Sri O.venkata Nageswara Rao

1 MOP 887/2016 VII ADJ/VSP

THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL VII ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum XI Addl. District Judge, Visakhapatnam.

FAC VII Additional District Judge,(FTC), Visakhapatnam.

Monday, the 18th day of February, 2019

MOP No.887/2016

Between:

1). Munnilal, S/o.Late Vishwanath, Hindu,aged 47 years, Employee, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam).

2). Shanti, W/o.Munnilal, Hindu, aged 43 years, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam).

3). Inda, D/o.Munnilal, Hindu, aged 43 years, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam). …Petitioners And:

1). Swarnapudi Ganesh, S/o.Prakasam, Hindu, aged 27 years, R/o/D.No.25-8- 228/31, Kurpam Market, Visakhapatnam & Driver of Loader Machine bearing No.AP-31 BE-3384.

2). M/s. A.B Associates, represented by its Managing Partner, Abdul Bari, S/o.Shaik Imam, Muslim, Aged 55 years, R/o.MIG19, Marripalem, VUDA Layour, Visakhapatnam [Owner of AP-31 BE-3384].

3). M/s. Reliance General Insurance Company Limited, represented by its Manager, Dwarakanagar, Visakhapatnam.

...Respondents

This petition has come up on 13.02.2019 for final hearing before me in the presence of Sri Sayyed Abdul Razak, Advocate for Petitioners and of Sri Syed Moinuddin, Advocate for Respondents 1 and 2 and Sri D.Simhadry, Advocate for 3rd respondent, and the matter having stood over for consideration till this day, this court made the following:

:: JUDGMENT ::

1.The petition is filed under section 166 of Motor Vehicles Act, 1988

R/w Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.10,00,000/- (Rupees Ten Lakhs Only) on account of the death of deceased Ramshreya 2 MOP 887/2016 VII ADJ/VSP

Kumar in an accident occurred on 05.02.2010 at 5.30 A.M, near R.J.Peta,

L.Kota Mandal, Vizianagaram District, due to the negligence of the 1st respondent while operating loader bearing No.AP-31 BE-3384 in rash and negligent manner.

2.The brief averments in the petition are as follows:

(a). The deceased Ramshreya Kumar is the son of petitioners 1 and 2 and brother of 3rd petitioner. He was working in 2nd respondent company and getting Rs.4,500/- per month towards wage. The 1st respondent is the operator of offending loader bearing registration No.AP-31 BE-3384 belongs to 2nd respondent company. The deceased was working under a contractor by name Atturi Ramanaraju, who had taken vehicles from the 2nd respondent company. The deceased was working as a cleaner of the offending vehicle.

Due to the negligent driving of 1st respondent the deceased died on the spot.

(b). On receiving the report of the Contractor, the S.H.O, L.Kota

Police Station registered FIR in Cr.No.8/2010 under Section 304-A of IPC. After completion of investigation charge sheet was filed against 1st respondent

before Judicial First Class Magistrate, Kothavalasa. The accident was occurred

due to the negligence of the 1st respondent, resulting death of Ramshreya

Kumar. Due to sudden demise of Ramshreya Kumar the petitioners being the parents and sister suffered mental agony and loss of earning source.

Therefore, the petitioner prays to award compensation of Rs.10,00,000/-.

3.The brief averments in the counter filed on behalf of 2 nd

respondent, which was adopted by the 1 st respondent are as follows:

The deceased Ramshreya Kumar was working as a cleaner on monthly salary of Rs.5,000/- with Batta of Rs.50/- per day. The 1st respondent is working in the 2nd respondent company as operator of loader-cum-driver.

The vehicle was duly insured with 3rd respondent. The accident occurred on 05.02.2010 within coverage period. The premium of Rs.37,453/- was collected 3 MOP 887/2016 VII ADJ/VSP and for covering the risk of paid driver and cleaner a sum of Rs.4,000/- was collected under IMT Endorsement No.17. The compensation amount both special and general damages are excessive. The petitioners have to prove the occurrence. The interest claimed is excessive.

4.The brief averments in the counter filed on behalf of 3 rd respondent are as follows:

(a). The allegations mentioned in the petition that the accident was occurred due to the 1st respondent while operating the offending loader, resulting death of Ramshreya Kumar and that both deceased and 1st respondent were working in 2nd respondent company have to be strictly proved by the petitioners. The petitioners have to prove eligibility of 1st respondent and fitness certificate of offending loader at the time of occurrence. The petitioners have to prove that the accident occurred within the terms and conditions mentioned in the policy to claim compensation. The deceased is not permissible under law to work with a machine which is exclusively to be used for construction work and that the claim petition is not maintainable. If at all the petitioners are entitled they have to claim from the respondents 1 and 2. The compensation claimed by the petitioners is excessive. There was negligence on the part of deceased and 1st respondent contributing the accident.

(b). The respondent is not aware about the registration of the FIR against the 1st respondent. The owner of the vehicle and also the S.H.O failed to comply in furnishing the copies of documents in compliance of Section 158 (6) of M.V.Act. The interest claimed in this case is excessive. Therefore, the respondent No.3 prays to dismiss the petition.

5.On consideration of averments of the petition and counter, the following issues were framed for trial:

4 MOP 887/2016 VII ADJ/VSP

1. Whether the accident occurred due to the rash and negligent driving of the Loader vehicle bearing registration No.AP-31 BE- 3384, resulting the death of Ramshreya Kumar?

2. Whether the petitioners are entitled to any compensation and if so to what amount from which of the respondents?; and

3. To what relief?

6.At the time of trial, the 1st petitioner himself examined as P.W.1, besides examined S.Bangarraju as P.W.2 and marked Exs.A.1 to A.9. On behalf of respondents the 1st respondent himself examined as R.W.1 and marked no documents. On behalf of 2nd respondent P.Rangarao Phani examined as R.W.2 and marked Ex.B.1. On behalf of 3rd respondent K.Bangarayya Executive Legal of 3rd respondent examined as R.W.3 and marked Exs.B.2 to B.5.

7.ISSUE No.1:

The learned counsel for the petitioners and respondents reiterated their contentions mentioned in the petition and counter during the course of arguments. The petitioners claimed compensation of Rs.10,00,000/- on account of the death of son of the petitioners 1 and 2 and brother of 3rd petitioner by name Ramshrerya Kumar in an accident occurred on 05.02.2010 at 5.30 A.M, near R.G.Peta, L.Kota Mandal, Vizianagaram District. Therefore, the petitioners have to prove that the accident occurred due to the negligence of the 1st respondent while operating the offending Loader bearing

Registration No.AP-31 BE-3384 in rash and negligent manner, resulting the death of Ramshreya Kumar, who was working as cleaner to the said vehicle.

8.In order to prove that the accident was occurred due to the negligence of the 1st respondent while operating offending Loader, the 1st petitioner himself examined as P.W.1, besides examined P.W.2, who also worked in 2nd respondent M/s.A.B Associates. R.W.2 being the Manager of 2nd respondent stated that the 1st respondent was operator of the offending loader 5 MOP 887/2016 VII ADJ/VSP and to the deceased was the cleaner. The evidence of P.W.2, R.Ws.1 and 2 shows that the deceased was working as cleaner to the offending loader being operated by 1st respondent. They have further stated that while the offending loader being operated by the 1st respondent in rash and negligent manner, the deceased fell down and died on the spot.

9.The petitioners filed Ex.A.1 Copy of FIR in Cr.No.8/2010 of L.Kota

Police Station, besides filing Ex.A.5 Copy of the Charge Sheet against the 1st respondent before Judicial First Class Magistrate, Kothavalasa evidenced the fact of accident occurred due to the negligence of 1st respondent. Ex.A.3

Inquest Report, Ex.A.2 Postmortem Certificate shows that the deceased

Ramshreya Kumar died in an accident on the spot. Ex.A.4 report of M.V.I shows that there is no mechanical defect to offending vehicle (Loader). Therefore, it can be safely conclude that the accident occurred due to the negligence of 1st respondent while operating the offending loader, resulting death of

Ramshreya Kumar.

10.The learned counsel for the 3rd respondent argued that the deceased was not a cleaner and that the insurance policy Ex.A.6 will not cover to the claim of petitioners and further the offending loader cannot move without any motor vehicle and that the 3rd respondent is not liable to pay compensation. The learned counsel for the 1st and 2nd respondent and also petitioner argued that the deceased worked as a helper-cum-cleaner to the offending loader at the time of accident, resulting the death of him. In Ex.A.6

Policy covers driver, cleaner/conductor under IMT17.

11.P.W.2 being the co-worker and R.W.3 being the manager and also

R.W.1 being the operator of loader have categorically stated that the deceased was working as helper/cleaner to offending loader. R.W.2 categorically stated that both 1st respondent and deceased are their workers and that the wages 6 MOP 887/2016 VII ADJ/VSP are being paid to them. Therefore, the plea taken by the 3rd respondent that the deceased was not a cleaner of the offending loader is not correct.

12.It is an admitted fact that the offending Loader comes under Motor vehicle’s Act and that it was registered bearing No.AP-31 BE-3384. If the offending loader was not registered, the contention of the learned 3rd respondent counsel can be considered. Whereas the offending loader was registered and that the premium was also paid. Both for loader and also to cover the paid driver, cleaner under IMT-17, which is clearly mentioned in

Ex.A.6 Policy. Therefore, the plea taken by the 3rd respondent that there is no cleaner to the offending loader and his liability is not covered under Ex.A.6 is not correct. Therefore, this issue is answered in favour of petitioners.

13.ISSUE No.2:

In view of the finding given in Issue No.1, the petitioners are entitled just and reasonable compensation as per the ratio of negligence decided above. In order to determine the just and reasonable compensation, it is necessary to determine the age, income of the deceased Ramshreya Kumar, loss of earnings, funeral expenses, love and affection and transportation.

I. AGE OF THE DECEASED:

As per Ex.A.1 FIR, Ex.A.2 Postmortem Certificate, Ex.A.3 Inquest

Report and Ex.A.5 Charge Sheet the age of the deceased was shown as 22 years. In order to disprove the said fact that the deceased was aged person than mentioned in Exs.A.1 and A.3 and A.5 no document is filed. Therefore, it can be safely conclude that the age of the deceased Ramshreya Kumar was 22 years as on the date of accident.

II. INCOME OF THE DECEASED:

Both P.Ws.1 and 2 so also R.W.2 have stated that the deceased

Ramshreya Kumar was being paid wages of Rs.5,000/- per month. Ex.B.1 vouchers evidenced the said fact. Contrary to that the respondent No.3 did not 7 MOP 887/2016 VII ADJ/VSP choose to file any document. Therefore, it can be said that the deceased was earning Rs.5,000/- per month as wage being the worker of 2nd respondent.

III. LOSS OF DEPENDENCY:

The petition is filed by the parents and sister of the deceased. The petitioners 1 and 2 are aged 47 and 43 years by the time of filing of the petition. The 3rd respondent was shown as an employee in the petition itself.

However being the class-1 heir she is entitled share in the compensation. The annual income of deceased was Rs.60,000/-.

Therefore, the relevant multiplier applicable as per the case in

Smt.Sarala Varma Vs.Delhi Transport Corporation reported in 2009

ACJ 1298 SC is ‘18’. Therefore, loss of dependency is Rs.40,000/- x 18 = 7,20,000/-.

IV. LOSS OF LOVE AND AFFECTION:

The deceased Ramshreya Kumar has got 22 years old. He was unmarried. Therefore, it is just and necessary to award consortium of

Rs.45,000/- as against Rs.50,000/- claimed by the petitioner.

V. FUNERAL EXPENSES:

Consideration of age of the deceased and circumstances it is just and reasonable to award a sum of Rs.15,000/- towards funeral expenses considering the circumstances of the case as against the claim of Rs.20,000/-.

VI. TRANSPORTATION:

Though the petitioners claimed Rs.20,000/- towards transpiration but the deceased died on the spot and that it is just and reasonable to award

Rs.6,000/-.

This point is answered accordingly in favour of petitioners.

14.POINT No.3: In view of the afore mentioned reasons, the petitioners are entitled compensation as follows:- 8 MOP 887/2016 VII ADJ/VSP

I. Loss of Dependency a sum of Rs.7,20,000/-

II. Loss love and affectionRs. 45,000/-

III. Funeral ExpensesRs. 15,000/-

IV. Transportation Rs. 6,000/- ---------------------

TotalRs.7,96,000/- ---------------------

Coming to the liability aspect, the 1st respondent being the operator of the offending Loader and the 2nd respondent being the owner and 3rd respondent being the insurer are liable to pay the compensation, as the accident occurred due to the negligence of 1st respondent. Therefore, respondents 1 to 3 are liable to pay the compensation jointly and severally.

The petitioners 1 and 2 are entitled Rs.3,25,000/- each. The 3rd petitioner is entitled Rs.1,46,000/-. Therefore, the petition is to be allowed accordingly.

15.In the result, the petition is allowed partly with proportionate costs, by directing the respondents to pay compensation amount of

Rs.7,96,000/- with interest at 6% from the date of petition. The 3rd respondent is directed to deposit the entire amount within a month. The petitioners 1 and 2 are entitled Rs.3,25,000/- each. Out of which they are permitted to withdraw

Rs.2,00,000/- each. The remaining amount shall be kept in any nationalized bank for a period of two years. The 3rd petitioner is entitled Rs.1,46,000/-. Out of which she is permitted to withdraw Rs.46,000/-. The remaining amount shall be kept in any nationalized bank for a period of two years. Advocate Fee fixed at sum of Rs.2,000/-.

Typed to my dictation to the Stenographer Gr.II, corrected and pronounced by me in the open Court, this the 18 th day February 2019.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.

9 MOP 887/2016 VII ADJ/VSP

APPENDIX OF EVIDENCE

No. of witnesses Examined on behalf of

Petitioners: Respondents: PW.1: Munnilal. R.W.1: S.Ganesh PW.2: S.Bangara Raju. R.W.2: P.Ranga Rao. R.W.3: K.Bangaraiah

Documents Marked on behalf of

Petitioners: Ex.A1/ –: Attested Rue Copy of FIR. Ex.A2/ –: Attested Copy of Postmortem Certificate. EX.A3/ –: Attested Copy of Inquest Report. Ex.A4/ –: Attested Copy of M.V.I Report. Ex.A5/ –: Attested copy of Charge Sheet. Ex.A6/ –: Attested Copy of Policy Copy of vehicle. Ex.A7/ –: Driving Licence. Ex.A8/ –: Registration Certificate. Ex.A9/17.06.2013: Original Order in PLAC.175/11.

Respondents: Ex.B1/ –: Original Salary vouchers for the month of December 2009 and January 2010. Ex.B2/05.02.2018: Office Copy of Legal Notice. Ex.B3/13.02.2018: Postal Acknowledgement. Ex.B4/ –: Two Returned Covers. Ex.B5/ –: Reply Notice.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.

10 MOP 887/2016 VII ADJ/VSP

THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL VII ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum XI Addl. District Judge, Visakhapatnam.

FAC VII Additional District Judge,(FTC), Visakhapatnam.

Monday, the 18th day of February, 2019

MOP No.887/2016

Between:

1). Munnilal, S/o.Late Vishwanath, Hindu,aged 47 years, Employee, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam).

2). Shanti, W/o.Munnilal, Hindu, aged 43 years, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam).

3). Inda, D/o.Munnilal, Hindu, aged 43 years, R/o.D.No.74, Chandravathi Street, Chandravathi Village, Choubepur, Varanasi, Uttar Pradesh. (Presently residing at D.No.35-36-33, Gavara Kancharapalem, Visakhapatnam). …Petitioners And:

1). Swarnapudi Ganesh, S/o.Prakasam, Hindu, aged 27 years, R/o/D.No.25-8- 228/31, Kurpam Market, Visakhapatnam & Driver of Loader Machine bearing No.AP-31 BE-3384.

2). M/s. A.B Associates, represented by its Managing Partner, Abdul Bari, S/o.Shaik Imam, Muslim, Aged 55 years, R/o.MIG19, Marripalem, VUDA Layour, Visakhapatnam [Owner of AP-31 BE-3384].

3). M/s. Reliance General Insurance Company Limited, represented by its Manager, Dwarakanagar, Visakhapatnam.

...Respondents

The petition is filed under section 166 of Motor Vehicles Act 1988 R/W Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.10,00,000/- (Rupees ten Lakhs Only) for the death of deceased Ramshreya Kumar on account of the accident occurred on 05-02-2010 at 5.30 A.M., Near R.J.Peta, L.Kota Mandal, Vizianagaram, due to the dash of offending vehicle driven by 1st respondent and directing the respondents to pay the said amount of compensation together with interest 18% per annum and for costs of the petition.

Amount claimed is Rs.10,00,000/- and a Court fee of Rs.9,360/- is paid under rule 475(1) of A.P.M.V. Rules.

11 MOP 887/2016 VII ADJ/VSP

This petition has come up on 13.02.2019 for final hearing before me in the presence of Sri Sayyed Abdul Razak, Advocate for Petitioners and of Sri Syed Moinuddin, Advocate for Respondents 1 and 2 and Sri D.Simhadry, Advocate for 3rd respondent, and the matter having stood over for consideration till this day, this court doth order; and

:: D E C R E E ::

1. that the petition be and the same is hereby allowed partly;

2. that the respondents 1 to 3 do pay to the petitioners a sum of Rs.7,96,000/- (Rupeesseven lakhs ninety six thousandonly) towards compensation with interest 6% per annum from the date of the petition ie., dt:12-09-2011;

3. that the 3rd respondent be and hereby is directed to deposit the entire compensation amount within one month;

4. that the petitioners 1 and 2 be and hereby entitled Rs.3,25,000/- each and they are permitted to withdraw a sum of Rs.2,00,000/- each and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of two years;

5. that the 3rd petitioner be and hereby is entitled for a sum of Rs.1,46,000/- and she is permitted to withdraw Rs.46,000/- and the remaining amount shall be kept in any nationalized bank for a period of two years;

6. that the 3rd respondent do also pay to the petitioners a sum of Rs.9,751/- towards proportionate costs of the petition.

Given under my hand and the seal of this Court on this the 18th day of February, 2019.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC VII Addl. District Judge, (Fast Track Court), Visakhapatnam.

MEMORANDUM OF COSTS

For Petitioners For Respondents

No costs memo is filed. Stamp on Petition Rs. 9,360-00 Stamp on vakalat Rs. 2-00 Stamp on process Rs. 360-00 Stamp on documents Rs. 9-00 Stamp on petition Rs. 6-00 Advocate fess fixed Rs. 2,000-00 12 MOP 887/2016 VII ADJ/VSP --------------------- Costs allowable Rs. 11,737-00 ---------------------

Pro-costs allowed Rs.9,751/-

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC VII Addl. District Judge, (Fast Track Court), Visakhapatnam.

1 MOP 501/2015 XI ADJ/VSP

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-SPL.

SESSIONS JUDGE FOR TRIAL OF CASES UNDER SC & ST CASES (POA) ACT-

CUM-XI ADDL.DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum Spl. Judge for trial of cases under SC & ST (POA) Act–cum –XI Addl. District Judge, Visakhapatnam.

Wednesday, the 24 th day of March 2021

MOP No.501/2015

Between:

1. Smt.Jennala Venkata Varalakshmi, W/o.Late Siva Kumar, Hindu, aged 28 years, residing at Dr.No.11-134, Vivekananda Colony, Madhurawada, Visakhapatnam.

2. Chy.Jennala Raviteja, S/o.Late Siva Kumar, Hindu, aged 8 years, residing at Dr.No.11-134, Vivekananda Colony, Madhurawada, Visakhapatnam.

(The petitioner being minor represented by his mother and natural

guardian Smt.Jennala Venkata Varalakshmi, W/o.Late J.Siva Kumar).

3. Kum.Jennala Shalini, D/o.Late Siva Kumar, Hindu, aged 5 years, residing at Dr.No.11-134, Vivekananda Colony, Madhurawada, Visakhapatnam.

(The petitioner being minor represented by her mother and natural

guardian Smt.Jennala Venkata Varalakshmi, W/o.Late J.Siva Kumar).

4. Smt.Jennala Lakshmi, W/o.Late Ravi Sankar, Hindu, aged 48 years, residing at Dr.No.11-134, Vivekananda Colony, Madhurawada, Visakhapatnam.

…Petitioners And:

1. Saroj Prasad, S/o.Ramuprasad, Hindu, aged 32 years, residing at Prayag Nagar Soc, L.U.Gadkari Marg, Chembur, Mumbai-400074, Driver of the crime vehicle bearing No.CG-04 JB-6152.

2. Bhushan Laxmandas Wadhwani, S/o.not known to the petitioners, Hindu, Major, residing at Lakshmi Stores, Opp:Mantralaya, G.E.Road, Byron Bazar, Raipur, Chhattisgarh-492001, Owner of Crime Vehicle bearing No.CG-04 JB- 6152.

3. The New India Assurance Company Limited, Asian Building-II, 17 R.K.Marg, 3rd Floor, Ballard Estate, Mumbai, Maharashtra-400001, represented by its Divisional Manager.

...Respondents

This petition has come up on 08.03.2021 for fnal hearing before me in the presence of Sarvasri S.S.Vasu and J.Satya Sai Baba, Advocates for Petitioners and of Sri S.S.Mohana Rao, Advocate for 3rd respondent and respondents 1 and 2 having remained exparte and the matter having stood over for consideration till this day, this court made the following:

2 MOP 501/2015 XI ADJ/VSP

:: O R D E R ::

1.The petition is fled under Section 166 of Motor Vehicles Act, 1988, r/w Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of

Rs.15,00,000/- (Rupees Fifteen Lakhs Only) on account of death of deceased Jennala Siva Kumar in an accident occurred on 21.12.2014 at 4.00

A.M at Venkojipalem Turning, NH-16 Road, Hanuman Statute, Visakhapatnam, due to dash of ofending Heavy Goods Carrier (LPG Tanker) bearing registration No.CG-04 JB-6152 driven by the 1st respondent in rash and negligent manner.

2.The brief averments in the petition are as follows:

(a). The deceased Jennala Siva Kumar, resident of Dr.No.11-134,

Vivekananda Colony, Madhurawada, Visakhapatnam. He was working as AC

Operator in M/s.Bhavani Enterprises, Ice Plant, Industrial Estate,

Visakhapatnam. He used to earn Rs.15,000/- per month.

(b). On fateful day of 21.12.2014 at 4.00 A.M, the deceased

Jennala Siva Kumar was proceeding towards Maddilapalem on his motorcycle bearing registration No.AP-31 CA-2157 from Hanumanthuwaka and on the way, when he reached the Venkojipalem Turning on NH-16 Road, Near

Hanuman Statute the 1st respondent being the driver of ofending Tanker

Lorry bearing registration No.CG-04 JB-6152 proceeding towards

Maddilapalem from Hanumanthuwaka drove the same in rash and negligent manner without blowing horn dashed against the motorcycle of the deceased.

The deceased fell down on the road and sustained severe injuries and died instantaneously on the spot.

(c). The 1st petitioner being the wife of the deceased went to the III

Town Trafc Police Station, Visakhapatnam City and gave a report. On receiving of the report, the Sub-Inspector of Police registered the FIR in 3 MOP 501/2015 XI ADJ/VSP

Cr.No.234/2014 on 21.12.2014 at 6.30 A.M for the ofence under Section 304-

A of IPC and submitted the original FIR to IV Additional Chief Metropolitan

Magistrate Court, Visakhapatnam.

(d). Due to sudden demise of the deceased, the 1st petitioner being the wife lost her conjugal bliss and the petitioners 2 and 3 being the children lost their father’s love and 4th petitioner being the mother lost fnancial support. Therefore, the petitioners prays to allow the petition and award a compensation of Rs.15,00,0000/- to the petitioners.

3.The averments of the counter fled on behalf of the 3 rd respondent in brief are as follows:-

(a). The allegations mentioned in the petition that the accident was occurred due to negligence of the 1st respondent while driving the ofending Tanker Lorry bearing registration No.CG-04 JB-6152 in rash and negligent manner, resulting the death of Jennala Siva Kumar is to be proved by the petitioners. The accident occurred due to the collision of two vehicles i.e., Motorcycle and Tanker Lorry and that the Insurance Company of Tanker lorry is not alone liable to pay compensation. The Insurer of the motorcycle is to be joined as party. The petition is bad for non-joinder of necessary party.

(b). The S.H.O, III Town Trafc Police Station failed to comply

Section 158 (6) of M.V.Act in furnishing the information and copies of documents. The petitioners have to prove that the deceased was holding valid driving licence and that the vehicle is road worthy to ply. The respondent is not aware about the criminal case proceedings. The petitioners have to prove the mandatory provisions contained in Section 64 (V) (B) of Insurance Act, otherwise the 3rd respondent insurance company is not liable to pay compensation. The interest claimed is excessive, so also the compensation.

4.The averments of the Additional Counter fled on behalf of the 3 rd respondent are as follows:- 4 MOP 501/2015 XI ADJ/VSP

The driver of the ofending lorry was not having valid driving licence. As per the driving licence of the 1st respondent, he is authorized to drive light motor vehicle with transport. Since the 1st respondent is not having hazardous endorsement, he was not having valid driving licence on the date of accident. Without possessing hazardous endorsement, the 1st respondent cannot drive the said vehicle. Since the terms and conditions of policy are not complied, the insurance company is not liable to pay compensation.

5. Consideration of the averments of the petition, counter of

2 nd respondent and hearing on both sides the following issues are

framed for trial:

1. Was the accident occurred on account of rash or negligent driving of the Motorcycle bearing No.AP-31 CA-2157 by the driver causing death to Jennala Siva Kumar?;

2. Are the petitioners entitled for compensation? If so, to what amount and from which of the respondents?; and

3. To what relief?

6.At the time of trial, on behalf of the petitioners, the 1st petitioner herself examined as P.W.1, besides examined E.V.S.V.Prasad as P.W.2 and marked Exs.A.1 to A.7. On behalf of the respondents, S.S.R.C.Murthy, Senior

Assistant of 3rd respondent examined as R.W.1 and marked Exs.B.1 and B.2.

7.ISSUE No.1:-

The learned counsel for the petitioners argued that the accident occurred due to the negligent driving of the ofending Tanker Lorry by the 1st respondent, resulting the death of Jennala Siva Kumar and that the petition is to be allowed. On the other hand, the learned counsel for the respondent argued that there is mistake and fault on the part of the deceased and there is no valid driving licence to the 1st respondent and that the petition may be dismissed.

5 MOP 501/2015 XI ADJ/VSP

8.In order to establish that the accident occurred on the fault of the 1st respondent, the 1st petitioner gave evidence as P.W.1. The 1st petitioner is wife of the deceased Jennala Siva Kumar and mother of the minor petitioners 2 and 3. The 3rd petitioner is the mother-in-law of her. P.W.1 stated that on 21.12.2014 her husband was proceeding towards Maddilapalem on his motorcycle bearing Registration No.AP-31 CA-3157 and reached Venkojipalem

Turning on NH-16 Road at 4.00 P.M and near the Hanuman Statute stood on his vehicle. By that time, the1st respondent being the driver of the Tanker

Lorry bearing registration No.CG-04 JB-6152, while proceeding towards

Maddilapalem from Hanumathuwaka drove the same in rash and negligent manner and dashed against the motorcycle of the deceased. The deceased fell down on the road sustained severe injuries and died on the spot.

9.In order to substantiate the contention of the petitioners that the accident occurred due to the negligence of the 1st respondent fled Ex.A.1

Attested Copy of the FIR in Cr.No.234/2014 of III Town Trafc Police Station,

Visakhapatnam registered basing on the report of 1st petitioner. On perusal of

Ex.A.1, which was registered on 21.12.2014 at 6.30 A.M. The date of accident mentioned in Column No.3(a) on 21.12.2014 at 4.00 A.M. It shows that there is no gap in between the time of accident and registration of the FIR. Ex.A.3

Postmortem Certifcate and Ex.A.4 Inquest Report reveals that the deceased died due to the injuries on vital parts of the body and multiple crushed injuries. As per Ex.A.2 report of the Motor Vehicle Inspector, there is no mechanical defect to the ofending Tanker Lorry. The respondents also did not dispute the death of the deceased. The Sub-Inspector of Police III Town Trafc

Police Station conducted the investigation and fled Charge Sheet against the 1st respondent under Section 304-A of IPC. Ex.A.6 Death Certifcate issued by

Greater Visakhapatnam Municipal Corporation that the deceased died at

Venkojipalem on NH-5 on 21.12.2014. The evidence adduced by the 6 MOP 501/2015 XI ADJ/VSP petitioners and also the exhibits marked clearly established that the accident occurred due to negligence of 1st respondent while driving the ofending

Tanker Lorry.

10.Though, the respondent No.3 pleaded that the accident occurred due to negligence of the deceased but there is no document fled in order to establish the said fact. The other plea taken by the 3rd respondent is that the 1st respondent had no hazardous endorsement and that the insurance company is not liable to pay compensation. It is not the contention of the 3rd respondent that the 1st respondent had no valid driving licence. The main objection is that the licence does not contain hazardous endorsement. The skill of driving was not disputed by the 3rd respondent. In order to establish the fact that for driving Tanker Lorry hazardous endorsement is must, no technical person or Motor Vehicle Inspector or any road transport authority were examined. As per Ex.B.1 copy of the insurance policy covers the period from 17.09.2014, 12.00 Midnight to 16.09.2015, 11.59 P.M. The accident occurred on 21.12.2014 i.e., within the insurance coverage period. Even R.W.1 did not state that there is a condition in Ex.B.1 that if the driver of the ofending vehicle does not having hazardous endorsement, it will not cover the insurance policy. In view of the afore mentioned reasons, this issue is answered in favour of the petitioners.

11.ISSUE No.2:

In view of the fnding given to Issue No.1, the petitioners are entitled just and reasonable compensation as per the ratio of negligence decided above. In order to determine the just and reasonable compensation, it is necessary to determine the age, income of the deceased Jennala Siva

Kumar loss of earnings and dependency, consortium etc., 7 MOP 501/2015 XI ADJ/VSP

I.AGE OF THE DECEASED:

As per the evidence of P.W.1 the deceased was aged 28 years by the time of accident. In Ex.A.3 Postmortem Certifcate and Ex.A.4 Inquest

Report, the age of the deceased was mentioned as 28 years. In order to disprove the contention of the petitioners, the respondent No.3 did not choose to fle any written proof. Therefore, it can be said that the deceased was aged 28 years as on the date of accident.

II.INCOME OF THE DECEASED:

P.W.1 stated that her husband was working as AC Operator in

M/s.Bhavani Enterprises and earning Rs.15,000/- per month. P.W.2, who is the proprietor of M/s.Bhavani Traders stated that Ex.A.7 was issued by his plant manager. The person who issued Ex.A.7 not examined. Even the Salary

Disbursement Register or counter foils of the salary bills not fled into Court.

Even the deceased was working as an employee in Bhavani Traders, the

Identity Card issued by the company not fled. There is variation in the evidence of P.W.1 and P.W.2 about the Firm name. Therefore, it can be said that the petitioners failed to establish the employment of the deceased.

Since the deceased was able bodied man, he may not keep quite ideally without doing any work to maintain himself and to maintain his wife and children. In case Magma General Insurance Company Limited Vs.

Nanuram and others reported in [2018 ACJ 2782] wherein His Lordship held that “when there is no document the notional income of Rs.6,000/- per month has to be taken”. The annual income of the deceased was Rs.72,000/-.

In case National Insurance Company Limited Vs. Pranay

Sethi and others reported in [2017 ACJ 2700], his Lordship held that “Even the self employed or engaged on fxed wages entitled future prospects”. The age of the deceased was 28 years and that future prospects has to be calculated with 40%. The annual income of the deceased was 8 MOP 501/2015 XI ADJ/VSP

Rs.72,000/- + Rs.28,800/- = Rs.1,00,800/-. Since there are four dependants 1/4th shall be deducted for his personal and living expenses i.e., Rs.25,200/-.

The amount available to the petitioners would be Rs.75,600/-.

III. LOSS OF DEPENDENCY:

The annual income of the deceased would be Rs.75,600/- available to the dependents. As per the case in Smt. Sarala Varma Vs.Delhi

Transport Corporation reported in 2009 ACJ 1298 SC the relevant multiplier applicable is ‘17’. Therefore, loss of dependency is Rs.75,600/- x ‘17’ = Rs.12,85,200/-.

IV. COMPENSATION FOR LOSS OF CONSORTIUM:

The 1st petitioner being the wife of the deceased lost her conjugal bliss, who was aged 28 years and the petitioners 2 and 3 being the children of the deceased Jennala Siva Kumar lost their father’s love and fnancial source.

Therefore, it is just and reasonable to award a sum of Rs.1,00,000/- as claimed by the petitioners.

12.In view of the afore mentioned reasons, the petitioners are entitled compensation as follows:-

I. Loss of Dependency a sum of Rs.12,85,200/

II. Loss of consortium Rs. 1,00,000/- ---------------------

TotalRs.13,85,200/- ---------------------

Coming to the liability aspect, the 1st respondent being the driver and 2nd respondent being the owner of the ofending Tanker Lorry bearing registration No.CG-04 JB-6152 and 3rd respondent being the insurer are jointly and severally liable to pay compensation and that the petition is to be allowed accordingly.

9 MOP 501/2015 XI ADJ/VSP

13.In view of the afore mentioned reasons, the petition is to be allowed partly. The respondents 1 to 3 are directed to pay compensation of

Rs.13,85,200/-. The said amount is entitled by the petitioners 1 to 4.

APPORTIONMENT:

The 1st petitioner is entitled Rs.5,00,000/-

The 2nd petitioner is entitled Rs.3,00,000/-

The 3rd petitioner is entitled Rs.3,00,000/-

The 4th petitioner is entitled Rs.2,85,200/-

DISBURSEMENT:

The 1st petitioner is permitted to withdraw Rs.3,00,000/-

The 4th petitioner is permitted to withdraw Rs.2,00,000/-.

The remaining amount with accrued interest shall be kept in Fixed

Deposit in any nationalized bank for a period of two years.

The minor petitioners amount with accrued interest shall be kept in any nationalized bank as Fixed Deposit till attaining their majority.

14.ISSUE No.3:-

In the result, the petition is allowed partly with proportionate costs, by directing the respondents 1 to 3 to pay compensation amount of

Rs.13,85,200/- (Rupees Thirteen Lakhs Eighty Five Thousand Two

hundred only) with interest at 6% from the date of petition. The 3rd respondent is directed to deposit the compensation amount within a month.

The 1st petitioner is entitled compensation of Rs.5,00,000/- and she is permitted to withdraw a sum of Rs.3,00,000/-. The remaining amount with accrued interest shall be kept in any nationalized bank for a period of two years. The 2nd and 3rd petitioners are entitled compensation of Rs.3,00,000/- each and their amount with accrued interest shall be kept inany nationalized bank till attaining their majority. The 4th petitioner is entitled Rs.2,85,200/- and she is permitted to withdraw a sum of Rs.2,00,000/-. The remaining 10 MOP 501/2015 XI ADJ/VSP amount with accrued interest shall be kept in any nationalized bank for a period of two years. Advocate Fee fxed at sum of Rs.3,000/-.

Typed to my dictation to the Stenographer Gr.II, corrected and pronounced by me

in the open Court, this the 24 th day March, 2021.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

No. of witnesses Examined on behalf of

Petitioners: Respondents: PW.1: Jennala Varalakshmi. RW.1: S.S.R.C.Murthy PW.2: E.V.S.V.Prasad.

Documents Marked on behalf of

Petitioners: Ex.A1/21.12.2014: Attested Copy of FIR. Ex.A2/20.01.2015: Attested Copy of M.V.I.Report. EX.A3/ –: Attested Copy of Postmortem Report. Ex.A4/ –: Attested Copy of Inquest. Ex.A5/ –: Original Salary Certifcate. Ex.A6/ –: Original Death Certifcate. Ex.A7/ –: Certifcate issued by the plant incharge.

Respondents: Ex.B1/17.09.2014: Attested Copy of Insurance Policy. Ex.B2/ –: Attested Copy of Extract of driving licence of R.1 furnished by Dakshan Associates.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, Visakhapatnam

1 MOP 427/2017 XI ADJ/VSP

THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL VII ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum XI Addl. District Judge, Visakhapatnam.

FAC VII Additional District Judge,(FTC), Visakhapatnam.

Thursday, the 7th day of February, 2019

MOP No.427/2017

Between:

Janni Laxmayya, S/o.Sanyasulu, aged 50 years, Kondadora, 1-46, Valabu village, Devarapalli Mandal, Tenugupenta Post, Visakhapatnam District. …Petitioner And:

1. Ratnakar Sahoo, S/o.Ravindra Sahoo, Aged 27 years, Sahoo by caste, R/o.Paila Bindha, Thidi PS, Bhadrak District, Orissa State, Driver of Trailor lorry bearing No.AP-24 TA 6339.

2. Yennu Venkataramana, S/o.Seethaiah, D.No.7-30/2, Dameracherla Village and Post, owner of Trailor No.AP-24 TA-6339, Nalgonda District-508001.

3. The Branch Manager, The New India Assurance Company Limited, Kodada Branch, Huzurnagar Road, Kodad-508206, represented by its Regional Manager, the New India Assurance Company Limited, D.No.47-10-12, 3rd and 4th Floor, pavan Paradise, 2nd lane, Dwarakanagar, Visakhapatnam-16.

...Respondents

This petition has come up on 01.02.2019 for final hearing before me in the presence of Sri V.Prabhakararao Misro, Advocate for Petitioner and of Sri K.V.V.S.N.Swamy, Advocate for Respondent No.3 and Respondents 1 and 2 having been remained exparte and the matter having stood over for consideration till this day, this court made the following:

:: JUDGMENT ::

1.The petition is filed under section 166 of Motor Vehicles Act, 1988

R/w Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.6,00,000/- (Rupees Six Lakhs Only) on account of the death of deceased Janni Gangaraju in an accident occurred on 21.10.2015 at 9.40 P.M, near Railway Track at

Autonagar, Gajuwaka, due to the rash and negligent driving of offending

Trailer Lorry bearing No.AP-24 TA-6339 driven by the 1st respondent.

2.The brief averments in the petition are as follows:

2 MOP 427/2017 XI ADJ/VSP

(a). The deceased Janni Gangaraju is the brother of petitioner. He was working as cleaner of the lorry bearing registration No.AP-24 TA-6339 and used to earn Rs.9,000/- per month. Since the deceased was unmarried aged 32 years, his earnings contributed to the family as he is living with his brother i.e., petitioner. On 21.10.2015 the deceased Gangaraju travelling in a Trailer

Lorry bearing registration No.AP-24 TA-6339 driven by the 1st respondent proceeding to Auto Nagar from Vadlapudi. On the way when they reached railway track at Auto Nagar, Gajuwaka, the 1st respondent drove the same in rash and negligent manner and dashed against the lorry bearing registration

No.AP-31 TU-3877 coming in opposite direction and also one motorcyclist. Due to the dash, the trailer turtle and that the deceased fell down and sustained severe injuries and fell unconscious. Immediately, he was shifted to K.G

Hospital. On 24.10.2015 at 3.00 A.M he succumbed to injuries.

(b). On receiving the report of Nookaraju, the S.H.O, Gajuwaka

Traffic Police Station registered the FIR in Cr.No.148/2015 under Section 337, 338 and 279 of IPC and thereafter the Section of Law 304-A IPC was added.

After completion of investigation charge sheet was filed against 1st respondent

before III Additional Chief Metropolitan Magistrate Court, Gajuwaka. The

accident was occurred due to the negligence of the 1st respondent, resulting the death of Gangaraju. Due to sudden demise of Gangaraju the petitioner being the brother suffered mental agony and lost the earning source.

Therefore, the petitioner prays to award compensation of Rs.6,00,000/-.

3.The respondents 1 and 2 remained exparte.

4.The brief averments in the counter filed on behalf of 3 rd respondent are as follows:

(a).The allegations mentioned in the petition that the accident occurred due to the negligence of the 1st respondent while driving the trailer lorry, resulting the death of brother of the petitioner, who is earning Rs.9,000/- 3 MOP 427/2017 XI ADJ/VSP per month and due to the sudden demise of him, the petitioner and his family members lost earning source and also they suffered mental agony. The compensation claimed by the petitioner under various heads is excessive. The petitioner has to establish that there was subsisting contract of insurance between 2nd respondent and 3rd respondent. The petitioner is not entitled to claim compensation from the 3rd respondent unless he proves that the vehicle involved in the accident driven in rash and negligent manner by a valid driving licence holder and also the said vehicle is having valid permit and fitness.

(b). The respondent insurance company was not furnished with the copies of documents and also about the information of the accident in order to claim compensation, but it was not complied. The driver, owner and the insurer of lorry bearing No.AP-31 TU-3877, who are necessary parties. The interest claimed by the petitioner is excessive and liable to scale down to 6%.

Therefore the respondent prays to dismiss the petition against 3rd respondent.

5.On consideration of averments of the petition and counter, the following issues were framed for trial:

1. Whether the Janni Gangaraju @ Gangamma died due to injuries received by him in accident on 21.10.2015 at about 9.40 P.M due to rash and negligent driving of driver of trailor lorry bearing

No.AP-24 TA-6339 at Auto Nagar Railway Track from Vadlapudi towards autonagar, Gajuwaka?

2. Whether the petitioner is entitled to receive compensation? If so to what amount and from whom?; and

3. To what relief?

6.At the time of trial, the petitioner himself examined as P.W.1, besides examined N.Eswara Rao, as P.W.2 and marked Exs.A.1 to A.5. On behalf of respondents none were examined and marked no documents.

7.ISSUE No.1:

4 MOP 427/2017 XI ADJ/VSP

The learned counsel for the petitioner and respondent No.3 reiterated their contentions mentioned in the petition and counter during the course of arguments. The petitioner claimed compensation of Rs.6,00,000/- on account of the death of his younger brother Gangaraju in an accident occurred on 21.10.2015 at 9.40 P.M. Therefore, the petitioner has to prove that the accident occurred due to the negligence of the 1st respondent while driving the offending Trailer Lorry bearing Registration No.AP-24 TA-6339 in rash and negligent manner, resulting the death of Gangaraju, who is working as cleaner in the said lorry.

8.In order to prove that the accident was occurred due to the negligence of the 1st respondent while driving the offending Trailer Lorry, the petitioner himself examined as P.W.1, besides examined P.W.2. Both P.Ws.1 and 2 have stated that on 21.10.2015 at 9.40 P.M the accident occurred at railway track, Auto Nagar, Gajuwaka. As per the evidence of P.W.1 his younger brother Gangaraju aged 32 years working as cleaner in the offending Trailer

Lorry and on the fateful day he was traveling in trailer of offending lorry. P.W.2 who was passing on the said road on his motorcycle he had seen the accident.

He has further stated that the accident occurred due to the rash and negligent driving of 1st respondent. He called the ambulance and that he shifted injured

Gangaraju to K.G.Hospital.

9.The petitioner filed Ex.A.1 Copy of the FIR in Cr.No.148/2015 of

Gajuwaka Traffic Police Station, besides filing Ex.A.2 Copy of the Charge Sheet filed by the S.H.O, Gajuwaka Traffic Police Station against the 1st respondent

before III Additional Chief Metropolitan Magistrate Court, Gajuwaka evidenced

the fact of accident occurred due to the negligence of 1st respondent. Ex.A.3

Inquest Report, Ex.A.4 Postmortem Certificate shows that the deceased

Gangaraju died due to the head injury sustained in the accident. Ex.A.5 report of M.V.I shows that there is no mechanical defect to offending trailer lorry.

5 MOP 427/2017 XI ADJ/VSP

Therefore, it can be safely conclude that the accident occurred due to the negligence of 1st respondent while driving offending trailer lorry, resulting death of Gangaraju due to the head injury sustained in the said accident.

10.The respondent No.3 contended that the petition is bad for not impleading the driver, owner and insurer of lorry bearing No.AP-31 TU-3877.

The manner of accident as per the evidence of P.Ws.1 and 2 and Exs.A.1 and

A.2 shows the 1st respondent drove the offending Trailer Lorry in rash and negligent manner and dashed against the lorry, which was coming in opposite direction. He also dashed against one motorcyclist bearing registration No.AP- 33 A-4204. If there is a finding that the accident occurred due to the contributory negligence of driver of the lorry the contention of the 3rd respondent can be considered to some extent, but it is not a such case.

Therefore, the plea taken by the 3rd respondent is not tenable. As per Ex.A.5 report of the Motor Vehicle Inspector in Column No.15 and 16 clearly mentioned about the particulars of the policy and particulars of the owner and driver. The policy is in force by the time of accident. Therefore, this issue is answered in favour of the petitioner.

10.ISSUE No.2:

In view of the finding given in Issue No.1, the petitioner is entitled just and reasonable compensation as per the ratio of negligence decided above. In order to determine the just and reasonable compensation, it is necessary to determine the age, income of the deceased Gangaraju, loss of earnings, funeral expenses, loss of love and affection and loss of consortium.

AGE OF THE DECEASED:

As per the evidence of P.Ws.1 and 2, the deceased was aged 32 years in Exs.A.3 Inquest Report and A.4 Postmortem Certificate the age of the deceased shown as 35 years. In order to disprove the said fact that the deceased was aged person than mentioned in Exs.A.3 and A.4 no document is 6 MOP 427/2017 XI ADJ/VSP filed. Therefore, it can be safely conclude that the age of the deceased

Gangaraju was 35 years as on the date of accident.

INCOME OF THE DECEASED:

Both P.Ws.1 and 2 have stated that the deceased Gangaraju working as a cleaner and getting Rs.9,000/- per month. They have further stated that the Gangaraju unmarried and residing with his elder brother P.W.1 and his family members. The respondents have not chosen to file any document that the deceased is residing separately. Therefore, it can be said that the deceased being able bodied 35 years old unmarried person may not stay in the home idly. Therefore, it can be said that the deceased can go for coolie work. He may not get coolie 30 days in a month. Therefore, it is just and reasonable that the deceased could have earn Rs.4,000/- per month.

LOSS OF DEPENDENCY:

The petition is filed by the elder brother of the deceased. The petitioner is aged 50 years. He is depending on his natural brothers’ income.

Being the class-1 heir entitled the share of the property of the deceased. The annual income of deceased was Rs.48,000/-. There is no evidence apart from the petitioner at her persons are depending on deceased. Out of which ½ has to be deducted for his personal and living expenses. Therefore, the net annual income is Rs.24,000/-.The age of the deceased was 35 years. Therefore, the relevant multiplier applicable as per the case Smt. Sarala Varma Vs.Delhi

Transport Corporation reported in 2009 ACJ 1298 SC is ‘16’. Therefore, loss of dependency is Rs.24,000/- x 16 = 3,84,000/-.

LOSS OF LOVE AND AFFECTION:

The deceased Gangaraju has got 35 years old. He was unmarried.

Therefore, it is just and necessary to award consortium of Rs.20,000/- as against Rs.1,00,000/- claimed by the petitioner.

FUNERAL EXPENSES:

7 MOP 427/2017 XI ADJ/VSP

It is just and reasonable to award a sum of Rs.15,000/- towards funeral expenses considering the circumstances of the case as against the claim of Rs.25,000/-. This point is answered accordingly in favour of petitioners.

12.POINT No.3: In view of the afore mentioned reasons, the petitioners are entitled compensation as follows:-

Loss of Dependency a sum of Rs.3,84,000/-

Loss love and affectionRs. 20,000/-

Funeral ExpensesRs. 15,000/- ---------------------

TotalRs.4,19,000/- ---------------------

Coming to the liability aspect, the 1st respondent is the driver of the offending Trailor Lorry and the 2nd respondent being the owner and 3rd respondent being the insurer are liable to pay the compensation, since the accident occurred due to the rash and negligent driving of 1st respondent.

Therefore, respondents 1 to 3 are liable to pay the compensation jointly and severally. Therefore, the petition has to be allowed.

13.In the result, the petition is allowed in part awarding compensation of Rs.4,19,000/- (Rupees four lakhs nineteen thousand only)with proportionate costs against the respondents 1 to 3 jointly and severally from the date of petition with interest at 6% per annum. The 3rd respondent is directed to deposit the entire amount within a month. The petitioner is permitted to withdraw a sum of Rs.2,00,000/-. The remaining amount shall be kept in any nationalized bank for a period of two years. Advocate Fee fixed at sum of Rs.1,000/-.

Typed to my dictation to the Stenographer Gr.II, corrected and pronounced by me in the open Court, this the 7 th day February 2019.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.

8 MOP 427/2017 XI ADJ/VSP

APPENDIX OF EVIDENCE

No. of witnesses Examined on behalf of

Petitioner: Respondents: PW.1: Janni Laxmayya. -None- PW.2: N.Eswara Rao.

Documents Marked on behalf of

Petitioner:

Ex.A1/22.10.2015: Attested Copy of FIR. Ex.A2/ –: Attested Copy of Charge Sheet. EX.A3/ –: Attested Copy of Inquest Report. Ex.A4/ –: Attested Copy of Postmortem Certificate. Ex.A5/ –: Attested copy of Accident Report.

Respondents: NIL

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.

9 MOP 427/2017 XI ADJ/VSP

IN THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL VII ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum XI Addl. District Judge, Visakhapatnam.

FAC VII Additional District Judge,(FTC), Visakhapatnam.

Thursday, the 7th day of February, 2019

MOP No.427/2017

Between:

Janni Laxmayya, S/o.Sanyasulu, aged 50 years, Kondadora, 1-46, Valabu village, Devarapalli Mandal, Tenugupenta Post, Visakhapatnam District. …Petitioner And:

1. Ratnakar Sahoo, S/o.Ravindra Sahoo, Aged 27 years, Sahoo by caste, R/o.Paila Bindha, Thidi PS, Bhadrak District, Orissa State, Driver of Trailor lorry bearing No.AP-24 TA 6339.

2. Yennu Venkataramana, S/o.Seethaiah, D.No.7-30/2, Dameracherla Village and Post, owner of Trailor No.AP-24 TA-6339, Nalgonda District-508001.

3. The Branch Manager, The New India Assurance Company Limited, Kodada Branch, Huzurnagar Road, Kodad-508206, represented by its Regional Manager, the New India Assurance Company Limited, D.No.47-10-12, 3rd and 4th Floor, pavan Paradise, 2nd lane, Dwarakanagar, Visakhapatnam-16.

...Respondents

The petition is filed under section 166 of Motor Vehicles Act 1988 R/W Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.6,00,000/- (Rupees six Lakhs Only) for the death of deceased Janni Ganga Raju on account of the accident occurred on 21-10-2015 at 9.40 Pm., near Railway track, Auto Nagar, Gajuwaka, due to the dash of offending vehicle driven by 1st respondent and directing the respondents to pay the said amount of compensation together with interest 18% per annum and for costs of the petition.

Amount claimed is Rs.6,00,000/- and a Court fee of Rs.5,360/- is paid under rule 475(1) of A.P.M.V. Rules.

This petition has come up on 01.02.2019 for final hearing before me in the presence of Sri V.Prabhakararao Misro, Advocate for Petitioner and of Sri K.V.V.S.N.Swamy, Advocate for Respondent No.3 and Respondents 1 and 2 having been remained exparte and the matter having stood over for consideration till this day, this court doth order; and 10 MOP 427/2017 XI ADJ/VSP

:: D E C R E E ::

1. that the petition be and the same is hereby allowed partly;

2. that the respondents 1 to 3 jointly and severally do pay to the petitioner a sum of Rs.4,19,000/- (Rupees four lakhs nineteen thousand only) towards compensation with interest 6% per annum;

3. that the 3rd respondent be and hereby is directed to deposit the entire compensation amount within one month;

4. that the petitioner be and hereby is permitted to withdraw a sum of Rs.2,00,000/- and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of two years;

5. that the 3rd respondent do also pay to the petitioners a sum of Rs.5,761/- towards proportionate costs of the petition.

Given under my hand and the seal of this Court on this the 1st day of February, 2019.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC VII Addl. District Judge, (Fast Track Court), Visakhapatnam.

MEMORANDUM OF COSTS

For Petitioners For Respondents

No costs memo is filed. Stamp on Petition Rs. 5,360-00 Stamp on vakalat Rs. 2-00 Stamp on process Rs. 451-00 Stamp on documents Rs. 6-00 Publication charges Rs. 1,000-00 Advocate fess fixed Rs. 1,000-00 --------------------- Costs allowable Rs. 7,819-00 ---------------------

Pro-costs allowed Rs.5,761/-

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC VII Addl. District Judge, (Fast Track Court), Visakhapatnam.

1 I ADJ Court, VSP

O.S. 780/2015

IN THE COURT OF I ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Present: Sri O. V. Nageswara Rao,

XI Addl. District Judge, Visakhapatnam FAC I Addl. District Judge, Visakhapatnam

Monday, the 21st day of December, 2020.

O.S. No. 780/2015

Between:

Guduru Kanaka Rajya Lakshmi W/o P. Siva Sankar Rao, aged 60 years,R/o M.I.G-A14, Sagar Nagar, Visakhapatnam. ...Plaintif A n d:

Bheemana Maheswara Rao S/o Venkata Subbayya, aged 54 years, D. No. 27-3-1-1/25, Ganesh Towers, Srinagar, Gajuwaka, Visakhapatnam.

...Defendant

This suit has come up on 14.12.2020 for fnal hearing before me in the presence of Sri K. Madhusudana Rao, Advocate for the Plaintif and of Sri M. Pattabhi Rama Rao, Advocate for the Defendant and the matter having stood over for consideration till this day, this court made the following:

J U D G M E N T

1.This suit fled for recovery of a sum of Rs.17,04,000/- (Rupees

Seventeen lakhs and four thousand only) basing on a suit promissory note with interest and for costs.

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

The Defendant approached plaintif on 15.03.2014 and borrowed a sum of Rs.12,00,000/- (Rupees Twelve lakhs only) for his family expenses and to clear sundry debts, executed suit promissory note, agreeing to repay the same with interest @ 24% per annum. Thereafter, inspite of many demands, defendant failed to repay the amount. On the demand of the plaintif, defendant issued a Cheque for a sum of Rs.3,00,000/- (Rupees three lakhs only) towards partial discharge of the debt, covered by suit promissory note. But the same was dishonoured when it was presented for encashment. The plaintif got issued a legal notice on 28.11.2015, 2 I ADJ Court, VSP

O.S. 780/2015

demanding the defendant about dishonour of the cheque under suit promissory note. The defendant received the notice, but neither send the reply nor paid amount. The defendant is not entitled benefts under Debt

Relief Laws. Hence, the plaintif prays the Court to decree the suit with costs.

3.The averments of the Written Statement, in brief, are as follows:

The material allegations mentioned in the plaint are not correct. The defendant had no knowledge and there is no relationship with the plaintif, as such there is no possibility to borrow the amount and that the plaintif is a stranger. Since the plaintif is stranger, there is no debtor and creditor relationship between the plaintif and defendant. The alleged suit promissory note was not executed by the defendant. Since the defendant denied the execution of suit promissory note, issuance of alleged cheque does not arise. The defendant submits that the plaintif fabricated the suit promissory note and also cheque and fled this suit and that the suit promissory note is not supported by consideration. The defendant came to know that the plaintif had no capacity to lend such huge amount. The plaintif is a friend of K. Ramadevi of Gajuwaka and that they might have fled this suit with malafde intention to extract money from the defendant.

When the defendant did not borrow the amount, repayment of amount does not arise and that he prays to dismiss the suit.

4.Basing on the above pleadings and hearing on both sides, the following issues are settled for trial.

1. Whether the suit promissory note dt.15.03.2014 is true, genuine and supported by consideration?

2. Whether the plaintif is entitled for recovery of the entire suit amount?

3. To what relief?

3 I ADJ Court, VSP

O.S. 780/2015

5.On behalf of plaintif, she herself examined as PW.1 besides examined

B. Venkata Satyanarayana as PW.2 and marked Exs A1 to A3. On behalf of defendant, he himself examined as DW.1 besides examined Mohammad

Shaik Khadar Shah as DW.2 and marked no documents.

6.Heard on both sides through Blue Jeans App.

7.Issue No. 1 :

Whether the suit promissory note dt.15.03.2014 is true,

genuine and supported by consideration?

(a)The learned counsels for the plaintif and defendant reiterated their contentions mentioned in the pleadings during the course of arguments.

The learned counsel for defendant relied on cases reported in 1) AIR 2019

SC 1983, 2) AIR 1987 AP. 139 (FB) and 3) 1987 (2) ALT 947.

(b)The suit is fled basing on suit promissory note Ex-A1 for recovery of a sum of Rs.17,04,000/- (Rupees Seventeen lakhs and four thousand only) with costs. The plaintif produced the Negotiable Instrument Ex-A1 and gave evidence that the defendant borrowed Rs.12,00,000/- (Rupees Twelve lakhs only) from her on 15.03.2014 for his family expenses and to discharge sundry debts and executed Ex-A1 suit promissory note, agreeing to repay the same with interest @ 24% p.a. The plaintif also examined PW.2 who is the scribe of Ex-A1 suit promissory note. PW.2 also stated in the same lines of evidence of PW.1 about the execution of Ex-A1 promissory note by the defendant on receiving of consideration. The primary evidential burden, which lies on the plaintif, was thus discharged.

(c)The contention of the defendant is that he did not borrow amount from plaintif, as he has no acquaintance with her. The second plea taken by the defendant is at the instance of one K. Ramadevi of Gajuwaka, the suit promissory note is created. The third plea taken by the defendant is that the plaintif has no capacity to lend the amount.

(d)In order to substantiate the contention of defendant, he gave evidence as DW.1, but no document was marked. DW.1 in his cross- 4 I ADJ Court, VSP

O.S. 780/2015

examination admitted that he belongs to Kshathriya Community. His community people used to arrange get together meetings frequently by calling all the community people. PW.1 being the same community also used to attend the said get together programs. Therefore, the plea taken by the defendant that he had no acquaintance with the plaintif is not established. On the other hand, the evidence of DW.1 throws a shade of doubt to believe his evidence that he has no acquaintance with the plaintif, in view of his admission that the plaintif used to attend the community get together meetings.

(e)PW.1 stated that she used to purchase sarees from the wife of DW.1, who is doing saree business. DW.1 also admitted in his cross-examination that he is doing cloth business and that his wife is also doing the said business. If really the defendant did not approach the plaintif and not borrowed the amount, there is no need or necessity to fabricate Ex-A1 in the name of defendant. In the cross-examination of PWs 1 and 2 also no enmity was suggested. Both PWs 1 and 2 categorically stated time of transaction, place of transaction, passing of consideration and presence of persons. It is not the contention of defendant that he was somewhere else at that time.

(f)Prior to fling of this suit, the plaintif got issued notice under Ex-A2, demanding the defendant to pay the amount due under Ex-A1 Suit promissory note. The defendant received the original of Ex-A2 notice under

Ex-A3 postal acknowledgment. No reason was assigned for non-issuance of reply notice, though he is admitted about the receiving of original of Ex-A2 notice under Ex-A3. If really, the defendant did not borrow the amount, he could have issued reply, either demanding the plaintif to send the promissory note copy for verifcation or by assigning any reason denying execution, but it was not do so.

(g)As per the evidence of PW.1, the defendant issued a cheque for 5 I ADJ Court, VSP

O.S. 780/2015

Rs.3,00,000/- (Rupees three lakhs only) towards part payment of the amount due under Ex-A.1. When the said cheque was presented for encashment in her bank, the same was returned with an endorsement as insufficient funds and thereby she fled a complaint, in which DW.1 was convicted in CC. 228/2016 on the fle of IV Special Magistrate Court,

Visakhapatnam. The defendant also admitted the said fact. The appeal preferred by the defendant was also dismissed. All these facts clearly throws shade of doubt to believe the defence taken by the defendant.

h)PW.1 has categorically stated that she is a retired employee and out of amount available with her, lent to the defendant on his request. PW.2 in his cross-examination categorically stated about the denomination of consideration passed to the defendant in his presence and attestors. The defendant also did not adduce any evidence that the plaintif has no capacity to lend such amount. Therefore, the plea taken by the defendant is also not established.

i)The last plea taken by the defendant is that suit was promissory note

Ex-A1 was fabricated at the instance of one K. Ramadevi. In order to establish the said fact, DW.2 was examined. DW.2 stated that he does not know the suit transaction. As per the evidence of DW.2, he has got grievance against said Ramadevi, who is wife of an Advocate of Gajuwaka.

Whereas Dw2 stated that said Ramadevi running chits. However, no proof is fled that defendant had either enmity or grievance against the said

Ramadevi. So also the chit books, chit subscription payment receipts were also not fled evidencing the fact that she conducted chits. Assuming for a moment, if the said Ramadevi run chits and that she failed to give the amount to defendant, being the subscriber of chit, he can take recourse by fling suit against her and also give notice to her. But it was not do so. Even the co-subscribers of DW1, were also not examined. Therefore, the plea taken by the defendant that Ex-A1 was fabricated at the instance of 6 I ADJ Court, VSP

O.S. 780/2015

Ramadevi is not established. So also defendant failed to establish the relationship between the said Ramadevi and plaintif.

j)The ratio given in case Basalingappa Vs. Mudibasappa reported in 2019 3 ALT (SC) 62 is, in complaint fled under Sec. 138 of Negotiable

Instrument Act, there was rebuttable presumption under Sec. 139 of

Negotiable Instrument Act. This suit is fled for recovery of the amount basing on suit promissory note. Therefore, the ratio given in the said case is not applicable to the facts of this case on hand.

k)In case G. Vasu Vs. Syed Yaseen Sifuddin Quadri reported in 1987 AIR (AP) 139. The ratio given in the said case is when the defendant rebutted the case of plaintif, the presumption under Sec. 118 of Negotiable

Instrument Act will ceases. In this case no cogent evidence was adduced by the defendant in support of three pleas taken by him.

l)The last decision cited by the defendant in Y. M. Prasad Vs. Janiab

Begum Abdullah Rowji reported in 1987 2 ALT 947 wherein it was held about the issuance of cheque, correction of date and month in the said cheque and also the other plea taken is no cash consideration was passed.

The last contention is there was a renewal of promissory note and that original promissory note was returned in respect of the cheque issued at frst instance. This is not such case. Therefore, the facts of the said case is quite diferent to the facts of this case on hand.

m)Thus the plaintif established the fact of execution of Ex-A1 suit promissory note by the defendant on receiving of consideration. The issue is answered in favour of the plaintif.

8.Issue No. 2 :

Whether the plaintif is entitled for recovery of the entire

suit amount?

In view of the discussions in answering Issue No.1, plaintif fled the suit basing on Ex-A1 promissory note. The plaintif produced Ex-A1 besides examined PW.2 Scribe and marked Exs A1 to A3, prior to fling of this suit, 7 I ADJ Court, VSP

O.S. 780/2015

the plaintif got issued a notice, the defendant received the same, but failed to give reply, the defendant took three pleas that plaintif is a stranger and he had no acquaintance with plaintif, plaintif has no capacity to lend such huge amount and suit promissory note is fabricated at the instance of one

Ramadevi, but the defendant failed to establish the same. Even the defendant has not taken steps to send Ex-A1 to the handwriting expert to substantiate his contention that it does not bears his signature. The defence taken by the defendant is not established.

a)The plaintif able to establish about lending of amount to the defendant, execution of suit promissory note by the defendant after receiving consideration.

b)In view of the aforementioned reasons, the plaintif is entitled for recovery of entire suit amount and thus Issue No. 2 is answered in favour of plaintif.

9.Issue No. 3 :

To what relief ?

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

Rs.17,04,000/- (Rupees Seventeen lakhs and four thousand only) with interest @ 12% p.a., from the date of suit i.e., 15.12.2015 till the date of decree and thereafter at 6% p.a., on principal sum of Rs.12,00,000/- (Rupees Tweleve lakhs only)

Dictated to the Stenographer Gr-I, transcribed by her, corrected and

pronounced by me in open Court, this the 21st day of December 2020.

XI Addl. District Judge,

FAC I ADDL. DISTRICT JUDGE,

Visakhapatnam

Appendix of Evidence

For Plaintif : For Defendant :

PW.1 : Guduru Kanaka Rajya Lakshmi DW.1 : Bheemana Maheswara Rao

PW.2 : Boddu Venkata Satyanarayana DW.2 : Mohd. Shaik Khadar Shah 8 I ADJ Court, VSP

O.S. 780/2015

Documents marked on behalf of

For Plaintif : For Defendant : - NIL –

Ex-A1 : Suit Promissory Note dt.15.03.2014

Ex-A2 : Office copy of Legal Notice dt.28.11.2015

Ex-A3 : Postal Acknowledgment

XI Addl. District Judge,

FAC I ADDL. DISTRICT JUDGE,

Visakhapatnam 9 I ADJ Court, VSP

O.S. 780/2015

10 I ADJ Court, VSP

O.S. 780/2015

Date of Presentation : 15.12.2015 Date of Filing : 18.12.2015

IN THE COURT OF I ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Present: Sri O. V. Nageswara Rao,

XI Addl. District Judge, Visakhapatnam FAC I Addl. District Judge, Visakhapatnam

Monday, the 21st day of December, 2020.

O.S. No. 780/2015

Between:

Guduru Kanaka Rajya Lakshmi W/o P. Siva Sankar Rao, aged 60 years,R/o M.I.G-A14, Sagar Nagar, Visakhapatnam. ...Plaintif A n d:

Bheemana Maheswara Rao S/o Venkata Subbayya, aged 54 years, D. No. 27-3-1-1/25, Ganesh Towers, Srinagar, Gajuwaka, Visakhapatnam.

...Defendant

This suit fled for recovery of a sum of Rs.17,04,000/- (Rupees Seventeen lakhs and four thousand only) being the principal and interest due on a promissory note dt.15.03.2014 purported to have been executed by the defendant in favour of the plaintif on principal amount of Rs.12,00,000/- (Rupees Twelve lakh only) with subsequent interest @ 24% p.a., from the date of suit till the date of realization; and for costs of the suit. The value of suit for the purpose of Court fee and Jurisdiction is Rs.17,04,000/- and a Court fee of Rs.19,826/- is paid under Sec. 20 of APCF & SV Act. This suit has come up on 14.12.2020 for fnal hearing before me in the presence of Sri K. Madhusudana Rao, Advocate for the Plaintif and of Sri M. Pattabhi Rama Rao, Advocate for the Defendant and the matter having stood over for consideration till this day, this court doth order and pass the following:

D E C R E E

1. that the defendant do pay to the plaintif a sum of Rs.17,04,000/- (Rupees Seventeen lakhs and four thousand only) with interest @ 12% per annum from the date of suit i.e., 15.12.2015 till the date of decree and thereafter 6% per annum on principal amount of Rs.12,00,000/- (Rupees Twelve lakh only);

2. that the defendant do also pay to the plaintif a sum of Rs.52,413/- (Rupees Fifty two thousand four hundred and thirteen only) towards costs of the suit

Given under my hand and the seal of this Court, this the 21st day of December, 2020. XI Addl. District Judge,

FAC I ADDL. DISTRICT JUDGE,

Visakhapatnam 11 I ADJ Court, VSP

O.S. 780/2015

MEMORANDUM OF COSTS

FOR PLAINTIFF : FOR DEFENDANT :

For VakalatRs. 2-00For VakalatRs. 2-00 CF on plaintRs.19,826-00Stamp on PetitionsRs. 20-00 ProcessRs. 80-00Advocate feeRs.52,820-00 CF on documents Rs. 5-00Junior feeRs.17,600-00 Advocate feeRs.25,000-00Typing ChargesRs. 500-00 Junior feeRs. 5,000-00------------------- Writing ChargesRs. 1,500-00Costs CertifedRs.70,942-00 Typing ChargesRs. 1,000-00-------------------- ------------------- Costs AllowedRs.52,413-00 --------------------

XI Addl. District Judge,

FAC I ADDL. DISTRICT JUDGE,

Visakhapatnam

1 MOP 1471/2015 XI ADJ/VSP

THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL VII ADDITIONAL

DISTRICT JUDGE, VISAKHAPATNAM.

FAC/SPL.SESSIONS JUDGE FOR TRIAL OF CASES UNDER SC & ST CASES (POA)

ACT-CUM-XI ADDL.DISTRICT JUDGE, VISAKHAPATNAM.

PRESENT: Sri O.Venkata Nageswara Rao, Chairman, Motor Accidents Claims Tribunal-cum- VII Addditional District Judge, FAC/Spl. Judge for trial of cases under SC & ST (POA) Act–cum –XI Addl. District Judge, Visakhapatnam.

Friday, the 15th day of February, 2019

MOP No.1471/2017

Between:

1). Smt. Inti Appala Narasamma, W/o.Late Ramarao, Hindu, aged 50 years, residing at Door No.2-37, Ramjogi Agraharam, S.C.Colony, Maridiputta, Nidigattu Panchayat, Bheemilipatnam Mandal, Visakhapatnam.

2). Sri Inti Bhanu Murthy, S/o.Late Rama Rao, Hindu, aged 31 years, residing at rest-do-.

3). Smt.Bangaru Venkata Lakshmi, W/o.Govinda, Hindu, aged 38 years, residing at Door No.l14/01, B.C.Colony, Valasapakala, Kakinada, E.G.District- 533005.

4). Smt.Bangaru Manga, W/o.Ramu, Hindu, Aged 35 years, Simhadrinagar, Kakinada, E.G.District-533005.

5). Smt.Bangaru Narasayamma, W/o.Sanjeev, Hindu, aged 30 years, Maridiputta Colony, Nidigattu Panchayat, Bheemilipatnam Mandal, Visakhapatnam.

6). Smt.Somadala Satyavathi, W/o.Venkayya, Hindu, aged years,residing at Door No.1-29, Maridiputta, Nidigattu Panchayat, Bheemilipatnam Mandal, Visakhapatnam.

7). Smt.Chenna Sumathi, W/o.Eswara Rao, Hindu, aged 28 years, residing at Door No.1/58, Yellanki, Anandapuram Mandal, Visakhapatnam.

8). D.Kumari, W/o.Ramu, Hindu, aged 27 years, residing at Darannapeta Colony, Murijdor, Bhogapuram, Vizianagaram. …Petitioners And:

1. Surada Sattibabu, S/o.Yella Rao, Hindu, aged 40 years, GITAM University, Rushikonda, Visakhapatnam.

2. Sri P.V.Ramana, S/o.Adinarayana, Hindu, aged about 45 years, residing at Flat No.406, Block “D”, VUDA Apartments, Seethammadhara, Visakhapatnam.

3. The New India Assurance Company Limited, represented by its Branch Manager, D.O-IV (621300), Door No.9-26-2, Near Timpany School “C” Gate, C.B.M Compound, Visakhapatnam.

2 MOP 1471/2015 XI ADJ/VSP

...Respondents

This petition has come up on 14.02.2019 for final hearing before me in the presence of Sarvasri Smt.P.Anuradha and A.S.J.Kumar, Advocates for Petitioners and of Sri B.V.Ramanjaneya Rao, Advocate for Respondent No.3 and Respondents 1 and 2 having been remained exparte and the matter having stood over for consideration till this day, this court made the following:

:: JUDGMENT ::

1.The petition is filed under Section 166 of Motor Vehicles Act, 1988

R/w Rule 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.10,00,000/- (Rupees Ten Lakhs Only) on account of the death of deceased Inti Ramarao, in an accident occurred on 10.04.2014 on NH-16, near G.Thallavalasa at 8.15

A.M, due to the dash of Scorpio Car bearing registration No.AP-31 AY-0405 driven by the 1st respondent in rash and negligent manner.

2.The brief averments in the petition are as follows:

(a). The deceased Inti Ramarao is a resident of Ramajogi

Agraharam, SC Colony, Maridiputta, Nidigattu Panchayat of Bheemili Mandal.

The 1st petitioner is the wife, the 2nd petitioner is the son and petitioners 3 to 8 are the daughters of deceased Inti Ramarao. On 11.01.2014, the deceased

Ramarao was returning to home on his motorcycle bearing registration No.AP- 31 BA-1912 and reached G.Thallavalasa. By that time, the 1st respondent being the driver of offending Scorpio bearing Registration No.AP-312 AY-0405 while proceeding towards Vizianagaram from Visakhapatnam drove the same in rash and negligent manner and dashed against the bike of Ramarao on rear side. He fell down and sustained severe head and neck injuries and fell unconscious. Immediately, he was shifted to Seven Hills Hospital,

Visakhapatnam and thereafter to K.G.Hospital, Visakhapatnam. From there he was shifted to Aditya Multicare Hospital for better treatment. He took treatment till 16.05.2014 and he died on 17.05.2014 due to injuries.

(b). On receiving the report of Appalanarasamma, wife of the deceased FIR in Cr.No.141/2014 was registered under Section 337 of IPC. After 3 MOP 1471/2015 XI ADJ/VSP completion of investigation, the charge sheet was filed by the S.H.O,

Bheemunipatnam Traffic Police Station on 09.05.2014 against the 1st respondent before IV Metropolitan Magistrate Court, Bheemunipatnam. The accident was occurred due to the negligence of the 1st respondent, resulting the death of Inti Ramarao. Due to the sudden demise of Ramarao the petitioners being the wife and children suffered mental agony and lost the earning source. Therefore, the petitioners prays to award compensation of

Rs.10,00,000/-.

3.The respondents 1 and 2 remained exparte.

4.The brief averments in the counter filed on behalf of 3 rd respondent are as follows:

(a). The allegations mentioned in the petition that the accident occurred due to the negligence of the 1st respondent while driving the Scorpio bearing registration No.AP-31 AY-0405, resulting the death of Inti Ramarao and that he was earning Rs.25,000/- by doing cultivation and cashew nut business and also Director of Co-operative Bank, Thagarapuvalasa have to be strictly proved by the petitioners. The deceased was 60 years old and that he was earning Rs.25,000/- no document was placed before the Court. As per the

Postmortem Certificate the deceased was not died due to the injuries sustained in the alleged accident. There is no negligence on the part of the driver of Scorpio Car. The alleged accident occurred due to the negligence of the deceased while riding the motorcycle without observing the traffic and suddenly applied breaks, as a result the accident occurred. Therefore, the

Insurance Company is not liable to pay compensation.

(b). Even if the accident occurred it could be due to the negligence of both the deceased and driver of the Scorpio and that both are equally responsible for the accident and that the respondent is not liable to pay compensation. The petition is also bad for non adding the insurer of 4 MOP 1471/2015 XI ADJ/VSP motorcycle. The Scorpio Car was insured with the 3rd respondent, but the insurance is subject to terms and conditions. The petitioners have to prove that the Scorpio Car is having valid permit and subsisting driving licence to the 1st respondent. The amount of compensation claimed by the petitioners is excessive, so also the interest. The petitioner and the police officer who registered the FIR failed to furnish the requisite copies of documents to the insurance company and that the respondent No.3 is not liable to pay compensation.

5.On consideration of averments of the petition and counter, the following issues were framed for trial:

1. Whether the accident took place due to rash and negligent driving of the rider of Scorpio bearing No.AP-31 AY-0405 resulting in injuries to the petitioner?

2. Whether the petitioners are entitled for compensation and if so to what amount and against whom?; and

3. To what relief?

6.At the time of trial, on behalf of the petitioners, the 1st petitioner herself examined as P.W.1, besides examined S.Venkayya, A.Uma Maheswara

Rao and B.Ramana as P.Ws.2 to 4 and marked Exs.A.1 to A.9. On behalf of respondents none were examined and marked no documents.

7.ISSUE No.1:

The learned counsel for the petitioners and respondent No.3 reiterated their contentions mentioned in the petition and counter during the course of arguments.

8.The petitioners claimed compensation of Rs.10,00,000/- on account of the death of Inti Ramarao, who is the husband of 1st petitioner and father of petitioners 2 to 8 in an accident occurred on 10.04.2014 at 8.15 P.M on NH-16, Near G.Thallavalasa. Therefore, the petitioners have to prove that 5 MOP 1471/2015 XI ADJ/VSP the accident occurred due to the negligence of the 1st respondent while driving the offending Scorpio Car bearing Registration No.AP-31 AF-0405 in rash and negligent manner, resulting the death of Inti Ramarao.

9.In order to prove that the accident was occurred due to the negligence of the 1st respondent while driving the offending Scorpio Car, the 1st petitioner herself examined as P.W.1, besides examined P.Ws.2 and 3. P.W.1 is hearsay witness, who came to know the occurrence. P.W.2 is the son-in-law of the deceased and P.W.1 and husband of 6th petitioner. P.W.2 also hearsay witness. Both P.Ws.1 and 2 have stated that on 11.04.2014 at 8.15 P.M while the deceased was returning home on his motor bike bearing registration

No.AP-31 BA-1912 after filling fuel to his motor bike from the petrol bunk and by taking turn the offending Scorpio Cart driven by 1st respondent in rash and negligent manner dashed against him on rear side. He fell down and sustained injuries on head and other parts. P.W.3 being an employee in Bharat Petroleum

Company outlet at G.Thallavalasa has stated that on 11.04.2014 at 8.00 P.M he filled the fuel to the bike of deceased and while crossing the road the accident occurred due to the negligence of 1st respondent while driving the offending Scorpio Car.

10.The petitioner filed Ex.A.1 Copy of FIR in Cr.No.141/2014 of

Bheemunipatnam Police Station, besides filing Ex.A.5 Copy of Charge Sheet.

The evidence of P.Ws.1 and 2 and Exs.A.1 and A.5 shows that the accident occurred due to the negligence of 1st respondent while driving offending Car.

Immediately after the accident the injured who sustained head injury fell unconscious and that he was shifted to Seven Hills Hospital. From there to

K.G.Hospital and thereafter he was shifted to Aditya Multi Care Hospital and that he died on 17.05.2014. Ex.A.7 Death Certificate issued by the Gram

Panchayat also evidenced by the said fact. Ex.A.8 Discharge Summary issued by Aditya Multi Care Hospital shows that the deceased was admitted on 6 MOP 1471/2015 XI ADJ/VSP 13.04.2014 and discharged on 23.04.2014. Ex.A.9 Discharge Summary issued by K.G.Hospital shows that the deceased admitted on 23.04.2014 and discharged on 09.05.2014. In Ex.A.8 it is mentioned about the reason of sustaining injury i.e., in an accident. At clinical summary it is mentioned that as per M.R.I left parietal scalp hemorrhage and also head injury.

11.Though the learned counsel for the respondent No.3 argued that the Death Certificate does not disclose about the death of the injured was due to injuries. But Exs.A.5 and A.8 establish the fact that the deceased Ramarao sustained head injury in an accident occurred due to the negligence of 1st respondent. As per Ex.A.9 shows about taking treatment by the injured and thereafter on 17.05.2014 he is succumbed to injuries. If the age of the deceased was more than 60 or 70 years it can be said that due to old age unable to bear the injuries and died. Whereas it is not such case. No evidence was adduced by 3rd respondent that the deceased sustained injuries in some other way. The gap between the accident and date of death is within 25 days from the date of accident. As per Ex.A.2 M.V.I Report there is no mechanical defect to the offending car. As per Ex.B.1 the offending vehicle was insured and that the accident was occurred within the policy period. Therefore, it can be safely conclude that the deceased Inti Ramarao sustained injuries in accident and he succumbed to injuries. Therefore, this issue is answered in favour of the petitioner.

12.ISSUE No.2:

In view of the finding given in Issue No.1, the petitioners are entitled just and reasonable compensation as per the ratio of negligence decided above. In order to determine the just and reasonable compensation, it is necessary to determine the age, income of the deceased Inti Ramarao, loss of earnings, transport, medicines, funeral expenses, pain and suffering.

I.AGE OF THE DECEASED:

7 MOP 1471/2015 XI ADJ/VSP

As per the averments of petition, the deceased was 55 years old by the time of accident. In Ex.A.8 the age is mentioned in 50 years and in

Ex.A.9 the age is mentioned 55 years. In Ex.A.6 Medical Bills the age is mentioned as 50 years. The age of the deceased mentioned as 50 years old.

Therefore, the age of the deceased is more than the age of the 1st petitioner and that the age of the deceased could be 55 years old as mentioned in

Discharge Summary issued by the K.G.Hospital.

II.INCOME OF THE DECEASED:

P.Ws.1 and 2 have stated that the deceased Ramarao was doing cultivation and also he was Director of Co-operative Bank, Thagarapuvalasa and that he used to earn Rs.25,000/- per month. Though, P.W.4 was examined to establish the income of the deceased, but he has stated that the deceased used to earn Rs.40,000/- to Rs.50,000/- per annum, which is contrary to the evidence of P.Ws.1 and 2 wife and son-in-law of deceased. Since the deceased was able bodied person and doing cultivation she can earn a sum of

Rs.40,000/- per annum as per the evidence of P.W.4. Out of which 1/5th have to be deducted for his personal and living expenses. Therefore, the net income available to the dependants is Rs.32,000/- it is just and reasonable.

III. LOSS OF DEPENDENCY:

The age of the deceased was 55 years. Therefore, the relevant multiplier applicable as per the case Smt. Sarala Varma Vs.Delhi

Transport Corporation reported in 2009 ACJ 1298 SC is ‘11’. Therefore, loss of dependency is Rs.32,000/- x 11 = 3,52,000/-. The petitioner claimed

Rs.3,00,000/- and it is just and reasonable to award loss of earnings.

VI.TRANSPORTATION:

As per the evidence of P.Ws.1 to 3 the accident occurred on NH-16 near G.Thallavalasa and nearby the Petrol Bunk. From there he was shifted to 8 MOP 1471/2015 XI ADJ/VSP

Seven Hills Hospital, K.G.Hospital and Aditya Mutli Care Hospital. Therefore, it is just and reasonable to award a sum of Rs.5,000/-.

VII.MEDICINES:

As per the evidence of P.Ws.1 to 3 the deceased had taken treatment from the date of accident i.e., 10.04.2014 to till the date of death 17.05.2014. The petitioners filed medical bills Ex.A.6 for a sum of

Rs.1,37,086/-. Therefore, it is just and reasonable to award a sum of

Rs.1,37,086/- as against the claim of Rs.2,50,000/-.

VIII.PAIN AND SUFFERING:

The accident occurred on 10.40.2014. He died on 17.05.2014. The petitioner sustained head and other injuries and he has taken treatment in different hospitals. Therefore, it is just and reasonable to award a sum of

Rs.1,00,000/- as against the claim of Rs.4,00,000/-.

IX. FUNERAL EXPENSES:

It is just and reasonable to award a sum of Rs.15,000/- towards funeral expenses considering the circumstances of the case as against the claim of Rs.30,000/-.

This point is answered accordingly in favour of petitioners.

12.POINT No.3: In view of the afore mentioned reasons, the petitioners are entitled compensation as follows:-

Loss of Dependency a sum of Rs.3,00,000/-

Pain and sufferingRs.1,00,000/-

Transportation Rs. 5,000/-

Medical Expenses Rs. 1,37,086/-

Funeral ExpensesRs. 15,000/- ---------------------

TotalRs.5,57,086/- ---------------------

Coming to the liability aspect, the 1st respondent is the driver of the offending Scorpio Car and the 2nd respondent being the owner and 3rd 9 MOP 1471/2015 XI ADJ/VSP respondent being the insurer are liable to pay the compensation, since the accident occurred due to the rash and negligent driving of 1st respondent.

Respondents 1 to 3 are liable to pay the compensation jointly and severally.

Therefore, the petition is to be allowed.

13.In the result, the petition is allowed partly with proportionate costs, by directing the respondents to pay compensation amount of

Rs.5,57,086/- with interest at 6% from the date of petition. The 3rd respondent is directed to deposit the entire amount within a month. On such deposit the 1st petitioner is entitled Rs.2,07,086/- with interest. The petitioners 2 to 8 are entitled each Rs.50,000/- with interest. The petitioners are permitted to withdraw the same as the accident occurred in the year 2014. Advocate Fee fixed at sum of Rs.2,000/-.

Typed to my dictation to the Stenographer Gr.II, corrected and pronounced by me in the open Court, this the 15 th day February 2019.

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.

APPENDIX OF EVIDENCE

No. of witnesses Examined on behalf of

Petitioners: Respondents: PW.1: Inti Appala Narasamma. -None- PW.2: S.Venkayya. PW.3: A.Uma Maheswara Rao. PW.4: Bora Ramana.

Documents Marked on behalf of

Petitioners:

Ex.A1/11.04.2014: Attested True Copy of FIR. Ex.A2/ –: Attested True Copy of M.V.I.Report. EX.A3/21.01.2014: Attested True Copy of Insurance Policy. Ex.A4/ –: Attested True Copy of Driving Licence of the driver. Ex.A5/12.06.2014: Attested True Copy of Charge Sheet. Ex.A6/ –: Original Medical Bills. Ex.A7/17.05.2014: Original Death Certificate. Ex.A8/13.04.2014: Original Discharge Summary of Aditya Multicare Hospital. Ex.A9/09.05.2014: Original KGH Discharge Summary of deceased.

Respondents: NIL 10 MOP 1471/2015 XI ADJ/VSP

Chairman, Motor Accidents Claims Tribunal-cum- XI Addl.District Judge, FAC/VII Addl.District Judge (FTC), Visakhapatnam.