1 MVOP.100 OF 2016
IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENTS CLAIMS
TRIBUNAL-CUM-II ADDL. DISTRICT JUDGE, KARIMNAGAR AT JAGTIAL
PRESENT: SRI SHAIK RAZAK-UZ-ZAMA, CHAIRMAN, M.V.A.C.T-cum-
II ADDL.DISTRICT JUDGE,
KARIMNAGAR AT JAGTIAL.
THURSDAY, THE 14TH DAY OF FEBRUARY, 2019
M.V.O.P.NO. 100 OF 2016
Between:
1.Bale Bhoolaxmi, W/o. Laxman, Age: 40 years, Occ: House-hold,
2.Bale Laxman, S/o. Chinna Rajam, Age: 45 years, Occ: Labour, Both are residents of Dharoor village of Jagtial mandal. …Petitioners.
and
1.Chada Rana Pratap, S/o. Mogilaiah, Age: 45 years, Vyshya, Owner and Rider of motor cycle bearing No. AP 15 AV 8039, R/o. Puranipet street, Jagtial town and mandal, District: Karimnagar.
2.The ICICI Lombard General Insurance Company Limited, near District court, Karimnagar town and mandal, represented by its Branch Manager.
(Policy No. 3005/27026759/21312/000 valid upto 6-4-2016)
...Respondents.
CLAIM:Petition under under Section 166 (1) (c) of Motor Vehicle's Act claiming compensation of Rs. 19,00,000/- (Rupees nineteen lakhs only) for the death of the deceased Bale Kalyan in a road traffic accident.
This petition is coming before me on 31-1-2019 for final hearing in the presence of Sri K. Damodhar Rao, Advocate for the petitioners and Sri K. Amarender Rao, Advocate for Respondent No.1 and Sri B. Gnan Prakash, Advocate for Respondent No.2, upon perusing the material papers on record, having been heard and stood over for consideration till this day, the Court delivered the following:
O R D E R
1. The petition is filed under Section 166 ( 1 ) ( c ) of Motor Vehicle's
Act, 1988 claiming compensation to a tune of Rs.19,00,000/- (Rupees nineteen lakhs only) for the death of Bale Kalyan in a motor vehicle's accident together with subsequent interest @ 18% per annum.
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2.The averments in the petition in nutshell are as follows:
The petitioners are the parents of the deceased Bale Kalyan who died in a fatal accident which was occurred on 26-4-2015 at about 8.15 p.m., near Viroopakshi Function Hall, Jagtial. On the date of occurrence, the deceased went to Jagtial on some work and on completion of said work, he was returning back to his house on a motor cycle bearing No. AP 09 AL 631. When he reached near the scene of offence, the first respondent who is the rider-cum-owner of the motor cycle bearing No. AP 15 AV 8039 drove the same in rash and negligent manner, at high speed and dashed against the motor cycle of the deceased in its opposite direction, due to which the said Bale Kalyan and pillion rider sustained multiple severe injuries and the said Bale Kalyan died on the spot on account of head injury. The Station House Officer,
Jagtial (Traffic) P.S., registered a case in Crime No. 14 of 2015 against
Respondent No.1 under Sections 304-A and 337 of IPC and filed the
Charge Sheet against him for his rash and negligent driving.
The deceased Bale Kalyan was quite hale and healthy person and he was aged about ( 18 ) years by the date of accident. The deceased has completed his 10th class and underwent training in
National Academy of Construction. He was working as a private electrician and earning an amount of Rs.10,000/- per month which he used to contribute the same for the welfare and maintenance of the petitioners. Due to the sudden demise of Bale Kalyan, the petitioners became destitute and lost their source of income as well as love and affection including the future prospects. The death of Bale Kalyan is a great loss to the petitioners. Both the respondents are jointly and
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severally liable to pay compensation to the petitioners. Hence the claim petition.
3.On appearance, the first respondent filed counter disputing the claim made by the petitioner as well as the manner in which the accident was occurred. The first respondent admits that he is the owner- cum-rider of the motor cycle bearing No. AP 15 AV 8039 which is involved in the accident, but he denied the rash or negligent act on his part. The first respondent did not dispute the fact that the crime motor cycle was insured with Respondent No.2 and the policy was in force by the date of accident. The first respondent claimed that the accident was occurred due to rash and negligent act on the part of the deceased who drove the motor cycle bearing No. AP 9 AL 0631 at high speed and dashed on the back side of the motor cycle belongs to Respondent No.1.
The first respondent was riding the motor cycle with utmost care and caution, in normal speed by taking all precautions. The deceased sustained head injury due to fall on the ground from the motor cycle.
The first respondent has also fallen on the ground and sustained fracture to his right leg and his wife who is pillion rider received simple injuries.
The compensation claimed by the petitioners is highly excessive and exorbitant. The second respondent is liable to indemnify the first respondent in view of the existence of Insurance Policy. The first respondent therefore prays the Tribunal to dismiss the petition with costs.
4.On appearance, Respondent No.2 filed counter contending inter-alia that the petition is not maintainable either in Law or on facts.
The second respondent denied the manner, method and depiction of alleged accident which took place on 26-4-2015 at about 8.15 p.m., near
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Viroopakshi Function Hall, Jagtial. The second respondent did not admit the age, health condition, avocation and income of the deceased on the date of accident. The second respondent submits that the first respondent as well as the deceased were not having any valid and effective Driving Licences to ride the motor cycles which are not road- worthy to ply. The claim made by the petitioners is highly excessive, exorbitant and arbitrary. The Insurance Company of the motor cycle belonged to the deceased is proper and necessary party. The first respondent has violated the terms and conditions of Insurance Policy for which the second respondent is not liable to pay any compensation to the petitioners. The second respondent sought protection under Sections 147 and 149 of M.V. Act as well as Section 64 of Insurance Act. The second respondent therefore prays the Tribunal to dismiss the petition with costs.
5.Basing on the above pleadings, the following issues are settled for trial on 7-9-2016:
1.Whether the death of the deceased was caused in Motor Vehicle Accident on account of rash and negligent driving of rider of motor cycle bearing No. AP 15 AV 8039 by Respondent No.1 ?
2.Whether the petitioners are entitled to claim compensation, if so, to what amount and from whom ?
3.To what relief ?
6.During the course of trial, PWs.1 to 3 are examined and
Ex.P.1 to P.10 are marked on behalf of the petitioners. On the other hand, RW.1 is examined and Ex.R.1 policy is marked on behalf of the second respondent.
7.Heard the arguments from both sides.
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8.ISSUE NO.1:
The learned counsel for the petitioners vehemently argued that the petitioners are the parents of Bale Kalyan who died in a road accident which was occurred on 26-4-2015 at about 8.15 p.m., near
Viroopakshi Function Hall, Jagtial while he was returning back to the house from Jagtial after attending on some work and when he reached near the scene of offence, the first respondent being the rider of the crime motor cycle drove the same in rash and negligent manner and dashed against the motor cycle of the deceased, which resulted into the his death on the spot on account of severe head injury and the Station
House Officer, Jagtial (Traffic) P.S., registered Ex.P.1 First Information
Report basing on Ex.P.2 report and prosecuted Respondent No.1 under
Ex.P.5 for the offences punishable under Sections 304-A and 338 of IPC for his rash and negligent driving. He further submitted that the deceased was quite hale and healthy person and he was ( 18 ) years old by the date of accident and he was earning an amount of Rs.10,000/- per month as private electrician which were being contributed for the welfare and maintenance of the petitioners and on account of sudden demise of Bale Kalyan the petitioners suffered not only with severe mental agony but also shock and lost their love and affection as well as income including the future prospects for which the respondents are vicariously liable to pay the compensation to the petitioners.
Whereas, the learned counsel for Respondent No.1 submitted that the accident was occurred due to gross negligence on the part of the deceased who drove the motor cycle in a rash and negligent manner, at high speed and dashed on the back side of the motor cycle belongs to
Respondent No.1. The learned counsel for Respondent No.2 submitted
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that neither the first respondent nor the deceased possessed any valid and effective Driving Licences to drive the motor cycles which involved in accident and the said motor cycles are not road-worthy to ply and the claim made by the petitioners is highly excessive and exorbitant. He further submitted that the first respondent has violated the terms and conditions of Ex.R.1 policy thereby the second respondent is not liable to pay any compensation to the petitioners.
9.As a matter of fact, the negligence is not a question of evidence. It is an inference which is to be drawn from the proved facts. In the proceedings under the Motor Vehicle's Act, the finding of negligence has to be recorded basing on the preponderance of probabilities, therefore both parties must lead appropriate evidence in support of their claim. The general purport of the word ''res-ipsa- loquitor'' is that the accident ''speaks for itself'' or ''tells its own story''.
The right of the victims in the road accident to claim compensation is a statutory one. The Parliament in its wisdom inserted relevant provisions in Motor Vehicle's Act in order to protect the victims of road accidents travelling in the vehicles or using the road and thereby made it obligatory that no motor vehicle shall be used unless the vehicle is compulsorily insured against the third party risk. The aim and object of making insurance compulsory before a vehicle is put on the road is to protect the victims who sustained injuries and death in the fatal accident.
Undisputedly, a new chapter was inserted in Motor Vehicle's Act only with an intention to take welfare measures to insure the vehicle and to protect the plight of the victims in road accidents. Section 94 was inserted in order to protect the members of the community travelling in the motor vehicles who are using the road from risk attending factors.
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The Law undoubtedly provided compensation to the victims of accidents who sustained injuries in the course of accidents or compensation to the dependents of the victims in case of fatal accident.
10.Now going into the merits of the evidence placed before the
Tribunal, it is seen that first petitioner who is the mother of the deceased herself got examined as PW.1 besides examining the eye witness to the accident viz., B. Laxman as PW.2 and one D. Prabhakar as PW.3. PW.1 filed evidence affidavit under Order 18 Rule 4 of C.P.C., in lieu of her chief-examination reiterating the contents of the petition. PW.1 narrated about the manner in which the accident was occurred on 26-4-2015 at about 8.15 p.m., near Viroopakshi Function Hall, Jagtial while her son was returning back to the house from Jagtial after attending on some work on his motor cycle bearing No. AP 09 AL 631 and when he reached near the scene of offence, the first respondent being the rider of the crime motor cycle drove the same in rash and negligent manner and dashed against the motor cycle of her son, due to which he sustained severe head injury and died on the spot besides causing injuries to PW.2 who is the pillion rider. PW.1 further stated that the Station House
Officer, Jagtial (Traffic) P.S., registered Ex.P.1 First Information Report basing on Ex.P.2 report and prosecuted Respondent No.1 under Ex.P.5 for the offences punishable under Sections 304-A and 338 of IPC for his rash and negligent driving. According to PW.1, her deceased son Bale
Kalyan was quite hale and healthy person and he was ( 18 ) years old and he was earning an amount of Rs.10,000/- per month as a private electrician which he used to contribute the same for her welfare and the welfare of her husband and due to sudden demise of her son Bale Kalyan she along with the second petitioner sustained great loss to the estate
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and lost their love and affection including the income as well as their future prospects.
During the course of cross-examination PW.1 fairly deposed that she is not the eye witness to the accident as she was in the house at the time of accident and she got two sons including the deceased and another son namely Vamshi, pursuing Degree final year and the deceased Kalyan studied upto 10th class and he has taken training as an
Electrician for two years. PW.1 has reiterated the manner in which the accident was occurred on 26-4-2015 which resulted into the death of her son. The rest of the cross-examination conducted to PW.1 is of mere denial suggestions. It was suggested to PW.1 that the deceased Kalyan did not possess any valid and effective Driving Licence and he does not know the driving of motor cycle and that the motor cycle belongs to her son was not road-worthy to ply. It was also suggested to PW.1 that the deceased drove the motor cycle in rash and negligent manner and hit the motor cycle of Respondent No.1 and the claim made by her and second petitioner is highly excessive and exorbitant. Undoubtedly, PW.1 denied the said suggestions promptly. Except the said bald suggestions, nothing worthwhile could be elicited through PW.1 either to disprove the manner in which the accident was occurred or rash and negligent act on the part of Respondent No.1. It was not suggested to PW.1 that the respondents are not the rider-cum-owner and insurer of the crime vehicle bearing No.
AP 15 AV 8039 and it was not involved in the accident and the said crime vehicle was not road-worthy to ply. It was also not suggested to PW.1 that Respondent No.1 was not the rider of the crime motor cycle on the date of accident and he was not holding any valid and subsisting Driving
Licence to drive the same on the date of accident. The second
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respondent did not suggest to PW.1 that the accident was occurred due to rash and negligent act on the part of the deceased without there being any fault on the part of Respondent No.1. Infact the death of the deceased Kalyan in a road traffic accident which was occurred on 26-4- 2015 is neither disputed nor questioned. It was not even suggested to
PW.1 that there is no nexus between the accident, involvement of crime motor cycle and the death of the deceased Kalyan. In the absence of any such cross-examination, the testimony of PW.1 cannot be discarded with regard to the manner in which the accident was occurred including the rash and negligent act on the part of Respondent No.1. The alleged violation of mandatory provisions under Sections 147 and 149 of M.V.
Act as well as Section 64 of Insurance Act were not at all pointed out to
PW.1. Nothing could be elicited through PW.1 to show that the first respondent has violated the terms and conditions of Ex.R.1 policy. Thus, the cross-examination of RW.1 is found to be not in accordance with the defence set out by the respondents. It is clear from the evidence of
PW.1 that the accident was occurred on 26-4-2015 at 8.15 p.m., near
Viroopakshi Function Hall, Jagtial while her deceased son was returning back to the village from Jagtial after attending on some work due to rash and negligent act on the part of Respondent No.1. It is further clear from the testimony of PW.1 that her son Kalyan sustained head injury during the course of accident and died on the spot. There is no reason either to discredit or discard the evidence of PW.1 nor any material was elicited to hold that the evidence of PW.1 is untrustworthy.
11.PW.2 is no other than the eye witness to the accident who stated in evidence affidavit that the accident was occurred on 26-4-2015 at about 8.15 p.m., near Viroopakshi Function Hall, Jagtial while the
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deceased was returning to his village on a motor cycle bearing No. AP 09
AL 631 along with him as pillion rider. PW.2 further stated that the first respondent drove the crime motor cycle bearing No. AP 15 AV 8039 in rash and negligent manner, at high speed and dashed against the motor cycle of the deceased, due to which said Kalyan received severe head injury and died on the spot and he also sustained bleeding injuries.
According to PW.2, the accident was occurred due to rash and negligent act on the part of Respondent No.1 which resulted into the death of the deceased and caused injuries to him as a pillion rider.
In the cross-examination, PW.2 deposed that he was the pillion rider on the motor cycle of the deceased on the date of accident and he know the deceased Bale Kalyan for the past three years as he worked in Dolphin Water Plant prior to him. PW.2 further deposed that the scene of offence is a wide road and he along with the deceased were proceeding towards Dharoor village from Jagtial at that time. It was elicited through PW.2 that the deceased Bale Kalyan possessed valid
Driving Licence to ride the motor cycle. However, PW.2 denied the suggestion that there was no fault on the part of Respondent No.1 in causing the accident and he was implicated into the crime for the purpose of claiming compensation and Respondent No.1 was not holding any valid Driving Licence to ride the crime motor cycle. PW.2 further denied the suggestion that the accident was occurred due to rash and negligent act on the part of the deceased who drove the motor cycle at high speed and that the deceased did not possess any valid and effective
Driving Licence to drive the same and he is deposing false. Mere suggesting PW.2 that the accident was occurred due to negligence of the deceased without there being any fault on the part of Respondent No.1
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does not serve any purpose. Infact nothing could be elicited through
PW.2 to disprove his presence near the scene at the time of accident. It was not suggested to PW.2 that he was not proceeding on the motor cycle of the deceased as a pillion rider at the time of accident. it was also not suggested to PW.2 that he was planted by the petitioners for the purpose of claim. PW.2 is neither related to the deceased nor got any enmity with Respondent No.1, but he is an independent witness besides being the eye witness. Nothing worthwhile could be elicited through
PW.2 to show the reason or necessity for him to give false version. As such no bonafides or motives could be attributed against the evidence of
PW.2 which is found to be consistent with the testimony of PW.2 on all material aspects. Moreover, PW.2 was cited as eye witness-cum-injured in Ex.P.5. The evidence of PW.2 cannot be disbelieved when he was the pillion rider of the motor cycle driven by the deceased. PW.2 is the best person to speak about the manner in which the accident was occurred.
The testimony of PW.2 clearly indicate that the accident was occurred due to rash and negligent act on the part of Respondent No.1 which resulted into the death of the deceased and in causing injuries to him.
The evidence of PW.2 is corroborated with the testimony of PW.1. There is nothing on record to discredit the presence of PW.2 near the scene at the time of accident.
12.The first respondent himself got examined as RW.1 who filed evidence affidavit stating that he is the rider-cum-owner of the motor cycle bearing No. AP 15 AV 8039 which involved in accident on 26-4-2015 at 8.15 p.m., near Viroopakshi Function Hall, Jagtial and that the crime motor cycle was insured with Respondent No.2 vide Ex.R.1 policy which was very much in force on the date of accident. However,
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RW.1 stated that there was no rash or negligent act on his part, but the accident was occurred due to the fault of the deceased who drove the motor cycle at high speed in rash and negligent manner and hit the back portion of his motor cycle while taking 'U' turn for which the said Bale
Kalyan fell on the road along with the pillion rider and received injuries.
According to RW.1, the claim made by the petitioners is highly excessive and exorbitant and the second respondent being the insurer of crime motor cycle is alone liable to pay compensation to the petitioner.
During the cross-examination, it was elicited through RW.1 that he possessed valid and effective Driving Licence vide No.
AP01520110024633 issued by R.T.O., Jagtial which is valid upto 2016 and that the crime motor cycle bearing No. AP 15 AV 8039 was insured with Respondent No.2. RW.1 admitted that the Police registered Ex.P.1
First Information Report against him and prosecuted under Ex.P.5 for the offences punishable under Sections 304-A and 338 of IPC for his rash and negligent driving. RW.1 did not dispute that he was returning to
Jagtial from Viroopakshi Function Hall, Jagtial by taking 'U' turn at the scene of offence and the deceased was proceeding towards Dharoor village from Jagtial. RW.1 stated that he was proceeding along with his wife at the time of accident. RW.1 is not able to speak the particulars of the vehicle which came in opposite direction at the time of accident and the vehicle of the deceased. RW.1 further stated that the road at the scene of offence is a wide road. RW.1 pleaded ignorance on the aspect whether the deceased was having valid Driving Licence to drive the other motor cycle. There is no basis for RW.1 to claim that the petitioners have influenced the Police and got registered Ex.P.1 and P.5 against him for the purpose of claim. It was suggested to RW.1 that the accident
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was occurred due to rash and negligent act on his part and he is liable to pay compensation to the petitioners along with the second respondent.
The testimony of RW.1 discloses the involvement of crime motor cycle in the accident. It further shows that he was prosecuted by the Police under Ex.P.5 for his rash and negligent driving. RW.1 spoken about the details of the Driving Licence possessed by him which was not at all disputed by Respondent No.2. Thus the evidence of RW.1 supported the claim made by the petitioners. RW.1 did not dispute the fact that PW.2 was pillion rider on the motor cycle driven by the deceased. RW.1 did not choose to examine his wife who was pillion rider on his motor cycle.
It is not the evidence of RW.1 that he along with his wife sustained injuries during the course of accident. No Medical Certificate is filed to that effect. RW.1 never stated about the contents of Para No.8 of his counter. Thus the testimony of RW.1 is of no avail to the defence set- out by RW.1.
13.Admittedly, the second respondent though filed counter disputing the claim made by the petitioners, failed to adduce any evidence on his behalf in support of the defence. There is no basis for the second respondent to contend that the accident was occurred due to negligence on the part of the deceased without there being any fault on the part of Respondent No.1. Equally, there is no basis for Respondent
No.2 to claim that the first respondent was not having any valid and subsisting Driving Licence to ride the crime motor cycle on the date of accident and he has violated the terms and conditions of Ex.R.1 policy.
The second respondent did not choose to examine any witness on its behalf to disprove the contention of the petitioners. In the absence of any such evidence from Respondent No.2, it can safely be presumed that
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the accident was occurred due to rash and negligent act on the part of
Respondent No.1 which resulted into the death of the deceased. Further it is suffice to infer that the crime motor cycle bearing No. AP 15 AV 8039 was the vehicle which involved in accident. As a matter of fact, pleading itself is not a proof. Every pleading must be substantiated either by oral or documentary evidence. No evidence is forth-coming from Respondent
No.2 in support of its defence. Therefore, it can safely be inferred that the defence set out by Respondent No.2 is neither proved nor established.
14.It is pertinent to see that the petitioner got marked Ex.P.1 to
P.10 in support of their claim for compensation. Whereas the insurance policy pertaining to the crime motor cycle issued by Respondent No.2 is marked as Ex.R.1 by consent. So far as Issue No.1 is concerned, Ex.P.1 to P.7 are relevant. Ex.P.1 is the Certified Copy of First Information
Report in Crime No. 14 of 2015 of Jagtial (Traffic) P.S., for the offences under Sections 304-A and 337 of IPC which was registered basing on Ex.P.2 lodged by PW.1 who is no other than the mother of the deceased. Ex.P.5 is the Certified Copy of the Charge Sheet laid by
the Sub Inspector of Police, Jagtial (Traffic) P.S.,in Crime No. 14
of 2015 against Respondent No.1 for the offence punishable
under Sections 304-A and 338 of IPC. The recitals in Ex.P.1, P.2 and
P.5 amply go to show that the accident was occurred on 26-4-2015 at about 8.15 p.m., near Viroopakshi Function Hall, Jagtial situated at
Karimnagar to Jagtial main road. The contents of Ex.P.1, P.2 and P.5 further go to show that the accident was occurred due to rash and negligent act on the part of Respondent No.1 who drove the crime motor cycle at high speed and dashed against the motor cycle of the deceased,
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which resulted into his death besides causing injuries to PW.2 who is a pillion rider. It is clearly mentioned in Ex.P.1, P.2 and P.5 about the manner in which the accident was occurred and that the said Bale Kalyan (deceased) died on the spot on account of severe head injury.
Undoubtedly, PW.2 was cited as eye witness-cum-injured in Ex.P.5. The particulars of the crime motor cycle as well as the motor cycle of the deceased were clearly noted in Ex.P.1, P.2 and P.5. Moreover, Ex.P.1 was registered against Respondent No.1 for his rash and negligent act.
The name of Respondent No.1 as the rider of the crime motor cycle was clearly mentioned in Ex.P.2 at the earliest point of time. It is to be mentioned here that the first respondent was not prosecuted under
Section 3 read with 181 of M.V Act in Ex.P.7 which itself is sufficient to negative the contention of Respondent No.2 regarding the non- possessing of Driving Licence by Respondent No.1 on the date of accident. No whisper was made in Ex.P.5 to the effect that Respondent
No.1 was not holding any valid and subsisting Driving Licence to ride the crime motor cycle. Absolutely no cross-examination was conducted to
PWs.1 and 2 with regard to Ex.P.1, P.2 and P.5. The second respondent though filed counter failed to substantiate the defence put-forth by it.
Neither the first respondent not the second respondent choose to cross- examine PWs.1 and 2 with regard to Ex.P.1, P.2 and P.5. No contra evidence is lead by the respondents against the testimony of PWs.1 and 2 and contents of Ex.P.1, P.2 and P.5. Thus Ex.P.1, P.2 and P.5 have not only proved the factum of accident, but also the rash and negligent act on the part of Respondent No.1.
Ex.P.3 is the Certified Copy of Inquest Report, dated
27-4-2015 in Crime No. 14 of 2015 pertaining to the deceased
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Bale Kalyan. As seen from Ex.P.3 the death of B. Kalyan was in a fatal accident which was occurred on 26-4-2015 at about 8.15 p.m., near
Viroopakshi Function Hall, Jagtial on Jagtial to Karimnagar main road. It is also mentioned in Ex.P.3 about the manner in which the accident was occurred which resulted into the death of B. Kalyan. The inquest mediators have opined in Columns No.9 and 15 that the accident was occurred due to rash and negligent act on the part of Respondent No.1.
The name of Respondent No.1 as the driver of the crime motor cycle was also mentioned in Ex.P.3. The presence of PW.2 near the scene as pillion rider of the motor cycle driven by the deceased is also mentioned in
Ex.P.3. The scene of offence mentioned in Ex.P.3 is one and the same with that of the scene of offence as deposed by PWs.1 and 2. The inquest was held over the body of the deceased on 27-4-2015 from 8.30 a.m., to 10.30 a.m., in Mortuary Room, Government Hospital, Jagtial.
Ex.P.4 is the Certified Copy of Form No.54 (Accident
Information Report) prepared by the Sub Inspector of Police, Jagtial (Traffic) P.S., in Crime No. 14 of 2015. The recitals in Ex.P.4 go to show that the accident was occurred on 26-4-2015 at 8.15 p.m., near
Viroopakshi Function Hall, Jagtial on the main road of Jagtial to
Karimnagar. The Respondents No.1 and 2 are shown as owner-cum- rider as well as insurer of the crime motor cycle bearing No. AP 15 AV 8039. The particulars of the deceased and injured PW.2 were clearly mentioned in Ex.P.4. More particularly Ex.P.4 discloses the details of valid Driving Licence possessed by Respondent No.1. It is mentioned in
Column No.8 of Ex.P.4 that Respondent No.1 possessed Driving Licence bearing No. AP01520110024633 which is valid upto 19-6-2016. The particulars of Driving Licence was clearly spoken by RW.1. It is also
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mentioned in Columns No.10 and 11 of Ex.P.4 that the crime vehicle was insured with Respondent No.2 including the details of Ex.R.1 policy which is valid upto 6-4-2016. The contents of Ex.P.4 clearly negative the plea taken by Respondent No.2 with regard to non-possessing of Driving
Licence by Respondent No.1 on the date of accident.
Ex.P.6 is the Certified Copy of M.V.I., report pertaining to the Crime No. 14 of 2015 of Jagtial (Traffic) P.S. It is mentioned in
Ex.P.6 that the accident was occurred on 26-4-2015 at 8.15 p.m., near
Viroopakshi Function Hall, Jagtial on the main road from Jagtial to
Karimnagar. It is also mentioned in Ex.P.6 that the crime motor cycle bearing No. AP 15 AV 8039 was the vehicle which caused the accident.
The particulars of Respondents No.1 and 2 as rider-cum-owner as well as insurer of the crime vehicle were mentioned in Ex.P.6 by the M.V.I.,
Jagtial. It was clearly mentioned in Column No.17 of Ex.P.6 regarding the valid Driving Licence possessed by Respondent No.1 which is valid upto 19-6-2016. The name of the deceased and injured were clearly mentioned in Column No.18-A of Ex.P.6. Thus the contents of Ex.P.6 are sufficient to establish that Respondent No.1 was holding valid Driving
Licence to ride the crime motor cycle on the date of accident. Further
Ex.P.6 established the involvement of crime motor cycle in the accident.
The M.V.I., Jagtial has opined in Ex.P.6 that the accident was not due to any mechanical defects in the crime vehicle. He mentioned the damages caused to the crime motor cycle at the time of accident.
Ex.P.7 is the Certified Copy of Post Mortem
Examination report of the deceased, dated 27-4-2015 issued by the
Civil Assistant Surgeon, Government Hospital, Jagtial. Ex.P.7 discloses that an autopsy was conducted over the body of the deceased B. Kalyan
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on 27-4-2015 from 10.15 a.m., to 11.15 a.m., in Mortuary room,
Government Hospital, Jagtial. The Medical Officer has opined in Ex.P.7 that the cause of death was on account of cardio respiratory arrest due to head injury and cerebral hemorrhage on account of road traffic accident. The particulars of antemortem injuries sustained by the deceased were clearly mentioned in Column No.11 of Ex.P.7. Absolutely, no cross-examination was conducted to PWs.1 and 2 even with regard to
Ex.P.3, P.4, P.6 and P.7. The evidence of PW.1 and PW.2 is found to be consistent with the contents of Ex.P.1 to P.7. The testimony of PWs.1 and 2 coupled with the contents of Ex.P.1 to P.7 clearly establishes that the death of the deceased B. Kalyan was in a fatal accident on account of rash and negligent act on the part of Respondent No.1. Accordingly, the petitioners are able to show that the accident was occurred on 26-4-2015 at 8.15 p.m., near Viroopakshi Function Hall, Jagtial on the main road of
Jagtial to Karimnagar due to rash and negligent act on the part of
Respondent No.1 which resulted into the death of the deceased
B. Kalyan, as such Issue No.1 is answered in favour of the petitioners and against the respondents.
15.ISSUE NO.2
It is seen that the petitioners herein are the parents of the deceased B. Kalyan who died in a fatal accident which was occurred n 26-4-2015, at 8.15 p.m., near Viroopakshi Function Hall on Jagtial to
Karimnagar road. The petitioners are claiming compensation to a tune of
Rs.19,00,000/- (Rupees nineteen lakhs only) for the death of their son namely B. Kalyan in a road traffic accident under various heads. I feel it is just and proper as well as necessary to answer the claim made by the petitioners under each head one after another. The petitioners have
19 MVOP.100 OF 2016
claimed the entire compensation of Rs.19,00,000/- under two categories viz., special damages and general damages. Fore-mostly, the petitioners have claimed an amount of Rs.30,000/- (Rupees thirty thousand only) under special damages which includes the transport charges, extra nourishment, medical expenses, funeral expenses, damage to clothes, loss of earnings and loss of estate, etc. So also the petitioners have claimed an amount of Rs.18,70,000/- (Rupees eighteen lakhs seventy thousand only) under general damages towards the compensation for pain and suffering, loss of life, consortium, mental agony, etc. I would like to answer the each sub-count under category of special damages and general damages herein:
I.SPECIAL DAMAGES
i.CLAIM PERTAINING TO TRANSPORT CHARGES
The evidence of PWs.1 and 2 amply go to show that the accident was occurred on 26-4-2015, at 8.15 p.m., near Viroopakshi
Function Hall on Jagtial to Karimnagar road due to rash and negligent act on the part of Respondent No.1 which resulted into the death of the deceased Bale Kalyan on the spot. The death of the deceased Bale
Kalyan in a fatal accident on the spot is not disputed. The petitioners are the parents of the deceased Bale Kalyan who are the residents of
Dharoor village, Jagtial. As per Column No.14 of Ex.P.3, the body of the deceased Bale Kalyan was handed-over to the petitioners after conducting autopsy and inquest at Government Hospital, Jagtial to perform his funerals and last rites. The distance between the scene of offence and Government Hospital, Jagtial is about ( 8 ) kilometers. So also the distance between Dharoor village and Government Hospital,
Jagtial is about ( 5 ) kilometers. In such situation, the petitioners might have incurred some expenditure to shift the body of their son i.e.,
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deceased Bale Kalyan from Government Hospital, Jagtial where the inquest and autopsy were conducted in order to perform his last rites a their native place. An amount of Rs.2,000/- would meet the ends of justice towards transport expenses. Therefore, the petitioners are entitled for an amount of Rs.2,000/- (Rupees two thousand only) towards transport charges.
ii.CLAIM PERTAINING TO FUNERAL EXPENSES
The petitioner has claimed compensation for funeral expenses under the category of special damages. As a matter of fact, when the death of a person occurs, the funeral expenses is to be accorded as per the tradition and custom prevailing in the society.
Undoubtedly, the petitioners might have incurred some expenditure to perform the last rites of the deceased. As per Schedule-II, Appendix -3 of M.V., Act an amount of Rs.2,000/- can be awarded towards funeral expenses for cremation and obsequies. Therefore, I am of the view that the petitioners are entitled for an amount of Rs.2,000/- (Rupees two thousand only) towards funeral expenses.
iii.CLAIM PERTAINING TO EXTRA NOURISHMENT AND
MEDICAL EXPENSES
The petitioners have included the claim pertaining to extra nourishment and medical expenses under the category of special damages. The material on record clearly discloses that the deceased
Bale Kalyan died in a road traffic accident on the spot and there was no scope or opportunity for the petitioners to take the deceased to
Government Hospital, Jagtial for treatment. There is no documentary proof in support of the present claim. The question of incurring expenditure towards extra nourishment and medical expenses does not
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arise when the deceased died on the spot. Moreover, it was observed in a legal authority reported in 2006 ( 2 ) ALT, 209 Division Bench that "in
case of death in a fatal accident the claimants are not entitled to
claim any amount towards the medical expenses." In view of said proposition of Law, the petitioners are not entitled to claim any compensation towards the extra nourishment and medical expenses.
iv.CLAIM PERTAINING TO DAMAGE TO CLOTHES AND
ARTICLES
The petitioners have claimed compensation towards the damage to clothes of the deceased and motor cycle under the caption of special damages. Undoubtedly, the deceased Bale Kalyan died on the spot soon after the accident. There are recitals in Ex.P.3 at Column No.7 that the clothes of the deceased i.e., black full shirt, black pant and dark brown underwear were handed over to the petitioners which were damaged and became un-useful to the petitioners. As a matter of fact, when the motor cycle of the deceased involved in accident, it might have damaged during the course of accident. Undoubtedly, the petitioners have not placed any document to show the damage caused to the motor cycle. Strict proof of the document is not required under the provisions of Motor Vehicles Act. Some nominal amount can be awarded to the petitioners towards damage to the clothes and the motor cycle.
Therefore, I am of the view that the petitioners are entitled to a tune of
Rs.2,000/- (Rupees two thousand only) towards the damage to clothes and motor cycle belong to the deceased Bale Kalyan.
v. CLAIM PERTAINING TO LOSS OF EARNINGS AND
FUTURE TREATMENT
The petitioners have claimed compensation under the category of special damages towards loss of earnings and future
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treatment. Infact, the petitioners have claimed compensation under the category of general damages towards loss of life and future earning power, etc. If any compensation is awarded towards the loss of earnings on the death, it would amount double claim. There is no iota of material to show that the petitioners have incurred some expenditure towards the future treatment. Infact the question of taking future treatment does not arise when the deceased died on the spot at the time of accident.
Therefore, the petitioners are not entitled to claim any compensation towards the loss of earnings and future treatment.
vi.CLAIM PERTAINING TO LOSS OF ESTATE
The petitioners have claimed compensation towards loss of estate under the category of special damages on account of sudden demise of their son Bale Kalyan. The fact that the death of the deceased
Bale Kalyan in a fatal accident on 26-4-2015 remains undisputed. The petitioners are the parents of the deceased Bale Kalyan who died at the age of ( 18 ) years. Naturally, the petitioners being the parents of the deceased Bale Kalyan would have reasonable expectation of future financial aid and moral support from their son. The death of a son at the age of ( 18 ) years is a great loss to the petitioners who are his parents which cannot be compensated in any terms. The claim pertaining to loss of estate is to be awarded due to sudden death of the son of the petitioners. Therefore, an amount of Rs.10,000/- towards loss of estate would meet the ends of justice. Accordingly, the petitioners are entitled for an amount of Rs.10,000/- (Rupees ten thousand only) towards the loss of estate on account of sudden demise of their son Bale Kalyan in a motor vehicle's accident.
23 MVOP.100 OF 2016
In view of my fore-going discussion with reasons, I hold that the petitioners are entitled for a compensation of Rs.16,000/- towards special damages under all the above heads as against the claim of
Rs.30,000/-.
II. COMPENSATION FOR GENERAL DAMAGES
The petitioners have claimed an amount of Rs.18,70,000/- (Rupees eighteen lakhs seventy thousand only) towards the general damages claiming compensation for pain and suffering, consortium, loss of life, future earning power, mental agony and loss of love and affection.
I would like to answer the claim for general damages under each sub head as claimed by the petitioners.
i.CLAIM PERTAINING TO PAIN AND SUFFERING
The petitioners have claimed compensation towards pain and suffering under the caption of general damages. The material on record discloses that one Bale Kalyan died instantaneously in a road traffic accident. Thus the present claim falls under the category of death comes but not the case of injuries. Normally, the question of awarding compensation towards pain and suffering would arise only in the case of injuries but not death in a fatal accident. The said principle was laid down in a legal authority reported in a legal authority reported in 2006 ( 2 ) ALT, Page 209 (Division Bench) wherein it was held that "in case
of death in a fatal accident, the claimants are not entitled to claim
any amount towards either pain and suffering or medical
expenses." In view of the said proposition of Law, the petitioners are not entitled to claim any compensation towards pain and suffering.
Basing on the principle laid down in the above citation, I am of the view
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that the petitioners are not entitled to claim any compensation towards pain and suffering.
ii.CLAIM PERTAINNG TO CONSORTIUM
The petitioners who are the parents of the deceased Bale
Kalyan claimed compensation towards consortium. It is not in dispute that the deceased Bale Kalyan died on the spot in a road traffic accident which was occurred on 26-4-2015, at 8.15 p.m., near Viroopakshi
Function Hall on Jagtial to Karimnagar road. As a matter of fact, consortium is to be awarded to the living spouse, but not to others as per the provisions of M.V. act. The deceased Bale Kalyan was un-married person and a bachelor. Therefore, the petitioners being the parents of the deceased are not entitled for any amount towards the consortium.
iii.CLAIM PERTAINING TO LOSS OF LIFE, AMENITIES,
LOVE AND AFFECTION, FUTURE EARNING POWER,
MENTAL AGONY, ETC.
The petitioners have claimed compensation towards the loss of life, amenities, love and affection, future earning power, mental agony, etc., under the category of general damages. According to PW.1, the deceased Bale Kalyan was quite hale and healthy and he was ( 18 ) years old by the date of accident and he was earning an amount of
Rs.10,000/- per month as a private electrician which were being contributed for the welfare and maintenance of herself and second petitioner to became destitute and lost their source of income on account of sudden demise of their son in a fatal accident. PW.1 further stated that she along with second petitioner suffered with severe mental agony and lost their love and affection due to the death of their son. The evidence of PWs.1 and 2 coupled with the contents of Ex.P.1 to P.7
25 MVOP.100 OF 2016
amply establishes that the accident was occurred due to rash and negligent act on the part of the rider of the crime motor cycle on 26-4-2015 at 8.15 p.m., near Viroopakshi Function Hall on Jagtial to
Karimnagar road. The death of Bale Kalyan in a road traffic accident remains undisputed.
As a matter of fact, the dependency has to be calculated with reference to the age and income of the deceased Bale Kalyan on the date of accident. It is the testimony of PW.1 that she is the mother of the deceased Bale Kalyan who was aged about ( 18 ) years by the date of accident. The age of the deceased was shown as ( 18 ) years even in claim petition. Absolutely, no cross-examination was conducted to PW.1 disputing the age of the deceased. The petitioners got filed Ex.P.9 which is the Secondary School Certificate of the deceased Bale Kalyan issued by the Board of Secondary Education, A.P. The date of birth of the deceased is shown as 12-8-1996 in Ex.P.9. The accident was occurred on 26-4-2015. Thus the age of the deceased Bale Kalyan as per Ex.P.9 is 18+ by the date of accident. Even other-wise, the age of the deceased was mentioned as ( 18 ) years in Ex.P.1 to P.5 and P.7. Ex.P.10 is a material document issued by the competent authority in order to ascertain the age of the deceased. Infact there is no need for strict proof of the age of the deceased so far as the claim petition under the provisions of Motor Vehicle's Act is concerned. The evidence of PW.1 coupled with the contents of Ex.P.1 to P.5, P.7 and P.9 clearly go to show that the deceased Bale Kalyan was 18+ years old on the date of accident which can be taken into consideration to assess the compensation under this head.
26 MVOP.100 OF 2016
So far as the income of the deceased Bale Kalyan is concerned, PW.1 stated that he was earning an amount of Rs.10,000/- per month as a private electrician which were being contributed for the welfare and maintenance of herself and second petitioner. Undoubtedly, the second respondent disputed the income of the deceased at the time of accident. PW.1 though stated that the deceased Bale Kalyan had undergone training for electrician course, failed to submit any document in that regard. PW.1 admitted that she has not filed any document to show the income of the deceased who was a bachelor. However it was suggested to PW.1 that the deceased Bale Kalyan was not earning any amount much less an amount of Rs.10,000/- per month. Admittedly, no document is filed in proof of income of the deceased. When proof of income is not filed, it is appropriate to take the notional income of the deceased into consideration.
The petitioners made an attempt to show the income of the deceased by examining PW.3 who stated that he know the deceased Bale
Kalyan and he was working as Electrician at Dharoor village besides attending on repair works of electric motor pumps and he was earning
Rs.10,000/- per month. In the cross-examination, PW.3 admitted that himself and the deceased belongs to same community and residents of
Dharoor village and he has not filed any document to show the income of the deceased. It was elicited through PW.3 that he appeared before the
Tribunal to give evidence on the request of the petitioners. PW.3 did not dispute the fact that if the deceased has undergone any training as
Electrician there will be certificate to that effect. Neither PW.1 nor PW.3 have spoken about the period of training said to have undergone by the deceased as Electrician. It was rightly suggested to PW.1 that the
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deceased was not earning an amount of Rs.10,000/- permonth and he is deposing false at the instance of petitioners. Whereas RW.1 stated that the deceased was not earning an amount of Rs.10,000/- nor he contributed any amount for the welfare and maintenance of the petitioners. It is for the petitioners to establish the income of the deceased. When there is no proof of income, the Hon'ble Apex Court held in a decision reported in 2008 ACJ, Page 1488 (Laxmi Devi and others Vs. Mohammad Tabbar and others) observed that "normally any
un-skilled labour would get Rs.100/- (Rupees one hundred) per
day i.e., Rs.3,000/- per month which can be taken into
consideration as notional income in the absence of proof of
income". Basing on the principle laid down in the above citation, the income of the deceased can be arrived at Rs.3,000/- per month notionally due to lack of any proof in that regard.
As per the schedule-II of Appendix-3 of M.V., Act as well as multiplier table fixed by the Hon'ble Apex Court in a land mark judgment reported in 2009 ACJ, Page 1298 (Smt. Sarala Varma Vs. Delhi Transport
Corporation and another) the relevant multiplier is " 18 " for the age group of persons between 15 to 20. Since the age of the deceased is 18+ as per Ex.P.9, the relevant multiplier " 18 " is to be applied to the annual notional income of the deceased after deducting 50% of the amount towards his personal and living expenses being the un-married person (bachelor) in order to arrive the actual dependency which calculated hereunder:
1Age of the deceased Bale Kalyan ( 18 ) years
2.Relevant multiplier " 18 "
3.Notional income of the deceased Rs.3,000/- per month
28 MVOP.100 OF 2016
4.Annual income of the deceased Rs.3,000/- per month X 12 months = Rs.36,000/-
5.Application of relevant multiplier Rs.36,000/- X 18 = Rs.6,48,000/-
6.Deduction of 50% amount towards living and personal expenses Rs.6,48,000/- X 50% = 3,24,000/-
7.Compensation entitled Rs.3,24,000/-.
Thus the petitioners are entitled to a tune of Rs.3,24,000/- (Rupees three lakhs twenty four thousand only) towards the compensatio for loss of life, future amenities, love and affection, mental agony as against the claim of Rs.18,70,000/- in respect of general damages.
In view of my fore-going discussion with reasons, I hold that the petitioners are entitled for a total compensation of Rs.3,40,000/- (Rupees three lakhs forty thousand only) under all the above heads as against the claim of Rs.19,00,000/-.
LIABILITY
Undoubtedly, the first respondent is the rider-cum-insured and second respondent is the insurer of the crime motor cycle bearing
No. AP 15 AV 8039. It was established at Issue No.1 that the accident was occurred on 26-4-2015, at 8.15 p.m., near Viroopakshi Function Hall on Jagtial to Karimnagar road due to rash and negligent act on the part of rider of the crime motor cycle i.e., Respondent No.1 which resulted into the death of the deceased Bale Kalyan. The testimony of PWs.1 and 2 coupled with the contents of Ex.P.1 to P.7 amply establishes not only the rash and negligent act on the part of respondent No.1, but also the involvement of crime vehicle into the accident. It is not in dispute that the deceased Bale Kalyan died on the spot as a result of injuries sustained by him in a fatal accident. Absolutely, no contra evidence is lead by the respondents against the testimony of PWs.1 to 3 and
29 MVOP.100 OF 2016
contents of Ex.P.1 to P.10. The fact that the crime motor cycle was insured with Respondent No.2 vide Ex.R.1 policy remains undisputed.
Ex.R.1 discloses that the second respondent is the insurer of the crime vehicle. Ex.R.1 further shows that the policy issued by Respondent No.2 for the crime vehicle was in force from 7-4-2015 to 6-4-2016. Thus
Ex.R.1 was very much in force on the date of accident which was occurred on 26-4-2015. As per Ex.R.1, the first respondent is the insured of the crime motor cycle bearing No. AP 15 AV 8039. There is no basis for the first respondent to claim that the accident was occurred due to the negligence of the deceased. Equally there is no basis for the second respondent to contend that Respondent No.1 did not possess any valid and effective Driving Licence to drive the crime motor cycle on the date of accident. Infact the first respondent was not prosecuted under
Section 3 read with 181 of Motor Vehicle's Act in Ex.P.5. Further more, the particulars of Driving Licence of Respondent No.1 were clearly mentioned in Ex.P.4 and P.6. It is valid upto 19-6-2016 issued by
R.T.A., Karimnagar. Nothing could be elicited to disprove the contents of
Ex.P.4 to P.6. Thus it cannot be said that Respondent No.1 was not holding any valid and effective Driving Licence to drive the crime vehicle on the date of accident. There is nothing on record to show that the terms and conditions of Ex.R.1 policy were violated including the provisions of M.V.Act. Therefore, I am of the view that the Respondents
No.1 and 2 are jointly and severally liable to pay compensation to the petitioners.
INTEREST
So far as the claim of interest is concerned it is seen that the petitioner has claimed interest at 18% percent per annum. It is apt to refer to the decision of the Apex Court in Dharampal Vs. State Road
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Transport Corporation, wherein the Hon'ble Apex Court awarded interest @ 7.5% per annum on the amount awarded as compensation in the case of this nature. There are number of other citations, wherein, interest was awarded @ 7.5% per annum on the amount awarded as compensation in the cases of this nature.
16.ISSUE NO.3
In the result,the petition is allowed in part with proportionate costs by awarding compensation of Rs.3,40,000/- (Rupees three lakhs forty thousand only) against the Respondents
No.1 and 2 who are jointly and severally liable to pay the compensation to the petitioners with subsequent interest @ 7.5% per annum from the date of petition till the date of deposit. One month time is granted to the respondents to deposit the awarded compensation into the Tribunal. The rest of the claim made by the petitioners stand dismissed. On such deposit, the petitioners are entitled to receive the compensation into two equal shares i.e., Rs.1,70,000/- (Rupees one lakh seventy thousand only) each. The petitioners are entitled to withdraw the same. The
Advocate Fee is fixed at Rs.2,000/- (Rupees two thousand only).
Dictated to the Stenographer, transcribed by him, corrected
and pronounced by me in the open Court on this the 14th day of February, 2019.
CHAIRMAN, MACT-CUM-
II ADDL. DISTRICT JUDGE,
KARIMNAGAR AT JAGTIAL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED.
FOR PETITIONERS: FOR RESPONDENTS.
PW.1 Bale Bhoolaxmi RW.1Chada Rana Prathap PW.2Burugu Laxman PW.3Dekka Prabhakar
31 MVOP.100 OF 2016
EXHIBITS MARKED.
FOR PETITIONERS:
Ex.P.1Certified Copy of First Information Report in Crime No. 14 of 2015 of Jagtial (Traffic) P.S. Ex.P.2Certified Copy of report Ex.P.3Certified Copy of Inquest report Ex.P.4Certified Copy of Form No.54./ Ex.P.5Certified Copy of Final report Ex.P.6Certified Copy of M.V.I.'s report Ex.P.7Certified Copy of Post Mortem Examination Report Ex.P.8Aadhar Card of Bale Laxman Ex.P.9Secondary School Certificate of Bale Kalyan Ex.P10Aadhar Card of PW.1
FOR RESPONDENTS.
Ex.R.1Copy of Insurance Policy
CHAIRMAN, MACT-CUM-
II ADDL. DISTRICT JUDGE,
KARIMNAGAR AT JAGTIAL.