Smt P.Venkata Jyothirmai

1 4IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE :: EAST GODAVARI AT

RAJAMAHENDRAVARAM.

Present: Smt P.Venkata Jyothirmai,

Principal District Judge,

Wednesday, the 25th day of January, 2023

A.S.NO.15/2020

Between:

Saka Satyanarayanamma...Appellant/defendant

AND

Garagaparthi Krishna Priya...Respondent/defendant

Appeal preferred against Judgment and decree in O.S.No.266/2017 dated 28.3.2019 on the file of Senior Civil Judge, Ramachandrapuram

Between:

Garagaparthi Krishna Priya...Plaintiff.

AND

Saka Satyanarayanamma...Defendant.

This appeal coming before me on 10.11.2022 for final hearing in the presence of Sri V.V.S.N.Murthy, Advocate for appellant and Sri S.V.R.R, Advocate

for respondent and having stood over for consideration till this day, this Court

delivered the following:

J U D G M E N T

1.This appeal is carried on by the defendant against the impugned judgment in O.S.No.266/2017 dated 28.3.2019 on the file of Senior Civil Judge,

Ramachandrapuram.

2.The appellant herein was the defendant. The respondent herein was the plaintiff before the trial court. For the sake of convenience, the parties will be referred as they are arrayed in the trial court.

3.The case of the plaintiff, in brief, is:-

i) The suit is filed for recovery of amount of Rs.12,56,981/- due under mortgage deed along with interest and costs.

2 ii) The defendant and her deceased mother Matta Verayamma jointly borrowed a sum of Rs.2,50,000/- from the plaintiff by executing a unpossessory mortgage deed on 1.8.2011, agreeing to repay the debt amount with interest at the rate of 30% p.a. The defendant agreed to repay the debt in two equal installments within two years along with subsequent interest accurred thereon. The defendant's mother died on 27.12.2014.

iii) The defendant further agreed that if she failed to pay the amount within the time fixed, she will pay the amount along with interest at the rate of 30% p.a. yearly compound interest against the mortgaged property and personally.

iv) The defendant did not pay the amount to discharge the mortgage debt inspite of repeated demands made by the plaintiff. The plaintiff got issued a legal notice on 27.12.2014 demanding her to pay the amount.

The defendant did not choose to pay the amount or give any reply.

4.The case of the defendant is that, she does not know the plaintiff.

There is no contractual relationship in between the plaintiff and defendant.

She has no necessity to borrow the amount. The thumb impressions on the mortgage deed are rank forged one. The mortgage deed is not supported by consideration. Sought for dismissal of the suit with costs.

5.Basing on the pleadings of both parties, the following issues were framed by the trial court:-

1. Whether the plaintiff is entitled for preliminary decree as prayed for?

2. Whether the suit mortgage deed is true, valid and binding on the defendant?

3. To what relief?

6.Trial went on. On behalf of plaintiff, PW.1 and PW.2 were the witnesses examined and Ex.A1 to Ex.A3 were the documents marked. On behalf of defendant, she herself was examined as DW.1 and no documents marked.

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7.After hearing both counsel and on appreciation of evidence on record, the learned Trail Judge decreed the suit for a sum of Rs.12,56,981/- with costs and subsequent interest on the principal amount of Rs.2,50,000/- at 12% p.a. from the date of filing of the suit till the date of decree and thereafter at 6% p.a. till realisation by passing preliminary decree entitling the plaintiff to bring the schedule property for sale, if the defendant failed to pay the decree amount within three months, from the date of decree. Further, in the event of mortgage schedule property being put to sale under final decree, and the sale proceeds are not sufficient to meet the decretal amount and the amount still remains and unpaid, then for such balance amount, the plaintiff is at liberty to proceed against the defendant personally.

8.Being aggrieved by the impugned Judgment and decree, the defendant preferred the present appeal on the grounds that, the learned Trial

Judge failed to appreciate the evidence in right perspective. Though the

defendant denied the thumb impression on the mortgage deed, the plaintiff failed to take any steps to prove the execution of mortgage deed. Ex.A1 is not supported by consideration. It is obtained under misrepresentation and fraud.

The suit claim clearly shows the interest is five times than the principal amount. The learned Trial Judge failed to observe the provisions of Usurious

Loans Act. The suit claim ought to have either reduced or modified by applying the principles of interest Act. The interest claimed is 30% per annum yearly compound, which directly attracts the provisions of Usurious Loans Act, which is liable to be scaled down. Prays to allow the appeal.

9.Heard both counsel.

10.Now the points that would emerge for determination are:-

01.Whether the plaintiff is entitled for preliminary decree as prayed for?

02.Whether the plaintiff claimed exorbitant rate of interest, if so, it can be reduced?

03.Whether the impugned Judgment and decree is sustainable on facts and law or any interference is warranted in appeal?

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11.This Court being the first appellate court i.e. the last court of fact finding, for better appreciation, has gone through the pleadings, evidence and the other material on record. This court feels that it is not necessary to reproduce the evidence. This Court will refer the evidence as and when necessary to the extent required in the judgment.

POINTs:-

12.The learned counsel for the plaintiff would submit that the defendant and her deceased mother Matta Verayamma jointly borrowed a sum of Rs.2,50,000/- from the plaintiff by executing a unpossessory mortgage deed on 1.8.2011, which is registered before Sub Registrar, Ramachandrapuram agreeing to repay the debt amount with interest at the rate of 30% p.a. The defendant agreed to repay the debt in two equal installments within two years.

The mother of the defendant died on 27.12.2014. There is clause that, if the the defendant failed to pay the amount within the time fixed, she has to pay the amount along with interest at the rate of 30% p.a. yearly compound interest against the mortgaged property.

13.The learned counsel for the defendant would submit that, the rate of interest claimed is very exorbitant and it has to be scaled down by applying the interest Act.

14. The plaintiff as PW.1 filed her chief examination affidavit in replica to the averments made in the plaint. In the cross examination, she stated that, she lent amount to the Saka Satyanarayanamma and Matta Verayyamma, but

Veerayamma died. She filed suit against the defendant. The defendant and

Verayamma are mother and daughter. Veerayamma has no male issues. The plaint schedule property pertaining to Matta Verayamma. She lent amount of

Rs.2,50,000/- to defendant and her mother on 1.8.2011. The defendant and her mother only brought the attestors. The rate of interest is 30% p.a. and it is a compounding interest. The defendant failed to pay any amount in order to 5 discharge mortgage debt under Ex.A1. She got issued a notice to the defendant.

15.PW.2 is the scribe of Ex.A1 mortgage deed, who supported the case of plaintiff in all material aspects. In the cross examination, he stated that, at the time of Ex.A1 mortgage deed, plaintiff, defendant and attestors were present. The schedule property of Ex.A1 is pertaining to defendant and her mother. He placed Ex.A1 mortgage deed before the Registrar for registration.

16.The defendant examined as DW.1 and she filed her chief examination affidavit in replica to the averments of her written statement. In the cross examination, she stated that, her mother's name is Matta

Veerayamma. She has not mortgaged the property to anybody. She has not visited the sub registrar office to execute Ex.A1. She cannot identify the photographs on Ex.A1. She flatly denied that the plaint schedule property is under the mortgage.

17.Ex.A1 is registered unpossessory mortgage deed dated 1.8.2011 executed by the defendant and her mother in favour of plaintiff. It was registered before Sub Registrar Office, Ramachandrapuram. The evidence of

PW.1 and PW.2 is very consistent and cogent in respect of lending of amount to the defendant and her mother and execution of Ex.A1 mortgage deed by them after receiving consideration.

18.The defendant contended that, the rate of interest is exorbitant and excessive and it has to be scaled down by applying the provisions of

Interest Act.

19.The evidence on record is clear as to borrowing loan, execution of mortgage deed and its registration, touching the defendant’s liability. Thus, the material point for consideration in this appeal as to the claim of interest is excessive and exorbitant which brooks interference of this court.

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20.In Bhupalem Balasubbrayudu Vs. Darisa Narasimhaiah and 27 others 1, the Hon'ble High Court of Judicature at Hyderabad for the state of

Telangana and the state of Andhra Pradesh

It is a case where the appellant Bhupalem Balasubbarayudu filed a suit against the defendants for recovery of money based on a registered mortgage. The defendant agreed to repay the debt amount with interest at 18% p.a. at the end of every month, in default to pay interest on interest.

Defendant No.1 mortgaged the schedule property and executed a registered simple mortgage. Thereafter, defendant Nos.2 to 10 purchased the mortgaged property under a sale deed subject to discharge him the mortgage debt. The written statement filed to the effect that, the interest at the rate of 18% p.a. is usurious. An issue has been framed before the Trial Court. The Trial Court held that, the plaintiff is not entitled to interest on interest or penal interest. The

Court passed a decree with future interest at the rate of 18% p.a. and 6% p.a.

from the date of redemption till realization. The scaling down of interest is challenged in the appeal before the Hon'ble High Court, wherein at paragraph

No.14, after discussing all the relevant cases on the subject, it was observed that:-

Para 14:- "Therefore, on a review of all the cases on this subject, which are cited across the bar, the conclusions that emerge are

a) there is no hard and fast rule to state whether a particular rate of interest is excessive or not; b) the sanctity of an agreement is also an important factor and c) the mere fact that there is an agreement does not prevent this Court from examining the nature of the interest being charged. The heading of Section 3 of the Usurious Loans Act clearly starts with the non-obstante clause 'notwithstanding anything'. Therefore, the mere fact that there is an agreement will not preclude this Court from examining whether the terms and conditions impact the interest claim excessive or not"

In K.V. Satyanarayana Vs. State Bank2 at paragraph No.41 observed as follows:- 1(2018) 6 ALT 242 2AIR 1975 AP 113 (DB) 7 "41. It is unnecessary to refer to the entire case law on the point as the section has been recently construed in a recent judgment

dated 5-8-1970 of this court in Godugula Lakshmi Narasimha

Murty v. Muthukumalli Venkata Subba Rao, ( L. P. A. No. 69/ 1968 (Andh Pra)). After considering the relevant case law on the point, the position was summarised as follows :-- (1) The Court can reopen the transaction and give appropriate relief in the matter of interest when the transaction is substantially unfair; (2) If the interest is excessive, the court shall presume that the transaction is substantially unfair, but this is a rebuttable presumption; (3) No hard and fast rule can be laid down as to what is a reasonable or excessive rate without reference to the several circumstances enumerated in Clauses (a), (b) and

(c) of Sub-section (2) of Section 3 of the Act. (4) In determining whether the rate is reasonable or not, the court has to take into consideration the following circumstances.

(a) The value of the security offered;

(b) The financial condition of the debtor including the result of any prior transaction;

(c) The known or probable risks in getting repayment;

(d) If compound interest was provided for the frequency of the period of calculation of the interest;

and

(e) The advantage which the debtor reasonably expected to derive from the transaction."

Needless to say that, the question as to rate of interest is penal, excessive and high, is a question of fact. It depends on facts and circumstances of each and every case.

In Sethamal & Company Vs. Sri Laxmi Paradise3, while referring the amendment laid to section 3 of Usurious Loans Act 1918 by state of Madras under Act 8 of 1937, the same amendment was made applicable to the State of Andhra Pradesh under Act 24 of 1961. The explanation to Section 3 is also referred.

Explanation: "Interest may of itself be sufficient evidence that the transaction was substantially unfair".

31999 (5) ALT 186 8

The Court opined that interest by itself can be presumed to be unfair and that the creditor can prove the special circumstances to justify the rate of interest. There is no hard and fast rule with reference to which rate of interest can be said to be excessive and ultimately concluded that it is a matter of fact to be decided in each case.

On reviewing all the cases on the subject, in Bhupalem

Balasubbrayudu's case, it was held that, the claim of interest at the rate of 18% p.a. is not usurious, since the person who borrowed the mortgage debt and sold away the mortgaged property to defendant Nos.2 to 10, they have purchased the property unconditionally, now cannot claim benefits stating that the interest claim is per se usurious. The Court further held that, the defendants failed to discharge the burden cast upon them to establish that the interest claim is usurious or penal.

In N.M.Veerappa Vs. Canara Bank 4 , the Hon'ble Supreme Court held that:- ".......(b) But after the 1929 Amendment, because of the words used in the main part of Order 34 Rule 11, namely that " the Court may order payment of interest" it is no longer obligatory on the part of the Court while passing preliminary decree to require payment at the contract rate of interest from date of suit till the date fixed in the preliminary decree for payment of the amount. It had been so held in Jaigobind's Case by the Privy Council [AIR 1940 FC 20] and by this Court in S.P.Majoo's Case [1969 (3) SCR 33] that the new provision gives a certain amount of discretion to the Court so far as pendente lite interest is concerned and subsequent interest is concerned.

(C) It is no longer obligatory to award the contractual rate after date of suit and upto date fixed for redemption as above stated even though there was no question of the contractual rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.

(d) Even if the Court otherwise wants to award interest, the position after the 1929 and 1956 Amendments is that the Court has discretion to fix interest from date of suit under Order 34 Rule 11 (a)

(i) upto date fixed for payment in the preliminary decree, the same rate agreed in the contract, or, if no rate is so fixed, such rate as the Court deems reasonable - on the principal amount found or declared due on the mortgagor is concerned.

(e) The Court has also power to award from date of suit under Order 34 Rule 11 (a) (iii) a rate of interest on costs, charges and expenses as per the contract rate or failing such rate, at a rate no exceeding

65. This is the position of the discretionary power of the Court, from date of suit upto date fixed in the preliminary decree as the date for 4 AIR 1998 SC 1101 9 payment.

(f) Again under Order 34 Rule 11 (b) so far as the period after the date fixed for payment is concerned, the Court, even if it wants to exercise its discretion to award interest upto date of realization or actual payment, on the aggregate sums specified in clause (a) of Order 34 Rule 11 could award interest at such rate as it deemed reasonable".

"In the present case before us, the trial Court has gone into the facts and stated that the contract rate was not to be granted and that as the Court had discretion to grant interest, it was granting interest only at 6% simple form date of suit. The Court followed State Bank of Mysore vs. G.P.Thulasi Bai [ILR 1985 Karn. 2976]. In that case, Jagannatha Shetty, J.(as he then was), specking for the Bench, observed, referring to S.P.Majoo vs. Gangadhar [1969 (3) SCR 33] in which this Court referred to the Privy Council decision of 1927 and the Federal Court's decision of 1940, the at it was not longer obligatory on the part of the Court to award the contractual rate, even if the rate was not penal, excessive or substantially unfair. In that Karnataka case too, the trial Judge's award at 6% per annum simple from date of suit till date of realization was affirmed. Unfortunately, the learned Single Judge of the High Court, in the present case before us, though he referred to the above Division Bench Judgment, still said that Section 34 CPC was applicable. This was obviously wrong and contrary to the decisions of this Court and of the Karnataka High Court".

Coming to the present case, the defendant executed Ex.A1 mortgage deed in favour of plaintiff after agreeing the terms and conditions.

The defendant neither pleaded nor placed any evidence on record to buttress their contention that the interest claim is usurious. On perusal of mortgage deed would show that the amount borrowed by the defendant is Rs.2,50,000/- on 1.8.2011 and did not pay even part payment as agreed to discharge the debt. Hence, the intervention of this court in the agreement between the parties is not justifiable under law. However, the interest granted from the date of filing of the suit till the date of realization is the discretion of the court.

So, it is reduced to 6% per annum from the date of suit till the date of realization on the principal amount of Rs.2,50,000/-. Accordingly, the points are answered.

21.In the result, the appeal is partly allowed.

1. The preliminary decree passed in O.S.No.266/2017 dated 28.3.2019 on the file of Senior Civil Judge, Ramachandrapuram for

Rs.12,56,981/- is hereby confirmed; 10

2. The subsequent interest granted by the Trial Court at rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till the date of realization is hereby modified to 6% per annum from the date of suit till the date of realization on the principal amount of Rs.2,50,000/-.

3. The rest of the reliefs granted by the Trial Court are hereby confirmed;

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court on this 25th day of January, 2023.

Sd/- P. Venkata Jyothirmai.

PRINCIPAL DISTRICT JUDGE,

RAJAMAHENDRAVARAM.

1

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL

(DISTRICT JUDGE) AT RAJAMAHENDRAVARAM.

Present:- Smt P.Venkata Jyothirmai, Chairman, Motor Vehicle Claims Tribunal -cum-Principal District Judge, Rajamahendravaram.

Wednesday, the 25th day of January, 2023.

M.V.O.P.NO.143/2019

Between:-

1. Angara Kasulamma.

2. Angara Vasu

3. Angara Lalitha Devi

4. Angara Satyavathi (Died)...Petitioners.

AND

1. Devisetty Bulli Naga Dora

2. Iffco-Tokio General Insurance Co. Ltd.,..Respondents.

This petition coming on this day before me on 17.1.2023 for hearing in the presence of Smt K.Vara Lakshmi, Advocate for petitioner and of Sri G.Satish Kumar, Advocate for 1st respondent; Sri DSRKVV Srinivasa Rao, Advocate for 2nd respondent; and having stood over till this day for consideration, this Court made the following:-

:: O R D E R ::

This petition is filed U/s.166 of Motor Vehicles Act 1989 (for short “the Act”), r/w. Rule 455 of Motor Vehicles Rules 1989 by the petitioners for the loss of life of Angara Paparao (herein after referred to as 'Deceased') in a road accident that occurred on 6.1.2019 at about 9.45 p.m., at Balajipeta, Near

Veerabhadra Nagar, Municipal School, Rajamahendravaram, East Godavari

District claiming compensation of Rs.1,00,00,000/- with interest.

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

i) On 6.1.2019 at about 9.45 p.m., the deceased was proceeding to home via Awa road on his motor cycle bearing No.AP05 EW 5267 on the left side road margin, when he reached near Municipal school, Veerabhadra Nagar, the 1st respondent being driver of Mahindra Bolero Maxi Truck bearing No.AP05

TB 9777 coming from Awa road to Balajipeta had driven it in a rash and 2 negligent manner and dashed the deceased. Due to which, the deceased fell on the ground, received severe bleedings injuries on his head and other parts.

Immediately after the accident, the deceased was shifted to Govt. Hospital,

Rajamahendravaram and while undergoing treatment, he succumbed with injuries.

ii) I Town Police, Rajamahendravaram registered a crime

No.6/2019 under section 304-A IPC against the respondent No.1.

iii) The 1st petitioner is wife, 2nd petitioner is unemployed son, 3rd petitioner is unmarried daughter and 4th petitioner is widow mother of the deceased. Mother of the deceased died during pendency of the petition.

iv) The deceased is 50 years. He was working as W.L Cleaner (water works) in Municipal Corporation, Rajamahendravaram and he used to earn Rs.54,421/- per month and he contributed to his family.

v) The respondent No.1 is the driver-cum-owner of the Mahindra

Bolero Maxi Trunk bearing No.AP05 TB 9777 and respondent No.2 is insurer of the vehicle. As the accident due to rash and negligent driving of the respondent No.1 and the respondent No.2 being the insurer of the vehicle are jointly and severally liable to pay compensation to the petitioners.

3.Respondent No.1 filed counter stating that, he is the driver of the offending vehicle at the time of accident and the same was validly insured with the respondent No.2 and it is in force.

i) He contended that, the deceased came in opposite direction and he tried his level best to avert the accident and the accident took place on account of contributory negligence of the deceased.

ii) He is having valid driving license at the time of accident and it was in force.

iv) The amount of compensation claimed by the petitioners is highly excessive and exorbitant. Prays to dismiss the petition.

3

4.Respondent No.2 filed written statement denying the averments in the petition and inter alia contending that, the accident occurred because of sole negligence of the deceased in riding the motor cycle. The respondent

No.1 was driving the offending vehicle in a moderate speed on the correct side, but the deceased had driven the motor cycle in a speedy manner and came on wrong side without headgear, without knowing the driving skills and without driving license and caused the accident.

i) The respondent No.2 is not aware of earning capacity of the deceased, his age, occupation as W.L. cleaner (water works) in Municipal

Corporation, Rajahmundry.

ii) The alleged accident occurred on 6.1.2019 and FIR was registered on 7.1.2019. There is no proper explanation for the delay. Prays to dismiss the petition.

5.Basing on the above pleadings of both parties, the following issues have been settled for trial:-

01.Whether the death of Angara Papa Rao caused in motor accident occurred on 6.1.2019 at about 9.45 p.m. at Balijipeta due to rash and negligent driving of the vehicle/Mahindra Bolero Maxi Trunk bearing No.APTB 9777 by its driver/1st respondent?

02.Whether the petitioners are entitled to claim compensation, if so, to what amount and from which of the respondents?

03. To what relief?

6.Trial went on, in order to substantiate their case, P.W.1 to PW.3 were the witnesses examined and Ex.A1 to Ex.A5, Ex.X1 to Ex.X7 were the documents marked. On behalf of the respondents, RW.1 was the witness examined and Ex.B1 insurance policy was marked.

7.Heard both counsel.

8.This court has gone through the pleadings, evidence of petitioners, respondents, documents and other material on record. This court 4 feels that it is not necessary to reproduce the evidence and this court will refer the evidence as and when necessary to the extent required in the order.

ISSUE No.1:-

9.The case of the petitioner is that, the accident occurred due to rash and negligent driving of the 1st respondent who drove the offending vehicle in a rash and negligent manner and dashed the deceased motor cycle, as a result, the deceased while undergoing treatment succumbed with injuries.

Per contra, the 2nd respondent contends that the accident is not occurred due to rash and negligent driving of the 1st respondent. The accident occurred due to rash and negligent riding of motor cycle by the deceased without wearing headgear.

10.The petitioner No.1 as P.W.1 deposed in replica to the contents of the petition in her chief examination to the effect that, on 6.1.2019 at about 9.45 p.m., the deceased was coming to home via Awa road on his motor cycle bearing No.AP05 EW 5267 on the left side road margin, when he reached near

Municipal school, Veerabhadra Nagar, the 1st respondent being driver of

Mahindra Bolero Maxi Truck bearing No.AP05 TB 9777 coming from Awa road to

Balajipeta had driven it in a rash and negligent manner and dashed the deceased. As a result, the deceased received head injury and while undergoing treatment in Govt. General Hospital, Rajamahendravaram, he succumbed with injuries.

In the cross examination, she stated that, she is not witnessed the accident. The deceased died in the hospital due to head injury.

11.PW.2 is examined as an eye witness to the accident. He testified that, on 6.1.2019 at about 9.45 p.m., the 1st respondent being driver of offending vehicle driven it in a rash and negligent manner and dashed the motor cycle of the deceased. The deceased sustained grievous fracture injuries on his head and on his forehead. The deceased was shifted to Govt.

General Hospital, Rajamahendravaram in 108 Ambulance.

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In the cross examination, he stated that, he witnessed the accident while he was sitting infront of their house. The deceased sustained injuries on the right side over his head and face.

12.Ex.A1 is the attested copy of FIR, which would disclose that it was registered on 7.1.2019 against the driver of bolero Van bearing No.AP05 TB 9777. Ex.A2 is the attested copy of inquest report would disclose that the inquest was conducted over the dead body of the deceased and it was mentioned at column No.15 that, the duty Doctor examined the deceased on 6.1.2019 at 10.30 p.m. and he found that the deceased died. Ex.A3 is the postmortem examination report would disclose that the deceased died approximately 24 hours prior to postmortem examination. The postmortem examination was conducted on 7.1.2019. Ex.A5 is the attested copy of charge sheet would disclose that, after investigation, the police filed charge sheet against the respondent No.1 showing him as an accused.

13.The oral and documentary evidence clearly discloses that, immediately after the accident the deceased was shifted to Govt. General

Hospital, Rajamahendravaram, where the duty Doctor examined and found the deceased died, subsequently conducted inquest over the dead body of the deceased. The respondent No.2 except examining its officials, did not choose to examine the concerned police officials who investigated the case. Hence, this Tribunal held that the respondent No.1, driver of lorry had driven the same in a rash and negligent manner and dashed the motor cycle. Accordingly the issue No.1 is answered in favour of the petitioner.

ISSUE NO.2:

14.The learned counsel for the respondent No.2 filed copy of insurance policy for the crime vehicle bearing No.AP05TB9777, which covers the rick for the period from 8.12.2018 to 7.12.2019. The date of accident was on 6.1.2019. So, by the date of accident, the insurance policy is in force.

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15.Coming to the claim, the petitioner is entitled for pecuniary and non pecuniary damages, the petitioner is claiming compensation at the rate of

Rs.1,00,00,000/- with interest.

16.PW.3SuperintendentofMunicipalCorporation,

Rajamahendravaram testified that, the deceased worked as Water works cleaner in Municipal Corporation, Rajahmundry. Ex.X1 is the authorization letter. Ex.X2 to Ex.D4 are the salary certificates of the deceased for the months of October top December, 2018, Ex.X5 is the salary certificate for the month of January, 2019 for six days. Ex.X6 is the attested copy of first page of

Service Register , which shows the date of birth of the deceased as 21.2.1966.

Ex.A7 is the proceedings for fixation of pay of deceased in revision pay scales 2020 w.e.f. 1.7.2018. Therefore, it is clear that by the date of accident the deceased was worked as water works cleaner.

17.Ex.X6 is the attested copy of service register of deceased, which shows the date of birth of the deceased as 21.2.1966. The accident occurred on 6.1.2019. So, by the date of accident, the age of the deceased is 52 years, 10 months 15 days.

18. Ex.X4 is the salary certificate of the deceased of the deceased for the month of December, 2019. It can be seen from this Last pay certificate that the gross salary of the deceased is Rs.54421/- and the net pay is

Rs.42,762/- per month.

19.This Tribunal has to ascertain from the above particulars as to what is the quantum of the salary that is to be considered. As per Ex.X4 the following heads are shown in the salary particulars of the deceased.

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Earnings Amount Deductions Amount Basic pay37100-00 GPF/PF500-00 Spl. Pay15-00 APGLI1150--00 D.A.9526-00 APGIS15-00 H.R.A.7420-00 Profession Tax200-00 C.C.A.350-00 LIC8644-00 Washing Allw.10-00 E.H.S.90-00 TOTAL54421-00 I.T.1000-00 Flag Fund60-00 Total11659-00

Ex.X4 would disclose that the a sum of Rs.1000/- is deducted towards income tax. The petitioners failed to file income tax returns of the deceased for the relevant period. Admittedly, for the financial year 2019, whose taxable income below Rs.5,00,000, a rebate shall be 100% of income- tax or Rs.12,500, whichever is less. In the absence of income tax returns of the deceased, after deducting income tax and profession tax, which comes to

Rs.1200/-, this tribunal has taken into consideration, the income of the deceased at Rs.53,221/- per month.

20.The income of the deceased is taken into consideration at

Rs.53,221/- per month. The deceased died leaving behind him, the petitioners who are his wife, son and daughter, they are dependents on his earnings. In view of the observations made in the case SARLA VERMA AND ORS V/S

DELHI TRANSPORT CORPORATION AND ANR, 1/3 of his earnings has to be deducted towards the personal and living expenses of the deceased and the reminder (2/3) can be said to be the loss of earnings caused to the petitioners/dependents.

In view of the observation made by this Tribunal that the deceased was aged about 52 years and his earnings can be taken at Rs.53,221/- per 8 month, the loss of earnings caused to the petitioners on account of the death of the deceased could be quantified as follows:

S.HeadsCalculation. No

1.Income of the deceased per monthRs.53,221/-

2.Income of the deceased per annumRs.6,38,652/- As per ruling of Hon’ble Apex Court inRs.7,34,449/- National Insurance Company v. Pranay Sethi and Others reported in 2017 ACJ 2700 15% of amount has to be added towards future prospects as he is salaried. Thus, the amount comes to Rs.6,38,652/- (Rs.6,38,652/-+ 95,797/- ) Since the deceased died, leaving behind Rs.4,89,633/- him, the petitioners, who are his wife, his father and minor son, hence 1/3 of his income has to be deducted towards his personal and living expenses, thus, the reminder would be Rs.4,89,633/- ( 7,34,449 – 2,44,816) Thus, total annual income of the Rs.4,89,633 /- deceased is Relevant multiplier for the age of the 53,85,963-00 deceased is 52. Thus the loss of dependency is Rs. 4,89,633 x 11 Loss of Consortium40,000-00 Funeral expenses15,000-00 Loss of estate15,000-00 TOTAL54,55,963-00 As the deceased failed to takeRs.5,45,596/-49,10,367-00 precautionary measures at the time of accident i.e., wearing the helmet, an amount of 10% is to be deducted from out of total amount i.e.,49,10,367/- (54,55,964/- - 5,45,596)

In view of the reasons discussed above, the just compensation arrived by this Tribunal for the death of the deceased in the accident is

Rs.49,10,367/-. In view of findings on issue No.1, respondent No.1 being the driver of the vehicle, respondent No.2 being the insurer are jointly and severally liable to pay compensation to the petitioner.

9

21.In view of the above discussion, this Tribunal holds that the petitioners are entitled for compensation of Rs.49,10,367-00 payable by respondent Nos.1 to 3 jointly and severally. Accordingly, issue No.2 has been answered.

ISSUE NO.3:

20.In the result, the petition is allowed in part, awarding compensation of Rs.49,10,367-00 (Rupees Forty Nine Lakhs, Ten thousand

Three hundred and sixty seven only) with proportionate costs and subsequent interest at 7.5% p.a. from the date of petition till the date of realization payable by respondent Nos.1 and 2 jointly and severally.

The respondent No.1 and 2 are directed to deposit the compensation amount within three months from the date of this award.

On such deposit, the 1st petitioner is hereby apportioned a sum of Rs.29,10,367/-; the 2nd petitioner is hereby apportioned a sum of

Rs.10,00,000/- and 3rd petitioner is hereby apportioned a sum of

Rs.10,00,000/-.

Out of the said apportioned amount, the 1st petitioner is hereby permitted to withdraw a sum of Rs.9,10,367/-. The balance amount shall be kept in fixed deposit in any nationalised Bank for a period of Three years. After maturity, the 1st petitioner is at liberty to withdraw the entire amount with accrued interest by filing a petition.

Out of the said apportioned amount, the 2nd petitioner is hereby permitted to withdraw a sum of Rs.5,00,000/-. The balance amount shall be kept in fixed deposit in any nationalised Bank for a period of Three years. After maturity, the 2nd petitioner is at liberty to withdraw the entire amount with accrued interest by filing a petition.

10

Out of the said apportioned amount, the 3rd petitioner is hereby permitted to withdraw a sum of Rs.5,00,000/-. The balance amount shall be kept in fixed deposit in any nationalised Bank for a period of Three years. After maturity, the 3rd petitioner is at liberty to withdraw the entire amount with accrued interest by filing a petition.

Advocate fee is fixed at Rs.1500/-.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court on this 25th day of January, 2023.

Sd/- P. Venkata Jyothirmai.

CHAIRMAN,

Motor Vehicle Claims Tribunal-cum

Principal District Judge,

Rajamahendravaram.

Appendix of Evidence Witnesses examined

For petitioners:

PW.1: Angara Kasulamma. PW.2: Tupakula Durga. PW.3: D.L.Gopala Swamy.

For respondent:

RW.1: Gorthi Sridhar.

Documents marked

For petitioner:

Ex.A1 : Attested copy of FIR in crime No.6/2019 of I Town PS, Rajahmundry. Ex.A2 : Attested copy of inquest report. Ex.A3 : Attested copy of P.M.report. Ex.A4 : Attested copy of M.V.I. report. Ex.A5 : Attested copy of charge sheet.

Ex.X1 : Authorization letter. Ex.X2 : Salary certificate for the month of October, 2018 Ex.X3 : Salary certificate for the month of November, 2018 Ex.X4 : Salary certificate for the month of December, 2018 Ex.X5 : Salary certificate for the month of January, 2018 Ex.X6 : Attested copy of 1st page of service register of the deceased Ex.X7 : Proceedings for fixation of pay of deceased

For respondent:

Ex.B1 : Copy of insurance policy.

Sd/- P. Venkata Jyothirmai.

P.D.J.

1

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL

(DISTRICT JUDGE) AT RAJAMAHENDRAVARAM.

Present:- Smt P.Venkata Jyothirmai, Chairman, Motor Vehicle Claims Tribunal -cum-Principal District Judge, Rajamahendravaram.

Wednesday, the 25th day of January, 2023

M.V.O.P.No.192/2022

Between:-

1. Dadala Suguna, W/o.Appa Rao,

2. Dadala Appa Rao, S/o.Nagara Rao

3. Pulagala Vijaya Lakshmi, W/o.Srinivasa Rao

4. Pulidindi Durga Devi, W/o.Venkata Ramana

..Petitioners.

And

1. Polisetti Sesha Srinivasu, S/o.Papa Rao,

2. Andhra Pradesh State Road Transport Corporation, Rep. by its Depot Manager, Ravulapalem Depot., E.G.District.

....Respondents.

This petition coming on this day before me on 11-01-2023 for hearing in the presence of Sri.D.Victor Babu, Advocate for petitioners and of Sri.M.Anjaneya Babu, Advocate for respondent No.2, respondent No.1 having remained ex-parte and having stood over till this day for consideration, this Court made the following:-

:: AWARD ::

This petition is filed U/s.166 of Motor Vehicles Act 1989 (for short “the

Act”), r/w. Rule 455 of Motor Vehicles Rules 1989 by the petitioners, who are mother and father and sisters of Dadala Srinivasa Rao (hereinafter referred to as the deceased), who died in a road accident that occurred on 10.10.2019 at 1st street, Vigneswara Nagar, Nadakuduru Village, Karapa Mandal claiming compensation of Rs.12,00,000/- with interest and costs.

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

i) On 10.10.2019 the deceased/Pillion rider and other person/Juthuga

Bhimanjaneyulu/rider were started from their house at Unduru village to engage electrical repair work. After completion of work, they were returning from Kakinada to Ramachandrapuram, reached 1st street of Vigneswara Nagar,

Nadakuduru village, the RTC Bus bearing No.AP29Z-1851, Route No.904, 2 proceeding from Ramachandrapuram to Kakinada, the 1st respondent drove the RTC bus in a rash and negligent manner, dashed the motor cycle from opposite direction. As a result, the deceased/pillion rider fell down and sustained grievous injuries, shifted to hospital and while undergoing treatment, he died. Another person was also fell down and died on the spot.

ii) Karapa Police Station registered the Crime No.192/2019 under

Secs.304-A, 338 of IPC against the respondents No.1 and 2.

iii) The deceased was aged 25 years by the date of accident. The deceased is an electrician and used to earn more than Rs.10,000/- per month and contributing the same to his family. The petitioners 1 and 2 lost their son and petitioners 3 and 4 lost their brother’s love and affection.

iv) The accident occurred due to rash and negligent driving of 1st respondent driver of RTC Bus. The 1st respondent is the driver of RTC Bus and 2nd respondent is owner and under the active employment of 2nd respondent, 1st respondent is working, they both are jointly and severally liable to pay compensation to the petitioners.

3.The 1st respondent choose to remain ex-parte.

4.The respondent No.2 filed written statement denying the material averments of the petition and contended that on 10.10.2019 the Bus bearing

No.AP9Z-1851 of Ravulapalem Depot was was proceeding from Ravulapalem to

Kakinada and on the way near Nadakuduru at Gurojanapalli Center, at that time the conductor gave signal for stoppage of bus for getting down the passengers. The 1st respondent slow down the bus duly taking left margin and at that time, 1st respondent observed that one motor cyclist along with pillion rider proceeding on Hero Honda Glamour bearing No.AP05EG-1522 coming in opposite direction and rider was thrown by pillion rider while taking right side from left side margin and hit the right bumper of the bus with high speed in 3 opposite direction with complete wrong way and fell down and received severe injuries and died.

i) The 1st respondent drove the bus slowly and cautiously and also used horn. The rider of the motor cycle did not follow traffic rules and drove the motor cycle in rash and negligently. The accident occurred due to negligence on part of the 1st respondent.

ii) The motor bike driver has no valid driving licence to the drive the bike.

The owner of the vehicle and the insurance company are only responsible and liable to pay compensation. The owner and insurance company of the motor cycle are proper and necessary parties. The petition is bad for non joinder of proper and necessary parties. The respondent No.2 denied the age, income of deceased. The compensation and interest claimed are excessive and prays for dismissal of the petition.

5.Basing on the above pleadings of both parties, the following issues have been settled for trial:-

1. Whether the deceased died in the motor accident due to rash and negligent driving on part of the 1st respondent/driver of APSRTC Bus bearing No.AP29BZ-1851?

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

3. To what relief?

6.Trial went on. In order to substantiate their case, P.W.1 mother of the deceased was examined and Ex.A1 to Ex.A8 were the documents marked and

P.W.2 who is the direct witness was examined on their behalf.

7.Heard both counsel and perused the written arguments of petitioners.

8.This court has gone through the pleadings, evidence of P.Ws.1 and 2,

Ex.A1 to Ex.A8 and other material on record. This court feels that it is not 4 necessary to reproduce the evidence and this court will refer the evidence as and when necessary to the extent required in the order.

Issue No.1:-

9.The case of the petitioners is that, on 10.10.2019 the deceased/Pillion rider and other person/Juthuga Bhimanjaneyulu/rider were returning from

Kakinada to Ramachandrapuram, reached 1st street of Vigneswara Nagar,

Nadakuduru village, the RTC Bus bearing No.AP29Z-1851 driven by 1st respondent/driver, proceeding from Ramachandrapuram to Kakinada, drove the same in a rash and negligent manner, dashed the motor cycle from opposite direction. As a result, the deceased fell down, sustained grievous injuries and shifted to Hospital and while undergoing treatment, the deceased died.

10.Per contra, the respondent No.2 contended that the accident is not occurred due to rash and negligent driving of the respondent No.1. The rider of the motor cycle is negligent in driving the motor cycle. The owner and insurance company of the motor cycle are proper and necessary parties to the petition. Hence, the burden is on the petitioners to prove that the accident occurred due to the rash and negligent driving of respondent No.1.

11.P.W.1 is the mother of deceased. She stated in her chief examination affidavit in replica to the contents of the petition. During the cross-examination, she stated that she is not an eye witness to the accident. She did not file any document to show that deceased used to work as Electrician and get

Rs.10,000/- per month.

12.P.W.2 is the direct witness to the occurrence. He supported the case of the petitioners. His chief examination affidavit is nothing but the contents noted in the petition. During cross-examination, he denied the suggestions that without watching the accident, he is deposing false and he witnessed the accident and it is mentioned in the charge sheet and inquest, after came to 5 know about the accident, he went there but he did not witness the accident.

He also denied that since deceased being his relative, he is deposing false, the accident was occurred due to rash and negligent driving of the driver of two wheeler but not due to negligence of driver of bus.

13.The evidence of P.W.1 and P.W.2 coupled with Ex.A1/FIR would show that the crime is registered against respondent No.1 for the offence under section 304A and 338 of IPC. Ex.A5/inquest report and Ex.A4/postmortem examination report would show that the deceased died in the accident. Ex.A3/MVI report would show that Motor Vehicle Inspector inspected the offending vehicle and opined that the accident was not occurred due to any mechanical failure of the vehicle involved in the accident. Ex.A2/charge sheet would show that the police after thorough investigation filed charge sheet against the respondent No.1 as he had driven the offending vehicle in rash and negligent manner and responsible for the accident. Since the accident occurred due to rash and negligent driving of the respondent No.1 and filed charge sheet against him, the owner and insurer of the motor vehicle are not proper and necessary parties to the petition. Though the respondent No.2 having taken a plea that the accident is not occurred due to rash and negligent driving of the respondent No.1, did not adduce any evidence controverting the evidence of

P.W.2. So, the evidence of P.W.2 coupled with documentary evidence clearly established that the accident occurred due to rash and negligent driving of respondent No.1. Accordingly the issue No.1 is answered in favour of the petitioner.

ISSUE NO.2:

14.In the light of findings on issue No.1, the petitioners being the legal representatives of the deceased are entitled to the compensation.

15.Coming to the Age, the petitioners contended that as on the date of accident, the deceased was aged about 25 years. In order to prove the same, 6 the petitioners filed Ex.A6/Original S.S.C. Certificate which shows that the date of birth of the deceased is 26-10-1992. Date of accident is 10-10-2019. Hence, taking into consideration the Ex.A6, the age of the deceased as on the date of accident is 26 years.

16.The petitioners contended that the deceased completed ITI and eking his lively hood as electrician and earning Rs.10,000/- per month.

i) The petitioners in support of their contention though filed

Ex.A8/Provisional National Trade Certificate which shows that the deceased underwent training at Srinivasa SAIL ITC, Draksharama for the period from

August, 2008 to July, 2010 but no documentary evidence is placed to prove that he is earning Rs.10,000/- per month.

ii) Taking into consideration the avocation of petitioner as Electrician and in absence of proof of income of petitioner, this Tribunal has taken the income of petitioner at Rs.7,500/- per month, as per guidelines of Hon'ble State Legal

Services Authority, which the income has taken into consideration for the purpose of commutation while settling the claims before Lok Adalats.

17.In a case between Sarla Varma Vs. Delhi Transport Corporation1 the

Hon'ble Apex Court held that:-

"where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. With regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married or be dependent on the father.''

1.2009 A.C.J 1298.

7

The Hon'ble Apex Court between National Insurance Company

Limited Vs. Birender and others2 it was held that, "Application filed by the major sons of deceased who are married and gainfully employed or earning. Major married son who is also earning and not fully dependant on deceased, would be still covered by expression 'legal representative" of deceased. They have every right to seek compensation under section 166 of M.V. Act"

In National Insurance Company Ltd. vs. Pranay Seth and Others3, the Hon'ble Apex Court held that, "Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years"

18.Coming to the facts of the case, the petitioners are being mother, father and sisters of the deceased are considered as legal representatives and dependants on the deceased. The income of the deceased is taken into consideration at Rs.7,500/- per month. The deceased died leaving behind his parents and sisters. In view of the observations made in the case Sarla Verma and others Vs. Delhi Transport Corporation and another, 50% has to be deducted towards his personal and living expenses.

19.In view of the observation made by this Tribunal, the age of the deceased is taken into consideration at 26 years and his earnings can be taken at Rs.7,500/- per month, the loss of earnings caused to the petitioners on account of the death of the deceased could be quantified as follows:

2. 2020 (2) ALD 14 (SC)

3. 2017 ACJ 2700 8

S.NoHeadsCalculation.

1.Income of the deceased per monthRs.7,500-00

2.Income of the deceased per annum Rs.90,000-00 Rs.7,500 x 12 3Since the deceased died, leaving Rs.45,000-00 behind his parents and two sisters. As per dictum of Sarla Varma, 50% has to be deducted towards his personal and living expenses. thus, the reminder would be Rs.45,000/- (90,000/- (–) 45,000/-) 4Thus, total annual income of the Rs.45,000-00 deceased is Rs.45,000/-

5.Relevant multiplier for the age of the deceased is 17. Thus the loss of 7,65,000-00 dependency is Rs.45,000/- x 17

6.Funeral expenses15,000-00

7.Loss of estate15,000-00 TOTAL7,95,000-00

20.In view of the reasons discussed above, the just compensation arrived by this Tribunal for the death of the deceased in the road traffic accident is

Rs.7,95,000/-. In view of findings on issue No.1, the respondent No.1 being the driver of the vehicle and the respondent No.2 being the owner of the offending vehicle are responsible for payment of compensation to the petitioners.

In view of the above discussion, this Tribunal holds that the petitioners are entitled for compensation of Rs.7,95,000/- payable by the respondents 1 and 2 jointly and severally. Accordingly, issue No.2 has been answered.

ISSUE NO.3:

21.In the result, the petition is allowed in part, awarding compensation of

Rs.7,95,000/- (Rupees Seven Lakhs and Ninety five thousand only) with proportionate costs and subsequent interest at 7.5% p.a. from the date of petition till the date of realization payable by the respondent Nos.1 and 2 jointly and severally.

9

i) The respondent No.1 and 2 are directed to deposit the compensation amount within Three months from the date of this award.

ii) On such deposit, the petitioner No.1 is entitled for compensation of

Rs.6,00,000/-. The petitioner No.2 is entitled for compensation of Rs.1,75,000/-.

The petitioner No.3 and 4 are entitled for compensation of Rs.10,000/- each.

Iii) Out of the said compensation amount, the petitioner No.1 is permitted to withdraw a sum of Rs.2,50,000/- with accrued interest and costs by filing a separate application. Balance compensation amount shall be kept in fixed deposit in any Nationalised Bank for a period of Two years in her name separately. After maturity, the petitioner No.1 is at liberty to withdraw the same with accrued interest by filing a petition.

The 2nd petitioner is permitted to withdraw Rs.1,00,000/- with accrued interest and costs by filing a separate application. Balance compensation amount shall be kept in fixed deposit in any Nationalised Bank for a period of

Two years in his name separately. After maturity, the petitioner No.2 is at liberty to withdraw the same with accrued interest by filing a petition.

iv) The petitioners No.3 and 4 are permitted to withdraw entire amount of Rs.10,000/- each with accrued interest by filing a separate application.

v) Rest of the claim of the petitioners against the respondents is dismissed without costs.

vi) Advocate fee is fixed at Rs.1,500/-.

Typed to my dictation to the Stenographer, corrected and pronounced by me in open court on this 25 th day of January, 2023.

CHAIRMAN,

Motor Vehicle Claims Tribunal-cum

Principal District Judge,

Rajamahendravaram.

10

Appendix of Evidence

Witnesses examined

For petitioners:

P.W.1: Dadala Suguna P.W.2: Malaka Srinu

For respondent:None.

Documents marked

For petitioner:

Ex.A1: Attested copy of FIR Ex.A2: Attested copy of charge sheet. Ex.A3: Attested copy of MVI Report. Ex.A4: Attested copy of Postmortem report. Ex.A5: Attested copy of Inquest report. Ex.A6: Original SSC Marks List of deceased. Ex.A7: Original Study certificate of ITI of deceased. Ex.A8: Original Provisional National Trade Certificate.

For respondent: Nil.

CHAIRMAN,

Motor Vehicle Claims Tribunal-cum

Principal District Judge,

Rajamahendravaram.

11

1

IN THE COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE

EAST GODAVARI AT RAJAMAHENDRAVARAM.

PRESENT:-Smt P.Venkata Jyothirmai,

Principal Sessions Judge

Wednesday, the 25th day of January, 2023.

CRIMINAL APPEAL No:371/2019

From which Court, this appeal isJudicial Magistrate of First Class Court, preferred Alamuru.

Number of the case in that CourtC.C.No.260/2016

Name and description of the Appellants:-

Yerramsetti Manga Raju, S/o.Venkateswara Rao, Hindu, 40 years, resident of D.No.15-1-1/1, Kapileswarapuram Road, Mandapeta, Mandapeta Mandal, East Godavari Distrtict.

Name and description of the respondents:-

1. State: Rep. by its Public Prosecutor, Rajamahendravaram.

2. The Food Safety Officer, Division-III, East Godavari District, Kakinada.

Result of the Trial Court:- In the result, the accused is found guilty for the offence under section 59(1) of FSS Act and he is convicted under section 255(2) Cr.P.C. The accused is sentenced to under go simple imprisonment for a period of six months and to pay fine of Rs.5000/- for the offence under section 59(1) of Food Safety and Standards Act, 2006. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.

If confirmed, reversed or modified Ifmodified,whatisthe modification:Reversed.

DATE ON WHICH :

Presentation of appeal 31.10.2019 Filing 01.11.2019 Hearing 25.01.2023 Judgment 25.01.2023

This appeal coming on this day before me for final hearing in the presence of

Sri.M.R.Satya Sai, Advocate for the appellant and Public Prosecutor for respondent and the matter having stood over for consideration till this day, this court delivered the following:- 2

J U D G M E N T

1. This appeal is filed against the impugned calendar and judgment dated.15.10.2019 passed in C.C.No.260/.2017 on the file of Judicial

Magistrate of First Class, Alamuru wherein the Trial Judge after careful

consideration of oral and documentary evidence on record found the accused guilty for the offence under section 59(1) of FSS Act and sentenced to under go simple imprisonment for a period of six months and to pay fine of Rs.5000/- for the offence under section 59(1) of Food Safety and

Standards Act, 2006. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.

2.The appellant herein was the Accused before the Trial Court. The respondent herein was the state-represented by Safety Officer, Division-III,

East Godavari District, Kakinada.

For the sake of convenience, parties can be referred as they were arrayed before the trial Court.

3.The case of the prosecution in brief, is that:-

i) On 30.4.2016 at about 11.15 a.m., the Food and Safety

Officer/PW.1 visited the business premises of the accused, which is being run under the name and style of M/s.Veerabhadra Fruits, D.No.15-1-1/1,

Kapileswarapuram Road, Mandapeta. He purchased 2 Kgs of bananas by paying Rs.60/- in cash and obtained a receipt. After observing all the formalities sent the samples to analyst of State Food Laboratory, Hyderabad and handed over three other samples to Food safety designated Officer under acknowledgment.

ii) The expert report dated 16.5.2016 reveals that, the samples contains 'Ethophon' which is an insecticide and it is unsafe for human consumption. A copy of the report sent to the accused. The accused availed his opportunity for sending another part of sample Director, Food Safety and 3

Analytical quality control Laboratory, Mysore. The report received to the effect that sample is not fit for analysis.

iii) PW.1 launched prosecution after accorded sanction from the

Commissioner for selling unsafe bananas to the public for human consumption.

4.Charges for the offences under section 59(1) of FSS Act and

Section 3(1)(zz)(iii) and (xii), 26(2)(i) r/w. regulation 2.3.1 of Food Safety and

Standards (contaminants, Toxins, Residues and Regulations) Act 2006. The defence is total denial.

5.In order to substantiate the case, PW.1 and PW.2 were the witnesses examined and Ex.P1 to Ex.P26 were the documents marked. The accused denied the incriminating material in the evidence of PW.1.

6.After hearing both counsel and on appreciation of material on record, the learned Trial Judge found that the accused guilty for the offence under section 59(1) of FSS Act and sentenced him as stated supra.

7.Having been aggrieved by the impugned Judgment of conviction and sentence passed against him, the appellant preferred the appeal on the grounds that:-

The learned Trial Judge failed to appreciate the evidence in right perspective. PW.1 is not a Food Safety Officer as per section 37 of Food

Safety and Standards Act. The analyst who alleged to have analyzed the sample was not proved to be appointed as per the provisions of Food Safety and Standards Act. PW.1 has not followed the procedure as contemplated under Food Safety and Standard Act while conducting raid and lifting the sample for analysis. The provisions of Food Safety and standards Act are mandatory and the prosecution must follow their mandatory provisions in strict sense. Ex.P15 would reveal the fact that it was analyzed on 5.5.2016 and report was submitted on 16.5.2016. Report was served on the accused 4 on 20.5.2016 by then sample may not be in a fit position to analyse. The

Food Safety Officer has not added any preservative to preserve the samples for reanalysis to give an opportunity under Rule 2.4.5 of Food Safety and

Standards Rules and Section 46 of Food Safety and Standards Act. Prays to allow the appeal.

8.Heard both counsel.

9.Now the points for would emerge for determination are:-

1. Whether the Food Safety Officer was appointed under section 37 of F.S.S. Act 2006?

2. Whether the prosecution has followed the mandatory provisions as contemplated under the provisions of F.S.S. Act 2006 and Rules 2011 to establish the guilt of the accused?

3. Whether the impugned Judgment of the conviction and sentence passed against the accused is on correct lines or suffers from any infirmity or warrants any interference of this court in appeal"?

POINTs:-

10.The case of the prosecution is that, on 30.4.2016 at about 11.15 a.m., PW.1 along with his staff visited business premises of the accused being run under the name and style of M/s.Veerabhadra Fruits, D.No.15-1- 1/1, Kapileswarapuram Road, Mandapeeta and found the accused transacting business and on enquiry, the accused disclosed that he is the proprietor of the said business.

i) PW.1 secured presence of PW.2, inspected the premises and found the banana fruits. The accused disclosed that those bananas are kept for sale to public for human consumption. The accused failed to produce any bills. PW.1 purchased 2 kgs of banana by paying Rs.60/- towards its price and obtained receipt.

ii) Notice under Rule 2.4.5 (1) of F.S.S.Rules 2011 was served to the accused in the presence of PW.2 informing him about the opportunity for sending 4th part of sample to the accredited laboratory.

5 iii) On 16.5.2016 PW.1 received analysis report in form-B vide report No.141/2016-2017 dated 16.5.2016 wherein it is opined that the "sample contains Ethephon" which is an insecticide and hence it is unsafe for human consumption.

iv) On 26.7.2016, the Food Safety Designated Officer, East

Godavari District at Kakinada received laboratory report, wherein it is opined that the sample is not fit for analysis and on opening the sample bottle, the sample found to be putrefied with fungal growth, discoloured and emitting foul smell and same is unfit to carry out test.

v)Charge was framed against the accused for the offence under section 59(1) of F.S.S. Act and Section 3(1) (xx)(iii) and (xii), 26(2) (i) read with regulation 2.3.1 of Food Safety and Standards (contaminants, Toxins,

Residues) Regulations Act 2011.

11.Every Food Officer who is filing complaints and drawing samples must be appointed under Section 37 of Food Safety and Standard Act.

For better appreciation, section 37 of Food Safety and Standard

Act extracted:-

37. Food Safety Officer.– (1) The Commissioner of Food Safety shall, by notification, appoint such persons as he thinks fit, having the qualifications prescribed by the Central Government, as Food Safety Officers for such local areas as he may assign to them for the purpose of performing functions under this Act and the rules and regulations made thereunder.

(2) The State Government may authorise any officer of the State Government having the qualifications prescribed under sub- section (1) to perform the functions of a Food Safety Officer within a specified jurisdiction.

12.The prosecution is relying on Ex.P1 to show that PW.1 was appointed as Food Safety Officer under the notification issued by the

Government of Andhra Pradesh. Even PW.1 was appointed in the entire combined state of Andhra Pradesh and there was no specific indication in

Ex.P1 as to the local jurisdiction of the Officer who can exercise his powers.

6

In the absence of such clarity in Ex.P1 it cannot be said that PW.1 was appointed under Section 37 of F.S.S. Act.

13.The procedure for lifting sample is contemplated in Rule 2.4.1 of

Food Safety and Standard Rule, 2011. It is significant to note that Section 38(1) and Section 47 (5) of F.S.S. Act are also to be followed by the Food

Safety Officer while lifting samples. In the absence of such positive evidence, the analysis report given by analyst cannot be accepted. It is significant to note that analyst report/Ex.P14 do not indicate the mode of test conducted by analyst.

14.Admittedly, the month of May is a mid summer and usually the chances of putrification of any food material in mid summer is higher than any other season.

15.The prosecution has to establish that 'ethophon' is an insecticide and it is not fit for human consumption and also has to establish that, whether ethephon found in sample is more than the permitted limit as per

Rule 2.3.1 of Food Safety and Standard (contaminants, Toxins and Residues)

Regulation 2011. As per the said regulation serial No.67, the permissible limit of Ethophon varies from fruit to fruit and in column No.3 of the said clause, banana is not there. Therefore, the prosecution failed to establish that Ethophon is an insecticide and it is not fit for human consumption.

Even if it is insecticide, the permissible limit is to be exceeded, as per the

Act. Nowhere in Ex.P14 it is mentioned the quantity of Ethophon to determine whether it is in permissible limit or not. Therefore, Ex.P14 is filled mechanically.

16.The Trial Court in paragraph No.23 of the Judgment held that 'here in this case, as seen from the evidence of PW.1, the accused did not prefer any appeal under section 46(4) of F.S.S. Act. However, the authority send 4th sample to accredited laboratory basing on the application of the 7 accused. Hence, it can be said that, even the accused did not prefer an appeal on the analysis report, it chooses to send the 4th sample to accredited laboratory.

17.The express provisions under section 42(2) and Section 42(3), it is clear that any sample send to analyst for analysis, it should be analyzed within 14 days. After analysis report is received, the Food Safety

Designated Officer has to send detail report i.e., recommendations for launching prosecution to the Commissioner, Food Safety within 14 days.

18.The learned counsel for the appellant relied on a Judgment in

Sailen Ganguly Vs. The state of West Bengal and another1 , the

Hon'ble High Court of Calcutta at paragraph No.8 held that:-

"... On perusal of Section 42 of the Food Safety and Standards Act 2006, I find that the Food Safety Officer can launch the prosecution with the recommendation of Commissioner of Food Safety. In the instant case, nothing is on record to indicate that the Investigating Officer was authorized as Food Safety Officer under Section 37(2) of the Food Safety and Standards Act 2006. Nor has the State produced the materials in the case diary to indicate that the procedure for launching prosecution laid down in section 42 of the Food Safety and Standards Act 2006 was followed in the instant case. In the absence of authorization of the Investigating Officer as Food Safety Officer under section 37(2) of the Food Safety and Standards Act 2006 and in the absence of following the procedure for launching prosecution laid down under section 42 of the Food Safety and Standards Act 2006, I am constrained to hold that the petitioner is not liable to be prosecuted for the offence under section 59(1) of the Food Safety and Standards Act 2006".

In the backdrop of the above legal position, the prosecution neither proved that PW.1 was appointed under section 37 of Food Safety and

Standards Act, 2006 nor proved that the prosecution is launched against the accused by following the procedure as contemplated under section 42 of

1. 2016 0 Supreme (cal) 104.

8

Food Safety and Standards Act 2006. Thus, impugned Judgment brook interference of this court, since it is not sustainable on facts and law.

In the light of the aforementioned premises mentioned, this court is of the considered view that the prosecution failed to prove the case against the accused for the offence with which he was charged.

Consequently, the impugned Judgment is liable to be set aside.

19.In the result, the criminal appeal is allowed and the Impugned

Judgment of conviction and sentence passed against the Accused in

C.C.No.260/2017 dated. 15.10.2019 on the file of Judicial Magistrate of First

Class, Alamuru is hereby set aside and the Accused/appellant is found not guilty for the offence punishable under section 59(1) of FSS Act and he is acquitted.

The appellant/accused is entitled for refund of fine amount, after expiry of appeal time.

The bail bonds of the accused shall remain in force for a period of six months.

Typed to my dictation by the Stenographer corrected and pronounced by me on this the 25th day of January, 2023

Sd/- P. Venkata Jyothrimai.

PRINCIPAL SESSIONS JUDGE,

RAJAMAHENDRAVARAM.

Copy to:

Judicial Magistrate of First Class, Alamuru.

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IN THE COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE

EAST GODAVARI AT RAJAMAHENDRAVARAM.

PRESENT:- Sri P.Venkata Jyothirmai,

Principal Sessions Judge

Wednesday, the 25th day of January, 2023.

Criminal Appeal No.150/2022

From which Court, this appeal isCollector and District Magistrate, preferred Kakinada District, Kakinada. Number of the case in that CourtV3/CS/KKD/86/2022, dated 18.05.2022

Name and description of the1. Sri Ram Bharat, whole time AppellantsDirector, M/s.Ruchi Soya Industries Refinery Oils and Processing Unit, New Port Area, Beach Road, Kakinada.

2. Sri Sarvesh Tiwari, Plant Head, M/s.Ruchi Soya Industries Ltd., Kakinada.

3. Sri Itha Chandra Sekhar, S/o.Satyanarayana, Human Resource Manager, M/s.Ruchi Soya Industries Ltd., Kakinada.

4. Sri Oguri Srinivas, S/o.Venkata Ratnam, Senior Manager (Packets Packing), M/s.Ruchi Soya Industries Ltd., Kakinada. Name and description of theThe Civil Supplies Deputy Tahsildar-III, respondent:-Kakinada Urban.

Appeal preferred under Sec.6(c) of Essential Commodities Act

against the Orders of the Collector, East Godavari, Kakinada made in

V3/CS/KKD/86/2022, dated 18.05.2022.

Name and Description of complainant: The Civil Supplies Deputy Tahsildar-III, Kakinada Urban. Name and description of the 1. Sri Ram Bharat, whole time respondents:Director, M/s.Ruchi Soya Industries Refinery Oils and Processing Unit, New Port Area, Beach Road, Kakinada.

2. Sri Sarvesh Tiwari, Plant Head, M/s.Ruchi Soya Industries Ltd., Kakinada.

3. Sri Itha Chandra Sekhar, S/o.Satyanarayana, Human Resource Manager, M/s.Ruchi Soya Industries Ltd., Kakinada.

4. Sri Oguri Srinivas, S/o.Venkata Ratnam, Senior Manager (Packets Packing), M/s.Ruchi Soya Industries Ltd., Kakinada.

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Result of the Order of District CollectorConfiscation of stock for a worth of (CS):-Rs.10,00,000/- to Government under Sec.6(A) of E.C.Act 1955 as there seems to be an intention to block the stock to sell at a higher price. If confirmed, reversed or modifiedReversed. If modified, what is the modification:

DATE ON WHICH :

Presentation of appeal 27-06-2022 Filing 27-06-2022 Hearing 24-01-2023 Judgment 25-01-2023

This appeal coming on 24-01-2023 before me for final hearing in the presence of Sri.M.R.Satya Sai, Advocate for the appellants, Public Prosecutor for State and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

This appeal is preferred against the impugned order of Collector and District Magistrate, Kakinada vide V3/CS/KKD/86/2022, dated 18.05.2022 under Sec.6(C) of Essential Commodities Act (for short, E.C.

Act) ordering Confiscation of stock for a worth of Rs.10,00,000/- to

Government under Sec.6(A) of E.C. Act 1955 as there seems to be an intention to block the stock to sell at a higher price.

2.The appellants herein were the respondent No.1 to 4.

For the sake of convenience, the parties are referred as they arrayed before the lower authority.

3.The case of the complainant, in brief, is:-

i) The Civil Supply Deputy Tahsildar, Kakinada on 17-3-2022 on receipt of credible information that M/s.Ruchi Soya Industries Refinery

Oils and Processing Unit, New Port Area, Beach Road, Kakinada stored excess stock than permissible limits, the Civil Supply Deputy Tahsildar,

Kakinada-III accompanied with the officials of Vigilance and Enforcement

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Department, Rajamahendravaram proceeded to Dairy forum center,

Kakinada along with mediators conducted surprise visit to M/s.Ruchi

Soya Industries Refinery Oils and Processing Unit, Kakinada on 17.3.2022 at about 2.30 pm and noticed two individuals attending business transaction.

ii) This case has been registered by the inspecting authorities under 6-A of Essential Commodities Act, 1955 (for short, E.C.Act) against the appellants and others for the contravention of provisions of G.O.Ms.No.04 Consumer

Affairs Food and Civil Supplies (CS-I) Department dated 11.03.2022. The

Vigilance and Enforcement Department Officials along with mediators proceeded to appellant processing unit on 17-3-2022 at about 2-30 p.m. the inspection team on verification of physical stocks available in the godown with reference to stock register, they found the stock which was packed in the month of April, 2021 and September, 2021 total quantity of 65,395 Metric Tons of Edible Oil stock which was packed in the months of April, 2021, September, 2021 beyond 90 days of storage capacity in the Godown.

iii) The officials of the appellant unit informed that they kept the stock since there is no demand in the market. Inspecting team opined that it is the clear violation of provisions of G.O.Ms.No.4 referred supra. Accordingly, they have seized the stock which is available and kept the same in the same place under proper acknowledgment.

iv) On the report of inspecting authorities, the learned Collector (CS) has taken the case on file and issued show cause notice to the appellants. The appellants claimed exception as per Para No.5(iii) of G.O.Ms.No.4 dated 11.03.2022.

v) After hearing and on appreciation and on perusal of material on record, the learned C.S. Collector opined that the appellant being manufacturer, has stored the stock beyond 90 days without proof that their stocks were declared on the portal. In addition to that it is the case of

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violation on the time limit for storage of stocks. As such, Para No.5(iii) will not be attracted. Accordingly, ordered confiscation of stock worth Rs.10.00 Lakhs since the intention of the appellant is to block the stock to sell at higher price.

4.Having been aggrieved by the impugned order, the appellants preferred the present appeal on the grounds that,

i) The learned authority without appreciating the material on record in right perspective erred in coming to conclusion that with an intention to block the stock to sell at higher price, the appellants kept the stock in godown.

ii) Exception No.5(iii) is very much applicable to the case of the appellants since the appellants company is an importer and refiner.

iii)The appellants never breached the provisions of E.C. Act, 1955 or violated the G.O.Ms.No.4 issued by State Government dated 11.3.2022.

iv) Further, the appellants have been informing the same to the authorities relating to keeping the stock.

5.Heard both counsel.

6.Now the point that would emerge for consideration is,

Whether the impugned order of learned Collector (CS) is on correct lines or any interference is warranted in this appeal?

Point:-

7.In the present appeal, the appellants sought indulgence of this court on the point that their case is squarely comes under the explanation which is mentioned in Para No.5(iii) of G.O.Ms.No.4 dated 11-03-2022. As seen from the impugned order, the learned Collector (CS) opined that the appellants are manufacturers so, the said exception is not applicable to them.

i) The learned Public Prosecutor would submit that appellants are being manufacturers, the exception mentioned in G.O.Ms.No.4 is not applicable to

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them. The records shows that the copy of licence issued in the name of appellants showing them as manufacturers.

ii) The learned counsel for the appellants would submit that the appellants are not manufacturers since they are participating in the activity in the process of manufacturing only. This court do not find any merit in such contention in the light of the copy of licence showing them as manufacturers.

8.Coming to the next point, the learned counsel for the appellants would submit that even if the exception being importer is not available to the appellants but G.O.Ms.No.4 itself indicates they have to mention for keeping the stock beyond 90 days within 30 days from the issuance of G.O. As

G.O.No.4 has been issued on 11.3.2022 they have one month time to mention in the portal. While arguing so, the learned counsel has shown the documents to the affect that even before issuance of the G.O.No.4, appellants had been submitting the data of stock to the relevant authorities promptly i.e the stock of

February, in the month of March, stock of March, in the month of April.

9.To buttress his argument, the learned counsel has shown Doc.No.2 and 3

dated 7.3.2022 showing the stock of February, 2022 along with postal receipt

dated 22.3.2022. The record shows that inspection has been done on

17.3.2022. As rightly argued by the learned counsel, the G.O.No.4 has been issued by the Government of Andhra Pradesh dated 11.3.2022. In pursuance of the Central government orders prescribing the stock limits and authorized the enforcement staff of Civil Supplies Department to register the cases in case of violation if any noticed.

10.The learned counsel further submits that they have 30 days time to submit the information to the portal from the issuance of G.O. As seen from the contents of G.O.No.4 referred supra, Para No.5(iii) would indicate that if legal entity maintains the stock higher than the prescribed limits, they shall declare the same on the portal to the Department of Food and Public Administration

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within 30 days of issue of Notification of Government of India. So, it is not 30 days from the issuance of G.O.No.4 dated 11.3.2022.

11.The learned counsel for the appellants further argued that they have ample evidence to show that the company had been furnishing the information in the portal regularly.

12.The learned counsel for the appellant filed some documents along with petition stating that they filed relevant documents to show that the appellant company has shown the stock report for the month of January and February, 2021 and there is no whisper in the impugned order. The learned counsel also filed the documents to show that the company has importer and exporter licence.

13.The learned counsel would submit that the company is being in the activity of grading and packing and they are importers. G.O. issued by the

Government would show that they are exempted in the respective business being conducted and they have been submitting reports periodically. To buttress their contention, the appellants filed the following documents i.e., (1) Import license of M/s.Ruchi Soya Industries Ltd., dated 01.04.1988, (2) VOP returns for the month of January, 2022 along with registered receipt dated 7.2.2022.

(3) VOP returns for the month of January, 2022 along with registered receipt dated 7.3.2022.

In the light of the documents filed by the appellants, it is vivid that they are attending the activity of importing. Such being the case, they are exempted as per the G.O. issued by the Government referred supra. The learned Collector (CS) without referring such documents and appreciating them came to the conclusion under the impression that they are manufacturers and not entitled for exemption.

14.Nevertheless, when the company has been showing the stock periodically for the months of January and February prior to the inspection,

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there is some force in the argument that they never violated the conditions of the G.O. Accordingly, the appeal is allowed setting aside the impugned order of the learned Collector (CS) vide order in V3/CS/KKD/86/2022 dated 18.5.2022.

15.In the result, appeal is allowed by setting aside the impugned order of the learned Collector and District Magistrate vide V3/CS/KKD/86/2022, dated 18.05.2022. Thereby, the confiscation of stock worth of Rs.10,00,000/- seized from the appellant or its value shall be returned to the appellants after appeal time.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me on this the 25 th day of January, 2023.

Sd/- P.Venkata Jyothirmai

PRINCIPAL SESSIONS JUDGE,

//t.c.f.b.o.// RAJAMAHENDRAVARAM.

Chief Administrative Officer.

Copy to:

The District Collector (CS), Kakinada.