Smt N.santhi

1

IN THE COURT OF VII ADDL. SESSIONS JUDGE, GUDUR.

Wednesday, the 26th day of June, 2019.

Present:- Smt. N.Santhi, VII Addl. Sessions Judge, Gudur. ***

CRIMINAL APPEAL No. 15 of 2016

1. Judgment in Crl. Appeal No.C.A.No. 15 of 2016

2. From what Court, the AppealJudicial Magistrate of First Class, is preferred.Sullurpet

C.C.No. 133 of 2009

3. No. of the case in that Court

C.A.No. 15of 2016

4. No. of the Appeal

Mallam Sukumar (A1), s/o Chengaiah, 27 years, cultivation,

5. Name and description of ther/o Buradamadugu village, appellant. DV Satram Mandal, SPSR Nellore District.

6. The sentence and law underIn the result, the accused No.1 found which it was imposed in theguilty for the offence under Section lower Court.323 and 509 IPC. The Accused A2, A3, A5 to A7 are found not guilty for the offence under Section 326 r/w 34 IPC and 509 r/w 34 IPC. Therefore, accused No.1 is convicted under Section 255(2) Cr.P.C. for the offence under Section 509 IPC and 323 IPC and sentenced to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs.1000/- in default of payment of fine, he shall undergo Simple Imprisonment for a period of one month for the offence under Section 323 IPC. The accused No.1shallundergoSimple Imprisonment for a period of six months and pay fine of Rs.2,000/- indefault of payment of fine, he shall undergo Simple Imprisonment for a period of one month for the offence 2 under Section 509 IPC. The remand period already undergone by the accused on 02.06.2009 shall be set off under Section 428 Cr.P.C. The accused A2, A3, A5 to A7 are acquitted under Section 248(1) Cr.P.C. for the offence under Section 326 r/w 34 IPC, 509 r/w 34 IPC. A2, A3, A5 to A7 shall execute personal bonds for Rs.5,000/- with sureties for compliance of Section 437-A Cr.P.C. The said bail bonds with that of their sureties shall be in force for a period of six months under Section 437-A Cr.P.C. No property is produced in this case.

IN THE RESULT, the appeal is dismissed confirming the conviction and sentence passed 7.Whetherconfirmedor by the learned Additional Judicial modified or reversed, if

Magistrate of I Class, Sullurpet in

modified the modification.

CC.No. 133/2009 dated 31.12.2015

against A1.

8. Date of presentation 25.01.2016

9. Date of filing27.01.2016

10. Date of notice issued by the27.01.2016 Court to appear 11.Date of bail bond if appellant -- have been left out on bail. 12.Appellant ordered to appear --

13. Date of hearing

14. Date of order26.06.2019

This appeal came up on 18.06.2019 for final hearing before me in the presence of Sri P. Gopal Reddy, Advocate for the appellant/Accused No.1 and of Ms. Y. Suhasini, Additional Public

Prosecutor for the respondent/ Complainant and having heard both sides and having perused the record and the matter having stood over till this day for consideration, this Court made the following: - 3

J U D G M E N T

This is a Criminal Appeal preferred against the conviction and sentence passed by the learned Judicial Magistrate of First Class,

Sullurpet in C.C.No. 133 of 2009 on 31-12-2015.

2. The Sub Inspector of Police, D.V. Satram police Station filed

Charge sheet in Crime No. 56 of 2009 under Sections 509, 326 r/w 34

IPC with the following allegations:

On the night of 25.05.2009 Accused No.1 created nuisance at the house of PW.1. Keeping that issue in mind on 26.05.2009 at 17.30 hours Pws.1 to 5 and LW.6 T. Gangamma went near the house of accused and picked up quarrel with the accused. Both parties gathered and beat each other. In that galata A1 pushed PW.4 and abused her and insulted her modesty and tried to beat her with a stick on her head. When she put her hand across the stick she received swelling injury over her right hand little finger .The remaining accused also beat Pws.1 to 5 and caused bleeding and swelling injuries.

3. Basing on the report given by PW.1 a case in Crime No.

56/2009 under Section 324 r/w 34 IPC was registered and investigated into. During the course of investigation Section 509 IPC was also added. On 02.06.2009 the Sub Inspector of police arrested the accused and sent them for remand. The Medical Officer treated the injured and issued wound certificates opining that Pws.1 to 3 and 5 received simple injuries and PW.4 received grievous injuries. Hence the section of law was altered from 509, 324 r/w 34 IPC to 509, 326 4 r/w 34 IPC. Thus, the accused are liable for punishment for the offences under Sections 509, 326 r/w 34 IPC.

4. The trial court has taken cognizance of the offence under

Sections 509, 326 r/w 34 IPC. Charges under Sections 326, 509 IPC r/w 34 IPC were framed against A1 to A7 , read over and explained to the accused in Telugu for which they pleaded not guilty and claimed to be tried.

5. On behalf of prosecution, Pws.1 to 6 were examined and

Exs.P1 to P8 were marked.

6. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. The accused denied the incriminating material .D.W1 was examined on behalf of accused.

7. After hearing the arguments and analyzing the evidence on record, the learned Judicial Magistrate of First Class, Sullurpet ,found

Accused A2, A3, A5 to A7 not guilty for the offence under Section 326 r/w 34 IPC and 509 r/w 34 IPC and accordingly acquitted them .Case against A4 abated since died.However the learned Magistrate found the accused -A1 as guilty and convicted the accused No.1 under

Section 255(2) Cr.P.C. for the offence under Section 509 IPC and 323

IPC and sentenced to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs.1000/- in default of payment of fine, to undergo Simple Imprisonment for a period of one month for the offence under Section 323 IPC. The accused No.1 shall undergo

Simple Imprisonment for a period of six months and to pay fine of 5

Rs.2,000/- indefault of payment of fine, to undergo Simple

Imprisonment for a period of one month for the offence under Section 509 IPC. The period of remand if any already undergone by the accused No.1 was ordered to be set off under Section 428 Cr.P.C.

8. Aggrieved by the said conviction, and sentence, the Accused

No.1 preferred this appeal assailing the findings of the Trial Court on various grounds.

9. Heard both sides.

10. The parties are referred as arrayed before the trial court for the sake of convenience.

11. Now the points for determination are :

1. Whether the conviction and sentence imposed by the

trial court against the accused -A1 for the offence

under Sections 509 IPC and 323 IPC is sustainable in law?

2. Whether there are any grounds to interfere with the findings of the trial Court?

3. To what findings?

12.POINT No.1:

In order to substantiate its case the prosecution has examined Pws.1 to 6. PW.1 is defacto complainant, Pws.2 to 5 are the children of PW.1. PW.6 is the Investigating Officer.

13. The case of the prosecution as per the evidence of Pws.1 to 5 is that on the mid night of 25.05.2009 while PW.1, his wife and two daughters were sleeping on the terrace, A1 came and laid in between 6 his daughters and then one of his daughters (P.W4) woke up and informed about the same. Then P.W1 tried to caught hold of A1 , but he escaped and in that struggle he fell down on the wall and sustained injury to his chin. While A1 was escaping his daughter -PW.4 tried to catch him then A1 bent her right hand little finger and escaped from there. It is further case of the prosecution that on the next day when

PW.2 was returning to the house with cattle, A2 to A7 attacked him and caused injuries and on knowing the same when PW.3 and 5 came to the scene, the accused beat them also and in that connection a case was registered and investigated into. However, the learned

Magistrate found that the prosecution failed to prove the guilt of the the

accused A2 to A7 and accordingly acquitted them.

14. Thus, as seen from the evidence of Pws.1 to 5 two incidents were happened. One on the night of 25.05.2009 and another on the next day that is in the evening of 26.05.2009 . The evidence further discloses that the offence happened on 25.05.2009 was said to be committed by A1 alone and the offence that was said to be happened on 26.05.2009 was said to be committed by A2 to A7. As discussed above A2 to A7 were acquitted by the trial Court. The present appeal is preferred by A1

15. It is the evidence of PW.1 that on the night of 25.05.2009 due to summer while PW1 ,his wife and his two daughters were sleeping on the terrace , in between 0.30 hours and 1.00 hours A1 came and laid in between PW.4 and Revathi . Then his daughter- PW.4 woke up 7 and informed that some unknown person came and laid between them. Immediately P.W1 tried to caught hold of him, but A1 tried to escape and in that struggle P.W1 fell on the wall and sustained injury.

While A1 was escaping, his daughter PW.4 tried to caught hold of him, then A1 beat on her right hand little finger and escaped from there.

Then she sustained injury to her right hand little finger.

16. The prosecution examined the sons of PW1 as Pws.2 and 3.

Admittedly, they are not eye witnesses to the incident and they were not present at the time of incident that was happened on the night of 25-5-2009. Their evidence is with regard to the incident happened on 26.05.2009. As such their evidence is of no avail in proving the guilt of

A1.

17. The prosecution has examined one of the daughters of PW.1 as PW.4. It is the evidence of PW.4 that on the night of 25th May while she along with her sister and parents were sleeping on the terrace, during mid night A1 came and laid beside her. Then she raised cries and woke up her father and her father caught hold of A1, and then A1 pushed out her father. Then her father fell down and sustained swelling injury on his mouth. Then she immediately caught hold of A1, then A1 bent her right hand little finger and escaped from there. She sustained fracture injury to her right hand little finger.

18. Thus the evidence of PW.4, the victim is getting corroboration from the evidence of her father PW.1. It is true that Pws.1 and 2 are members of same family. Merely because Pws.1 and 2 are members 8 of same family , their evidence cannot be brushed aside on that ground alone. The incident was happened on the terrace of the house of Pw.1 and 4. As such the witnesses who are expected to be present at the time of offence that too in that mid night,are the inmates of the house. As such PWs.1 and 4 are natural witnesses. So the evidence of PWs.1 and 4 cannot be brushed aside.

19.As seen from the evidence of Pws.1 and 4 their evidence is consistent through out and stood to cross examination. No omissions or contradictions have been pointed out in their evidence. There is no reason for Pws.1 and 4 to speak falsehood against A1. It was suggested to PW.1 that as there was affair between the daughter of

PW.1 and A1, the family of PW.1 went upon the house of accused and a galata taken place and in that scuffle by pulling each other ,they fell down and sustained injuries and later filed this case. The reason put forth by the accused for filing false case seems to be unbelievable and improbable. No father would file false case which will impair the life of his unmarried daughter . So the reason suggested by the accused for filing false cases seems to be improbable and unbelievable.

20. The learned counsel for the accused argued that though PW.4 raised cries nobody came forward and it seems to be unbelievable.

21. According to PWs.1 and 4, the incident was happened on the terrace of their house. There is nothing in their cross examination to suggest that any other buildings are located adjoining the terrace of

PW.1 ,so as to say that the neighbours heard the cries of PW.4. In the 9 absence of existence of any other buildings adjoining the terrace of

PW.1 , the argument of learned counsel for accused is not tenable.

22. As seen from Ex.P1 report PW.1 has categorically mentioned about A1 coming to their house on the night of 25.05.2009 and laying down in between his daughters. Thus, the evidence of PW.1 is getting corroboration from the contents of Ex -P1 which came into force at the earliest point of time.

23. The evidence of PWs.1 and 4 goes to show that when PW.1 tried to catch A1, he bent the right hand little finger of PW4 and caused fracture. Though the doctor was not examined ,the wound certificates were marked through the Investigating Officer. The wound certificate of PW.4 was marked as Ex.P8.It goes to show that PW.4 received fracture on right proximal Phalax of 5th finger and the injury is grievous and the age of the wound is one day. Thus the wound certificate is giving ample corroboration to the evidence of PW.4 that the incident was happened on the night of 25.05.2009 and A1 bent her right hand little finger and caused fracture. Merely because the doctor was not examined the accused is not entitled for acquittal on that ground alone.

24. The learned counsel for the accused argued that there is defect in framing of charge and the trial court mis interpreted the decision of Pochammala Yellappa Vs. State of Andhra Pradesh reported in 1995(1) ALT (Crl.) 558 and since there is defect in the charge the accused is entitled for acquittal.

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25. In support of his argument he has relied upon a decision reported in 1995(1) ALT (Crl.) 558 between Pochammala Yellappa

Vs. State of Andhra Pradesh.

26. In the above citation their lordships have held that “mere mistake about the date of occurrence cannot prejudice the accused as all the relevant particulars are furnished in the charge sheet” 27.The learned counsel by relying upon the above citation argued that even the date of the incident as 25.05.2009 was not mentioned in the charge sheet. I see no force in the argument of learned counsel for accused. As seen from the charge sheet the Investigating Officer has categorically mentioned in the charge sheet that on the night of 25.05.2009 A1 created nuisance at the house of PW.1.

28. It is here pertinent to read 215 Cr.P.C, which is extracted here under.

Section 215 Cr.P.C, Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

29. Thus a reading of Section 215 Cr.P.C, go to show that an error in framing of charge or an omission in framing the charge is not fatal unless any prejudice is caused to the accused or there is a failure of justice.

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30. It is further pertinent to read Section 464(1) of Cr.P.C which is extracted here under

464. Effect of omission to frame, or absence of, or error in, charge.

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

31. A reading of Section 215 Cr.P.C coupled with Section 464(1) of Cr.P.C, go to show that error or omissions in framing charge is not fatal, unless any prejudice is caused to the accused due to the errors and omissions in framing of charge. But nothing was placed

before this Court or before the trial Court that due to error in framing of

charge any prejudice was caused to the accused.

32. In Lakhjat Singh Vs. State of Punjab reported in 1994

Supp (I) SCC 173, while rejecting the argument that in the absence of specific charge the appellants cannot be convicted under that section,

Their lordships have observed that “The facts and circumstances of the case have been put forward against the accused under Section 313 CrPC and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 CrPC would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also." 12

33. In view of above dictum, while determining whether the accused was prejudiced or not due to error in framing of charge, the court has to take into consideration the line of cross examination and the answers given by the accused in 313 Cr.P.C examination. As seen from the cross examination of the witnesses the accused got cross examined the witnesses regarding the incident that was happened on the night of 25.05.2009. Thus the cross examination of the witnesses goes to show that the accused had enough of notice of charge regarding the incident happened on the night of 25.05.2009 on the terrace of the house of PW.1. Even as seen from 313 Cr.P.C examination A1 has categorically answered that ‘he did not go to their house on that day night.’ Thus, the cross examination of the witnesses as well as the answers given by A1 during 313 Cr.P.C.

examination would go to show that he had enough of notice of the charge regarding the incident happened on the night of 25.05.2009. As such it can be said that no prejudice was caused to the accused due to the errors in the charge. Moreover the accused was given fair chances to conduct cross examination and to defend himself. As such it cannot be said that there was failure of justice due to the errors in framing of charge.

34. The learned counsel for the accused argued that according to Pws.1 to 4 the report was lodged on 26.05.2009 but Investigating officer registered the case on 27.05.2009 ,so the accused is entitled for acquittal. In support of his argument he relied upon a case reported 13 in AIR 1979 SC 135 in between Ganesh Bhavan Patel and another

Vs. State of Maharashtra.

35. In the above case one Shinde constable reported the matter to the Sub-Inspector of Police, but no case was registered basing on the information furnished by constable . But that is not so in the present case. As such the citation has no application to the present case. More over merely because the Investigating officer failed to register the case on 26.05.2009 itself, the accused is not entitled for acquittal on that ground alone, when there is nothing in the evidence to suggest that there was another report. As such the citation relied upon by the learned counsel for the accused has no application as the facts of both the cases are different.

36. The learned counsel for the accused argued that there was no prompt lodging of FIR and Ex.P1 is hit by 162 Cr.P.C, so the accused is entitled for acquittal. In support of his argument, he relied upon a case reported in 2009 (2) ALD (Crl) 135 (DB) AP between

Thummala Lovaraju Vs. State of AP wherein their lordships have held that “FIR is hit by Section 162 Cr.P.C, since the earliest version is suppressed, the only conclusion that can be drawn is that after due deliberations, FIR brought into existence to suit prosecution case”

37. Pws.1 to 4 in one voice categorically deposed that the report was lodged on 26.05.2009. PW.4 deposed that she first gave statement to the police. But it is not the case of PW.4 that basing on her statement the case was registered. The witnesses are rustic 14 witnesses and they are not aware of the difference between the report given by them and statements recorded by the police. There is nothing in the evidence of prosecution witnesses to suggest that on 26.05.2009 PW.4 went to police station and gave report or statement to police. In the absence of any such evidence Ex.P1 is not hit by

Section 162 Cr.P.C.

38. It is true that there is delay in lodging report. But PW1 categorically deposed that since the matter is relating to ladies and their protection and future they did not lodge report immediately after the incident. The evidence discloses that in continuation of the incident that took place on the night of 25.05.2009 , another incident was happened wherein the family of the PW.1 was attacked and then they intended to report the matter to the police. There is nothing in the evidence to suggest that before lodging report Pws.1 to 4 had deliberations and consultations with anybody. There is nothing in the cross examination to suggest that the report was an outcome of deliberations and consultations . So merely because there is delay of one day which was satisfactorily explained that is not fatal .Delay in lodging report is not fatal in each and every case. It depends upon the facts and circumstances of each and every case . The alleged offence is that A1 laid in between the daughters of PW.1 in mid night. The matter involves prestige and respect of the family. The case involves the character and future of young unmarried girl. So in such circumstances, one day delay is not fatal ,when the delay was 15 satisfactorily explained. The evidence of PW.1 shows that he would not have reported the matter,but for continuous attacks against them ,they became panic and lodged the report. As such the delay in FIR is not fatal.

39. The learned Magistrate has framed charge against A1 for the offences under Sections 509 and 326 IPC. Since the doctor was not examined the learned Magistrate has found the accused guilty for the offence under Section 323 IPC and convicted him. There is no fault in the finding of trial Court for convicting the accused for the offence under Section 323 IPC ,when charge was framed under Section 326

IPC in view of Section 222(2) Cr.P.C.

40. In view of above discussion I hold that the prosecution proved the guilt of the accused-A1 beyond all reasonable doubt for the offences under Sections 509 IPC and 323 IPC . The point is answered accordingly.

41. Point No.2:-

The trial Court has appreciated the evidence on proper lines and came to correct conclusion and rightly convicted the accused-A1 for the offences under Sections 509 IPC and 323 IPC and there are no reasons to differ with the findings of the trial Court.The point is answered accordingly.

42. POINT No.3:-

IN THE RESULT, the appeal is dismissed confirming the

conviction and sentence passed by the learned Additional

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Judicial Magistrate of I Class, Sullurpet in CC.No. 133/2009 dated

31.12.2015 against A1.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court, this the 26th day of June, 2019.

VII ADDL. SESSIONS JUDGE,

GUDUR.

APPENDIX OF EVIDENCE

NIL

VII ADDL. SESSIONS JUDGE,

GUDUR.

Copy to:-

The Judicial Magistrate of First Class, Sullurpet

IN THE COURT OF THE SENIOR CIVIL JUDGE:: KAVALI

Present: Smt. N. Santhi,

Senior Civil Judge,

Kavali.

Friday, this the 22nd day of September, 2017.

ORIGINAL SUIT No.173 of 2011

Between: Chinthala Brahmaiah….Plaintiff

And

Jampani Anjaneyulu…Defendant

This suit is coming on 08.09.2017 for final hearing

before me in the presence of Sri Sk.Rahiman Saheb, Advocate for

the plaintiff and of Sri C.Venkata Rao, Advocate for the Defendant and after hearing the counsels and on perusing the material on record and the matter having stood over to this day for consideration, this Court delivered the following:

// J U D G M E N T //

01. This is a Suit filed by the plaintiff claiming Rs.5,00,000/- towards damages.

02.The averments of the plaint in brief are:

The plaintiff is a physically challenged person who is

Correspondent of Padmaja Education Center of Ibrahimpet which was recognized in 1981 and treated as aided school in the year 1992. The defendant is working as a Headmaster to that school which was later shifted to Ramaswamipalem in the year 1999. The defendant filed a criminal complaint under Sections 341, 506, 323 r/w 109 I.P.C in Bitragunta Police Station against the plaintiff without any basis. In pursuance of the complaint, dated 5.8.2005 , the plaintiff was arrested, kept in lock up and later he was released on bail. The plaintiff is sincere and hard worker and reputed person in the society. The defendant with malicious intention and 2 with no reasonable cause launched a criminal proceeding. In pursuance of the complaint as the plaintiff was kept in lock up, he was suspended from his post. The same was published in daily

Newspaper on 5.8.2005. Due to that the plaintiff sustained loss by not being able to attend to his profession. The case in

C.C.444/2005 on the file of Additional Judicial Magistrate of First

Class, Kavali filed by the defendant was ended in acquittal on 24.6.2010 after elaborate trial. The plaintiff sustained loss by not being able to attend his profession, trade or occupation,during the period of arrest and also during the course of trial apart from incurring expenditure in attending the Court and by engaging the counsel. After acquittal, the plaintiff issued a legal notice, dated 14.6.2011 to the defendant for damages for malicious arrest and prosecution. The same was served on the defendant on 16.6.2011.

The plaintiff is entitled for damages to a sum of Rs.5,00,000/- towards loss of reputation, mental agony, expenses of defending the case, expenses for attending the Court and office of the counsel and loss of business or income during the period of arrest and trial of the case. Hence, the suit.

03.The defendant filed written statement denying the claim of plaintiff. He admitted that he filed criminal case for the offences under Sections 341, 506, 323 r/w 109 I.P.C against the plaintiff and some others. He further admitted that the said case was ended in acquittal. It is the contention of the defendant that the case in

C.C.444/2005 was ended in acquittal as there was delay in F.I.R, some of the witnesses not supported the prosecution , the plaintiff won over the witnesses and for other technical reasons .

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There are misunderstandings between the plaintiff and defendant.

Due to the misunderstandings, the plaintiff with the help of Kampa

Ashok Chandra @ Chandra @ Chandu of Ambedkar Nagar,

Dargamitta, Nellore, Samudrala Rambabu of Kapparalla Thippa,

Bogole Mandal and Kunchala Amosu of Kapparalla Thippa of Bogole

Mandal attacked the defendant on 12.7.2005 at 17-30 hours.

While the defendant was returning from Mandal Education Officer,

Bogole in the year 1997 one C.V. Archana a student of the school complained to the Hon'ble High Court of Andhra Pradesh,

Hyderabad against the plaintiff that he is demanding illegal donations and monies and the same was forwarded to A.P. State

Legal Services Authority and in turn the A.P. State Legal Service

Authority ordered enquiry by the District educational Officer,

Nellore and also directed to submit a report. In the said context on 25.6.1997 the Deputy Educational Officer issued show cause notice to the plaintiff during the course of enquiry. After completion of enquiry, the District Educational Officer addressed a letter to the

Director of School Education, Hyderabad recommending to appoint

Mandal Educational Officer as Special Officer to discharge the functions of the Correspondent in the place of Brahmaiah pending final action in the enquiry report. On 23.8.2003 the Director of

School Education, Hyderabad gave show cause notice to the plaintiff framing four charges against the plaintiff. The plaintiff while submitting explanation to the said show cause notice, requested for open enquiry on all the points. After completion of open enquiry, the District Educational officer, the Director of School

Education gave another show cause notice on 17.1.2005.While 4 giving explanation to the plaintiff, the plaintiff requested for personal enquiry. Later on 30.7.2005 the plaintiff was suspended from the post of Correspondent. In the meanwhile, the Regional

Joint Director conducted personal inquiry. Subsequently on 20.9.2005 the plaintiff obtained interim order from Hon'ble High

Court of Andhra Pradesh against suspension orders. The plaintiff suspected that the defendant is responsible for all the above said

Correspondence and attacked with the help of unruly elements.

During the trial, PW2 and PW3 though they are direct witness they were won over by the accused and they did not support the case of the prosecution. Likewise, the Pws.5 and 7 also did not support the version of the prosecution. For these and some other technicalities, the trial Court acquitted the case. Therefore, no malice can be attributed to the defendant in lodging criminal prosecution for a true incident. Even during the trial, the plaintiff caused hardship and inconvenience to the defendant by refusing the payments of P.F. amounts and increments. On 2.8.2007 the defendant complained about the same to the District Education

Officer, Nellore and on 29.2.2008 the District Education Officer,

Nellore issued a show cause notice to the plaintiff. Thereafter, the plaintiff paid the increments. Prior to 1998 the defendant was working as Headmaster, Telugu Medium School and in charge for

English Medium School in the year 1998. The plaintiff removed the defendant from additional charge of Headmaster to the English

Medium School. It is mandatory to deposit the fee amounts in the joint Account of Headmaster and the Correspondent.But the plaintiff has been depositing all the said amounts in his personal 5 account only, for which the defendant raised an objection. Due to all these reasons, the plaintiff bore grudge against the defendant and filed the suit against the defendant. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.

04. Basing on the pleadings and on hearing the counsels for both parties, the following issues are framed for trial.

(1) Whether the plaintiff is entitled for recovery of Rs.5,00,000/- as a damages as prayed for?

(2) To what relief?

05. On behalf of the plaintiff, PWs.1 to 4 were examined and

Exs.A1 to A4 were marked. On behalf of the defendant, Dws.1 to 3 were examined and Exs.B1 to B13 were marked.

06. Heard arguments.

07. ISSUE No.1: Whether the plaintiff is entitled for recovery of Rs.5,00,000/- as damages as prayed for?

The learned counsel for the plaintiff argued that the defendant filed false case against the accused which was subsequently ended in acquittal and by filing false case, the defendant caused loss to the reputation of the plaintiff and caused mental agony,so, the plaintiff is entitled for damages as prayed for.

On the other hand, the learned counsel for the defendant argued that the criminal case was not ended in acquittal on the ground that the defendant made false case and the documents filed by the defendant shows the reputation of the plaintiff, so, the plaintiff is not entitled for damages as prayed for.

08.The plaintiff filed suit for damages on the ground of malicious prosecution. In order to prove his case, the plaintiff 6 examined himself as PW1 and reiterated the contents of plaint.

Exs.P1 to P4 marked through him. The plaintiff examined his

School van cleaner and School Aya and School Attender as Pws.2 to 4 respectively. They deposed in support of the case of the plaintiff.

On the other hand, the defendant examined himself as DW1. He deposed about his case as set out in the written statement. The defendant examined two witnesses on his behalf as Dws.2 and 3.

09.The plaintiff filed the suit for damages. It is well settled law that in a suit for damages for malicious prosecution the plaintiff has to prove the following four ingredients:

(1) the plaintiff was prosecuted by the defendant, (2) that there was absence of reasonable and probable cause for initiating the prosecution against the plaintiff by the defendant, (3) that the institution of such proceedings was malicious and (4) that those proceedings ended in his favour.

10.The plaintiff filed Ex.A1 – Certified copy of Judgment in

O.S.444/2005 which shows that the defendant filed criminal case

against the plaintiff. Anyway, it is not in dispute that on the report given by defendant against the plaintiff, a case in Crime

No.49/2005 of Bitragunta Police Station under Sections 341, 506, 343 r/w 109 I.P.C was registered and same was numbered as

C.C.444/2005 and trial was conducted in Additional Judicial

Magistrate of First Class, Kavali. Thus, the first ingredient was

established by the plaintiff.

11.Regarding the second ingredient which is an essential ingredient, out of the four ingredients, the plaintiff has to prove 7 that there was absence of reasonable and probable cause for initiating the prosecution against the plaintiff by the defendant.

12.It is the contention of the plaintiff that though he has not committed the offence, the defendant filed the false case against him without any reasonable and probable cause and injured his reputation and caused lot of mental agony and hardship. The evidence discloses that there are disputes in between the plaintiff and defendant. The evidence further discloses that the relations between the plaintiff who is

Correspondent-cum-founder of Padmaja Education Center and the defendant who is Headmaster of that school are strained. The defendant set the law into motion by lodging the report on 13.7.2005 alleging that on 12-7-2015 while he was returning from

District Education Officer, he was attacked by plaintiff along with two others. The case filed against the plaintiff and others in

C.C.444/2005 by the defendant was ended in acquittal after elaborate trial. It is the contention of the defendant that the case was not ended in acquittal on the ground that the defendant filed false case. Since the plaintiff has filed the suit claiming damages on the ground of malicious prosecution, it is for this Civil Court to scrutinize the evidence. The certified copy of the Judgment in

C.C.No.444/05 was filed and the same was marked as Ex.A1. As seen from the Judgment, the trial Court discussed the evidence of

PW1 at para 9 and the same is extracted hereunder.

“It is PW1 Jampani Anjaneyulu who lodged Ex.P1 complaint with the police with regard to the alleged incident. As per the evidence of PW1, on 12.7.2005 at about 4.15 p.m., he along with 8

PW4 were going to the house and reached water tank of

Ibrahimpet, A1 and A2 along with A3 came by an auto and restrained PW1, A1 caught hold of collar of PW1 and fisted on his chest and back saying that PW1 was not hearing the words of A3 in administration of the school. PW1 further stated that A1 to A3 threatened him with dire consequences.”

13.It is clear from this paragraph in the Judgment that PW1 stated that A3 therein i.e., plaintiff herein restrained him and threatened him with dire consequences. The evidence of DW1 discloses that he gave report stating that plaintiff attacked him.

But para 10 of Judgment discloses that in Ex.P1 complaint PW1 mentioned that some unknown persons beat him and threatened with dire consequences. Thus, though the defendant mentioned in the report that some unknown persons beat him and threatened him, still he lodged report against the plaintiff stating that he along with some others attacked him. It is not that the defendant gave report on suspicion against the plaintiff. But though he has not seen the accused at the scene and though the accused has not participated in the alleged attack, he lodged report as if the plaintiff attacked him. This certainly amounts to false accusation knowing it to be false.

14. It is the contention of the defendant that as the witnesses won over by the plaintiff, the prosecution witnesses did not support the case of the prosecution in C.C.444/2005. But one of the prosecution witnesses who was examined as PW3 was examined by the defendant in this suit as DW2. It appears from the

Judgment that PW3 was produced as direct eye witness to the 9 incident. But P.Venkateswarlu who was examined as DW3 in the suit categorically deposed that he is not an eye witness to the attack against the defendant. The defendant filed case against the plaintiff herein and two other persons. It is not the case of defendant that two other persons are followers of defendant,so as to presume that the defendant thought that the plaintiff instigated them and sent them to attack the defendant.But that is not the case of the defendant. The judgment shows that the defendant has not mentioned about the presence of plaintiff at the scene of offence. But still he set the law into motion as if the plaintiff attacked him. Admittedly, the plaintiff is a physically challenged person. So, it is highly impossible and improbable for the plaintiff to attack the defendant and to restrain him. Thus, though the plaintiff was not present at the alleged scene of offence, the defendant filed case as if the plaintiff attacked him. That certainly amounts to false accusation. In the evidence, the defendant deposed that he gave report stating that the plaintiff attacked him.

But he further deposed that when some others attacked, the plaintiff was in Auto. Thus, the evidence of defendant itself shows that though the plaintiff did not participate in the attack, he lodged report as if the plaintiff attacked him which is a false accusation.

Though DW1 deposed that the plaintiff was in Auto at the time of incident, para 10 of the Judgment shows that the defendant did not mention in the report or state to police that A3(plaintiff) was present at the scene of offence by the time of alleged incident.

Thus, the material on record discloses that though the accusation that the plaintiff attacked the defendant is false to the knowledge 10 of defendant, he set the law into motion by lodging report against the plaintiff alleging that he attacked him and threatened him with dire consequences. So, there is no reasonable and probable cause for the defendant to lodge prosecution against the plaintiff. The false report given by the defendant would go to show the absence of reasonable and probable cause for initiating the prosecution against the plaintiff by the defendant. The own admission of the defendant goes to show that though the plaintiff did not attack him, he lodged report as if he attacked. The malice can be inferred from the circumstances. The evidence discloses that there are strained relations between the plaintiff and defendant. The evidence further discloses that there are disputes between the plaintiff and defendant in connection with the school affairs.

Though the defendant knows that he was not attacked by the plaintiff, he gave report against the plaintiff and made him to turn around the Court. So an inference can be drawn that the institution of such proceedings was with malice. Admittedly the proceedings instituted by the defendant against the plaintiff was ended in favour of plaintiff after full fledged appreciation of the evidence. Though mere acquittal in a criminal case would not confer any right on the plaintiff to claim damages,as already discussed, the plaintiff has established that there was absence of reasonable and probable cause for initiating the prosecution against the plaintiff by the defendant and prosecution was with malice.

15.The learned counsel for the defendant argued that the documents filed by the defendant goes to show the reputation of 11 plaintiff,so, he is not entitled for damages for loss of reputation.

The defendant filed number of documents marked as Exs.B1 to

B13. Ex.B1 is Reply notice and Ex.B2 is Postal acknowledgement.

Though the defendant filed number of documents, they are concerned and connected with school administration management.

Though the documents and the evidence of DW1 discloses that enquiry was initiated against the plaintiff, there is nothing in the record to suggest that the charges were proved against the plaintiff and punishment was imposed by the authorities concerned. Anyway those documents are relating to the management and administration of the school. Moreover, the defendant did not choose to examine the persons who made allegations against the plaintiff. On the other hand, it is the contention of the plaintiff that as he instructed the defendant who is a Headmaster of the school to increase the strength, he got filed false petitions. Dws.2 and 3 admitted that the plaintiff requested to increase the strength of the students. More over mere filing of documents is not proof of documents. The defendant did not choose to examine the persons who said to have reported against the plaintiff. Moreover, the suit was filed basing on the report lodged by the defendant on the ground of malicious prosecution.

So, the documents filed by the defendant are noway helpful to the defendant to substantiate his contention and to disprove the contention of the plaintiff.

16.The learned counsel for the defendant argued that no documents were filed in proof that he spent Rs.40,000/- for defending the case,so, he is not entitled for the damages. It is not 12 in dispute that the plaintiff who was arrayed as accused in

C.C.444/2005 by the defendant,defended his case by engaging an

Advocate. It is not the case that the plaintiff was provided with legal aid counsel so as to presume that the plaintiff has not incurred any expenses for defending his case. Ex.A1 – Certified copy of Judgment shows that the plaintiff engaged an Advocate.

Admittedly, the plaintiff is resident of Ramaswamypalem of Bogole

Mandal and he has attended the Court located at Kavali. So, he needs vehicle to attend the Court since he is a physically challenged. So, certainly he has to spend money for attending the

Court. The evidence of PW1 discloses that after the defendant lodged report, he was arrested by the police. The evidence of DW1 discloses that it was published in Newspapers that the plaintiff attacked him. Thus, the evidence discloses that due to launching of proceedings by the defendant with malicious intention the plaintiff who is a physically challenged was made to confine in the police Station. The plaintiff was made to roam around the police station and Court. When a person was implicated in a case (false) certainly it would cause mental agony and hardship to that person and reputation of that person would be degraded in the society.

The plaintiff would not have turned around the Police Station and

Court which are located in various places, but for the malicious prosecution launched by the defendant. Since the criminal case was launched against the plaintiff he has to certainly spend lot of money and time in defending the case. Admittedly, it was published in newspapers about the alleged attack against the defendant by the plaintiff. Though there is no evidence that the 13 defendant got published about the news in the newspapers, but defendant is admitting about the publishing of news item regarding the incident. When a news item was published in the newspapers about the arrest of the person, certainly his relatives, well wishers and known persons and even unknown persons used to talk about the person in an awful manner. It is no doubt that the person regarding whom a news item was published about his arrest in a newspaper would undergo mental agony and would be lowered in the eyes of friends, relatives, known and unknown persons. The plaintiff claimed Rs.3,00,000/- towards loss of reputation,

Rs.50,000/- towards mental agony, Rs.40,000/- towards expenses of defending the case, Rs.10,000/- towards expenses for attending the Court and office of the counsel and Rs.1,00,000/- for loss of income during the period of arrest and trial of the case. The evidence discloses that the strength of the school was decreased.

Since the plaintiff who was Correspondent was engaged in defending the case, certainly he would not have concentrated on the school. So that, he sustained loss of income. The amount claimed by the plaintiff is neither excessive nor unfair in view of the trauma which he has undergone and the mental agony and financial loss which he has suffered and the reputation which he has lost. So, this Court holds that the plaintiff is entitled for damages as prayed for. The issue is answered accordingly.

17. ISSUE No.2: To what relief?

In the result, the suit is decreed with costs for an amount of

Rs.5,00,000/- (Rupees five lakhs only) with interest at the rate of 6% per annum from the date of filing of the suit till the date of 14 realization personally and from out of the properties of the defendant.

Dictated to the Stenographer, transcribed by her, corrected and Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court this the 22 nd pronounced by me in the open Court this the 22 nd day of September, day of September,

2017. 2017.

SENIOR CIVIL JUDGE,

KAVALI //APPENDIX OF EVIDENCE//

WITNESSES EXAMINED

PLAINTIFF: PW1: Chintala Brahmaiah. PW2: Pulendula Polaiah. PW3: Nidigunta Polamma. PW4: Dhanyasi Srinivasulu.

For Defendant: DW1: Jampani Anjaneyulu. DW2: Tekkam Sudhakar. DW3: Patnam Venkateswarlu.

Documents Marked

Plaintiff:

Ex.A1Certified copy of Judgment in C.C.No.444/2005 on the file of Addl. Judicial Magistrate of First Class, Kavali.

Ex.A2Office copy of the legal notice, dated 14.6.2011.

Ex.A3Postal acknowledgement.

Ex.A4Reply notice, dated 23.6.2011.

Defendant:

Ex.B1Office copy of the reply notice, dated 23.6.2011 along with postal receipt.

Ex.B2Postal acknowledgement.

Ex.B3Attested copy of letter dated 1.7.1998 from D.E.O., Nellore to Director of School Education, Hyderabad.

Ex.B4Attested copy of show cause notice dated 29.2.2008 to the correspondent PEC Aided Elementary School from D.E.O., Nellore.

Ex.B5Attested copy of Enquiry report dated 18.10.2004 of D.E.O., Nellore addressed to the Commissioner and Director of School Education of Andhra Pradesh.

Ex.B6Attested copy of Proceedings of the D.E.O., Nellore dated 25.6.1997.

15

Ex.B7True copy of the order of the Hon'ble High Court of A.P. in W.P.M.P.No.3978/14 in W.P.No.3235/14, dated 6.2.2014.

Ex.B8Copy of the letter dated 29.1.14.

Ex.B9Attested copy of the letter in Rc.No.2555/A4/2005, dated 26.10.2006.

Ex.B10Attested copy of Proceedings of the Director of School Education, A.P., Hyderabad in Rc.No.1330/B1-3/1999, dated 4.1.2006.

Ex.B11Attested copy of proceedings of Director of School Education, A.P., Hyderabad in Rc.No.1330/B1-3/1999, dated 17.1.2005.

Ex.B12Attested copy of proceedings of the Commissioner and Director of School Education, A.P., Hyderabad in

Rc.No.1330/B1-3/1999, dated 23.8.2003.

Ex.B13Attested copy of the proceedings of the Director of School Education of A.P. Hyderabad Rc.No.1330/B1-3/1999, dated 30.7.2005 marked. (Exs.B3 to B6 and B9 to B13 marked subject to objection).

S.C.J., Kavali.

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum- VII

ADDL. DISTRICT COURT :: GUDUR, SPSR NELLORE DISTRICT.

Tuesday, this the 25 th day of June, 2019

Present: - Smt. N.Santhi, Chairman, Motor Accidents Claims Tribunal- cum-VII Addl. District Judge, Gudur.

***

M.V.O.P. No.79 of 2014

Aruru Maraiah, s/o Venkata Subbaiah, 46 years, Agriculturist besides paddy broker and bricks manufacturer, r/o Jeelapatur village, Pellakuru Mandal SPSR Nellore District ...Claimant

Vs.

1) Duvvuru Sumathi, w/o Vijaya Bhaskar Reddy, Owner of Tractor and trailor bearing regn. Nos. AP 26 AC 8690 and AP 26 AC 8691, r/o Nalajalamma street, Gudur town

2) Reliance General Insurance Co.,

represented by its Manager, Nellore... Respondents

This Claim Petition came up on 03.05.2019 before me for final hearing in the presence of Sri K.B.S. Mani, Advocate for Claimant and of Sri E.V. Rami Reddy, Advocate for respondent No.2 and the 1st respondent remained exparte and having heard both sides and having perused the record and the matter having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

This is a petition filed under section 166 of Motor Vehicles Act for compensation of Rs.15,00,000/- with subsequent interest for the injuries received by the petitioner in the motor accident that occurred on 09.02.2010.

2. The averments of the petition in brief are :-

The applicant was hale and healthy prior to the accident. He was an agriculturist of paddy and sugar cane grower, besides paddy 2 broker and manufacturer of bricks. He was earning Rs.6,50,000/- per year. On 09.02.2010 at about 2.00 p.m when the claimant was going on a motor cycle along with one Nirmala on Naidupet – Srikalahasti road from his fields and when he reached AVS Nagar, the driver of the tractor bearing registration No. AP 26 AC 8690 and trailer bearing registration No. AP 26 AC 8691 ,drove the same in a rash and negligent manner and at high speed without blowing horn and dashed the claimant .Due to which the claimant fell down on the road along with pillion rider and sustained bleeding injuries. Immediately he was taken to Bollineni Super Specialty Hospital, Nellore. On the next day he was shifted to Apollo Super Hospital, Chennai. He is permanently disabled and completely bed ridden. He has spent Rs.8,00,000/- towards medical expenses and transport charges.

The accident was reported to Station House Officer, Pellakur

Police Station. In this connection a case was registered as Crime

No.8/2010 under Section 338 I.P.C. The driver of the 1st respondent committed the accident during the course of his employment. The 2nd respondent is the insurer of 1st respondent's tractor. Hence both the respondents are jointly and severally liable to pay compensation.

Hence the petition.

3. The 1St respondent remained exparte.

4. The 2nd respondent filed counter resisting the claim of the petitioner. It is the contention of the 2nd respondent that a tractor cum trailer bearing registration Nos. AP 26 AC 8690 and AP 26 AC 8691 owned by the 1st respondent was validly insured with the second 3 respondent company. During enquiry it came to know that the driver of the tractor cum trailer bearing registration Nos. AP 26 AC 8690 and

AP 26 AC 8691 was not possessing valid and effective driving license.

The claimant drove the vehicle at high sped and lost control and dashed the opposite coming tractor and trailer. Thus the claimant himself contributed the negligence in causing the accident. As such the owner of motor cycle and its insurance company are proper and necessary parties to the proceedings. If the tribunal comes to conclusion to pass any award the same has to be apportioned against both the vehicles.

Hence the petition is liable to be dismissed.

5. On behalf of the petitioner Pws.1 to 4 were examined and

Exs.A1 to A21 and Exs.X1 to X3 were marked. No evidence was adduced on behalf of the second respondent.

6. Now the points for consideration are--

1) Whether the accident occurred due to rash and negligent driving of the driver of tractor cum trailor bearing registration Nos. AP 26 AC 8690 and AP 26 AC 8691?

2) Whether the driver of tractor and trailer was not possessing any valid and effective driving license?

3) Whether the petitioner is entitled for compensation. If so, to what amount and from which of the respondents?

4) To what relief?

7. Heard arguments.

8. P O I N T NO.1:

The learned counsel for the petitioner argued that due to rash and negligent driving of the driver of the tractor cum trailer bearing 4 registration Nos. AP 26 AC 8690 and AP 26 AC 8691 the petitioner met with an accident and now he is completely bed ridden and became permanently disabled, so he is entitled for compensation as prayed for.

On the other hand, the learned counsel for second respondent argued that the accident occurred due to negligence of claimant himself , as such the respondent company is not liable to pay compensation.

9. The claimant filed this petition claiming compensation of

Rs.15,00,000/- for the injuries sustained by him in a motor accident.

So the initial burden is on the petitioner to prove his contention. In order to prove his contention the petitioner examined himself as PW.1 and reiterated the contents of the petition. Exs.A1 to A21 were marked through him. It is the evidence of PW.1 that on 09.02.2010 at 2.00 p.m while he being rider and one Nirmala as pillion rider were proceeding on motor cycle on Naidupet - Srikalahasthi road, when they reached near AVS Nagar of Pellakur village ,the driver of one tractor - trailer bearing registration Nos. AP 26 AC 8690 and AP 26 AC 8691 drove it in a rash and negligent manner and at high speed without blowing horn and came in wrong root ,hit his motor cycle and caused accident.

As a result he fell down and sustained severe bleeding injuries and he was shifted to Hospital.

10. The evidence of PW.1 is cogent and consistent. The petitioner filed Ex.A3 attested xerox copy of charge sheet. This document goes to show that the accident occurred due to the negligence of driver of tractor driver.

5

11. The petitioner examined the defacto complainant-cum-eye witness of the accident as PW.2. He deposed in corroboration to the evidence of PW.1 regarding the manner of accident. There is no reason to disbelieve the evidence of PW.2.

12. It is the contention of 2nd respondent that the claimant himself contributed the negligence. When that is the case the burden is on second respondent to prove the same .But no evidence was adduced to prove that the accident occurred due to the negligence of the claimant. On the other hand the claimant by examining himself as

PW.1 and by filing Ex.A3 attested xerox copy of charge sheet which was filed by the Investigating Officer after thorough investigation has proved that the accident occurred due to the negligence of driver of tractor cum trailer bearing registration No. AP 26 AC 8690 and AP 26

AC 8691 and he received injuries in the accident. The point is answered accordingly.

13. P O I N T No.2:

It is the contention of second respondent that the driver of tractor cum trailer bearing registration No. AP 26 AC 8690 and AP 26

AC 8691 was not possessing valid driving license as such the insurance company is not liable to pay compensation.

14. In National Insurance Company Limited Vs.

Swaran Singh and others reported in 2004 (2) ALD 36 (SC) their

Lordships have held that -- “the breach of policy conditions example disqualification of driver or invalid driving license of the driver have to be proved to have been committed by insured for 6 avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.”

15. In view of above citation the burden on the insurance company to prove that the driver of tractor cum trailer bearing registration No. AP 26 AC 8690 and AP 26 AC 8691 was not possessing valid driving license. But the insurance company did not adduce any evidence to prove that the driver of lorry was not having valid and effective driving license ,except making bald allegations that the driver was not having any valid and effective driving license. So the contention of the insurance company that the driver of tractor cum trailer bearing registration No. AP 26 AC 8690 and AP 26 AC 8691 was not having valid and effective driving license cannot be accepted.

16. As seen from Ex.A3 charge sheet there is no mention that the driver of tractor cum trailer bearing registration No AP 26 AC 8690 and AP 26 AC 8691 was charged for not having driving license. As such the contention of second respondent that the driver of tractor cum trailer was not possessing valid driving license cannot be accepted. The point is answered accordingly.

7

17. P O I N T No.3:

The petitioner claimed Rs.8,00,000/- under single head of medical expenses, special diet and transport charges. But these heads are dealt here under separately.

Medical expenses: According to PW.1 due to the accident he sustained injuries and he was taken to Bollineni Super Specialty

Hospital, Nellore for medical treatment and spent Rs.52,312/- towards medical expenses. It is further the evidence of PW.1 that thereafter he was shifted to Apollo Super Specialty Hospital, Chennai for better treatment and surgery was conducted on his head and he was inpatient in Apollo hospital on 09.02.2010 and 10.02.2010 and spent about Rs.3,51,964/- towards medical expenses. It is further his evidence that again he was admitted in Apollo Hospital, Chennai on 14.10.2011 and was treated as inpatient from 14.10.2011 to 17.10.2011 and spent Rs.33,724/- towards medical expenses. It is further his evidence that he was again admitted in best hospital,

Nellore on 04.11.2013 and treated as inpatient in the said hospital from 04.11.2013 to 21.11.2013 and spent Rs.1,17,957/- towards medical expenses. The petitioner filed Ex.A4 inpatient bill for

Rs.52,313/- issued by Apollo Hospital, Chennai,Ex.A5 inpatient bill

dated 01.03.2010 for Rs.3,51,964/- issued by the Apollo hospital,

Chennai, Ex.A6 inpatient bill dated 17.10.2011 for Rs.33,724/- issued by the Apollo hospital, Chennai, Ex.A9 discharge bill for Rs.1,17,957/- issued by the Best hospital, Nellore, Ex.A10 discharge summary issued by the Best Hospital, Nellore in respect of medical bills for 8

Rs.11,679/- , Ex.A11 medical bills issued by Apollo hospital for

Rs.30,296/-, Ex.A12 medical bills for Rs.1,10,546/- and Ex.A18 medical bills for Rs.1,15,364/-.

18. Apart from filing medical bills the claimant examined the doctors who gave treatment to him as Pws.3 and 4. The claimant has examined one Doctor A.V. Ramana Murthy, Consultant Neuro Surgeon at KIMS hospital, Nellore as P.W3 . He admitted that Ex.A4 final bill was issued by their hospital. PW.4 is Doctor Siddartha Ghosh, Neuro surgeon in Apollo hospital, Chennai. He also admitted that Exs.A5, A6,

A10 and A11 are related to their hospital. Thus the claimant proved the medical bills also.

19. The learned counsel for second respondent argued that the bills filed under Exs.A5 and A6 are duplicate bills and the son of claimant ,who is bank Manager produced the bills for reimbursement ,so the claimant is not entitled for compensation under those bills. But no evidence was produced by the second respondent in proof that the son of claimant produced the bills for reimbursement. On the other hand the claimant filed Ex.A14 certificate issued by Station House

Officer, Pellakaur Police Station which shows that a report was lodged regarding missing of original medical bills and a case was registered in Crime No.8/2010 of Pellakur Police Station in that connection. No contra evidence was produced by the respondent. On the other hand

PW.4 ,the doctor also admitted that Exs.A5 and A6 related to their hospital. As such the claimant is entitled for compensation under those bills.

9

20. The learned counsel for 2nd respondent argued that no leg injury was received by the petitioner as such the petitioner is not entitled to claim the bills under Exs.A7 to A10 and A18.

21. There is no force in the argument of learned counsel for the second respondent. As seen from the evidence of PW.3, the doctor who treated the injured on the date of accident categorically deposed that the claimant sustained multiple abrasions over left thigh and leg.

So the contention of counsel for R2 that no leg injury was received by the petitioner ,as such the claimant is not entitled to claim compensation under the bills A7 to A10 and A8 is not tenable.

22. PW.4 categorically deposed that the fits was caused due to the earlier injury to the brain. As such the evidence discloses that the ailments received by the petitioner subsequent to the accident are consequences of the injuries received on the date of accident. As such he is entitled to claim medical bills. As such the petitioner is entitled for

Rs.8,23,843/- (Rs.52,313 + 3,51,964 + 33,724 + 1,17, 957 + 11,679 + 30,296 + 1,10,546 + 1,15,364) towards medical bills.

23. TRANSPORT EXPENSES:

The petitioner filed transport bills for Rs.14,200/- marked as

Ex.A13. But none of these bills relating to the date of accident and all those bills are pertaining to the period subsequent to filing of the petition. As such the petitioner is not entitled for any amount under those bills.

10

24. In Managing Director, A.P.S.R.T.C. Vs. Kathavath

Gopal and another reported in 2003(5) ALD 198 our Hon'ble High

Court held that-- “Compensation towards expenditure incurred on extra nourishment and transport cannot be denied even though treatment was given in Government Hospital and one cannot expect positive evidence proving only expenditure and hence some reasonable hypothesis cannot be ruled out.“

25.In view of above citation, having regard to the evidence that the petitioner sustained injuries in the accident that occurred on

Naidupet – Srikalahasthi road and later he was shifted to hospital at

Nellore and from there to Chennai , it can be visualized that he would have spent considerable amount towards transport expenses.

Hence, this tribunal holds that it is just and reasonable to award Rs 10000/ transport expenses.

26. Special Diet :-

Considering the nature of injuries received by the petitioner/ claimant in view of the citation in Kathavath Gopal ‘s case referred above, this tribunal is of the view that it is just and reasonable to award

Rs.5,000/- towards special diet.

27. Pain and Suffering:

The petitioner claimed Rs.1,00,000/- under this head. The evidence of Pws3 and 4 the doctors coupled with Ex.A2 wound certificate, Exs.A7 to A10 discharge summaries go to show that the claimant received grievous injuries and he under went surgery for 11 head injury and for external fixation and left radius fracture which is major surgery.

28. The shock, pain and suffering at the time of accident, the pain, discomfort and inconvenience during the period of treatment, and hospitalization and surgeries can be visualized by taking into consideration the day to day human experience. Hence, this Tribunal holds that it is just and reasonable to award Rs.75,000-00 towards pain and suffering.

29. Compensation for loss of earnings:

The claimant claimed Rs.3,00,000/- under this head. According to the petitioner, he is an agriculturist of paddy and sugar cane grower, besides paddy broker and manufacturer of bricks and he is earning Rs.6,50,000/- per year. The claimant filed Ex.A17 particulars of agricultural land ,But no other documents were filed by the petitioner in proof that he is an agriculturist of paddy, sugar cane grower besides paddy broker and manufacturer of bricks. Mere possession of land is not proof of getting income. No document was filed by the petitioner in proof that he is getting Rs.6,50,000/- per year. If really he is getting

Rs.6,50,000/- per year, he would have been an income tax asses-see.

But no document was filed in proof that he is an income tax asses- see.

30. No document was filed in proof of the income of the claimant. Any way it is not the case of the respondent that petitioner is not having anything. Hence considering that the petitioner is having

Ac.10.92 cents of landed property as shown in Ex.A17, his income is 12 notionally taken as Rs.5,000/- per month. The evidence of PW.1 coupled with the evidence of PW.3, the doctor shows that the claimant was in the hospital as inpatient from 09.02.2010 to 01.03.2010 i.e.

hardly for one month. Considering the nature of injuries received by the petitioner it can be understood that it would taken atleast further three months for recovery. As such it is held that the petitioner lost earnings for four months. Hence this tribunal is of the view that it is just and reasonable to award Rs.20,000/- towards loss of earnings at the rate of Rs.5,000/- per month ,for a period of four months.

31. Permanent Disability:

PW.4 the doctor who gave treatment and conducted surgery deposed that he has examined the claimant and conducted psychological test which reveals severe impairment (disability) in functioning, in day to day activities. The patient has got severe cognitive impartment, resulted loss of memory. The fits was caused due to earlier injury to the brain. The above three impairments (disabilities) may continue in future also.

32. He further deposed that the injury on the left hand resulted with permanent disability and function power of hand come down. He issued Ex.A16 disability certificate showing disability of more than 40%. The evidence of PW.4 discloses that the petitioner is getting fits and he has got loss of memory due to the injury received to his head which was result of the accident. Ex.A16 the certificate of disability shows that the doctor has issued certificate opining that the 13 patient is suffering from Traumatic injury of brain and the extent of disability is more than 40%.

33. InA CHALAPATHI S/O GOPAL V/S

SATYANARAYANA N NUWAL reported in 2010 (4) ALD 217, their lord ships have held that “nothing more is required than the testimony of the qualified Orthopedic surgeon, who treated the appellant, to show that the appellant has suffered the permanent disability to the extent of 20%. Unless the Court finds the evidence of the doctor not worthy of acceptance by giving cogent reasons, the opinion of a qualified doctor, that too, of the doctor who conducted the surgery and treated the patient, cannot be discredited.”

34. In view of above citation, the evidence of Pw.4, who conducted surgery on Pw.1 can be taken into consideration regarding percentage of permanent disability received by the petitioner as 40%.

35. According to the petitioner he was aged about 46 years as on the date of accident. In the wound certificate his age was shown as 47 years. But no age certificate was filed . In the absence of any contrary evidence the age of the petitioner is taken into consideration as 47 years ,as was mentioned in the wound certificate. The annual income of the claimant was estimated at Rs.60,000/- (Rs.5000 x 12). The corresponding multiplier to the age of the injured as per column 4 of

Sarla Verma’s case is “13”. Then it comes to 7,80,000/- (Rs.60,000/- x 13).The percentage on disability is 40%. So the petitioner is entitled for compensation of Rs. 3,12,000/- (Rs. 7,80,000x40/100 =

Rs.3,12,000/-. ) under this head.

14

36. In view of above discussion this tribunal holds that the petitioner is entitled for compensation of Rs.12,45,843/- (Rupees twelve lakhs forty five thousands eight hundred and forty three only) under the following heads.

1. Medical expensesRs.8,23,843-00

2. Transport expenses10,000-00

3. Special diet5000-00

4.Pain and suffering75,000-00

5. Loss of earnings 20,000-00

6.Permanent disability 3,12,000-00

TOTAL (Rupees twelve lakhs forty12,45,843-00 five thousand eight hundred and forty three only)

The point is answered accordingly.

37. Point No.4: To what relief ?

In the result, the petition is allowed in part with proportionate costs awarding compensation of Rs.12,45,843/- (Rupees twelve lakhs forty five thousands eight hundred and forty three only) in favour of the petitioner and against the respondents 1 and 2. The

Respondents 1 and 2 are jointly and severally liable to pay the compensation. The 2nd respondent being Insurer is directed to deposit the said sum with interest at 6% p.a., from the date of petition (13.07.2012) till realization within 30 days from the date of this award.

On such deposit, the petitioner is permitted to withdraw the entire amount along with accrued interest by filing an application. The rest of 15 the claim of the petitioner is dismissed without costs. Advocate's fee is fixed at Rs.2000/- (Rupees two thousand only).

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court, this the 25 th day of June, 2019.

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS

TRIBUNAL -cum-VII ADDL. DISTRICT

JUDGE, GUDUR.

APPENDIX OF EVIDENCE

Witnesses Examined For Claimant:- PW.1: Aruru Maraiah PW.2: Aruru Mariah PW.3: Dr. A.V. Ramana Murthy PW.4: Dr. Siddhartha Ghosh

For Respondents:-

- NIL -

Documents marked For Claimant:- Ex.A.1: Attested copy of F.I.R Ex.A.2: Attested copy of wound certificate Ex.A.3: Attested copy of charge sheet Ex.A.4: Medical bills Rs.52,313/- (Bollineni hospital, Nellore) Ex.A.5: Inpatient bill Rs.3,51,964/- dt.01.03.2010 (Apollo hospital, Chennai) Ex.A.6: Inpatient bill Rs.33,724/- dt.17.10.2011 (Apollo hospital, Chennai) Ex.A.7: Discharge summary, Best Hospital, Nellore dt 11.10.2013 Ex.A.8: Second discharge summary, Best Hospital, Nellore dt 21.11.2013 Ex.A.9: Discharge bill for Rs.1,17,957/- Ex.A.10: 3rd discharge summary (Best hospital, Nellore) for Rs.11,679/- dated 23.03.2017 Ex.A.11: Description of medical bills (Apollo hospital, Chennai) for Rs.30,296/- Ex.A.12:Description of other medical bills for Rs.1,10,546/- Ex.A.13: Description of transport bills for Rs.14,200/- Ex.A.14: Certificate dated 19.07.2010, SHO, Podalakur PS Ex.A.15: Certificate dated 11.12.2012 by Dr.Siddartha Ghosh Ex.A.16: Disability certificate dated 30.01.2014 Ex.A.17: Particulars of agricultural land belongs to claimant for an extent of Acs.10.92 cents 16

Ex.A.18: Medical bills and receipt for Rs.1,15,364/- Ex.A.19:Certified copy of Judgment in OP 466/2010 Ex.A.20: Certified copy of decree in OP 466/2010 Ex.A.21: Certificate dated 17.10.2011

Ex.X1: Discharge summary dated 01.03.2011 Ex.X2: Discharge summary dated 17.10.2011 Ex.X3: Physiological test report dated 13.10.2018

For Respondents:-

- NIL -

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS

TRIBUNAL-cum-VII ADDL. DISTRICT

JUDGE, GUDUR.

IN THE COURT OF THE SENIOR CIVIL JUDGE ::: KAVALI

Present: Smt. N. Santhi,

Senior Civil Judge, Kavali.

Wednesday, this the 20th day of September, 2017.

E.P.No.13 of 2011

in

O.S.No.20 of 2010

Karnati Malakondaiah, S/o Peda Narasaiah, Hindu, aged 54 years, R/o Kakolluvaripalem village, Varikuntapadu Mandal, Nellore District. …Plaintiff/Decree holder.

VS

Devendla Peda Obulesu, S/o Ankaiah, Hindu, aged 50 years, Kakolluvaripalem village, Varikuntapadu Mandal,

Nellore District. ...Defendant/Judgment

debtor.

This petition is coming on 13.09.2017 before me for final hearing in the presence of Sri A. Prasad Reddy, advocate for the Plaintiff/Decree holder and of Sri Potluru Srinivasulu, Advocate for the Defendant/Judgment debtor and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

O R D E R

1. This is a petition filed under Order 21 Rules 37 and 38 of CPC for sending the judgment-debtor to the civil prison for realization of decretal debt.

2. The averments of the petition affidavit in brief are: The decree- holder has obtained a decree on 5.8.2010. In spite of several demands, the judgment-debtor failed to discharge the debt. The Judgment debtor is doing money lending business. He got own house and lands. He is getting

Rs.2,00,000/- per year. The Judgment debtor has got means to discharge the decretal debt at once. Hence, this petition.

3. The Judgment-debtor filed counter opposing the petition. It is the contention of the judgment-debtor that the Decree holder obtained exparte decree in fraudulent manner. He did not receive any suit summons. The Execution Petition summons were only served upon him and he filed petition to set aside the decree. It is further the contention of the Judgment debtor that he has no property. He is suffering from nervous problem and unable to attend at least cooli work. He has no means to discharge the Execution Petition amount. Hence, the petition is liable to be dismissed.

3

4.On behalf of petitioner, PW1 was examined and Exs.P1 to P5 were marked. On behalf of judgment debtor, RW1 was examined and Exs.R1 to R3 were marked.

5.5.Heard arguments.Heard arguments.

6. 6. Now, the points for consideration are:Now, the points for consideration are:

(I) Whether the Decree Holder is entitled for the relief as prayed for?

(ii) To what relief?

7. POINT No.1:Whether the Decree Holder is Whether the Decree Holder is entitled for the relief as prayed for? entitled for the relief as prayed for?

The learned counsel for the decree-holder argued that in spiteThe learned counsel for the decree-holder argued that in spite of having capacity, the Judgment Debtor failed to discharge theof having capacity, the Judgment Debtor failed to discharge the decretal debt and the decree holder by examining himself and bydecretal debt and the decree holder by examining himself and by filing Exs.P1 to P5 has proved that Judgment debtor has gotfiling Exs.P1 to P5 has proved that Judgment debtor has got means,so, it is for the Judgment debtor to prove that he has nomeans,so, it is for the Judgment debtor to prove that he has no means,but the Judgment debtor failed to prove that he has nomeans,but the Judgment debtor failed to prove that he has no means,so, the decree holder is entitled for the relief as prayed for.means,so, the decree holder is entitled for the relief as prayed for.

In support of his argument, he relied upon the decisions (1) inIn support of his argument, he relied upon the decisions (1) in

Patnana Venkataramana Vs. Mutnuru Venkataramana reported inPatnana Venkataramana Vs. Mutnuru Venkataramana reported in 2007 (1) ALD 104 and (2) in Konda Subbaiah Vs. Yedoti2007 (1) ALD 104 and (2) in Konda Subbaiah Vs. Yedoti

Kamalakshaiah reported in 2008 (6) ALD 290. On the other hand,Kamalakshaiah reported in 2008 (6) ALD 290. On the other hand, the learned counsel for the Judgment Debtor argued that thethe learned counsel for the Judgment Debtor argued that the

Decree holder obtained exparte decree and Judgment Debtor isDecree holder obtained exparte decree and Judgment Debtor is residing at Warangal and in the documents filed by the Decreeresiding at Warangal and in the documents filed by the Decree holder, the properties were shown in the name of Devandlaholder, the properties were shown in the name of Devandla

Obulesu whereas the Judgment Debtor is Peda Obulesu. So, theObulesu whereas the Judgment Debtor is Peda Obulesu. So, the documents are not helpful to the Decree holder in proving that thedocuments are not helpful to the Decree holder in proving that the

Judgment Debtor is having properties. He further argued that theJudgment Debtor is having properties. He further argued that the

Judgment Debtor by filing Exs.R1 to R3 proved that the propertiesJudgment Debtor by filing Exs.R1 to R3 proved that the properties shown by Decree holder are not in his name. So, the Decree holdershown by Decree holder are not in his name. So, the Decree holder is not entitled for the relief and the Execution Petition is liable to beis not entitled for the relief and the Execution Petition is liable to be dismissed.dismissed.

8.8.The decree holder filed this petition for sending theThe decree holder filed this petition for sending the

Judgment Debtor to Civil prison for realization of decretal debt.Judgment Debtor to Civil prison for realization of decretal debt.

There is no dispute that the decree holder obtained decree againstThere is no dispute that the decree holder obtained decree against the Judgment Debtor. It is also not in dispute that the Decreethe Judgment Debtor. It is also not in dispute that the Decree holder obtained exparte decree. The decree holder filed thisholder obtained exparte decree. The decree holder filed this petition seeking for arrest of Judgment Debtor for realization ofpetition seeking for arrest of Judgment Debtor for realization of decretal debt. decretal debt.

9. Here it is pertinent to read section 51 of C.P.C.

which reads as follows:

Section 51 C.P.C: Powers of Court to enforce execution:- Section 51 C.P.C: Powers of Court to enforce execution:- Subject to such conditions and limitation as may be prescribed, the Subject to such conditions and limitation as may be prescribed, the Court may, on the application of the decree-holder, order execution Court may, on the application of the decree-holder, order execution of the decree- of the decree-

(a) ……………….. (a) ………………..

(b) ……………….. (b) ………………..

(c) ……………….. (c) ………………..

(d) …………........ (d) …………........

(e) ………………. (e) ……………….

Provided that, where the decree is for the payment of Provided that, where the decree is for the payment of money, execution by detention in prison shall not be or - - money, execution by detention in prison shall not be or 5 dered unless, after giving the judgment-debtor an opportu - - dered unless, after giving the judgment-debtor an opportu nity of showing cause why he should not be committed to nity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satis - - prison, the Court, for reasons recorded in writing, is satis fied- fied-

(a) that the judgment-debtor, with the object or effect of (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the (ii) has, after the institution of the suit in which the decree was decree was passed, dishonestly transferred, concealed, passed, dishonestly transferred, concealed, or removed any part of his property, or committed any or removed any part of his property, or committed any other act of bad faith in relation to his property, or other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment- (c) that the decree is for a sum for which the judgment- debtor was bound in fiduciary capacity to account. debtor was bound in fiduciary capacity to account.

Explanation: - In the calculation of the means of the judg Explanation: - In the calculation of the means of the judg - - ment-debtor for the purposes of Clause (b), there shall be ment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law left out of account any property which, by or under any law or custom having the force of law for the time being in or custom having the force of law for the time being in force, is exempt from attachment in execution of the de - - force, is exempt from attachment in execution of the de cree. cree.

It is clear from the reading of Sec. 51 of CPC that in order toIt is clear from the reading of Sec. 51 of CPC that in order to seek for the arrest of judgment debtor, the decree holder has toseek for the arrest of judgment debtor, the decree holder has to fulfill the requirements as laid down under Sec.51 of CPC. fulfill the requirements as laid down under Sec.51 of CPC.

10. It is not the case of decree holder that the judgment debtor is going to leave the jurisdiction of this Court. It is the contention of the decree holder that in spite of having sufficient means the judgment debtor failed to pay the decretal debt. Though the scope of inquiry in Execution Proceeding is limited, having filed the application for arrest of the judgment debtor, the decree holder has to prove that despite having sufficient means the judgment debtor refused or neglected to pay the decretal amount.

11. In order to prove the means of Judgment debtor, the decree holder himself examined as PW1. It is the evidence of decree holder that the Judgment debtor is having Ac.1.68 cents in

Survey No.252/3B and 276/1A of Kakolluvaripalle village. Apart from that, he got an extent of Ac.2-00 of dry land. The Judgment

Debtor is doing business and getting Rs.2,00,000/- per year and getting more than Rs.1,00,000/- on agriculture. Exs.P1 to P5 marked through PW1. All these documents were marked subject to objection. On the other hand, the Judgment examined himself as

RW1 and deposed that the decree holder obtained exparte decree against him. He further deposed that he has no property and the property covered under the documents filed by the Decree holder does not belong to him and those documents are created for the purpose of this case with the help of Revenue employees by manipulation. He further deposed that his name is Devandla Peda

Obulesu and not Devandla Obulesu. and the documents filed by

Decree holder are in the name of Devandla Obulesu,so, the properties are not in his name and he has no means to discharge the Execution Petition amount. Exs.R1 to R3 marked on behalf of

Judgment Debtor.

12.During the course of inquiry, the Judgment debtor came up with a contention that he is resident of Warangal. But such contention was not raised by the Judgment Debtor in the counter.

7

It is for the first time during the cross examination of Judgment

Debtor he came up with a contention that he is residing at

Warangal. Anyway no document was filed in proof that he is residing at Warangal.

13.The Decree holder as PW1 deposed about the properties owned by Judgment Debtor. In the affidavit, filed along with the petition the Decree holder did not furnish the details of the lands owned by Judgment Debtor. In the petition affidavit, the Decree holder came up with a contention that the Judgment Debtor is having own house, landed properties and doing money lending business. But during inquiry the Decree holder has given a go bye to the contention put forth by him in the petition affidavit, that the

Judgment Debtor is having own house and doing money lending business. PW1 deposed that the Judgment debtor is having landed properties. He furnished the details in the evidence , though he has not furnished those details in the petition. According to PW1, the Judgment Debtor is having Ac.1.68 cents in Survey No.252/3B and 276/1A of Kakolluvaripalle village and apart from that he got

Ac.2-00 of dry land. The Decree holder filed Ex.P2 – Copy of 1B namuna, dated 9.1.2015. This document was marked subject to objection. In this document, Devandla Peda Obulesu was shown to be having 18 cents in Survey No.252/3B and Ac.1.40 cents in

Survey No.276-1A. Thus, in total Devandla Peda Obulesu was shown to be having Ac.1.58 cents in both survey numbers. But according to PW1, the Judgment debtor is having Ac.1.68 cents in

Survey No.252/3B and 276/1A. Thus, the evidence of PW1 is not getting corroboration from Ex.P2. The Decree holder filed Ex.P3 – 1B extract obtained through mee-seva. In this document, one

Devandla Obulesu was shown to be pattadar of Ac.1.32 cents in

Survey No.777-2 and Ac.1.40 cents in Survey No.276-1A and

Ac.0.18 cents in survey No.252-3B. The Decree holder filed Ex.P4 adangal for the faslie 1426 obtained through Mee-seva. This document shows that Devandla Obulesu is having Ac.0.18 cents in

Survey No.252-3B. Ex.P5 is the adangal for the faslie 1426 in respect of Survey No.276-1A. This shows that Devandla Obulesu is having Ac.1.40 cents in Survey No.276-1A. Thus, as per Ex.P2

Devandla Peda Obulesu is having Ac.1.40 cents in Survey No.276- 1A and Ac.0.18 cents in Survey No.252-3B and Ac.1.40 cents in

Survey No.777-2. But Exs.P3 to P5, the documents filed by Decree holder himself shows that the extent mentioned in Ex.P2 is standing in the name of Devandla Obulesu. Admittedly, the

Decree holder filed suit against Judgment Debtor by showing his name as Devandla Peda Obulesu. The Execution Petition was also filed against Judgment Debtor by showing his name as Devandla

Peda Obulesu. But some of the documents filed by Decree holder shows that the properties are in the name of Devandla Peda

Obulesu and some documents Exs.P3 to P5 shows that the same properties are standing in the name of Devandla Obulesu. No evidence whatsoever was produced by the Decree holder in proof that Devendla Peda Obulesu and Devandla Obulesu are one and 9 the same. Apart from that, as per Ex.P2 Devandla Peda Obulesu got Ac 0.18 cents in Survey No.252-3B by purchase. But as per

Exs.P3 and P4, Devandla Obulesu got Ac 0.18 cents in Survey

No.252-3B by inheritance. As per Ex.P5 Devandla Obulesu is having Ac.1.40 cents in Survey No.276-1A by succession, but that is not so as per Ex.P2. As already discussed, the name of pattadar is not tallying with one another. Though it is not the evidence of

PW1 that the Judgment Debtor is having Ac.1.40 cents in Survey

No.777-2,but as seen from Ex.P3, the extent shown in the name of

Devandla Peda Obulesu in Survey No.777-2 is Ac.1.32 cents and not Ac.1.40 cents as mentioned in Ex.P2. Above all, Ex.P3 shows that the land in Survey No.777-2 is D-form patta land. So, the said land is prohibited from alienation and it cannot be brought to sale.

Thus, the documents filed by Decree holder are not inconsonance with one another. The Judgment Debtor also filed Exs.R1 to R3 documents. Ex.R1 is the adangal for faslie 1426 obtained through

Mee-seva in respect of Survey No.276-1A. The Decree holder also filed adangal for the faslie 1426 obtained through Mee-seva. In the adangal filed by the Judgment Debtor which was marked as Ex.R2 the land in Survey No.252-3B is shown to be in the name of

Rayavarapu Malyadri and Peda Malakondaiah. But surprisingly in

Ex.P4 the adangal filed by the Decree holder for the same faslie, the land in Survey No.252-3B was shown to be in the name of

Devandla Obulesu. The Judgment Debtor filed adangal for the faslie 1426 in respect of Survey No.276-1A and the same was marked as Ex.R1. The Decree holder filed the adangal for the same faslie 1426 in respect of Survey No.276-1A marked as Ex.P5.

In Ex.R1 filed by the Judgment Debtor the land in Survey No.276- 1A was shown to be in the name of Malineni Venkata Swamy and

Ankaiah .Whereas Ex.P5 shows that Ac.1.40 cents in the said

Survey Number is in the name of Devandla Obulesu. Thus, the document filed by Decree holder and Judgment Debtor for the same fasli are not inconsonance with one another. Exs.P1 to P5 and Exs.R1 to R3 were marked subject to objection. Mere filing of documents is not proof of documents. The Decree holder who approached the Court has to prove that the Judgment Debtor is having means and in spite of that he failed to discharge the debt.

Though the documents filed by Decree holder were marked subject to objection and the entries in those documents are not corroborating with each other,the Decree holder did not choose to examine the Revenue Officials. Thus, there is no consistent evidence on record to prove that the Judgment Debtor is having means.

14.The Decree holder filed Ex.P1 – Certified copy of settlement deed, dated 10.6.2011. This document shows that the property is not in the name of Decree holder. So, Ex.P1 is not helpful to the Decree holder. Moreover, as per Ex.P1 Devandla

Peda Obulesu settled Ac.1.40 cents covered under Survey

No.276/1A in favour of B. Sampoorna. But the Decree holder filed

Ex.P3 which shows that the said extent is in the name of Devandla 11

Obulesu. Thus, the Decree holder failed to prove that the said extent of land was in the name of Devandla Peda Obulesu.

15.The learned counsel for the Decree holder relied upon the decisions (1) in Patnana Venkataramana Vs. Mutnuruthe decisions (1) in Patnana Venkataramana Vs. Mutnuru

Venkataramana reported in 2007 (1) ALD 104 and (2) in KondaVenkataramana reported in 2007 (1) ALD 104 and (2) in Konda

Subbaiah Vs. Yedoti Kamalakshaiah reported in 2008 (6) ALD 290.Subbaiah Vs. Yedoti Kamalakshaiah reported in 2008 (6) ALD 290

In the above citations, though the Decree holder adduced evidence regarding the means of Judgment debtor, the Judgment Debtor failed to prove that he has no means and he is unable to discharge the debt. But in the present case the Judgment debtor has not remained as spectator and he also adduced evidence and produced documents to disprove the case put forth by the Decree holder. Thus, the facts in the cases relied upon by the learned counsel for the Decree holder and the facts in the present case are different. So, the citations have no application to the present case.

16.In Pandugayala Subbarayadu Vs. Kattamuri Sri

Krishna reported in 2008(2) L.S. 212 their lordships have

laid down that “Courts are expected to be cautious while

making order of arrest in execution of decree since it

involves personal liberty and it is necessary for Courts

whether other modes of recovery are available to

Decree Holder and whether it is absolutely necessary

to order arrest for recovery of decretal amount.”

In view of above citation, since the arrest of the JudgmentIn view of above citation, since the arrest of the Judgment debtor involves personal liberty, the Decree holder is not entitleddebtor involves personal liberty, the Decree holder is not entitled for the relief of arrest of Judgment Debtor automatically withoutfor the relief of arrest of Judgment Debtor automatically without any proof that despite having means the Judgment Debtor failed toany proof that despite having means the Judgment Debtor failed to discharge the decretal debt. As already discussed the evidence ofdischarge the decretal debt. As already discussed the evidence of

PW1 is not consistent, and convincing.The documents filed by thePW1 is not consistent, and convincing.The documents filed by the

Decree holder are not inconsonance with one another. Decree holder are not inconsonance with one another.

In view of above reasons, this Court holds that the decree- holder failed to prove that despite having means, the Judgment debtor refused or neglected to discharge the decretal debt. So, the

Decree holder is not entitled for relief as prayed for. The point is answered accordingly.

17. . Point No.2:17Point No.2: To what relief To what relief ? ?

In the result, the petition is dismissed. Under theIn the result, the petition is dismissed. Under the circumstances, there is no order as to costs. . circumstances, there is no order as to costs

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in the open Court, this the 20 th day of September, 2017.

SENIOR CIVIL JUDGE

KAVALI

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Decree holder

PW1: Karnati Malakondaiah.

For Judgment Debtor

RW1: Devendla Peda Obulesu.

Documents Marked For Decree holder: Ex.P1: Certified copy of settlement deed, dated 10.6.2011.

13

Ex.P2: Copy of 1B namuna dated 9.1.2015. Ex.P3: 1B extract obtained through Meeseva. Ex.P4: Adangal for the fasli 1426 obtained through Meeseva. Ex.P5: Adangal for the fasli 1426 in respect of S.No.276-1A obtained through Meeseva.

For Judgment Debtor: Ex.R1: Copy of adangal in respect of S.No.276-1A for the fasli 1426

dated 20.7.2016 obtained through Meeseva.

Ex.R2: Copy of adangal in respect of S.No.252-3B for the fasli 1426

dated 20.7.2016 obtained through Meeseva.

Ex.R3: Aadhar card of Judgment Debtor.

S.C.J. Kavali.

IN THE COURT OF THE SENIOR CIVIL JDUGE: KAVALI.

Present: Smt.N.Santhi,

Senior Civil Judge, Kavali.

Thursday, this the 21st day of September, 2017.

I.P.No. 27 of 2011

Between

Divi Malyadri, S/o Late Malakondaiah, aged about 45 years, Hindu, residing at Karukolupalem Village, Gattupalli Post,

Jaladanki Mandal, SPSR Nellore District....Petitioner

And

1) Chinde Narasinga Rao, S/o Late Kondaiah, aged about 50 Years, Hindu, Business and Agriculturist, Residing at Chinnapavani Village and Post, Lingasamudram Mandal, Prakasam District.

2) Purimitla Bramhaiah, S/o Ramaiah, aged about 50 years Hindu, Business and Agriculturist, Residing at Chinnapavani Village and Post, Lingasamudram Mandal, Prakasam District.

3) Dama Mohan Rao S/o Subbaramaiah, Aged about 35 Years, Hindu, Cultivation, residing at Chinnapavani Village and Post Lingasamudram Mandal, Prakasam District.

4) Dama Sreenu, S/o Subbaramaiah, Aged about 38 Years, Hindu, Cultivation, residing at Chinnapavani Village and Post Lingasamudram Mandal, Prakasam District.

5) Manager, Andhra Pragathi Grameena Bank, Chinthalapalem Village, Gattupalli Post, Jaladanki Mandal, SPSR Nellore District.

6) Navuluri Musalaiah (Died) S/o Veereiah, aged about 75 years, Hindu, residing at Karukolupalem Village Gattupalli Post, Jaladanki Mandal, SPSR Nellore District.

7) Navuluri Venkateswarlu S/o Musalaiah, aged about 45 years, Hindu, Business at Karukolupalem Village Gattupalli Post, Jaladanki Mandal, SPSR Nellore District. (Added as per orders in I.A.No.889/2016

Dated 14-07-2017) ... Respondents.

This Petition is coming on 18-9-2017 before me for final hearing in the presence of Sri K. Srinivasulu Reddy, Advocate for Petitioner and of Sri M. Jakeer Hussain, Advocate for respondents 2 and 4 and of Sri G.Rajendra Vara Prasad, Advocate for Respondent No.7, Respondents 1, 3 and 5 remained exparte and Respondent No.6 died and after hearing the arguments and on perusing the material on record and the matter having stood over for consideration till this day, this Court delivered the following:

O R D E R

The Petitioner filed this petition under section 10 of Provincial

Insolvency Act to adjudicate him as an insolvent.

2.The averments of the petition in brief are:

The Petitioner was cultivating the lands of others on lease and eking out his livelihood. The petitioner is having one son and daughter. For the tenanted lands and for family expenses and marriage of his daughter, he borrowed amounts form respondents and executed promissory notes. The petitioner did not borrow any amount from the 6th respondent Navuluri

Musalaiah and on account of some mediation in respect of some other debt of another, as a security, he executed promissory note in favour of the 6th respondent for Rs.70,000/-. Actually the petitioner did not receive any consideration under the above said promissory note from the 6th respondent.

The petitioner incurred heavy loss in the tenanted lands continuously for some years. On account of that the petitioner could not discharge his debts. He spent some amount towards his daughter’s marriage expenses .

As continuously incurred loss on tenanted agriculture, he almost stopped the cultivation of tenanted lands. The petitioner is also suffering from ill- health. So he is not doing any work, and whenever the agricultural cooli work is available, then only he is going to cooli work. On account of the above said reasons, the petitioner could not discharge the debts of the respondents. The debts are more than the value of the ‘B’ schedule property .The 6th respondent filed a suit against the petitioner and obtained a decree and also filed E.P.No.2/2006 in O.S.No.2/2006 for recovery of

Rs.1,14000/- by seeking arrest of the petitioner. The other respondents are threatening with dire consequences for their debts. Hence, the petition.

3.During the pendency of the Insolvency Petition the 6th respondent died on 20-06-2016. During his life time he executed a registered will in favour of his son 7th respondent herein on 24-05-2012, bequeathing his immovable property in a sound and disposing state of mind. After his death the property covered under the said will came in to possession of 7th respondent. Hence the 7th respondent is added as legal heir of deceased 6th respondent. (Added as per orders in I.A.No.889/2016

dated 14-07-2017)

4.The respondents 2 and 4 filed counter denying the averments in the petition. It is their contention that the petitioner is able to discharge the debts of respondents. There are no valid and tenable grounds to declare the petitioner as an insolvent. Hence the petition is liable to be dismissed with costs.

5.The 6th respondent filed counter denying the averments in the petition. It is the contention of the 6th respondent that the 1st respondent is the father-in–law of petitioner. The 2nd respondent Kurimitla

Brahmaiah is the henchman of 1st respondent. The respondents 3 and 4 by name Dama Mohan Rao and Dama Sreenu respectively are own brothers and sons of own sister–in–law of 1st respondent and both are brother-in- laws of petitioner. The respondents 1 to 4 are the henchmen of petitioner.

The petitioner never borrowed any amounts shown in the “A” schedule from the respondents 1 to 4. The respondents 1 to 4 colluded with creditors of the petitioner. The petitioner adopted false theory and got filed this false insolvency petition.

The petitioner got landed properties in his name. The same are suppressed. Without mortgaging the lands before 5th respondent it is not possible to obtain loan by the petitioner. The mortgage lands belongs to the petitioner were not shown in this I.P .It clearly discloses that the petitioner suppressed the true facts and got filed this false petition to declare him as an insolvent.

The petitioner got one daughter by name Parvathi given to one

Ramachandraiah of Medarametlapalem, Lingasamudram Mandal, Prakasam

District. The son-in-law of the petitioner is working as teacher. At the time of performing the marriage of petitioner’s daughter, he presented a cash of

Rs. 10,00,000/- to his son in law. The petitioner got one son by name

Parameswara Rao and he is studying B. Tech., in Mekapati Engineering

College, at Udayagiri. The petitioner paid the fee and expenses of

Rs.1,00,000/- per year to Mekapati Engineering college, at Udayagiri.

6.The petitioner got two bulls worth Rs.80,000/-. He got one bullock cart value of Rs.40,000/- .He got three she buffaloes worth

Rs.1,00,000/- .He got motor cycle worth Rs.60,000/- .He got oil engine worth Rs.35,000/-.The petitioner got landed properties in his name. At the time of filing suit this respondent filed a petition before this Honourable court in I.A.11/2006 in OS.2/2006 to attach the landed properties which belongs to the petitioner and his family members and the same was attached .

The petitioner sold an extent of Ac.11-87 cents under a registered sale deed dated 14-9-2005 in favour of Koganti Aruna w/o Venkata Krishna.

The petitioner is getting income from all sources i.e. agriculture, milk business and seasonable business .He is getting income of Rs.15,00,000/- per year. The petitioner got sufficient means to discharge the debt of this respondent. Inspite of means the petitioner suppressed the true facts and got filed this petition to declare him as an insolvent to avoid arrest in

E.P.2/2010 in O.S.2/2006 on the file of this Honourable court. The petitioner

is well versed litigant and he is rich man in that village.

7.This respondent filed E.P.No.2/2010 in O.S.2/2006 on the file of this court for recovery of the E.P. amount from this petitioner. Thereafter this petitioner contested that E.P. On merits this court issued arrest warrant to the petitioner. After issuing of the arrest arrant to the petitioner for avoiding the arrest, the petitioner adopted the false theory and got filed this false petition .

The petitioner did not come to court with clean hands and the petitioner suppressed the true facts .He got sufficient means to discharge the amount in E.P.No.2/2010 . The petition is not maintainable under law and it is liable to be dismissed.

8. On behalf of Petitioner, PW.1 was examined. No evidence was adduced on behalf of R2 and R4. RW1 was examined on behalf of R7. No documents were marked.

9.Heard Arguments.

10.Now the points for consideration are:

1. Whether the petitioner can be adjudicated as an insolvent as prayed for?

2.To what relief ?

11. POINT NO.1:- Whether the petitioner can be adjudicated as an insolvent as prayed for?

The learned counsel for the petitioner argued that the petitioner took the lands on lease and borrowed amounts from R1 to R4 and due to drought conditions, he could not get profits and he is unable to discharge the debts and his assets are less than debts,so, the petitioner is entitled to be adjudicated as an insolvent.

12.On the other hand, the learned counsel for R2 argued that the petitioner did not approach the Court with clean hands and he has got some other properties,but he failed to show those properties,so, the petitioner is not entitled to be adjudicated as an insolvent. On that, the learned counsel for the petitioner in reply argued that though the 7th respondent is contending that the petitioner is having properties, he did not file any documents to show that the petitioner is having properties ,so the petitioner has to be adjudicated as an insolvent.

13.The petitioner filed this petition for declaring him as an insolvent. Merely because the respondents failed to produce documents in proof that the petitioner is having properties, the petitioner is not entitled to be adjudicated as an insolvent. The burden is on the party who would fail if no evidence at all were given on either side. So, having filed the petition to declare him as an insolvent, the initial burden is on the petitioner to prove that he got debts and he is unable to discharge the debts and his liabilities are more than the assets.

14.In order to prove his case, the petitioner himself examined as

PW1. He deposed about his case as set out in the petition. According to him, he was cultivating the lands of others on lease and he incurred heavy loss in the tenanted lands continuously for some years and on account of that he could not discharge the debts. It is further his evidence that he spent some amount towards his daughter's marriage and he stopped cultivation of tenanted lands. He is suffering from ill-health and unable to do any work and on account of that he could not discharge the debts of respondents.

15.On the other hand, the 7th respondent himself examined as RW1 and deposed about his contention,as put forth in the counter. He furnished the details of the properties owned by the petitioner. Any way, he did not file any document in proof of his contention. But as already discussed the burden is on the petitioner to prove his liabilities and assets.

16.The essential ingredient which has to be proved by a person who is seeking to be declared as an insolvent is existence of debt as shown by him in the petition schedule . The petitioner has shown the debts said to have been due to R1 to R6. The respondents 1, 3 and 5 remained exparte.

The respondents 2 and 4 though filed counter did not adduce evidence.

The 6th respondent died and his legal representative was impleaded as R7.

17.There is no dispute that the petitioner is indebted to R6 and R6 also filed suit and obtained decree against petitioner. It is also an admitted fact that R6 filed Execution petition for recovery of the debt due by the petitioner. Thus, the evidence discloses the existence of debt due by the petitioner in favour of R6. Regarding the debt due by the petitioner towards

R1 to R5 no evidence either oral or documentary has been produced by the petitioner. Though the petitioner has shown the debts due to R1 to R5 under the promissory notes, he did not even mention the dates of promissory notes. Admittedly, no suits were filed by R1 to R5 calling upon the petitioner to discharge their debts. Mere oral testimony that he is indebted to the respondents 1 to 5 is not sufficient. The petitioner has to substantiate his contention by producing some evidence. But absolutely no evidence was produced by the petitioner in proof of the debts due by him in favour of R1 to R5. Thus, the evidence discloses the existence of debt in favour of R6 only.

18.In order to be declared as an insolvent apart from proof of existence of debt, the petitioner has to prove that his assets are less than the liabilities. It is the evidence of PW1 that he took the lands on lease and cultivated for some years and sustained heavy loss. But the evidence of

PW1 does not disclose as to whose lands he cultivated on lease. The evidence of PW1 is silent as to the extent of lands he cultivated on lease.

His evidence is further silent as to the lease amount. His evidence does not disclose who is his landlord. Thus, absolutely no details have been furnished by the petitioner regarding cultivating the lands on lease.

Regarding sustaining of loss except the oral testimony, there is no other evidence.

19.The learned counsel for the petitioner argued that RW1 admitted that the drought conditions were prevailed in Jaladanki Mandal and thus the case put forth by the petitioner was proved. There is no force in the argument of learned counsel for the petitioner. When asked, RW1 deposed that 'it is true that drought conditions are prevailing in Jaladanki

Mandal since four years.” RW1 was examined on 13.9.2014. So, if his evidence is considered drought conditions are prevailing since 2014 .But the present petition was filed by the petitioner in the year 2011 itself. But no evidence was produced in proof that prior to filing of the petition, drought conditions were prevailing and further failed to prove that he incurred loss. Thus, absolutely no evidence was produced by the petitioner in proof that he took the lands on lease and incurred heavy loss, except bare and vague testimony.

20.It is further the contention of the petitioner that apart from the properties shown in the petition schedule, he has no other properties. As admitted by petitioner, he performed the marriage of his daughter. He further admitted that he gave Ac.3.00 of land to his daughter towards “Pasupu Kumkuma. In order to perform the marriage, the petitioner has to spend lot of money. But the evidence of petitioner is silent as to the expenses incurred by him for performing the marriage of his daughter.

Moreover, the petitioner intentionally failed to say when he performed the marriage of his daughter. It is further the evidence of the petitioner that his son is studying Engineering in a private College. In order to provide education in a private college, one has to spend lot of money. Though the petitioner came up with a contention that his son got seat on merit,no evidence was produced in proof of it. In the absence of any such proof, it has to be presumed that the petitioner is providing education to his son by spending money. When he is able to provide education to his son in a private Engineering college, it can be presumed that he is in affluent position. The petitioner admitted that he sold Ac.11.87 cents to Koganti

Aruna on 14.9.2005. But the petitioner did not come up with any evidence as to what happened to the said sale proceeds. It is the evidence of petitioner that he obtained crop loan from R5-Bank. He deposed that he cannot say the details of the property mortgaged with the Bank for obtaining loan. Thus the evidence of PW1 discloses that he has got some other lands which he mortgaged with R5-Bank for obtaining the loan. But he has not shown those properties. Thus, the evidence discloses that the petitioner has not come to the Court with clean hands and he suppressed his assets. Moreover as already discussed, except the bare and vague oral testimony of the petitioner, no consistent evidence was produced regarding his debts, assets and liabilities.

21.IN KO T A SIV AR AM A P R ASAD A R AO V/S SH AIK M

AST ANV ALI reported in 2014 (3) ALT 602 His Lordship held

that:

“the final adjudication should be based on the conclusive the final adjudication should be based on the conclusive evidence adduced by the debtor-petitioner and not on evidence adduced by the debtor-petitioner and not on mere prima facie evidence. If a debtor is declared as an mere prima facie evidence. If a debtor is declared as an insolvent on mere prima facie evidence, it leads to insolvent on mere prima facie evidence, it leads to anomalous and incongruous situations where every debtor anomalous and incongruous situations where every debtor is likely to avoid payment of debts by committing fraud on is likely to avoid payment of debts by committing fraud on the creditors. As adjudication of a debtor as an insolvent the creditors. As adjudication of a debtor as an insolvent result in serious adverse consequences to the creditors, result in serious adverse consequences to the creditors, the legislature envisaged that such adjudication must be the legislature envisaged that such adjudication must be based on conclusive evidence and not on prima facie based on conclusive evidence and not on prima facie evidence.” evidence.”

22. In the present case leaving apart the conclusive evidence, the petitioner did not even choose to produce prima facie evidence in proof of his assets and liabilities. Except the bare and vague oral testimony of PW1, no consistent and convincing evidence was produced by the petitioner in proof of his assets. No party is entitled for any relief without proof of his case. As already discussed, the petitioner failed to prove his liabilities towards R1 to R5. The petitioner failed to prove his assets. On the other hand, the petitioner is guilty of suppression or his assets. Hence, in view of above reasons, this Court held that the petitioner is not entitled to be adjudicated as an insolvent. This point is answered accordingly.

23.Point No.2:- To what relief?

In the result, the petition is dismissed. Under the circumstances, there is no order as to costs.

Paras 1 to 10 typed to my dictation by the Typist and Paras 11 to 23

dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court, this the 21st day of September, 2017.

Senior Civil Judge,

Kavali.

//Appendix of evidence//

(Witnesses Examined )

For Petitioner:

PW1: Divi Malyadri.

For Respondents:

RW1: Navuluri Venkateswarlu.

Documents Marked

NIL

S.C.J., Kavali.

IN THE COURT OF THE SENIOR CIVIL JDUGE: KAVALI.

Present: Smt.N.Santhi,

Senior Civil Judge, Kavali.

Thursday, this the 17th day of August, 2017.

I.P.No. 25 of 2011

Between

Kareti Madava s/o Malakondaiah Hindu, Aged about 34 yrs Washer man by profession Resident of Iskapalem village Saipet post, Kondapuram Mandal S.P.S.R Nellore District .....… Petitioner.

And

Yarra Narasaiah S/o Kotaiah Hindu, Aged about 58 yrs Finance business Resident of Makinavarapalem village Saipet post, Kondapuram Mandal

S.P.S.R Nellore District. ..... Respondent.

The Petitioner filed this petition under section 10 of Provincial Insolvency Act to adjudicate him as an insolvent.

Petition filed on : 26-09-20110.

A fixed Court Fee of Rs.10/- is herewith paid under Schedule I,

Article II of APCF & SV Act.

This Petition is coming on 7-8-2017 before me for final hearing in the presence of Sri K.Malakondala Rao, Advocate for Petitioner and of Sri

G.Rajendra vara Prasad, Advocate for Respondent this court doth order and decretal order:

1. that the petition be and the same is hereby dismissed;

2. that there is no order as to costs.

Typed to my dictation corrected and pronounced by me in open Court, this the 17th day of August, 2017.

Senior Civil Judge,

Kavali.

//Memo of Costs// ( costs memo not filed by either side)

Nil

S.C.J. Kavali.

21.09.2017:

Notice given to both side counsels. Orders pronounced. (Vide separate order).

In the result, the petition is dismissed.Underthe circumstances, there is no order as to costs.

S.C.J