Sri P.Govardhan

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IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE AT ANAKAPALLE

(FAST TRACK COURT)

Present Sri P.GOVARDHAN

Principal Senior Civil Judge

FAC Addl. Senior Civil Judge (FTC) Anakapalle

Tuesday, this the 02nd day of February, 2021

ORIGINAL SUIT NO. 67/2006

Between:

Shaik Abdullah, S/o late Rasool, Muslim, aged 48 years, business, R/at: Door No.12.1.40, Anakapalle.

... Plaintiff.

And:

1.Boddapu Satyavathi, W/o Satyarao, aged about 40 years, Hindu, house hold duties,, R/at: near Velpula Veedhi, Anakapalle.

2.Dasari Tatarao, S/o Kannayya, aged about 35 years, R/at: rest –do--

3.Ukkum Suryanarayana, S/o. Not known, aged about 40 years, Hindu, business, Sai Manikanta Cool Parlour, Dr.No.3.1.1, Narasingaraopeta, Anakapalle-1, (3rd defendant is added as per orders in IA.776/2006 dt:6.11.2009).

...Defendants.

The suit is coming before me for final hearing on 04-01-2021, in the presence of Sri.A.V.S.Bhavani Prasad, Advocate, for the plaintiff, and of Sri.K.V.V.Gopala Rao, Advocate, for Defendants. Upon perusing the material, upon hearing the arguments, and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

This suit is filed by the sole plaintiff, initially against defendants 1 & 2 for declaration of plaintiffs’ title to the schedule property, for consequential relief of possession after evicting the defendants and for future profits. Later, as part of the schedule property was sold by defendants 1 & 2 to the 3rd defendant, the plaintiff filed I.A.776/2006 and as per the 2 orders dt:06.11.2009 the said petition was allowed and 3rd defendant was impleaded to the suit.

2.The contentions of the plaintiff as seen from the neat copy of the plaint are as follows:-

Originally the entire plaint schedule property belonged to Shaik

Ibrahim Sahib, son of Shaik Mohammed Rasool. He executed Will dt:6.6.1986 in a sound and disposing state of mind bequeathing the entire property including the plaint schedule property, in favour of the plaintiff and died.

Therefore, the plaintiff succeeded to the property conveyed under Will

dt:6.6.1986. The Municipal Corporation, Anakapalli issued notice to the

plaintiff dt:5.5.2005 informing the plaintiff that an area of 18.75 sq.meters is being acquired for road widening. Subsequently, the Anakapalli Municipal

Corporation acquired the same for road widening and the plaintiff is taking steps for recovery of the compensation. Defendants have no right, title or possession to the schedule property or the acquired property. The 1st defendant created fake and nominal link documents of title over the schedule property who occupied the schedule property by colluding with

Anakapalli Municipal Corporation to get compensation. The plaintiff issued a registered lawyer’s notice dt:10.10.2005 to the 1st defendant and the

Ankapalli Municipal Corporation. The defendants did not give any reply. The plaintiff belonged to a Minority Muslim Community and defendants belonged to a dominant community. The 1st defendant recently trespassed into the schedule property and occupied part of the same and even trying to make constructions therein. After the plaintiff issued notice to the 1st defendant, defendants 1 & 2 colluded and the 2nd defendant was given a small portion of the schedule property by the 1st defendant. As defendants 1 & 2 came to the 3 schedule property and tried to make constructions in the plaint schedule property, which was stopped by the plaintiff at the intervention of the elders, as such, the plaintiff preferred to file the present suit for declaration, separate possession and eviction of defendants from the plaint schedule property.

3.Summons received by defendants 1 & 2, who filed their common written statement. After I.A.776/2006 was allowed on 6.11.2009, the matter was posted for written statement of the 3rd defendant and additional written statements of Defendants 1 & 2. Defendants 1 & 2 reported no additional written statement and the 3rd defendant filed a memo on 26.03.2010 adopting the written statement of defendants 1 & 2. Therefore, the contentions of all defendants as seen from the common written statement of defendants 1 & 2 are as follows:-

The plaintiff is not the owner of the plaint schedule property.

The boundaries and the extents shown by the plaintiff are not correct and they are created by the plaintiff for filing this suit and to grab the property of defendants. The schedule property is not the property of Shaik Ibrahim

Saheb and he never executed any Will dt:6.6.1986 in favour of the plaintiff.

The plaintiff did not mention about the date of death of Shaik Ibrahim Saheb and he did not mention as to when he acquired the plaint schedule property under the Will dt:6.6.1986. The said Will is a forged and fabricated document, as such the death certificate of Shaik Ibrahim Saheb was not filed and the particulars of his death were not mentioned in the plaint.

4.There is no necessity to the Anakapalli Municipal Corporation to inform the plaintiff for land acquisition proceedings because the plaintiff is not the right person in respect of the plaint schedule property. It is 4 defendants who are the owners, as such the Anakapalli Municipal Corporation approached the defendants. If at all Anakapalli Municipal corporation approaches defendants then the plaintiff can make a representation to the

Anakapalli Municipal Corporation on behalf of his wife as some property was purchased by his wife during the year 1988 under Registered Sale deed, under which two items were purchased by her and the boundaries of the said two items are as follows:-

Item No.1:-

East : the property of Thakasi people; West: The property or her vendor,

North: Trunk Road and South the 2nd item of the wife of plaintiff which is purchased by her as stated above.

The 2 nd item is bounded by

East: The property of Thakasi people, West:- The house of her vendor, North : the 1st item and South : the property of her vendor.

The said property was acquired by the Anakapalli Municipal

Corporation under Acquisition process but not the property as stated by the plaintiff in the plaint. The 1st defendant is a home-maker and discharging her house hold duties and she had no necessity to create fake documents. As the 1st defendant thought that issuing of legal notice to the plaintiff is meaningless as such she kept quite, as the notice sent by the plaintiff is not related to her property. The notice served by the plaintiff establishes that the acquired property is situated towards East of the plaintiff’s property and on that score the suit is liable to be dismissed because the Eastern portion boundary is the property of Thakasi people. Therefore under the said circumstances, the 1st defendant did not give any reply and there is no necessity to give reply.

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5.The 1st defendant purchased the plaint schedule property during the year 1994 for a valuable consideration from rightful owner and she is in possession and enjoyment of the same with absolute rights. Assessment

No.8337 of 2014, door number 12.1.43 old 12.1.40 were allotted to the 1st defendant and the said property is bounded by

East : The joint wall of the property and the property of B.Satyarao; South :

The joint wall of the property and the property of B.Satyarao; West : the joint wall of this property and the property of Thakasi people and North is Road.

Subsequently, after her purchase, she mutated her name in the Anakapalli

Municipal Records and paying the tax till today.

6.Defendants also received intimation from Anakapalli Municipal

Corporation for road widening, calling for objections. There is no property in between the property of the 1st defendant and the theater by name ‘Satya theatre’ thus, the plaintiff nor his executant is no way concerned to it. The said property was originally occupied by the Dasari Musalayya, the father of

Boddapu Chinnayya and Veerabadrayya, who is a grand father of Vukkum

Suryanarayana and they are in possession and enjoyment of the same. It was succeeded by generation to generation i.e., from Musalayya to Kannayya, from Chinnayya to Satyarao and from Veerabadrayya to Sarveswararao and to confirm the same, the Anakapalli Municipal Authorities collected the property tax from them and hence they acquired the title by adverse possession also and they are paying the property taxes, electricity charges for their use and occupation, necessities since from several years. Subsequently, the grand son of Dasari Musalayya, the 2nd defendant, the grand son of

Chinnayya by name Satyarao and the grand son of Veerabadrayya, by name

Suryanarayana succeeded the property from their ancestors and doing their 6 individual business respectively by paying tax to the Anakapalli -Municipal

Authorities. Even the ancestors of the 2nd defendant, Chinnayya and

Veerabadrayya, paid and released the mortgaged property on behalf of the mortgagor.

7.After coming to know all facts from defendants 1 & 2 one person by name Shaik Basha requested defendants to pay amount to him as he badly needed the money as he is the legal heir of the Galeb as the Galeb mortgaged the said property. After hearing defendants 1 & 2 and one

Satyarao and Suryanarayana, the said property was released by their fore- father from the mortgagee and then he requested them to pay some thing for his maintenance. Therefore, due to sympathy, Boddapu Satyarao collected amounts from the 2nd defendant and V.Suryanarayana and paying the same to him for some time by way of money order up to 1994. Their grand father paid the mortgaged money to the mortgagee on behalf of the mortgagor, as such the request as stated on behalf of Shaik Basha, only on the ground of humanity the request was considered by Satyarao, V.Suryanarayana and the 2nd defendant and they decided to pay money through Satyarao to Shaik

Basha.

8.In the year 1994, the said three persons Satyarao,

V.Suryanarayana and 2nd defendant received notice from the office of

District Wakf Committee of Visakhapatnam on 10.12.1994 stating that there is a vacant land about 95x20 feet under property known as Dharmasala situated on the Northern side facing to the road which belongs to District

Wakf Committe of Visakhapatnam and the said three persons occupied 31x21 feet and requested them to surrender the said property. After receipt of the notice the said three persons got alarmed and issued a reply notice through 7 the counsel to the said Wakf Board, as they are the absolute owners of the same. The Wakf Board received notice and kept quite.

9.The said three persons Satyarao, the 2nd defendant and

V.Suryanarayana got filed a Caveat petitions before the Principal Junior Civil

Judge Court at Anakapalli with a specific boundaries and extents during the

year 1994. Therefore, the question of property owned by Shaik Ibrahim Saheb and execution of Will by him on 6.6.1986 is meaningless and he cannot convey a better title than what he, as he never owned any property. Originally one

Md.Galeb son of Shaik Ibrahim Saheb who is the executant of the alleged Will

dt:6.6.198, the said Md.Galeb mortgaged property under registered

mortgaged deed during the year 1925 as such execution of Will by Shaik

Ibrahim Saheb is false. During the year 1925 itself the said Shaik Ibrahim

Saheb was no more as such the suit is liable to be dismissed in limini. There is no cause of action to the plaintiff to institute the suit. Defendants 1 & 2, have the knowledge that the name of the Theatre was changed from Prameela to

Satya during the year 1977. The 2nd defendant, Boddapu Satyarao and

Vukkum Suryanarayana acquried the right, title and interest over the property situated within the boundaries: South : The property of Saragadam

Sriramachandramurthy, East : Satya Theatre; West: the 1st defendant’s property and towards North : road, by way of succession and by way of

Adverse possession also, since several decades. Therefore the plaintiff was never in possession and enjoyment of the plaint schedule property and he has no right to claim declaratory relief in respect of the plaint schedule property as such the suit is liable to be dismissed with costs.

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10.Basing on the above pleadings the following issues are settled for trial:

1) Whether the plaintiff is entitled for declaration to the schedule property?

2) Whether the plaintiff is entitled the possession of the plaint schedule property?

3) Whether the plaintiff is entitled to future profits as prayed for?

4) To what relief?

11.In order to prove his case, the plaintiff himself examined as PW1, and got examined PWs 2 & 3, and marked Exs.A1 to A6. On the other hand, the 2nd defendant himself examined as DW1, and got marked Exs.B1 to B12.

12.Both parties filed their respective written arguments.

13.ISSUES Nos.1 & 2:-

1) Whether the plaintiff is entitled for declaration to the schedule property?

2) Whether the plaintiff is entitled the possession of the plaint schedule property?

As the discussion of evidence is common for both the issues, I am answering both the issues under common head and discussion.

14.The Learned Counsel for the plaintiff relied upon several

Judgments in support of his contentions. For better appreciation of facts, I am initially discussing the citations which are not relevant for the determination of this suit and thereafter, I will discuss the relevant citations which are relevant to the facts on hand.

15.Now coming to the discussion regarding the citations which are not relevant to the facts on hand.

Firstly the Learned counsel for the plaintiff relied upon the Judgment between ;Smt.Prem Latha Vs. Arhant Kumar Jain in AIR 1973 SC 626.

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The said Judgment is dealing with restitution of conjugal rights in which the Hon’ble Supreme Court held that the question of burden of proof has no importance as both parties adduced their evidence and the courts appreciated that evidence. As the matter is relating to the restitution of conjugal rights, it has no relevance to the present facts on hand.

Secondly, the Learned Counsel for the plaintiff relied upon a

Judgment between; Sadananda Pyne Vs. Harinam Sha and another in

AIR 1950 Calcutta 179

In the said Judgment the principal question which came up for determination is “whether the Dikshaguru of Hindu not being the person

who invested him with the sacred thread is his heir, on failure of other

heirs”. The said Judgment is not relevant to the facts on hand as Will executed by a Mohammadin is the point for determination of this suit, whereas the said Judgment dealt with revocation of probate and also

Dayabhag system and the finding of Hon’ble High court that the person who gives the Upanayan will inherit as Acharya and a Dikshaguru not being a person who gives Upanayan or any other preceptor – Whether spiritual preceptor or not – will not inherit.

Thirdly:- Two Judgments with regard to Section 47 of Evidence Act and examination of hand writing expert under Section 47 of Evidence Act are relied upon and the said two judgments are as follows:-

1.Tarini Kumar Panday Vs. The State; in AIR 1960 Calcutta 318 2.re Mahalingayya Muddayya Pujari Vs. the State

AIR 1959 Mysore 185

Both the said Judgments are with regard to a criminal cases wherein the Hon’ble High court appreciated the evidential value of a hand writing 10 expert and the specimen hand writings. However the said aspects have no relevance to the present proceedings as the evidential value of a hand writing expert is not a point for determination in this suit as such they are not applicable to the facts on hand.

Fourthly in a Judgment between;

Bhupendra Narain Mandal Vs. EknarainLal Das and other

AIR 1965 Patna 332

The said Judgment dealt with Representation of The People Act., (43 of 1951) which is not relevant to the present suit as the present suit is filed for declaration and separate possession.

Fifthly; in a citation between ; Ramchandra Dhondbaji Gujar Vs.

Jhibal Shioram Buradkar in AIR 1940 Nagpur 240

Wherein the Hon’ble High Court of Nagpur dealt with examination of attesting witness under Section 68 in case of bond. With the facts on hand Will is the instrument which is prepounded by the plaintiff as such the question of appreciation of the bond is not a point for determination as such the said citation is not applicable to the facts on hand.

Sixthly, in R.J.Mohamed Jacub Sahib (died) and others

Vs. The Indian Bank Ltd., Madras and another in AIR 1975 MADRAS 220

The said Judgment dealt with Section 73 of Contract Act., and also the the duty of the bank and customer and the client for damages, which are not relevant to the facts on hand as Section 73 of Contract Act is nowhere contended by the plaintiff.

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Seventhly; in a Judgment between ;

Pachakhan Vs. H.D.Gopalakrishna Rao and others

in AIR 1975 KARNATAKA 179

Wherein the Hon’ble High court of A.P.,Karnataka discussed at para No.9 & 10 about the aspect that ‘recital’ in a document between party to suit and stranger is inadmissible in evidence, unless such recitals amounts to admission against the interest of such party. However, the point which was discussed in the said Judgment is entitlement of the person claiming adverse/paramount title against both mortgagor and mortgagee in a mortgage suit, under Order 1

Rule 10 CPC. However with the facts on hand as the present suit is for declaration and recovery of possession, the question of impleading a person claiming adverse possession in a mortgage suit does not arise.

16. Now coming to the relevant citations applicable to he facts of the suit, filed by the Learned Counsel for the plaintiff and the discussion on the said citations. With regard to Article 142 of the Limitation Act and the meaning of expression “discontinuance” in Article 142, the Learned Counsel for the plaintiff relied upon a Judgment in;

M.Aziz Uddin Vs. Haji Maqbul Hussain

AIR 1939 Allahabad 257

Wherein the Hon’ble High Court of Allahabad at page 259 held as follows:- “Mere absence of possession of the rightful owner is not sufficient to defeat his title. An owner is not barred by simple non-user for any length of time, so as long as no other person has been in possession. “Discontinuance”

In Article 142 of Limitation Act, means that a person in possession goes out and is followed into possession by another person, because unless he is so followed, 12 he will in Law be deemed to continue in possession and therefore there will be no discontinuance”.

The Hon’ble High court of Allahabad also discussed with regard to appreciation of evidence when both parties adduced evidence and held at page 258 as follows:- “There can be no question of any decision on the basis of onus of proof where both the parties produce evidence. It is the duty of the court to arrive at a correct finding on the whole evidence before it. If there is any lacuna in the plaintiff’s evidence, but it is supplied by the defendants evidence, it would be not only unfair, but would lead to injustice if the court work to depend on the plaintiffs evidence only where the onus lay on him. It is however open the defendant not to leave any evidence where the onus is upon the plaintiff. But after having gone into the evidence, he cannot ask the court not to look at and act on. It is his evidence and he is bound by it”

There is no dispute with regard to the said ratio and with the case on hand both the parties adduced their respective evidence and this court can look into the said evidence while appreciating the burden of proof and also while deciding the case on merits.

17. On the question of attestation of Will the Learned counsel for the plaintiff relied upon two Judgments, the first Judgment is ;

Ramjilal Vs. Ahmad Ali and another

AIR 1952 MADHYA BHARAT 56

Wherein the Hon’ble High court of Madhya Bharat at para No.3 held as follows:- “The finding that the Will set up by the plaintiff is proved has not been challenged in the memo of Appeal but the Learned Counsel for the Appellant 13 contended that there was no attestation proved. Under the Muhammadan Law, however no formalities are needed and an unattested Will can be admitted and proved”.

The 2 nd citation on the said aspect is:-

Sarabai Amibai Vs. Mahomed Cassum Haji Jan Mahomed

(1919) 21 BOMBAY LAW REPORTER 49

In the said Judgment at para No.4 the Hon’ble High Court of Bombay held that “as regards the execution of Will under Muhammadan Law, no attestation is necessary”.

With regard to form of a Will under Muhammadan Law, the Learned

Counsel for the plaintiff relied upon a Judgment between;

Adbul Hameed Vs. Mohammad Yoonus and others

AIR 1940 MADRAS 153

In the said Judgment at page No.154 the Hon’ble High court of Madras held that “no writing is required to make Will valid and no particular form even of verbal declaration is necessary as long as the intention of the testator is sufficiently ascertained. The Hon’ble High court of Madras held that “a paper drawn up in accordance with the instructions of the testator, and assented to by him will be a good will, though not signed. And if a paper contains the testamentary wishes of the deceased, its form is immaterial”.

On the same aspect of no particular form of verbal declaration is necessary as long as the intention of the testator is sufficiently ascertained., the

Learned Counsel for the plaintiff relied upon a Judgment between Vazeer

bee and another Vs. Putti begum AIR 1986 A.P.,159. The ratio laid down in

the said decision is not repeated as it is already covered in the previous

citation.

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18. It is the contention of the Learned Counsel for the plaintiff that even though some documents are marked on behalf of the defendants, mere marking of documents as an exhibit does not dispensed with proof and accordingly relied upon a Judgment between ; Sait Tarajee Khimchand and others Vs. Yelamarthi Satyam and others in AIR 1971 SC 1865.

In the said Judgment at para No.15 the Hon’ble Supreme Court held as follows:- “The mere marking of an exhibit does not distant with the proof of documents. It is common place to say that the negative cannot be proved.

The proof of the plaintiffs’ books of account became important because the plaintiffs’ account were impaged falsely by the defendants’ a case of larger payments that those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs books could not have supported the plaintiffs.

19.On the question of determination of objections after marking of documents the Learned Counsel for the plaintiff relied upon a Judgment between G.Sudhaker Reddy Vs. M.Pullaiah in Civil Revision Petition

No.4998 of 2014 dt:6.3.2015.

In the said Judgment at Para No.13 he Hon’ble High court of A.P., held as follows:-

Para No.13: When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) sub- ject to such objections to be decited at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable 15 the Judge or Magistrate can keep such evidence excluded from considera- tion. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a doc- ument the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.

In Para No.20 the Hon’ble of High Court held as follows:-

In a matter like this, unless and until there is a judicial determination, it cannot be said that it has been admitted in evidence, though it is marked. Mere marking of the document itself is not sufficient and there should be judicial determination as to the nature of the document and its admissibility. Further, the words admitted in evidence appearing in Section 36 of the Stamp Act means admitted after judicial consideration of the circumstances relating to the admissibility. There shall be a judicial determination of the question whether the document can be admitted in evidence or not for want of stamp duty etc. In this case, on the date when the document was marked, the learned Judge has not applied his mind as to the admissibility of the document and consequently, there was no judicial determination in regard to the objection raised by defendants 4 and 5. Merely because the document was marked, it would not mean that the objection raised by the other side has been rejected. In the instant case, there is absolutely no record that on that day i.e., 31-12-2003 or any day before that, the trial Court determined judicially the question regarding the admissibility of

Ex.B38. No opportunity was given to the other side and the document was mechanically marked without there being judicial scrutiny. In fact, even otherwise, the Court may, at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection (Order XIII Rule 3 CPC). In this case, the same thing happened when a 16 proper application was filed by the respondent-defendants 4 and 5. The application was considered and the impugned order was passed.

In this case, even though all the documents on behalf of the plaintiff are marked subject to objections, the nature of objections are not at all stated while marking. Hence, no finding in this Judgment is required on objections except finding on Ex.A1 Will, the recitals of which have to be perused and a Judicial determination on that instrument is required and the same will be discussed in this Judgment at appropriate stage.

20.With regard to the description of boundaries in a document between 3rd parties, whether can be said to be a statement against the proprietary interest of the person making it, the Learned counsel for the plaintiff relied upon a Judgment between Pramatha Nath Choudhuri and others Vs. Krishna Chandra Bhattacharjee in AIR 1924 Calcutta 1067, the

Hon’ble High Court of Calcutta held as follows:-

“I find great difficulty in seeing how a min a mere description of boundaries in a document between 3rd parties can be said to be a statement against the proprietary interest of the person making it. It may well be that, for some ulterior purpose boundaries may not be correctly described in a document, and if this is so, how a statement of that nature can be said to be against the proprietary interest of the person making it, it is some what difficult to ascertain.

The Hon’ble High Court of Calcutta also held at para No.4 as follows:-

In the present case the executant of the document is dead : but even so, for the reason which I have already stated I do not think the document is 17 admissible in evidence under the provisions of Section 32 of Indian Evidence

Act.

On the question of possession, the Learned Counsel for the plaintiff relied upon a Judgment between; Munshi Abdul Raheem Khan and others

Vs. Fakir Mohammed Sha and another AIR 1946 Nagpur 401.

Wherein the Hon’ble High Court of Nagpur at para No.77 held that “adverse possession in such circumstances is a notion almost void of content”.

The said circumstances were discussed at para No.76 by the Hon’ble High

Court of Nagpur which reads as follows:

Para No.76:-It will be thus be seen that in none of these previous decisions except the decisions 1880-81 has the question of the defendant’s ownership of these properties been decided against the plaintiffs, but what has always been decided in that the defendant’s father was a mutawalli and was not liable to be removed and that thereafter the defendant was working as a mutawalli and that he had a preferential claim to continue to work as a mutawalli of the mosque. The defendant and his father being thus mutawallis of the mosque which was thus a public trust, and we having held that the properties in suit were parts of that trust as appurtenances thereto, those properties also came under their management and they were managers of those properties as such mutawallis. All the acts of the defendant and his predecessors which are claimed as acts showing adverse possession are therefore referable to their lawful fiduciary position as mutawallis. They were not therefore entitled to assert adverse possession against the trust”.

Regarding the loca-standi of challenge made to the probate Will of the deceased, the Learned Counsel for the plaintiff relied upon a Judgment in

Rajiiv Ram Prasad Vs.Rusthum Sam Boyce in AIR 2003 Bombay 242.

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Wherein at Para No.7 the Hon’ble Court of Bombay held as follows:

Para No.7:-“There is no dispute about the proposition laid down by this decision but it cannot be ignored that the person applying for revocation must have some right or locus-standi to do so. It may be pointed out that the deceased as well as the respondent are Parsis. Mr.Madon drew my attention to the decision in Perviz Sarosh Vs. Mrs. Viloo Plumber a learned single Judge of this court (Nijjar,J) held that in order to have locus-standi for challenging the

Probate in respect of the Will of a Parsi on the ground set out in S.263 of the

Indian Succession Act, right in the inheritance under S.51 of the Indian

Succession Act., has to be made out and the same is pre-requisite for raising challenge under S.263 . The Learned Judge observed that challenge to the probate under S.263 is not in the nature of a public interest litigation and it can only be at the instance of a person who has a slight interest in the estate for themselves. Admittedly, the petitioner is a non-Parsi and he is not a legal heir of the deceased. Therefore, he has no locus standi or interest to challenge the probate under S.263 granted in favour of the respondent. All that the petitioner claims is a right of sub-tenancy in respect of the above mentioned house flat which belonged to the deceased. The question whether the petitioner is or is not a tenant or sub-tenant of the said suit house is pending before the Small Causes

Court”.

The Learned Counsel for the plaintiff relied upon another Judgment in;

Ramani U.Krishnan vs. Dr.Amminni Praveen Joshua in AIR 2005 Madras

423 .Wherein the Hon’ble High Court of Madras held as follows:- “The grant of probate or letters of Administration may be revoked or annulled for a just cause, but the case of the applicant claiming right through an agreement of sale will not come under the purview of just cause as stated in 19

S.263, Asper S.54 of the Transfer of Property, Act, 1882, any contract for sale of immovable property does not, by itself, create any interest in or charge on such property. The applicant does not have any interest or charge over the property and therefore she is not the appropriate person to seek for revocation of order of probate. To make it clear that a person who seeks for revocation of Probate should have a right to claim citation or to oppose the grant. The applicant has no caveatable interest, since remedy is only in respect of agreement of sale, which has no connection with the probate of Will. If at all the agreement is true and genuine, applicant can take action through suit by impleading the propounder and the present owner of the property, subject to law of Limitation”.

The Judgment relied upon by the learned Counsel for the plaintiff in

Srinivas Das Bavry Vs. Meherbai and others in Crl.Appeal No.156/1915 is not discussed in this case as the said Judgment with regard to the contracts.

21.Now coming to the ingredients of a Will executed by a

Mohammadan with regards to the object of Will, the Learned Counsel for the plaintiff contends that “a Will from the Musalmaan’s point of view is a divine institution, since his exercise is regulated by Koran”. He further contends that “a Will offers to the testator the means of correcting to a certain extent the law of succession and Law of enabling some of those relatives who are excluded from inheritance to obtain a share in whose and after recognizing the services rendered to him by a stranger or the devotion to him in his last moments. Hence the Learned counsel for the plaintiff contends that the

Muslim makes a Will for attaining objects which may include religious, charitable, for services or any other object which is not prohibited by his Law.

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With regard to the requisites of Will the Learned Counsel for the plaintiff detailed the requisites of a valid Will under Mohammadans Law which are as follows:-

1. The testator must be competent to make a Will.

2. The Legatee must be competent to take the legasee or request.

3. The subject of request must be a valid one.

4. The request must be within the limits in force on the testamentary power of a Muslim.

With regard to the proof of Will the Learned Counsel for the defendant relied upon a Judgment of Ramesh Varma (dead) through Lrs Vs.

Lajesh Sacsena (dead) by Lrs., and another in 2017(3) ALD 188 SC.

In the said Judgment at para Nos.15 to 17 the Hon’ble High

Court discussed about the proof of Will and also Section 68 of the Evidence

Act., In the said Judgment the Hon’ble Supreme Court held that a propounder to the Will has to establish that the Will was signed by the testator at relevant time in a sound and disposing state of mind and to prove the Will atleast one witness should be called upon for proving the execution of the

Will as per the mandate under Section 68 of the Evidence Act.

22.With regard to the ownership of Sk.Ibrahim Saheb who executed

Ex.A1 Will/’Wasiatnama’, over the plaint schedule property, it is elicited from the cross examination of PW.1 on 15.02.2018 that “abutting the schedule

property my wife used to have property, it was merged in the road widening

and I do not remember the extent”. It was also elicited from the cross examination of PW.1 that he filed property tax receipt in the court for the schedule property and the tax paid in the name of his uncle Shaik Ibrahim

Saheb. PW.1 further testified in his cross examination at page.3 that 21

Sk.Ibrahim Saheb used to maintain choultry in the schedule property and the measurement of total extent of property is from East to West about 40 feet and from North to South about 50 feet and Defendants encroached an extent of 17 x 8 feet.

23.PW.3 is the scribe of Ex.A1 Will who deposed that at the time of drafting Ex.A1 Will, the executant / brought his title document and after perusing those documents he scribed Ex.A1 Will in telugu. He further testified that the document perused by him are house tax receipts, which shows the information of the door number and assessment number. He further deposed that he mentioned full description of the said property in

Ex.A1 Will.

24.DW.1/2nd defendant deposed that he did not purchase any part of the schedule property and he occupied the property long back. He further deposed in his cross examination dt: 13.09.2019 that there is a tiled house in place of the present structure in the schedule property and in the road widening process the said tiled house was removed. Ex.B12 tax receipts show that the name of the 2nd defendant was not mutated in EX.B12 and most of the receipts of Ex.B12 are related to old tiled house. PW.1 also clarified that in the year 2005 the old tiled house was demolished during road widening process. He further deposed that the name of the Ibrahim Saheb is there in

Ex.B8 tax receipts. Regarding the boundaries, it is the testimony of PW.1 at page.7 of his cross examination on 17.10.2019 as follows:- “it is true on the North of the property taken by the Municipality, it is a tiled house and a trunk road on the western side, a sweet stall of Takasi

Kannababu is there, on the Eastern side Prameela theatre is there and the present name of the theater is Satya theatre. He further clarified that the 22 said choultry referred by him is the old tiled house and in the year 2005 they demolished the remaining tiled house and constructed slabbed house in that place by the end of the year 2005. Therefore, the evidence of PW.1 as well as the testimony of the 2nd defendant /DW.1 show that Sk.Ibrahim Saheb was the owner of the tile house covered by the plaint schedule and the said ownership cannot be denied as documents filed by defendants also show the name of the choultry and the name of Sk.Ibrahim Saheb vide exhibit B8 tax receipts, as admitted by DW.1 in his cross-examination. DW.1 also admitted that most of the tax receipts under EX.B12 belong to old tiled house and the said old tiled house is with reference to the choultry of Sk.Ibrahim Saheb.

25.The suit is filed by the plaintiff for declaration and possession of plaint schedule property, as such to establish that the plaintiff is entitled to the relief of declaration, he has to establish his title over the plaint schedule property and if he establishes his title and if he establishes that the defendants did not perfect their title by adverse possession over the part of the schedule property, then he would be entitled to the relief of possession.

The prime document relied upon by the plaintiff is Ex.A1 Will which was seriously disputed by defendants contending that Sk.Ibrahim Saheb never owned any property, as such he did not execute Ex.A1 Will in respect of the plaint schedule property in favour of the defendant. The legal position relied upon by the Learned counsel for the plaintiff as discussed by me in the preceding paragraphs with regard to the proof of Will assumes significance.

Even though the learned counsel for the defendant relied upon the

Judgment between Ramesh Varma (dead) through Lrs Vs. Lajesh Sacsena (dead) by Lrs., and another in 2017(3) ALD 188 SC, the said Judgment is only relating to succession among Hindus but not succession among Muslims and 23 the legal position as regards the Will under Mohammadan Law is totally different.

26. As rightly contended by the Learned counsel for the plaintiff, in a Judgment between

Bombay High Court Sarabai Amibai Vs. Mahomed Cassum Haji Jan

Mahommed . (1919) 21 BOMBAY LAW REPORTER 49 “As regards the execution of Will under Mohammadan Law no attestation is necessary and a Will under Mohammadan Law is the legal declaration of the intention of the testators with respect to his property and the said declaration must be a ‘legal declaration’. Even under Mohammadan

Law, an unsigned declaration or even and oral declaration of Will is sufficient, and the form of the Will is immaterial.”

27.In the lines of the same principles, the Learned counsel for the plaintiff relied upon another Judgment of Hon’ble High court of Madras in ;

Adbul Hameed Vs. Mohammad Yoonus and others

AIR 1940 MADRAS 153

Which also lays down that “under the Mohammadan Law no writing is required to make a Will valid and no particular form of verbal declaration is necessary as long as the intention of the testator with is sufficiently ascertained”.

28. Therefore now coming to the consolidation of the Judgments relied upon by the plaintiff and upon the consolidation the following are the prime ingredients of a Will under Mohammadan Law which are as follows:- 1A Will does not expressly prepound any specific formality for its execution.

24 2 The intention of the legator place a crucial role in validating a Will and the said intention must be explicit, clear and unequivocal in nature.

3. A Will can be made either orally or in writing or even by gestures referring to the legal declaration.

4. Even a Will need not be signed by the attestater and it is not compulsorily attestable document.

29. Thus, attestation of Will is not required under Mohammadan

Law unlike in the Wills under Section 63 of Indian Evidence Act., Therefore, even though the plaintiff got examined PW.2 who is son of one of the attestors of Ex.A1 Will, infact examination of attestor in Mohammadan Law is not at all necessary to prove the execution of Will.

30. It is the evidence of PW.1 that as an absolute owner of the plaint schedule property Sk.Ibrahim Saheb executed a Will under Ex.A1 in his favour. PW.1 deposed in his cross examination at Para.4 that he filed a suit for total extent of the property including the extent encroached by the defendants which is 17 x 8 feet. It was further elicited from the cross- examination of PW.1 Dt.10.9.2018 that he did not mutate his name in the concerned records in respect of the schedule property in pursuance of Ex.A1, after the death of Sk.Ibrahim Saheb. Even though the plaintiff did not file the full particulars of the death of Sk.Ibrahim Saheb, it was elicited from his cross examination dt:10.9.2018 that two years after Ex.A1 Will was handed over to him, the testator Sk.Ibrahim Sahem died. However, it is also the duty of the

Plaintiff to file death certificate of Sk.Ibrahim Saheb but it was not filed by him. The evidence of PW.1 shows that the property covered by Ex.A1 Will was not got mutated in his name which shows that Ex.A1 Will was not acted upon.

However, the plaintiff claims right over the plaint schedule property and only 25 contends that part of the plaint schedule property in an extent of 17 x 8 feet was encroached by defendants and he claims declaration over the said property encroached also. Defendants claim is the plea of adverse possession in respect of the said encroached portion but they miserably failed to establish that their interest over the said encroached portion is adverse to the interest of the plaintiff for a continuous period of 12 years. Moreover, the plaintiff being the dominus litus, filed the plaint with certain reliefs and the defence put forth by defendants is not established. Even defendants failed to establish the specific extent over which they claimed the relief of adverse possession. Even though defendants contended that Mahammed Galib mortgaged the schedule property with Sayyed Ameer Saheb under registered mortgage deed Dt.10-08-1925 and when the latter failed to release the mortgage, the forefather of defendants 1 and 2 by name Mahammed Basha released the mortgage and doing business in the schedule property, the said aspect was not established by defendants. Even the said mortgage deed was not filed nor established by defendants. On the other hand it is for the plaintiff to establish his contentions and his right, title and interest over the plaint schedule property.

31.Now coming to execution of Ex.A1 Will and the right of the plaintiff in respect of Ex.A1 Will. The power of a testator to execute a Will is governed by Hanafi school of Sunni Jurists. In a book of Family Law 2 written by A.K.Jain, the object of Wills and the testamentary power and it limits are categorically discussed as follows:- “The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time 26 the prophet has declared that the power should not be exercised to the injury of the lawful heirs.

A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred. Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance. A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.

Testamentary Power and its Limits (Bequeathable one-Third)

A Muslim does not possess an unlimited power of making disposition by Will. There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property.

This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs. No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws). A bequest of entire property to one heir to the exclusion of other heirs cannot be done without the consent of other heirs.

Consent by heirs under Sunni law, shall be given only after death of the testator, while in Shia it may be before or after the death of the testator. Consent must be definitive, whether express or implied by positive conduct, and mere silence on the part of an heir will not amount to implied consent. The attestation of 27 the Will by the heirs and acquiescence in the legatee taking possession of the property has been held to be sufficient consent.

32.Regarding the power of Muslim to bequeath his property under a Will there are certain limitations and the prime limitation is that he

can bequeath only 1/3 rd of his net assets after payment of general

charges. If he intends to bequeath in favour of a stranger or a person who is not a legal heir, he can bequeath only 1/3rd of his net assets and if the bequeathed property exceeds 1/3rd a concern of other heirs is essential and the said consent is common for both Sunnis and Shias as such the legal position with regard to Sunnis and Shias need not be discussed.

33.Now coming to the vital aspect of the power of the testator to bequeath 1/3rd of the net assets in favour of a stranger for a person who is not a legal heir, the Judgment delivered by the Hon’ble High

Court of Bombay directly covers the facts of the case and the said Judgment in between Damodhar and Kashinath Rasane Vs. Shajabibi wife of Babu

Bhai Momin and others in AIR 1989 Bombay (1) at para nos.5 to 8, the

Hon’ble High Court of Bombay discussed relevant provisions and held the

summary at para.9 as follows:-

Para No.9:- “Muslim cannot bequeath more than one-third of his property whether in favour of a stranger or his heir when there are heirs or other heirs .left by him as the case may be. When however , there are no heirs or other heirs left by him, he can dispose of his entire property in favour of the stranger or the sole heirs as against the right of the State to take by escheat,. If the property bequeathed is in excess of one-third of the estate , the excessive bequest is not valid unless the heirs , or other heirs (if the bequest is in favour of one or 28 some of the heirs) give their consent. Under the Hanafi law the consent has to be given after the death of the testator, whereas under the other schools of law it can be given either before or after the death of the testator. The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess whether the bequest is in favour of the stranger or the heir or heirs. Where , however , there are more bequests than one which together exceed one-third of the estate, the bequests get reduced rateably. The bequests in favour of heirs are discouraged under the Mohammedan Law, because the share of the heirs are fixed and no bequest can be made to deprive the heirs of their rightful share.

The object is also to avoid internecine disputes between the heirs . While bequest in favour of an heir . according to one Mohammedan School of law is entirely invalid even if it is confined to the bequeathable third, according to another school, it is valid only to the extent of one-third. It also however, appears that where other heirs consent to the bequest according to both schools the bequest is valid whether it is of one-third or of more of the estate. Where only some of the heirs consent , it is valid to the extent of the share of the consenting heir or heirs”.

Further at para Nos.15 & 16 in the said Judgment the Hon’ble

High court of Bombay discussed power of a testator to dispose of more than 1/3rd share with a content of legal heirs and the relevant paras as follows:-

Paras 15 and 16:-

Para.15. The only other case which was cited before us was the decision of the learned single Judge of this Court Yakin Imambhai Shaikh v. Hajarabi wife of Shaikh Abbas The facts of this case were that one Yakin

Shakh had filed a suit alleging that one Marriyambi had deie leaving a will 29 under which Yakin was entitled to one-third of the property of which he was possession and that the other heirs were trying to interfere with his possession Hence Yakin sought an injunction to restrain the other heirs from interfering or disturbing his possession of that portion of the property that if it was found that he was not in possession of the property, then that much property should be carved out in accordance with the will and the property should be given in his possession. The trial Judge had dismissed the suit.

Against the dismissal, the heirs of Yakin, who in the meanwhile had died..

preferred an appeal. Which was dismissed . the heirs of Yakin then filed a

Second Appeal which had come up for hearing before the learned single

Judge in para..6 of his judgment, the learned single Judge dealing with this

point observed as follows:- " But be that as it may, Mr. Vaze has contented that Mahomedan Law provides that a Mahomedan cannot by Will dispose of more than 1/3 of the surplus of his estate after payment of funeral expenses and debts. That a bequest in excess of 1/3 cannot take effect, unless the heirs consent thereto after the death of testator. In this case admittedly the Will disposed of more than 1/3 of the estate after the payment of funeral expenses and debits , and there is no evidence that the heirs have consented to such a bequest. In view of this also the appellants' claim under the Will must fail. Whatever may be their other rights as heirs to the property of the deceased which they may agitate in an appropriate forum, Mr. Vaze's contention is substantial".

Para 16. But in the present case it is not necessary for us to go into the said question since the bequest is in favour of a stranger and not a heir. All the schools of Mohamedan Law are unanimous that a bequestin favour of a stranger to the extent of the bequeathable third is valid and requires no 30 consent of any heir. It is only if the bequest in favour of a stranger is in excess of the third of the estate that such a consent is obligatory. Hence it will have to be held that in any case the bequest made by the testator in favour of defendant1 Bakshushaha was valid at least to the extent of the one-third of the testator's estate”.

34.By relying upon the ratio laid down in the said Judgment, it is to be noted that all schools of Mohammadan Law are unanimous that the bequest in favour of the stranger to the extent of the bequethable third is valid and consent of a legal heir is needed only in case of bequest in excess of the 1/3rd of the estate, such a consent is obligatory.

35.Now coming to the facts on hand, if the plaintiff is able to establish that the testator of Ex.A1 bequeathed 1/3rd or less than 1/3rd of his net assets in favour of the plaintiff, the consent of legal heirs is not necessary and it would suffice to hold that the said Will can be acted upon. To appreciate the same, the recitals of the Will assume importance. In the Will the testator categorically stated that he has wife and children and he would like to convey his property at Anakapalli in favour of the plaintiff herein as the plaintiff herein stayed with him that and spent his own money for his welfare and had taken care of him. While referring the said recitals the testator categorically mentioned the property at Anakapalli with assessment

No.9634/14 which is a tiled house and East and West extent is 40 feet where as the North-South extent is 90 feet. All the four boundaries of the property were also mentioned in the Will which cannot be denied by both the parties in view of payment of house tax in the name of the testator of the Will.

However after mentioning the boundaries of the plaint schedule property at

Anakaplli which was bequeathed to the plaintiff, inthe said Will the other 31 properties of the testator at Tenali were referered. However, the extent of properties at Tenali and also the boundaries were not at all referred in

Ex.A1Will. He only mentioned that his properties at Tenali are being enjoyed by his legal heirs and he has absolute right over the said properties also. He only conveyed the property at Anakaplli in favour of the plaintiff without even referring to his properties at Tenali and only mentioned that his wife and children are empowered to hand over the said properties at Tenali after his death and enjoy the said properties.

36.However to establish that the testator had only conveyed 1/3rd of his net assets in favour of the plaintiff to validate Ex.A1 Will, theother properties at Tenali have to be elicited and without accessing the value of said properties, 1/3rd value cannot be estimated.

37.Taking into account the intention of the testator in conveying the 1/3rd share of his property to the plaintiff, to validate the same, at least after his death, if at all the propunder of the Will has mutated his name in the revenue records and if the said mutation is brought to the knowledge of the legal heirs , then the conclusion which can be drawn is that the legal heirs accepted Ex.A1 Will and only the property less than 1/3rd of the net assets was conveyed to the plaintiff. The plaintiff did not even examine the legal heirs. In the cross examination of PW.1, hecategorically testified at page.2 that his uncle Ibrahim Saheb is having wife by name Ameena and three sons by name Basha, Rajak and Nazeer and they reside at Tenali and Bapatla.

Therefore, when PW.1 himself has knowledge that the three children and wife of of the testator are residing at Tenali and Bapatla and when he has knowledge based on Ex.A1 Will that some properties at Tenali and Bapatla were owned by the testator, without making any assessment of the total 32 valuation of theproperty, Ex.A1 Willcannot be validated to come to a conclusion that the property worth less than 1/3rd of the total value was property of the testator was conveyed to the plaintiff. Infact the Will shall contain the said vital aspects. The plaintiff can elicit the properties even after examination of the Will. No evidence was let in by the plaintiff on the total properties owned by the testator of Ex.A1 Will. The plaintiff did not examine the legal heirs though they are his relatives. The ambiguity found in the Will was never clarified by the plaintiff by letting evidence on that vital aspect.

Ex.A1 is the only document which gives the plaintiff the right to file this suit.

Even though Ex.A1 Will was executed by its testator, the Will does not reflect the vital aspect that only 1/3rd share of his net assets was conveyed to the plaintiff as such the Will fails and it cannot be relied upon to substantiate the case of the plaintiff.

38.If at all the plaintiff furnishes all the particulars of properties owned by Sk.Ibrahiim Saheb, then if the shares are devolved considering the

Will then the plaintiff will accrue right over the 1/3rd value of the property or especially the plaint schedule property if the valuation of the plaint schedule property is less than 1/3rd of net assets owned by Sk.Abdul Saheb, after deducing the funeral expenses. Therefore, the plaintiff failed to establish that Ex.A1 Will confer right, title and interest over the plaint schedule property, as suchthe plaintiff is not entitled to claim the relief of declaration and recovery of possession of the plaint schedule property. Accordingly the issues 1 & 2 are answered against the plaintiff.

33

39. ISSUE NO.3:-

Whether the plaintiff is entitled to future profits as prayed for?

In view of my foregoing findings on issue Nos.1 & 2, plaintiff failed to establish that he is entitled for declaration of possession as such he is not entitled for the future profits as prayed for.

40.ISSUE NO.4:-

To what relief?

The circumstances of the suit shows that it is the plaintiff who filed suit for declaration and possession based on the Will and in view of the findings given by me under issues 1 to 3, it is a fit case todismiss the suit without costs. Accordingly the issue is answered against the petitioner.

41.In the result suit is dismissed without costs.

Dictated to Stenographer,Grade-I transcribed by her, corrected and

pronounced by me in the open Court, this the 02nd day of February, 2021.

PRINCIPAL SENIOR CIVIL JUDGE

FAC ADDL. SENIOR CIVIL JUDGE (FTC)

ANAKAPALLE

Appendix of evidence No. of witnesses examined for Plaintiffs:Defendants: PW1: Shaik Abdullah DW.1: Dasari Thatharao

PW.2: Shaik Jilani

PW.3: M.Vmiriyala Venkata Laxmi Narasingarao

No. of exhibits marked for

Plaintiff:

Ex A1 is the Will executed by Shaik Ibraheem Saheb dt:6.6.1986. Ex.A2 is the notice issued by Anakapalle Municipality dt:5.5.2005. Ex.A3 is the office copy of registered Lawyer’s notice dt:10.10.2005. Ex.A4 is the acknowledgment of D1 dt: 18.10.2005. Ex.A5 is the office copy of registered lawyer’s notice dt:12.10.2006. Ex.A6 is the postal acknowledgment of D3 dt:16.10.2006 ..contd..pg.34.

34

Defendants:

Ex B1 is the notice got issued by Wakf Board Committee, dt:10-12-1994.

Ex.B2 is the bunch of three postal acknowledgments received from the

Wakf Board committee, dt:3.1.1995.

Ex.B3 is the affidavit of husband of 1st defendant along with schdule

Ex.B4 is the Caveat petition of the father of the 2nd defendant dt:24.12.1994.

Ex.B5 is the Caveat petition of the 3rd defendant along with schedule

dt:24.12.1994.

Ex.B6 is the bunch of six registry returned postal covers addressed the

President District Wakf Committee, dt: 25.3.1995.]

Ex.B7 is the bunch of four photos with negatives during the year 1994.

Ex.B8 is the bunch of 40 property tax receipts.

Ex.B9 is the bunch of money order receipts some receipts in toned condition and some receipts eaten by white ants.

Ex.B10 is the bunch of postal cards received from Md.Basha

Ex.B11 is the bunch of electricity bills.

Ex.B12 is the bunch of STD PT bills.

(Exs.B1 to B12 are marked subject to objection proof and relevancy).

PSCJ / AKP FAC ASCJ /AKP (FTC) 35

1 XII ADJ COURT-MACT,VSP MOP.No.404/2018

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL –

CUM-XII ADDITIONAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

APVS000014632018Present: Sri P.Govardhan Chairman – M A C T - cum XII Addl. District & Sessions Judge

Friday, the 11 th day of April, 2025

M.V.O.P. No.404/2018

BETWEEN:

1. Smt. Bhogapurupu Prameela Kumari W/O Late Sri Bh.Vasu Deva Rao aged 59 years, Hindu, House wife, D.No 1-88, Near Saint Francis School, Midhila Puri Colony, Madhurawada, Visakhapatnam-530041. (Died)

2. Smt. Bhogapurupu Seetha Ramamma W/O Late Bh. Narayana Murthy, Aged 90 Years, House Wife, D.No 1-88, Near Saint Francis School, Midhilapuri Colony, Madhurawada, Visakhapatnam-530041.(Died) .

3. Sri Bh.Srinivas S/O Late Bh. Vasudeva Rao, Aged 35 years, Hindu, D.No 1- 88, Near Saint Francis School, Midhila Puri Colony, Madhurawada, Visakhapatnam - 530041.

4. Smt Jada Sri Devi w/o Jada Chandra Sekhara Rao D/O Late Bh. Vasudeva Rao, Aged 40 years, Hindu, D.No 2-2-9/6A, Sana Street, Near Bhadramma Gudi, Illispuram, Srikakulam Post. Pin 532001.(Died)

5. Nethiti Sri Lakshmi w/o Sri Padmakar Rao, D/O Late Vasudeva Rao, Aged 38 years, Hindu, House wife, Flat No 402, Anjani Palace, Srinivasa Nagar, Akkayyapalem, Visakhapatnam-530016

6. Jade Chandrasekhar Rao S/O Sri J.Markendeyulu, aged years, Hindu, S.F.4, Telugu Rama Rao Enclave, Aditynagar, Arasavalli, Srikakulam district, Aadhar No966696559724. (Added as legal heir of the 4 th Petitioner).

7. Jade Maneesha D/O Sri j.Chandrasekhar Rao, aged 27 years, Hindu, D.No 2-2-9/6A Sena Street, Near Bhadramma Gudi, Illisipuram, Srikakulam and Aadhar No 922710416054. (Added as legal heir of the 4 th Petitioner) 2 XII ADJ COURT-MACT,VSP MOP.No.404/2018

8. Jade Sai S/O Sri J.Chandrasekhar Rao, aged 25 years, Hindu, D.No 2-2- 9/6A Sena Street, Near Bhadramma Gudi, illisipuram, Srikakulam Dist and Aadhar No 694234813501. (Added as legal Heir of the 4 th Petitioner).

(Petitioners 6 to 8 were added as legal heirs of the deceased 4 th

petitioner as per orders in I.A. No.664/2023, dated 18.10.2023).

…. CLAIM PETITIONERS AND:

1.Sri P.Prasada Rao S/O Sri P.Varahala Naidu, Aged 32 Years, Hindu, residing at Door No.3-1, Diguva Veedhi, Kancharam, RAJAM, Srikakulam District. Driver of Crime Vehicle AP35X 0288(Stage Carriages)

2. Managing Director, APS RTC, HYDERABAD. Hirer of Crime Vehicle AP35X0288.

3. Manager, APSRTC Bus Depot, Palakonda, Srikakulam District. (Controller and Possession of Crime Vehicle).

4. Sri Allu Ramana Murthy S/o Sri Jaya Ram, aged not known, Hindu, residing at Door No.23-8-5/1, Vorugantivari Street, Vizianagaram-535002. Owner of Crime Bus AP 35X 0288.

5. The Divisional Manager, National Insurance Co Ltd, Divisional Office I, Second Floor, 27-12-75, Garalapati Complex, Govern Peta, Ali Bagh Street, Vijayawada Post, Krishna District 520002.

6. The Regional Manager, National Insurance Co Ltd, having territorial jurisdiction of area, Visakhapatnam. …. RESPONDENTS

This claim petition has come up on 25.03.2025 hearing before me in the presence of Sri V.Ashok Kumar and Sri L.S.Naidu, Advocates for claimants and of Sri S.Suresh Reddy, Advocate for respondents 1 and 4 and of Sri Ajjarapu Srinivas, Advocate for respondents 2 and 3 and of Sri B.V.Ramanjaneya Rao, Advocate for the 5th respondent and of the 6th respondent remained exparte and upon hearing their arguments and the matter having stood over for consideration till this day, this Tribunal made the following:

3 XII ADJ COURT-MACT,VSP MOP.No.404/2018

O R D E R

1.Originally, this petition is filed U/s.166 of Motor Vehicles Act read with

Rule 455 of A.P.Motor Vehicle Rules, claiming compensation of

Rs.27,64,569/- (Rupees Twenty Seven Lakh Sixty Four Thousand Five

Hundred and Sixty Nine only) by Claim petitioners 1 to 5, the wife, the mother and children of ‘Bhogapurupu Vasu Deva Rao, S/o late Narayana Murthy’, aged 67 years, (herein after called as ‘Deceased’) who died on 23.09.2017 in a motor vehicle accident occurred on 03.09.2017 at 9.00 p.m., involving an

APSRTC bus bearing registration No.AP 35 X 288 belonging to the 4th respondent, driven by its driver-the 1st respondent, hired by respondents 2, 3 and insured by respondents 5 and 6. During the pendency of the claim petition petitioners 1, 2 and 4 died. Petitioners 6 to 8 were brought on record as the legal heirs of the 4th petitioner as per orders in I.A. No.664/2023 dated 18.10.2023. No legal heirs were brought on record on behalf of petitioners 1 and 2.

2.The contentions of petitioners as seen from the neat copy of the petition are summarized as follows:

(a)The deceased viz., Bhogaparapu Vasu Deva Rao S/o Late Sri

Bh. Narayana Murthy, worked as Grade I, Hindi Pandit, Zilla Parished High

School, Pydibheemavaram, Srikakulam District and retired from service on 31.10.2008 vide proceedings Roc No 5875/A2/07, dated 10-12-2007 of the

Deputy Education Officer, Srikakulam and the deceased used to receive an amount of Rs.36,520/(Rupees Thirty Six Thousand Five Hundred Twenty) per month towards his service pension and used to earn an amount of Rs.20,000/- out of Tuitions, and out of his income, he used to maintain himself, wife and mother and children.

4 XII ADJ COURT-MACT,VSP MOP.No.404/2018

(b)Unfortunately on 03-09-2017 at 9-00 PM, when the Deceased was crossing the NH 16 road, Jathara Road towards Vuda Colony side at that time the crime vehicle APSRTC Bus bearing registration No.AP 35 X 288 proceeding from Anandapuram to Visakhapatnam, the driver of crime bus drove his bus in a rash and negligent manner at a high speed dashed the deceased person without following traffic rules and precautionary measures though the deceased followed traffic rules and precautionary measures while crossing the road, as a result, the deceased sustained severe "Head Injury" bleeding from Nose and Ear and became unconscious and shifted to K.G.

Hospital, Visakhapatnam by 108 Ambulance and from there the injured / deceased shifted to Pinnacle hospital for treatment and again the injured/ deceased shifted from Pinnacle hospital to Vijetha hospital, Visakhapatnam for better care wherein it was found that the injured / deceased sustained multiple fractures on the head and the injured / deceased was under treatment from 04.09.2017 to 18.09.2017 as inpatient and Doctor Vijaya Sekhar, Neuro

Surgeon attended all the days in Hospital and the deceased underwent

Tracheotomy surgery and investigations, X-Rays, CT Scan and spent huge amount for admissions, Doctor's Fee, Surgery and Hospital Charges, medicines Etc.

(c)Due to financial crisis the injured / deceased was forced to join at the K.G. Hospital, Visakhapatnam for treatment on 19.09.2017 and due to misfortune the deceased died on 23-09-2017 while undergoing treatment.

(d)The Station House Officer Pothinamallayyapalem Police Station,

Visakhapatnam, registered the case in Cr.No.448/2017 on 04.09.2017 against the driver of crime bus under section 338 IPC and the FIR was altered to

Sec.304 A IPC after the death of the deceased on 23.09.2017.

(e)The death of deceased viz., Sri Bhogapurapu Vasu Deva Rao occurred due to rash and negligent driving of the driver of the crime vehicle 5 XII ADJ COURT-MACT,VSP MOP.No.404/2018 bus. Because of sudden death of the deceased, the dependents are facing financial crisis and miserable life in leading rest of life peacefully as shoulder of the family and earnings of monthly "PENSION" is lost due to accident and the deceases used to earn an amount of Rs.20,000/- (Rupees Twenty

Thousand only) per month from Hindi Tuitions for students and by performing

Pujas and in total the deceased earned an amount of Rs.56,520/- (Rupees

Fifty Six Thousand Five Hundred Twenty only).

(f)Pending Claim Petition, the 4th petitioner died on 29.01.2023 leaving behind her husband and two children who are petitioners 6 to 8 respectively who were added as legal heirs of the deceased 4th petitioner.

During pendency of the claim petition, petitioners 1 and 2 also died and no legal representatives were brought on record as the legal heirs of petitioners 1 and 2.

(g)The 1st respondent is the driver of crime vehicle Bus and working under the control and direction from respondents 2 and 3 who are having possession and control of crime Bus as Hirer of the Bus and the 4th respondent who is the original owner of the Bus given for Hire to APSRTC

Management. Respondents 2 to 4 are liable to pay compensation to

Petitioners under the head of "Vicarious Liability" as "Servant and Master" relationship under tortuous liability committed by servant. Respondents 5 and 6 are the insurer of the crime vehicle, are liable to indemnify the liability of the insured of crime vehicle as "Indemnifier" under terms and conditions of the

Policy of Insurance and under provisions of M V Act, as such all respondents are jointly and severally liable to pay compensation amount to the Petitioners.

Therefore, petitioners claimed an amount of Rs.27,64,569/- (Rupees Twenty

Seven Lakh Sixty Four Thousand Five Hundred and Sixty Nine only) towards compensation.

6 XII ADJ COURT-MACT,VSP MOP.No.404/2018

3.Notices were served on all respondents. The 4th respondent filed counter denying the contentions of petitioners and the 1st respondent adopted the counter of the 4th respondent. The contentions of respondents 1 and 4 as seen from their counter, as follows :

(a)The accident was not due to rash and negligent driving of the 1st respondent, as such, respondents are not liable to pay any amount of compensation to petitioners. At the time of the accident, the 1st respondent drove his vehicle in a cautious manner by taking all precautions and that there is no rash and negligent driving on the part of 1st respondent. The 1st respondent was having valid driving license and he is an expert driver and he took all steps to avoid the accident, but the deceased suddenly came to the middle of the road without observing heavy vehicles, it is clearly shows that the injuries caused due to his negligence only and there is no negligence on part of the 1st respondent.

(b)The vehicle was duly insured with the 5th respondent i.e., M/s.

National Insurance Company Limited and the said policy was in existence by the time of the accident. As per the terms and conditions of the policy, the

Insurance Company is solely liable to pay compensation as the accident occurred through the insured vehicle, as such, respondents 1 and 4 are not liable to pay compensation to petitioners as there are no violations of the policy conditions. There are absolutely no tenable grounds to allow the above petition and the same is liable to be dismissed in limine with exemplary costs against respondents 1 and 3.

4.The 3rd respondent filed counter denying the contentions of petitioners.

The 2nd respondent adopted the counter of the 3rd respondent. The contentions of respondents 2 and 3 as seen from the counter are as follows:

7 XII ADJ COURT-MACT,VSP MOP.No.404/2018

(a)At the outset, the petition is not maintainable as there is no negligence on the part of the driver of Bus i.e., the 1st respondent at all in the accident. The Station House Officer, Pothinamallayyapalem, Police Station

Visakhapatnam, registered the case in Cr.No.448/2017 on 04.09.2017 against the driver of the crime Bus under Section 338 IPC and the FIR was altered to

Sec.304 A IPC after the death of the deceased on 23.09.2017.

(b)The true and correct facts of the case are the driver of the Bus bearing No.AP 35 X 288 is not employed by 3rd respondent i.e., APSRTC and there is no master and servant relationship between the hirer of the bus and

APSRTC. The bus was taken on hire for a limited period duly entering into agreement with the owner of the bus and the name of the owner of the Bus was registered in the records of the Regional Transport office as owner. In terms of the agreement entered into with the owner of the hire Bus, the owner of the Bus is completely responsible for any MACT claims in case of any accident involved by the hired Bus. The Bus was insured. In terms of order in

SCC 2011 (8)P.No.142, dated 25.07.2011, the Hon'ble Supreme Court directed that the insurance company is held responsible for payment of compensation and that APSTRC is not liable and respondents 2 and 3 seek dismissal of the petition.

5.The 5th respondent filed counter denying the contentions of petitioners.

The contentions of the 5th respondent as seen from its counter are as follows:

(a)The 5th respondent does not admit that the driver of the crime vehicle bearing registration No. AP 35 X 0288 at the time of alleged accident was having valid and subsisting driving license to drive the vehicle and that the vehicle was road worthy to ply and unless, the driver was having valid and subsisting driving license and unless the bus is having valid permit by the date 8 XII ADJ COURT-MACT,VSP MOP.No.404/2018 of the accident, the 5th respondent is not liable under the terms and conditions of the policy.

(b)Admittedly, the deceased was crossing the national highway at around 9.00 pm., and before crossing the National highway, it is the duty of the deceased to verify the traffic on the road and then he has to cross the road. In this case, the manner in which the accident occurred shows that the deceased was negligent and without observing the traffic suddenly crossed the national highway. Therefore, the deceased himself also contributed to the accident. Therefore, the 5th respondent is not at all liable to pay any compensation. In case, if the Tribunal comes to a conclusion that the driver of the crime vehicle is also responsible for the alleged accident, the liability of the 5th respondent shall be limited to 50% only in view of the contributory negligence on the part of the deceased.

(c)Petitioners have not filed any documentary proof to establish the income of the deceased. However, as per the information furnished by petitioners, the deceased is a retired teacher and died at the age of 67 years.

The deceased was getting monthly pension by the date of the accident. The wife of the deceased will be getting the same pension throughout her life.

Therefore, there cannot be any loss of income due to the death of the deceased, of course, she is entitled for compensation for the loss of love and affection only. The 1st petitioner is the wife, the 2nd petitioner is the mother of the deceased. The 3rd petitioner is the married son of the deceased, who is aged 36 years and that he is a priest doing Purohitham. The 4th and 5th petitioners are the daughters of the deceased and both of them are married and living with their respective families. Therefore, the 3rd, 4th and 5th petitioners are not the dependents on the deceased. Therefore, they are not entitled for any compensation.

9 XII ADJ COURT-MACT,VSP MOP.No.404/2018

(d)That this respondent-company is not liable to pay compensation to petitioners, in case, it is proved during the enquiry of the petition that the insured has violated any one of the terms and conditions of the insurance policy of the crime vehicle by the time of the alleged accident. Petitioners did not mention anything regarding the benefits received by them from any authority, those benefits, if any, should be deducted from the compensation to be awarded, if any, to petitioners. Notwithstanding the pleas taken supra, even if the Tribunal awards any compensation to petitioners, the same shall not be ordered to be paid, unless the provisions of Sec.64 VB of insurance Act are complied with. The amount of compensation of Rs. 27,59,569/- (Rupees

Twenty Seven Lakh Fifty Nine Thousand Five Hundred and Sixty Nine only) claimed by petitioners is highly excessive and petitioners are not entitled to claim such an imaginary amount towards compensation.

(e)The 3rd respondent is at liberty to file an additional counter, if any relevant and important fact has to be brought to the notice of the Court, to enable the Court to arrive at a just finding and seeks permission U/s 170 of

M.V. Act to contest on all other grounds than specified U/s 149 of M.V. Act, in case the owners of the crime vehicle collude with petitioners and fails to contest the claim of petitioners intentionally. Petitioners are not entitled to claim any interest whatsoever. Even if this Tribunal awards any interest, the same shall not be beyond the present prevailing rate of interest of 6% of nationalized banks. The 3rd respondent seeks protection U/s 147 and 149 of

Motor vehicle Act.

(f)The police concerned should inform about the accident to this respondent company within thirty days from the date of accident as per sec.158 (6) of M.V.Act., but in the present case, the police did not inform about the alleged accident to the 3rd respondent. Therefore, the 3rd respondent is not liable to pay any compensation to petitioners due to non-compliance of 10 XII ADJ COURT-MACT,VSP MOP.No.404/2018 sec. 158 (6) of M.V.Act., and the 3rd respondent seeks to dismiss the petition with costs.

6.Based on the above pleadings, the following issues were framed by my learned Predecessor in office, for trial:

1. Whether the petitioner is entitled for Rs.27,64,569/- towards damages for the injuries as prayed for ?

2. Whether the Petitioner is entitled for subsequent interest 12% per annum on the claim ?

3. Whether the third respondent is entitled for Provisions Under Sec.147, 149 (2) and 170 of MVI Act.,? and;

4. To what relief, if any, are the petitioners entitled for ?

7.During the course of trial, on behalf of petitioners, PW-1 to PW-5 were examined and Exs.A1 to A28 were marked. No oral evidence was adduced on behalf of the 3rd respondent and Ex.B1 certified copy of the policy was marked by consent, on behalf of the 3rd defendant.

8.The learned counsel for petitioners filed written arguments. There is no representation on behalf of respondent Nos.1, 4, 2, 3 and 5 on 25.03.2025 and later the learned counsel for respondents 2 and 3 submitted oral arguments and there is no representation on behalf of respondents 1, 4 and 5, as such, the matter is posted for Order on merits.

ISSUE No.3 :

9.So far as this issue is concerned, in the counter itself, the 3rd respondent has taken pleas that it is taking recourse to Section 170 of M.V. Act. It is the 11 XII ADJ COURT-MACT,VSP MOP.No.404/2018 contention of the learned counsel for the petitioner that respondents 1 and 2 are at fault and the petitioner never colluded with respondents 1 and 2, as such, the petitioner can maintain his claim against all the respondents. The learned counsel for the 3rd respondent contends that the 2nd respondent did not furnish the details of the accident and the particulars of the vehicle, as such, the 3rd respondent has no obligation and the claim petition is maintainable only against respondents 1 and 2.

10.As per Section 147 of M.V. Act, a policy of the insurance must be issued by a person who is authorized insurer and it should be issued in respect of the policy against any liability, which may be incurred by a person in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Section 149 of the M.V. Act prescribes settlement by insurance company and procedure. It is obligatory on the part of the Insurance Company soon after receipt of information of the accident, either from claimant or through accident information report or otherwise, designate an officer to settle the claims relating to such accident. In the light of the provisions of Sections 147, 149 and 170 of M.V. Act, as the 2nd respondent did not adduce any evidence, the conclusion which can be drawn is that no intimation is given to the 3rd respondent. However, in view of registration of FIR in respect of the accident vide Ex.A6, intimation will be sent to the 3rd respondent pertaining to the accident. So far as Section 170 of MV Act is concerned, the 3rd respondent is straight away entitled to the defences available to the 2nd respondent as the 2nd respondent did not adduce either oral or documentary evidence.

Therefore, the 3rd respondent is entitled to provisions of Sections 147, 149 and 12 XII ADJ COURT-MACT,VSP MOP.No.404/2018 170 of M.V. Act, subject to proof of its contentions. Accordingly, the issue

No.3 is answered in favour of the 3 rd respondent.

I S S U E Nos.1 AND 2 :

11.It is the contention of petitioners that due to rash and negligent driving of the bus by its driver i.e., 1st respondent, the accident occurred on 03.09.2017 at about 9.00 p.m., in which, the deceased sustained grievous head injury and multiple injuries all over the body and succumbed to the death while undergoing treatment in the K.G. Hospital on 23.09.2017. In order to prove their contention, the 3rd petitioner, who is the son of the deceased was examined as PW-1, and he reiterated the contentions of the petition and marked Exs.A1 to A28.

12. Ex.A1 is the attested copy FIR No.448/2017 P.M. Palem police station / complaint copy and alter FIR u/s 304A IPC dated 04.09.2017 and 23.09.2017 respectively, Ex.A2 is the attested copy of Charge Sheet in Cr.No.448/2017,

Ex.A3 is the attested copy Post Mortem Report, AMC, K.G. Hospital, dated 23.09.2017, Ex.A4 is the attested copy of Inquest report dated 23.09.2017,

Ex.A5 is the attested copy of M.V. Inspector report, dated 05.09.2017, Ex.A6 is the photostat copy of Vehicle Registration Certificate, dated 21.06.2014,

Ex.A7 is the photostat copy of Fitness Certificate No.2723119, dated 07.06.2017, Ex.A8 is the photostat copy of the Driving Licence No. DLRARO 30919215, dated 16.06.2008, Ex.A9 is the photostat copy of Insurance policy

No.56050031171000967 and Indemnity to Hirer package policy, dated 20.05.2017, Ex.A10 is the original death certificate of the deceased viz., Sri

Bh.Vasudeva Rao, dated 12.12.2017, Ex.A11 is the original discharge summary of Pinnacle Hospital, dated 04.09.2017, Ex.A12 is the photostat 13 XII ADJ COURT-MACT,VSP MOP.No.404/2018 copy of plain CT scan of brain report dated 04.09.2017 issued by Pinnacle

Cancer Center, Ex.A13 is the photostat copy of Investigation reports (Nos.7)

dated 04.09.2017 of Pinnacle hospital, Ex.A14 is the original discharge

summary of Vijetha Hospital, dated 04.09.2017, Ex.A15 is the photostat copy of Ultra sound scan of Abdomden, dated 14.09,2017, Ex.A16 is the photostat copy of diet recommended sheet, dated 07.09.2017, Ex.A17 is the photostat copy of CT scan of brain (plain) report dated 06.09.2017, Ex.A18 is the photostat copy of Investigations reports (Nos.6), dated 17.09.2017, Ex.A19 is the photostat case sheet of Sri Bh. Vasudeva Rao (pages 18) dated 20.09.2017, issued by K.G. Hospital, Ex.A20 is the original X-Ray chest and spine (Nos.2) Pinnacle Hospital dated 04.05.2017, Ex.A21 is the original X-

Ray chest of Vijetha Hospital, dated 14.09.2017, Ex.A22 is the original X-Ray chest of Vijetha Hospital, dated 13.09.2017, Ex.A23 is the original X-Ray chest of Vijetha Hospital, dated 06.09.2017, Ex.A24 is the original X-Ray chest of Vijetha Hospital, dated 08.09.2017, Ex.A25 is the original CT brain scans Nos.4 Pinnacle and Vijetha hospitals, dated 04.09.2017, Ex.A26 is the original hospital and medical bills as mentioned below (34Nos) dated 04-09- 2017, 04-09-2017, 04-09-2017, respectively, Ex.A27 is the original bunch of medical prescriptions (55Nos) and Ex.A28 is the attested copy of pension calculations, respectively.

13.Upon perusal of Ex.A-1 FIR along with report reveals that a report was given to police on 04.09.2017 as the accident occurred on 03.09.2017 at 9.00 p.m., as per the report given by the 3rd petitioner, who is the son of the deceased. P.W.1 in his cross-examination by the learned counsel for respondents 2 and 3, stated that he came to know about the accident through police, P.M. Palem police station and police informed him that they admitted his father in K.G. Hospital. P.W.1 further deposed in his cross-examination 14 XII ADJ COURT-MACT,VSP MOP.No.404/2018 that he went to K.G. Hospital at 11.00 p.m., and that the accident took place at

Car shed area, opposite Jatara and that he does not know whether the bus was hired by RTC or not. P.W.1 denied the suggestion that respondents 2 and 3 are not liable to pay the compensation and that respondents 5 and 4 are liable to pay the compensation. Except that nothing was elicited in favour of respondents 2 and 3.

14.P.W.1 was also cross-examined by the learned counsel for the 5th respondent. In his cross-examination, P.W.1 stated that the 4th petitioner is his sister who is married and residing with her family at Srikakulam and the 5th petitioner is his sister who is married and residing with her family at

Bangalore. P.W.1 further deposed in his cross-examination that his father was aged about 67 years at the time of the accident and his father was a pensioner and that he is living with his parents. P.W.1 further deposed in his cross-examination that six months prior to date of giving his evidence, the 1st petitioner who is his mother also died and that he was looking after the 1st petitioner. P.W.1 admitted that Ex.A28 is not attested by Deputy Education

Officer, Srikakulam. P.W.1 denied the suggestion that Ex.A28 is not issued by the concerned authorities. P.W.1 admitted in his cross-examination that he has not filed any document regarding the earnings of his father out of tuitions and performing pujas and used to maintain himself, his wife and children.

P.W.1 further denied the suggestion that himself, petitioners 3 and 4 are living separately and are not dependents on his father financially. P.W.1 admitted that after the death of his father, his mother used to get pension for her maintenance and subsequently after the death of his mother, the pension stopped. P.W.1 denied the suggestion that due to lack of proper visibility of his father, when he crossed the road on 03.09.2017 without observing the traffic the alleged accident occurred and that there is no rashness or negligence on 15 XII ADJ COURT-MACT,VSP MOP.No.404/2018 the part of the 1st respondent and that the deceased himself was negligent in crossing the road and therefore the 5th respondent is not liable to pay compensation. P.W.1 further denied the suggestion that out of normal practice, the police registered case against the 1st respondent even though the deceased was negligent and that they did not spent huge amount for admissions, doctor fees, hospital medical charges, medicines etc., P.W.1 further denied the suggestion that there are no dependents on the income of his father, there is no financial loss due to his death. P.W.1 further denied the suggestion that since himself and petitioners 3 and 4 are not depenents on his father financially they are entitled only to claim compensation only under the heads of loss of love and affection for the death of his father. P.W.1 further denied the suggestion that due to the negligence of her father the alleged accident occurred, thereby he has contributed to the alleged accident. P.W.1 further denied the suggestion that all the photstat copies of the documents filed by him are fabricated and that the compensation claimed by them is excessive and that all the medical bills submitted along with the claim are exaggerated and that he is giving false evidence. P.W.1 further denied the suggestion that he is looking after the 1st petitioner so that she is also not dependent on the deceased and that she is entitled only under the head of loss of love and affection. Except that, nothing was elicited from the cross- examination of P.W.1 by the learned counsel for the 5th respondent.

15.In order to prove the treatment taken by the deceased in K.G. Hospital,

Pinnacle hospital and Vijetha hospital, petitioners examined P.Ws.2 to 4 respectively. P.W.4 deposed in chief-examination that on 03.09.2017 immediately after the accident, the deceased was initially admitted in the hospital and after admission of the patient, they gave primary treatment thereafter the patient left the hospital against the medical advise for better 16 XII ADJ COURT-MACT,VSP MOP.No.404/2018 treatment and went to private hospital on 03.09.2017. Subsequently, the patient was again admitted in the hospital on 19.09.2017 at 9.20 p.m., and on their examination, the patient was in unconscious with tracheostomy tube on ventilator support. P.W.4 further deposed in his chief-examination that at the time of initial admission on 03.09.2017 the patient found severe head injury in a road accident at 9.30 p.m. and that again the patient was admitted in the hospital on 19.09.2017 till 23.09.2017 on which date the deceased died.

P.W.1 further deposed that during the course of the treatment from 19.09.2017 to 23.09.2017 the patient was in deep coma and patient was not responded to the treatment because no chance of recovery. P.W.4 was cross- examined by the learned counsel for the 5th respondent. In his cross- examination, P.W.4 deposed that on 03.09.2017 the patient came to the hospital through 108 ambulance, at that time he was not there in the casuality and that no record available with regard to the initial admission on 03.09.2017.

P.W.4 denied the suggestion that during the course of treatment from 03.09.2017 to 19.09.2017 at private hospital, there is a chance for the patient to go to the stage of coma, and that the death of the patient was not due to accident. P.W.4 was re-examined by the learned counsel for petitioners. In his re-examination, P.W.4 stated that Ex.A3 postmortem report revealed that the patient died due to head injury. Except that, nothing was elicited in favour of the case of the 5th respondent.

16.P.W.3 is Dr.N.Krishna Naik, who deposed in his chief-examination that on 04.09.2017 the patient by name Bh.Vasudeva Rao was admitted under medical management. P.W.3 admitted in his chief-examination that the patient was shifted from K.G. Hospital to his hospital on 04.09.2017 around 1.20 p.m., and that the patient was admitted with incubation tube connected to T-piece and after few hours, the patient was discharged against medical advise and 17 XII ADJ COURT-MACT,VSP MOP.No.404/2018 that the patient incurred an amount of Rs.27,170/- and outpatient bill was

Rs.3,713/- towards investigations and Rs.1,000/- towards ambulance bill.

P.W.3 further deposed in chief-examination examination that when the patient discharged they provided ventilator support otherwise if not provided the patient may die while tranpsort. P.W.3 was cross-examined by the learned counsel for the 5th respondent. In his cross-examination, P.W.3 deposed that the patient took treatment in their hospital for a period of 14 hours and denied the suggestion that there will be damage to the patient who is under treatment, then witness volunteered that the condition of the patient was already damaged by the time of admission into the Pinacle hospital. P.W.3 admitted in his cross-examination that while undergoing treatment the family members of the patient got discharged the patient against their medical advise. Except that, nothing was elicited in the cross-examination of P.W.3 in favour of the case of the 5th respondent. The learned counsel for respondents 2 and 3 or 1 and 4 did not cross-examine P.W.3.

17.P.W.2 is also a Doctor viz., Dr.Kallepalli Kurmanadh, who deposed in his chief-examination that on 04.09.2017 the patient by name B.Vasudeva

Rao was examined by him and admitted as an inpatient and treated by him.

On examination, patient was unconscious and history of road traffic accident with head injury fractured mandible in addition to SAH, Pneumo, Cephalus and Diffuse, Axonal injury. P.W.2 further deposed in his chief-examination that at the time of examination, the BP of the patient was 130/80 and heart rate was 73 per minute, patient was on ventilator at the time of admission, P.W.2 further deposed that the patient was admitted in ICU and head critical care management under Dr.M.V.V.Sekhar and Dr.K.Kurmanadh. P.W.1 further swore in his chief-examination that the general condition of the patient was poor, in view of expected prolonged treatment with ventilator tracheostomy 18 XII ADJ COURT-MACT,VSP MOP.No.404/2018 done. P.W.2 further testified in his chief-examination that at the time of admission, patient had bleeding nose and ear and case sheet contains 144 pages which was marked as Ex.X1 with consent of the learned counsel for the 5th respondent. P.W.2 was cross-examined by the learned counsel for the 5th respondent. In his cross-examination, P.W.2 deposed that the patient was admitted after 20 hours from the time of accident and that after taking the patient to the K.G. Hospital and from there to Pincale and finally admitted in their hospial on 04.09.2017.

18.P.W.2 admitted in his cross-examination that there is a possibility of risk while shifting from one hospital to another, who was unconscious on ventilator support. P.W.2 further stated in his cross-examination that he cannot say whether the patient received proper treatment or not immediately after the accident and till admission in their hospital on 04.07.2017. P.W.2 admitted in his cross-examination that there is a considerable recovery of the patient from the date of admission and till date of discharge and where the ventilator was discontinued and the patient could able to respire normally. P.W.2 further admitted in his cross-examination that the patient was discharged at the request of the relatives of the patient and that by the time of discharge also the patient requires further treatment under close monitoring. P.W.2 further swore in his cross-examination that he cannot say whether the patient died only due to lack of continuity of treatment, otherwise he would have alive and that he cannot say whether proper first aid was received by the deceased immediately after the accident. Except that, nothing was elicited in favour of the case of the 3rd respondent. P.W.2 deposed in his re-examination that the patient was brought on ventilator from Pinnacle hospital to Vijetha hospital and that when patient is on ventilator, it indicates proper treatment upto certain extent. P.W.2 further deposed in his chief-examination that the patient was 19 XII ADJ COURT-MACT,VSP MOP.No.404/2018 discharged at request not against the medical advise and since they could not meet the expenses.

19.In order to prove the accident, petitioners examined PW-5 who testified in his evidence that he accompanied the 3rd petitioner in performing pujas and

P.W.5 further deposed that the accident occurred due to rash and negligent driving of the 1st respondent and when the deceased was crossing the road at

Jatara, the crime vehicle dashed against the deceased, due to which, he sustained severe head injury and later died in the K.G. Hospital while undergoing treatment. P.W.5 was cross-examined by the learned counsel for the 5th respondent. P.W.5 admitted in his cross-examination that he did not see the occurrence of the accident and that he was the friend of the son of the deceased namely Srinivas. P.W.5 further deposed in his cross-examination that after the accident he accompanied the deceased to the K.G. Hospital in ambulance and that to his knowledge the deceased getting pension of

Rs.30,000/- per month. P.W.5 stated in his cross-examination that he mentioned in his chief affidavit that the deceased gets a pension of

Rs.20,000/- per month.

20. P.W.5 further deposed in his cross-examination that the deceased used to earn Rs.20,000/- by performing pujas and through tuitions. P.W.5 denied the suggestion that he does not have any personal knowledge of income of the deceased with regard to the pujas and tuitions and that at the instigation of petitioners, he is deposing false. P.W.5 admitted that there is no documentary evidence to prove the additional income of the deceased through pujas and tuitions and that the deceased was admitted in three hospitals prior to his death. P.W.5 denied the suggestion that due to inconsistent treatment admission at various hospitals by petitioners led the 20 XII ADJ COURT-MACT,VSP MOP.No.404/2018 deceased to the death, otherwise the death would not have occurred. P.W.5 further denied the suggestion that the alleged accident occurred due to contact of the deceased with the rear side of the bus and that there is no negligence on the part of the APSRTC bus. P.W.5 deposed in his cross- examination that he signed as one of the panchayatdars on the inquest prepared by the police.

21.P.W.5 denied the suggestion that he never accompanied the son of the deceased in performing pujas and that he was randomly picked to sign as panchayatdar and that he does not know anything about the accident, family and income of the deceased. P.W.5 further denied the suggestion that he is deposing false at the request made by the son of the deceased since his name was referred in panchanama report. P.W.5 further deposed in his cross- examination that he gave evidence in criminal case as panchayatdar and he did not give evidence as an eye witness as he did not see the accident.

Except that nothing was elicited from the cross-examination of P.W.5 by the learned counsel for the 5th respondent in favour of the case of the 5th respondent.

22.P.W.5 was re-examined by the learned counsel for petitioners. In his re- examination, P.W.5 deposed that he brought the original aadhar showing the residential address mentioned his chief affidavit. P.W.5 deposed in his re- examination that immediately after the accident, the deceased was shifted to

K.G. Hospital in 108 ambulance and thereafter the deceased was shifted to

Pinnacle hospital, from there to K.G. Hospital for better treatment on the same day and thereafter the deceased was shifted to Vijetha hospital and after taking 20 days of treatment, the deceased again shifted to K.G. Hospital, where the patient died. P.W.5 further deposed in his re-examination that the 21 XII ADJ COURT-MACT,VSP MOP.No.404/2018 reason for shifting from one hospital to another is due to non-affordability to incur medical expenses. It is quite natural that whenever a person is admitted in a critical stage, the relatives will think about the affordability to bear the medical expenses required for treatment.

23.Regarding the rash and negligent driving of the 1st respondent, even though respondents 1 and 4 filed common counter, they did not show any interest in cross-examining P.Ws.1 to 5, the 3rd respondent did not take any steps to examine the 1st respondent to prove that the accident was not due to his rash and negligent driving. On perusal of Ex.A1 – FIR in Cr.No.448/2017,

Ex.A2 – attested copy of charge sheet reveals that the police filed charge sheet against the 1st respondent of the offence under Section 304-A IPC, in which P.W.5 was cited as L.W.9, as such, the evidence P.W.5 can be taken into consideration.

24.On perusal of Ex.A3 Postmortem report would reveal that the deceased died due to the head injury and Ex.A4 inquest report also reveals that the deceased died due to the head injury. Further Ex.A5 MVI report shows that the accident was not due to any mechanical defects of the crime vehicle i.e., bus bearing No.AP 35 X 0288. The nature of injuries and the death also show that without there being negligence of the 1st respondent such an accident would not have been occurred. Though it is contended that due to negligence of the deceased, the accident occurred but nothing was elicited to establish the negligence of the deceased. Therefore, considering the testimonies of

Pws.1 to 5 coupled with documentary evidence and other relevant factors, this

Tribunal feels that the accident occurred due to rash and negligent driving of the bus by the 1st respondent in which, the deceased sustained grievous head 22 XII ADJ COURT-MACT,VSP MOP.No.404/2018 injury and subsequently died in hospital after twenty days of the accident while undergoing treatment.

25.It is the contention of petitioners that the deceased was aged 67 years by the time of accident and he was a retired teacher and getting pension as per Ex.A28 pension calculation, the deceased was getting an amount of

Rs.26,542/- per month towards his pension. With regard to age of the deceased, a perusal of Ex.A1 FIR, wherein it was mentioned that the age of the deceased was 67 years, and the said fact was corroborated with Ex.A3

Postmortem Report, showing the apparent age of the deceased as 67 years.

Therefore, in the absence of other record it can safely believed that the age of the deceased is determined as 67 years as the doctor’s opinion carries weight regarding the age and the deceased who was a retired Hindi Pandit from Zilla

Parishad School, and after his retirement he used to conduct Hindi tuitions and performing pujas and used to earn an amount of Rs.20,000/- per month at the time of accident, besides pension.

26.With regard to the income of the deceased, petitioners claimed that the deceased was a retired teacher from Zilla Parishad School, Srikakulam and as per Ex.A28 pension calculation, an amount of Rs.26,542/- was the monthly pension of the deceased, though petitioners claimed that the deceased used to earn Rs.20,000/- per month by conducting Hindi tuitions and performing pujas, but petitioners failed to file any documentary proof with regard to the income derived from the tuitions and performing pujas, therefore, this Tribunal did not take into consideration about the income of the deceased derived from the tuitions and pujas. Therefore, this Tribunal has taken into account the monthly pension of the deceased at Rs.26,542/- as the earnings of the deceased. Therefore, the earnings of the deceased as on the date of accident 23 XII ADJ COURT-MACT,VSP MOP.No.404/2018 is quantified as Rs.26,542/- (Rupees Twenty Six Thousand Five Hundred and Forty Two only) which is just and reasonable to determine ‘just compensation.’

27.With regard to deductions towards personal and living expenses of the deceased and number of dependents on the earnings of the deceased, as per the record as on the date of death of the deceased, he has a wife, mother, one son and two daughters, though the son and daughters are married, they will be also considered as dependents besides the wife and the mother and they are entitled to claim compensation under the head of loss of dependency.

28.In view of the observations made by the Hon’ble Apex court in Sarla

Verma & Ors… Appellants Vs. Delhi Transport Corporation & Anr..

Respondents ,1 in Para-9 it was observed that : Basically only three facts need to be established by the claimants for assessing compensation in the case of death :

(a) age of the deceased; (b income of the deceased; and

(c) the number of dependents. The issues to be determined by the

Tribunal to arrive at the loss of dependency are:(I) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased…..”

Further it was observed with regard to standard deductions towards personal and living expenses, it was held that:

12009 (2) MAC 9 (SC), 24 XII ADJ COURT-MACT,VSP MOP.No.404/2018 “…Where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one- third (1/3 rd ) where the number of dependent family members 2 to 3; one-fourth (1/4 th ) where the number of dependent family members is 4 to 6; and one-fifty (1/5 th ) where the number of dependeant family members exceed six;”

Therefore, as this Tribunal has taken into consideration, that petitioners 1 to 5 were the dependent family members of the deceased, as such, 1/4thof income of the deceased is to be deducted towards personal and living expenses of the deceased. Then, the annual income of the deceased would be arrived at

Rs.3,18,504/-(Rs.26,542/-x12) and after deducting one-fourth (1/4th) towards personal and living expenses, the actual loss of dependency would come to

Rs.238878/- (Rs.3,18,504x1/4=Rs.79626/-) (Rupees Two Lakh Thirty Eight

Thousand Eight Hundred and Seventy Eight only).

29. In order to determine just compensation for ‘loss of dependency, as per the observation of the Hon’ble Apex Court in “Susamma Thomas, Trilok

Chandra and Charlie” (for claims under section 166 of M.V.Act) (as referred in

Sarla Verma’s case), the appropriate multiplier “5” is applicable for the age group between 65-70 years and the deceased is aged 67 as on the date of his death. Therefore, if the annual income of the deceased is multiplied by the aforesaid multiplier ’5’, the total loss of dependency comes to Rs.11,94,390/- (i.e.,Rs.2,38,878/-X5) (Rupees Eleven Lakh Ninety Four Thousand Three

Hundred and Ninety only).

30.Apart from that, petitioners are entitled to compensation of Rs.15,000/- (Rupees fifteen thousand) towards loss of estate, and an amount of 25 XII ADJ COURT-MACT,VSP MOP.No.404/2018

Rs.40,000/- (Rupees forty thousand) each(as per decision of Chandra @

Chandra @ Chandraram & Anr. Vs. Mukesh Kumar Yadav & Others)2 towards loss of consortium and an amount of Rs.15,000/- (Rupees fifteen thousand) towards funeral expenses to meet the ends of justice. However, in view of the decision of constitution bench of Hon’ble Apex Court rendered in

National Insurance Co.Ltd., Vs. Pranay Sethi’s case (referred supra), wherein the Apex Court observed at Para-54 of the decision that:

“…It seems to us that reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.

The principle of re-visiting the said heads is an acceptable principle.

But the re-visit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”

The above referred Judgment was pronounced on 31.10.2017, and a span of six years has been completed from the date of said decision as such, petitioners are entitled for the benefits under conventional heads as determined by the Hon’ble Apex Court in the above decision with 10% enhancement for each span.

31. By applying the above principle of law, on the above amounts granted under conventional heads can be recalculated and thus, towards consortium an amount of Rs.44,000/-(Rs.40,000x10%=4000+40000) (Rupees Forty Four

Thousand only) to each petitioners, towards loss of Estate an amount of 2 2021(6) ALT 116 (SC);decided on 1 October, 2021; 26 XII ADJ COURT-MACT,VSP MOP.No.404/2018

Rs.16,500/- (Rs.15,000x10%)(Rupees Sixteen Thousand and Five Hundred only); towardsfuneral expenses an amount of Rs.16,500/- (Rs.15,000x10%), (Rupees Sixteen Thousand and Five Hundred only) have to be awarded to petitioners.

32.In all petitioners are entitled to the total compensation under the following heads:

(a)Loss of dependency : Rs.11,94,390/-

(b)Loss of Consortium : Rs. 2,20,000/- (petitioners 1 to 5)

(c)Loss of estate : Rs. 16,500/-

(d)Funeral expenses : Rs. 16,500/- ------------------------ Rs.14,47,390/-

(Rupees Fourteen Lakh Forty Seven Thousand Three Hundred and

Ninety only).

33.With regard to the aspect of liability of respondents 1 to 6, it is evident that since the 1st respondent being the driver of the crime vehicle viz., bus bearing No.AP 35 X 0288, respondents 2 and 3 being the hirer and custodian of the crime vehicle, the 4th respondent being the owner of the crime vehicle, respondents 5 and 6 being insurers of the crime vehicle respectively, and the accident occurred due to rash and negligent driving of the crime vehicle by the 1st respondent at a high speed without observing traffic rules, the accident in question happened. Had the 1st respondent been diligent and careful while driving the crime vehicle bus on the public road, the accident would not have occurred and, therefore, it is evident that the 1st respondent drove his bus in a rash and negligent manner at a high speed without observing the traffic rules, resulting into the accident and the deceased succumbed to injuries.

27 XII ADJ COURT-MACT,VSP MOP.No.404/2018

34.Therefore, in the absence of any contrary evidence, the 4th respondent, being the owner/insured of the crime vehicle bus, respondents 2 and 3 are the hirer and custodian of the bus, are vicariously liable for the acts of the driver of the bus i.e., 1st respondent and respondents 5 and 6 being the insurers of the crime vehicle since the policy is in force as on the date of accident, all the respondents 1 to 6 are jointly and severally liable to pay compensation to petitioners.

35.Originally, the claim petition was filed by petitioners 1 to 5. The 1st petitioner is the wife, the 2nd petitioner is the mother of the deceased, the 3rd petitioner is the son and petitioners 4 and 5 are the married daughters of the deceased. During the pendency of the petition, petitioners 1, 2 and 4 were died, as such, petitioners 6 to 8 were added as legal representatives of the 4th petitioner and no legal representatives were added on behalf of petitioners 1 and 2. Therefore, if the 4th petitioner is not died, the compensation amount will be disbursed to petitioners 3 to 5, being the son and married daughters of the deceased. Therefore, this Tribunal feels that the compensation amount will be divided into three shares, one such share will be awarded to the 3rd petitioner, one such share will be awarded to the 5th petitioner and the remaining one such share will be awarded to petitioners 6 to 8.

36.With regard to entitlement of interest, petitioners claimed the rate of interest at 12% on the awarded compensation amount. However, in the view of the decision of the Hon’ble Apex Court rendered in Lakkamma & Ors., Vs.

Regional Manager, M/s.United India Insurance Company Limited & Anr., 3the 32021 (SCC OnLine SC 584) decided on 02.03.2021 in Civil Appeal No. 808 of 2021 (arising out of SLP(C) No. 28794/2016); 28 XII ADJ COURT-MACT,VSP MOP.No.404/2018 rate of interest is @ 9% p.a., on the awarded compensation amount would meet the ends of justice. Accordingly, issue Nos.1 and 2 are answered in favour of petitioners and against respondents 1 to 6.

I S S U E No.4 :

37.In view of my foregoing discussion and findings rendered on Issue

Nos.1 to 3, respondents 1 to 6 are jointly and severally liable to pay the compensation awarded to petitioners to a tune of Rs.14,47,390/- (Rupees

Fourteen Lakh Forty Seven Thousand Three Hundred and Ninety only).

and accordingly the decree shall be drafted. Accordingly, issue No.4 is answered in favour of the petitioners.

38. IN THE RESULT, the petition is allowed with proportionate costs, awarding an amount of Rs.14,47,390/- (Rupees Fourteen Lakh Forty Seven

Thousand Three Hundred and Ninety only) towards compensation to petitioners with subsequent interest at 9% p.a from the date of filing of the petition i.e., 10.04.2018 till the date of payment.

(a) Respondents 1 to 6 are jointly and severally liable to pay the award amount of compensation to petitioners WITHIN ONE MONTH from the date of this Order i.e., 11.04.2025 as required U/s. 168(3) of M.V.Act.

(b) Respondents are directed to inform the deposit of Award amount into the Bank Account of the Tribunal i.e., A/c.No.046200170005601, IFSC Code

PUNB0046200 of Punjab National Bank, Main Branch, LIC Building,

Visakhapatnam., and send the copy of the same to the beneficiary as per the directions of Hon'ble Supreme Court issued in the case of ‘Bajaj Allianz

General Insurance Company Pvt. Ltd., Vs., Union of India & Ors. 4 .’ 4Writ Petition (Civil) No.534/2020 dt. 16.11.2021 of Hon’ble Supreme Court.

29 XII ADJ COURT-MACT,VSP MOP.No.404/2018

(c) APPORTIONMENT: Out of total compensation: (I) The 3rd petitioner, who is the son of the deceased is entitled to Rs.4,82,464/- (Rupees Four

Lakh Eighty Two Thousand Four Hundred and Sixty Four only) towards his share of compensation amount, (ii) the 5th petitioner being the married daughter of the deceased is entitled to Rs.4,82,463/- (Rupees Four Lakh

Eighty Two Thousand Four Hundred and Sixty Three only); (iii) petitioners 6 to 8 who are the legal representatives of the 4th petitioner are entitled to an amount of Rs.1,60,821/- (Rupees One Lakh Sixty Thousand Eight Hundred and Twenty One only) each towards their respective share amounts.

(d) DISBURSEMENT: On such deposit:(i) the 1st petitioner is permitted to withdraw an amount of Rs.2,82,464/- (Rupees Two Lakh Eighty Two

Thousand Four Hundred and Sixty Four only) together with interest accrued on the entire awarded amount and costs thereon and his remaining share amount of Rs.2,00,000/- (Rupees Two Lakh only) shall be deposited in Fixed Deposit in any Nationalized Bank for a period of TWO YEARS; (ii) the 5th petitioner is permitted to withdraw an amount of Rs.2,82,463/- (Rupees

Two Lakh Eighty Two Thousand Four Hundred and Sixty Three only)

together with interest accrued on the entire awarded amount and costs thereon and her remaining share amount of Rs.2,00,000/- (Rupees Two Lakh only) shall be deposited in Fixed Deposit in any Nationalized Bank for a period of TWO YEARS; (iii) Petitioners 6 to 8 are permitted to withdraw an amount of Rs.80,821/- (Rupees Eighty Thousand Eight Hundred and

Twenty One only) each together with interest accrued on the entire awarded amount and costs thereon and their remaining share amounts of Rs.80,000/- (Rupees Eighty Thousand only) each shall be deposited in Fixed Deposit in any Nationalized Bank for a period of TWO YEARS; 30 XII ADJ COURT-MACT,VSP MOP.No.404/2018

(e) The Advocate fee is fixed at Rs.5,000/- (Rupees five thousand only);

(f) The rest of the claim is dismissed; and

(g) The decree shall be drafted accordingly.

Typed to my dictation to the Stenographer Gr.I, corrected and

pronounced by me in Open Court, this the 11 th day of April, 2025.

Sd/-Sri P.Govardhan

Chairman,MACT-cum- XII Addl. District & Sessions Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner:

P.W.1 : Bhogapurapu Srinivas (3rd petitioner). P.W.2 : Dr.Kallepalli Kurmanadh P.W.3 : Dr.N.Krishna Naik P.W.4 : Dr.Babu Nagendra P.W.5 : Tattikonda Bala Krishna

For Respondents: NONE

Exhibits marked

For Petitioner:

Ex.A1 : Attested copy FIR No.448/2017 PM Palem PS/Complaint copy and alter FIR u/s 304A IPC dated 04-09-2017 and 23- 09-2017 respectively. Ex.A2 : Attested copy of Charge Sheet marked as exhibit A2.

Ex.A3 : Attested copy Post Mortem Report AMC KGH dated 23-09- 2017. Ex.A4 : Attested copy of Inquest report dt.23-09-2017.

Ex.A5 : Attested copy of MV Inspector report dated 05-09-2017.

Ex.A6 : Photostat copy of Vehicle Registration Certificate dated 21.06.2014.

31 XII ADJ COURT-MACT,VSP MOP.No.404/2018

Ex.A7 : Photostat copy of Fitness Certificate No.2723119 dated 07.06.2017. Ex.A8 : Photostat copy of Driving Licence No.DLRARO 30919215

dated 16-06-2008.

Ex.A9 : Photostat copy of Insurance policy No.56050031171000967 and Indemnity to HIRER package policy dated 20-05-2017. Ex.A10 : Original death certificate of Sri Bh.Vasudeva Rao dated 12.12.2017. Ex.A11 : Original discharge summary of Pinnacle Hospital dated 04.09.2017. Ex.A12 : Photostat copy of plain CT scan of brain report dt.04-09- 2017 issued by Pinnacle Cancer Center. Ex.A13 : Photostat copy of Investigation reports (Nos.7) dated 04.09.2017 of Pinnacle hospital. Ex.A14 : Original discharge summary of Vijetha Hospital dated 04.09.2017. Ex.A15 : Photostat copy of Ultra sound scan of Abdomden dated 14.09.2017. Ex.A16 : Photostat copy of diet recommended sheet dated 07.09.2017. Ex.A17 : Photostat copy of CT scan of brain (plain) report dated 06.09.2017. Ex.A18 : Photostat copy of Investigations reports (Nos.6) dated 17.09.2017. Ex.A19 : Photostat case sheet of KGH Sri Bh. Vasudeva Rao (pages

18) dated 20-09-2017. Ex.A20 : Original X-Ray chest and spine (Nos.2) Pinnacle Hospital

dated 04-05-2017.

Ex.A21 : Original X-Ray chest of Vijetha Hospital dated 14-09-2017.

Ex.A22 : Original X-Ray chest of Vijetha Hospital dated 13-09-2017.

Ex.A23 : Original X-Ray chest of Vijetha Hospital dated 06-09-2017.

Ex.A24 : Original X-Ray chest of Vijetha Hospital dated 08-09-2017.

Ex.A25 : Original CT brain scans Nos.4 Pinnacle and Vijetha dated 04-09-2017.

32 XII ADJ COURT-MACT,VSP MOP.No.404/2018

Ex.A26 : Original hospital and medical bills as mentioned below (34Nos) dated 04-09-2017, 04-09-2017, 04-09-2017,.... Ex.A27 : Original bunch of medical prescriptions (55Nos).

Ex.A28 : Attested copy of pension calculations.

For the 5 and 6 respondents :

Ex.B1 :Certified copy of Policy bearing No.560500311710000967, (Marked by which is valid from 20.05.2017 to 19.05.2018. consent)

Sd/-Sri P.Govardhan

Chairman,MACT-cum- XII Addl. Dist. & Sessions Judge Visakhapatnam 33 XII ADJ COURT-MACT,VSP MOP.No.676/2018

III ASCJ, VSP

1O.S.No.1607/2005

IN THE COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

Present: Sri P.Govardhan

VII Additional Senior Civil Judge FAC-III Additional Senior Civil Judge

Wednesday, the 10th day of August, 2022.

ORIGINAL SUIT No.1607 of 2005.

Between :

1. Vanapalli Santosh Kumar, S/o.Veera Venkata Satyanarayana Alias Raju, Hindu, Aged 27 years, Employee, resident of Door No.27-8-5/3, Spring Road, Visakhapatnam.

2. Vanapalli Kalyana Mohan, S/o.Veera Venkata Satyanarayana Alias Raju, Hindu, Aged 24 years, resident of Door No.27-8-5/3, Spring Road, Visakhapatnam. ...Plaintifs A n d:

1. Vanapalli Anand (Died);

2. Vanapalli Sumalatha, W/o. Anand, Hindu, aged 45 yers, Housewife, resident of T-3, III-Floor, Chandrateja Apartments, Street No.21, CBM Compound, Visakhapatnam.

3. Imandi Ramya, W/o.Ajay Kumar, Hindu, aged 25 years, Housewife, resident of – rest ditto -.

4. Vanapalli Yogitha, D/o. Anand, Hindu, aged 21 years, resident of – rest ditto -. (Defendants 2 to 4 are added as L.Rs,., of the 1st defendant as per Orders in I.A.No.94/2012 dt.23.02.2016) … Defendants

This suit has come up on 05.08.2022 for fnal hearing before me in the presence of Sri TVSK Kanaka Raju, Advocate for plaintifs and Sri P.V.Reddy Naidu, Advocate for Defendants 2 to 4 and upon hearing both sides, the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1.This suit was initially fled by the plaintifs 1 and 2 against the sole-defendant for declaration of title and for recovery of possession of the plaint schedule property by evicting the 1st defendant. Later the 1st defendant died, as such, the defendants 2 to 4 were added as legal

III ASCJ, VSP

2O.S.No.1607/2005 representatives of the 1st defendant as per the Orders in I.A.No.94/2012

dated 23.02.2016.

2.The contentions of the plaintifs, as seen from the neat copy of the plaint, are as follows:

(a) The paternal grand-father of plaintifs is late Vanapalli

Satyanarayana @ Satya and the paternal grand-mother of plaintif is

Vanapalli Atchayyamma. Late Vanapalli Satyanarayana, during his life time, along with Smt.Chappa Simhachalam jointly purchased a vacant site on the eastern-side, Spring Road, Visakhapatnam under registered

Sale Deed dated 26.02.1966 from Kilaparthi Varahalu and others. Later

Chappa Simhachalam executed a registered Relinquishment Deed

dated 13.08.1969 in favour of the plaintifss paternal grand-father

Vanapalli Satyanarayana and then the said Vanapalli Satyanarayana constructed three portioned terrace building bearing Door No.27-8-5 with the monies realized by him from out of sale proceeds as the property of his wife Vanapalli Atchayyamma was sold. Accordingly, the said Vanapalli Satyanarayana and Vanapalli Atchayyamma were in possession and enjoyment of the terraced three portioned building.

(b) During his life time, Vanapalli Satyanarayana executed a Will

dated 22.01.1975 bequeathing the said terraced building in favour of

his wife Vanapalli Atchayyamma with absolute rights, as the said building was constructed with the monies realized by the sale of her properties. Vanapalli Satyanarayana died on 23.08.1975, as such, his wife Vanapalli Atchayyamma succeeded the three portioned terrace building with absolute rights and then she was in possession and enjoyment of the said building and paid municipal taxes and she also borrowed money from Bank by hypothecating the said building. Later

III ASCJ, VSP

3O.S.No.1607/2005

Vanapalli Atchayyamma constructed two portions on the terrace of the three portioned building and was in possession and enjoyment of the same.

(c) While enjoying the said up-stair building, Vanapalli

Atchayyamma sold the southern-side portion of the said building to one

Shaik Abdul Raheem, S/o. Shaik Anka Saheb under a Registered Sale

Deed dated 19.08.1977 for a valuable consideration of Rs.26,000/- and delivered the possession to him. Hence, Vanapalli Atchayyamma remained in possession of two portioned up-stair building in her own right. While enjoying the same, she permitted the deceased-1st defendant, who is her son, to reside in the northern-side ground foor portion of the building, which is shown as plaint schedule property, with a condition that the 1st defendant shall vacate and deliver vacant possession to her as and when she asked. Thereafter, the 1st defendant is in permissive possession and enjoyment of the plaint schedule property and similarly, Vanapalli Atchayyamma, permitted her another son Vanapalli Ramesh, to reside in the northern-side up-stair portion of the building with a similar condition that he shall vacate and deliver vacant possession to her as and when she asked to do so. Hence, the deceased 1st-defendant and Vanapalli Ramesh are in permissive possession of respective portions. In the remaining portions i.e., middle portion in the up-stair and the ground foor portion of the said building,

Vanapalli Atchayyamma was residing with her eldest son Vanapalli

Veera Venkata Satyanarayana @ Raju and his family.

(d) Vanapalli Atchayyamma, while living in the middle up-stairs and down-stair portions of the building, in a sound disposing state of mind executed a registered Will on 19.08.1988 bequeathing the entire

III ASCJ, VSP

4O.S.No.1607/2005 remaining two portions of the building to her grandsons i.e., plaintifs herein, with absolute rights appointing her daughter-in-law Vanapalli

Aruna, to manage the properties during the minority of the plaintifs.

Vanapalli Atchayamma died on 30.08.1994, as such, the plaintifs became absolute owners of entire two portions in the up-stair and down-stair portions of the building i.e., the plaint schedule property herein, and they became absolute owners of the two portions which are given as permissive possession to Vanapalli Ramesh, as such, the entire up-stair and down-stair portions in the said building are in possession of the plaintifs by virtue of Will dated 19.08.1988.

(e) During the life time of Vanapalli Atchayyamma, she fled a suit in O.S.No.44/1989 on the fle of I Additional Senior Civil Judgess Court,

Visakhapatnam for eviction of the deceased 1st defendant and her son.

During the pendency of the said suit, Vanapalli Atchayyamma died on 30.08.1994 and the legal heirs were not added in time, as such, the said suit was abated on 19.02.1996. Later the plaintifs in the said suit fled I.A.No.82/1999 for condonation of delay of 958 days in fling the legal representatives petition and the said petition was dismissed on the ground that the delay was abnormal. Then a Revision was preferred

before the Honsble High Court of Andhra Pradesh, vide C.R.P.No.

56540/2002 which was also dismissed on 25.04.2003.

(f) Therefore, the plaintifs fled the present suit for declaration of their title and for recovery of possession of plaint schedule property after vacating the defendants. The plaintifs demanded the 1st defendant for delivery of the plaint schedule property to them, informing them about the registered Will dated 19.08.1988 executed by

Vanapalli Atchayyamma in their favour. The 1st defendant did not

III ASCJ, VSP

5O.S.No.1607/2005 comply with the said notice, as such, a legal notice was issued to the 1st defendant on 07.10.1995 and though the 1st defendant received the said notice on 09.10.1995, he failed to comply the same and postponing the delivery of vacant possession of plaint schedule property. As the 1st defendant failed to vacate and deliver vacant possession of the plaint schedule premises to the plaintifs, the present suit is fled for declaration and recovery of possession and for recovery of damages of Rs. 27,000/- (Rupees twenty seven thousand) at the rate of Rs.750/- per month from 01.10.2002 to 30.09.2005 and for recovery of future damages and costs of the suit.

3.The deceased 1st defendant, during his life, fled written statement, denying the contentions of the plaintifs. The contentions of 1st defendant, as seen from the written statement, are as follows:

(a)The 1stdefendant does not know whether Chappa

Simhachalam executed a Relinquishment Deed dated 13.08.1969 in favour of the paternal grand-father of plaintifs. It is for the plaintifs to establish that Vanapalli Satyanarayana constructed three portioned building using the money realized by selling the properties of Vanapalli

Atchayyamma. The Will dated 23.08.1975 in favour of Vanapalli

Atchayyamma is false and Vanapalli Satyanarayana has no right to execute a Will in favour of his wife.

(b) The schedule property is the joint family property of the 1st defendant, his brother and his father and with the income generated from the joint family property. The three portioned building was constructed by Vanapalli Satyanarayana. The Will dated 23.08.1975 was never acted upon and Vanapalli Atchayyamma never enjoyed the said property with absolute rights and she was residing with the 1st

III ASCJ, VSP

6O.S.No.1607/2005 defendant jointly as a co-sharer and even she has no right to execute

Will in respect of the plaint schedule property in favour of plaintifs.

(c)The suit for declaration is not maintainable against co-sharers and the Sale Deed executed by Vanapalli Atchayyamma dated 19.08.1977 is incorrect. The 1st defendant was never permitted to reside with permissive possession. It is false to allege that Vanapalli

Atchayyamma along with her eldest son, is residing in the middle portion of up-stair and frst-foor portion of the building. Vanapalli

Atchayyamma fled OS.No.44/1089 on the fle of I Additional Senior Civil

Judgess Court, Visakhapatnam and pending suit, the legal heirs were not

added though petition in I.A.No.82/1999 fled U/s.5 of the Limitation Act, was dismissed and aggrieved by the same, Civil Revision Petition

No.56840/2002 was fled and it was dismissed on 24.05.2003. Hence, due to orders of the Honsble High Court, the plaintifs were estopped to fle the present speculative suit against the 1st defendant. After the death of the father of the 1st defendant, the father of plaintifs, the 1st defendant and his another brother partitioned the schedule mentioned property into three equal shares and each one is enjoying one-third respective share including the father of the plaintifs.

(d) The mother of the plaintifs brought the speculative document in connivance with her husband without any right even though the father of the plaintifs is a co-sharer of the property and necessary party, he was not added as party, to the suit. The claim of the plaintifs is barred by time as the 1st defendant is living independently as per the family arrangements for more than twelve (12) years with absolute rights. There is no cause of action for the suit, in fact, the plaintifs and their father are living in the portion of the 1st defendant i.e., permissive

III ASCJ, VSP

7O.S.No.1607/2005 possession of 1st defendant with a condition that they shall vacate the premises as and when the 1st defendant and his elder brother directs to do so. In fact, Shaik Abdul Rahim who is residing in the southern-portion of the building is also necessary party to the suit. As Vanapalli

Atchayyamma has no right to sell it, therefore, the suit is liable to be dismissed.

5.Basing on the above pleadings, my learned Predecessor framed the following issues on 15.06.2006;

1. Whether the plaintifs are entitled for declaration of title for the suit schedule property and for recovery of possession of the same after eviction of the 1 st defendant?

2. Whether the plaintifs are entitled for claiming damages at

Rs.750/- per month from 01.10.2002 to 30.09.2005?

3. To what Relief?

6.As seen from the docket notes, during the course of trial, on 27.09.2007 Chief-afdavit of 1st plaintif as PW-1 was fled and for marking of document the matter is adjourned. On 28.03.2008 the plaintifs fled a memo stating that the connected matter OS.No.1606/2005 is transferred to this

Court for joint trial and IA.No.15/201 was allowed on 01.02.2010 for joint trial and evidence is to be recorded in OS.No.1606/2005. On 18.09.2012 the plaintifs fled a memo stating that the sole-defendant died and fled

IA.No.94/2012 and it was allowed on 23.02.2016 impleading the defendants 2

to 4 as defendants in this Suit. After the defendants 2 to 4 were brought on record, they did not choose to fle any additional written statement on their behalf, as such, no additional issues arose in the suit and the matter was posted for adducing evidence of plaintifs.

7.On behalf of plaintifs, PW-1 and PW-2 were examined and Ex.A1 to 14 were marked. On behalf of the defendants 2 to 4, no evidence is adduced except marking Ex.B1 in the cross-examination of PW-1.

III ASCJ, VSP

8O.S.No.1607/2005

8.Heard both sides. The learned Advocate for plaintifs fled a memo along with citations in support of their case and perused the same.

9.ISSUE No.1:

The contentions of the learned counsel for the plaintifs are summarized as follows:

(i) From the inception, there is no dispute regarding the title of the plaint schedule property as Ex.A6 Will conferred the plaint schedule property along with another portion to Vanapalli Atchayyamma, as such, she has been paying the property tax in her name and even now the property is assessed in her name which shows that she is the absolute owner of the plaint schedule property. Ex.A4 certifed copy of the Sale Deed dated 26.02.1966 and Ex.A5

Relinquishment Deed dated 13.08.1969 are not disputed.

(ii) The plaintifs by examining PW-2 established the execution of Ex.A1

Will and Ex.A6 will, which was acted upon. To establish that Ex.A6 Will is acted upon, the plaintifs fled Ex.A2, Ex.A3, and Ex.A10 which shows that the property tax is levied in the name of Vanapalli Atchayyamma. Even the plaintifs fled Ex.A11 Sale deed dated 19.08.1977 which establishes her right over the plaint schedule property as one portion was conveyed by her to Shaik

Abdul Rahim.

(iii) The defendants denied the very execution of Ex.A6 Will, so also

Ex.A1 Will, but they did not enter into the witness-box to put-forth their contentions, as such, an adverse inference has to be drawn against them. The plaintifs are mindful that the initial burden is on them to establish their right, title or interest over the plaint schedule property and by examining

P.Ws-1 and 2 and fling Exs.A1 to a14, they discharged the said burden. No circumstance is established by the defendants except to deny the very execution of Ex.A1 and A6 Wills. Even the defendants did not fle any material to show that they are having right, title and interest over the suit schedule property and they failed to fle documentary proof with regard to the previous

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9O.S.No.1607/2005 partition, as such, when Vanapalli Satyanarayana died, after executing Ex.A6

Will, Vanapalli Atchayyamma succeeded his estate and she is empowered to execute Ex.A1 Will which was duly acted upon and proved by examining PW-2.

10.The contentions of the learned counsel for the defendants 2 to 4 are summarized as follows:

(i) The 1st plaintif himself as PW-1, testifed in his cross-examination that O.S.No.16.06/2005 was dismissed on merits and he never fled any document to show that his paternal grand-mother Vanapalli Atchayyamma possessed and sold the constructed house. PW-1 also admits that to clear debts due to third-parties, one portioned house was sold under Ex.A11 which contains the signatures of Vanapalli Atchayyamma, father of plaintifs, 1st defendant and his brother, which shows that the property was divided after the death of Vanapalli Satyanarayana as such, Ex.A6 Will cannot be relied upon as the property was already divided in between the brothers. Therefore, all the brothers of the 1st defendant including the father of the plaintifs are having equal shares i.e., one-third share in the schedule property as Vanapalli

Atchayyamma died though after executing Ex.A6 Will which has no enforceability as Vanapalli Satyanarayana has already executed Ex.A1 Will.

(ii) The attestor of Ex.A1 Will was not examined. The evidence of Scribe of Ex.A1 and Ex.A6 was fled which was marked as Ex.A13 (deposition in

O.S.No.1606/2005). He admits that he mentioned in Ex.A11 Sale Deed that the

father of plaintifs, defendants and Vanapalli Atchayyamma executed it jointly.

He also admits that boundaries of the property was not mentioned in two Wills drafted by him. Ex.B1 notice was marked in the cross-examination of PW-1, which shows that it was addressed to Sumalatha and afxed on the house portion of 1st defendant which shows that the ownership of the 1st defendant even so recognized by the municipal authorities.

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10O.S.No.1607/2005

(iii) Another circumstance to disbelieve the version of the plaintifs is that the property tax is being paid by the three brothers but not by the father of the plaintifs and the same was admitted by PW-1.

(iv) It is not the case of the plaintifs that the evidence of defendants was closed and the defendants did not choose to adduce any evidence intentionally, and on 07.03.2022 a memo was fled by the counsel for the defendants 2 to 4 stating that there is no evidence on behalf of the defendants and after recording the said memo, the suit was posted for arguments. Therefore, the intention of the defendants is that, they have sufciently elicited from the cross-examination of PWs-1 and 2 to disbelieve the version of the plaintifs as such, they need not adduce any evidence.

Therefore, the suit is liable to be dismissed.

11.Based on the rival contentions, though in the pleadings the 1st defendant stated that he has no knowledge regarding Ex.A4 Sale Deed

dated 26.02.1966 and Ex.A5 Relinquishment Deed dated 13.08.1969,

however, in the cross-examination of PW-1 at the frst paragraph, it was elicited from PW-1 that the plaint schedule property and other adjacent properties were purchased by Vanapalli Satyam @ Vanapalli Satyanarayana and his sister-in-law in the year 1966 and Choppa Simhachalam relinquished her rights over the properties purchased by her as such, Vanapalli

Satyanarayana become absolute owner of the plaint schedule property.

Hence, with regard to the derivation of title to Vanapalli Satyanarayana there cannot be any suspicion as she purchased the same and Smt.Choppa

Simhachalam executed a Relinquishment deed in his favour vide Ex.A5.

12.The specifc contention of the plaintifs is that the defendants did not enter into the witness-box to disprove their contention as such, plaintifs by adducing evidence of PWs-1 and 2 discharged ‘onus of proof ‘ cast upon them in establishing their right, title and interest over the schedule property. In

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11O.S.No.1607/2005 support of their contention, the learned counsel for the plaintifs relied upon the judgment between Vidhyadhar Vs. Manikikrao 1. In the said Judgment, the Honsble Supreme Court held at Para-16 as follows:

Para-16:“Where a party to the suit does not appear into the witness box and states his own case on oath and does not ofer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay

97. The Madhya Pradesh Hig Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath Vidhyadhar vs Manikrao & Anr. on 17 March, 1999 Indian Kanoon - http://indiankanoon.org/ doc/1332419/ 4 and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”

13.Applying the above said ratio to the facts on hand, in this case the defendants 2 to 4 did not choose to enter into witness-box to give an opportunity to the plaintifs to elicit their contentions from the cross- examination of the witnesses examined on behalf of the defendants 2 to 4. To that extent, certainly an adverse inference is drawn against defendants 2 to 4 Under Section 114 of Evidence Act, for not entering into the witness-box and not adducing evidence.

14.The second Judgment relied upon by the learned counsel for the plaintifs is in between R.V.E.Venkatachala Gounder Vs. Arulmigu 11990 (3) SCC 573;

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12O.S.No.1607/2005

Viswesaraswami & VP Temple & Anr., 2 wherein at Para-26, the

Honsble Supreme Court held as follows:

“In a suit for recovery of possession based on title it is for the plaintif to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. However, as held in A. Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintif has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintif shall be held to have been discharged so as to amount to proof of the plaintif's title.”

15.Applying the above said ratio to the facts on hand, no doubt on one hand, the plaintifs can take advantage of adverse inference drawn against the defendants for not entering into the witness-box, that does not absolve their duty of proving their right, title and interest over the suit schedule property. As per the ratio laid down in the above

Judgment, it is for plaintifs to prove their title and to establish that they are in law entitled to dispossess the defendants from possession over the suit schedule property and the possession is to be restored to them.

16. In the same Judgment, the Honsble Supreme Court had discussed initially the distinction between ‘burden of proofs and ‘onus of proofs as such, for the facts and circumstances of this suit, it is for the plaintifs to establish the high degree of probability to shift the onus on the 22004(1) (SC) 18;

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13O.S.No.1607/2005 defendants to discharge the same. Therefore, it is for the plaintifs initially to establish that they are having right, title and interest over the suit schedule property.

17.The plaintifs heavily relied upon Exs.A2, A3 and Ex.A10. No doubt, the property was assessed in the name of Vanapalli

Atchayyamma, however, mere assessment of the property in favour of

Vanapalli Atchayyamma, does not bring to a conclusion that Ex.A6 Will was acted upon. Ex.A1 Will dated 19.08.1988 was fled by the plaintifs and PW-2 who is attestor of Ex.A1 was examined. The learned Counsel for the defendants 2 to 4, contends that both the Wills were created by intelligent mind of scribe, whose deposition was marked as Ex.A13 and the earlier attestor of Ex.A6 Will was never examined and only the attestor of Ex.A1 Will was examined, who testifed in his cross- examination that the scribe obtained his signatures as frst-attestor of

Ex.A1 and the signature of one G.Laxmi, in Ex.A6 Will as attestor. He also testifed that G.Laxmi, who is attestor of Ex.A6 Will is a Servant- maid. Therefore, the learned counsel for the defendants 2 to 4, relied upon the cross-examination of PW-2 to establish that Exs.A1 and A6

Wills were the creation of the Scribe viz., Peri Narayana, S/o.Gurayya.

18.The learned counsel for the plaintifs relied upon another

JudgmentinbetweenPaturu Sundaraiah Vs. Suri

Ranganayakamma 3wherein the Honsble Judicature of Andhra

Pradesh, Amaravathi held at Paras-22 and 23 are as follows:

“Para-22: To prove the Will, plaintifs examined one of the attestors of the Will as PW3 and thus, the requirement under section 63 of the Indian Succession Act, 1925 and Section 68 of 3AIR 2022 AP 71;

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14O.S.No.1607/2005 the Indian Evidence Act, 1872 were complied with. It is also pertinent to mention here that the plaintifs are not claiming the property bequeathed them in Ex.A2 but they are relying on the recital made in the Will Ex.A2 qua the schedule property and fndings of facts recorded by Courts below on appreciation of oral and documentary evidence does not warrant interference under Section 100 of CPC by this Court. Para-23: This Court cannot rely upon the weaknesses or latches on the part of the defendant. However, since the evidence is available on record, this Court also ventured to deal with evidence based on the principle that burden of proof pales into insignifcance when both sides adduced evidence as held by the

Honsble Apex Court in Rabti Devi Vs. Ram Dutt, AIR1998 SC

310.”

19.Therefore, the conclusion should be drawn by the Court without relying upon the weakness of the defendants or the adverse inference drawn against the defendants as it is the prime duty of the plaintifs to establish that Ex.A6 Will was acted upon and only by establishing the said aspect, the question of Ex.A1 Will regarding its genuineness and itss enforceability can be determined. Now, coming to the proof of Ex.A6

Will, the law relating to the said aspect is laid down comprehensively by the Honsble Supreme Court in a Judgment in Raj Kumari & Ors. Vs.

Surinder Pal Sharma 4wherein it was held in Paras-15 to 17 as follows:

“Para-15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others6, this Court referring to Section 63 of the Indian Succession Act had illustrated that the provisions contemplate that in order to validly execute the Will, the testator would have to sign or afx his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended to give efect to the writing as a Will. Section 63 mandates that the Will should be 4Civil Appeal No.9683/2019 arising out of SLP(Civil)No.26957/18 dt.17.12.2019 of Honsble Supreme Court.

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15O.S.No.1607/2005 attested by two or more witnesses each of whom has seen the testator sign or afx his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and (2015) 8 SCC 615 defciency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property. Para-16. Sections 68 and 71 of the Evidence Act, which relate to proof of documents required by law to be attested, read as under:

68. Proof of execution of document required by law to be attested.If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifcally denied. * * *

71. Proof when attesting witness denies the execution.If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Para-17: In Jagdish Chand Sharma (supra) referring to Sections 68 and 71 of the Evidence Act, it was observed: 22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the

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16O.S.No.1607/2005 proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

22.3. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinise the evidence adduced by the parties. xxx xxx xxx 57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner eface or emasculate the essence and efcacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal fexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the beneft of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act

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17O.S.No.1607/2005 but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.

57.2. Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in CIT v. Ajax Products Ltd. After referring to H. Venkatachala Iyengar (supra), this Court in Jaswant Kaur (supra) had laid down the following propositions of law: (1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a diferent footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial beneft and such other

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18O.S.No.1607/2005 circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfed fully that the will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue infuence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

20.Therefore, by relying upon the said judgment of Honsble Supreme

Court, it is for the plaintifs to establish Ex.A6 Will by examining, at least one attesting witness, who shall depose that he saw the Testator while executing the Will. The plaint was totally silent about G.Laxmi, who attested Ex.A6 Will. Ex.A6 will is the prime document which is the foundation to establish the right, title or interest of Vanapalli

Atchayyamma, and without establishing the said Will, no document or testamentary document executed by her will have force. Therefore, it

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19O.S.No.1607/2005 is for the plaintifs to say about G. Laxmi, who is the sole attestor of

Ex.A6 Will. It was not even stated that whether she is alive or not. If she is alive, it is the duty of the plaintifs to examine her and if she is dead, equally it is the duty of the plaintifs to follow the provisions of

Sections 33, 63, 68, 69 and 71 of Evidence Act. By following section 69 of the Evidence Act, it is incumbent on the profounder of the Will to prove the attestation of it by examining the legal heirs of the witnesses, who shall identify the signature of the attestor. Therefore, the procedure

Under section 63 of the Succession Act read with sections 68, 69 of the

Evidence act, is to be scrupulously followed by the plaintifs to prove the execution of Ex.A6 Will.. In this case, the plaintifs miserably failed to examine the attestor of Ex.A6 or even the legal heirs of attestor of

Ex.A6 to identify the signature of attestor G.Laxmi in order to establish that Ex.A6 Will was executed by Vanapalli Atchayyamma.

21.Another circumstances to disbelieve the very execution of Ex.A6

Will is the testimony of PW-2. No doubt PW-2 is the attestor of Ex.A6

Will and in his cross-examination, he testifed as follows:

“It is true the scribe obtained my signature as frst-attestor on Ex.A1 and the signature of one G.Laxmi in Ex.A6 as attestor. It is true the said G.Laxmi is a servant-maid . After the signatures of me and said G.Laxmi on Ex.A1 and A6, we never met again.”

22.The said afrmative evidence of PW-2 in his cross-examination established two aspects, frstly, the scribe obtained the signature of frst attestor and he also obtained the signature of G.Laxmi, as second attestor. Thought the scribe of Ex.A1 and A6 is one and the same,

Ex.A1 has two attestors and Ex.A6 has one attestor. Ex.A6 is an

Unregistered Will and Ex.A1 is registered Will which cancels the earlier

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20O.S.No.1607/2005

Will dated 19.08.1988 vide document No.347/1988 before the Joint Sub-

Registrar, Visakhapatnam. The second aspect is that, PW-2 afrmed that after the signature of himself and G.Laxmi obtained on Ex.A1 and

A6 Will, they never met again. The conclusion which can be drawn from this deposition is that there are doubtful circumstances that the signatures of attestors are obtained on Ex.A1 and A6 at same point of time even Ex.A6 is dt. 22.01.1975 and Ex.A1 is dated 19.08.1988.

23.As per the recitals of Ex.A6 Will, the names of two daughters, two sons are mentioned and the factum of sale of house by Vanapalli

Atchayyamma was mentioned. It was also mentioned that debts were cleared by selling the house and the remaining amount was utilized for construction of three portioned house. However, PW-1 in his cross- examination clearly admits that he did not fle any document to show that his paternal grand-mother Vanapalli Atchayyamma, possessed some properties and sold away the same to construct the house. If at all the plaintifs have fled the documents pertaining to the sale of houses by Atchayyamma, there can be a base to come to a conclusion that she succeeded the estate of her husband. Ex.A1 Will cancels the earlier Will dt. 22.01.1988. The name of father of the plaintifs is

Vanapalli Veera Venkata Satyanarayana @ Raju. It is also found in Ex.A1

Will at Para-4 and also in the chief-examination of PW-1 that he is also called as ‘Rajus. Ex.A11 is the prime document, though it is not admitted by the defendants, yet they relied upon the said document to the extent of nature of the property conveyed to Shaik Abdul Rahim under Ex.A11 Sale Deed dt.19.08.1977 executed by Vanapalli

Atchayyamma and her three sons Vanapalli Veera Venkata

Satyanarayana @ Raju, Vanapalli Ramesh, Vanapalli Anand in favour of

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21O.S.No.1607/2005

Shaik Abdul Rahim. In the recitals of Ex.A11 there is clear mention that the property conveyed to Shaik Abdul Rahim, belong to four executants.

24.The contention of the learned Counsel for the plaintifs is that the scribe viz., Peri Narayana, deposed as PW-2 in OS.No. 1606/2005 that at the request of vendors viz., Shaik Abdul Rahim, he mentioned in Ex.A11

Sale Deed that all the four executants executed the said document.

However, his testimony with regard to the said aspect is of no use as the recitals of the document prevails over the oral testimony on the document. In fact, it is for Vanapalli Atchayyamma, for that matter the document writer to appraise about the manner in which the document is drafted. In the recitals of Ex.A11 time and again all the executants are referred as joint owners and the property conveyed belong to them,

Thus, no other conclusion can be drawn. If at all Vanapalli

Atchayyamma, intended to execute the said document, convey only her right in favour of Shaik Abdul Rahim, she would have obtained the signatures of her sons as attestors or witnesses but not as executants.

Therefore, the conclusion which is to be drawn is that, mentioning the names of three brothers and Vanapalli Atchayyamma as Executants of

Ex.A11 Sale Deed establishes that the nature of rights and relationship are binding on the parties to the document. When there are doubtful circumstances for the very execution of Ex.A6 Will, there is no basis for execution of Ex.A1 Will which cannot be looked into for that matter.

25.PW-1 in his testimony deposed that, to clear the debts due to mortgage of the property to third-parties, one portion was sold under

Ex.A11 and he admits that Ex.A11 contains the signature of his paternal grand-mother and his father and two brothers. Probably, it is an

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22O.S.No.1607/2005 arrangement between the brothers at the instance of Vanapalli

Satyanarayana that the eldest brother of father of plaintifs should stay in middle portion, up-stair and ground foor portions. Vanapalli Ramesh should reside the northern-side portion in the up-stair portion and the 1st defendant should stay in the northern portion in the ground foor portion.

26.Ex.B1 notice which was marked in the cross-examination of PW-1 also, was addressed to the wife of frst defendant and the same was admitted by PW-1. Even in Ex.A10 notice issued by the Municipal

Corporation, the legal heirs of Vanapalli Atchayyamma, were referred without referring to any particular name. Therefore, irrespective of entries in the revenue record, that thirty-years old document which is

Ex.A11 Sale Deed dated 19.08.1977 contains clear recitals that the property is a joint family property and out of the said property, three brothers and Vanapalli Atchayyamma decided to convey the southern side portion to Shaik Abdul Rahim and there was no dispute from the inmates of southern side portion as such, Shaik Abdul Rahim, cannot be a necessary party to the suit proceedings.

27.However, when the plaintifs sought the relief of declaration in respect of plaint schedule property, they did not choose to add

Vanapalli Ramesh, Vanapalli Veera Venkata Satyanarayana @ Raju, as parties to the suit as their interest is also involved in the property.

However, that aspect is not the sole aspect to deny the claim of the plaintifs. Leaving aside the said aspect, even the plaintifs failed to establish their right, title and interest over the schedule property by bringing into light, the probable circumstances that Ex.A6 was acted

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23O.S.No.1607/2005 upon. Therefore, in view of the high degree of probability to be established by the plaintifs in order to establish their right, title and interest over the suit schedule property, which was nto established by them, thus, plaintifs are unable to shift the onus to the defendants to discharge the same. Hence, even though, in the absence of evidence adduced on behalf of the defendants, as plaintifs miserably failed to establish that Ex.A6 Will was acted upon, they are not entitled to the relief of declaration and eviction. Accordingly, this issue is answered against the plaintifs.

28.ISSUE NO.2: In view of the foregoing discussion and fndings given under Issue No.1, the plaintifs are not entitled to the claim of damages from 01.10.2002 to 30.09.2005. Accordingly, this issue is answered against the plaintifs.

29.ISSUE NO.3:In view of the foregoing discussion and fndings given under Issue Nos.1 and 2, in view of the relationship between parties to the suit, the suit is liable to be dismissed without costs.

30.IN THE RESULT, the suit is dismissed, in the circumstances, without costs.

Typed to my dictation by the Stenographer Gr-I, corrected and pronounced by me in open Court, this the 10th day of August, 2022.

Sd/-Sri P.Govardhan

VII ADDITIONAL SENIOR CIVIL JUDGE

FAC-III ADDITIONAL SENIOR CIVIL JUDGE

Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintifs: PW-1: V.Santosh Kumar, (1st plaintif); PW-2: Ranguri Ramu, Attestor,

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For Defendants: - NIL -

DOCUMENTS MARKED

For Plaintifs:

Ex.A1:Original Registered Will dated 19.08.1988 executed by Vanapalli Atchayyamma;

Ex.A2:Property Tax Receipt in the name of Vanapalli Atchayyamma, for the Asst.No.1086176682 for the period 01.04.2014 to 31.03.2018;

Ex.A3:Property Tax Receipt in the name of Vanapalli Atchayyamma, for the Asst.No.1086176682fortheperiod01.04.2019to 31.03.2021(partially);

Ex.A4: Certifed copy of Sale deed dated 26.02.1966 bearing Doc.No.470/1966;

Ex.A5: Registered Relinquishment Deed dated 13.08.1969 executed by K.Simhachalam in favour of Vanapalli Satyam;

Ex.A6: Unregistered Will dated 22.01.1975 executed by Vanapalli Satyanarayana;

Ex.A7: Certifed copy of the Death Certifcate of Vanapalli Atchayyamma issued on 07.11.2005;

Ex.A8: Certifed copy of Legal notice dt.07.10.1995 got issued to Vanapalli Anandh by Vanapalli Santosh Kumar and Kalyan Mohan;

Ex.A9: Certifed copy of the postal acknowledgment;

Ex.A10: Notice issued by the GVMC, Visakhapatnam, to the legal heirs of V.Atchayyamma dated 15.12.2021;

Ex.A11: Certifed copy of the Sale Deed dated 19.08.1977 bearing document No.2525/1977;

Ex.A12: Certifed of Encumbrance Certifcate No.148/2019 dated 12.02.2019;

Ex.A13: Certifed copy of deposition of Pari Narayana, S/o. Late Gavarayya (PW-2), in OS.No.1606/2005 on the fle of III ASCJ, Court, Visakhapatnam;

Ex.A14: Death Certifcate issued on 16.12.2021 of P.Narayana S/o.Gavarayya late;

For Defendants:

Ex.B1: Notice dated 24.05.2021 issued by the Municipal Authorities to one Sumalatha (marked subject to objection);

Sd/-Sri P.Govardhan

VII ADDL. SENIOR CIVIL JUDGE

FAC-III ADDL. SENIOR CIVIL JUDGE

Visakhapatnam

1 XII ADJ COURT-MACT,VSP MOP.No.55/2021

BEFORE THE CHAIRMAN – MOTOR ACCIDENTS CLAIMS TRIBUNAL –

CUM-XII ADDITIONAL DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

APVS000041422020Present: Sri P.Govardhan Chairman – M A C T - cum XII Addl. District & Sessions Judge, Visakhapatnam.

Friday, the 11 th day of April, 2025

M.V.O.P. No.55/2021

BETWEEN:

Amarapalli Karuna Sree, W/o.Krishna Kumar, residing at D No:50-48-3, Near NMC High School, P&T Colony, Seethammadhara, Visakhapatnam-530013, Adhaar No.4704 2698 0191, Mobile no: 9440448661. …. CLAIM PETITIONER AND:

1. Gorrala Venkata Ramana S/o.Late.Sri. Adinarayana, aged 41 years, FlatNo:G-1, Ajantha Residency, Dhanavarthi Colony, Srikakulam-532427 (Owner cum Driver of car bearing No: AP-30-AG-2367).

2. Iffco Tokyo General Insurance Company Limited, rep by its Branch Manager, VIP Road, Vishakapatnam -530003. …. RESPONDENTS

This claim petition coming on 25.03.2025 for final hearing before me in the presence of Sri N.S.V. Reddy, Advocate for the claimant and of Sri B.Srinivasa Reddy, Advocate for the 1st respondent and of Sri Syed Moinuddin, Advocate for the 2nd respondent and upon hearing their arguments and this matter having stood over for consideration till this day, this Tribunal made the following:

O R D E R

1.This petition is filed U/s.166 of Motor Vehicles Act read with Rule 455 of

A.P.Motor Vehicle Rules, by the Claim petitioner, claiming compensation of

Rs.50,00,000/- (Rupees Fifty Lakh only) for the grievous injuries sustained by her in a motor vehicle accident occurred on 26.03.2020 at 2.30 p.m., near 2 XII ADJ COURT-MACT,VSP MOP.No.55/2021

Satyam junction, Visakhapatnam, involving the crime vehicle car bearing registration No.AP 30 AG 2367 driven by the 1st respondent – driver-cum- owner of the car and the 2nd respondent being the insurer of the crime vehicle.

Originally, the petitioner filed claim petition for Rs.7,00,000/- and later the petition was amended as per orders in I.A. No.790/2022, dated 01.02.2023 and raised the compensation from Rs.7,00,000/- to Rs.50,00,000/-.

2.The averments of petitioner as seen from the petition are summarized as follows:

(a)The petitioner is aged about 56 years resident of Visakhapatnam, and employee in Union Bank of India and drawing salary of Rs.1,21,000/- per month and the petitioner is hale and healthy prior to date of the accident.

(b)On the ill-fated day i.e, 26-03-2020 at 2.30 p.m., while the petitioner was going on motor cycle bearing registration No. AP-39-AD-4836 as pillion rider, the 1st respondent being the driver-cum-owner of car bearing registration No.AP-30-AG-2367 drove it in a rash and negligent manner dashed the motor cycle near Satyam Junction, Visakhapatnam, due to which, both the rider and the petitioner fell on the road and have sustained multiple injuries. The petitioner was shifted to Queen's NRI Hospital through 108 ambulance for treatment.

(c)The Dwaraka police station registered the case in Cr. No.

82/2020 u/Secs 338,337 &279 of IPC against the 1st respondent owner-cum- driver of the car and after completion of their investigation, filed charge sheet u/Sec 338 IPC and the same is pending before the Court of the learned I

Additional Chief Metropolitan Magistrate, Visakhapatnam.

(d)As per the medical record, the petitioner was admitted in Queen's

NRI Hospital vide IP No.2002615 in Executive single ward on 26.03.2020 and was discharged on 02.04.2020 and again admitted on 16.07.2020 and 3 XII ADJ COURT-MACT,VSP MOP.No.55/2021 discharged on 17.07.2020. The petitioner has sustained multiple fractures all over the body including fracture of right shaft of femur, 3rd metatarsal base fracture right foot, fracture of proximal phalanx of little toe of right foot, Grade-

I compound fracture of right tibia and fibula, fracture of left femur shaft, fracture of left proximal humerus bone, fracture of anatomical neck and burn injury over left leg and buttock. The petitioner under went number of surgeries for fixation of implants and inter-locking nails. Due to the said injuries the petitioner is not able to walk, sit and squat and not able to perform her normal duties as earlier, as such the petitioner has sustained permanent disability and deformity. The petitioner has incurred huge amount towards medical treatment, partly removal of implants, attendant charges and physiotherapy.

(e)Due to the accident, the petitioner was completely bedridden from 26-03-2020 to 30-06-2021 i.e., 15 months and she was completely away from her duties during the above period of 15 months, hence the petitioner incurred loss of pay of Rs.16,80,000/- i.e., Rs.1,12,000 x 15 months. Towards treatment and service of the petitioner, she appointed two members of nursing staff from Sharon Welfare Society, P.M.Palem, Visakhapatnam, namely, Mrs. Gulla Sunitha and Mrs. V.Lakshmi and the petitioner paid a monthly salary of Rs.20,000/- to each nursing staff besides facilities of food, shelter etc., The petitioner utilized the services of said nursing staff from April, 2020 to 30th June, 2021 and they paid Rs.3,00,000/- as salary to each nursing staff, in total, the petitioner paid Rs.6,00,000/- towards salary of nursing staff.

Towards accommodation to the nursing staff, the petitioner spent

Rs.2,70,000/- as rent, i.e., 18,000/- x 15 months. The petitioner spent

Rs.2,85,000/- towards physiotherapy treatment to the petitioner’s injuries i.e., from April, 2020 to October, 2021 i.e., Rs.15,000/- x 19 months.

(f)The petitioner installed a lift from Choice & Escalators in the house of the petitioner towards necessary facility towards moving the 4 XII ADJ COURT-MACT,VSP MOP.No.55/2021 petitioner from the petitioner's room to hospitals and other necessary places towards her treatment. Towards installation of the lift, the petitioner spent

Rs.10,00,000/- and the said expenditure was also incurred towards necessary facility due to the above accident.

(g)Besides the above expenditure the petitioner spent huge amounts towards medicines and nourishment and due to the accident, the petitioner was bed ridden for a long period, hence she was mentally depressed due to pain, suffering & loneliness, at this juncture the petitioner's husband is having no alternate and submitted resignation to his employment to bestow his attention to his wife i.e., petitioner, thereby he built-up mental strength to the petitioner. To bring the petitioner to normal state from her pain and suffering and loneliness, she utilized the services of her husband, friends and family members and which cannot be calculated in terms of money.

(h)The accident occurred only due to absolute negligence of the 1st respondent who is the owner-cum-driver of the car bearing No: AP-30-AG- 2367 and is duly insured with the 2nd respondent as on the date of the accident. The 1st respondent is owner-cum-driver of the vehicle and said vehicle was duly insured with the 2nd respondent, therefore both respondents are jointly and severally liable to pay compensation of Rs.50,00,000/-. Hence, the petition.

3.After receipt of notice sent by this Court, the 1st respondent filed counter denying the contentions of the petitioner. The contentions of the 1st respondent as seen from the counter are as follows :

(a)The petitioner filed the above OP with false allegations. The 1st respondent is the owner-cum-driver of the vehicle involved in the alleged accident i.e., Swift Dzire Car No.AP-30AG-2367 and that he is a skilled and experienced driver of vehicles. The 1st respondent got valid and effective 5 XII ADJ COURT-MACT,VSP MOP.No.55/2021 driving license by the time of the accident and valid till 30-01-2023. The 1st respondent insured the crime vehicle with the 2nd respondent vide Policy

No.11428519 valid from 20-07-2019 to 19-07-2020 which was in force by the date of the accident. There is no rash and negligence on the part of the 1st respondent and no violations in respect of his driving licence or the vehicle record. The negligence, if any, is on the part of the rider of the motorcycle

No.AP-39AD-4836 only. The petitioner is rich and influential person, at her instance the police registered case against the 1st respondent with false allegations. The petitioner has not shown the rider and owner and insurer of the motorcycle No.AP-39AD-4836 as parties to the above OP and they are the necessary parties to the present petition proceedings, as such, the petition is bad for non joinder of necessary parties and hence the 1st respondent is not liable to pay any compensation to the petitioner.

(b)The claim is excessive and it is not in accordance with law and fact, and claiming of interest is also excessive and it is not in accordance with law. The 1st respondent reserves his right to file additional counter, if necessary and petition is liable to be dismissed with costs and the petitioner is not entitled to get reliefs from this respondent. Therefore, the 1st respondent seeks to dismiss the petition with costs.

4.The 2nd respondent filed counter denying the contentions of the petitioner. The contentions of the 2nd respondent – insurer of the crime vehicle as seen from its counter are as follows:

(a)The person, who drove the vehicle has "no relation in force" as on the date of accident to drive the vehicle. Section 3 of General Exception, of the Motor Policy issued, is applicable to all sections of the policy including

Third Party section, is reproduced hereunder:

"The company shall not be liable under this policy in respect of: any accident, loss, damage and/or liability caused sustained or incurred whilst the 6 XII ADJ COURT-MACT,VSP MOP.No.55/2021 vehicle insured herein is Being used otherwise than in accordance with the

Limitations as to use or Being driven by or in for the purpose of being driven by him/her in the change of any person other than a Driver as stated in the

Driver's clause. In accordance with the Driver's clause and limitation as to use of the vehicle and its violation, the opponent be exonerated with no liability”.

(b)The Petitioner is not entitled to claim any interest on non- pecuniary damages. The 2nd respondent denied the allegation that the vehicle bearing No. AP 30 AF 2367 was involved in the accident and it was driven in a rash and negligent manner. The 2nd respondent denied the allegation regarding the manner in which the alleged accident said to have occurred.

The allegations that on 26-03-2020 the petitioner who was on Motorcycle bearing no. AP 39 AD 4836 as pillion rider and the driver of AP 30 AF 2367 drove the said car in a rash and negligent manner is absolutely false and its only the rider of the said Motorcycle who rode the same in rash and negligent manner and dashed against the car bearing no. AP 30 AF 2367 when the driver of the Motorcycle jumped the signal, resulting in the petitioner received grievous injuries and the 1st respondent was not at all negligent in his driving.

The owner and insurer of the said Motorcycle are necessary parties to the proceedings as respondents are pleading complete negligence on the part of the rider of the said Motorcycle and non joinder of them is fatal to the petition and the same is liable to be dismissed for non joinder of necessary parties.

(c)The 2nd respondent craves the leave of the court to file an

additional counter at a later stage as and when the better particulars come to

its knowledge. Without prejudice to the above contentions, the 2nd respondent contends that the amount of Rs. 7,00,000/- with interest and costs claimed by the petitioner in the petition is excessive and the petitioner is not entitled for the same from the 2nd respondent. The contention of the petitioner is that she incurred huge amount towards medical expenses, the 2nd respondent 7 XII ADJ COURT-MACT,VSP MOP.No.55/2021 contends that they got the matter investigated and it revealed in the said investigation that she incurred an amount of Rs.3,57,258/- and out of it an amount of Rs.3,40,258/- was reimbursed to her by M/s National Insurance

Co. Ltd; whose policy she was holding and she paid an amount of

Rs.17,000/- only out of her pocket and not the amount she is claiming for medical expenses. Thus the petitioner is not entitled for the huge amount as being claimed by her in the present petition towards medical expenses as the same were reimbursed.

(d)In view of the above facts, the 2nd respondent seeks to dismiss the petition as against the 2nd respondent with costs.

5.Based on the above pleadings, my learned predecessor framed the following issues for trial:

1. Whether the petitioner is entitled for Rs.7,00,000/- as prayed for ?

2. Whether the Petitioner is entitled for subsequent interest 12% per annum on the claim ?

3. Whether the petition is not maintainable under Law ? and;

4. To what relief, if any, is the petitioners entitled for ?

As the petition was amended as per orders in I.A. No.790/2022 dated 22.02.2022, the 1st issue is recasted as below :

Whether the petitioner is entitled for Rs.50,00,000/- as prayed for ?

6.During the course of trial, on behalf of the petitioner, the petitioner herself was examined as P.W.1 and also examined P.Ws.2 to 6 and got marked and Exs.A1 to A16. On behalf of the 2nd respondent, R.W.1 was examined and Ex.B1 was marked.

8 XII ADJ COURT-MACT,VSP MOP.No.55/2021

7.The learned counsel for the petitioner and the 2nd respondent filed their respective written arguments. Perused the same. There is no representation on behalf of the 1st respondent despite conditional order dated 18.03.2025, hence, the matter is posted for Order on merits.

ISSUE Nos.1 TO 3 :

8.To prove the accident, the petitioner examined herself as PW-1 and she reiterated the contents of the petition and exhibited Exs.A-1 to A-16.

Ex.A1 is the attested copy of FIR in Cr. No.82/2020 dated 26.03.2020, Ex.A2 is the attested copy of M.V.I. Report dated 05.05.2020, Ex.A3 is the attested copy of the wound certificate, dated 29.05.2020, Ex.A4 is the attested copy of the charge sheet dated 04.06.2020, Ex.A5 is the attested copy of salary slip of the petitioner for the month of May 2020, Ex.A6 is the bunch of medical bills (Nos.91 originals), Ex.A7 is the original certificate issued by the SHARON

Welfare Society in respect of appointment of Nurses to serve the petitioner,

dated 15.07.2021, Ex.A8 is the original certificate issued by the SHARON

Welfare Society in respect of appointment of Nurses to serve the petitioner dt 30.11.2021, Ex.A9 are Physiotherapy bunch of bills of the petitioner (41 Nos.

original), Ex.A10 is the receipt voucher of elevators issued by the Choice elevators & escalators original dated 23.04.2021, Ex.A11 is the original invoice issued by Vector Graphic drawing services for Rs.3,85,500/- dated 05.03.2021, Ex.A12 is the original certificate issued by Union Bank of India,

Dabagardens, Visakhapatnam towards loss of the petitioner, dated dated 10.03.2022, Ex.A13 is the original disability certificate of the petitioner issued by Sanjeveni Hospital, New karasa, Visakhapatnam, dated 19.04.2022,

Ex.A14 is photos (5 in No.s), Ex.A15 are original medical bills issued by the

Sanjeveni Hospitals, dated 19.04.2022 and Ex.A16 is pay particulars of PW1 for the Period of 27.03.2020 to 30.06.2021, respectively.

9 XII ADJ COURT-MACT,VSP MOP.No.55/2021

9.A perusal of Ex.A1 attested copy of the FIR in Cr.No.82/2020 dated 26.03.2020, along with the report given to the police by the rider of the motorcycle bearing registration No.AP 39 AD 4836, who is the co-employee of the petitioner, it shows that the accident occurred on 26.03.2020 and the report was given on the same day at 8.00 p.m., on 26.03.2020, and it is alleged that the accident occurred due to rash or negligent act of the driver of the crime vehicle car bearing registration No. AP 30 AG 2367, due to which, both the rider and the petitioner who is the pillion rider of the motorcycle fell on the road, resulting the petitioner sustained grievous and other multiple injuries. Basing on the said report, the Station House Officer, Dwaraka police station, registered a crime against the driver of the crime vehicle in question.

10.In the cross-examination of PW-1 by the 2nd respondent, P.W.1 deposed that by the date of her retirement, she was Special Assistant in

Union Bank of India, Dabagardens Branch, Visakhapatnam, and drawing a salary of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) and by the date of accident i.e., 26.03.2020, she was drawing Rs.1,00,000/- (Rupees One Lakh only) as Special Assistant. P.W.1 admitted in her cross- examination that she did not suffer any monitory loss with regard to her salary, but P.W.1 volunteered that she suffered loss of pay for a period of 15 months' salary. P.W.1 denied the suggestion that the rider of the motorcycle was negligent in driving the motorcycle in a rash and negligent manner and that there was no negligence on part of the driver of car - 1st respondent and that she obtained medical leave facility for her treatment and that there was no loss of income.

11.P.W.1 admitted that she gets salary certificate every month approved with her I.D. P.W.1 denied the suggestion that she has intentionally not filed salary certificate as it would reflect the state of her salary and she does 10 XII ADJ COURT-MACT,VSP MOP.No.55/2021 remember as to how much her bank reimbursed her medical expenses.

P.W.1 further denied the suggestion that entire medical expenses were borne by her bank. P.W.1 admitted that the staff of her bank are covered by medical claim policy issued by M/s. National Insurance Company Limited and that she does not know that out of the medical bill for Rs.3,57,258/- an amount of

Rs.3,40,258/-was paid by National Insurance Company and she paid only

Rs.17,000/-. P.W.1 denied the suggestion that Exs.A.5 to 15 are created for the purpose of this claim and that Ex.A.13 obtained by her for this claim and that she did not suffer disability at 70% and that Ex.A.12 was created for the purpose of this claim. P.W.1 further deposed in her cross-examination that she does not know how many medical leaves she was entitled to and she is entitled to one month earned leave every year upto acculturated day of 240.

P.W.1 denied the suggestion that she was giving false evidence for this claim and that the amount of compensation claimed by her is excessive and that she suffered only simple injuries. Except that nothing was elicited from the cross-examination of P.W.1.

12.With regard to the injuries sustained in the accident and in order to prove the treatment taken by the petitioner, the petitioner examined the concerned Doctors as P.W.2, P.W.3 and P.W.6. P.W.2 deposed in his chief- examination that he is working as consultation orthopedician and medical

Superintendent, Queens NRI Hospital, and Ex.A.3 was issued by the K.Raja

Sagar, who worked as Medical Legal Consultant in their hospital and that he is no more and he expired in the year 2023 and that he can identify his signature on Ex.A.3. As per Ex.A.3 P.W.1 received the following injuries :

(1) Injury to right thigh -X ray shows fracture femur-grievous injury.

(2) Injury left thigh-X ray shows fracture femur-grievous injury.

(3) Injury left arm -Xray shows fracture left humorous-grievous injury.

11 XII ADJ COURT-MACT,VSP MOP.No.55/2021 (4) Injury right foot-X ray shows fracture thriod metatarsal-grievous in nature.

13.P.W.2 was cross-examined by the learned counsel for the 2nd respondent. In his cross-examination, P.W.2 deposed that Two and half years time will be taken for all the injuries to get healed. P.W.2 denied the suggestion that all the injuries are not grievous and that he is giving evidence to help the petitioner. Except that nothing was elicited from the cross- examination of P.W.2 by the learned counsel for the 2nd respondent in favour of the case of the 2nd respondent.

14.The evidence of P.W.3, who is also Doctor, who stated in his chief- examination that he is a Consultant in Physiotherapist and that he examined

P.W.1 and took physiotherapy saffron with her since April, 2020 to September 2023 and that he issued Ex.A.9 in (42 Nos.). P.W.3 was cross-examined by the learned counsel for the 2nd respondent. P.W.3 deposed in his cross- examination that he does not remember name of the Orthopedician who referred P.W.1 to him, but he is from Queen's NRI Hospital and that he conducted physiotherapy on the prescription of said Doctor. P.W.3 denied the suggestion that he issued Ex.A.9 bill one year go. P.W.3 deposed in his cross-examination that at an average, he attended to about 10 patients, and one asks for any bills and that on 31.05.2020, he issued bill 23 and 24 at the request of the petitioner. P.W.3 admitted that the bills are in same series i.e., 27 to 37, 41 to 43, 45 to 48, 55 to 68. P.W.3 further denied the suggestion that he has given these bills after creating to help the petitioner and that he is giving false evidence to help the petitioner. Except that nothing was elicited from the cross-examination of P.W.3 by the learned counsel for the 2nd respondent in favour of the case of the 2nd respondent.

12 XII ADJ COURT-MACT,VSP MOP.No.55/2021

15.The evidence of P.W.6 is to the effect that he is working as Consultant

Orthopedic Surgeon at Sanjeveni Hospital, Visakhapaatnam and that he has examined the petitioner for her injuries sustained on both femur bones right legs bones and upper and left humor, on examination and X Ray finding the petitioner had nonunion of right femur and right leg bones. There were severe sprain to half left shoulder and P.W.1 was unable to walk without any support.

Hence, he assessed her disability at 70% partial and permanent functional disability and Ex.A.13 is the said disability certificate issued by P.W.6. P.W.6 further deposed in his chief-examination that he suggested P.W.1 to go for surgery for nonunion of right femur and right leg bones and that the petitioner would incur expenditure of Rs.2,00,000/- towards the same. Ex.A.15 are the medical bills issued by P.W.6.

16.P.W.6 was cross-examined by the learned counsel for the 2nd respondent. In his cross-examination, P.W.6 deposed that the petitioner was taken treatment elsewhere before he came to him and that he has gone through the past medical record before issuing disability certificate i.e.,

Ex.A.13 which was in accordance with standard operation procedure and the petitioner approached him for further treatment and assessment to disability.

P.W.6 denied the suggestion that he issued only disability certificate and never given any treatment. P.W.6 further deposed that he has assessed the disability based on National Board for Assessment of Disability. P.W.6 further denied the suggestion that disability given is exactly as mentioned the said guidelines and it does not involve amputation. P.W.6 further denied the suggestion that disability effect’s only to nearest joint and that the disability assessed by him is on the higher side and that he is not competent to issue disability certificate and he issued disability certificate without knowledge whether the petitioner had undergone treatment / surgery suggested by him 13 XII ADJ COURT-MACT,VSP MOP.No.55/2021 and that the same treatment can be done at K.G. Hospital. Except that nothing was elicited from the cross-examination of P.W.6 by the learned counsel for the 2nd respondent in favour of the case of the 2nd respondent.

17.To prove the appointment of nurses by the petitioner, the petitioner examined P.W.5. The evidence of P.W.5 is to the effect that he is working in

Sharon Welfare Society, P.M.Palem, Visakhapatnam and that he knows

P.W.1 as she was referred for house service for attending her bed ridden condition. P.W.5 further deposed in his chief-examination that they provided service to P.W.1 for about 15 months i.e., 02.04.2020 Το 30.06.2021 and they charged Rs.20,000/- P.M., as they provided two persons on shift basis to attend to P.W.1 for 24 hours. The attendants were provided food and accommodation for the period they rendered service to PW-1. P.W.5 further deposed in his chief-examination that he issued Exs.A7 & A8 certificates stating that they provided accommodation after vacating the house and their loss amount of Rs.2,70,000/- towards rent for the period.

18.P.W.5 was cross-examined by the learned counsel for the 2nd respondent. In his cross-examination, P.W.5 deposed that the said Sharon

Welfare Society is run by 7 members by raising local funds. P.W.5 denied the suggestion that Christian Missionary provides financial assistance to the said

Society. P.W.5 further deposed in his cross-examination that they maintain register for attendance & wage register for their employees and presently four persons were employed and they pay amount to the employee by way of cash after obtaining voucher. P.W.5 further stated in his cross-examination that they get the wage register and voucher etc, audited every year and he can provide the audit report for the year ending 2020-21, 2021-22, attendance receipt of Rs.20,000/- each paid directly and P.W.1 paid the amount without obtaining any voucher or document.

14 XII ADJ COURT-MACT,VSP MOP.No.55/2021

19. P.W.5 further deposed in his cross-examination that on the information provided by attendance, Ex.A.7 was issued. P.W.5 further denied the suggestion that Ex.A.7 was created for the purpose of this claim and the amount was not accounted by any register making attendance through phone and that there was no phone call and they never attended to P.W.1. P.W.5 further denied the suggestion that he is giving evidence to help P.W.1 and that he does not know who was staying in the accommodation provided by

P.W.1. P.W.5 further deposed that he is staying at P.M.Pallem, whereas

P.W.1 was staying at Seethamdhara, and he has not seen the attendant in the house of P.W.1 and that he does not know how many bed rooms are there and that he does not know rental value of the house provided to the attendant. P.W.5 denied the suggestion in his cross-examination that he does not know the rent and number of bed rooms or the amount of rent mentioned to a tune of Rs.18,000/- per month. P.W.5 further denied the suggestion that

Ex.A.8 was created for helping P.W.1. P.W.5 was re-examined. In his re- examination, P.W.5 deposed that the attendant could not come to the office to mark attendance due to Covid-19 pandemic situation during that period i.e., 02.04.2020 tο 30.06.2021. Except that nothing was elicited from the cross- examination of P.W.5 by the learned counsel for the 2nd respondent in favour of the case of the 2nd respondent.

20.To prove the employment and income of the petitioner, the petitioner examined P.W.4, who is a Branch Manager, Union Bank of India. The evidence of P.W.4 is to the effect that he is working as Branch Manager, Main

Branch-1, Union Bank of India, Dabagardens, Visakhapatnam and P.W.1 worked in this Branch. As per office records. P.W.1 joined in the Branch on 03.08.2019 and attained superannuation on 31.05.2023 as Special Assistant, and that her monthly salary by the date of her retirement, her gross salary 15 XII ADJ COURT-MACT,VSP MOP.No.55/2021 was Rs.1,25,000/-. P.W.4 further deposed in his chief-examination that while returning from their branch she met with an accident on 26.03.2020, and after the accident she was on leave from 27.03.2020 To 30.06.2021. His evidence is that the entire period of 15 months was treated as leave without pay as she availed medical leave. P.W.4 swore that predecessor issued Ex.A.12 which indicates loss of income from 27.03.2020 tο 30.06.2021 for a total period of 15 months. P.W.4 was cross-examined by the learned counsel for the 2nd respondent. In the cross-examination, P.W.4 deposed that their office maintained leave records and other records for their individual employee.

21.P.W.4 further testified in his cross-examination that it is not made available with their Branch and their H.R. Department maintained all the records. P.W.4 further deposed that their employee has half pay leave and medical leave. P.W.4 adds that out of medical leave that half pay leave can availed i.e., one day medical leave i.e., Two half days and whenever their employee avails any leaves, their office has to record the same. P.W.4 further deposed in his cross-examination that whenever an employee applies leave, the same has to be sanctioned by the sanctioning authority, and they do not have such record and same is available with H.R. Department of their Bank.

The office maintained record of loss of pay in the required format which is presently with their H.R. department. P.W.4 denied the suggestion that

Ex.A.12 was created by their branch as P.W.1 being the employee of the

Bank. P.W.4 further denied the suggestion that he is not aware of particulars of P.W.1 and he is giving evidence to help P.W.1. Except that nothing was elicited from the cross-examination of P.W.4 by the learned counsel for the 2nd respondent in favour of the case of the 2nd respondent. the petitioner.

22.On the other hand, the 3rd respondent examined R.W.1 and got marked

Ex.B1. R.W.1 was cross-examined by the learned counsel for the petitioner.

16 XII ADJ COURT-MACT,VSP MOP.No.55/2021

In his cross-examination, R.W.1 deposed that he is working in the 2nd respondent insurance company and that he is the authorized person i.e.,

Assistant Manger legal to give evidence on behalf the 2nd respondent. R.W.1 admitted that the policy was valid and it was in-force at the time of accident and that he never seen the petitioner and that he is deposing basing on the documents and that he does not know that the petitioner cannot move. R.W.1 denied the suggestion that the petitioner’s claim is valid and reasonable and that petitioner is entitled claim as prayed in the petition. R.W.1 further denied the suggestion that the petitioner received the claim from National Insurance company and that Ex.A.9 in S.No.27 to 37, 41 to 43. 45 to 48, 55 to 68 are not created and the same was issued during the treatment of P.W.1. R.W.1 further denied the suggestion that the petitioner concealed all the records pertaining to her earning, to the court and that Ex.A.7 was a created document as alleged by him and that Ex.A.7 and Ex A9 are confirmed by the investigator. R.W.1 further denied the suggestion that the petitioner is entitled to more than claim amount and the 2nd respondent is not liable to pay and that he is giving false evidence to avoid liability.

23.On perusal of the entire material placed on record, this Tribunal feels that though the learned counsel for the 2nd respondent cross-examined

P.Ws.1 to 6, but nothing was elicited in favour of the case of the 2nd respondent. Though the 2nd respondent examined its Assistant Manager as

R.W.1, but R.W.1 admitted in his cross-examination that the policy was valid and in force at the time of the accident. Therefore, nothing is on the record to disprove either oral or documentary evidence of the petitioner.

24.Regarding the rash and negligent act of the driver of the crime vehicle car i.e., 1st respondent, being the driver-cum-owner of the crime vehicle, even 17 XII ADJ COURT-MACT,VSP MOP.No.55/2021 though he filed counter, but the learned counsel for the 1st respondent did not cross-examine P.Ws.1 to 6 to elicit in favour of the case of the 1st respondent and the 1st respondent failed to adduce either oral or documentary evidence to prove his contentions, and even the 3rd respondent did not take responsibility by examining the 1st respondent driver of the crime vehicle.

Ex.A4 charge sheet discloses that since the driver of the crime vehicle car negligently drove the same and dashed against the motorcycle, in which, the petitioner was the pillion rider, due to which the petitioner sustained grievous injuries all over her body, resulting the petitioner and a case in Cr.No.

82/2020 of Dwaraka police registered against the driver of the crime vehicle car bearing No. AP 30 AG 2367 of the offences U/Secs.338, 337 and 279

IPC. Hence, the nature of injuries also shows that without there being negligence of the 1st respondent such an accident would not have been occurred. Therefore, considering the testimonies of PW-1, P..W.2, P.W.3 and

P.W.6 coupled with documentary evidence and other relevant factors, this

Tribunal feels that the accident occurred due to rash and negligent act of the driver of the car i.e., the 1st respondent in which, the petitioner sustained grievous injuries.

25.It is the contention of petitioner that she is working as Special Assistant in Union Bank of India, Main Branch, Visakhapatnam, and as per Ex.A16 – salary slip for the month of March, 2020, the gross salary of the petitioner was shown as Rs.82,758.90ps and total deductions are Rs.66,716-34 and the net salary of the petitioner was shown as Rs.16,042-56ps. Therefore, the gross salary of the petitioner was taken into account as Rs.82,759/- (as Rs.82,758- 90ps was rounded to Rs.82,759/-) and due to grievous injuries she lost her earnings during the period of treatment apart from incurring huge medical expenses, pain and suffering. In order to prove the earnings the petitioner, she filed Ex.A16 as stated supra and the said certificate vide Ex.A16 was not 18 XII ADJ COURT-MACT,VSP MOP.No.55/2021 denied by the 2nd respondent.Therefore, this Tribunal is taking into consideration of Ex.A16 salary certificate of the petitioner. Hence, an amount of Rs.82,759/- (Rupees Eighty Two Thousand Seven Hundred and Fifty Nine 1only) per month, towards monthly earning of the petitioner is determined as on the date of accident. Though the petitioner filed Ex.A6 bunch of medical bills, but the petitioner failed to file a calculation memo showing the amounts in the medical bills vide Ex.A6 and simply filed all the medical bills including

L.V.Prasad Eye hospital bills and the petitioner filed Ex.A9 bunch of bills issued by Physiotherapist (41 Nos.), each for Rs.15,000/-, but for Ex.A9 also no statement is filed by the petitioner to show particulars of her physiotherapy treatment, but she simply filed bunch of bills without filing a proper statement.

26.The petitioner claimed an amount of Rs.15,00,000/- towards loss of earnings, Rs.50,000/- towards transport expenditure, Rs,4,00,000/- towards medicines and Rs.10,00,000/- towards nursing and Rs.5,00,000/- towards physiotherapist under the head of Special damages. The gross salary of the petitioner was Rs.82,759/- and though the petitioner stated that she was under leave for a period of 15 months and she claimed loss of earnings at

Rs.15,00,000/-, but the petitioner did not file any documentary proof that she applied leave for a period of 15 months and the same was granted by her

Higher Authorities. Even though P.W.4 was examined by the petitioner, he did not produce any material in support of the contention of the petitioner.

Therefore, this Tribunal feels that the petitioner might have not attended to her work for a period of six months in order to recover from the injuries sustained by her, therefore, an amount of Rs.4,96,554/- (Rupees Four Lakh

Ninety Six Thousand Five Hundred and Fifty Four only) is awarded as just and reasonable, to the petitioner towards loss of earnings during the treatment period.

19 XII ADJ COURT-MACT,VSP MOP.No.55/2021

27.With regard to the loss of earnings, the petitioner claimed special and general damages to a tune of Rs.50,00,000/- under various heads which she lost due to injuries viz., towards extra nourishment and medicine expenses for

Rs.4,00,000/- and Rs.10,00,000/- towards nursing, Transportation to hospital at Rs.50,000/-, and physiotherapy charges at Rs.5,00,000/-, Loss of earning capacity at Rs.3,00,000/-, Pain and suffering at Rs.3,00,000/-, disability at

Rs.4,00,000/- and attendant expenses at Rs.50,000/-. Ex.A13 disability certificate showing the disability of the petitioner at 70%. Admittedly, the petitioner was treated as an inpatient from 26.03.2020 to 02.04.2020 and again admitted on 16.07.2020 and discharged on 17.07.2020 as per the pleadings in the petition, but the petition failed to file any discharge summary though she filed number of medical bills. Even then the petitioner has taken treatment as an inpatient for a period of one week, and thereafter the petitioner again admitted on 16.07.2020 and discharged on 17.07.2020, hence, the pain and suffering sustained by the petitioner can be taken into consideration which affects the earnings of the petitioner.

28.In order to cure her injuries, the petitioner might have lost her earnings for a period of six months. If such is the case, an amount of Rs.4,96,554/-

(Rupees Four Lakh Ninety Six Thousand Five Hundred and Fifty Four

only) towards loss of earnings is appropriate. With regard to medical expenses the petitioner filed as many as medical bills without any clarity and she also filed the bills of L.V.Prasad Eye hospital, how the said bills are related to this case, is not explained by the petitioner, therefore, this Tribunal feels that an amount of Rs.2,50,000/- (Rupees Two Lakh and Fifty

Thousand only) can be granted towards medicines and extra nourishment, which she is entitled under the said head, and an amount of Rs.1,00,000/- towards injuries sustained by her, and an amount of Rs.15,000/- towards transportation charges. Though the petitioner claimed Rs.5,00,000/- towards 20 XII ADJ COURT-MACT,VSP MOP.No.55/2021 physiotherapist and filed 41 bills and each bill was for Rs.15,000/- towards charges, but there is no proper explanation from the petitioner towards the same, hence, the petitioner is not entitled to the said head of charges to the physiotherapist.

29.The petitioner claimed Rs.10,00,000/- towards nursing charges and she examined P.W.5, but the petitioner failed to file any receipts or voucher to show that she paid such amounts to the attendants and also paid the house rents to the nurses, as such, the petitioner is not entitled to the said amount under the head of charges to the nurses. The petitioner claimed Rs.4,00,000/- towards disability and to that effect she filed Ex.A13 disability certificate issued by the Doctor of Sanjeevani Hospital, but the petitioner failed to obtain the Disability Certificate from the Board of Doctors, K.G. Hospital,

Visakhapatnam to show that she suffered disability, as such, the petitioner is not entitled to the amount of Rs.4,00,000/- under disability. The petitioner also claimed Rs.50,000/- towards attendant charges, but the petitioner failed to file any receipt showing that she has paid the said amount to the attendants, hence, the petitioner is not entitled to the said amount of Rs.50,000/- under the head of attendant expenses. With regard to the compensation for pain and suffering, this Tribunal is taking into consideration of the nature of injuries sustained by the petitioner, and the treatment undergone by the petitioner, sustaining grievous injury and multiple injuries, a sum of Rs.1,00,000/- (Rupees One Lakh only) only is granted towards pain and suffering is granted, to meet the ends of justice.

30.In all the petitioner is entitled to the total compensation under the following heads:

21 XII ADJ COURT-MACT,VSP MOP.No.55/2021

(a)Compensation towards injuries : Rs.1,00,000/-

(b)Pain and suffering : Rs.1,00,000/-

(c) Loss of earnings: Rs.4,96,554/-

(d)Medical expenses : Rs.2,50,000/-

(e)Transportation to hospital : Rs. 15,000/- --------------------- Rs.9,61,554/- (Rupees Nine Lakh Sixty One Thousand Five Hundred and Fifty Four only)

31.As can be seen from the evidence on record, it is apparent that though the 3rd respondent examined R.W.1 and filed Ex.B1 policy, R.W.1 admitted in his cross-examination that Ex.B1 policy was in force as on the date of the accident, and admittedly, 1st respondent being the driver-cum-owner filed counter, but he did not cross-examine P.Ws.1 to 6 and did not choose to adduce either oral or documentary evidence on his behalf. As per Ex.B1, the crime vehicle was insured with the 2nd respondent and it was in force as on the date of accident. Therefore, in the absence of any contrary evidence, the 1st respondent being the driver-cum-owner of the crime vehicle car and 2nd respondent being the insurer of the crime vehicle car, are vicariously liable for the acts of the driver of the crime vehicle ie. 1st respondent. Since the date of accident is 26.03.2020 and Ex.B1 the policy is in force as on the date of accident i.e., from 24.06.2019 to 23.06.2020, as such, respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner.

32.With regard to entitlement of interest, petitioners claimed the rate of interest at 12% on the awarded compensation amount. However, in the view of the decision of the Hon’ble Apex Court rendered in Lakkamma & Ors., Vs.

22 XII ADJ COURT-MACT,VSP MOP.No.55/2021

Regional Manager, M/s.United India Insurance Company Limited & Anr., 1the rate of interest is @ 9% p.a., on the awarded compensation amount would meet the ends of justice. Accordingly, issue Nos.1 to 3 are answered in favour of the petitioner and against respondents 1 and 2.

I S S U E No.4 :

33. In view of my foregoing discussion and findings rendered on Issue

Nos.1 to 3, respondents 1 and 3 are jointly and severally liable to pay the compensation awarded to the petitioner to a tune of Rs.9,61,554/- (Rupees

Nine Lakh Sixty One Thousand Five Hundred and Fifty Four only).

Accordingly, Issue No.4 is answered.

34. IN THE RESULT, the petition is partly allowed with proportionate costs, awarding an amount of Rs.9,61,554/- (Rupees Nine Lakh Sixty One

Thousand Five Hundred and Fifty Four only) towards compensation to the petitioner with subsequent interest at 9% p.a from the date of petition dated 28.09.2020 till the date of payment.

(a) Respondents 1 and 2 are jointly and severally liable to pay the above award amount of compensation to the petitioner WITHIN ONE MONTH from the date of this Order i.e., 11.04.2025 as required U/s. 168(3) of M.V.Act.

(b) Respondents are directed to inform the deposit of Award amount into the Bank Account of the Tribunal i.e., A/c.No.046200170005601, IFSC

Code PUNB0046200 of Punjab National Bank, Main Branch, LIC Building,

Visakhapatnam., and send the copy of the same to the beneficiary as per the directions of Hon'ble Supreme Court issued in the case of ‘Bajaj Allianz 12021 (SCC OnLine SC 584) decided on 02.03.2021 in Civil Appeal No. 808 of 2021 (arising out of SLP(C) No. 28794/2016); 23 XII ADJ COURT-MACT,VSP MOP.No.55/2021 General Insurance Company Pvt. Ltd., Vs., Union of India & Ors. (Writ Petition (Civil) No.534/2020 dt. 16.11.2021 of Hon’ble Supreme Court.)

(c) On deposit,the petitioner is permitted to withdraw an amount of

Rs.5,61,554/- (Rupees Five Lakh Sixty One Thousand Five Hundred and

Fifty Four only) and the remaining amount of Rs.4,00,000/- (Rupees Three

Lakhs only) shall be kept in any Nationalized Bank for a period TWO

YEARS;

(d) The Advocate fee is fixed at Rs.5,000/- (Rupees five thousand only);

(e) The rest of the claim of the petitioner is hereby dismissed.

Typed to my dictation by the Stenographer Gr-I, corrected and

pronounced by me in Open Court, this the 11 th day of April, 2025.

Sd/- P.Govardhan

Chairman,MACT-cum- XII Addl. District & Sessions Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witnesses Examined for

Petitioner:

P.W.1 : Amarapalli Karuna Sree P.W.2 : Karumanchi Vasanth Babu P.W.3 : Akundi Sreenivasu P.W.4 : Dunna Devi Prasad P.W.5 : K.Shiloh Sastry P.W.6 : Dr.A.Gopi Krishna

Respondents :

R.W.1 : G.Sreedhar Rao, Assistant Manager.

24 XII ADJ COURT-MACT,VSP MOP.No.55/2021

Exhibits marked for

Petitioner:

Ex.A1 : Attested copy of FIR in Cr. No.82/2020 dt 26.03.2020

Ex.A2 : Attested copy of M.V.I. Report dt 05.05.2020

Ex.A3 : Attested copy of Wound Certificate dt 29.05.2020.

Ex.A4 : Attested copy of charge Sheet dt 04.06.2020

Ex.A5 : Attested copy of Salary slip of the Petitioner for the month of May 2020. Ex.A6 : Bunch of medical bills Nos 91 originals.

Ex.A7 : Original certificate issued by the SHARON Welfare Society in respect of appointment of Nurses to serve the petitioner dt 15.07.2021. Ex.A8 : Original certificate issued by the SHARON Welfare Society in respect of appointment of Nurses to serve the petitioner dt 30.11.2021. Ex.A9 : Original Physiotherapy bunch of bills of the petitioner 41 Nos

Ex.A10 : Receipt voucher of elevators issued by the Choice elevators & escalators original dt 23.04.2021 Ex.A11 : Invoice issued by Vector Graphic drawing services for Rs.3,85,500/- original dt 05.03.2021. Ex.A12 : Certificate issued by Union Bank of India, Dabagardens, Visakhapatnam towards loss of the Petitioner original dt 10.03.2022 Ex.A13 : Disability certificate of the petitioner issued by Sanjeveni Hospital, New karasa, Visakhapatnam original dt 19.04.2022. Ex.A14 : Photos (5 in No.s).

Ex.A15 : Medical bills issued by the Sanjeveni Hospitals originals

dated 19.04.2022.

Ex.A16 : Pay particulars of PW1 for the Period of 27.03.2020 to 30.06.2021.

25 XII ADJ COURT-MACT,VSP MOP.No.55/2021 Respondents:

Ex.B1: True copy of Insurance policy of crime vehicle.

Sd/- P.Govardhan

Chairman,MACT-cum- XII Addl. Dist. & Sessions Judge, Visakhapatnam

1 X ADSJ COURT, AKP

SC.67/2021

IN THE COURT OF THE X ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM AT ANAKAPALLI

Present : Sri P.Govardhan XII Additional District & Sessions Judge, Visakhapatnam. (FAC) X Additional District & Sessions Judge, Anakapalli

Friday, the 19th day of May, 2023.

SESSIONS CASE No.67/2021

(P.R.C. No.12/2021 on the fle of 1st Additional Junior Civil Judge-cum-XI

Additional Metropolitan Magistrate, Anakapalli, in Cr. No.258/2021 of Anakapalli

Town Police Station)

a)The serial number of the caseS.C. No.67/2021

b)Date of commission of ofence:On the afternoon of 30.05.2021

c)Name of the Complainant, if any:The State represented by the Inspector of Police, Anakapalli Town Police Station.

d)Name of the accused person/s :Kanakala Sathibabu @ Phychoraju @ his/their parentage and Raju, S/o Ramu, 35 years, Kapu by caste, residence, if anyVilasi village, near Amalapuram, East Godavari District, now at Anakapalli.

e)Ofence complained of :U/ses.302 IPC.

f)Plea of the accused on their :Accused pleaded not guilty. examination, if any

g)Sentence or Order: In the result, the accused is found guilty of the charge u/Sec.302 IPC for causing death of the deceased Thokada Suribabu and he is convicted of the said charge u/Sec.235(2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for life and to pay fne of Rs.500/- for the charge u/Sec.302 IPC for causing death of the deceased Thokada Suribabu, in default of payment of fne, the accused shall undergo Simple Imprisonment for a period of one month. The M.Os.1 to 4 being non- valuable properties, shall be destroyed after expiry of the Appeal time. The remand period from 01.06.2021 to till date i.e., 19.05.2023 shall be given set of U/s.428 Cr.P.C.

h)Prosecution conducted by : Sri V.Venkata Rao, Addl. Public Prosecutor,

I)Accused defended by: Accused appeared in person.

2 X ADSJ COURT, AKP

SC.67/2021

This Case is committed by the 1st Additional Junior Civil Judge-cum-XI

Additional Metropolitan Magistrate, Anakapalli, in P.R.C. No.12/2021 in Cr.

No.258/2021 of Anakapalli Town Police Station and the same having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.Accused is charged for murdering Thokada Suribabu, S/o Manikyam, (hereinafter referred to as ‘Deceased’)resident of Anjayya Colony, Anakapalli, on the afternoon of 30.05.2021 wherein accused killed the deceased with a stone, in respect of Cr. No.258/2021 of Anakapalli Town police station,

Visakhapatnam District. Charge under Section 302 of IPC is framed against the accused and he pleaded not guilty and claimed to be tried.

2.The case of the prosecution in brief is that:

(a)The name of the deceased is Thokada Suribabu and the name of the accused is Kanakala Sathibabu. The ofence committed on the by-pass road, near Jayabheri Maruthi showroom, near Nookalamma Arch, Anakapalli, within the limits of Anakapalli Town police station.

(b)On 30.05.2021 at about 5.30 p.m., P.W.1 presented a report to the

Inspector of Police, Anakapalli Town police station (P.W.12) and he registered the report of P.W.1 as case in Cr. No.258/2021. In the report, it is alleged that P.W.1 along with her husband, two children and her brother-in-law Suribabu (deceased) are residing at Anjayya colony. It is also alleged that the deceased was unmarried and he developed illegal contact with Sivakoti Ramadevi, who stays at the bus stop situated near Jayabheri Cars showroom, Anakapalli. Regarding the date of ofence, it is alleged that on 30.05.2021 at about 2.30 p.m., the deceased left home and at about 4.00 p.m., she received information that somebody beat the deceased with a stone on the road leading from Bye-pass road towards Nookalamma Arch and his condition is critical. Hence, it is alleged that P.W.1 along with her husband when went there, they came to know from one Dasari Bhagavan (P.W.6) that the accused beat the deceased twice with a boulder on his face and the accused and the deceased had a dispute with regard to Sivakoti Ramadevi as the accused behaved indecently with her. Hence, the 3 X ADSJ COURT, AKP

SC.67/2021

reason for the death of the deceased as stated in the report is that the accused intended to kill the deceased, as such, the accused beat the deceased with a big stone.

(c)Based on the said report, the Inspector of Police after registration of

FIR, examined P.W.1 on 30.05.2021 and recorded her statement and visited the crime scene with the help of clues team, prepared scene observation report and rough sketch. He also seized blood stained earth and control earth from the scene of ofence. Initially, the FIR was registered U/Sec.307 IPC and on 31.05.2021 P.W.2 presented a report in the same lines of P.W.1 and further stated that the deceased was shifted to K.G. Hospital, Visakhapatnam, for better treatment and died on 31.05.2021 at about 3.00 p.m. Then, P.W.12 issued an alteration memo altering Section of Law from Section 307 IPC to Section 302 IPC on 31.05.2021 at about 7.30 p.m. Then, he visited mortuary of K.G. Hospital,

Visakhapatnam and held inquest over the dead body of the deceased in the presence of inquest panchayatdars and blood relatives. Later, he sent the dead body of the deceased for autopsy and he also re-examined the crime scene and also re-examined P.W.6, L.W.2 Sivakoti Ramadevi and L.W.4 Sivakoti Siva. On 01.06.2021 P.W.12 Inspector of Police arrested the accused near NGO’s colony, on the high way and recorded his confession in the presence of two mediators who are P.W.7 and L.W.16 Dokkam Srinu, wherein the accused admitted the guilt of ofence and stone was seized under cover of mediators report prepared on 01.06.2021 at 4.00 p.m. Then, the accused was produced before the I

Additional Junior Civil Judge-cum-XI Additional Metropolitan Magistrate,

Visakhapatnam at Anakapalli for judicial custody and then forwarded the material objects to RFSL for analysis.

(d)The Associate Professor of Andhra Medical College, Dr.P.Rama

Krishna issued postmortem certifcate opinion that the cause of death is due to due to “head injury’. Smt. G.Srilatha, Scientifc Ofcer, RFSL., Visakhapatnam (L.W.18) issued analysis report and opined that there was no poisonous substance found in the material objects. Smt. K.Geetha Madhuri, Scientifc

Ofcer, RFSL., Visakhapatnam, gave opinion dated 03.07.2021 and opined that 4 X ADSJ COURT, AKP

SC.67/2021

the human blood is detected on item Nos.1, 2, 4 to 7 and 9, but their blood group could not be determined, but the blood is not detected on item Nos.3 and 8 which is received as controls for item Nos.1, 2, 6 and 7. Later, Smt. N.Reddy

Prasanna, the learned Junior Civil Judge, Narsipatnam, recorded Section 164

Cr.P.C. statements of P.W.6, L.W.2 Sivakoti Ramadevi and L.W.4 Sivakoti Siva.

(e)The investigation revealed that the accused is an ex-convict and having criminal record and a rowdy sheet was also maintained against the accused at Tuni police station. He was also involved in two murder cases and several theft cases and he came down to Anakapalli about two months back and living by procuring waste papers and iron scrap material and his lust for Sivakoti

Ramadevi, who is staying in the bus stop is the reason for the dispute between himself and the deceased as the said Sivakoti Ramadevi moved closely with the deceased and that on 30.05.2021 the accused went to the bus stop and misbehaved with Ramadevi and later at about 2.30 p.m., again he came to the bus stop and found the deceased there and a dispute occurred between the accused and the deceased. Therefore, the accused bore grudge against the deceased as the deceased was the person who stood between the accused and the Sivakoti Ramadevi, as such, the accused decided to put an end to the life of the deceased and picked up a quarrel with the deceased and using stone banged him on his face several times and inficted bleeding injuries and later while under going treatment, the deceased succumbed to the injuries and died at about 3.00 p.m., on 31.05.2021. As sufcient accusation is made against the accused, P.W.12 fled charge sheet against the accused of the ofence U/Sec.302

IPC.

3.The learned I Additional Junior Civil Judge-cum-XI Additional Metropolitan

Magistrate, Anakapalli, having taken cognizance of the ofence punishable

U/s.302 of IPC, registered the same in PRC. No.258/2021 and after following the procedure U/s.207 Cr.P.C., passed Committal Order U/s.209 of Cr.P.C., on 31.08.2021 on the ground that the ofence is triable by Court of Sessions.

5 X ADSJ COURT, AKP

SC.67/2021

4.After receiving the Committal Order, this case was numbered as SC.

No.67/2021 and taken on fle by Session Court and made over the same to this

Court and after appearance of the accused before this Court and hearing both sides, Charge U/s.302 of IPC has been framed and explained to him in Telugu.

Accused pleaded not guilty and hence, case is posed for trial.

5.During the course of trial, the prosecution has examined as many as thirteen witnesses viz.,P.W-1 to P.W-13 and got marked Exs.P1 to 18 and M.O.

Nos.1 to 4. Exs.D1 and D2 were marked in the cross-examination of P.W.6 on behalf of the accused.

6.After closure of the prosecution’s evidence, accused was examined

U/s.313 Cr.P.C., for the incriminating circumstances appeared against him and he denied the allegations. On behalf of accused, he reported no defence evidence and complied with Section 437-A of Cr.P.C.,

7.Heard arguments of both sides.

8.Now the Points for determination are :

1. Whether the death of the deceased Thokada Suribabu is a homicidal death?

2. Whether the prosecution is able to establish that the accused has knowledge that the act done by him would result in the death of the deceased?

3. Whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt of the charge U/Sec.302 IPC?

P O I N T :

9.P.W.8 conducted postmortem over the dead body of the deceased on 01.06.2021 between 1.40 p.m., and 3.00 p.m.,. Ex.P9 is the preliminary opinion given by him, he sent viscera to RFSL, Visakhapatnam, for opinion and Ex.P10 is the RFSL report, based on which Ex.P11 Final report was given by P.W.8. His evidence is that as per Ex.P11 fnal opinion, the cause of death of deceased is due to “head injury”. He also categorically deposed that the injuries mentioned in Ex.P9 are possible by means of M.O.4 stone. It was suggested to P.W.8 by the accused who cross-examined him in person, that there is possibility of sustaining 6 X ADSJ COURT, AKP

SC.67/2021

the said injuries stated in Ex.P9 and P11 due to hit by the vehicle. P.W.8 replied that there are diferent pattern of injuries, as such, there is no possibility for infiction of such injuries, if any vehicle dashed the deceased. Therefore, the conclusion which can be drawn from the evidence of P.W.8 is that the death of the deceased is due to a stone and the possibility of inficting injuries using

M.O.4 stone is there. An inference regarding non-homicidal death can also be drawn as the accidental causing of injuries is totally ruled out. Even as per the evidence of P.W.6 who deposed that it is the accused who caused the death of the deceased using a stone. Regarding participation of the accused, the said aspect will be dealt with in subsequent paragraphs and so far as the cause of death of the deceased is concerned, I have no hesitation to hold that Exs.P9 and

P11 reports given by the Assistant Professor Dr. P.Rama Krishna (P.W.8) is sufcient to come to a conclusion that the death of the deceased is homicidal death, but not an accidental death. Accordingly, point No.1 is answered in favour of the prosecution and against the accused.

Point No.2 :

10.It is the contention of the learned Additional Public Prosecutor that P.W.6 is the crucial witness, who deposed about the presence of the accused at the crime scene and participation of the accused in the commission of ofence, as such, his evidence is sufcient to bring home the guilt of the accused. The accused was permitted by my learned Predecessor in ofce to conduct cross- examination of all the witnesses in person and accordingly the accused himself conducted cross-examination and even fled written submissions in Telugu.

11.The accused contends that P.W.6 never stated that he informed P.Ws.1 and 2 about the incident, whereas P.Ws.1 and 2 deposed that they received information from P.W.6 about the ofence, hence, the accused contends that the falsity of evidence of the prosecution can be inferred from the said testimony of

P.W.6. Accused also contends that as per Ex.D1 contradiction elicited from

P.W.6, it is stated by P.W.6 to the police that the accused brought the deceased 7 X ADSJ COURT, AKP

SC.67/2021

by beating him and that he saw the accused and the deceased at that time.

Another contradiction under Ex.D2 was elicited from the cross-examination of

P.W.6 that he informed some persons who came from Anakapalli side to inform the incident to the family members of the deceased. Ex.D2 contradiction never supports the version of P.Ws.1 and 2. P.Ws.1 and 2 clearly stated that they received information from L.W.2 Sivakoti Ramadevi, P.W.6 and L.W.4 Sivakoti

Siva that the accused beat the accused. However, P.W.6 clearly stated in his cross-examination that he never informed P.Ws.1 and 2 about the incident. In fact, Ramadevi and Siva are said to be present near the crime scene at the time of ofence, as per the version of the prosecution. P.W.6 is the person who was present at the crime scene by chance as he was present there for cutting grass and at that time he saw the accused beating the head of another person with a big stone twice. Therefore, even though P.Ws.1 and 2 deposed that they received information from P.W.6 about the ofence, the evidence of P.W.6 carries much weight as he is best witness to give evidence and he has no animosity against the accused. P.Ws.1 and 2 clearly stated that upon receipt of information, they went to crime scene where they found the deceased lying in a supine condition and he was still breathing, as such, they shifted the deceased to NTR hospital, Anakapalli and from there to K.G. Hospital, Visakhapatnam, for better treatment and on 31.05.2021 the deceased died at K.G. Hospital at about 3.00 p.m.

12.It is the testimony of P.W.6 that he was present near Car showroom at bye-pass road, Anakapalli as he went there for cutting grass and as he identifed the accused as the person who banged the head of the deceased using a stone banging twice and he also deposed that he was present at a distance of 40 feet and he does not know the names of other two persons, who were there at the time of ofence. His evidence is so natural that he clearly stated that the accused was coming towards him, as such, he left the place due to fear. His evidence is that then he went to Nookalamma Arch and informed the police and the police came to the crime scene within 15 minutes and later his statement 8 X ADSJ COURT, AKP

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was recorded. It is natural for any person who witnessed such an incident, will fee away on seeing the accused coming towards him and then naturally they will try to secure the help of police and in the same manner P.W.6 took the help of police and informed them and the police came there within 15 minutes. He categorically identifed the accused as the person who hit the deceased with a stone as he was at a distance of 40 feet that to in broad day light. The identifcation of the accused by P.W.6 can be believed that he is an independent witness and spent a considerable time with the accused in a broad day light and the incident had occurred at 3.30 p.m., which had a strong imprint in his mind as such he identifed the accused as the person who hit the deceased with a stone.

13.Now coming to the cross-examination of P.W.6, in the cross-examination, it was elicited from him that he does not know about ten persons belonging to the said makham sheds used to be present there or not and he clarifed that at the time of incident none were there. Therefore, naturally P.W.6 alone witnessed the incident directly from a distance of 40 feet. He also deposed in his cross-examination that he did not see the accused after he escaped from that place and to know how far the accused chased him. His evidence is that when the accused came to him, out of fear he left the place and it corroborates with the cross-examination of P.W.6.

14.P.Ws.1 and 2 are relatives of the deceased. P.W.1 is the sister-in-law and

P.W.2 is the brother of the deceased. Their evidence is that they received information about the incident and immediately they went to the crime scene where they noticed the deceased with injuries over his head and it was defaced.

Therefore, their evidence is clear that as the deceased was still breathing, he was shifted to NTR hospital, Anakapalli. In the cross-examination of P.W.1, a suggestion was asked to P.W.1 who denied the same and it reads as follows :

“It is not true to say that, you the accused was not there at the scene of ofence and that at about 3.30p.m., you the accused was coming after taking tea and noticed L.W.2 Ramadevi and L.W.4 Siva sleeping at a bus shelter, after 9 X ADSJ COURT, AKP

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Thotada junction and Suribabu was found lying in the road margin and that a police constable came there and asked me why Suribabu was lying there and on that I told him that I did not know and that the persons belonging to him are present in the bus shelter and then the said police constable woke them up”.

Another suggestion was asked to P.W.1 which reads as follows :

“It is not true to say that, at that time L.W.4 Siva told the said police constable that, in the morning of that day at about 6.30 a.m., that himself, myself and Suribabu have quarreled with each other”.

P.W.1 also deposed that by the time she went to the scene of ofence, Sivakoti

Ramadevi, Dasari Bhagavan and Siva were present at the scene of ofence and the accused came afterwards, who also came to the hospital voluntarily and later he was taken by the police in a jeep. The accused contends that if at all he was present at the crime scene, P.W.1 would not have deposed that the accused came afterwards and never the investigation revealed that the accused came to hospital voluntarily and he was not arrested on the same day.

15.Now coming to the said suggestions asked to P.W.1, the conclusion which can be drawn from the suggestions are that L.W.2 Ramadevi and L.W.4 Siva were sleeping at bus shelter at 3.30 p.m., and by that time the dead body of the deceased Suribabu was lying at the road margin and the police constable questioned the accused about the dead body of Suribabu and then woke up

Ramadevi and Siva, who were sleeping at the bus shelter. Therefore, as per the accused, Ramadevi and Siva did not witness the incident as they were sleeping at the bus shelter. Another conclusion which can be drawn from the said suggestions is that on the same day at about 6.30 a.m., there was a quarrel between the accused, the deceased and Ramadevi. It shows the presence of the accused at the same place hours before the incident at the place where the bus shelter located and the genesis of the incident can be traced from that incident where initially there was a dispute between the deceased and the accused with regard to Ramadevi. Even the evidence of P.Ws.10 and 11 remained unchallenged and they categorically deposed that they are doing 10 X ADSJ COURT, AKP

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scrap business and they know the accused as they used to sell the scrap material to him and they have acquaintance with him. Their evidence establishe one aspect that the accused shifted to Anakapalli during the relevant period of time and he was doing scrap business. Therefore, the presence of the accused in Anakapalli is deposed by P.Ws.10 and 11. The evidence of P.W.1 regarding the presence of the accused, though after the incident and his voluntary presence at the hospital is never disputed by the accused by way of denial.

P.W.1 also categorically deposed that by the time she went to the scene of ofence, L.W.2 Ramadevi, L.W.4 Siva and P.W.6 were present and out of the said three persons only P.W.6 is the eye witness and as per the accused himself,

Ramadevi and Siva were sleeping at the bus shelter. The learned Additional

Public Prosecutor relied upon the judgment of Hon’ble Supreme Court in Sadhu

Saran Singh v. State of U.P., and others (Criminal Appeal Nos.1467 –

1468 of 2005 decided on 26.02.2016), wherein the Hon’ble Supreme Court relying upon another judgment of Hon’ble Supreme Court in Chandrappa v.

State of Karnataka (2009 (4) SCC 415), and held at para No.21 (iii), (v) and

(vi) reads as follows :

iii) We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the Doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence of PW 1 cannot be discarded as primacy has to be given to the ocular evidence particularly in the case of minor discrepancies. This Court in Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476, wherein this Court has held : “…. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes 11 X ADSJ COURT, AKP

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the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”

v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non- examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal ofence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy”.

Applying the said ratio to the facts of the case on hand, frstly Ex.P11 fnal opinion of cause of death clearly shows that the cause of death is due to “head injury”. Ex.P9 preliminary postmortem report shows deep laceration injuries over face of the deceased and all injuries are fresh and red in colour. Time of death is at 4.00 p.m., on 31.05.2021 at KG Hospital, Visakhapatnam. Therefore, the deceased died within one day of admission into K.G. Hospital which shows the gravity of the injuries sustained by him.

16.Now coming to the nature of injuries sustained by the deceased, certainly they are deep lacerated injuries and the infuence of other circumstances is 12 X ADSJ COURT, AKP

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ruled out and the involvement human being is certainly there for the injuries of the deceased. There cannot be prescription of any particular number of witnesses, to give evidence. Applying the ratio in the judgment relied upon by the learned Additional Public Prosecutor, though Ramadevi and Siva were not examined, their evidence is on the same footing with that of P.Ws.1 and 2 as

P.Ws.1 and 2 went to the crime scene immediately after the occurrence and noticed the deceased lying in supine condition and still he was breathing.

Sivakoti Ramadevi and Siva were sleeping at bus shelter as per the accused, as such, they are not the direct witnesses to the occurrence. On the other hand, in

Section 164 Cr.P.C. statements, Sivakoti Ramadevi and Siva did not depose about the cause of death, as such, the prosecution might have chosen to gie up their evidence as it already examined P.Ws.1 and 2 and also P.W.6.

17.Now the evidence remained on record with regard to the commission of ofence by the accused is the sole testimony of the eye witness P.W.6, and if his evidence is free from a doubt, it can be straight away relied upon. Nothing was elicited from the cross-examination of P.W.6 to show that he had an ill motive to implicate the accused and nothing was elicited from him that he was a planted witness. One aspect which is to be considered is that initially FIR was registered

U/Sec.307 IPC as the deceased sustained grievous injuries, as such, he was admitted in NTR hospital and then shifted to K.G. Hospital, Visakhapatnam.

Therefore, though P.W.6 deposed that within an half an hour of the said incident, the police caught the accused, as the FIR was altered from Section 307 IPC to

Section 302 IPC on 31.05.2021 after the deceased died, as such, during that process the accused might have escaped or the accused went to the hospital and when the police were busy in handling the issue of shifting the deceased to

K.G. Hospital, Visakhapatnam, the accused might have fed away. Whatever be the reason, the evidence of P.Ws.1, 2 and 6 that the accused was caught by the police soon after the ofence has no bearing to the incident as P.W.6 categorically deposed about the presence of the accused at the time of commission of the ofence and he witness the accused who had given two 13 X ADSJ COURT, AKP

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strong blows on the head of the deceased using a stone. To that extent, the evidence of P.W.6 is coherent, consistent and can be believed.

18.Now coming to the recovery of the material objects from the accused, it is the testimony of P.W.5 that on 01.06.2021 at about 2.30p.m., police secured his presence and they noticed the accused who was coming with a push cart and trying to run away and police apprehended him and they recovered the wearing apparel of the accused as he was with the same apparel at the time of commission of ofence and accordingly police gave clothes to the accused of his size and recovered M.O.1 – cement colour shirt of the accused, M.O.2 – Blue colour jeans pant of the accused, M.O.3 – push cart of the accused and then recovered M.O.4 – stone which is crime weapon, on the information given by the accused as the accused produced the said weapon from the bushes. Therefore, the admissible portion of the mediators report regarding seizure of M.O.4 was marked as Ex.P8 and it can be relied upon. The evidence of P.W.6 is that the accused used a stone to kill the deceased and the accused produced the said weapon. Ex.P8 is the admissible portion in the confession statement regarding the seizure of M.O.4. In the cross-examination of P.W.5, it was elicited from him that the accused was caught on Vijayawada – Visakhapatnam Highway near a

Car showroom and the distance between the Car showroom and the scene of ofence is about 200 feet. Therefore, the production of M.O.4 weapon by the accused from the nearby bushes is quite natural as the scene of ofence is just 200 feet from the place where the accused was apprehended and accordingly the seizure of M.O.4 can be believed.

19.Now coming to the evidence of Investigating Ofcer / P.W.12, who issued alteration memo under Ex.P13 dated 31.05.2021 and conducted inquest on the next day i.e., on 01.06.2021. He also prepared scene observation report under

Ex.P14 and prepared Ex.P15 rough sketch. His evidence is that he secrued the presence of P.Ws.5 and L.W.14 Sanyasi Rao and recovered M.O.4 stone based on the information furnished by the accused. It was elicited from the cross- 14 X ADSJ COURT, AKP

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examination of P.W.12 that there are CC cameras near the scene of ofence, but the incident was not covered as there are no near CC cameras to the place of occurrence. It was the contention of the accused that if at all the presence of the accused is there at the time of commission of ofence, certainly the police would have seized the CC cameras footage. To that P.W.12 gave an explanation that the CC cameras which were situated in the opposite road are far away from the scene of ofence. Examination of P.Ws.9 and 10 by P.W.12 is relevant factor to be considered as it was elicited from P.W.12 that he had no knowledge that the accused used to sell the scrap from P.Ws.9 and 10 and only on the date of arrest, he came to know the same and the arrest of the accused had taken place on 01.06.2021. Only after the arrest of the accused, P.Ws.9 and 10 were examined by the Investigating Ofcer, which shows that the investigation went on right lines wherein rightly P.Ws.9 and 10 identifed the accused as the person who sells scrap to them and the said aspect was never denied by the accused at any point of time. In the written arguments, the accused contends that if at all the accused went to the hospital along with the deceased, by-standers would have given report to the police which shows that the accused never was present at the time of commission of ofence. As already discussed by me, the presence of accused at police station is doubtful. Though P.Ws.1 and 2 deposed that the accused came to the hospital after the ofence, yet, the presence of the deceased in blood stains with defaced injuries over his face, is well deposed by

P.Ws.1, 2 and 6. To that extent, there cannot be any dispute. P.Ws.3 and 4 did not support the version of the prosecution. P.W.7 deposed that he noticed P.W.6 at the place of ofence and he came to know from P.W.6, Ramadevi and Siva that a quarrel had taken place between the deceased Suribabu and the accused

Sathibabu in the morning on the date of ofence, wherein the accused misbehaved with Ramadevi. Therefore, P.W.7 also noticed the deceased at the crime scene, hence, the evidence of P.W.7 that he saw the accused at the police station later, has no relevance as the death of the deceased at the place of ofence is only material and the person who caused the said death alone can be taken into consideration. The evidence of P.W.6 is trustworthy and he 15 X ADSJ COURT, AKP

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categorically deposed about the presence of the accused and accused inficting strong blows on the head of the deceased with a big stone by defacing the face of the deceased, as such, the blows were so hard, that the deceased sustained serious lacerated injuries over his face and died on the next day in the hospital, which is evidenced by the postmortem report and the only reason for the death of the deceased is “head injury”. Therefore, in view of the manner in which the accused caused fatal injuries to the deceased, the only conclusion which can be drawn is that the accused is conscious of the fact of the consequences and the seriousness of the injuries inficted by him, which caused death of the deceased, as such, the intention of the accused is only to put an end to the life of the deceased and accordingly the prosecution is able to establish that the accused has knowledge that the act done by him would result in the death of the deceased. Accordingly, point No.2 is answered in favour of the prosecution and against the accused.

Point No.3 :

20.In view of my fndings on point Nos.1 and 2, the prosecution is able to establish the guilt of the accused beyond all reasonable doubt of the charge

U/Sec.302 of IPC. Accordingly, the point No.3 is answered in favour of the prosecution and against the accused.

21.IN THE RESULT, the accused is found guilty of the charge u/Sec.302 IPC for causing death of the deceased Sailesh Singh and he is convicted of the said charge U/Sec.235(2) Cr.P.C.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in open Court, this the 19th day of May,2023.

Sd/-Sri P.Govardhan

XII Addl. District & Sessions Judge Visakhapatnam (FAC) X Addl. District & Sessions Judge, Anakapalli.

16 X ADSJ COURT, AKP

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Hearing of the accused with regard to the quantum of sentence to be imposed on him for the ofence U/s. 302 IPC.

(1)On questioning about the quantum of sentence that has to be imposed against the accused, he stated that a false case was fled by the police against him, as his brother was killed, he had a dispute with the Inspector of Police, Tuni and out of fear that a case under NDPS Act will be fled against him, he came to K.Gangavaram, East Godavari District and then came to Anakapalli, where the police beat him and fled a false case against him. Accordingly, he requested the Court to consider his submissions while awarding sentence and award a lesser punishment. (2)In view of the submissions made by the accused and the facts and circumstances of the case, as the prosecution established the guilt of the accused of the charge u/Sec.302 IPC beyond all reasonable doubt for causing death of the deceased shows that the accused is liable for imposition of sentence with the life imprisonment and imposition of fne as the case will not come under the category of rarest of rare cases. Therefore,the accused is sentenced to undergo Rigorous Imprisonment for life and to pay a fne of Rs.500/- (Rupees Five Hundred only) In default of payment of fne, shall undergo simple imprisonment of one (1) month, for the charge u/Sec.302 IPC for causing death of the deceased Thokada Suribabu. (3)The remand period undergone by the accused from 01.06.2021 till date i.e., 19.05.2023 (Seven Hundred and Eighteen (718) days), shall be given set-of U/s.428 of Cr.P.C. (4)The M.O.1 to M.O.4 being non-valuable properties, shall be destroyed after expiry of the Appeal time. (5)The Accused is informed of his right to prefer Appeal against this Judgment. The accused is questioned whether he is intending to engage advocate at the appellate Court, the accused stated that he has no capacity to engage the counsel, hence, the legal aid is to be appointed to the accused to pursue his right to appeal before the Appellate Court. Accordingly, the requisition of the accused to engage legal aid counsel is taken and forwarded to the concerned. (6)The Accused is furnished a free copy of this Judgment.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and pronounced by

me in open Court, this the 19th day of May, 2023.

Sd/-Sri P.Govardhan

XII Addl. District & Sessions Judge Visakhapatnam (FAC) X Addl. District & Sessions Judge, Anakapalli.

17 X ADSJ COURT, AKP

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APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW-1 : Thokada Lakshmi. PW-2 : Thokada Srinu. PW-3 : Nama Nageswara Rao. PW-4 : Reddi Nagamani. PW-5 : Surisetty Bhavaniprasad. PW-6 : Dasari Bhagavan. PW-7 : Midathana Nageswara Rao. PW-8 : Dr.P.Rama Krishna. PW-9 : Koduru Suresh Kumar. PW-10: Karri Naga Sekhar. PW-11: Anakapalli Satyanarayana. PW-12: L.Bhaksara Rao, Inspector of Police. PW-13: Lalam Krishna.

For Defence: - NIL-

Exhibits Marked

For Prosecution:

Ex.P1 : Report of P.W.1, dated 30.05.2021. Ex.P2 : Inquest report, dated 01.06.2021. Ex.P3 : Report of P.W.2, dated 31.05.2021. Ex.P4 : Section 161 Cr.P.C. statement of P.W.3. Ex.P5 : Section 161 Cr.P.C. statement of P.W.5. Ex.P6 : Admissible portion in the mediators report. Ex.P7 : Admissible portion in the scene observation report. Ex.P8 : Admissible portion in confession statement regarding seizure of MO.4. Ex.P9 : Postmortem report, dated 01.06.2021. Ex.P10: RFSL report, dated 12.07.2021. Ex.P11: Signature of P.W.9 in inquest report. Ex.P12: Original F.I.R in Cr.No.258/2021. Ex.P13: Alteration Memo, dated 31.05.2021. Ex.P14: Scene Observation Report, dated 31.05.2021. Ex.P15: Rough Sketch, dated 31.05.2021. Ex.P16: Letter of Advise. Ex.P17: Sec.164 Cr.P.C. Statement of L.W.5 Sivakoti Ramadevi. Ex.P18: Sec.164 Cr.P.C. Statement of L.W.6 Sivakoti Siva.

For Defence:

Ex.D1 : Some underlined portion in Section 161 Cr.P.C statement of P.W.6.

Ex.D2 : Some underlined portion in Section 161 Cr.P.C statement of P.W.6.

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Material Objects:

M.O-1 : Cement colour shirt of accused. M.O-2 : Blue colour jeans pant of accused. M.O-3 : Push cart of the accused. M.O-4 : Stone (Crime weapon).

Sd/-Sri P.Govardhan

XII Addl. District & Sessions Judge Visakhapatnam (FAC) X Addl. District & Sessions Judge, Anakapalli.

Copies to:

1.The Registrar(Judl), High Court of A.P., Nelapadu, Amaravathi.(Uploaded fle)

2.The Superintendent of Police, Anakapalli District,

3.The Addl. Public prosecutor, X ADSJ Court, Anakapalli.

4.The Legal Aid Defence counsel, for the accused (Free copy); ---)(--- // True Copy //

SUPERINTENDENT,

X ADDITIONAL DISTRICT & SESSIONS COURT,

ANAKAPALLI.

19 19 XII ADSJ COURT, VSP

SC. 146/2017

C A L E N D A R

IN THE COURT OF THE X ADDITIONAL DISTRICT & SESSIONS JUDGE VISAKHAPATNAM

AT ANAKAPALLI

Present : Sri P.Govardhan XII Additional District & Sessions Judge, Visakhapatnam. (FAC) X Additional District & Sessions Judge, Anakapalli

Friday, the 19th day of May, 2023.

SESSIONS CASE No.67/2021

(P.R.C. No.12/2021 on the fle of 1st Additional Junior Civil Judge-cum-XI Additional Metropolitan Magistrate, Anakapalli, in Cr. No.258/2021 of Anakapalli Town Police Station)

Complainant :The State represented by the Inspector of Police, Anakapalli Town Police Station, Anakapalli District.

Accused :Kanakala Sathibabu @ Phychoraju @ Raju, S/o Ramu, 35 years, Kapu by caste,Vilasivillage,near Amalapuram, East Godavari District, now at Anakapalli.

DATE OF: Ofence:30.05.2021 Complaint:30.05.2021 Apprehension:01.06.2021 Commitment:31.08.2021 Commencement of trial:02.03.2022 Close of trial:12.05.2023 Judgment:19.05.2023 Whether accused is on bail/ in Jail : In Jail

15. Explanation for delay in Trial Court :-

1.This case is received by transfer from District & Sessions Judge's

Court, Visakhapatnam on 27.10.2021.

2.In order to establish the guilt of the accused, prosecution in all examined P.W.1 to P.W.13, marked Exs.P.1 to P.18 and M.Os.1 to 4. After the closure of the prosecution side evidence, after hearing both sides on the questionnaire for examination of accused under Sec.313 Cr.P.C.,

Accused is examined under Section 313 Cr.P.C. on 24.01.2023, to enable the accused to explain on incriminating material found in the evidence of prosecution witnesses. He denied the same and pleaded “not guilty”. No 20 20 XII ADSJ COURT, VSP

SC. 146/2017

defence evidence is reported by accused. Heard arguments of APP and accused in person case is posted for Judgment to 19.05.2023. On 19.05.2023, Accused is produced from Central Prison, Visakhapatnam,

Judgment pronounced in the open Court, vide separate.

Sentence :- In the result, the accused is found guilty of the charge u/Sec.302

IPC for causing death of the deceased Thokada Suribabu and he is convicted of the said charge u/Sec.235(2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for life and to pay fne of Rs.500/- for the charge u/Sec.302 IPC for causing death of the deceased Thokada Suribabu, in default of payment of fne, the accused shall undergo Simple Imprisonment for a period of one month. The M.Os.1 to 4 being non-valuable properties, shall be destroyed after expiry of the Appeal time. The remand period from 01.06.2021 to till date i.e., 19.05.2023 shall be given set of U/s.428 Cr.P.C.

Sd/-Sri P.Govardhan

XII Addl. District & Sessions Judge Visakhapatnam (FAC) X Addl. District & Sessions Judge, Anakapalli.

// TRUE COPY //

//True Copy//

Superintendent, X Additional District & Sessions Court, Anakapalle