P.Lakshminarayana

1

IN THE COURT OF THE VIII ADDL.DISTRICT JUDGE, NIZAMABAD

Present:- P. Laxminarayana, M.A., LL.B., VIII Addl. District Judge, Nizamabad.

Monday, the 23rd day of September, 2013

C.M.A.No.3 of 2012 Between:

N. Sudershan S/o Bhumanna, aged 58 years, Occ: agriculturist, R/o H.No.2-78, Abbapur (M) village, Navipet Mandal, Nizamabad Dist.

…Appellant

And

1. Nyalankanti Pedda Ramulu S/o Sayanna, aged about 60 years, Occ: agriculturist,

2. Nyalankanti Nadipi Ramulu S/o Sayanna, aged about 58 years, Occ: agriculturist,

3. Nyalankanti Siddaiah S/o Sayanna, aged about 48 years, Occ: Agriculturist All are R/o Abbapur (M) village, Navipet Mandal, Nizamabad Dist. …Respondents

CIVIL MISCELLANEOUS APPEAL FILED UNDER ORDER 43, RULE 1® OF C.P.C. AGAINST THE ORDER IN IA No.759/2011 IN

OS.No.248/2011 DATED 23.2.2012 PASSED BY THE PRL. JUNIOR

CIVIL JUDGE, NIZAMABAD.

I.A.No.759 of 2011 In

O.S.No.248 of 2011

Between:

1. Nyalankanti Pedda Ramulu S/o Sayanna, aged about 60 years, Occ: agriculturist,

2. Nyalankanti Nadipi Ramulu S/o Sayanna, aged about 58 years, Occ: agriculturist,

3. Nyalankanti Siddaiah S/o Sayanna, aged about 48 years, Occ: Agriculturist All are R/o Abbapur (M) village, Navipet Mandal, Nizamabad Dist.

…Petitioners/Plaintiffs.

And

N. Sudershan S/o Bhumanna, aged 58 years, Occ: agriculturist, R/o H.No.2-78, Abbapur (M) village, Navipet Mandal, Nizamabad Dist.

…Respondent/Defendant

This CMA is coming for hearing before me in the presence of Sri J. Venkateshwar, Advocate for appellant, and in spite of number of opportunities respondents No.1 to 3 are not showing interest hence this Court deemed that the respondents/plaintiffs have nothing to argue the matter, and having perused the material papers on record 2 CMA 3 of 2012 and having stood over for consideration till this day, this Court delivered the following:

:: ORDER ::

On 4.4.2012, this C.M.A.No.3/2012 was presented by the defendant of OS No.248/2011 against the plaintiffs No.1 to 3 of OS

No.248/2011 under Order 43, Rule 1 of C.P.C. praying the Court to set aside the Order of the trial Court in IA No.759/2011 in OS

No.248/2011 dated 23.2.2012.

2. It is alleged in the grounds of appeal that the order passed by the trial Court in IA No.759/2011 is incorrect and against the facts and the trial Court did not assess the documentary evidence on record correctly and OS No.248/2011 was filed for perpetual injunction by the plaintiffs against the defendant. It is further alleged in the grounds of appeal by the defendant that the defendant has been in possession of the petition scheduled property for the last several years and to prove his contention, the defendant filed Ex.R1 to show that the defendant has been in possession of the schedule property and in Ex.R1 Tahsildar, Navipet clearly stated that the defendant has been in possession of the suit schedule property for the last several years and advised plaintiffs to file a civil suit for recovery of possession and instead of filing a suit for recovery of possession, the plaintiffs filed OS No.248/2011 for perpetual injunction and plaintiffs also filed IA No.759/2011 for temporary injunction.

In the grounds of appeal of CMA No.3 of 2012, the defendant further submitted that the trial Court came to a wrong conclusion that the plaintiffs have been in possession, but the contention of the trial Court is incorrect and in the said document Ex.R1 it was 3 CMA 3 of 2012 mentioned that as per Pahany records for the year 2010-11, the names of the plaintiffs were mentioned as pattedars and possessors but in Ex.R1 it is clearly mentioned that the defendant has been in possession of the schedule properties for the last several years and the Tahsildar advised to file a suit for recovery of possession but the trial Court came to a wring conclusion of the document Ex.R1 filed by the defendant proves that the plaintiffs have been in possession of the suit schedule property and the trial Court did not go through the document Ex.R1 and came to a wrong conclusion and passed injunction order in favour of plaintiffs and on the basis of injunction order, the plaintiffs have been trying to dispossess the defendant from the suit schedule property.

3. After the present CMA No.3/2012 was filed, notice to respondents/plaintiffs Nos.1 to 3 was ordered on 9.4.2012.

4. Parties herein will be referred to as defendant and plaintiffs for the sake of convenience with a view to avoid confusion because they were shown as defendant and plaintiffs in OS No.248/2011.

5. On 20.4.2012, Sri Anand Reddy filed vakalath for respondents

No.1 to 3. Subsequently, on 8.11.2012 this Court heard Sri J.

Venkateshwar, Advocate for defendant, and at the request of Sri

Anand Reddy, Advocate for plaintiffs, CMA No.3/2012 was posted for arguments of plaintiffs No.1 to 3. Subsequently also till 26.8.2013, plaintiffs did not submit their arguments either in this CMA

No.3/2012 or in IA No.347/2012. From 8.11.2012, it was adjourned for arguments of plaintiffs finally. Lower Court record was received by this Court on 18.10.2012 itself.

4 CMA 3 of 2012

6. On 20.9.2013, J. Venkateshwar, Advocate for defendant, stated that already his arguments were submitted and the respondents/plaintiffs are not submitting arguments. In fact, even on 20.9.2013 also respondents No.1 to 3/plaintiffs No.1 to 3 were called absent and no representation on behalf of plaintiffs. In these circumstances, this Court perused the material papers and posted the matter to this day for orders as the plaintiffs are not arguing the matter and as the plaintiffs are not showing the interest.

7. For the purpose of proper understanding of the matter in dispute in CMA No.3/2012, this Court is intending to peruse the contents of the petition in IA No.759/2011 and also the contents of the affidavit of Nyalakanti Pedda Ramulu and also documents Ex.R1 and R2 and the counter affidavit of N. Sudershan dated 25.8.2011 and also order passed in IA No.759/2011 by the learned Prl. Jr. Civil

Judge, Nizamabad dated 23.2.2012. Accordingly, this Court perused

the contents of the above said material papers on record.

8. On 8.8.2011, IA No.759/2011 was presented by the plaintiffs under Order 39 Rule 1 CPC read with Sec.151 CPC praying the Court to pass interim injunction order against the defendant restraining the defendant and his agents, men, supporters and family members in causing any sort of interference with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property i.e.

agricultural land in Sy.No.88/A measuring Ac.0-05 gts., 88/AA measuring Ac.0-05 gts., and 88/E measuring Ac.0-05 gts., totally measuring Ac.0-15 gts., of land of Abbapur village within the boundaries shown therein till disposal of the OS No.248/2011.

5 CMA 3 of 2012

9. In the affidavit dated 4.8.2011, Nyalakanti Pedda Ramulu stated that himself and others filed OS No.248/2011 against the defendant for perpetual injunction and the plaintiffs are residents of

Abbapur village and they are owners and possessors and pattedars of land in Sy.No.88/A measuring Ac.0-05 gts., 88/AA measuring Ac.0- 05 gts., and 88/E measuring Ac.0-05 gts., situated at Abbapur village, total measuring Ac.0-15 gts., of land and the defendant has nothing to do with the suit schedule property measuring Ac.0-15 gts., and defendant has no right over the suit land and the plaintiffs have been in peaceful possession and enjoyment over the suit land without any obstruction from any person and since December, 2010, the defendant without having any right or title is unnecessarily interfering into the peaceful possession and enjoyment of the plaintiffs in and over the suit land and claiming the suit land as part and parcel of

Sy.No.291, 292/1 and 293 and filed OS No.440/2010 before the

Court and the defendant also filed IA No.1344/2010 and obtained ex parte injunction order against the plaintiffs of OS No.248/2011 and the plaintiffs of OS No.248/2011 have filed their counter in IA

No.1344/2010 and submitted the original pattedar passbook and title deeds and pahanies and other record and on contest, the said IA

No.1344/2010 of the defendant herein was dismissed and the ex parte injunction order granted in IA No.1344/2010 against the plaintiffs herein was vacated and in spite of above said orders of the

Court, the defendant with the support of one Srinivas, Sarpanch of

Abbapur village, who is brother-in-law of the defendant, the defendant is continuing his efforts and interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule 6 CMA 3 of 2012 property with an ill-motive with a view to cause harassment to the plaintiffs.

It is further alleged in the affidavit of first plaintiff by name

Nyalakanti Pedda Ramulu that on 3.8.2011 the defendant along with

Srinivas and his men, supporters came to suit land and tried to damage paddy plantation and with the help of well-wishers, the plaintiffs got resisted the defendant and others and the defendant and others went away threatening the plaintiffs with dire consequences stating that they would come again with more men and force and will damage the paddy plantation at any cost and the defendant has no right of any nature over the suit land and the defendant falsely interfering into the possession of the plaintiffs and the acts of defendant are illegal and unwarranted and said acts of the defendant are without any right and the illegal acts have to be restrained by way of perpetual injunction and the plaintiffs apprehend that the defendant will come again at any time and will damage the paddy plantation and interfere in the possession of the plaintiffs over the suit land as Srinivas, Sarpanch, is brother-in-law of the defendant and Srinivas is influencing the police and revenue authorities and the defendant at the instance of Srinivas, is causing harassment to the plaintiffs.

It is further averred in the affidavit of first plaintiff dated 4.8.2011, that the plaintiffs made prima facie case and the balance of convenience is in favour of plaintiffs and as such, the acts of the defendant may be restrained by way of granting temporary injunction order.

7 CMA 3 of 2012

10. On 25.8.2011, counter of N.Sudershan, defendant, was filed denying the averments of the affidavit of Nyalankanti Pedda Ramulu.

According to the defendant, the suit and IA filed by the plaintiffs is not maintainable and the contents of the affidavit of Pedda Ramulu are false and the plaintiffs are not owners and possessors of suit schedule property in Sy.No.88/A measuring Ac.0-05 gts., 88/AA measuring Ac.0-05 gts., and 88/E measuring Ac.0-05 gts., situated at Abbapur village, totally measuring Ac.0-15 gts., of land.

11. In the counter affidavit in IA No.759/2011 in OS No.248/2011, the defendant admitted that he filed OS No.440/2010 for perpetual injunction against the plaintiffs herein in respect of land in

Sy.No.291, 292/1 and 293 by mentioning the boundaries as follows:

North : Land of Chakali Sailu

South : Dharmaram road

East : Fallow land

West : Basar to Nizamabad road

The plaintiffs herein objected to the boundaries mentioned by the defendant, who was plaintiff in O.S.No.440/2010 and the Court dismissed the application of the defendant in IA No.1344/2010 and the plaintiffs made an application for surveying the land of petition schedule property and the Surveyor along with Mandal Revenue

Officer, came to the petition schedule land and unable to demarcate the land and issued a memo vide proceedings No.530/2011 dated 6.5.2011 stating that the land in Sy.No. Sy.No.88/A measuring Ac.0- 05 gts., 88/AA measuring Ac.0-05 gts., and 88/E measuring Ac.0-05 gts., has been in possession of the defendant for the last several years and advised the plaintiff to file a civil suit for declaration of title and for recovery of possession against the defendant herein and 8 CMA 3 of 2012 plaintiff in OS No.440/2010, and the plaintiffs herein instead of filing original suit for declaration of title and recovery of possession, filed

OS No.248/2011 for perpetual injunction and the contents of affidavit

of Pedda Ramulu are false and the plaintiffs are making false allegations gainst Srinivas, Sarpanch of Abbapur village, Srinivas never interfered in any dispute of plaintiffs and defendant.

In the counter affidavit of IA No.759/2011 in OS No.248/2011, the defendant submitted that the plaintiffs are never in possession over the suit schedule land and hence the question of defendant interfering with the suit schedule land does not arise and the plaintiffs simply made false allegations against the defendant and

Srinivas, and the plaintiffs are not in possession of the suit schedule property and the plaintiffs did not make out prima facie case and plaintiffs filed OS No.248/2011 intentionally with a view to cause harassment to the defendant.

In the counter affidavit in IA No.759/2011, the defendant stated that the defendant has been owner and possessor of the land in Sy.No.291, 292/1, and 293 totally measuring Ac.7-34 gts., situated at Abbapur village bounded by:

North : Land of Chakali Sailu

South : Dharmaram road

East : Fallow land

West : Basar to Nizamabad road

According to the contents of counter affidavit of the defendant, the plaintiffs are never in possession of the suit schedule property. As per the boundaries mentioned above for the last several years, the petitioners herein without possession obtained pattadar passbook and title pass book from the Mandal Revenue Officer,, Navipet but the 9 CMA 3 of 2012 plaintiffs are never in possession of the suit schedule property and on the basis of pattadar passbook and title deed, the plaintiffs are interfering with the possession of the defendant and the defendant resisted the same and filed OS No.440/2010 for perpetual injunction for the land in Sy.No. 291, 292/1 and 293 by mentioning the boundaries as follows:

North : Land of Chakali Sailu

South : Dharmaram road

East : Fallow land

West : Basar to Nizamabad road

The plaintiffs herein filed counter in IA No.1344/2010 in OS 440/2010 and the Court dismissed the said IA of the defendant herein, and the plaintiffs made an application to the Mandal Surveyor for surveying the petition schedule land and Mandal Surveyor and Mandal Revenue

Officer came to the petition schedule land and unable to demarcate the land and issued memo No.530/2011 dated 6.5.2011 stating that the land in Sy.No. Sy.No.88/A measuring Ac.0-05 gts., 88/AA measuring Ac.0-05 gts., and 88/E measuring Ac.0-05 gts., has been in possession of the defendant for the last several years and advised plaintiffs to file a civil suit for declaration of title and recovery of possession, but the plaintiffs instead of filing a suit for declaration of title and recovery of possession, filed OS No.248/2011 for perpetual injunction and the OS No.248/2011 is not maintainable. The defendant filed a writ petition No.17619/2011 before the Hon’ble

High Court against the plaintiffs herein and the Mandal Revenue

Officer, Navipet, for cancellation of pattadar passbook and title deed issued in favour of plaintiffs and the said WP No.17619/2011 is pending before the Hon’ble High Court of AP. The defendant in the 10 CMA 3 of 2012 counter affidavit in IA No.759/2011 prayed the Court to dismiss the

IA No.759/2011 with costs.

12. The point that arises for consideration is, whether the learned

Prl. Junior Civil Judge, Nizamabad, erred in granting temporary injunction restraining the defendant and his men from interfering with the possession of plaintiffs over the suit property till disposal of

OS No.248/2011.

POINT:

13. While granting temporary injunction Court has to see whether the plaintiffs were in possession of suit property on the date of filing of OS No.248/2011 and on the date of presentation of IA

No.759/2011. Though in Ex.R1, which is the document filed by the defendant, shows that the defendant was in possession of the suit properties since long time but in the same Ex.R1 document signed by

Tahsildar, Navipet, it was mentioned that Nyalakanti Ramulu, first plaintiff, was pattadar and Anubhavadaru of Sy.No.88/A measuring

Ac.0-05 gts., and second plaintiff Nyalankanti Chinna Ramu is pattadar and Anubhavadaru of Sy.No.88/A measuring Ac.0-05 gts., and the third plaintiff Nyalakanti Sindaiah was pattadar and

Anubhavadaru of land in Sy.No.88/E and Are Laxmi W/o Narsaiah is pattadar and Anubhavadar of Sy.No.88/EE measuring Ac.0-15 gts.

Merely because Tahsildar, Navipet mentioned the words in Ex.R1 contrary to the above said contents of Ex.R1 to the effect “� �ౖ స�� � �ంబ� � ాబక పట��, పట��� �ర� మద�న � ��ాల� � ా� � �ాల�దు �ావ�న � ర� ����న � ధం�ా � � � � � ��ా 11 CMA 3 of 2012 స�� � ే� ి అప���ంచుట ప�సు�తమ� � ల��ాదు �ాబట�� అనుభవ � ా�� �నం ��రక� చట� ప��ారం (as per law) � �ళ�గలర� � ెల�ప� �ౖన� �.”

14. Merely because the above said words mentioned by Tahsildar,

Navipet, in Ex.R1, it cannot be said that the plaintiffs who are in possession of the suit schedule property as on the date of presentation of the plaintiff, have to approach the civil Court for

ANUBHAVA SWADEENAM. From Ex.R1, it is clear that previously, prior to 2010-2011, the defendant was in possession of the said property since long back but, on the date of presentation of the plaint in OS No.248/2011, the plaintiffs No.1 to 3 are in possession of the suit property and, therefore, the plaintiffs need not pray for alleged recovery of possession because plaintiffs are in possession of the property and it is for the defendant who was not in possession of the property as on 2010-2011 pahani, has to approach the Court of law with a suit praying the Court to evict the plaintiffs by following due process of law if their possession (plaintiffs’ possession) is illegal as per the defendant.

15. In fact, the age of the defendant as on 2011 was 58 years but in Ex.R2 panchanama it was mentioned that the defendant was cultivating the suit land for the last 50 years. There is no mention in

Ex.R2 panchanama that the defendant was in possession of the property as on 28.4.2011 or on the date of presentation of OS

No.248/2011 or on the date of presentation of IA No.759/2011. In view of the above reasons, it appears that learned Principal Junior

Civil Judge, Nizamabad, in the order in IA No.759/2011 dated

23.02.2012 mentioned that the document Ex.R1 relied on by the respondent/defendant is also supporting the case of the 12 CMA 3 of 2012 petitioners/plaintiffs that the petitioners/plaintiffs are in possession of the petition schedule property. In view of the above reasons, this

Court is of opinion that the learned Principal Junior Civil Judge,

Nizamabad, rightly granted temporary injunction in favour of plaintiffs who are in possession of the property on the date of presentation of the suit, restraining the defendant and their men from interfering with the possession of the plaintiffs over the suit schedule property till disposal of the OS No.248/2011. Learned Prl.

Jr. Civil Judge, Nizamabad, did not commit any error in granting temporary injunction in favour of plaintiffs. There is no error in the order of the learned Judge and I do not find any reason to interfere with the order of the learned Judge. In the opinion of the Court, this

CMA fails and it is liable to be dismissed.

16. In the result, CMA No.3/2012 is dismissed. Both parties are directed to get ready before the learned Prl. Jr. Civil Judge,

Nizamabad, for trial and the learned Prl. Jr. Civil Judge, Nizamabad, is directed to dispose of OS No.248/2011 as expeditiously as possible.

Dictated to the personal Asst., transcribed by him,

corrected and pronounced by me in open Court on this the 23 rd day of September, 2013.

VIII Addl. Dist. Judge, Nizamabad

APPENDIX OF EVIDNECE

NIL

VIII Addl. Dist. Judge, Nizamabad.

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL

(VIII ADDL. DIST. JUDGE) AT NIZAMABAD

Present:- P. Laxminarayana, M.A., LL.B., Chairman, MACT (VIII ADJ), Nizamabad

Friday, the 27th day of September, 2013

OP No.480 of 2010

Between:

Ch. Aruna Sree @ Rekha Rani W/o Chenna Sateesh Kumar Yadav, aged 32 years, Occ: Private teacher, R/o H.No.6-1-301, Yerragunta Colony, Subhashnagar, Nizamabad.

.. Petitioner

AND

1.K. Devender Rao S/o Venkaiah, aged major, Occ: Business and owner of Motorcycle bearing No.AP-25R-7385, R/o H.No.1-12-96, Vinayaknagar.

2.Reliance General Insurance Co. Ltd., represented by its Branch Manager, Branch Office, Balaji Bhavan, H.No.1-1-329, 2nd floor, Vinayak Nagar, Nizamabad. (Insurance Policy cover note No.208000109581/561020 valid from 3.2.2009 to 2.2.2010) …Respondents

This petition coming on 5.9.2013 before me for hearing in the presence of Sri M. Raja Reddy, advocate for petitioner and of Sri P. Narsing Rao, Advocate for respondent No.2, and respondent No.1 was set ex parte, and the matter having stood over for consideration till this day, this Tribunal made the following:

O R D E R

On 14.7.2010, this OP 480/2010 was filed by the petitioner under section 166(1)(a) of M.V. Act, 1988 R/w Rule 455 M.V. Rules, 1989 praying the Court to grant compensation of Rs.4,00,000/- with interest @ 24% per annum from 14.7.2010 till the date of realization against respondent Nos.1 and 2 jointly and severally and for costs of OP.

2. The case of the petitioner, in brief, is as follows:

That on 1.9.2009 at about 8.30 pm, the petitioner and her husband were going by walk towards their house situated at 2OP 480-10

Yerragunta Colony, Subhashnagar, Nizamabad and when they reached near the house in the meantime, a Motorcycle bearing

No.AP-25R-7385 came from Subhashnagar side driven by its rider in a rash and negligent manner and at high speed and dashed the petitioner, due to which, the petitioner fell down and sustained injuries and immediately after the accident, the petitioner was admitted in Amrutha Laxmi Multi Specialty Hospital, Nizamabad and there she took treatment as inpatient and she was referred to higher centre for better treatment and she was admitted in Udai Clinic

Orthopaedic Centre, Hyderabad and took treatment as inpatient and she was attended by Dr. Ved Prakash, Orthopaedic Surgeon, and she was subjected to various pathological tests and X-Rays were taken and she underwent major operation and steel rods, nailings with screws were inserted. So far, she incurred Rs.1,50,000/- towards her treatment, medicines, transport and extra nourishment and at the time of operation, rods were inserted and those rods should be removed after healing. Further, the petitioner has to incur Rs.50,000/-.

It is further alleged in the OP that prior to the accident, the petitioner was hale and healthy and she was having good physic and she was working as a private teacher and was earning Rs.8,000/- per month and on account of fractures and grievous injuries, the petitioner is completely bed ridden and she is unable to do any work and she is suffering from severe pain, giddiness and she is confined to bed and she was subjected to mental agony and she got permanent disability and lost her total earnings and her life became dark and gloomy.

3OP 480-10

3. In this matter, respondent No.1 was set ex parte. Prior to setting him ex parte, respondent No.1 filed his written statement denying the OP averments. The plea of Respondent No.1 is of total denial. Respondent No.1 stated that the claim of the petitioner for compensation of Rs.4,00,000/- is highly excessive and according to respondent No.1, if the Court comes to the conclusion that the petitioner is entitled for any compensation and if the Court comes to the conclusion that the accident occurred due to rash and negligent driving of rider of Motorcycle bearing No.AP-25R-7385 which belongs to respondent No.1, respondent No.2 Insurance Company is alone liable to pay the compensation because there is policy covering the period from 3.2.2009 to 2.2.2010 and the policy was in force at the time of accident. Respondent No.1 prayed the Court to dismiss the O.P. with costs.

4. On 25.04.2011, respondent No.2 Insurance Company filed its written statement denying the OP averments. The plea of

Respondent No.2 Insurance Company is of total denial. According to respondent No.2, the claim of the petitioner for Rs.4,00,000/- is highly excessive. Respondent No.2 Insurance Company prayed the

Court to dismiss the O.P. with costs.

5. On the above rival contentions the following issues were framed on 18.8.2011:

i) Whether the accident has taken place due to rash and negligent driving of Motorcycle bearing No.AP-25R-7385 by its driver?

ii) Whether the petitioner is entitled to claim compensation? If so, to what amount and from which of the respondents?

iii) To what relief?

4OP 480-10

Issue No.1:

6. This Court perused the material papers on record after hearing the arguments of learned counsel for petitioner and learned counsel

for respondent No.2 Insurance Company. Respondent No.1 was set

ex parte.

7. From the evidence of P.W.1 injured and from the contents of

Ex.A1, FIR, and also from the contents of Ex.A2, charge-sheet signed by ASI, Traffic Police Station, Nizamabad, this Court is satisfied that rider of Motorcycle bearing No.AP-25R-7385 came from Subhashnagar side and drove the said motorcycle in a rash and negligent manner and gave dash to petitioner herein Chenna

Aruna Sree @ Rekha Rani, due to which, she sustained injuries at about 8.30 pm on 1.9.2007 because vehicle came in speed from her behind, while she was walking on the left side of the road. It cannot be said that she implicated the motorcycle falsely to claim compensation. Therefore, issue No.1 is decided in favour of the petitioner and against respondent Nos.1 and 2.

Issue No.2:

8. To prove this issue, the petitioner herein apart from filing chief affidavit as P.W.1, she entered into the witness box and exhibited Ex.A1 to A126 and examined Dr. Ved Prakash, M.S.

Orthopaedic Surgeon, Uday Clinic, Hyderabad, who operated P.W.1 on 8.9.2009 because she lost blood due to fracture and the doctor

P.W.2 fixed INTER LOCKING NAILING. From the evidence of P.W.2 doctor, it is also evident that she was operated second time on 31.12.2009 for dinmyzation (removal of one screw) the left fracture to unite, by minor surgery. It is also evident from the evidence of 5OP 480-10

P.W.2 doctor that third time operation was done to P.W.1 for removal of implants on 5.5.2012 and there is little discomfort in daily activities of living and difficulty in squatting on the floor.

According to P.W.2 doctor, P.W.1 is having partial and temporary disability and left thigh muscle was thinner than that of right thigh and P.W.1 took two and half years to recover and to go to her household work and she was mentally depressed during the period of treatment. P.W.2 doctor referred Ex.A3 medico legal record of his Uday Clinic, Orthopaedic Centre, Hyderabad dt. 2.9.2009 and

Ex.A5 discharge summary dated 14.9.2009, Ex.A6 discharge summary, dt. 1.1.2010, Ex.A10, receipt dt. 2.9.2009, Ex.A13 relating to POP, Sofral and gauze bandage of petitioner dt.

2.9.2009, Ex.A19 to Ex.A70 are various medical bills and also

Ex.A90 to Ex.A124 and X-Rays in 14 number which includes medical reports, prescriptions. This Court perused Ex.A19 to A65, Ex.A67 to

Ex.A70 and Ex.A90 to Ex.A124 and 13 X-Rays available on record.

From the evidence of P.W.2 doctor, it is evident that initially patient was treated at private hospital, Nizamabad, and there is no negligence on the part of patient (P.W.1) for delay in union of fracture of the left femur. P.W.2 doctor denied the suggestion that since the fracture is fully united there is no pain and suffering to petitioner (P.W.1). P.W.2 doctor denied that prescription is not tallying with medical bills. P.W.2 doctor further stated that it was suggested on 14.9.2009 at the time of discharge to come back further on 19.9.2009. P.W.2 doctor denied that after 2nd surgery to petitioner, patient became perfectly alright. P.W.2 doctor stated that patient was not alright immediately. P.W.2 doctor denied that the patient was not suffering in squatting and climbing, running and 6OP 480-10 he denied that there is no any little discomfort and he denied that

P.W.1 was not suffering from depression. P.W.2 is a responsible doctor and he is M.S. Orthopaedic surgeon and there is no reason for P.W.2 doctor to depose falsehood to support P.W.1. In the opinion of the Court, P.W.2 doctor deposed the facts. Therefore, this Court is believing the evidence of P.W.2 doctor which is fully supporting the evidence of P.W.1 (petitioner/injured).

9. The learned counsel for 2nd respondent Insurance Company submitted that according to Ex.A3, only one fracture is there i.e.

shaft femur and she was taken to Hyderabad hospital on 2.9.2009 and she was treated at Uday Clinic Orthopaedic, Hyderabad and on commission, P.W.2 doctor of Uday Clinic was examined in the presence of Commissioner, and three times operation was conducted and implants were removed from the body of P.W.1 and the fracture is united and there is no shortening of limb and P.W.2 doctor admitted in the cross-examination stating that there is no mention of partial temporary disability in the medical record and, therefore, according to learned counsel for respondent No.2, there is no disability.

10. Sri P. Narsing Rao, learned counsel for respondent No.2 further submitted that the first bill is dated 2.9.2009 and it shows

P.W.1 was discharged on 14.9.2009 and it also shows the amount of

Rs.50,930/- and there is another discharge bill for the period from 23.4.2012 to 7.5.2012 and it shows Rs.30,950/- and the said first bill for Rs.50,930/- and the 2nd bill for Rs.30,950/- may be taken into consideration and there is no violation of terms of policy and the RTC bus tickets cannot be accepted (according to counsel for 7OP 480-10 respondent No.2) and he stated that other medical bills may be discarded. According to Sri Narsing Rao, learned counsel for respondent No.2, P.W.1 is a household lady and absolutely there is no record to show that she was earning money and the entire record does not show that she is a private teacher and, therefore, the question of loss of earnings does not arise.

11. This Court perused Ex.A7, insurance policy and it is covering the period from 3.2.2009 to 2.2.2010 and the date of accident is 1.9.2009 and, therefore, it is clear that the policy Ex.A7 is covering the date of accident. Ex.A8 is driving licence of the 1st respondent and it was valid from March, 2009 to 3.3.2024 and thus, it is clear that respondent No.1 was having a valid driving licence on the date of accident.

12. This Court perused Ex.A71, A72, A73, A74, A75, A76, A77,

A78, A79, A80, A81, A82, A83 and A84 they are dated 6.10.2009, 20.10.2009, 16.10.2009, 15.9.2009, 23.9.2009, 2.1.2010, 30.12.2009, 3.9.2009, 12.9.2009, 7.9.2009 and 12.9.2009 covering the period after the accident. Ex.A85, A86, A87, A88 and A89 are

Kamath Hotel bills relating to Tiffin like Idli etc. In the opinion of the Court, it is not just and reasonable to discard the above said bills because those bills were for the purpose of petitioner and they are covering the period after the accident. P.W.1 stated in the cross-examination that earlier, she worked as a teacher but she did not submit documentary evidence convincing that she worked as a teacher. Therefore, her evidence that she was earning Rs.8,000/- per month as a private teacher is not accepted. However, the earnings of a household lady aged about 30 years can be assessed 8OP 480-10 at Rs.4,000/- per month as on 1.9.2009 and, therefore, alleged income of Rs.8,000/- per month of P.W.1 is not taken into consideration and the income of P.W.1/petitioner is assessed at

Rs.4,000/- per month only. In this matter by mistake document

No.Ex.A66 is not provided to any document. Subsequently, this

Court perused the remaining X-Rays. Thus, totally this Court perused 14 X-Rays relating to P.W.1. In the light of above discussion, this Court is of opinion that petitioner is entitled for compensation from respondent Nos.1 and 2 and respondent Nos.1 and 2 jointly and severally liable to pay compensation amount to the petitioner as mentioned below because calculation memo filed by the petitioner at the time of arguments and the notice of calculation memo was served on Sri P. Narsing Rao, learned counsel for respondent No.2 on 5.9.2013.

1. Towards extra nourishment @ Rs.2000/- PM Rs. 6,000/- for 3 months.

2. Towards loss of earnings for a period of 3 months @ Rs. 4,000/- per month. Rs. 12,000/-

3. Towards transportation from the place of accident to Nizamabad, and from Nizamabad to Hyderabad. Rs. 5,000/-

4. Towards one grievous injury Rs. 20,000/-

5. Towards medical expenses and other Expenses as per calculation memo Rs.1,66,590/- _________________

Total: Rs.2,09,590/- ________________

Thus, the petitioner is entitled to Rs.2,09,590/- (Rs. Two lakhs, nine thousand five hundred and ninety only) with proportionate costs and interest @ 7.5% per annum on Rs.2,09,590/- from 14.07.2010 till the date of deposit. Issue no. 2 is decided in favour of the petitioner and against the respondent Nos. 1 and 2.

9OP 480-10

Issue No. 3:

9. In the result, OP No.480/2010 is allowed in part for

Rs.2,09,590/- (Rs. Two lakhs, nine thousand five hundred and ninety only) with proportionate costs and interest @ 7.5% per annum on Rs.2,09,590/- from 14.07.2010 till the date of deposit against respondents Nos.1 and 2 jointly and severally. However, the respondent No.2 is directed to deposit the above said amount with interest before this Court within one month from today. On such deposit, the petitioner is entitled to withdraw the principal amount, interest and costs in one lump sum.

Advocate fee is fixed at Rs.2,000/- (Rs. Two thousand only)

Dictated to P.A., transcribed by him, corrected and pronounced

by me in the Open Court on this the 27th day of September, 2013.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

APPENDIX OF EVIDNECE

For petitioner For Respondents

Pw1: Smt. Ch.Aruna Sree None Pw2: Dr. Ved Prakash

EXHIBITS MARKED

Ex.A1 : CC of FIR. Ex.B1: Copy of policy Ex.A2 : CC of charge-sheet Ex.A3 : Medical legal record Ex.A4 : Medical report Ex.A5 : Discharge summary Ex.A6 : Another discharge summary Ex.A7 : Package policy Ex.A8 : Certificate of registration Ex.A9 to A12: Receipts Ex.A13: Medical paper Ex.A14 to A18: Cash memos Ex.A19 to A23: Receipts Ex.A24 to A26: Cash memos Ex.A27 : Requisition sheet Ex.A28 : Receipt Ex.A29 : Medical bill Ex.A30 : Cash receipt Ex.A31 to A36: Cash memos Ex.A37: Estimates 10OP 480-10

Ex.A38: Cash memo Ex.A39: Discharge bill Ex.A40 & A41: Cash memos Ex.A42 to A45: Receipts Ex.A46 : Cash memo Ex.A47 : Receipt Ex.A48 : Discharge bill Ex.A49: Cash Memo Ex.A50: Cash memo Ex.A51: Uday Clinic report Ex.A52: final consultation fee Ex.A53: Requisition slip Ex.A54: Miscellaneous receipt Ex.A55 & A56: Discharge bill Ex.A57 to A59: Cash memos Ex.A60: Admission slip showing payment of Rs.100/- Ex.A61: Bill for Rs.1622/- Ex.A62: Requisition fee Ex.A63 & A64: Cash memos Ex.A65 & A67: Receipts for Rs.100/- Ex.A68 & A69: Cash memos Ex.A70: Receipt for Rs.100/- Ex.A71 to A84: RTC bus tickets Ex.A85 & A89: Receipts Ex.A90: Record of Uday Clinic containing number of sheets of Arya Pathological, Hyderabad, and Vijaya Diagnostic Center and C.M. Diagnostics, Ganga Diagnostics, Uday Clinic etc. Ex.A91: Clinical finding of Doctor Ved Prakash Ex.A92 to A101: Slips from Uday Clinic Ex.A102: Prescriptions given by Ved Prakash Ex.A103 to A124 : Slips from Uday Clinic and Dr. Ved Prakash Ex.A125: X-Ray Films (Numbering 14) Ex.A126: Copy of driving licence

Note: By mistake Ex.A66 is not provided to any document.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL

(VIII ADDL. DIST. JUDGE) AT NIZAMABAD

Present:- P. Laxminarayana, M.A., LL.B., Chairman, MACT (VIII ADJ), Nizamabad

Friday, the 27th day of September, 2013

OP No.480 of 2010

Between:

Ch. Aruna Sree @ Rekha Rani W/o Chenna Sateesh Kumar Yadav, aged 32 years, Occ: Private teacher, R/o H.No.6-1-301, Yerragunta Colony, Subhashnagar, Nizamabad.

.. Petitioner

AND

1.K. Devender Rao S/o Venkaiah, aged major, Occ: Business and owner of Motorcycle bearing No.AP-25R-7385, R/o H.No.1-12-96, Vinayaknagar.

2.Reliance General Insurance Co. Ltd., represented by its Branch Manager, Branch Office, Balaji Bhavan, H.No.1-1-329, 2nd floor, Vinayak Nagar, Nizamabad. (Insurance Policy cover note No.208000109581/561020 valid from 3.2.2009 to 2.2.2010) …Respondents

This petition coming on 5.9.2013 before me for hearing in the presence of Sri M. Raja Reddy, advocate for petitioner and of Sri P. Narsing Rao, Advocate for respondent No.2, and respondent No.1 was set ex parte, and the matter having stood over for consideration till this day, this Tribunal made the following:

O R D E R

On 14.7.2010, this OP 480/2010 was filed by the petitioner under section 166(1)(a) of M.V. Act, 1988 R/w Rule 455 M.V. Rules, 1989 praying the Court to grant compensation of Rs.4,00,000/- with interest @ 24% per annum from 14.7.2010 till the date of realization against respondent Nos.1 and 2 jointly and severally and for costs of OP.

2. The case of the petitioner, in brief, is as follows:

That on 1.9.2009 at about 8.30 pm, the petitioner and her husband were going by walk towards their house situated at 2OP 480-10

Yerragunta Colony, Subhashnagar, Nizamabad and when they reached near the house in the meantime, a Motorcycle bearing

No.AP-25R-7385 came from Subhashnagar side driven by its rider in a rash and negligent manner and at high speed and dashed the petitioner, due to which, the petitioner fell down and sustained injuries and immediately after the accident, the petitioner was admitted in Amrutha Laxmi Multi Specialty Hospital, Nizamabad and there she took treatment as inpatient and she was referred to higher centre for better treatment and she was admitted in Udai Clinic

Orthopaedic Centre, Hyderabad and took treatment as inpatient and she was attended by Dr. Ved Prakash, Orthopaedic Surgeon, and she was subjected to various pathological tests and X-Rays were taken and she underwent major operation and steel rods, nailings with screws were inserted. So far, she incurred Rs.1,50,000/- towards her treatment, medicines, transport and extra nourishment and at the time of operation, rods were inserted and those rods should be removed after healing. Further, the petitioner has to incur Rs.50,000/-.

It is further alleged in the OP that prior to the accident, the petitioner was hale and healthy and she was having good physic and she was working as a private teacher and was earning Rs.8,000/- per month and on account of fractures and grievous injuries, the petitioner is completely bed ridden and she is unable to do any work and she is suffering from severe pain, giddiness and she is confined to bed and she was subjected to mental agony and she got permanent disability and lost her total earnings and her life became dark and gloomy.

3OP 480-10

3. In this matter, respondent No.1 was set ex parte. Prior to setting him ex parte, respondent No.1 filed his written statement denying the OP averments. The plea of Respondent No.1 is of total denial. Respondent No.1 stated that the claim of the petitioner for compensation of Rs.4,00,000/- is highly excessive and according to respondent No.1, if the Court comes to the conclusion that the petitioner is entitled for any compensation and if the Court comes to the conclusion that the accident occurred due to rash and negligent driving of rider of Motorcycle bearing No.AP-25R-7385 which belongs to respondent No.1, respondent No.2 Insurance Company is alone liable to pay the compensation because there is policy covering the period from 3.2.2009 to 2.2.2010 and the policy was in force at the time of accident. Respondent No.1 prayed the Court to dismiss the O.P. with costs.

4. On 25.04.2011, respondent No.2 Insurance Company filed its written statement denying the OP averments. The plea of

Respondent No.2 Insurance Company is of total denial. According to respondent No.2, the claim of the petitioner for Rs.4,00,000/- is highly excessive. Respondent No.2 Insurance Company prayed the

Court to dismiss the O.P. with costs.

5. On the above rival contentions the following issues were framed on 18.8.2011:

i) Whether the accident has taken place due to rash and negligent driving of Motorcycle bearing No.AP-25R-7385 by its driver?

ii) Whether the petitioner is entitled to claim compensation? If so, to what amount and from which of the respondents?

iii) To what relief?

4OP 480-10

Issue No.1:

6. This Court perused the material papers on record after hearing the arguments of learned counsel for petitioner and learned counsel

for respondent No.2 Insurance Company. Respondent No.1 was set

ex parte.

7. From the evidence of P.W.1 injured and from the contents of

Ex.A1, FIR, and also from the contents of Ex.A2, charge-sheet signed by ASI, Traffic Police Station, Nizamabad, this Court is satisfied that rider of Motorcycle bearing No.AP-25R-7385 came from Subhashnagar side and drove the said motorcycle in a rash and negligent manner and gave dash to petitioner herein Chenna

Aruna Sree @ Rekha Rani, due to which, she sustained injuries at about 8.30 pm on 1.9.2007 because vehicle came in speed from her behind, while she was walking on the left side of the road. It cannot be said that she implicated the motorcycle falsely to claim compensation. Therefore, issue No.1 is decided in favour of the petitioner and against respondent Nos.1 and 2.

Issue No.2:

8. To prove this issue, the petitioner herein apart from filing chief affidavit as P.W.1, she entered into the witness box and exhibited Ex.A1 to A126 and examined Dr. Ved Prakash, M.S.

Orthopaedic Surgeon, Uday Clinic, Hyderabad, who operated P.W.1 on 8.9.2009 because she lost blood due to fracture and the doctor

P.W.2 fixed INTER LOCKING NAILING. From the evidence of P.W.2 doctor, it is also evident that she was operated second time on 31.12.2009 for dinmyzation (removal of one screw) the left fracture to unite, by minor surgery. It is also evident from the evidence of 5OP 480-10

P.W.2 doctor that third time operation was done to P.W.1 for removal of implants on 5.5.2012 and there is little discomfort in daily activities of living and difficulty in squatting on the floor.

According to P.W.2 doctor, P.W.1 is having partial and temporary disability and left thigh muscle was thinner than that of right thigh and P.W.1 took two and half years to recover and to go to her household work and she was mentally depressed during the period of treatment. P.W.2 doctor referred Ex.A3 medico legal record of his Uday Clinic, Orthopaedic Centre, Hyderabad dt. 2.9.2009 and

Ex.A5 discharge summary dated 14.9.2009, Ex.A6 discharge summary, dt. 1.1.2010, Ex.A10, receipt dt. 2.9.2009, Ex.A13 relating to POP, Sofral and gauze bandage of petitioner dt.

2.9.2009, Ex.A19 to Ex.A70 are various medical bills and also

Ex.A90 to Ex.A124 and X-Rays in 14 number which includes medical reports, prescriptions. This Court perused Ex.A19 to A65, Ex.A67 to

Ex.A70 and Ex.A90 to Ex.A124 and 13 X-Rays available on record.

From the evidence of P.W.2 doctor, it is evident that initially patient was treated at private hospital, Nizamabad, and there is no negligence on the part of patient (P.W.1) for delay in union of fracture of the left femur. P.W.2 doctor denied the suggestion that since the fracture is fully united there is no pain and suffering to petitioner (P.W.1). P.W.2 doctor denied that prescription is not tallying with medical bills. P.W.2 doctor further stated that it was suggested on 14.9.2009 at the time of discharge to come back further on 19.9.2009. P.W.2 doctor denied that after 2nd surgery to petitioner, patient became perfectly alright. P.W.2 doctor stated that patient was not alright immediately. P.W.2 doctor denied that the patient was not suffering in squatting and climbing, running and 6OP 480-10 he denied that there is no any little discomfort and he denied that

P.W.1 was not suffering from depression. P.W.2 is a responsible doctor and he is M.S. Orthopaedic surgeon and there is no reason for P.W.2 doctor to depose falsehood to support P.W.1. In the opinion of the Court, P.W.2 doctor deposed the facts. Therefore, this Court is believing the evidence of P.W.2 doctor which is fully supporting the evidence of P.W.1 (petitioner/injured).

9. The learned counsel for 2nd respondent Insurance Company submitted that according to Ex.A3, only one fracture is there i.e.

shaft femur and she was taken to Hyderabad hospital on 2.9.2009 and she was treated at Uday Clinic Orthopaedic, Hyderabad and on commission, P.W.2 doctor of Uday Clinic was examined in the presence of Commissioner, and three times operation was conducted and implants were removed from the body of P.W.1 and the fracture is united and there is no shortening of limb and P.W.2 doctor admitted in the cross-examination stating that there is no mention of partial temporary disability in the medical record and, therefore, according to learned counsel for respondent No.2, there is no disability.

10. Sri P. Narsing Rao, learned counsel for respondent No.2 further submitted that the first bill is dated 2.9.2009 and it shows

P.W.1 was discharged on 14.9.2009 and it also shows the amount of

Rs.50,930/- and there is another discharge bill for the period from 23.4.2012 to 7.5.2012 and it shows Rs.30,950/- and the said first bill for Rs.50,930/- and the 2nd bill for Rs.30,950/- may be taken into consideration and there is no violation of terms of policy and the RTC bus tickets cannot be accepted (according to counsel for 7OP 480-10 respondent No.2) and he stated that other medical bills may be discarded. According to Sri Narsing Rao, learned counsel for respondent No.2, P.W.1 is a household lady and absolutely there is no record to show that she was earning money and the entire record does not show that she is a private teacher and, therefore, the question of loss of earnings does not arise.

11. This Court perused Ex.A7, insurance policy and it is covering the period from 3.2.2009 to 2.2.2010 and the date of accident is 1.9.2009 and, therefore, it is clear that the policy Ex.A7 is covering the date of accident. Ex.A8 is driving licence of the 1st respondent and it was valid from March, 2009 to 3.3.2024 and thus, it is clear that respondent No.1 was having a valid driving licence on the date of accident.

12. This Court perused Ex.A71, A72, A73, A74, A75, A76, A77,

A78, A79, A80, A81, A82, A83 and A84 they are dated 6.10.2009, 20.10.2009, 16.10.2009, 15.9.2009, 23.9.2009, 2.1.2010, 30.12.2009, 3.9.2009, 12.9.2009, 7.9.2009 and 12.9.2009 covering the period after the accident. Ex.A85, A86, A87, A88 and A89 are

Kamath Hotel bills relating to Tiffin like Idli etc. In the opinion of the Court, it is not just and reasonable to discard the above said bills because those bills were for the purpose of petitioner and they are covering the period after the accident. P.W.1 stated in the cross-examination that earlier, she worked as a teacher but she did not submit documentary evidence convincing that she worked as a teacher. Therefore, her evidence that she was earning Rs.8,000/- per month as a private teacher is not accepted. However, the earnings of a household lady aged about 30 years can be assessed 8OP 480-10 at Rs.4,000/- per month as on 1.9.2009 and, therefore, alleged income of Rs.8,000/- per month of P.W.1 is not taken into consideration and the income of P.W.1/petitioner is assessed at

Rs.4,000/- per month only. In this matter by mistake document

No.Ex.A66 is not provided to any document. Subsequently, this

Court perused the remaining X-Rays. Thus, totally this Court perused 14 X-Rays relating to P.W.1. In the light of above discussion, this Court is of opinion that petitioner is entitled for compensation from respondent Nos.1 and 2 and respondent Nos.1 and 2 jointly and severally liable to pay compensation amount to the petitioner as mentioned below because calculation memo filed by the petitioner at the time of arguments and the notice of calculation memo was served on Sri P. Narsing Rao, learned counsel for respondent No.2 on 5.9.2013.

1. Towards extra nourishment @ Rs.2000/- PM Rs. 6,000/- for 3 months.

2. Towards loss of earnings for a period of 3 months @ Rs. 4,000/- per month. Rs. 12,000/-

3. Towards transportation from the place of accident to Nizamabad, and from Nizamabad to Hyderabad. Rs. 5,000/-

4. Towards one grievous injury Rs. 20,000/-

5. Towards medical expenses and other Expenses as per calculation memo Rs.1,66,590/- _________________

Total: Rs.2,09,590/- ________________

Thus, the petitioner is entitled to Rs.2,09,590/- (Rs. Two lakhs, nine thousand five hundred and ninety only) with proportionate costs and interest @ 7.5% per annum on Rs.2,09,590/- from 14.07.2010 till the date of deposit. Issue no. 2 is decided in favour of the petitioner and against the respondent Nos. 1 and 2.

9OP 480-10

Issue No. 3:

9. In the result, OP No.480/2010 is allowed in part for

Rs.2,09,590/- (Rs. Two lakhs, nine thousand five hundred and ninety only) with proportionate costs and interest @ 7.5% per annum on Rs.2,09,590/- from 14.07.2010 till the date of deposit against respondents Nos.1 and 2 jointly and severally. However, the respondent No.2 is directed to deposit the above said amount with interest before this Court within one month from today. On such deposit, the petitioner is entitled to withdraw the principal amount, interest and costs in one lump sum.

Advocate fee is fixed at Rs.2,000/- (Rs. Two thousand only)

Dictated to P.A., transcribed by him, corrected and pronounced

by me in the Open Court on this the 27th day of September, 2013.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

APPENDIX OF EVIDNECE

For petitioner For Respondents

Pw1: Smt. Ch.Aruna Sree None Pw2: Dr. Ved Prakash

EXHIBITS MARKED

Ex.A1 : CC of FIR. Ex.B1: Copy of policy Ex.A2 : CC of charge-sheet Ex.A3 : Medical legal record Ex.A4 : Medical report Ex.A5 : Discharge summary Ex.A6 : Another discharge summary Ex.A7 : Package policy Ex.A8 : Certificate of registration Ex.A9 to A12: Receipts Ex.A13: Medical paper Ex.A14 to A18: Cash memos Ex.A19 to A23: Receipts Ex.A24 to A26: Cash memos Ex.A27 : Requisition sheet Ex.A28 : Receipt Ex.A29 : Medical bill Ex.A30 : Cash receipt Ex.A31 to A36: Cash memos Ex.A37: Estimates 10OP 480-10

Ex.A38: Cash memo Ex.A39: Discharge bill Ex.A40 & A41: Cash memos Ex.A42 to A45: Receipts Ex.A46 : Cash memo Ex.A47 : Receipt Ex.A48 : Discharge bill Ex.A49: Cash Memo Ex.A50: Cash memo Ex.A51: Uday Clinic report Ex.A52: final consultation fee Ex.A53: Requisition slip Ex.A54: Miscellaneous receipt Ex.A55 & A56: Discharge bill Ex.A57 to A59: Cash memos Ex.A60: Admission slip showing payment of Rs.100/- Ex.A61: Bill for Rs.1622/- Ex.A62: Requisition fee Ex.A63 & A64: Cash memos Ex.A65 & A67: Receipts for Rs.100/- Ex.A68 & A69: Cash memos Ex.A70: Receipt for Rs.100/- Ex.A71 to A84: RTC bus tickets Ex.A85 & A89: Receipts Ex.A90: Record of Uday Clinic containing number of sheets of Arya Pathological, Hyderabad, and Vijaya Diagnostic Center and C.M. Diagnostics, Ganga Diagnostics, Uday Clinic etc. Ex.A91: Clinical finding of Doctor Ved Prakash Ex.A92 to A101: Slips from Uday Clinic Ex.A102: Prescriptions given by Ved Prakash Ex.A103 to A124 : Slips from Uday Clinic and Dr. Ved Prakash Ex.A125: X-Ray Films (Numbering 14) Ex.A126: Copy of driving licence

Note: By mistake Ex.A66 is not provided to any document.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL

(VIII ADDL. DIST. JUDGE) AT NIZAMABAD

Present:- P. Laxminarayana, M.A., LL.B., Chairman, MACT (VIII ADJ), Nizamabad

Dated this the 23rd day of September, 2013

OP 1747 of 2003

Between:- Sollu Savithri W/o Jalaiah, aged 26 years, Occ: Vegetable and fruits vendor, R/o Aloor village, Armoor Mandal, Dist Nizamabad.

..Petitioner.

And

1. A.Ramesh S/o Gangaram, aged major, Occ: Owner of the Auto rickshaw No. AP-25-U-2435, R/o H.No: 1-2/6, Munipally village, Jakranpally Mandal, Dist. Nizamabad.

2. National Insurance Company Limited, represented by its Branch Manager, Branch Office, Laxmirajam Complex, Jawahar road, Nizamabad (vide policy No. 604003/31/03/6302411 valid from 19-9-2003 to 18-9-2004)

..Respondents.

This petition coming before me on 19.9.2013 in the presence of Sri E.Gangareddy, advocate for petitioner, and of Sri Jagan Mohan Goud, Advocate, on behalf of Sri K.Ashok Advocate for Respondent no.2, and respondent is set ex parte, and having stood over for consideration ,till this day, the tribunal delivered the following:

ORDER

1. On 29-11-2003, this OP 1747 of 2003 was filed by the petitioner against R1 and R2 under section 166(1)(a) of Motor

Vehicles Act r/w rule 455 of APMV rules praying the court to pass a decree for Rs.4,00,000/- in favour of the petitioner towards compensation against R1 and R2 jointly and severally with interest @ 24 % per annum on the entire decretal amount from 29.11.2003 till the date of realization and for costs.

2. The case of the petitioner, in brief, is as follows:

2 OP 1747-03

That on 18-10-2003, the petitioner along with others was travelling in auto-rickshaw AP-25-U-2435 and at about 4 PM when the said auto-rickshaw reached Chepur shivar, driver of the auto drove the said auto in a rash and negligent manner with high speed and lost control over the auto, as a result of which, auto-rickshaw turned turtle and the petitioner sustained fractures and she sustained permanent disability and after the accident the petitioner was shifted to Govt. hospital, Armoor, and later on she was admitted in private nursing home and underwent several operations and incurred more than Rs.1,00,000/- towards her medical expenses and still she is undergoing treatment from private doctors and after the accident, she is unable to attend her regular work, unable to walk and unable to lift weights and getting pain, giddiness and became dependent on others and sustained permanent disability and prior to the accident she was hale and healthy and was doing vegetable and fruit business and earning Rs.10,000/- per month and after the accident, all her earnings were affected.

3. In this matter, R1 was set ex parte.

4. On 27-9-2004, R2 filed its counter denying the OP averments.

5. The plea of R2 insurance company is of total denial and according to R2, accident was not reported by the insured to R2 in collusion with the petitioner and R2 company is not liable to pay any compensation to the petitioner and according to R2 auto AP-25-U- 2435 was over loaded and auto was carrying passengers more than its permitted capacity.

3 OP 1747-03

According to R2, the petitioner was not earning Rs.10,000/- per month and as per FIR auto was over loaded and R1 contravened the terms of policy and the claim of petitioner for Rs.4,00,000/- is excessive. R2 prayed the court to dismiss the OP.

6. On the above rival contentions, the following issues were framed.

1. Whether the accident has taken place due to rash and negligent driving of the vehicle bearing no AP-25-U-2435 by its driver?

2. Whether the petitioner is entitled for compensation and if so to what just amount and against whom?

3. To what relief ?

Issue No 1: -

7. On behalf of the petitioner, the petitioner filed her chief affidavit dated 4.6.2013 as P.W.1 and she exhibited Ex.A1 to A5.

Ex.A1 is FIR with the report of Nagothu Prasad wherein it was mentioned that the driver of auto drove the said auto at high speed and, therefore, the said driver lost control over the auto and the said auto fell down towards left side of the road and Prasad and two others sustained injuries. From the contents of Ex.A2, charge-sheet signed by the Inspector of Police, Armoor, it is clear that the accused Istari Ramesh voluntarily confessed to have committed the offence and, therefore, accused is liable for punishment for the offence under Section 338 IPC and in the charge-sheet it was mentioned that the drive of Auto No.AP-25U-2435 at the outskirts of

Chepur village, drove the said auto in a rash and negligent manner and, therefore, the said auto turned turtle, as a result of which,

Prasad and three other inmates of auto sustained injuries. In the charge-sheet, it was mentioned that Indla Prasad, Gousiya Begum, 4 OP 1747-03

S. Savithri (petitioner herein) sustained injuries. Therefore, it cannot be said that the auto was overloaded and even from the evidence of P.W.1, it is clear that while she was travelling in the auto on 18.10.2003 and when the said Auto-rickshaw No.AP-25U- 2435 reached the midst of Chepur, driver of said auto drove the said auto in a rash and negligent manner and at high speed and lost control over the said auto, due to which, the auto turned turtle, as a result of which, herself and other inmates of the auto sustained multiple fractures. In the cross-examination also P.W.1 clearly stated that there were four persons including the driver in the said auto and out of the above said four persons, herself and another woman and one male person and driver were present in the said auto. Therefore under any circumstances, it cannot be said that the auto was overloaded and this Court is satisfied that the said accident purely occurred due to rash and negligent driving of driver of Auto-rickshaw No.AP-25U-2435. Issue No.1 is decided in favour of the petitioner and against respondent Nos.1 and 2.

Issue No.2:

8. Ex.A3 is the requisition signed by SI of Police, Armoor, issued to the Medical Officer and Ex.A4 is the injury certificate of petitioner/P.W.1 and it shows total six injuries were sustained by the petitioner/P.W.1 and Ex.A5 is the certificate of insurance and it is for the period from 19.9.2003 to 18.9.2004 and in this case, the date of accident is 18.10.2003 and thus, Ex.A5, policy, is covering the date of accident. Apart from entering into the witness box as P.W.1, the petitioner also produced Dr. Akhilesh, Orthopaedic Surgeon, and Dr.

Akhilesh (P.W.2) clearly stated that he examined P.W.1 on 18.10.2003 and found six injuries and out of the above said six 5 OP 1747-03 injuries, injury Nos.1 to 3 are grievous in nature and the remaining injuries No. 4 to 6 are simple in nature and, therefore, Ex.A4, injury certificate was issued by him. Merely because he did not bring case-sheet of petitioner and merely because he did not produce any

X-Ray and merely because in the injury certificate, Ex.A4, there is no mention regarding the X-Rays, it cannot be said that the petitioner/P.W.1 did not sustain grievous injuries. Moreover, he is an Orthopaedic Surgeon and responsible doctor and I do not find any reason to disbelieve the evidence of P.W.2 doctor. He clearly stated that this is the case of road traffic accident. Merely because the requisition is dated 19.10.2003, it cannot be said that P.W.2 doctor did not treat P.W.1/petitioner on 18.10.2003. It cannot be said that Ex.A4 was issued by P.W.2 doctor falsely to help Savitri.

In the opinion of the Court, P.W.2 doctor is deposing truth as a responsible doctor. From the evidence of P.W.2 and from the contents of Ex.A4 document, this Court is satisfied that the petitioner sustained three grievous injuries and three simple injuries. Though P.W.1 stated that she was working as vegetable- cum-fruits vendor and earning Rs.10,000/- per month, there is no acceptable material in this regard except the self-serving statement of P.W.1. The petitioner/P.W.1 was aged 26 years on the date of accident and a woman aged 26 years like P.W.1, were earning not less than Rs.3,000/- per month as on 18.10.2003. Therefore, the alleged income of Rs.10,000/- per month as deposed by P.W.1 is not accepted in the absence of any supporting evidence and alleged

Rs.10,000/- per month income is not taken into consideration.

However, this Court is assessing the income of the petitioner at

Rs.3,000/- per month. In view of the above reasons, this Court is of 6 OP 1747-03 opinion that it is just and reasonable to grant the following amounts to the petitioner/injured, who sustained grievous and simple injuries in the accident and who was treated by P.W.2 doctor.

1. Towards extra nourishment @ Rs.2000/- PM Rs. 6,000/- for 3 months.

2. Towards loss of earnings for a period of 3 months @ Rs.3,000/- per month. Rs. 9,000/-

3. Towards transportation from the place of accident to Hospital Rs. 1,000/-

4. Towards three grievous injuries @Rs.20,000/- each Rs. 60,000/-

5. For three simple injuries @ Rs.3,000/- per Rs. 9,000/- Injury _____________ Rs. 85,000/- _____________

Thus, totally the petitioner is entitled to Rs.85,000/- (Rs. Eighty five thousand only) with proportionate costs and interest @ 7.5% per annum on Rs.85,000/- from 29.11.2003 till the date of deposit except for the period from 21.2.2007 to 11.9.2008. Issue No. 2 is decided in favour of the petitioner and against the respondent Nos.

1 and 2.

Issue No. 3:

11. In the result, OP No.1747/2003 is allowed in part for

Rs.85,000/- (Rs. Eighty five thousand only) with proportionate costs and interest @ 7.5% per annum on Rs.85,000/- from 29.11.2003 till the date of deposit except for the period from 21.2.2007 to 11.9.2008 against R1 and R2 jointly and severally. However, the respondent No.2 is directed to deposit the above said amount with proportionate costs and interest before this Court within one month 7 OP 1747-03 from today. On such deposit, the petitioner is entitled to withdraw the principal amount, interest and costs in one lump sum.

Advocate fee is fixed at Rs.1,000/- (Rs. One thousand only)

Typed to my dictation, corrected and pronounced by me in the Open Court on this the 23rd day of September, 2013.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

APPENDIX OF EVIDNECE

For petitioner For Respondents

Pw1: Smt. S.Savitri None Pw2: Dr. Akhilesh

EXHIBITS MARKED

Ex.A1 : Copy of FIR. Ex.B1: Copy of Policy Ex.A2 : Copy of charge-sheet Ex.A3 : Requisition Ex.A4: Medical certificate Ex.A5 : Copy of Insurance policy

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL

(VIII ADDL. DIST. JUDGE) AT NIZAMABAD

Present:- P. Laxminarayana, M.A., LL.B., Chairman, MACT (VIII ADJ), Nizamabad

Friday, the 20th day of September, 2013

OP No.1467 of 2002

Between:

Pathani Chinna Narsaiah S/o Pedda Narsaiah, aged 28 years, Occ:Labour, R/o Kanteshwar, Nizamabad.

.. Petitioner

AND

1.Mohd.Siddique S/o Waheb Hussain, aged Major,Occ: Owner of Lorry No. ADT-8172, R/o 1-6-19/2, Phulong street, Nizamabad.

2.The Oriental Insurance Company Limited, represented by its Branch Manager, Branch Office, Prathap Reddy Complex, Beside Hotel Mayur, P.B.No.314, Godown road, Nizamabad. (Vide Motor Vehicle Insurance Cover Note No. 2K-55549, valid from 9-1-2002 to 8-1-2003). …Respondents

This petition coming on 19.9.2013 before me for hearing in the presence of E.Ganga Reddy, advocate for petitioner and of Sri M.V.Narsimha Rao, Advocate for respondent No.2, and Respondent No 1 is set ex parte, and the matter having stood over for consideration till this day, this Tribunal made the following:

O R D E R

1. On 11-10-2002, OP.No.1467 of 2002 was presented by the petitioner against R1 and R2 U/s 166(1)(a) of MV Act r/w Rule 455 of APMV Rules, 1989 praying the Court to pass a decree for

Rs.6,00,000/- towards compensation in favour of the petitioner against R1 and R2 jointly and severally with interest @ 24% per annum on the entire decretal amount from the date o petition i.e., from 11-10-2002 till date of realization and for costs.

2. The case of the petitioner, in brief, is as follows:

3. That on 1-9-2002 the petitioner was traveling in the lorry ADT- 8172 as a labourer and at about 7.00 AM on the way when 2 OP 1467-02 petitioner reached near the lorry at Chinnapur turning, the driver of the lorry drove the said lorry with high speed in a rash and negligent manner and gave dash to cyclist going in front of the lorry and lost control over the lorry, as a result of which, the lorry turned turtle and fell into a ditch, as a result of which, the petitioner and other labourers sustained injuries and the petitioner sustained fractures and immediately the petitioner was shifted to Priya Nursing Home,

Nirmal, where the petitioner was admitted as inpatient and underwent several operations and so far the petitioner incurred more than Rs.1,00,000/- towards his medical expenses and the petitioner is still undergoing treatment from private doctors and due to the fractures the petitioner is unable to stand, walk and attend to his regular work and became dependent on others and sustained permanent disability.

4. It is further alleged in the OP that prior to the accident the petitioner was hale and healthy and was working as a labourer and was earning Rs.4,000/- per month apart from Rs. 50/- per day as batta, and was contributing his entire earnings to his family members who are all depending upon the earnings of the petitioner.

But due to the accident all his earnings are affected.

5. In this matter R1 was set ex parte.

6. On 29.3.2004, respondent No.2 Insurance Company filed its written statement denying the OP averments. The plea of respondent No.2 Company in the written statement is of total denial. According to R2, the petitioner suppressed the real facts and

R1 colluded with the petitioner and R1 has not reported the matter of accident to the Police, and the Police also have not intimated about the accident to R2 Company. According to R2, the lorry ADT- 3 OP 1467-02 8172 is goods carrying vehicle and the petitioner might have traveled on the lorry as an unauthorized passenger at the time of accident and R2 is not liable to pay any compensation to the petitioner. R2 further submitted in the written statement that the amount of compensation of Rs. 6,00,000/- prayed by the petitioner is highly excessive. R2 is praying the Court to dismiss the OP with costs.

7. On the above rival contentions the following issues were framed on 11.6.2004.

i) Whether the motor vehicle accident had occurred due to rash and negligent driving of Lorry bearing No. ADT-8172 by its driver resulting injuries to the petitioner ?

ii) Whether the petitioner is entitled for compensation, if so to what amount and from which of the respondents ?

iii) To what relief?

8. ISSUE NO. 1:-

To prove this issue, the petitioner filed his chief affidavit on 21.8.2013 and Exhibited Ex.A1 to A6. Pw1 (Petitioner) was cross examined by the learned counsel for R2 on 5-9-2013. In the affidavit dt 21.8.2013 Pw1 (Petitioner) stated that on 1.9.2002 while he was traveling in the lorry ADT-8172 as a labourer and when the said lorry reached Chinnapur turning at about 7 AM the driver of lorry drove the said lorry ADT-8172 in a rash and negligent manner, at high speed and lost control over the lorry, as a result of which, the lorry turned turtle and fell into a ditch, as a result of which, himself and other labourers sustained multiple fractures and grievous injuries. In the cross examination Pw1 stated that himself and another person, driver of the lorry and cleaner of the lorry were present in the lorry. Oddenna, who was present in the lorry, gave a 4 OP 1467-02 report to Police and they are working as labourers on the said lorry for the purpose of fetching "KANKARA" in the said lorry. In support of his contention petitioner (Pw1) exhibited Ex.A1 FIR which shows that the said lorry was driven by its driver in high speed and in careless manner and hit a cyclist and the lorry driver lost control over the lorry and, therefore, the said lorry fell in a ditch as a result of which, labourer sustained injuries and fractures. The evidence o

Pw1 and the contents of Ex.A1 are further supported by the contents of the charge sheet signed by S.I., Makloor and filed against G.Hanmandlu driver of lorry ADT-8172 wherein it was mentioned that the driver of the lorry ADT-8172 voluntarily confessed the commission of offence and his investigation and evidence collected established that the driver of lorry ADT-8172 committed an offence punishable under section 338 IPC. Therefore, from the above oral and documentary evidence, this court is satisfied that the said accident occurred on 1st September, 2002 as the driver of the lorry drove it in a rash and negligent manner at high speed. Issue No.1 is decided in favour of the petitioner and against R1 and R2.

Issue No.2:

9. Though it is stated by Pw1 that he was earning Rs.4000/- per month and Rs.50/- per day as "Batta" and he incurred expenditure of more than Rs.2,00,000/-, there is no acceptable material in this regard except the self-serving statement of Pw1 and except Ex.A4 and Ex.A6 X-rays. However, persons like petitioners were earning a sum of Rs.3000/- per month only and not Rs.4000/- per month in 2002. The income at Rs.4000/- per month and batta Rs.50/- per day in 2002 of petitioner is not accepted. Similarly alleged 5 OP 1467-02 expenditure of Rs.2,00,000/- is not accepted. However, one fact is clear that the petitioner Pw1 herein was working as labourer on the said lorry for the purpose of fetching "KANKARA" in the said lorry.

This Court is not accepting the argument of the learned counsel for

R2 insurance company that the petitioner travelled in the said lorry as paid passenger. Except a suggestion, there is no material on behalf of R2 insurance company that the petitioner travelling as paid passenger as on 1-9-2002. Moreover, Ex.A6 (3) X-Rays are available relating to the petitioners. Ex.A4 cash memo signed by

Priya Nursing Home is showing Rs.10,800/-. Ex.A3 shows that the petitioner sustained (6) grievous injures and (2) simple injuries, and

Pw2 Dr.K.Nageshwar Rao examined Pw1 on 1-9-2002 and found (6) grievous injuries and (2) simple injuries. Ex.A3 is requisition signed by the S.I. of Police to the Medical Officer to examine Pw1 on 1.9.2002. Ex.A5 insurance cover note and Ex.B1 Insurance cover note shows the period from 9.1.2002 to 8.1.2003 and the date of accident is 1.9.2002 and thus Ex.A5 and Ex.B1 are covering the date of accident. In view of the above reasons, this Court is of opinion that the petitioner is entitled to the following amounts from

R1 and R2 jointly and severally.

1. Towards transportation Rs. 1,000/-

2. Towards 6 grievious injuries Rs.1,20,000/- @ 20,000/- x 6

3. Towards loss of earnings @Rs.3000/- Rs. 9,000/- per month for 3 months 4.Towards extra nourishment Rs. 6,000/- @Rs.2000/- per month for 3 months

5. Towards cash memo Ex.A4 Rs. 10,800/-

6. Towards 2 simple injuries Rs. 6,000/- @ Rs.3000/- x 2 Total: Rs. 1,52,800/- Thus, totally the petitioner is entitled for Rs.1,52,800/- from R1 and

R2 jointly and severally with interest @ 7.5 % per annum on 6 OP 1467-02

Rs.1,52,800/- from 11.10.2002 till the date of deposit. Issue No.2 is decided in favour of the petitioners and against R1 and R2.

ISSUE NO 3:-

10. In the result, this OP 1467 of 2002 is allowed in part for

Rs.1,52,800/- with proportionate costs with interest at 7.5 % per annum on Rs.1,52,800/- from 11-10-2002 till the date of deposit against R1 and R2 jointly and severally. However, R2 is directed to deposit the above said entire amount before the Court within one month. The petitioner is not entitled for the interest for the period from 14.2.2007 to 12.9.2011.

On such deposit, the petitioner is entitled to withdraw the entire amount with interest and proportionate costs in one lump sum.

Advocate fee is fixed at Rs. 1500/-

Typed to my dictation, corrected and pronounced by me in the Open Court on this the 20th day of September, 2013.

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad

APPENDIX OF EVIDNECE

For petitioner For Respondents

Pw1: Sri Pathani Chinna Narsaiah None Pw2: Dr.K.Nageshwar Rao

EXHIBITS MARKED

Ex.A1 : CC of FIR. Ex.B1: Policy Ex.A2 : CC of charge-sheet Ex.A3 : CC of Medical certificate Ex.A4 : Cash memo Ex.A5 : Insurance Policy Ex.A6: (3) X-rays

Chairman, Motor Accident Claims Tribunal, (VIII ADJ), Nizamabad