Qualies lost control and dashed behind the tanker bearing No. AP 28 TD 7789, due to that she sustained injuries on her spinal and right leg was fractured back and also received grievous bleeding injuries all over her body. The other travellers are also received grievous injuries and one of them died at spot. During her crossexamination by the learned counsel for the 2nd respondent she stated that in total 11 persons including herself were travelling in the vehicle bearing No.AP 27 W 9493 at the time of the accident and at that time 3 persons sat in the front seat and 4 persons sat in the middle row and 4 persons sat in the last row and she sat in the back row. Mrs.Adusumilli Ramanamma, who is her youngest maternal aunt sat in the middle row and she died in the accident by falling on the road by jumping from the middle row through the wind sheet of the vehicle. The accident was taken place on the national highway between Tadepalli and Guntur. She admits that there was a possibility if sudden break was applied by their vehicle driver the vehicles passing behind their vehicle might dash against their vehicle.
She does not know personally as to how the accident was taken place and who was responsible for the accident. She further deposed if her vehicle driver maintained some distance from the vehicle that was 7 proceeding in front of their vehicle that the accident would not have been taken place. This evidence of PW1 during her crossexamination itself infers that the accident occurred as the driver of the Qualies vehicle, wherein she was travelling along with 10 other persons, fails to maintain distance from the vehicle that was proceeding in front of their vehicle. Apart from her admission in the crossexamination that there was a possibility if sudden brake was applied by the driver of the vehicle might have dashed against their vehicle which clearly indicates that the driver of the Quallies vehicle, wherein the petitioner was travelling does not maintained the distance from the tanker involved in the accident bearing No.AP 28 TD 7789. The evidence of PW1 further shows during her crossexamination Mrs.Adusumilli Ramanamma who is her youngest maternal aunt sat on the middle row died in the accident by falling on the road by jumping from the middle row through the wind sheet of the vehicle, which clearly shows the manner of the force applied by the driver of the Qualies while dashing the tanker proceeded in front of the Quallies. Except the sole evidence of PW1 there is no other evidence available on record to show that the driver of the tanker bearing No.AP 28 TD 7789 applied sudden brake due to which, the driver of the Qualies lost his control and dashed behind the tanker bearing No.AP 28 TD 7789. As the pleadings in the petition itself did not disclose that the driver of the tanker bearing No.AP 28 TD 7789 drove the vehicle with rash and negligent manner which resulted the 8 death of Adusumilli Ramanamma or the petitioner received injuries as mentioned in the petition.
15)A perusal of the documents and contents of the documents filed by the petitioner such as F.I.R. also did not disclose that the accident occurred only due to application of sudden brake of the driver of the tanker bearing No.AP 28 TD 7789. A perusal of the contents of the report of the defactocomplainant shows that their driver drove the car and dashed against the tanker bearing No.AP 28 TD 7789 from rare side, due to which the accident occurred. A perusal of the contents of
M.V.I. Report marked as Ex.A10 shows that the condition of the tyres are satisfactory and the opinion of the M.V.I. Inspector also shows that the accident occurred is not due to any mechanical defects of the vehicle. If really sudden brakes were applied by the driver of the tanker bearing No.AP 28 TD 7789, there must be some damage to the tyres, but there is no such damage to the tanker bearing No.AP 28 TD 7789.
16)On the other hand the manner in which the Quallies dashed against the tanker and forcibly falling of the deceased Ramanamma through wind sheet clearly indicates that the accident occurred only due to the rash and negligent driving of the Qualies driver, but not due to the driver of the tanker bearing No.AP 28 TD 7789.
17)The learned counsel for the respondent No.2 relied on a decision reported in 2018 ACJ 1466 S.C. in the case of 9
Nihan Singh and others Vs. Oriental Insurance Company
Limited and others, the facts involved in the said decision are similar to the facts on hand. Wherein it was held that:
car dashed against a truck going ahead, resulting in death of a passenger in car – car driver admitted that truck was going ahead for quite some time and at the time of accident the distance between the truck and car was only 10-15 feet. No evidence to indicate that driver of truck suddenly applied brakes in the middle of the road and the truck was moving at high speed as alleged.
Regulation 23 of Rules of the Road Regulations, 1989, envisages that a car driver was expected to maintain sufficient distance. Distance of 10-15 feet between the two vehicles was not a safe distance and the driver of car must take the blame for the accident and the driver of the car negligent and responsible for the accident and there was no negligence of the driver of the truck and the finding was affirmed by High Court.
18) By applying the above principle to the facts on hand herein this case also it is an admitted fact that the tanker was going ahead to Quallies car and there is no evidence produced on behalf of the petitioner to show that the driver of the tanker applied sudden brakes except marking Ex.P1 attested copy of FIR and her own evidence, due to which the car driver lost his control and dashed behind the tanker. PW1 herself during the cross-examination stated had their vehicle driver maintained some distance from the vehicle that was proceeding in front of their vehicle the accident would not have been taken place which clearly shows the 10
Quallies driver violated Rule 23 of Rules of the Road Regulations 1989. She further stated that as she does not know personally as to how the accident was taken place and who was responsible for the accident. As per the wound certificate given by PW2 marked as Ex.A11 the petitioner received simple injuries by complaining pain to her knee and no amount of compensation is mentioned
Under Sec.163 of M.V.Act even to grant compensation to the petitioner Under the head of 163 (a) of M.V.Act. In view of the above stated circumstances I find that the petitioner failed to establish that the accident occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789 to attract provisions Under Sec. 338 of IPC, and she sustained injuries as stated by her in her petition as well as in her examination-in-chief. On the other hand the avermnets in the petition runs inconsistent to the injuries sustained by her as shown in Ex.A11 wound certificate, I find the petitioner has not approached the
Tribunal with true facts.
19) The contention of the learned counsel for the petitioner that the crime was registered against the driver of the tanker bearing No.AP 28 TD 7789 and the charge sheet was also filed against the driver of the tanker by showing him as accused. But as per the principle laid down in a decision reported in 2004(3) ALD (NOC) 312, wherein it was held that:
There is no presumption that allegations contained in charge sheet are true and the allegations made in charge sheet have to be proved by adducing oral evidence.
11
Here in this petition also the petitioner did not choose to examine the investigating officer or any of the witnesses who witnessed the accident to prove the contents of the charge sheet. In such circumstances mere filing of the charge sheet is no way helpful to the petitioner to prove that the accident occurred due to apply of sudden brakes by the driver of the tanker bearing
No.AP 28 TD 7789 going ahead of their Quallies wherein she was travelling along with the others, to infer that the accident occurred only due to negligent act of the driver of the vehicle bearing No.AP 28 TD 7789.
20) ISSUE NO.2:
The petitioner who is examined as PW1 and got marked Ex.A11 copy of the wound certificate and got examined PW2/medical officer, who issued wound certificate. The evidence of PW2 and the contents of Ex.A11 does not disclose that the petitioner sustained injuries as stated by her either in her petition or in her examination in chief. The evidence of PW2, who issued wound certificate in his cross-examination stated that the patient complained pain at her hip region as mentioned in Ex.A11. He also stated that she/PW1 sustained burn injuries due to liquid chemicals, but it was not mentioned in the wound certificate. She sustained no bony injuries and she was fit at the time of discharge from the hospital on the very next day of the accident without taking any treatment for her alleged injuries. PW2 also stated that he does not know about Ex.A5. The petitioner did not excise any with prove the medical bills. On the other hand the discharge summary of petitioner itself shows she was discharged on the very 12 next date of the accident. This it appears that the documents produced on behalf of petitioner itself shows the petitioner approached the Tribunal claoming compensation of Rs.2,00,000/- without any basis.
21)Issue No.3.
In view of my findings on issue No.1, that the petitioner failed to establish that the accident was occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789 by applying sudden break without taking precautions belongs to the 1st respondent being the owner of vehicle and the 2nd respondent is being the insurer are not liable to pay compensation to the petitioner as claimed by her and also findings given by Issue No.2 that the petitioner failed to produce consistent evidence regarding nature of injuries received by her and the treatment taken by her and also medical expenses incurred by her, I find that the petitioner is not entitled her compensation.
22.In the result, this petition is dismissed without costs.
Dictated to the stenographer, typed and transcribed by her, cor
rected and pronounced by me in the open Court, on this the 25th day of January, 2019.
VIII ADDL. DISTRICT & SESSIONS JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER:FOR RESPONDENT
PW1: K.Ravanamma.RW1: P.V.Siva Kumar
PW2: Dr.B.Sunil 13
DOCUMENTS MARKED FOR
PETITIONER:
Ex.A1: Attested Copy of FIR
Ex.A2: Attested Copy of Charge sheet.
Ex.A3: Attested Copy of discharge summary
Ex.A4: Attested copy of R.C.
Ex.A5 : Original R.K. Scan report
Ex.A6: Attested copy of D.L.
Ex.A7: Original Medical prescription
Ex.A8: Attested copy of insurance policy
Ex.A9: Original Medical Bills
Ex.A10: Attested copy of M.V.I. Report
Ex.A11: Attested copy of wound certificate.
FOR RESPONDENT:
Ex.B1: Insurance policy along with terms and conditions
VIII Addl. District & Sessions Judge,
Vijayawada 14
Judgment pronounced (VSJ).
In the result, this petition is partly allowed granting an amount of
Rs.62,019/towards compensation tothepetitionerwith proportionate costs and interest thereon at 9% p.a. from the date of presentation of the petition till the date of this order and observing that the respondents 1 to 3 are jointly and severally liable to pay the said amount and directing them to deposit the said amount within one month from the date of this order. On such deposit the petitioner is permitted to withdraw the whole amount. The advocate fee is fixed at Rs.1,500/. The rest of the petition claim is dismissed.
VIII ADJ.
15 16
Orders pronounced (VSO). In the result, this petition is partly allowed, granting an amount of Rs.2,10,063/ with interest at 9% p.a. there on from the date of presentation of this petition till thedateofrealisationwith proportionatecoststowards compensation to the petitioner, directing the 3rd respondent to deposit the said amount within a period of one month from the date of this order and recover the same from 2nd respondent. The petitioner is permitted to withdraw the entire amount on such deposit. This petition against the 1st respondent and the rest of the petition claim are dismissed. Advocate fee is fixed at
Rs.2,000/.
VIII ADJ.
17 18
BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL
CUM VIII ADDL. DISTRICT & SESSIONS JUDGE, VIJAYAWADA.
Present: SMT.M.VENKATA RAMANA KUMARI VIII Addl. District & Sessions Judge, Vijayawada.
Thursday, this the 24 th day of January, 2019
M.V.O.P.No.48 of 2015
Between:
Smt.Karnati Ramanamma, W/o.K.Malyadri, aged 40 years, Occ: Agriculturist, R/o.H.No.19-13-33, Judicial Colony, Rajarajeswarraopet (Old), Vijayawada, Krishna District. … Petitioner
AND
1) M/s.Shiva Parvathi Logistics, Rep. By A.Koti Reddy, S/o.Not known, aged 50 years, Occ: Business, R/o.H.No.2-58, Bahadurpally Village, Rangareddy District – 501 401.
2) M/s.H.D.F.C. ERGO General Insurance Co. Ltd., Rep. By its Divisional Manager, Off: 6th floor, Leela Business Park, Andheri-Kurla Road (E), Mumbai – 400 059. (Police No.2315 2006 8705 8400 002
dated 6.2.2014 to 5.2.2015)… Respondents
M.V.O.P. filed for compensation of Rs.2,00,000/ with interest from the date of accident till the date of realisation and for costs, on which a court fee of Rs.==/ is paid U/R.475 of A.P.M.V. Rules, 1989.
Petition Filing Date: 08.01.2015
This Petition is coming on for hearing before me on 09022017 in the presence of Mrs.K.Hemalatha, Advocate for Petitioner and of Mr.K.Venkateswara Rao, Advocate for R3 and R1 and R2 remained set exparte and upon consideration of the material on record, and the mat ter having stood over till this day for consideration, the court doth order and decree:
1.That this petition be and the same is hereby partly allowed granting an amount of Rs.62,019/ towards compensation to the petitioner with proportionate costs and interest thereon at 9% p.a. from the date of presentation of the petition till the date of this order.
19 2.That the respondents 1 to 3 are jointly and severally liable to pay the said amount.
3.That the respondents are and directed to deposit the said amount within one month from the date of this order.
4.That on such deposit the petitioner is permitted to withdraw the whole amount.
5.That the advocate fee is fixed at Rs.1,500/.
6.That the rest of the petition claim is dismissed.
Given under my hand and seal of this court, this the 15th day of February, 2017.
VIII Addl.Dist.& Sessions Judge, Vijayawada
Memorandum of Costs
ParticularsFor PetitionerFor Respondents .
Stamp on Vakalat Welfare fund Stamp on O.P. Petition stamp Process Witness Beta C.F.Affixed on documents Commissioner fees Pleaders Fee Sr. & Jr.No bill ofNo bill of costscosts claimed.claimed. Publication charges Writing charges Typing charges
Total
VIII Addl. Dist. & Sessions Judge, Vijayawada.
1
BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL-CUM- VIII
ADDL. DISTRICT & SESSIONS JUDGE, VIJAYAWADA.
Present: SMT.M.VENKATA RAMANA KUMARI VIII Addl. District & Sessions Judge, Vijayawada.
Thursday, this the 24 th day of January, 2019
M.V.O.P.No.48 of 2015
Between:
Smt.Karnati Ramanamma, W/o.K.Malyadri, aged 40 years, Occ: Agriculturist, R/o.H.No.19-13-33, Judicial Colony, Rajarajeswarraopet (Old), Vijayawada, Krishna District. … Petitioner
AND
1) M/s.Shiva Parvathi Logistics, Rep. By A.Koti Reddy, S/o.Not known, aged 50 years, Occ: Business, R/o.H.No.2-58, Bahadurpally Village, Rangareddy District – 501 401.
2) M/s.H.D.F.C. ERGO General Insurance Co. Ltd., Rep. By its Divisional Manager, Off: 6th floor, Leela Business Park, Andheri-Kurla Road (E), Mumbai – 400 059. (Police No.2315 2006 8705 8400 002
dated 6.2.2014 to 5.2.2015)… Respondents
This Petition is coming on 22.1.2019 before me for final hearing in the presence of Sri P.Chenchuramaiah, Advocate for Petitioner and of Sri T.Veerabhadra Rao, Advo- cate for the 2nd respondent and 1st respondent remained exparte and upon considera- tion of the material on record, and the matter having stood over till this day for consid- eration, the court made the following:
O R D E R
1.This petition is filed by the petitioner Under Section 166 of the Motor Vehicles
Act 1988 and Rules 445 and 446 of Andhra Pradesh Motor Vehicles Rules, 1989 claiming compensation of Rs.2,00,000/- to the petitioner towards compensation with subsequent interest @18% per annum and costs of the petition.
2.The brief facts of the petitioner case is that:- 2 the petitioner is the resident of Rajarajeswaraopet, Vijayawada, Krishna District and she is the wife of K.Malyadri. On 22.6.2014 at 10.30 P.M. while the petitioner and six persons were proceeding on a Quallies bearing No.AP 27 W 9493 from Guntur to
Vijayawada for attending engagement of her relatives, at that time, one tanker bearing
No.AP 28 TD 7789 belongs to the 1st respondent, which was proceeding towards
Vijayawada came at high speed manner without following any indication suddenly applied brake, for which driver of the Quallies, wherein she was travelling, lost control and dashed behind the tanker bearing No. AP 27 TD 7789, due to which, the petitioner sustained injuries to her spinal and her right leg was got fractured back and she also received grievous injuries and one of them traveller died on the spot.
3)The petitioner and other victims were immediately shifted to the Government
General Hospital for immediate treatment and thereafter shifted to Andhra Hospital,
Vijayawada and spent huge amounts towards treatment and the petitioner became partial disabled and that prior to the accident she was hale and healthy and presently she is bedridden and she is not in a position even to look after herself and required constant attendance, for which, she engaged a maid servant agreeing to pay
Rs.1000/- per month.
4)Regarding the said accident, a case was registered in Tadepalli Police Station in
Crime No.273/2014 Under Sec.338 of IPC against the driver of the said Tanker bearing
No.AP-28-TD-7789 and the accident occurred only due to rash and negligent driving of the driver of the Tanker bearing No. AP-28-TD-7789 . The petitioner is claiming a total compensation of Rs.2,00,000/- in the said Motor Vehicle Accident. The 1st respondent is the owner and the 2nd respondent is the insurer of the said tanker vide policy
No.2315 2006 8705 8400 002 which is valid from 5.2.2014 to 5.2.2015 are jointly and severally liable to pay the compensation to the petitioner.
5).The 1st respondent remained exparte.
3
6)The 2nd respondent alone filed written statement denying the petition averments and specifically contending that the petitioner has to plead and prove the claim by adducing the cogent, convincing and substantial legal evidence by examining the material witnesses along with the officer in charge of police station who alleged to have conducted investigation in the alleged crime. The claim of the petitioner is fraudulent claim as the alleged accident is false, frivolous and they were fabricated for wrongful gain and unjust enrichment and the respondent is not liable for the said accident and the alleged accident is a case of hit and run motor accident and that it falls Under
Sec.161 (1) (b) of the Motor Vehicles Act, 1988 caused by unknown to the petitioner.
The 2nd respondent is not liable to Indemnify the owner of the vehicle bearing No. AP- 28-TD-7789 as there is no rash and negligent driving of the driver of the vehicle bearing No. AP-28-TD-7789 and the driver of the vehicle bearing No.AP 27/W 9493, who dashed against the vehicle No. AP-28-TD-7789 is materially contributed for the cause of accident and that the petitioner is guilty of self negligence and the petition is bad-in-law for non adding of owner and insurer of the vehicle bearing No.AP 27/W.9493 as its driver drove it without valid driving licence with badge transport endorsement.
7)It is the further contention of the 2nd respondent that the owner of the vehicle in question committed wanton wilfull violation and fundamental breach of the terms and conditions of alleged policy and the owner of the vehicle in question contravened
Sections 39, 56, 66, 147 and 149 (2) of the Motor Vehicles Act, 1988. The Petitioner is not entitled to claim medical expenses towards her treatment. The burden of proof is on the petitioner only when the vehicle in question, pay valid premium covering 3rd party risk.
4
8)It is the further contention of the 2nd respondent that as on the date of accident, the driver of the vehicle in question is not holding valid and effective driving license to drive the vehicle in question. The interest claimed by the petitioner @18% per annum is highly excessive and the amount of Rs.2,00,000/- claimed by the petitioner is excessive and the petitioner is not entitled to any compensation. Hence prays to dismiss the claim petition in the interest of justice.
9)Basing on the above pleadings, my learned predecessor framed the following issues for trial:-
1) Whether the petitioner sustained injuries due to the motorvehicle accident occurred on 22.6.2014 at about 10.00 P.M. near Praturu Cross Road on NH-5, at Tadepalli?
2) Whether the petitioner is entitled to compensation as prayed for, and if so, from whom, and to what amount?
3) To what relief?
10)During the course of enquiry, on behalf of the petitioner, PW1 and PW2 were examined and got marked Exs.A1 to A11. On behalf of the 2nd respondent, RW1 was examined and Ex.B1 was marked.
11.Heard both sides.
12)ISSUE No. 1 :
This petition is filed by the petitioner Under Sec.166 of Motor
Vehicle Act claiming compensation of Rs.2,00,000/ against the respondents 1 and 2 that the accident occurred due to driver of the tanker bearing No.AP 28 TD 7789 drove the vehicle with high speed without following any indication and suddenly applied brake, as a result, the driver of the Quallies vehicle lost control and dashed behind the tanker bearing No.AP 28 TD 7789, due to that the petitioner 5 sustained injuries. When once the petitioner filed petition Under
Section 166 of Motor Vehicle Act, the burden is on the petitioner to prove that the accident occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789, without following any indication suddenly applied brake, as a result, the driver of the said
Qualish lost his control and dashed the Tanker bearing No.AP 28 TD 7789 on its rare side due to that the petitioner sustained injuries.
13)In order to discharge her burden, the petitioner herself examined as PW1 and got examined PW2 and got marked Exs.A1 to A11. Ex.A1 is the attested copy of F.I.R. in Cr.No.273/2014, dated 22.6.2014. Ex.A2 is the copy of the charge sheet. Ex.A3 is the attested copy of discharge summary of the petitioner issued by the Andhra Hospital, Vijayawada,.
Ex.A4 is the attested copy of R.C. Ex.A5 is the original R.K. Scan report.
Ex.A6 is the attested copy of driving license of the petitioner. Ex.A7 is the original medical prescription of the petitioner. Ex.A8 is the attested copy of insurance policy. Ex.A9 is the original medical bills. Ex.A10 is the attested copy of M.V.I. report. Ex.A11 is the attested copy of wound certificate of the petitioner. On the other hand, the 2nd respondent got examined its Manager as RW1 and got marked Ex.B1 insurance policy .
14)The petitioner as PW1 filed her examinationinchief affidavit by reiterating all the facts stated by her in her petition that on 22.6.2014 at 10.30 P.M. she along with six persons were coming in a Quallies bearing
No.AP 27 W 9493 from Guntur to Vijayawada by attending engagement 6 of her relatives, one tanker bearing No. AP 28 TD 7789 going towards
Vijayawada and the driver of the vehicle drove the vehicle with a high speed manner and without following any indication suddenly applied brake, due to which, the driver of the Qualies lost control and dashed behind the tanker bearing No. AP 28 TD 7789, due to that she sustained injuries on her spinal and right leg was fractured back and also received grievous bleeding injuries all over her body. The other travellers are also received grievous injuries and one of them died at spot. During her crossexamination by the learned counsel for the 2nd respondent she stated that in total 11 persons including herself were travelling in the vehicle bearing No.AP 27 W 9493 at the time of the accident and at that time 3 persons sat in the front seat and 4 persons sat in the middle row and 4 persons sat in the last row and she sat in the back row. Mrs.Adusumilli Ramanamma, who is her youngest maternal aunt sat in the middle row and she died in the accident by falling on the road by jumping from the middle row through the wind sheet of the vehicle. The accident was taken place on the national highway between Tadepalli and Guntur. She admits that there was a possibility if sudden break was applied by their vehicle driver the vehicles passing behind their vehicle might dash against their vehicle.
She does not know personally as to how the accident was taken place and who was responsible for the accident. She further deposed if her vehicle driver maintained some distance from the vehicle that was 7 proceeding in front of their vehicle that the accident would not have been taken place. This evidence of PW1 during her crossexamination itself infers that the accident occurred as the driver of the Qualies vehicle, wherein she was travelling along with 10 other persons, fails to maintain distance from the vehicle that was proceeding in front of their vehicle. Apart from her admission in the crossexamination that there was a possibility if sudden brake was applied by the driver of the vehicle might have dashed against their vehicle which clearly indicates that the driver of the Quallies vehicle, wherein the petitioner was travelling does not maintained the distance from the tanker involved in the accident bearing No.AP 28 TD 7789. The evidence of PW1 further shows during her crossexamination Mrs.Adusumilli Ramanamma who is her youngest maternal aunt sat on the middle row died in the accident by falling on the road by jumping from the middle row through the wind sheet of the vehicle, which clearly shows the manner of the force applied by the driver of the Qualies while dashing the tanker proceeded in front of the Quallies. Except the sole evidence of PW1 there is no other evidence available on record to show that the driver of the tanker bearing No.AP 28 TD 7789 applied sudden brake due to which, the driver of the Qualies lost his control and dashed behind the tanker bearing No.AP 28 TD 7789. As the pleadings in the petition itself did not disclose that the driver of the tanker bearing No.AP 28 TD 7789 drove the vehicle with rash and negligent manner which resulted the 8 death of Adusumilli Ramanamma or the petitioner received injuries as mentioned in the petition.
15)A perusal of the documents and contents of the documents filed by the petitioner such as F.I.R. also did not disclose that the accident occurred only due to application of sudden brake of the driver of the tanker bearing No.AP 28 TD 7789. A perusal of the contents of the report of the defactocomplainant shows that their driver drove the car and dashed against the tanker bearing No.AP 28 TD 7789 from rare side, due to which the accident occurred. A perusal of the contents of
M.V.I. Report marked as Ex.A10 shows that the condition of the tyres are satisfactory and the opinion of the M.V.I. Inspector also shows that the accident occurred is not due to any mechanical defects of the vehicle. If really sudden brakes were applied by the driver of the tanker bearing No.AP 28 TD 7789, there must be some damage to the tyres, but there is no such damage to the tanker bearing No.AP 28 TD 7789.
16)On the other hand the manner in which the Quallies dashed against the tanker and forcibly falling of the deceased Ramanamma through wind sheet clearly indicates that the accident occurred only due to the rash and negligent driving of the Qualies driver, but not due to the driver of the tanker bearing No.AP 28 TD 7789.
17)The learned counsel for the respondent No.2 relied on a decision reported in 2018 ACJ 1466 S.C. in the case of 9
Nihan Singh and others Vs. Oriental Insurance Company
Limited and others, the facts involved in the said decision are similar to the facts on hand. Wherein it was held that:
car dashed against a truck going ahead, resulting in death of a passenger in car – car driver admitted that truck was going ahead for quite some time and at the time of accident the distance between the truck and car was only 10-15 feet. No evidence to indicate that driver of truck suddenly applied brakes in the middle of the road and the truck was moving at high speed as alleged.
Regulation 23 of Rules of the Road Regulations, 1989, envisages that a car driver was expected to maintain sufficient distance. Distance of 10-15 feet between the two vehicles was not a safe distance and the driver of car must take the blame for the accident and the driver of the car negligent and responsible for the accident and there was no negligence of the driver of the truck and the finding was affirmed by High Court.
18) By applying the above principle to the facts on hand herein this case also it is an admitted fact that the tanker was going ahead to Quallies car and there is no evidence produced on behalf of the petitioner to show that the driver of the tanker applied sudden brakes except marking Ex.P1 attested copy of FIR and her own evidence, due to which the car driver lost his control and dashed behind the tanker. PW1 herself during the cross-examination stated had their vehicle driver maintained some distance from the vehicle that was proceeding in front of their vehicle the accident would not have been taken place which clearly shows the 10
Quallies driver violated Rule 23 of Rules of the Road Regulations 1989. She further stated that as she does not know personally as to how the accident was taken place and who was responsible for the accident. As per the wound certificate given by PW2 marked as Ex.A11 the petitioner received simple injuries by complaining pain to her knee and no amount of compensation is mentioned
Under Sec.163 of M.V.Act even to grant compensation to the petitioner Under the head of 163 (a) of M.V.Act. In view of the above stated circumstances I find that the petitioner failed to establish that the accident occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789 to attract provisions Under Sec. 338 of IPC, and she sustained injuries as stated by her in her petition as well as in her examination-in-chief. On the other hand the avermnets in the petition runs inconsistent to the injuries sustained by her as shown in Ex.A11 wound certificate, I find the petitioner has not approached the
Tribunal with true facts.
19) The contention of the learned counsel for the petitioner that the crime was registered against the driver of the tanker bearing No.AP 28 TD 7789 and the charge sheet was also filed against the driver of the tanker by showing him as accused. But as per the principle laid down in a decision reported in 2004(3) ALD (NOC) 312, wherein it was held that:
There is no presumption that allegations contained in charge sheet are true and the allegations made in charge sheet have to be proved by adducing oral evidence.
11
Here in this petition also the petitioner did not choose to examine the investigating officer or any of the witnesses who witnessed the accident to prove the contents of the charge sheet. In such circumstances mere filing of the charge sheet is no way helpful to the petitioner to prove that the accident occurred due to apply of sudden brakes by the driver of the tanker bearing
No.AP 28 TD 7789 going ahead of their Quallies wherein she was travelling along with the others, to infer that the accident occurred only due to negligent act of the driver of the vehicle bearing No.AP 28 TD 7789.
20) ISSUE NO.2:
The petitioner who is examined as PW1 and got marked Ex.A11 copy of the wound certificate and got examined PW2/medical officer, who issued wound certificate. The evidence of PW2 and the contents of Ex.A11 does not disclose that the petitioner sustained injuries as stated by her either in her petition or in her examination in chief. The evidence of PW2, who issued wound certificate in his cross-examination stated that the patient complained pain at her hip region as mentioned in Ex.A11. He also stated that she/PW1 sustained burn injuries due to liquid chemicals, but it was not mentioned in the wound certificate. She sustained no bony injuries and she was fit at the time of discharge from the hospital on the very next day of the accident without taking any treatment for her alleged injuries. PW2 also stated that he does not know about Ex.A5. The petitioner did not excise any with prove the medical bills. On the other hand the discharge summary of petitioner itself shows she was discharged on the very 12 next date of the accident. This it appears that the documents produced on behalf of petitioner itself shows the petitioner approached the Tribunal claoming compensation of Rs.2,00,000/- without any basis.
21)Issue No.3.
In view of my findings on issue No.1, that the petitioner failed to establish that the accident was occurred due to rash and negligent driving of the driver of the tanker bearing No.AP 28 TD 7789 by applying sudden break without taking precautions belongs to the 1st respondent being the owner of vehicle and the 2nd respondent is being the insurer are not liable to pay compensation to the petitioner as claimed by her and also findings given by Issue No.2 that the petitioner failed to produce consistent evidence regarding nature of injuries received by her and the treatment taken by her and also medical expenses incurred by her, I find that the petitioner is not entitled her compensation.
22.In the result, this petition is dismissed without costs.
Dictated to the stenographer, typed and transcribed by her, cor
rected and pronounced by me in the open Court, on this the 25th day of January, 2019.
VIII ADDL. DISTRICT & SESSIONS JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER:FOR RESPONDENT
PW1: K.Ravanamma.RW1: P.V.Siva Kumar
PW2: Dr.B.Sunil 13
DOCUMENTS MARKED FOR
PETITIONER:
Ex.A1: Attested Copy of FIR
Ex.A2: Attested Copy of Charge sheet.
Ex.A3: Attested Copy of discharge summary
Ex.A4: Attested copy of R.C.
Ex.A5 : Original R.K. Scan report
Ex.A6: Attested copy of D.L.
Ex.A7: Original Medical prescription
Ex.A8: Attested copy of insurance policy
Ex.A9: Original Medical Bills
Ex.A10: Attested copy of M.V.I. Report
Ex.A11: Attested copy of wound certificate.
FOR RESPONDENT:
Ex.B1: Insurance policy along with terms and conditions
VIII Addl. District & Sessions Judge,
Vijayawada 14
Judgment pronounced (VSJ).
In the result, this petition is partly allowed granting an amount of
Rs.62,019/towards compensation tothepetitionerwith proportionate costs and interest thereon at 9% p.a. from the date of presentation of the petition till the date of this order and observing that the respondents 1 to 3 are jointly and severally liable to pay the said amount and directing them to deposit the said amount within one month from the date of this order. On such deposit the petitioner is permitted to withdraw the whole amount. The advocate fee is fixed at Rs.1,500/. The rest of the petition claim is dismissed.
VIII ADJ.
15 16
Orders pronounced (VSO). In the result, this petition is partly allowed, granting an amount of Rs.2,10,063/ with interest at 9% p.a. there on from the date of presentation of this petition till thedateofrealisationwith proportionatecoststowards compensation to the petitioner, directing the 3rd respondent to deposit the said amount within a period of one month from the date of this order and recover the same from 2nd respondent. The petitioner is permitted to withdraw the entire amount on such deposit. This petition against the 1st respondent and the rest of the petition claim are dismissed. Advocate fee is fixed at
Rs.2,000/.
VIII ADJ.
17 18
BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL
CUM VIII ADDL. DISTRICT & SESSIONS JUDGE, VIJAYAWADA.
Present: SMT.M.VENKATA RAMANA KUMARI VIII Addl. District & Sessions Judge, Vijayawada.
Thursday, this the 24 th day of January, 2019
M.V.O.P.No.48 of 2015
Between:
Smt.Karnati Ramanamma, W/o.K.Malyadri, aged 40 years, Occ: Agriculturist, R/o.H.No.19-13-33, Judicial Colony, Rajarajeswarraopet (Old), Vijayawada, Krishna District. … Petitioner
AND
1) M/s.Shiva Parvathi Logistics, Rep. By A.Koti Reddy, S/o.Not known, aged 50 years, Occ: Business, R/o.H.No.2-58, Bahadurpally Village, Rangareddy District – 501 401.
2) M/s.H.D.F.C. ERGO General Insurance Co. Ltd., Rep. By its Divisional Manager, Off: 6th floor, Leela Business Park, Andheri-Kurla Road (E), Mumbai – 400 059. (Police No.2315 2006 8705 8400 002
dated 6.2.2014 to 5.2.2015)… Respondents
M.V.O.P. filed for compensation of Rs.2,00,000/ with interest from the date of accident till the date of realisation and for costs, on which a court fee of Rs.==/ is paid U/R.475 of A.P.M.V. Rules, 1989.
Petition Filing Date: 08.01.2015
This Petition is coming on for hearing before me on 09022017 in the presence of Mrs.K.Hemalatha, Advocate for Petitioner and of Mr.K.Venkateswara Rao, Advocate for R3 and R1 and R2 remained set exparte and upon consideration of the material on record, and the mat ter having stood over till this day for consideration, the court doth order and decree:
1.That this petition be and the same is hereby partly allowed granting an amount of Rs.62,019/ towards compensation to the petitioner with proportionate costs and interest thereon at 9% p.a. from the date of presentation of the petition till the date of this order.
19 2.That the respondents 1 to 3 are jointly and severally liable to pay the said amount.
3.That the respondents are and directed to deposit the said amount within one month from the date of this order.
4.That on such deposit the petitioner is permitted to withdraw the whole amount.
5.That the advocate fee is fixed at Rs.1,500/.
6.That the rest of the petition claim is dismissed.
Given under my hand and seal of this court, this the 15th day of February, 2017.
VIII Addl.Dist.& Sessions Judge, Vijayawada
Memorandum of Costs
ParticularsFor PetitionerFor Respondents .
Stamp on Vakalat Welfare fund Stamp on O.P. Petition stamp Process Witness Beta C.F.Affixed on documents Commissioner fees Pleaders Fee Sr. & Jr.No bill ofNo bill of costscosts claimed.claimed. Publication charges Writing charges Typing charges
Total
VIII Addl. Dist. & Sessions Judge, Vijayawada.
1
BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL-CUM- VIII
ADDL. DISTRICT & SESSIONS JUDGE, VIJAYAWADA.
Present: SMT.M.VENKATA RAMANA KUMARI VIII Addl. District & Sessions Judge, Vijayawada.
Wednesday, this the 30 th day of January, 2019
M.V.O.P.No.174 of 2016
Between:
K.Bhagya Rani, W/o.Late Ankamarao, Hindu, aged 40 years, Cooli, R/o.Mother Theresa Colony, Kunchanapalli Village, Tadepalli Mandal, Guntur District.… Petitioner
AND
1) R.Venkatesh, S/o.Veeranjaneyulu, Hindu, aged 28 years, Rider of Motorcycle. R/o.#8-91, Angalakuduru Village, Tenali Mandal, Guntur District.
2) R.Siva Kumari, D/o.Veeranjaneyulu, Hindu, aged 45 years, owner of Motorcycle, R/o.38-91, Angalakuduru Village, Tenali Mandal, Guntur District.
3) Bajaj Allienz General Insurance Co., Ltd., Rep. By its legal manager, near Tipsy Topsy Showroom, M.G.Road, Labbipet, Vijayawada. … Respondents
This Petition is coming on 23.1.2019 before me for final hearing in the presence of Sri I.Murali Krishna Dhar, Advocate for Petitioner, of Sri R.Kondala Rao, Advocate for the respondents 1 and 2 and of Smt.K.L.Suvarchala, Advocate for the 3rd respondent and upon consideration of the material on record, and the matter having stood over till this day for consideration, the court made the following:
O R D E R
1.This petition is filed by the petitioner Under Section 166 of the Motor
Vehicles Act 1988 and Rules 445 and 446 of Andhra Pradesh Motor Vehicles Rules, 1989 claiming compensation of Rs.1,00,000/- to the petitioner towards compensation with subsequent interest @12% per annum from the date of the petition till the date of realization and for costs of the petition.
2
2.The brief facts of the petitioner’s case is that:- the petitioner is the resident of Mother Theresa Colony, Kunchanapalli,
Tadepallimandal, Guntur District. Prior to the accident, the petitioner is hale and healthy and she has been doing cooli work and draw an amount of Rs.5000/- per month and she spent the same for the welfare of her family members. On 14.8.2015 while the petitioner was proceeding towards bus stop to receive her sister-in-law from the said bus stop and reached the foot path of the bridge, at that time, the 1st respondent, who is the rider of the Motorcycle bearing No.AP 07 VFTR 9263 came from Guntur side in the same direction at high speed in a rash and negligent manner without blowing horn dashed the petitioner, due to which, the petitioner sustained injuries. Immediately, the petitioner was shifted to Manipal hospital, Tadepalli for treatment, where, the doctor treated the petitioner and he opined that the injuries sustained by the petitioner are grievous in nature and also conducted two operations for her injuries.
3)It is the further contention of the petitioner that on the report given by the petitioner to the police, Tadepalli Police Station, a case was registered in Crime
No.253/2015 for the offence Under Sec.337 of IPC against the 1st respondent, who is the rider of the said Motorcycle bearing No.AP 07 VFTR 9263 and after completion of investigation, the police filed the charge sheet against the 1st respondent.
4)The1st respondent, who is the rider of the crime vehicle Motorcycle bearing No.AP 07 VFTR 9263 having valid licence in force as on the date of the accident. The 2nd respondent is the owner of the crime vehicle and having valid registration of the crime vehicle and the 3rd respondent is the insurer of the said
Motorcycle bearing No.AP 07 VFTR 9263 and the said policy is in force as on the date of the accident. The petitioner is claiming a total compensation of Rs.1,00,000/- 3 against the respondents 1 and 2, who are the proper and necessary parties to pay the compensation to the petitioner.
5The respondents 1 and 2 filed counter denying the petition averments and specifically contending that the 2nd respondent is the owner of the Motorcycle bearing No.AP07 VFTR 9263, who is having valid driving license and also insurance policy, which were in force from 6.7.2015 to 5.6.2016 and further contended that the fact of the policy with Bajaj Allienz General Insurance Company Limited, Vijayawada with policy No. No.OG-16-1815-1802-00002449 which was in existence known by the petitioner. There is no fault and negligence on the part of the respondents 1 and 2 and the petitioner intentionally joined them only to harass them. The 2nd respondent has taken insurance policy from the Insurance Company which was in force at the time of the accident and they did not violate the terms and conditions of the insurance policy and prays the court to dismiss the petition against them.
6)The 3rd respondent filed counter denying the petition averments and specifically contending that the accident was occurred due to the negligence of the petitioner alone, who was proceeding on road without observing the traffic. The 1st respondent, who is the driver of the motorcycle drove the said vehicle without having any sort of driving license and he was not qualified for holding or obtaining such driving licence and further he has not satisfied the requirements of the Rule No.3 of the Central Motor Vehicles Rules 1989. The 2nd respondent willyfully and knowingly has handed over the possession of the vehicle to the 1st respondent, who had not possessed driving license as on the date of the alleged accident and therefore, has contravened the Provison of the M.V. Act and the Rules framed there under, as such, the 2nd respondent is alone liable to pay the compensation if any to the claim petitioner.
4
7)The 3rd respondent further contended that without prejudice to the above contention this respondent seeks protection under the Sec. 147 and 149 of the M.V.
Act. Without prejudice and without admitting the issuance of insurance policy to the vehicle i.e. Motorcycle bearing No. AP 07 VFTR 9263 and without admitting the rash and negligence on the part of the rider of the said Motorcycle bearing No. AP 07
VFTR 9263, this respondent is not liable to pay the compensation to the petitioner and the petitioner in collusion with the respondents 1 and 2 filed this false case only in order to get wrongful gain from the insurance company, even though the said
Motorcycle bearing No. AP 07 VFTR 9263 was not at all involved in the alleged accident. The 3rd respondent further contended that the recitals of the complaint annexed to the FIR reveals that the petitioner received injuries due to hit by an unknown rider of motorcycle, hence the provisions of HIT & RUN came into force and there are special provisions mentioned for adjudication of the matter and this court is not having jurisdiction to entertain the claim application and the petitioner has to approach a special forum.
8)It is the further contention of the 3rd respondent that as per Section 134
(c) of M.V. Act, 1988 it is mandatory duty of the 2nd respondent, who is the owner of the Motorcycle bearing No. AP 07 VFTR 9263 to furnish the particulars of policy, date, time and place of accident, particulars of the deceased, name of the driver, particulars of the driving license, but the 2nd respondent had not complied with statutory demand.
The concerned Tadepalli police also failed to forward the documents within 30 days from the date of information as per Sec.158 (6) of M.V. Act, 1988.
9)It is the further contention of the 3rd respondent that the petitioner claimed interest @12% which is highly excessive and the same is contrary to Sec.3 of
Interest Act, 1978 as per the Judgment of the Hon’ble Apex Court reported in 1995 5
ACJ (1) Page 366 and the petitioner is not entitled to any compensation and prays to dismiss the claim petition in the interest of justice.
10)Basing on the above pleadings, my learned predecessor framed the following issues for trial:-
1) Whether the petitioner herein received injuries due to the rash and negligent driving of the rider of motor cycle bearing No. AP 07 VFTR 9263?
2)Whether the petitioner is entitled for any compensation, if so, to what amount and against whom?
3)To what relief?
11)During the course of enquiry, on behalf of the petitioner, PW1 was examined and got marked Exs.A1 to A8. On behalf of the 3rd respondent, RW1 was examined and Exs.B1 to B7 were marked.
12.When the matter is posted for arguments, in spite of giving sufficient time, both parties remained absent without representation. Hence both sides treated as heard.
13)ISSUE NO.1:
This petition is filed by the petitioner claiming compensation of
Rs.1,00,000/- against the respondents 1 to 3 jointly and severally Under Sec.166 and 140 of Motor Vehicle Act and Rules 455 and 476 of A.P. M.V. Rules basing on fault liability. When once the petitioner filed petition Under Section 166 of Motor Vehicle
Act, the burden is on the petitioner to prove that the accident occurred due to rash and negligent driving of the rider of the motor vehicle i.e. motorcycle bearing No.AP 07 VFTR 9263 belongs to the 2nd respondent, driven by 1st respondent insured with 3rd respondent with rash and negligent manner, while, she was going to reach the bus stop and reaching the Kunchanapalli bridge foot path, the 1st respondent ride the motorcycle coming behind her back with rash and negligent manner dashed the 6 petitioner, as a result, the petitioner fall on the road and sustained injuries. The petitioner was shifted to Manipal Hospital, Tadepalli for treatment.
14)In order to discharge her burden, the petitioner herself examined as
PW1 and got marked Exs.A1 to A8. Ex.A1 is the attested copy of F.I.R. in
Cr.No.253/2015, dated 15.8.2015. Ex.A2 is the copy of the charge sheet, dated 9.3.2016. Ex.A3 is the attested copy of wound certificate, dated 15.9.2015. Ex.A4 is the attested copy of R.C., dated 7.7.2015. Ex.A5 is the attested copy of insurance policy, dated 6.7.2014. Ex.A6 is the bunch of medical bills. Ex.A7 is the X-rays two in number and Ex.A8 is the discharge summary of the petitioner. On the other hand, the 3rd respondent got examined its Deputy Manager as RW1 and got marked Exs.B1 to
B7. Ex.B1 is the true copy of policy with terms and conditions. Ex.B2 is the office copy of application under RTI Act with postal receipt, dated 11.7.2016. Ex.B3 is the reply received from RTI official concerned related to Ex.B2, dated 13.7.2016. Ex.B4 is the office copy of registered legal notice issued to 1st respondent, dated 20.10.2016.
Ex.B5 is the refused notice with acknowledgment of Doc.No.4, dated 24.10.2016.
Ex.B6 is the office copy of registered notice issued to 2nd respondent with postal receipts and Ex.B7 is the refused notice with acknowledgment of Doc.No.6, dated 24.10.2016.
15)The learned counsel for the 3rd respondent alone cross examined PW1 to prove the contention of the 3rd respondent that the rider of the motorcycle i.e. 1swt respondent has no driving license as on the date of the accident and the respondents 1 and 2 violated the terms of the insurance policy and that there is no negligence on the part of the rider of the motorcycle bearing No.AP 07 VFTR 9263. During the cross-examination it is suggested to PW1 that Ex.A5 attested copy of insurance policy is not relevant document to this petition and the same is also denied by PW1. It is also suggested to PW1 due to her negligence only the accident was occurred and 7 the same is also denied by PW1. It is further suggested to PW1 that she filed this petition in collusion with 1st respondent claiming compensation and the same is also denied by PW1. PW1 during her cross-examination admits that there is no vehicle number in the F.I.R. Except this evidence in the cross-examination on the part of the 3rd respondent, there is no suggestion given to PW1 that there is no negligence on the part of the 1st respondent, no documentary proof is filed by the 3rd respondent to prove that the accident was occurred not due to the negligence of the 1st respondent. In view of the fact that respondent company itself got issued legal notice to the 1st respondent under Ex.B6 that 1st respondent is the rider of the motorcycle bearing
No.AP 07 VFTR 9263 and 2nd respondent is the owner of the said vehicle and further informed that due to rash and negligent driving of the 1st respondent of the vehicle belongs to the 2nd respondent caused an accident on 14.8.2 to the petitioner, causing grievous injuries to PW1 K.Bhagya Rani i.e. petitioner herein itself proved that the 3rd respondent at first instance admits that the accident occurred due to rash and negligent driving of the 1st respondent and the vehicle belongs to 2nd respondent and the vehicle is insured with 3rd respondent insurance company.
16)On the other hand the documents marked on behalf of the petitioner such as Ex.A1 attested copy of FIR along with the statement given by the petitioner recorded by Asst. Sub Inspector of Tadepalli police station on 15.11.2015 at 1.30 P.M.
the contents of which clearly shows while she was proceeding towards Bus stop in road margin on 14.8.2015 at 10.30 P.M. and when she is reaching the Kunchanapalli
Bridge foot path, a motorcyclist ride his motorcycle in a rash and negligent manner without blowing horn came behind her and dashed her, as a result, she fell down and sustained injuries, corroborates the oral evidence of PW1.
17)A perusal of the contents of the charge sheet also shows that the police filed charge sheet against R.Venkatesh, S/o.Veeranjaneyulu, who is the 1st 8 respondent herein and the rider of the motorcycle bearing No.AP 07 VFTR 9263 and the contents of the wound certificate, dated 15.9.2015 and discharge summary sheet, marked as Exs.A3 and A8 respectively shows that the petitioner was admitted in
Manipal Super Specialty Hospital on 15.8.2015, wherein also it is mentioned that the petitioner was hit by two wheeler on 14.8.2015 at 10.30 P.M. further corroborates the evidence of the petitioner that she sustained injuries due to the rash and negligent driving of the rider of the motorcycle bearing No.AP 07 VFTR 9263. Since the evidence of the petitioner, who is the injured corroborated with the documentary evidence produced by the petitioner and that there is no oral or documentary evidence on behalf of the 3rd respondent to disprove the oral and documentary evidence produced by the petitioner that the accident occurred not due to the rash and negligent driving of the 1st respondent and the motorcycle belongs to the 2nd respondent, insured with the 3rd respondent, since the petitioner is the best person to speak the manner in which the accident occurred even without corroboration I find that the petitioner established that the accident occurred only due to rash and negligent driving of the motorcycle bearing No.AP 07 VFTR 9263 and dashed her behind her back by the 1st respondent.
18)ISSUE NO.2:-
This petition is filed by the petitioner claiming compensation of
Rs.1,00,000/- by specifically contending that the petitioner sustained injuries during the accident and she was shifted to Manipal Hospital, Tadepalli. The doctor who treated the petitioner opined that the petitioner received grievous injuries and two operations were conducted to her injuries and that the petitioner was earning
Rs.5000/- per month and spent the entire amount for the welfare of her family members consisting of her brother and sister-in-law. She claimed Rs.15,000/- towards her loss of earnings, transport to hospital and damages; Rs.40,000/- towards 9 medical and extra nourishment and Rs.20,000/- for pain and suffering and
Rs.25,000/- towards compensation for continuing disability, total into Rs.1,00,000/-.
19)In order to prove that the petitioner received grievous injuries and two operations were conducted to her injuries, which resulted the loss of earnings, the petitioner examined herself as PW1 and got marked Ex.A3 wound certificate issued by the Manipal Hospital, wherein, it was mentioned that there is segmental fracture to right tibia and fracture middle 1/3rd of right fibula. The petitioner got marked Ex.A8 discharge summary issued by the Manipal Hospital and also got marked Ex.A7 X-ray photographs. A perusal of the contents of the discharge summary issued by the
Manipal Hospital shows that the petitioner was admitted in Manipal Hospital on 15.8.2015 and underwent surgery on 22.8.2015 and was discharged on 24.8.2015 and the surgery was done to right tibia and the petitioner underwent operation under
Arogyasree scheme. There is no cross-examination by the learned counsel for the 3rd respondent regarding the medical bills filed by the petitioner for Rs.8,701/-. The petitioner did not choose to examine the medical officer, who treated the petitioner to prove her contention that there is a future disability due to the fracture to her right tibia and there is no certificate issued by the competent authority filed by the petitioner. In such circumstances, I find that the petitioner is entitled only for pecuniary damages i.e. expenses relating to hospital, medicines, nourishing food and loss of earnings during that period of treatment, damagers for pain, suffering and trauma as a consequences of injuries as laid down in Raj Kumar Vs. Ajay Kumar and another,
Reported in 2011 SCC 343.
20) By applying the above principle to the facts on hand, herein this case, the petitioner is entitled to receive Rs.2500/- towards loss of earnings during the period of treatment even if the income of the petitioner is considered of Rs.5000/- as pleaded by her. The discharge summary of the petitioner shows that the petitioner 10 was admitted on 15.8.2015 and the petitioner was discharged on 24.8.2015 and the the petitioner filed medical bills during that period and hence petitioner is entitled to
Rs.8700/- towards medical bills. The petitioner is also entitled Rs.10,000/- towards extra nourishment and Rs.10,000/- for pain and suffering. As per the wound certificate the petitioner sustained two fracture injuries which are in grievous injuries.
Hence, I find it is proper to grant of Rs.25,000/- for each injury comes to Rs.50,000/-.
21)It is the contention of the 3rd respondent that the rider of the motorcycle has no driving licence as on the date of the accident. The 3rd respondent got marked
Exs.B2 and B3. Ex.B2 is the copy of application sent by 3rd respondent insurance company under RTI Act to R.T.A. Authorities to furnish the information seeking the particulars of the driving license of the 1st respondent and Ex.B3 is the information furnished by the Motor Vehicle authorities that the 1st respondent has no driving license as on the date of the accident and in view of the principle laid down in a decision reported in 2010 (3) ALD 445 wherein it was held by relying the decision of
Hon’ble Apex Court reported in 2008 (2) SCC 701.
“Liability of the insurer – not having valid and subsisting driving license at the time of accident amounts to violation of conditions of policy, claimants therefore, dis-entitled for making claim against the insurance company.”
22)As per the decision reported in United India Insurance Company
Limited Vs. GIAN Chand and others in 1997 ACJ 1065, wherein it was held in
para 12 “When an insured had handed over the vehicle to be driven by an unlicensed driver, the insurance company would get exonerated from its 11 liability to meet the claims of the third party who might have suffered on account of the accident caused by the unlicensed driver”
23)Another decision reported in 2009 (3) ALD 616 in the case of National
Insurance Co. Ltd., Eluru, West Godavari District Vs. Dupati Singaiah and
others, wherein the Hon’ble High Court of Andhra Pradesh in para 23 held that “Motor vehicles Act being beneficiary legislation, claimants may not be aware of these aspects. In such cases, it is incumbent on the part of owner to come forward and adduce evidence that he has taken all reasonable care and that he was not negligent by way of rebuttal evidence. When owner even after receiving notice from the Tribunal does not appear and lead evidence, adverse inference can be drawn and insurer cannot be blamed .”
24)As per the principle laid down in a decision reported in Hon’ble High
Court reported in 2016 (3) ALD 445 wherein it was held that:
Motor vehicle Act, 1988-Sec.149 – liability of insurer – driver not having valid and subsisting driving license at the time of accident – amounts for violation of conditions of policy – claimants, therefore, dis-entitled from making claim against insurance company – Appeal allowed – order and decree passed by tribunal in so far for fastening the liability an appellant insurance company to pay compensation to the claimants for death of the deceased is concerned, set aside while confirming award in all other respects.”
25)By applying the principle laid down in the above decisions to the facts on hand herein this case also, the owner did not choose to appear before the court to disprove the contention of the 3rd respondent that there is a breach of terms of insurance policy and the 1st respondent was having valid driving license and the 2nd 12 respondent being the owner has taken all precautions to hand over the vehicle to 1st respondent. I find that 2nd respondent committed fundamental breach of terms of policy and hence I find that the insurance company is exonerated to pay the compensation to the petitioner.
26)Coming to the quantum of compensation of Rs.1,00,000/- claimed by the petitioner, as I have mentioned supra, the petitioner is entitled for total compensation of Rs.81,200/- against the respondents 1 and 2 jointly and severally with subsequent interest @7.5% per annum, from the date of petition till the date of realization. This issue is decided accordingly.
27)ISSUE NO.3:
In the result, the petition filed by the petitioner is partly allowed granting total compensation of Rs.81,200/- to the petitioner with proportionate costs and interest @7.5% per annum from the date of petition till the date of realization against the respondents 1 and 2 jointly and severally as under and the petition against the 3rd respondent is dismissed.
2)That the respondents 1 and 2 are directed to deposit the amount thus awarded within one month from the date of this order, failing which the petitioner is entitled to recover the same through process of the court.
3)That on deposit of the amount thus awarded, the petitioner is entitled to withdraw the entire amount.
4) That the petition against the 3rd respondent is dismissed.
5)That the advocate fee is fixed at Rs.2000/-.
Dictated to the stenographer, typed and transcribed by her, cor
rected and pronounced by me in the open Court, on this the30th day of January, 2019.
VIII ADDL. DISTRICT & SESSIONS JUDGE,
VIJAYAWADA.
13
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER:FOR RESPONDENT
PW1: K.Bhagya RaniRW1: T.Soma Raju
DOCUMENTS MARKED FOR
PETITIONER:
Ex.A1: Attested Copy of FIR, dated 15.8.2015
Ex.A2: Attested Copy of Charge sheet, dated 9.3.2016.
Ex.A3: Attested Copy of wound certificate, dated 15.9.2015
Ex.A4: Attested copy of R.C., dated 7.7.2015
Ex.A5 : Attested copy of insurance policy
Ex.A6: Bunch of Medical Bills
Ex.A7: XRays two in number
Ex.A8: Discharge summary
FOR RESPONDENT:
Ex.B1: Insurance policy along with terms and conditions
Ex.B2: Office copy of application under RTI Act with postal receipt,
dated 11.7.2016
Ex.B3: Reply received from RTI Official concerned related to Doc.No.2
dated 13.7.2016
Ex.B4: Office copy of registered legal notice issued to 1st respondent,
dated 20.10.2016
Ex.B5: Refused notice with acknowledgment of Doc.No.4, dated 24.10.2016
Ex.B6: Office copy of registered legal notice issued to 2nd respondent, with postal receipt
Ex.B7: Refusal notice with acknowledgment of Doc.No.6, dated 24.10.2016
VIII Addl. District & Sessions Judge,
Vijayawada 14
Order Record 3 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| SC/247/2018 | Station House Officer, I Town Police Station vs Nallani Purushotham | 07 Feb 2019 | Judgment | Acquitted |
| MVOP/174/2016 | K. Bhagya Rani vs R. Venkatesh | 30 Jan 2019 | Judgment | Appeal Allowed |
| MVOP/48/2015 | Smt. Karnati Ravanamma vs Ms. Shiva Parvathi Logistics | 24 Jan 2019 | Judgment | — |
Frequently Asked Questions
How many cases has Smt M. Venkata Ramana Kumari handled?
Smt M. Venkata Ramana Kumari has handled 4 court orders since 2019 at II Addl DJ Court Vijayawada. The average disposal rate is 4 orders per month.
What types of cases does Smt M. Venkata Ramana Kumari hear?
Based on available records, Smt M. Venkata Ramana Kumari primarily handles Motor Accident matters (Motor Accident Claims) and Criminal matters (Sessions Cases) at II Addl DJ Court Vijayawada.
Where is Smt M. Venkata Ramana Kumari currently posted?
Smt M. Venkata Ramana Kumari is posted as VIII Additional District and Session Judge (FTC) Vijayawada at II Addl DJ Court Vijayawada, Krishna, Andhra Pradesh.
Are judgments by Smt M. Venkata Ramana Kumari available online?
Yes. 4 judgments by Smt M. Venkata Ramana Kumari are available on Legistro with full text, outcome, and sections cited.
How fast does Smt M. Venkata Ramana Kumari dispose cases?
Smt M. Venkata Ramana Kumari disposes approximately 4 cases per month, based on 4 orders handled over their tenure at II Addl DJ Court Vijayawada.
Since when is Smt M. Venkata Ramana Kumari serving?
Smt M. Venkata Ramana Kumari has been serving at II Addl DJ Court Vijayawada since 2019.
Case Types
Posting History
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Jan 2019 — Feb 2019VIII Additional District and Session Judge (FTC) Vijayawada · 4 orders
Outcomes on Record
Other Judges at this Court