Smt. P. Sree Sudha

1PDJ Court, Vsp MOP 1098/2009

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

PRINCIPAL DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT:SMT. P.SREEESUDHA, B.COM.,M.L.,

CHAIRPERSON-MACT-CUM

DISTRICT JUDGE.

FRIDAY, THE SIXTEENTH DAY OF NOVEMBER, 2012

M.O.P.NO.1098/2009

Between:

1. Mutta Nageswara Rao, S/o Late Sarrayya, Hindu, aged 45 years, residing at D.No.31-3-37/3, Ammavari Street, Allipuram, Visakhapatnam.

2. Smt. Mutta Satyamani, W/o Nageswara Rao, Hindu, aged 38 years, rest –do-.

3. Kum. Mutta Uma Maheswari, D/o Nageswara Rao, Hindu, aged 22 years, unmarried, rest –do-.

Petitioners And:

1. Sri P.Yoga Kalyan, S/o P.V.R.Koteswara Rao, Hindu, age not known but Major, owner of Trailer bearing Reg.No.AP 26 T 9756, residing at C/o Kodali & Sons, Autonagar, Gudivada, Krishna District.

2. M/s. The Oriental Insurance Company Limited, represented by its Divisional Manager, Dabagardens, Visakhapatnam.

Respondents

This petition has come up on 08.11.2012 before me for final hearing in the presence of Sri J.V.Raghavendra Rao, Advocate for the Petitioners; of Sri T.H.Ramnath Advocate for the 2nd Respondent; the 1st Respondent having remained exparte; upon hearing their arguments; and the same having stood over for consideration till this day, this Court delivered the following

O R D E R

This petition is filed under Sec.166 of Motor Vehicles Act read with Rule 455 of A.P. Motor Vehicle Rules, by the petitioners 1 to 3, who are the father, mother and unmarried sister of deceased Mutta

Harish Kumar, claiming compensation of Rs.8,00,000/- for the death of the deceased in a motor vehicle accident occurred on 22.08.2008 2PDJ Court, Vsp MOP 1098/2009 involving Ashok Leyland Trailer vehicle bearing No.AP 26T 9756 belonging to the 1st respondent and insured with the 2nd respondent driven by its driver.

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

The deceased Mutta Harish Kumar, S/o.Nageswara Rao, aged 19 years, during his life time, was working as Compute faculty in Steel

City Public School, Visakhapatnam and earning Rs.6,500/- per month and also earning Rs.3,000/- per month as part time Team Accountant

Assistant under M. Uma Maheswara Rao, CCD-2, Agri Gold,

Visakhapatnam.

On 22.08.2008 at about 5.00 a.m., the deceased along with his friend Koteswara Rao was proceeding on Bajaj motor cycle bearing

Registration No.AP 31AG 4408 from Allipuram to Kondala Agraharam, and when they reached near Sheelanagar petrol bunk junction on

N.H.5 road, Visakhapatnam, at about 6.00 a.m., the driver of trailer bearing Registration No.AP 26T 9756 drove the same in a rash and negligent manner at high speed and dashed against the motor cycle of deceased as a result the deceased and his friend fell on the road and deceased received severe head injures and succumbed to injuries. The

SHO, Gajuwaka Traffic PS, registered a case in Cr.No.239/2008 under sec.304-A of IPC against the driver of the trailer. Due to sudden demise of the deceased, the petitioners became destitute. The 1st respondent, being the owner of offending trailer and the 2nd respondent being its insurer, both are jointly and severally liable to pay compensation to the petitioners. Thus, they sought compensation of Rs.8.00 lakhs from the respondents for the death of the deceased in the aforesaid accident.

3.The 1st respondent-owner of the trailer remained exparte.

3PDJ Court, Vsp MOP 1098/2009

4.In a counter filed by the 2nd respondent-Insurance company, they denying all the material averments in the petition. Further they disputed the manner in which the accident occurred, involvement of the crime vehicle in the above accident and holding a valid driving licence by the driver of the trailer, at the time of accident. They further disputed the allegations with regard to the age, occupation and income of the deceased at the time of accident. Finally, it contended that the compensation and rate of interest claimed by the petitioners is excessive and exorbitant and the rate of interest must be scaled down at 7.5% p.a., and thus, sought for dismissal of the petition.

5.Basing on the above pleadings, the following issues are framed by my learned Predecessor for trial:

1.Whether the accident resulted in the death of one Mutta Harish Kumar, who was the son of the petitioners 1 and 2 and brother of the 3 rd petitioner, due to rash and negligent driving of the Driver of the vehicle, Trailer, bearing Regn.No.AP 26T 9756?

2.Whether the petitioners are entitled to compensation as prayd for?

3.To what relief?

6.During the course of trial, on behalf of the petitioners, PWs-1 to 4 are examined and Exs.A-1 to A-13 are marked. The 2nd respondent did not choose to let-in any evidence either oral or documentary and they reported no evidence.

7.Heard the arguments on both sides.

8.Issue No.1:

In this regard, the 1st petitioner who is the father of the deceased, himself examined as PW-1 and reiterated the averments of petition in his evidence and exhibited Exs.A-1 to A-13. A perusal of

Ex.A-1 shows that the maternal uncle of the deceased gave a complaint to the police immediately after the accident stating the 4PDJ Court, Vsp MOP 1098/2009 accident was occurred due to rash and negligent driving of the driver of the trailer. In support of their contention, the petitioners also examined one Kalaga Lova Raju, eye-witness to the occurrence was examined as PW-2 and he testified in his evidence that he was working as salesman in Petrol bunk at Sheelanagar and while he was on duty on 22.08.2008, he noticed that the driver of the trailer came in a rash and negligent manner and dashed the motor cycle of the deceased, resulting the death of the deceased. When coming to his cross- examination, it is elicited that he has seen the accident at a distance of 15 meters and he has not given any complaint to the police and his statement was not recorded by them. Though PWs-1 and 2 were cross-examined by the respondents, nothing could be elicited to discard their trustworthiness. Therefore, in the absence of production of contrary evidence by the respondents, considering the testimonies of PWs-1 and PW-2 coupled with documentary evidence, this Tribunal feels that on account of rash and negligent driving of the driver of the trailer belonging to the 1st respondent, the accident occurred, in which the deceased sustained injuries and later succumbed to injuries. Thus, this issue is answered accordingly.

9Issue No.2: -

In this regard, PW-1 claimed that the deceased was aged 19 years and earning Rs.9,500/- per month, as computer faculty in Steel city Public school, and part time team accountant Assistant in Agri gold, Visakhapatnam. In support of his contention, he filed Ex.A-7 SSC certificate showing the date of birth is 15.05.1989 and he was aged 19 as on the date of accident. PW-1 further claimed that the deceased undergone various trainings to improve his skill and to substantiate the said contention, he filed originals of Exs.A-8 to A-13 certificates issued by various organizations. A perusal of these documents shows 5PDJ Court, Vsp MOP 1098/2009 that he underwent training given by Sailors Maritime Academy in

Elementary first aid, Personal survival techniques and personal safety and social responsibilities and a certification training given by Maritime foundation in Fire Prevention and fire fighting and computer course in

MS office given by Netsoft and training given by GSMS Maritime

Training Institute in Helicopter underwater escape Training and all these training were given for couple of days only except Ex.A-12 computer training in MS office for a period of three months. PW-1 contended that his son was working as computer faculty in Steel Public school and to prove the said contention, he filed Ex.A-5 and examined

PW-3 who is correspondent of the school. But he admitted in his cross-examination that they have not issued any appointment letter to the deceased and he has not produced any register to show that the deceased is working in their school.

10.Further PW-1 claimed that his son was also working as part time

Team Account Assistant an earning Rs.3,000/- per month. In support of his contention, he examined PW-4, who is marketing Executive of

Agrigold Group, and he testified in his evidence that the deceased worked in their company from 05.04.2006 to 21.08.2008 and used to earn Rs.3,000/- per month and he also confirmed about issuance of

Ex.A-6 salary certificate. In his cross-examination he stated that he has shown the name of the deceased in their Income Tax returns and he can file those returns before the court, but the petitioners did not take any efforts to file the same. A perusal of Ex.A-6 shows that it was issued on a simple white paper as such, the authenticity of such certificate cannot be taken into consideration.

11.In this regard, the learned counsel for the 2nd respondent argued that the petitioners fabricated the above said documents for the purpose of this case and in that connection, he relied on a decision in 6PDJ Court, Vsp MOP 1098/2009

Potla Narasaiah & another …Appellants Vs. Guduri Krishna

Reddy & Ors…Respondents reported in 1992(2) An.W.R. 39 wherein it was held that “acceptance of certificate issued by private companies or bodies by Tribunal is bad without reference to the accounts from the concerned or material evidence in that context and salary certificate by public companies or government departments can be taken into consideration safely, but it cannot be so in case of private companies”. Admittedly, the deceased was aged 19 years but

PW-4 deposed that the deceased is working with them from 2006 to 2008 i.e., from the age of 16 years. Further PW-3 deposed that the deceased was working as computer faculty but a perusal of Ex.A-12 shows that he underwent computer training for three months from

June, 2007 to August, 2007. Therefore, it is evident that the deceased has not possessed the required qualification for the post of computer faculty. It is a fact that the deceased is only son but he completed only 10th class though he underwent training in several courses, it is only for a couple of days. Therefore, the contention of PW-1 that his son would have get a good employment and earned more if he had been alive, cannot be accepted. As the deceased was not continued his education as on the date of his death, it can be presumed that he was doing some work. Considering his age and other relevant factors, this court feels that it is just and reasonable to take his income as

Rs.3,000/- per month.

12.In this context, the observations made by the Hon’ble Apex court in Sarla Verma & Ors… Appellants Vs. Delhi Transport

Corporation & Anr..Respondents , reported in 2009 ACJ 1298,

wherein it was held that even if the deceased was a bachelor survived by parents and siblings, only the mother wold be considered to be a dependent and 50% would be treated as the personal and living 7PDJ Court, Vsp MOP 1098/2009 expenses of the bachelor and 50% as the contribution to the family.

Therefore, if half of the income of the deceased is deducted towards his personal and living expenses, the monthly income of the deceased can be quantified at Rs.3,000/- (i.e, Rs.3000/- x ½ = Rs.1500/-) and the annual income comes at Rs.18,000/- (i.e.,Rs.1500 x 12).

13.In order to determine just compensation for loss of dependency, the appropriate multiplier for the age of the mother of the deceased as 38 years, is ‘15’ applicableas per the decision of Hon’ble Apex Court referred supra. Hence,if the annual income of the deceased is multiplied by the multiplier ’15’, the total loss of dependency comes to

Rs. 2,70,000/- (i.e., Rs.1500/- X 15 = Rs.2,70,000/-) (Rupees two lakhs seventy thousand only). Apart from that as the petitioners are parents of the deceased, they lost their grown up son in the accident, it cannot be compensated in terms of money, however, this Court feels that it is just and reasonable to grant a sum of Rs.25,000/- (Rupees fifteen thousand only) towards loss of love and affection and another sum of Rs.10,000/- (Rupees ten thousand only)towardsfuneral and other incidental expenses to the petitioners. In total, this Tribunal is awarding compensation of Rs.3,05,000/- (Rupees three lakhs five thousand only) to the petitioners to meet the ends of justice.

14. Here it may be stated that in support of the contentions of both parties, the learned counsel for the petitioner as well as learned counsel for the 2nd respondent-Insurance company filed their written arguments. The learned counsel for the petitioner vehemently argued the 1st respondent is the owner of the trailer in question as such, he is vicariously liable for the acts of his driver. It is further argued that the crime vehicle was duly insured with the 2nd respondent at the time of accident under Ex.A-4 insurance policy and the same in existence on the date of occurrence. Admittedly the 2nd respondent neither dispute 8PDJ Court, Vsp MOP 1098/2009 the accident and nor the insurance of the trailer and they failed to adduce any evidence. Therefore, it clearly shows the respondents failed to discharge their burden of proof cast upon them, as such, they cannot be exonerated from paying the compensation to the petitioners. Therefore, 1st respondent, being the owner of the Trailer in question, he is vicariously liable for the negligent act of his driver and the 2nd respondent as insurer it has to indemnify the liability of the 1st respondent. Therefore, the respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioners with proportionate costs and subsequent interest at 7.5% per annum from the date of filing of petition till the date of realization. Admittedly, as this petition is filed in the year 2009 as on that date, the 3rd petitioner is age 22 years, she might have married as such, she cannot be treated as dependent, as the petitioners 1 and 2 parents are only entitled to the compensation amount in equal shares. Hence, this issue is decided accordingly.

15.ISSUE No.3;-

In the result, this petition is partly allowed awarding a sum of

Rs.3,05,000/- (Rupees three lakh five thousand only)towards compensation to the petitioners 1 and 2 only with proportionate costs and subsequent interest at 7.5% p.a from the date of petition till the date of realization. The respondents 1 and 2 are jointly and severally liable to pay the above said compensation amount to the petitioners, however, the 2nd respondent-Insurance company is directed to deposit the above said amount within one month from the date of this Award.

The claim of 3rd petitioner is dismissed.

On deposit, the petitioners 1 and 2 are entitled to the compensation amount in equal shares and they are permitted to withdraw their respective shares together with accrued interest and costs. The rest of the claim of the petitioners is dismissed without 9PDJ Court, Vsp MOP 1098/2009 costs. Advocate’s fee is fixed at Rs.3,000/- (Rupees three thousand only).

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in Open court on this the 16th day of November,

2012.

DISTRICT JUDGE

Cum-The chairperson, MACT

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONERS: RESPONDENTS:

P.W.1: Mutta Nageswara RaoNONE P.W.2: K.Lova Raju P.W.3: Petakamsetty Rama Rao P.W.4: M.Uma Maheswara Rao

DOCUMENTS MARKED FOR

PETITIONERS:

Ex.A.1: Attested Copy of FIR in Cr.No.239/2008, dated 22.8.2008 Ex.A.2: True Copy of Post Mortem Certificate, dated 22.8.2008 Ex.A.3: True Copy of Inquest Report Ex.A.4: Copy of Insurance Policy Ex.A.5: Certificate issued by Steel City Public School, dated 23.9.2008 Ex.A.6: Salary Certificate for the period from 5.4.2006 to 21.8.2008 Ex.A.7: S.S.Certificate, dated 30.4.2004 Ex.A.8: Elementary First Aid Certificate, dated 17.5.2006 Ex.A.9: Personal Survival Technique Certificate, dated 20.5.2006 Ex.A.10: Personal Safety & Responsibilities Certificate, dt.24.5.2006 Ex.A.11: Fire Prevention and Fire Fighting Certificate, dt.28.6.2006 Ex.A.12: Net Soft Certificate, dated 13.9.2007 Ex.A.13: Copy of Helicopter under water escape training certificate, Dt.7.1.2008

For Respondents:

NIL

DISTRICT JUDGE

Cum-The chairperson, MACT

VISAKHAPATNAM.

10PDJ Court, Vsp MOP 1098/2009

IN THE COURT OF SPL. JUDGE TO TRY OFFENCES UNDER N.D.P.S ACT –CUM-

METROPOLITAN SESSIONS JUDGE-CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Present :-Smt. P.Sreesudha, B.Com.,M.L.,

Sessions Judge,

FAC Spl. Judge to try Offences under NDPS Act-cum- Metropolitan Sessions Judge, Visakhapatnam.

Tuesday, the seventeenth day of July, 2012

N.S.C.12/2011

NAME OF THE COMPLAINANT : State represented by the Sub Inspector of Police, Chinthapalli Police station.

NAME OF THE ACCUSED :

A.1 Mottadam Veerabhadra Rao, s/o late Sanyasidora, aged 48 years, caste by Bhagata, Kotnapalli (v), G.K. Veedhi (M) Visakhapatnam District.

A.2 Mottadam kasulamma, w/o G. Veerabhadra Rao, aged 44 Years, caste by Bhagata, Kotnapalli (v), G.K. Veedhi (M) Visakhapatnam District.

Date, time and place of Occurrence :04.10.2010 at about 10.30 a.m., at RTC complex, Chinthapalli

Charges : U/sec.8(c) r/w 20(b)(ii)(B) of Narcotic Drugs and Psychotrapic Substances Act, 1985 as amended by Act 9 of 2001.

Plea of the Accused : A.1 and A.2 not pleaded not guilty.

Finding of the Court :A.1 and A.2 found guilty.

Sentence or Order :In the result, A.1 and A.2 are found guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of NDPS Act and they are convicted u/sec. 235(2)Cr.P.C. A.1 and A.2 are sentenced to undergo rigorous imprisonment for a period of six months each. The period of remand undergone by them shall be set off under sec.428 of Cr.P.C. M.Os.1 to 6 shall be produced before the Superintendent, Proh. and Excise, Anakapalli, for disposal according to law after expiry of appeal time.

.

Prosecution conducted by : Smt.B. Subbalakshumma, incharge Addl. Public Prosecutor, Visakhapatnam.

Accused were defended by : Sri K. Siva, Advocate for A.1 and A.2

This Sessions case has come up on 10.07.2012 for final hearing before me in the presence of Smt.B. Subbalakshumma, Additional Public Prosecutor for the

Complainant –STATE, and of Sri K. Siva, Advocate for A.1 and A.2 and the matter having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

The Sub Inspector of Police, Chinthapalli Police station, Visakhapatnam

District, filed charge sheet against A.1 and A.2 for the offence punishable u/sec.20(b) of

Narcotic Drugs and Psychotropic Substances Act, 1985 in Cr.No.72/2010 of

Chinthapalli Police Station.

2.The case of the prosecution, as seen from the contents of charge sheet, in brief, is that on 04.10.2010 at about 10.30 a.m., on credible information regarding illegal transportation of ganja, T. Tulasiram, Sub Inspector of Police, Chinthapalli police station

P.W.6 along with his staff, Gazetted officer P.A.V.S. Mallaswara Rao, Thasildar,

Chinthapalli P.W.4, mediators Lakkoju Nagabushanam P.W.1 and Sk Karim P.W.2 and measurer Karanam Yesu Babu P.W.3 reached RTC complex, Chinthapalli and found two persons one male and female waiting for bus along with two bags and on seeing the raid party, they tried to escape but police apprehended them along with property.

P.W.6 served notice under sec.50 of NDPS Act on those persons and produced them

before P.W.4 M.R.O., and he inturn asked the said persons about their objection to

search the bags and after obtaining their consent, P.W.4 checked the bags and found ganja in those two bags. P.W.3 weighed the ganja and found 8 kgs., in the bag in possession of A.1 and 5 kgs., in the bag in possession of A.2, in total 13 kgs., of ganja in both the bags. P.W.6 lifted 50 grams of sample from each bag. P.W.6 seized the property under the cover of mediators report and P.Ws.1 to 4 signed on the slips pasted on the seized property and sample packets

Basing on the said mediators report, P.W.6 registered a case in

Cr.No.72/2010 under sec.20(b) of NDPS Act and arrested the accused, sent them to judicial remand and sent the samples to the chemical examiner. On receipt of chemical analysis report and after completion of investigation, he filed charge sheet.

3.This case is taken on file as N.S.C.12/2011 for the offence under sec.8(c) r/w 20(b)(i) of N.D.P.S. Act against A.1 and A.2. On production of A.1 and A.2 from

Central Prison, Visakhapatnam and on hearing both sides a charge under sec.8(c) r/w 20(b)(ii)(B) of N.D.P.S.Act 1985 as amended by Act 9 of 2001 was framed, read over and explained to them in their vernacular language on 3.5.2011 and they pleaded not guilty to the said charge and claimed to be tried.

4.During the course of trial, on behalf of prosecution, P.Ws.1 to 6 were examined and Exs.P.1 to P.5 and M.Os.1 to 6 were marked. The prosecution has given up the evidence of L.W.7 N. Jagadesh, Sub Inspector of Police, Chinthapalli Police station.

5.After closure of the prosecution evidence, A.1 and A.2 were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances stated by the prosecution witnesses and they denied the prosecution evidence. In sec.313

Cr.P.C., examination A.1 stated that the bags were kept by his side by somebody an he is no way concerned with the bags and he was implicated falsely and A.2 stated that she was implicated falsely and she is no way concerned with the offence.

No evidence, either oral or documentary, was adduced on behalf of A.1 and A.2.

6.P.W.1 L. Nagabhushanam is a mediator. He stated that police obtained his signature Ex.P.1 on mediators report dated 4.10.2010.

P.W.2 Sk. Kareem another mediator in this case stated that he went to

RTC complex, Chinthapalli, on 4.10.2010 at the instance of police and by the time he reached there, Sub Inspector of police, MRO and two accused were present at the scene of offence. He saw two bags containing ganja by the side of A.1 and A.2. Police weighed the said ganja with balance but he cannot say the weight of said ganja. P.W.2 further stated that police obtained his signature on the mediators report in the police station and he admitted his signature which is marked as Ex.P.2. He also identified

M.Os.1 and 2 bags which he saw at the scene of offence.

Though P.W.1 mediator did not support the case of the prosecution,

P.W.2 supported prosecution case.

P.W.3 Karanam Yesu Babu who measured ganja in this case stated that he weighed ganja in M.Os.1 and 2 bags with balance at RTC complex, Chinthapalli at the instance of police and found M.O.1 bag containing 8 kgs., of ganja and M.O.2 bag was containing 5 kgs., of ganja.

P.W.4 P.A.V.S. Malleswara Rao is the Tahsildar of Rambilli mandal and he stated that on 4.10.2010 he received requisition from Sub Inspector of Police ,

Chinthapalli to act as Gazetted officer in this case and accordingly he reached RTC complex of Chinthapalli and when he reached there, he found one male person and one female person standing with one air bag and one cloth bag. Both the said bags were opened in his presence and he found ganja in them. M.Os.1 and 2 are the said bags and Ex.P.2 is the mediators report prepared at that time and it contains his signature. He collected samples of ganja and he got weighed the contents of M.Os.1 and 2 and found 8 kgs., of ganja in one bag and 5 kgs., of ganja in another bag. M.Os.3 to 6 are the sample packets. Identification slips were affixed on M.Os.3 to 6. He identified accused and stated that ganja was seized from their custody.

P.W.5 G. Srinivasu is the chemical examiner in Regional Proh. and Excise

Laboratory and he stated that he received four samples on 9.11.2010 in Cr.No.72/2010.

The samples were affixed with correct seals intact and they were analyzed on the same day by their Assistant Chemical Examiner in their presence and he issued Ex.P.3 chemical analysis report.

P.W.6 M. Tulasiram is the Sub Inspector of police who conducted investigation in this case and filed charge sheet.

7.In view of the above evidence, the point for consideration is :

Whether prosecution is able to prove the guilt of A.1 and A.2 for the charge Under sec.8(c) r/w 20(b)(ii)(B) of N.D.P.S Act, 1985 as amended by Act 9 of 2001 and if so whether A.1 and A.2 are liable for conviction?

8.POINT :

P.W.1 turned hostile and simply stated that he signed on some papers at

Police station and he do not know the contents of mediators report. P.W.2 supported the case of the prosecution to some extent regarding his visiting the scene of offence at the instance of Chinthapalli police on 4.10.2010, finding accused with two bags of ganja at the scene of offence and weighing of said ganja in his presence and finally about affixing his signature on mediators report but he failed to say the weight of the said ganja.

9.P.W.3 is the person who weighed the ganja and he supported the case of the prosecution to the extent of his weighing contents of M.Os.1 and 2 bags at RTC complex at the instance of police and finding 8 kgs., and 5 kgs.,of ganja in the said

M.Os.1 and 2. P.W.5 is the chemical examiner who opined that the sample packets contain dry, green leafy substance with stalks, seeds and flowering tops having characteristic odour of cannabis sativalinn weighing 50 grams each and opined that it is commonly known as ganja. He also stated that he received four samples of 50 grams each with seals in tact and he gave Ex.P.3 chemical analysis report. P.W.4 M.R.O., also stated that he went to RTC complex and found two persons standing with two bags, one air bag and one cloth bag i.e., M.Os.1 and 2 and when he got them weighed, he found 8 kgs., of ganja in one bag and 5 kgs., of ganja in another bag. He took samples of ganja

M.Os.3 to 6 and signed on Ex.P.2 mediators report prepared at that time. P.W.5 SI of

Police stated that on 4.10.2010 he along with Head Constable and four police constables and four home guards proceeded to RTC Bus stand and found two persons trying to run away and took them into custody and questioned about the bags in their possession and when they refused to answer them, the accused were examined in the presence of P.W.4 and P.Ws.1 and 2 and accused stated that they were bringing ganja from Kotnapali village, G.K. Veedhi Mandal to sell the same in Narsipatnam. He further stated that P.w.3 weighed ganja and found 8kgs., of ganja in M.O.1 and 5 kgs., of ganja in M.O.2 and P.W.4 took two samples of each weighing 50 grams i.e., M.Os.3 to 6 and also affixed punch slips on M.Os.1 to 6. A.2 is a woman but P.W.6 stated that there was no female member in their raid party.

10.The counsel for accused argued that as per sec.50(4) of NDPS Act, no female shall be searched by any one except a female. In this case M.Os.1 and 2 bags were found by the side of accused and thus even though there was no female member in their raid party, it cannot be considered as a lapse as the person of A.2 was not searched but only the bag in her possession was searched.

11.It is further contended by the defence counsel that there is delay of 30 days in sending the samples for analysis. As can be seen from the cross examination of P.W.6, he stated that since the scene of offence is an agency area, there is delay in sending the samples. P.W.5 who analyzed samples in this case categorically stated that he analyzed samples on 9.11.2010 and opined that it is ganja. Therefore, there is no material inconsistency in the evidence of P.W.5 and P.W.6 with regard to delay in sending the samples for analysis. A perusal of the evidence of P.Ws.2 to 6 categorically establishes that their evidence corroborates with each other in all material aspects and there are no material contradictions or omissions in their evidence.

Therefore, I feel that prosecution is able to prove the guilt of A.1 and A.2 for the charge leveled against them beyond all reasonable doubt.

12.In the result, A.1 and A.2 are found guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B of NDPS Act and they are convicted u/sec. 235(2) Cr.P.C.

Dictated to the shorthand writer, transcribed by her, corrected and

pronounced by me in open court on this the 17th day of July, 2012.

SESSIONS JUDGE,

FAC SPECIAL JUDGE TO TRY OFFENCES UNDER

N.D.P.S ACT–CUM-METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

13.When A.1 and A.2 are questioned with regard to the quantum of sentence to be imposed on them, A.1 stated that while he was returning from hospital police caught him and A.2 stated that she is having children and both pleaded for mercy.

14.Considering the submission of A.1 and A.2 and also as the quantity of ganja involved in this case is less than commercial quantity, this Court is taking lenient view and A.1 and A.2 are sentenced to undergo rigorous imprisonment for a period of six months each. The period of remand undergone by them shall be set off under sec.428 of Cr.P.C. M.Os.1 to 6 shall be produced before the Superintendent, Proh. and

Excise, Anakapalli, for disposal according to law after expiry of appeal time.

. Dictated to the shorthand writer, transcribed by her, corrected and

pronounced by me in open court on this the 17th day of July, 2012.

SESSIONS JUDGE,

FAC SPECIAL JUDGE TO TRY OFFENCES UNDER

N.D.P.S ACT–CUM-METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witnesses Examined For ProsecutionFor Defence

P.W.1 :L. Nagabhushanam, mediatorNIL P.W.2 :Sk. Kareem, mediator P.W.3 : Karanam Yesubabu, measurer P.W.4 :P.A.V.S. Malleswara Rao, MRO P.W.5 :G. Srinivasu, Chemical Examiner P.W.6:M. Tulasiram, SI of Police

For Prosecution

Ex.P.1: --- Signature of P.W.1 on mediators report

dated 4.10.2010 at 10.30 a.m.

Ex.P.2: 04.10.2010 at 8.30 a.m.- Entire mediators report Ex.P.3 :09.11.2010- Chemical analysis report Ex.P.4 :04.10.2010- FIR in Cr.No.72/2010 of Chinthapalli P.S. Ex.P.5 09.11.2010- Letter of advice

For Defence NIL Material Objects marked

M.O.1 - Black and Red Rexine bag containing ganja M.O.2 - Plastic wooden handle bag containing ganja M.Os.3 to 6 - Four sample packets of ganja

SESSIONS JUDGE,

FAC SPL. JUDGE FOR NDPS CASES-CUM-MSJ, VSP.

IN THE COURT OF SPL. JUDGE TO TRY OFFENCES UNDER N.D.P.S ACT –CUM-

METROPOLITAN SESSIONS JUDGE-CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM

Present :-Smt. P.Sreesudha, B.Com.,M.L.,

Sessions Judge,

FAC Spl. Judge to try Offences under NDPS Act-cum- Metropolitan Sessions Judge, Visakhapatnam.

Monday, the sixteenth day of July, 2012

N.S.C.129/2010

NAME OF THE COMPLAINANT : State represented by the Sub Inspector of Police, Paderu Police station.

NAME OF THE ACCUSED :

A.1 Padmaraju Mohan Krishnam Raju, s/o late Venkata Raju, 52 years, Kshatirya, Cultivation, r/o Kanchipati Vandlapalli Village, T. Sindhupalli mandal, Kadapa District.

A.2 Masada Rambabu, s/o Bhujjanna, 25 years, Kondadora, Cultivation, Allangiput village, Gamparai panchayath, Pedabailu mandal.

Date, time and place of Occurrence :21.08.2010 at 6.00 a.m., at the RTC complex of Paderu.

Charges : U/sec.8(c) r/w 20(b)(ii)(C) of Narcotic Drugs and Psychotrapic Substances Act, 1985 as amended by Act 9 of 2001.

Plea of the Accused : A.1 and A.2 not pleaded not guilty.

Finding of the Court :A.1 and A.2 found not guilty.

Sentence or Order :In the result, A.1 and A.2 are found not guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(C) of NDPS Act and they are acquitted u/sec. 235(1)Cr.P.C. A.1 shall be set at liberty forthwith, if his detention is not required in any other case. The bail bonds of A.2 shall stand cancelled and he shall be set at liberty forthwith. M.Os.1 to 4 bags which are given for interim custody and M.O.5 sample packet shall be produced before the Superintendent, Proh. and Excise, Anakapalli, for disposal according to law after expiry of appeal time.

.

Prosecution conducted by : Smt.B. Subbalakshumma, incharge Addl. Public Prosecutor, Visakhapatnam.

Accused were defended by : Smt. R. Krishna Kumari, Advocate for A.1 and A.2.

This Sessions case has come up on 6.07.2012 for final hearing before me in the presence of Smt.B. Subbalakshumma, Additional Public Prosecutor for the

Complainant –STATE, and of Smt. R. Krishna Kumari, Advocate for A.1 and A.2 and the matter having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

The Sub Inspector of Police, Paderu Police station, filed charge sheet against A.1 and A.2 for the offence punishable u/sec.20(b)(i) of Narcotic Drugs and

Psychotropic Substances Act, 1985 in Cr.No.76/2010 of Paderu Police Station.

2.The case of the prosecution, as seen from the contents of charge sheet, in brief, is that on 21.8.2010 at about 6.00 a.m., P. Sobhan Babu, Sub Inspector of Police,

Paderu Police station, P.W.2, received reliable information about illegal possession of ganja at RTC complex , Paderu and he issued requisition letters to Dr.K.Venkata

Krishna, Civil Assistant Surgeon, CHC, Paderu, P.W.1 and L.W.2 Kuda Matyaraju t act as mediator and all of them proceeded to RTC complex and found two male persons carrying two carry bags and one black colour zip bag and on seeing the raid party, they tried to escape but P.W.2 caught them with the assistance of his staff. On enquiry, they disclosed their identity and admitted that their bags contain ganja and also confessed that they purchased ganja from unknown persons at Laxmipeta village of Pedabailu mandal and lured A.2 to pay Rs.1,500/- if he brings the bags to RTC complex to sell the same at Visakhapatnam for higher rate. P.W.2 searched the bags in the presence of

P.W.1 and found ganja with flowers, buds and stems in the bags and on measuring them, it is found that A.1 was in possession of 14 kgs., of ganja in four bundles and A.2 was in possession of 11 kgs., of ganja in five bundles. P.W.2 took sample of 100 grams from each bundle and made them into two equal parts, packed them in polythene covers, tied them with threads and sealed them. He pasted labels on sample packets and seized the ganja bags under cover of mediators report.

Basing on the said mediators report, P.W.2 registered a case in

Cr.No.76/2010 under sec.20(b)(i) of NDPS Act and arrested the accused, sent them to judicial remand and sent the samples to the chemical examiner. On receipt of chemical analysis report and after completion of investigation, he filed charge sheet.

3.This case is taken on file as N.S.C.129/2010 for the offence under sec.

8(c) r/w 20(b) of N.D.P.S. Act against A.1 and A.2. On production of A.1 from Central

Prison, Visakhapatnam and on appearance of A.2 and on hearing both sides a charge under sec.8(c) r/w 20(b)(ii)(C) of N.D.P.S.Act 1985 as amended by Act 9 of 2001 was framed, read over and explained to them in their vernacular language and they pleaded not guilty to the said charge and claimed to be tried.

4.During the course of trial, on behalf of prosecution, P.Ws.1 and 2 were examined and Exs.P.1 to P.4 and M.Os.1 to 5 were marked. The prosecution has given up the evidence of L.W.2 Kuda Matyaraju, L.W.3 P.V. Ramana Murthy and L.W.4 C.

Haritha, Government chemical examiner.

5.After closure of the prosecution evidence, A.1 and A.2 were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances stated by the prosecution witnesses and they denied the prosecution evidence and A.1 stated that he came from Tirupathi to Araku as tourist, he has not seen doctor and he was not produced before the Magistrate immediately and he was implicated falsely and A.2 stated that while he was in the market, police took him and filed false case.

No evidence, either oral or documentary, was adduced on behalf of A.1 and A.2.

6.Prosecution examined only two witnesses i.e., Civil Assistant Surgeon,

Area Hospital, Paderu before whom the search and seizure was conducted and the investigating officer who conducted entire investigation and filed charge sheet. The rest of the listed witnesses were given up by the prosecution.

7.P.W.1 Dr.K. Venkata Krishna stated that on 21.8.2010 when the police requested him to act as mediator he went along with them to RTC complex at about 7.00 a.m., and when two male persons were trying to run away on seeing the police, police took them into their custody and he identified A.1 and A.2 present in the Court.

He further stated that both accused revealed their identity particulars and A.1 and A.2 were holding M.Os.1 to 4 in their hands. Police searched the bags in his presence and found ganja in four bags and police seized M.Os.1 to 4 in his presence under the cover of Ex.P.1 mediators report and he signed on it. Police also weighed the ganja with a balance and found 25 kgs., of ganja in the said four bags.

In the cross examination he stated that he has not seen the cloth bag which is available in M.O.2 bag on the day of raid. He further stated that one constable has written the identification slips and that Ex.P.1 was prepared at one Kirana shop near the scene of offence and police got weighed ganja through some person but he do not know the name.

8.P.W.2 P. Shobana Babu, S.I. of police, stated that on 28.1.2010 at about 6.00 a.m., on reliable information, he secured mediators P.W.1 and L.W.2 Kuda

Mutyaraju and proceeded to RTC complex along with mediators and staff and found two persons with black colour zip bag and two carry hand bags and on seeing them they tried to run away. P.W.2 identified A.1 and A.2 as those persons whom they have caught on the date of raid. On enquiry, A.1 and A.2 revealed their identity particulars and they stated that they were in possession of ganja. The bags were opened in the presence of P.W.1 and they found ganja in the form of flowers, buds, and stems in the said bags and the ganja was packed with a news paper and tied with a plastic bag. The said ganja was weighed in their presence and that A.1 was in possession of 14 kgs., in two bags and A.2 was in possession of 11 kgs., of ganja in two bags. They have also taken 100 grams of sample and made it into two equal parts, packed and sealed the samples in plastic covers, affixed punch slips to

M.Os.1 to 4 and on two sample packets. They prepared mediators report under

Ex.P.1 and thereafter took accused and seized ganja to the police station and registered a case against A.1 and A.2 in Cr.No.76/2010 under sec.20(b) of NDPS

Act and sent Ex.P.2 original FIR to the concerned officers. He also forwarded the samples to the RFSL, Visakhapantam through Ex.P.3 letter of advice. On receipt of

Ex.P.4 chemical analysis report and after completion of investigation, he filed charge sheet.

In the cross examination he stated that in mediators report it was mentioned that there was a black colour bag and a white colour carry bag but M.O.1 is a blue colour bag and that the sample is not in polythene cover.

9.In view of the above evidence, the point for consideration is :

Whether prosecution is able to prove the guilt of A.1 and A.2 for the charge Under sec.8(c) r/w 20(b)(ii)(C) of N.D.P.S Act, 1985 as amended by Act 9 of 2001 ?

10.POINT :

The case of the prosecution is that P.W.2 along with his staff and P.W.1 has seized 25 kgs., of ganja from both the accused. Prosecution has given up the evidence of L.W.2 Kuda Matyaraju, VRO for the reasons best known to them. Infact search is to be conducted in the presence of Gazetted officer but P.W.1 did not inform to the accused about his identity particulars and infact he has not searched ganja and simply stated that police searched the bags in is presence. He did not know the quantity of ganja seized from each of the accused. The evidence in the said aspects was given by P.W.2 S.I. of Police but not by P.W.1. P.W.1 further stated that he has not seen

M.O.2 at the time of seizure and that Ex.P.1 was prepared at kirana shop near the scene of offence. Though P.W.2 I.O., stated that they have seized 14 kgs., of ganja from A.1 and 11 kgs., of ganja from A.2, he has not specifically stated that he has collected samples from the ganja seized from them but simply stated that he took out 100 grams of sample and made it into two equal parts.

11.The learned defence counsel argued that the property seized from the accused is not produced before the Court for identification. Even P.W.2 admitted that

M.O.1 is a blue colour bag but as per the charge sheet they seized one black colour bag and two white colour carry bags from the accused but not blue colour bag. P.W.2 also stated that they have weighed the ganja with balance brought from the nearby Kirana shop and it is a spring balance. It was suggested to P.W.2 that it is not possible to weigh ganja below ½ kg., with a spring balance.

12.The counsel for the accused argued that the property produced before the

Court is not the same property and the sample seized is also not pertaining to the property seized from the accused. The search and seizure proceedings were conducted

before P.W.1 Gazetted officer but P.W.1 stated that though the proceedings were

conducted in his presence, he has not given the particulars of the quantity of ganja seized from each of the accused and the number of samples collected and that he has not even revealed his identity to the accused. Therefore, except the evidence of P.W.2 investigating officer, there is no other evidence before the Court to establish the guilt of the accused.

13.Considering the gravity of the allegations made against the accused, it is not safe to base the conviction relying upon the evidence of official witness P.W.2 alone. As the prosecution has failed to prove the guilt of A.1 and A.2 for the charge leveled against them beyond all reasonable doubt, the benefit of doubt is to be extended to the accused.

14.In the result, A.1 and A.2 are found not guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(C) of NDPS Act and they are acquitted u/sec. 235(1)Cr.P.C.

A.1 shall be set at liberty forthwith, if his detention is not required in any other case.

The bail bonds of A.2 shall stand cancelled and he shall be set at liberty forthwith.

M.Os.1 to 4 bags which are given for interim custody and M.O.5 sample packet shall be produced before the Superintendent, Proh. and Excise, Anakapalli, for disposal according to law after expiry of appeal time.

Dictated to Shorthand writer, transcribed by her, corrected and

pronounced by me in open Court, this the 16th day of July, 2012

SESSIONS JUDGE,

FAC SPECIAL JUDGE TO TRY OFFENCES UNDER

N.D.P.S ACT–CUM-METROPOLITAN SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witnesses Examined For ProsecutionFor Defence

P.W.1 :Dr.K.Venkata Krishna, Gazetted officerNIL P.W.2 :P. Shobana Babu, SI of Police

For Prosecution

Ex.P.1: 21.08.10 at 7.00 a.m., - Mediators report Ex.P.2: 21,08.10- FIR in Cr.No.76/2010 of Paderu P.S. Ex.P.3: 28.08.10 - Letter of advice Ex.P.4 : 09.09.10 - Chemical Analaysis reprot

For Defence NIL Material Objects marked

M.O.1 - Black and light blue colour Air bag containing ganja M.O.2 - Blue Rexene Air bag containing ganja M.O.3 - Violet colour wooden handle bag containing ganja M.O.4 - Brown Colour wooden handle bag containing ganja M.O.5 - Sample packet of ganja

SESSIONS JUDGE,

FAC SPL. JUDGE FOR NDPS CASES-CUM-MSJ, VSP.

1PDJ Court, Vsp MOP 60/2011

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

PRINCIPAL DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT:SMT. P.SREEESUDHA, B.COM.,M.L.,

CHAIRPERSON-MACT-CUM

DISTRICT JUDGE.

FRIDAY, THE SIXTEENTH DAY OF NOVEMBER, 2012

M.O.P.NO.60/2011

Between:

Kunjupalli Gopala Krishna, S/o Late Kunjupalli Hindu, aged 57 years, residing at D.No.6-61-10/1, Srinagar, Chinagantyada, Old Gajuwaka, Visakhapatnam. Petitioner And:

1. Korru Srinu, S/o Tatabbai, Hindu, aged 29 years, R/o Santhapalem, Anakapalli, Visakhapatnam,

2. Dandupati Ganga Raju, S/o Satya Rao, Hindu, Major, R/o D.No.1-35, Vooderu Village, Anakapalli, Vizag.

3. The New India Assurance Co. Ltd., rep. by its Divisional Manager, Dwarakanagar, Visakhapatnam.

Respondents

This petition has come up on 08.11.2012 before me for final hearing in the presence of Sri S.Surya Rao Advocate for the Petitioner; of Sri K.P.Naidu Advocate for the 3rd Respondent; the Respondents 1 and 2 having remained exparte; upon hearing their arguments; and the same having stood over for consideration till this day, this Court delivered the following

O R D E R

This petition is filed under Sec.166 of Motor Vehicles Act, by the petitioner claiming compensation of Rs.,00,000/- for the injuries and disability sustained by him in a motor vehicle accident occurred on 11.06.2009 involving the lorry bearing No. AP 31 Y 9179 belonging to the 2nd respondent, insured with the 3rd respondent and driven by the 1st respndent.

2PDJ Court, Vsp MOP 60/2011

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

The injured Kunjupalli Gopala Krishna, is aged 57 years, working as Tanker Body building mechanic in a mechanic shed at Gajuwaka and earning Rs.25,000/- per month. On 11.06.2009 at about 7.20 p.m., he was proceeding from Gajuwaka on his scooter bearing No.AP 31 AB 4964 and when he reached at Sheelanagar road, the lorry bearing No.AP 31 Y 9179 came in a rash and negligent manner at high speed and dashed the petitioner’s scooter, as a result, he fell on the road and sustained grievous injury to his right hand. Immediately he was shifted to K.G.Hospital in 108 ambulance. He underwent operation and his right hand was amputated upto the shoulder, thereby, he sustained permanent disability. The SHO, Malkapuram Traffic PS, registered a crime No.141/2009 u/s.338 of IPC against the 1st respondent, driver of the lorry. Due to the amputation of right hand upto shoulder level, the petitioner disabled permanently and he incurred huge medical expenses and lost his earning capacity. The respondents 1 to 3 are being the driver, owner and insurer, all are jointly and severally liable to pay compensation to the petitioner.

Thus, the petitioner sought compensation of Rs.8.00 lakhs from the respondents.

3.The respondents 1 and 2 remained exparte.

4.In a counter filed by the 3rd respondent-Insurance company, they denied the material allegations in the petition. Further they specifically disputed the manner in which the accident occurred, involvement of the crime lorry and holding a valid driving licence by the driver of the lorry at the time of accident. They further disputed the allegations with regard to the age, occupation and income of the petitoner at the time of accident, period of hospitalization etc. Finally, 3PDJ Court, Vsp MOP 60/2011 they contended that the compensation and rate of interest claimed by the petitioner is excessive and exorbitant and the rate of interest must be scale down at 7.5% p.a., and thus, they sought for dismissal of the petition.

5.Basing on the above pleadings, the following issues are framed by my learned Predecessor for trial:

1.Whether the accident resulted in the injuries of the petitioner due to rash and negligent driving of the 1 st respondent who is the Driver of the motor vehicle i.e., Goods Carriage HMV Lorry bearing Regn.No.AP 31 Y 9179?

2.Whether the petitioner is entitled to compensation as prayed for?

3.To what relief?

6.During the course of trial, on behalf of the petitioner PWs-1 to 4 are examined and Exs.A-1 to A-11 are marked on his behalf. The 3rd respondent did not adduce any evidence either oral or documentary except marking Ex.B-1 insurance policy by consent.

7.Heard both sides. The learned Counsels for respective parties advanced their arguments and filed their written arguments.

8.Issue No.1:

In this regard, the petitioner himself examined as PW-1 and reiterated the averments of petition in his evidence and Exs.A-1 to a- 11 are marked. Immediately after the accident, the statement of PW- 1 was recorded by the police and basing on the same, they filed a charge sheet against the 1st respondent. The petitioner stated that the accident was occurred due to rash and negligent driving of the 1st respondent. As against this evidence, the respondents did not adduce any evidence challenging the version of the petitioner that the accident occurred due to rash and negligent driving of the 1st respondent and sustained grievous injuries. Though the 3rd respondent cross- 4PDJ Court, Vsp MOP 60/2011 examined PW-1, nothing could be elicited to discard his trustworthiness. Therefore, in the absence of production of contrary evidence by the respondents, considering the testimony of PW-1 coupled with documentary evidence, this Tribunal feels that the accident occurred due to rash and negligent driving of the driver of the lorry in which the petitioner sustained grievous injuries. Thus, this issue is answered accordingly.

9.Issue No.2: -

In this regard, though PW-1 claimed that he sustained injuries in the accident and in support of his contention, he filed Ex.A-3 Wound certificate and it was described therein that the petitioner sustained crush injury on right upper limb and laceration of skin about 15 cm., and both the injuries are grievious in nature. To substantiate the same, petitioner also examined PW-4 Professor Orthopeadic, KG

Hosital, who treated him. PW-4 deposed that the petitioner was admitted in their hospital on 11.06.2009 with a crush injury of right upper limb and he was treated by above elbow amputation and he issued Ex.A-9 disability certificate assessing the disability at 85% which is total and permanent. He also deposed that the petitioner can have an artificial limb and it depends upon the quality of limb and approximately costs Rs.50,000/- to Rs.1.00 lakh. In his cross- examination, it was elicited that the remaining stump from the shoulder of right limb is 5 to 10 inches. He denied the suggestion that it is a schedule injury comes under WC Act and the disability only 30% but he assessed excessively. However, PW-4 categorically deposed that he followed the guidelines of ALIMCO (Artificial Limb

Manufacturing Company Act).

10.With regard to the occupation and loss of earnings of the petitioner, he claimed that he is running Tanker Body Building

Mechanic shed at Gajuwaka and used to earn Rs.25,000/- per month.

5PDJ Court, Vsp MOP 60/2011

In order to prove the said contention, he examined PWs-3 and 4 who are working as welders in the mechanic shed of

PW-1 and they deposed in their evidence that PW-1 used to pay

Rs.6,000/- per month to them as salary. Here it may be noted that as

PWs-2 and 3 are working under the employment of PW-1, they supposed to depose according to wish of their employer, therefore, their evidence cannot be taken into consideration. PW-1 also filed

Ex.A-11 showing the Industrial Registration Certificate issued in the name of M/s.KGK namakkal Body building, in support of his contention. Though the petitioner established that he was running a mechanic shop, there is no proof regarding his income. Admittedly, the petitioner is aged 55 years as on the date of accident. Considering the age and occupation of the petitioner and in the absence of contrary evidence by the respondent, this court can safely be presumed the annual income of the petitioner as Rs.40,000/-. As per II Schedule of the M.V.Act, the appropriate multiple for the age of the petitioner is “11” and according to the schedule, if such is the case, as the petitioner sustained disability at 85% which is total and permanent, he is entitled to a sum of Rs.3,74,000/- (i.e., 40000 x 11 = 4,40,000/- x 85% = 3,74,000/-) (Rupees three lakhs seventy four thousand only) towards compensation for the disability sustained by him.

11. In this regard, the learned counsel for the petitioner relied on a decision in Govind Yadav …Appellant Vs. New India Assurance

Co., Ltd.,…Respondent reported in IV (2011) ACC 668 (Supreme Court) wherein the Hon’ble Apex Court held that ‘if victim of accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for physical injury and treatment, but also for loss of earnings and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for 6PDJ Court, Vsp MOP 60/2011 disability caused due to the accident. It is pertinent to note here that

PW-4 testified in his evidence that the petitioner can have an artificial limb and it depends upon the quality of limb and its approximate cost is Rs.50,000/- to Rs.1.00 lakh but no piece of evidence is produced to substantiate the said fact... Therefore, considering the facts and circumstances of the case, this court feels that it is just and reasonable to grant an sum of Rs.30,000/- (Rupees thirty thousand only) towards cost of artificial limb and a sum of Rs.10,000/- (Rupees ten thousand only) towards pain and suffering and a sum of

Rs.10,000/- (Rupees ten thousand only) towards loss of amenities and enjoyment and Rs.6,000/- (Rupees six thousand only) towards transportation and other incidental expenses to the petitioner to meet the ends of justice.

12. Here it may be stated that in support of the contentions of both parties, the learned counsel for the petitioner as well as learned counsel for the 2nd respondent-Insurance company filed their written arguments. The learned counsel for the petitioner vehemently argued the 2nd respondent is the owner of the lorry driven by the 1st respondent, as such, he is vicariously liable for the acts of the driver.

It is further argued that the crime vehicle was duly insured with the 3rd respondent at the time of accident and as per Ex.A-6 as well as Ex.B-1 i.e., insurance policy shows the policy was in force on the date of occurrence. Admittedly the 3rd respondent neither dispute the accident and nor the insurance of the lorry and they failed to adduce any evidence. Therefore, it clearly shows the respondents failed to discharge their burden cast upon them, as such, they cannot exonerated from paying the compensation to the petitioner.

Therefore, the 3rd respondent as insurer of the lorry in question, it has to indemnify the liability of the 2nd respondent. Therefore, the respondents 1 to 3 are jointly and severally liable to pay compensation 7PDJ Court, Vsp MOP 60/2011 to the petitioner with proportionate costs and subsequent interest at 7.5% per annum from the date of filing of petition till the date of realization. Hence, this issue is decided accordingly.

13.Issue No.3;-

In the result, this petition is partly allowed awarding a sum of

Rs.4,30,000/- (Rupees four lakhs thirty thousand only)towards compensation to the petitioner with proportionate costs and subsequent interest at 7.5% p.a from the date of petition till the date of realization. The respondents 1 to 3 are jointly and severally liable to pay the above said compensation amount to the petitioner, however, the 3rd respondent-Insurance company is directed to deposit the above said amount at within one month from the date of this

Award. On deposit, an amount of Rs.2,00,000/- (Rupees two lakhs only) shall be kept in Fixed Deposit in the name of the petitioner in State Bank Hyderabad, District Court Branch, Visakhapatnam, for a period of one year and he is permitted to withdraw the remaining compensation amount together with accrued interest and costs. The rest of the claim of the petitioner is dismissed without costs.

Advocate’s fee is fixed at Rs.4,000/- (Rupees four thousand only).

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in Open court on this the 16th day of November,

2012.

DISTRICT JUDGE,

Cum-The Chairperson, MACT

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONER: RESPONDENTS:

P.W.1: Kunjupalli Gopala KrishnaNONE P.W.2: S.Appala Raju P.W.3: P.Venkata Rao P.W.4: Dr. M.Eswara Babu 8PDJ Court, Vsp MOP 60/2011

DOCUMENTS MARKED FOR

PETITIONERS:

Ex.A.1: True Copy of FIR in Cr.No.141/2009, dated 11.6.2009

Ex.A.2: True Copy of Rough Sketch

Ex.A.3: True Copy of Wound Certificate, dated 14.7.2009

Ex.A.4: True Copy of MVI Report

Ex.A.5: True Copy of Charge Sheet

Ex.A.6: Xerox copy of Policy

Ex.A.7: Xerox Copy of Driving Licence of R.1

Ex.A.8: Xerox Copy of Certificate of Registration

Ex.A.9: Disability Certificate

Ex.A.10: Xerox copy of Driving Licence of Petitioner

Ex.A.10: Personal Safety & Responsibilities Certificate, dt.24.5.2006

Ex.A.11: Xerox Copy of Industry Registration Certificate

For Respondents:

Ex.B.1: Copy of Insurance Policy issued by New India Assurance Co.Ltd.

PDJ::VSP 9PDJ Court, Vsp MOP 60/2011 10PDJ Court, Vsp MOP 60/2011

1PDJ Court, Vsp MOP 688/2010

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL CUM

PRINCIPAL DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT:SMT. P.SREEESUDHA, B.COM.,M.L.,

CHAIRPERSON-MACT-CUM

DISTRICT JUDGE.

FRIDAY, THE SIXTEENTH DAY OF NOVEMBER, 2012

M.O.P.NO.688/2010

Between:

Raksha Khaitan, D/o C.K.Khaitan, aged 28 years, r/o 10-50-43, Khaitan Nikethan, Main Road, Waltair Uplands, Visakhapatnam. Petitioner And:

1. B.Sashidhar, S/o Dattatreyulu, Hindu, aged 42 years, r/o 49-32-6/E, Ramakrishna Nagar, Akkayyapalem, Visakhapatnam – 530 016.

2. Reliance General Insurance Co. Ltd., 403, Eswar Paradise, Dwarakanagar, Main Road, Visakhapatnam.

3. B.Jagga Rao, S/o not known to the Petitioner, C/o RVK Naidu, 29-14-45, Viswanadham Road, Opposite Vinayaka Temple, Visakhapatnam.

Respondents

This petition has come up on 02.11.2012 before me for final hearing in the presence of Sri V.S.N.Sastry, Advocate for the Petitioner; of Sri R.V.K.Naidu, Advocate for the Respondents 1 and 3; ofSriS.Moinuddin,Advocateforthe2nd Respondent; upon hearing their arguments; and the same having stood over for consideration till this day, this Court delivered the following

O R D E R

This petition is filed under Sec.166 of Motor Vehicles Act, by the petitioner claiming compensation of Rs.5,00,000/- for the injuries and disability sustained by her in a motor vehicle accident occurred on 10.50.43 involving the Tata Indica Car bearing No. AP 31

Y 0456 belonging to the 1st respondent, insured with the 2nd respondent and insured by the 3rd respondent.

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

2PDJ Court, Vsp MOP 688/2010

The injured Raksha Khaitan, D/o. Khaitan, aged 28 years, working as Assistant Manager, Study Overseas Education consultancy, and earning Rs.26,796/- per month. On 14.06.2009 at about 2.00 p.m., the petitioner proceeding on her motor cycle bearing No.AP 31

AM 9427 from Gollalapalem towards Seven Hills Hospital, the 1st respondent driver of the Car bearing No.AP 31 Y 0456 came in a rash and negligent manner and suddenly took a right turn and dashed the petitioner as a result, she fell down and sustained grievous injuries.

Immediately she was shifted to Seven Hills Hospital for treatment. The

SHO, II Town Traffic Police, registered a crime No.74/2009 u/s.338 of

IPC against the 1st respondent. Due to accident, she was bed ridden for three months and incurred huge medical expenses apart from loss of earnings and sustained disability. The 1st respondent being the driver-cum- owner of car and the 2nd respondent as insurer and the 3rd respondent insured are all jointly and severally liable to pay compensation to the petitioner. Thus, the petitioner sought compensation of Rs.5.00 lakhs from the respondents for the injuries and disability sustained by her in the above accident.

3.Though the 1st and 3rd respondent engaged counsel, they did not file their counter inspite of sufficient time granted, thus, their right of filing the counter is forfeited.

4.In a counter filed by the 2nd respondent-Insurance company, they denied the material allegations in the petition. Further they specifically disputed the manner in which the accident occurred, involvement of the Car in the above accident and holding a valid driving licence by the driver of the car at the time of accident. They further disputed the allegations with regard to the age, occupation and income of the petitioner at the time of accident, period of hospitalization, incurring medical expenses and loss of earnings.

3PDJ Court, Vsp MOP 688/2010

Finally, they contended that the compensation and rate of interest claimed by the petitioner is excessive and exorbitant and the rate of interest must be scale down at 7.5% p.a., and thus, they sought for dismissal of the petition.

5.Basing on the above pleadings, the following issues are framed by my learned Predecessor for trial:

1.Whether the petitioner sustained injuries in the road accident occurred due to rash and negligent driving of the Car bearing Regn.No.AP 31 Y 0456?

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

3.To what relief?

6.During the course of trial, on behalf of the petitioner PWs-1 to 3 are examined and Exs.A-1 to A-12 are marked. The respondents did not let-in any evidence either oral or documentary and reported no evidence.

7.Heard both sides.

8.Issue No.1:

In this regard, the petitioner herself examined as PW-1 and reiterated the averments of petition in her evidence and exhibited

Exs.A-1 to A-12. Immediately after the accident, the statement of

PW-1 was recorded by the police and she stated that the accident was occurred due to rash and negligent driving of the 1st respondent. A perusal of Ex.A-1 shows that the driver of the car suddenly took a right turn and dashed the petitioner, resulting she fell on the road and sustained multiple injuries. Basing on her statement, the II Town police registered a crime and filed charge sheet against the 1st respondent. Though the 2nd respondent contended in their counter 4PDJ Court, Vsp MOP 688/2010 that there is a contributory negligence on the part of the petitioner, they did not let-in any evidence either oral or documentary evidence to buttress their contention. Though PW-1 was cross-examined by the 2nd respondent nothing could be elicited to discard her trustworthiness.

Therefore, in the absence of production of contrary evidence by the respondents, considering the testimony of PW-1coupled with documentary evidence, this Tribunal feels that the accident was occurred due to rash and negligent driving of the driver of the Car, the accident occurred, in which, the petitioner sustained injuries. Thus, this issue is answered accordingly.

9.Issue No.2: -

In this regard, PW-1 claimed that she sustained grievious injuries on her left hip and left thigh and also other severe injuries all over the body. In order to prove the said contention, she examined

Dr.K.Gopikrishna, Consultant Orthopaedic surgeon, Seven Hills

Hospital as PW-2 and he testified that he examined the petitioner on 30.11.2011 and assessed her disability at 40% functional disability and he issued Ex.A-12 disability certificate. PW-1 also examined

Dr.J.M.Shah, as PW-3 and he deposed that the petitioner admitted in their hospital on 14.06.2009 and discharged on 22.06.2009 and she was operated on 16.06.2009. He deposed that she sustained injury to her left hip joint and X-ray shows inter-trochanteric Fracture left femur and he assessed disability 40% and he advised physiotherapy and she was attending regularly follow-up treatment. He further deposed that normally, it takes 6 to 8 months for the fracture to heal and for recovery of joint and fracture, it can take more time and it can take 1 to 2 years for recovery. When coming to his cross-examination, he stated that medical board is competent to issue the disability certificates.

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10.The petitioner claimed that she incurred medical expenses for a sum of Rs.1,54,582/- towards treatment and In order to prove the same, she filed Ex.A-5 medical bills worth Rs.62, 982/- and another bill Ex.A-6 worth Rs.27,080/- to be incurred for removal of implants after one and half years. Though, the petitioner claimed that he was aged 28 years and working as Assistant Manager in Study Overseas

Education Consultancy, since 3 years and earning Rs.26,796/- p.m., no piece of evidence is adduced to buttress her contention.

Admittedly, she sustained fracture injuries in the accident and sustained 40% of functional disability. Therefore, considering the age and occupation of the petitioner, it is reasonable to expect, the petitioner can easily earn Rs.40,000/- per annum. As per II Schedule of the M.V.Act, the appropriate multiple for the age of the petitioner is “18” and if such is the case, as the petitioner sustained disability at 40% which is functional disability, she is entitled to a sum of

Rs.2,88,000/- (i.e., 40000 x 18 = 7,20,000/- x 40% =

2,88,000/-) (Rupees two lakhs eighty eight thousand only) towards compensation for the disability sustained by her.

11. In this context, it is pertinent to rely on a decision in Govind

Yadav …Appellant Vs. New India Assurance Co., Ltd.,…

Respondent reported in IV (2011) ACC 668 (Supreme Court) wherein the Hon’ble Apex Court held that ‘if victim of accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for physical injury and treatment, but also for loss of earnings and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for disability caused due to the accident. Admittedly, a perusal of Ex.A-6 shows that the petitioner has to undergo another survey for removal of implants for the same she has to incur an estimated cost of 6PDJ Court, Vsp MOP 688/2010

Rs.27,080/- as certified by the doctor who treated her. As per the evidence of PW-3, the petitioner requires another survey.

12.Therefore, considering the facts and circumstances of the case, this court feels that it is just and reasonable to grant an sum of

Rs.50,000/- (Rupees fifty thousand only) towards future medical expenses for removal of implants and a sum of Rs.20,000/- (Rupees twenty thousand only) towards pain and suffering and a sumof

Rs.20,000/- (Rupees twenty thousand only) towards loss of amenities and enjoyment of life and a sum of Rs.,62,982/- (Rupees sixty two thousand nine hundred and eighty two only) towards medical expenses and a sum of Rs.9,000/- (Rupees nine thousand only) towards loss of earnings to the petitioner.In total, this Tribunal is awarding a sum of Rs.4,49,982/- (Rupees four lakhs forty nine thousand nine hundred and eighty two only) towards compensation to the petitioner to meet the ends of justice.

13. The learned counsel for the petitioner vehemently argued the 1st respondent is the driver-cum-owner of the car which is duly insured with the 2nd respondent at the time of accident under Ex.A-3 insurance policy and the same in existence on the date of occurrence. Though the policy was in the name of 3rd respondent, admittedly the 2nd respondent neither dispute the accident and nor the insurance of the car and they failed to adduce any evidence. Therefore, it clearly shows the 2nd respondents failed to discharge their burden cast upon them, as such, they cannot exonerated from paying the compensation to the petitioner. Therefore, 1st respondent, being the driver-cum- owner of the car and the 2nd respondent as insurer, it has to indemnify the liability of the respondents 1 and 2. Therefore, the respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner with proportionate costs and subsequent interest at 7.5% 7PDJ Court, Vsp MOP 688/2010 per annum from the date of filing of petition till the date of realization.

Hence, this issue is decided accordingly.

14.Issue No.3;-

In the result, this petition is partly allowed awarding a sum of

Rs.4,49,982/- (Rupees four lakhs forty nine thousand nine hundred eighty two only)towards compensation to the petitioner with proportionate costs and subsequent interest at 7.5% p.a from the date of petition till the date of realization. The respondents 1 to 3 are jointly and severally liable to pay the above said compensation amount to the petitioner, however, the 2nd respondent is directed to deposit the above said amount within one month from the date of this Award.

Out of the compensation amount, an amount of Rs.2,00,000/- (Rupees two lakhs only) shall be kept in Fixed Deposit in the name of the petitioner in State Bank of Hyderabad, Dist. Court Branch,

Visakhapatnam, for a period of one year and she is permitted to withdraw the remaining compensation amount together with accrued interest and costs. The rest of the claim of the petitioner is dismissed without costs. Advocate’s fee is fixed at Rs.4,000/- (Rupees four thousand only).

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in Open court on this the 16th day of November,

2012.

DISTRICT JUDGE-Cum-

Chairperson,MACT,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONER: RESPONDENTS:

P.W.1: Raksha KhaitanNONE P.W.2: Dr. K.Gopi Krishna P.W.3: Dr. J.M.Shah 8PDJ Court, Vsp MOP 688/2010

DOCUMENTS MARKED FOR

PETITIONER:

Ex.A.1: True Copy of FIR in Cr.No.74/2009, dated 15.6.2009

Ex.A.2: True Copy of Wound Certificate, dated 9.7.2009

Ex.A.3: True Copy of Insurance Policy

Ex.A.4: True Copy of M.V.I.Report

Ex.A.5: Bunch of Medical Bills

Ex.A.6: Estimated Bill for Rs.27,080/-

Ex.A.7: True copy of Driving Licence

Ex.A.8: True Copy of Permit for AP 31 Y 0456

Ex.A.9: True Copy of Certificate of Registration

Ex.A.10: True Copy of Charge Sheet in Cr.No.74/2009

Ex.A.11: Bunch of Bills from Sampath Sai Physiocare

Ex.A.12: Disability Certificate

For Respondents:

NIL

DISTRICT JUDGE-Cum-

Chairperson,MACT,

VISAKHAPATNAM.

9PDJ Court, Vsp MOP 688/2010 10PDJ Court, Vsp MOP 688/2010