Sr K.Ramesh

1 Of 10 MVOP NO.163 OF 2015

IN THE COURT OF THE CHAIRMAN, MACT-CUM-V-ADDL.

DISTRICT JUDGE, WARANGAL AT JANGAON.

Present:- Sri K. Ramesh, II-Addl. District Judge, FAC.Chairman-MACT-cum- V-Addl. District Judge, Warangal at Jangaon.

Friday, the 30 th day of December, 2016.

MVOP NO.163 OF 2015.

Between:- Thummalapally Karunakar @ Kanakaiah, S/o. Yellaiah, aged 24 years, Occ: Labour and agriculture, R/o. Gagillapur village, Maddur mandal, Warangal district.

...Petitioner

AND

1. Baswaraju Bhaskar, S/o. Chandraiah, aged major, Occ: Owner-cum- driver of the crime vehicle, R/o. Gagillapur village, Maddur mandal, Warangal district.

2. The United India Insurance Company Ltd., rep. By its Divisional Manager, Divisional Office at H.No.11/1582, P.B. No.75, M.G. Road, Warangal.

...Respondents

This petition is coming on 02-12-2016 before me for final hearing in the presence of Sri B. Yadagiri Goud, Advocate for the petitioner and of Sri B. Ramesh Goud, Advocate for the respondent No.2 and the respondent No.1 remained ex-parte and after hearing the arguments of both sides and the matter having stood over for consideration, till this day, this Court made the following:

O R D E R

1.This is a petition filed under Section 166 (1) (a) of the Motor

Vehicles Act for grant of compensation on account of injuries sustained by the petitioner in a motor vehicle accident, which occurred on 13.10.2012.

2.The brief facts of the case are that on 13.10.2012 the petitioner 2 Of 10 MVOP NO.163 OF 2015 and others went to Dharmaram village in an auto bearing No.AP-23U- 8646 to collect the night milk and after collecting the milk they were returning to their village and at about 21.30 hours when they reached near Rice Mill situated at the outskirts of Maddur village and at the same time the driver of the auto drove it in a rash and negligent manner and at high speed, lost control over the vehicle, as a result the auto turned turtle and he along with other occupants of the auto sustained injuries.

The petitioner sustained fracture shaft upper 1/3rd of right femur, injury on right thigh, right middle finger, ring finger, upper lip and other injuries all over the body and one Meka Balaiah died on the spot and one Meka Pochaiah lodged complaint, which resulted in crime

No.87/2012 and police after investigation filed charge sheet under

Sections 304-A and 337 of the I.P.C., against the driver of the auto.

3.The petitioner has taken treatment with Dr. S. Mahesh Kumar, Civil

Asst. Surgeon, Area Hospital, Jaongaon and on the advise of the doctor, he was shifted to Rohini Hospital, Hanamkonda on 13.10.2012 where he took treatment as inpatient and Dr. P. Vijaya Chander Reddy conducted operation and right interlocking nailing fixation was done on 16.10.2012 and he was treated with various diagnosis by taking X-rays and applied

POP etc., upto 21.10.2012. While discharging from the Hospital, the doctors advised him to take three months complete bed rest and advised him to use prescribed medicines and to have periodical medical check up and accordingly he has taken follow-up treatment, used medicines and taken bed rest. He has incurred an amount of

Rs.20,000/- towards medical expenses and lost his earnings of 3 Of 10 MVOP NO.163 OF 2015

Rs.18,000/- during the period of bed rest. Due to the fracture injuries caused in the accident, he is unable to walk, sit, stand properly and unable to lift weights and do labour work and is suffering from permanent disability. He also suffered with severe pains and mental agony and suffering very much hardship in eking out his livelihood. The offending auto involved in the accident is insured with the respondent

No.2 as on the date of accident and that he claimed compensation of

Rs.1,50,000/-.

4.The respondent No.1 remained absent and consequently he was set ex-parte on 19.6.2015.

5.The respondent No.2/M/s. United India Insurance Company

Limited filed its counter and denied the claim of the petitioner and further contended that the company does not admit the manner of accident and involvement of the petitioner, so also age, income and health condition of the petitioner at the time of accident. The insured has not furnished the particulars of the accident as required under

Section 134 (c) of the M.V. Act in collusion with the petitioner. The company also does not admit that the vehicle alleged to have caused the accident was insured with the respondent at the time of alleged accident and that the driver of the auto was not holding a valid and effective driving license at the time of accident. The respondent company further pleaded that after investigation of the case by the police filed charge sheet under Sec.181 of the M.V. Act, as such at the time of accident the driver of crime vehicle was not having driving license, therefore, the respondent No.2/Insurance company cannot 4 Of 10 MVOP NO.163 OF 2015 made liable to pay any compensation unless and until the petitioner and the respondent No.1 are produced the driving license etc. The amount of compensation claimed by the petitioner is highly excessive and finally prayed to dismiss the petition.

6.On the basis of above pleadings, the Court framed the following issues:

(i) Whether the accident occurred on 13.10.2012 at about 21.30 hours at the outskirts of Maddur village and mandal,

Warangal district, due to rash and negligent driving of driver of auto bearing No.AP-23U-8646?

(ii) Whether the petitioner is entitled for compensation? If so, to what amount and from whom?

(iii) To what relief?

7.The petitioner in order to substantiate his claim, examined himself as PW.1 and marked Exts.A1 to A5. On the other hand, the respondent

No.2/Insurance Company examined RWs.1 to 3 and marked Exts.B1 and

B2.

8.Heard both sides.

9. ISSUE NO.1: It is the case of the petitioner that he boarded an auto bearing No.AP-23U-8646 on 13.10.2012 along with others to go to

Dharmaram village and collected the milk for the purpose of sale and when the said auto reached near Rice Mill situated at the outskirts of

Maddur village and at that time the driver of auto drove it in a rash and negligent manner and at high speed and the auto turned turtle as the driver of auto lost control, due to which he sustained injuries.

5 Of 10 MVOP NO.163 OF 2015

10.In order to prove the rashness and negligence on the part of driver of auto, the petitioner himself examined as PW.1 who testifies that on 13.10.2012 he along with others were proceeding to Dharmaram village to collect milk from the village in the offending auto and when the said auto reached near Rice Mill, Maddur Town at about 21.30 hours, the driver drove it in a rash and negligent manner and at high speed and lost control over the auto, as a result the auto turned turtle and he and other inmates of the auto sustained injuries and one Meka Balaiah died on the spot. PW.1 during the course of cross examination admitted that there were four passengers in the auto when the accident occurred apart from milk cans. The counsel for the respondent put a suggestion that a cyclist came in opposite direction, therefore, the auto became slow and turned turtle due to heavy load. This suggestion made to PW.1 is not substantiated by any other piece of evidence by the respondent

No.2/Insurance company and there is no any pleading to that effect also.

11.In the case on hand the driver of the auto was prosecuted by the

Sub Inspector of Police, PS Maddur and after thorough investigation the concerned police laid charge sheet against the driver of auto holding him responsible for the accident because he drove the auto in a rash and negligent manner. There is no any finding by the concerned police that because of the traveling of four persons in the auto the accident occurred. That apart there is no any material evidence from the side of the respondent No.2 to show that the accident occurred because of traveling of four persons in the auto at the time of accident. Therefore it 6 Of 10 MVOP NO.163 OF 2015 can be held that the accident in question occurred only due to rash and negligent manner of driving of auto by its driver and accordingly the issue is answered in favour of the petitioner and against the respondents.

12. ISSUE NO.2: The petitioner claimed a compensation of

Rs.1,50,000/- and in his chief examination also once again reiterated the said amount and further testifies that he used to do labour work and also do agriculture and also used to raise commercial crops and earn

Rs.6,000/- per month and contributed the same for the maintenance of his family and he further testifies that he sustained fracture of shaft of upper 1/3rd of right femur, injury on right thigh, injury on right middle finger, injury on ring finger, injury on upper lip and he further says that the doctors advised him to take complete three months bed rest and advised him for regular medical check-ups and that on account of said injuries he is unable to walk and sit properly and that he suffered permanent disability and prayed to award compensation of

Rs.1,50,000/-.

13.PW.1 was cross examined on behalf of the respondents and it is elicited that he has got Arogyasree card and that he was treated under the said scheme and also put a suggestion that PW.1 did not suffer any disability and that he is able to carryout his day to day work normally and that he was not earning Rs.6,000/- per month. Admittedly PW.1 except examining himself and relying upon Ex.A2 injury certificate, there is no any other material evidence to prove that he suffered any disability and unable to undertake the work as earlier. As per Ex.A2 7 Of 10 MVOP NO.163 OF 2015 injury certificate issued by the Civil Asst. Surgeon, Area Hospital,

Jangaon, the petitioner sustained fracture (comminuted), one contusion and three abrasions. Except one fracture the other four injuries are simple in nature. The petitioner has not produced any other medical record to prove any purchase of medicines etc. Admittedly the petitioner was treated under Arogyasree scheme. Therefore all the expenses incurred by him are borne by the Government. Thus petitioner is entitled to claim the compensation in respect of injuries suffered by him and also for pain and suffering etc. It appears that a sum of Rs.30,000/- towards the fracture injury suffered and a sum of

Rs.5,000/- each for other simple injuries suffered by the petitioner seems to be just and reasonable. Thus altogether the petitioner is entitled to claim a compensation of Rs.50,000/- and the petitioner also entitled to a sum of Rs.10,000/- towards pain and suffering. Thus altogether the petitioner is entitled to claim total compensation of

Rs.60,000/-.

14. The petitioner's contention is that the driver of auto was holding a valid driving license as on the date of accident and the auto was also having a valid insurance coverage as on the date of accident. So far as driving license is concerned, it is for the respondent No.2 who took a plea that the driver of auto was not holding any valid and effective driving license, therefore, the burden lies upon the insurance company to prove the said fact. The respondent No.2 summoned the driver of auto namely B. Bhaskar, who is examined as RW-1 and he stated that on 30.10.2012 he drove the auto bearing No.AP-23U-8646 and that he 8 Of 10 MVOP NO.163 OF 2015 filed the driving license before the Court and that he was charged under

Section 181 of the M.V. Act and that he does not have driving license right now with him and he further adds that he surrendered his driving license to the police. The respondent No.2/Insurance company, summoned RW-1 but has not elicited positively that he was not holding a valid driving license as on the date of accident. The respondent No.2 also examined RW-2-M. Srihari, Junior Assistant in RTA Office, Jangaon and he stated that according to RTA office records, the driving license bearing No.AP-03620130024288 is not available and that he cannot say whether the said driving license number was issued by RTA or not.

During the course of cross examination by the petitioners, he stated that he cannot say whether the driving license No.AP-03620130024288 was issued and the same is in force or not.

15.Thus the testimony of RW-1 and RW-2 no way goes to establish that the respondent No.1 was not having holding a valid and effective driving license as on the date of accident. RW.3 who is the Asst.

Manager of the Insurance Company and he also stated that the respondent No.1 who is the owner-cum-driver was not having any driving license, but his version about the valid driving license is concerned is not supported by any material evidence. So in the absence of any evidence from the side of the respondent No.2/Insurance company, it can be held that the respondent No.2 has failed to discharge the burden lies upon the insurance company about not holding a valid driving license by the respondent No.1. Therefore the insurance company cannot disown its liability to pay the compensation to the 9 Of 10 MVOP NO.163 OF 2015 petitioners. In this connection it is relevant to refer a judgment in the case of NATIONAL INSURANCE COMPANY LIMITED v. SWARAN SINGH reported in 2004 (2) ALD 36 (SC) wherein their Lordship observed that “even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving license is/are so fundamental as are found to have contributed to the cause of the accident”. In view of the principles laid down in the aforementioned judgment, it is very clear that the respondents are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2/Insurance company can pay the compensation amount to the petitioner and recover the same from the respondent

No.1/owner of the vehicle and accordingly the point is answered in favour fo the petitioner and against the respondents.

16. ISSUE NO.3: In the result the petition is partly allowed and a sum of Rs.60,000/- is awarded in favour of the petitioner and both the respondents are jointly and severally liable to pay the said amount within a period of two months with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of realization.

The petitioner is entitled to withdraw the entire compensation amount on such deposit.

(Dictated to the Steno-Typist, transcribed by her, corrected and

pronounced by me in the open Court on this 30th day of December,

2016.) 10 Of 10 MVOP NO.163 OF 2015

FAC.CHAIRMAN, MACT-CUM-

V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW.1 T. Karunakar RW.1 B. Bhaskar RW.2 M. Srihari RW.3 V. Sainath

DOCUMENTS MARKED

FOR PETITIONERS: FOR RESPONDENTS:

Ex.A1 CC of FIR along with complaint. Ex.B1 Authorization letter. Ex.A2 CC of Injury certificate. Ex.B2 Policy. Ex.A3 CC of Charge sheet. Ex.A4 Original Discharge card. Ex.A5 Original medical bills (2)

FAC.CHAIRMAN, MACT-CUM-

V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

1 Of 10 MVOP NO.160 OF 2015

IN THE COURT OF THE CHAIRMAN, MACT-CUM-V-ADDL.

DISTRICT JUDGE, WARANGAL AT JANGAON.

Present:- Sri K. Ramesh, II-Addl. District Judge, FAC.Chairman-MACT-cum- V-Addl. District Judge, Warangal at Jangaon.

Friday, the 30 th day of December, 2016.

MVOP NO.160 OF 2015.

Between:-

1. Meka Srisailam, S/o. Late Balaiah, aged 19 years, Occ: Student.

2. Meka Srikanth, S/o. Late Balaiah, aged 18 years, Occ: Student.

3. Meka Siddavva, W/o. Late Mallaiah, aged 65 years, Occ: Household.

All are R/o. Gagillapur village, Maddu mandal, Warangal dist.

...Petitioners

AND

1. Baswaraju Bhaskar, S/o. Chandraiah, aged major, Occ: Owner-cum- driver of the crime vehicle, R/o. Gagillapur village, Maddur mandal, Warangal district.

2. The United India Insurance Company Ltd., rep. By its Divisional Manager, Divisional Office at H.No.11/1582, P.B. No.75, M.G. Road, Warangal.

...Respondents

This petition is coming on 02-12-2016 before me for final hearing in the presence of Sri B. Yadagiri Goud, Advocate for the petitioners and of Sri B. Ramesh Goud, Advocate for the respondent No.2 and the respondent No.1 remained ex-parte and after hearing the arguments of both sides and the matter having stood over for consideration, till this day, this Court made the following:

O R D E R

1.This is a petition filed under Section 166 (1) (c) of the Motor

Vehicles Act for grant of compensation on account of death of the father of the petitioners No.1 and 2 and son of the petitioner No.3.

2.The brief facts of the case are that on 13.10.2012 one Meka 2 Of 10 MVOP NO.160 OF 2015

Balaiah and others went to Dharmaram village in an auto bearing

No.AP-23U-8646 to collect the night milk and after collecting the milk they were returning to their village and at about 21.30 hours when they reached near Rice Mill situated at the outskirts of Maddur village and at the same time the driver of the auto drove it in a rash and negligent manner and at high speed, lost control over the vehicle, as a result the auto turned turtle and Meka Balaiah sustained injuries and died on the spot and one Meka Pochaiah lodged complaint, which resulted in crime

No.87/2012 and police after investigation filed charge sheet under

Sections 304-A and 337 of the I.P.C., against the driver of the auto.

3.The deceased was aged about 35 years, was hale and healthy and he was a milk vendor and also used to purchase the milk from other milk vendors and used to sell to Nagarjuna Mil Dairy and earn

Rs.10,000/- per month. The deceased was only earning member of the family and the petitioners No.1 and 2, who are his son lost their father and petitioner No.3 is mother of the victim. Due to the sudden death of the deceased, the petitioners are suffering very much in leading their lives, as there was no other person to lookafter their welfare. The offending auto involved in the accident insured with the respondent No.2 as on the date of accident and that the petitioners altogether claimed compensation of Rs.4,50,000/- with costs and interest @ 18% p.a..

4.The respondent No.1 remained absent and consequently he was set ex-parte on 19.6.2015.

5.The respondent No.2/M/s. United India Insurance Company

Limited filed its counter and denied the claim of the petitioners and 3 Of 10 MVOP NO.160 OF 2015 further contended that the company does not admit the manner of accident and involvement of the deceased, so also age, income and health condition of the deceased at the time of accident. The insured has not furnished the particulars of the accident as required under

Section 134 (c) of the M.V. Act in collusion with the petitioners. The company also does not admit that the vehicle alleged to have caused the accident was insured with the respondent No.2 at the time of alleged accident and that the driver of the auto was not holding a valid and effective driving license at the time of accident. The respondent company further pleaded that after investigation of the case by the police filed charge sheet under Sec.181 of the M.V. Act, as such at the time of accident the driver of crime vehicle who was not having driving license, therefore, the respondent cannot made liable to pay any compensation unless and until the petitioners and the respondent No.1 are produced the driving license etc. The amount of compensation claimed by the petitioners is highly excessive and finally prayed to dismiss the petition.

6.On the basis of above pleadings, the Court framed the following issues:

(i) Whether the accident occurred on 13.10.2012 at about 21.30 hours at the outskirts of Maddur village and mandal,

Warangal district, due to rash and negligent driving of driver of auto bearing No.AP-23U-8646?

(ii) Whether the petitioners are entitled for compensation?

If so, to what amount and from whom?

(iii) To what relief?

4 Of 10 MVOP NO.160 OF 2015

7.The petitioners in order to substantiate their claim, examined

PW.1/M. Srisailam and also examined PW.2/T. Karunakar and marked

Exts.A1 to A5. On the other hand, the respondent No.2/Insurance

Company examined RWs.1 to 3 and marked Exts.B1 and B2.

8.Heard both sides.

9. ISSUE NO.1: It is the case of the petitioners that father of the petitioners No.1 and 2 and son of the petitioner No.3 boarded an auto bearing No.AP-23U-8646 on 13.10.2012 along with others to go to

Dharmaram village and collect the milk for the purpose of sale and when the said auto reached near Rice Mill situated at the outskirts of Maddur village and at that time the driver of auto drove it in a rash and negligent manner and at high speed and as a result the auto turned turtle as the driver of auto lost control, due to which the deceased sustained injuries and died on the spot.

10.In order to prove the rashness and negligence on the part of driver of auto, PW.1 was examined but admittedly he is not a direct witness to the accident, therefore, his evidence is not useful to the case of the petitioners. The petitioners examined PW.2/T. Karunakar who testifies that on 13.10.2012 he along with the deceased-Meka Balaiah and others were proceeding to Dharmaram village to collect milk from the village in the offending auto and when the said auto reached near

Rice Mill, Maddur Town at about 21.30, hours the driver drove it in a rash and negligent manner and at high speed and lost control over the auto, as a result the auto turned turtle and the deceased-Meka Balaiah 5 Of 10 MVOP NO.160 OF 2015 sustained injuries and died on the spot. PW.2 who is the inmate of the auto also sustained injuries. PW.2 during the course of cross examination admitted that there were four passengers in the auto when the accident occurred apart from milk cans. The counsel for the respondent No.2 put a suggestion that cyclist came in opposite direction, therefore, the auto became slow and turned turtle due to heavy load. This suggestion made to PW.2 is not substantiated by any other piece of evidence by the respondent No.2/Insurance company and there is no any pleading to that effect also.

11.In the case on hand the driver of the auto was prosecuted by the

Sub Inspector of Police, PS Maddur and after thorough investigation the concerned police laid charge sheet against the driver of auto holding him responsible for the accident because he drove the auto in a rash and negligent manner. There is no any finding by the concerned police that because of the traveling of four persons in the auto, the accident occurred. That apart there is no any material evidence from the side of the respondent No.2 to show that the accident occurred because of traveling of four persons in the auto at the time of accident. Therefore it can be held that the accident in question occurred only due to rash and negligent manner of driving of auto by its driver and accordingly the issue is answered in favour of the petitioners and against the respondents.

12. ISSUE NO.2: The petitioners claimed compensation of

Rs.4,50,000/- on the ground that the deceased-Meka Balaiah used to collect the milk from the villagers and sold the same to Nagarjuna Milk 6 Of 10 MVOP NO.160 OF 2015

Dairy and used to earn Rs.10,000/- per month. The petitioners have not produced any documentary evidence to substantiate their claim about the income of the deceased-Meka Balaiah except the testimony of

PW.1. Thus there is no other alternative for the Tribunal except to do work to guess about the probable income of the deceased as on the date of accident. The deceased being an illiterate person and even if he undertakes any private work like coolie, he may get around not less than Rs.200/- per day and the monthly income of the deceased comes to Rs.5,200/- (for 26 days). The family members of the deceased consists of himself and three petitioners herein and altogether there are four members of his family and 1/4th income of the deceased should be deducted towards his personal and living expenses and the net income of the deceased to be contributed towards family is Rs.3,900/- per month and the appropriate multiplier for the age group of 31-35 is 16 as per the principles laid down in the SARLA VARMA case. The annual contribution comes to Rs.46,800/- and the same is multiplied with 16, total contribution of the deceased towards family members is comes to

Rs.7,48,800/-. The petitioners herein also entitled to claim a sum of

Rs.25,000/- towards funeral expenses. Thus the total compensation amount comes to Rs.7,73,800/-.

13. The petitioner's contention is that the driver of auto was holding a valid driving license as on the date of accident and the auto was also having a valid insurance coverage as on the date of accident. So far as driving license is concerned, it is for the respondent No.2 who took a plea that the driver of auto was not holding any valid and effective 7 Of 10 MVOP NO.160 OF 2015 driving license, therefore, the burden lies upon the insurance company to prove the said fact. The respondent No.2 summoned the driver of auto namely B. Bhaskar, who is examined as RW-1 and he stated that on 30.10.2012 he drove the auto bearing No.AP-23U-8646 and that he filed the driving license before the Court and that he was charged under

Section 181 of the M.V. Act and that he does not have driving license right now with him and he further adds that he surrendered his driving license to the police. The respondent No.2/Insurance company have summoned RW-1 but has not elicited positively that he was not holding a valid driving license as on the date of accident. The respondent No.2 also examined RW-2-M. Srihari, Junior Assistant in RTA Office, Jangaon and he stated that according to RTA office records, the driving license bearing No.AP-03620130024288 is not available and that he cannot say whether the said driving license number was issued by RTA or not.

During the course of cross examination by the petitioners, he stated that he cannot say whether the driving license No.AP-03620130024288 was issued and the same is in force or not.

14.Thus the testimony of RW-1 and RW-2 is no way goes to establish that the respondent No.1 was not having holding a valid and effective driving license as on the date of accident. RW.3 who is the Asst.

Manager of the Insurance Company and he also stated that the respondent No.1 who is the owner-cum-driver was not having any driving license. But here his version about the valid driving license is concerned is not supported by any material evidence. So in the absence of any positive evidence from the side of respondent No.2/Insurance 8 Of 10 MVOP NO.160 OF 2015 company, it can be held that the respondent No.2 has failed to discharge the burden lies upon the insurance company about not holding a valid driving license by the respondent No.1. Therefore the insurance company cannot disown its liability to pay the compensation to the petitioners. In this connection it is relevant to refer a judgment in the case of NATIONAL INSURANCE COMPANY LIMITED v. SWARAN SINGH reported in 2004 (2) ALD 36 (SC) wherein their Lordship observed that “even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving license is/are so fundamental as are found to have contributed to the cause of the accident”. In view of the principles laid down in the aforementioned judgment, it is very clear that the respondents are jointly and severally liable to pay the compensation to the petitioners and the respondent No.2/Insurance company can pay the compensation amount to the petitioners and recover the same from the respondent

No.1/owner of the vehicle and accordingly the point is answered in favour fo the petitioners and against the respondents.

15. ISSUE NO.3: In the result the petition is allowed and a compensation of Rs.7,73,800/- is awarded and both the respondents are directed to pay the compensation amount jointly and severally with costs and interest @ 7.5% per annum from the date of petition till the date of realization.

9 Of 10 MVOP NO.160 OF 2015

The respondent No.2 is directed to deposit the compensation amount within a period of two months from the date of order.

On such deposit, the petitioners No.1 and 2 each awarded a sum of Rs.3,00,000/- and balance amount of Rs.1,73,800/- is awarded in favour of the petitioner No.3.

The petitioners No.1 and 2 are permitted to withdraw

Rs.1,00,000/- each and balance amount of Rs.2,00,000/- each of the petitioners No.1 and 2 shall be kept in fixed deposit for a period of two years. The petitioner No.3 who is aged about 65 years is permitted to withdraw entire compensation amount with proportionate costs and interest.

The petitioners are directed to pay the deficit Court fee for

Rs.3,23,800/-.

(Dictated to the Steno-Typist, transcribed by her, corrected and

pronounced by me in the open Court on this 30th day of December,

2016.)

FAC.CHAIRMAN, MACT-CUM-

V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW.1 M. Srisailam RW.1 B. Bhaskar PW.2 T. Karunakar RW.2 M. Srihari RW.3 V. Sainath

DOCUMENTS MARKED

FOR PETITIONERS: FOR RESPONDENTS:

Ex.A1 CC of FIR along with complaint. Ex.B1 Authorization letter. Ex.A2 CC of Inquest report. Ex.B2 Policy.

10 Of 10 MVOP NO.160 OF 2015

Ex.A3 CC of Crime details form. Ex.A4 CC of Postmortem report. Ex.A5 CC of Charge sheet.

FAC.CHAIRMAN, MACT-CUM-

V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

1 Of 9 AS No.71 of 2014.

IN THE COURT OF THE V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

Present:- Sri K. Ramesh, II-Addl. District Judge, FAC.V-Addl. District Judge, Warangal at Jangaon.

Friday, the 20 th day of January, 2017.

APPEAL SUIT NO.71 OF 2014.

Between:-

Gottam Ram Reddy, S/o. Papi Reddy, aged 58 years, Occ: Agriculture, R/o. Lingampally village, Bachannapet mandal, Warangal district.

...Appellant

AND

Smt. Gottam Padma, W/o. Chenna Reddy, aged 43 years, Occ: Household, R/o. Lingampally village, Bachannapet mandal, Warangal district

...Respondent

Aggrieved by the judgment and decree dated 03.06.2014 passed in Original Suit No.49 of 2011 on the file of the Court of Senior Civil

Judge, Jangaon.

Between: Smt. Gottam Padma …Plaintiff AND Gottam Ram Reddy …Defendant

This appeal suit is coming on 16-12-2016 before me for final hearing in the presence of Sri V. Prasada Rao, Advocate for the appellant and of Sri B. Venkat Narsaiah, Advocate for the respondent and after hearing the arguments of both sides and the matter having stood over for consideration, till this day, this Court delivered the following:

J U D G M E N T

1.This is an appeal suit preferred against the judgment passed by the learned Senior Civil Judge, Jangaon in Original Suit No.49 of 2011 by the defendant having suffered a decree of perpetual injunction.

2 Of 9 AS No.71 of 2014.

2.The parties are being referred as arrayed before the trial Court for the sake of convenience.

3.The plaintiff filed the suit for injunction simplicitor on the ground that she purchased the suit land through a registered sale deed from

Gottam Narasimha Reddy and one Gottam Ram Reddy and right from the date of purchase i.e., 01.09.2009 she is in lawful possession of the suit schedule property and that the defendant without any manner of right or title tried to interfere with her possession.

4.The defendant filed his written statement contending interalia that the suit schedule property is the ancestral joint family property and the said proper has not been divided and that the plaintiff created a sale deed under Ex.A1 in order to occupy the said land which is not properly identified with actual boundaries on the spot and that the plaintiff is neither in possession nor cultivating the land and that he is in possession over the suit property with specific boundaries and tha there are disputes between him and the husband of the plaintiff and taking adjantage of the same, the plaintiff in collusion with the junior paternal uncles of the defendant created a false document and filed the suit and prayed to dismiss the same.

5.Basing on the above pleadings, the trial Court framed the following issues:

(i) Whether the plaintiff is in lawful possession and enjoyment of the suit schedule property on the date of filing of the suit?

(ii) Whether the defendant tried to interfere and dispossess the plaintiff?

(iii) Whether the plaintiff is entitled to perpetual 3 Of 9 AS No.71 of 2014.

injunction as prayed for?

(iv) To what relief?

6.The plaintiff in order to establish her possession over the disputed suit land examined herself as PW.1 and examined her husband as PW.2 and also examined PW.3 and marked Exts.A.1 to A5. On the other hand defendant himself examined as DW.1 and also examined DW.2 and marked Exts.B1 and B2.

7.The learned Senior Civil Judge having heard both sides, perused the material evidence available on record and came to the conclusion that the plaintiff is in possession of the suit schedule property and accordingly decreed the suit.

8.The defendant having suffered a decree of perpetual injunction came in appeal assailing the findings of the trial Court and further contended that the sale deed under Ex.A1 is sham and bogus document which does not create any legal right in favour of the plaintiff and that he also pleaded that the possession and enjoyment of the property admeasuring Ac.1-39 guntas is not supported by any piece of evidence and boundaries mentioned in the suit schedule property does not tally with the actual location of the property and that the trial Court has failed to appreciate the oral and documentary evidence available on record and came to the incorrect conclusion and prayed to allow the appeal as prayed for.

9.Heard both sides.

10.The points for consideration of this Court are as under:

(i) Whether the plaintiff is in the possession of the suit 4 Of 9 AS No.71 of 2014.

schedule land as on the date of filing of the suit.

(ii) Whether the findings of the tria Court are based upon the material evidence available on record or deserves to be set aside?

(iii) To what relief?

11.The counsel for the appellant relied upon the following judgments:

(a) 1998 (2) ALT 623.

(b) 2009 (4) ALT 727.

(c) 2005 (3) ALD 545.

(d) 2005 ALT (1) 169.

(e) 2005 ALT (6) 55.

(f) 2006 ALT (6) page 443.

(g) Also judgment in the second appeal No.124 of 2012.

12.On the other hand the learned counsel for the respondent/plaintiff relied upon the following judgments.

(a) AIR 2002 SC 2598.

(b) AIR 2006 AP 45.

(c) AIR 2007 P&H 158.

(d) 2012 (3) ALT 124.

(e) 2011 (2) ALT 690.

13. POINT NO.1: The plaintiff herein filed a simple suit for injunction against the respondent on the ground that she is the owner and in possession of the suit schedule land by virtue of registered sale deed under Ex.A1 and that the defendant who is not having any title or possession over the suit schedule property tried to interfere with her possession.

5 Of 9 AS No.71 of 2014.

14.In order to prove the claim of the plaintiff, she has to establish her possession over the suit schedule property as on the date of filing of the suit by producing cogent and convincing evidence and she has to stand on her own legs without depending upon the weakness of other side.

The plaintiff is no other than sister-in-law of the defendant and it is her case that she purchased the suit land consisting of Ac.1-39 guntas out of survey numbers 35/D, 48/D, 49/D, 50/D, 51/D, 52/D and 51/B altogether Ac.1-39 guntas. It is the case of the plaintiff that various extents consisting of Ac.1-02 gunta, Ac.0.05 guntas, Ac.0.10 guntas,

Ac.0.03 guntas, Ac.0.07 guntas, Ac.0.06 guntas and Ac.0.06 guntas consists in a compact block with following boundaries:

East: Agricultural land of G. Pratap Reddy.

West: Agricultural land of M. Pratap Reddy.

North: Road

South: Agricultural land of M. Pratap Reddy.

The so called claim of the plaintiff so far as single compact block appears to be unacceptable because admittedly all the survey numbers mentioned above got vast extents and out of which the plaintiff purchased the small extents as mentioned above and for which there cannot be a common boundaries for those small extents of land covered by various survey numbers. The claim as putforth by the plaintiff is unbelievable because the defendant produced tonch map issued by the

Tahsildar, Bachannapet mandal, which clearly goes to show that the survey numbers 36, 37, 38, 46, 47, 48, 49, 50 and 51 are located at different places. Ex.B2 is also a tounch map which also goes to show 6 Of 9 AS No.71 of 2014.

the various survey numbers are located separately at different places.

So the claim as putforth by the plaintiff so far as location of small pieces of alleged lands purchased by her cannot have a common boundaries for the entire extent of Ac.1-39 guntas of land. Admittedly the plaintiff has to prove the proper location of the land for grant of perpetual injunction so as to enforce the order otherwise the order of injunction passed by the Court will become a paper decree because one cannot identify the property in respect of which the said order is granted. This is one of the lapse on the part of the plaintiff.

15.Now coming to the purchase of the land by her from Gottam

Narasimha Reddy and one Gottam Ram Reddy is concerned, the defendant clearly and categorically disputed and denied the alleged purchase as a sham and a nominal but the plaintiff has not produced any link document to show that the said vendors are the owners and in possession of the land sold to the plaintiff herein. PW.1 during the course of cross examination admitted that the name of her father-in-law namely Papi Reddy is also shown in the revenue records along with the name of Narasimha Reddy, Ram Reddy, Pratap Reddy. This itself goes to show that there was no any division of properties among her father-in- law and his brothers by metes and bounds. If really the division took place among them, the question of recording the name of her father-in- law along with his brothers does not arise. The plaintiff also examined

PW.2 who is no other than her husband and he stated during the cross examination that there was service connection in the name of his father to the well which was dilapidated condition and that he dug a borewell 7 Of 9 AS No.71 of 2014.

and fitted a electric motor in the name of his father about 6 or 7 years back and there is no mention in the sale deed-Ex.A1 about the digging of borewell and service connection. He also admitted that his father-

Papi Reddy gave Acs.3-07 guntas to the son of the defendant in survey numbers 38 and 39 and boudnaries of said land are South: Land of

Ramakrishnaiah, North: Gottam Prathap Reddy, East: Gottam Prathap

Reddy, West: Land of Maddigunta Prathap Reddy and said boundareis are not supported by any piece of evidence. PW.2 also says that there was no partition between him and the defendant and that they have conducted survey by measuirng the land through one Patwari-Anantha

Reddy and that they have not filed survey report or map. PW.3 who is one of the executant of the sale deed under Ex.A1 namely Gottam

Narasimha Reddy and he says during the course of cross examination that the revenue records are not similar to the lands held by each sharer at the spot after the partition and he further admits that each of them got about 8 to 9 acres of land and that he got the land in two different parts. He also admits that within the boundaries shown in the sale deed of the plaintiff, the land of his brother Pratap Reddy is located. He also admitted that within the said boundaries, the land of Papi Reddy is also located. When the land of some others located within the boundaries as shown in the plaint and in Ex.A1, the claiming of possession over the said land by the plaintiff appears to be a make believe one story because the persons who sold must have a perfect title in order to convey in favour of the purchaser otherwise the purchaser may not get any valid title to the suit property. The material evidence available on 8 Of 9 AS No.71 of 2014.

record clearly goes to show that the claim putfortth by the plaintiff is not supported by any material evidence to prove and establish her possession over the suit land as on the date of filing of the suit and that the defendant tried to interfere without in any manner. Having regard to the principles laid down in the judgments relied upon by both the parties and by taking into account the material evidence available on record, it can be held that the findings of the trial Court are not only contrary to the pleadings and evidence available on record but also contrary to the well established principle of law so far as grant of permanent injunction is concerned because as stated supra the person who approached the

Court of law primarily establish the possession over the property without creating any doubt in the mind of the Court, otherwise the relief of perpetual injunction cannot be granted. So in view of the aforesaid reasons and material evidence available on record, it can be held that the plaintiff is not entitled to seek relief of perpetual injunction and accordingly the point is answered against the plaintiff and in favour of the defendant.

16. POINT NO.2: In view of the findings on point No.1, it can be held that the trial Court has failed to appreciate the material evidence availale on record on proper lies and came to the incorrect conclusion, as such the point is answered against the plaintiff and in favour of the defendant.

17. POINT NO.3: In the result the appeal is allowed and judgment and decree passed by the trial Court in Original Suit No.49 of 2011 is set aside and accordingly the said suit stands dismissed. No order as to the 9 Of 9 AS No.71 of 2014.

costs.

(Dictated to the Steno-Typist, transcribed, corrected and pronounced by me in the open Court on this 20th day of January, 2017.)

FAC.V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

APPENDIX OF EVIDENCE

NIL

FAC.V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

1 Of 3 OS No.160 of 2015.

IN THE COURT OF THE V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

Present:- Sri K. Ramesh, II-Addl. District Judge, FAC.V-Addl. District Judge, Warangal at Jangaon.

Friday, the 6 th day of January, 2017.

ORIGINAL SUIT NO.160 OF 2015.

Between:- Vuppala Sucharitha, W/o. Mohan, aged about 40 yers, Occ: Household, R/o. H.No.5-2-275, Hyderabasthi, Secunderabad.

...Plaintiff

AND

1. Akula Padmavathi, W/o. Late Akula Venkata Ramana, aged about 56 years, occ: Household, R/o. Flat No.202, H.No.4-2-80, Atheli Plaza, Old Boiguda, Secuderabad.

2. Akula Sudhama, S/o. Late Akula Venkata Ramana, aged about 37 years, Occ: Business, R/o. Flat No.202, H.No.4-2-80, Atheli Plaza, Old Boiguda, Secunderabad.

3. Mashetti Sumalatha, W/o. Mashetti Naveen Kumar, aged about 39 years, occ: Household, R/o. H.No.42-422/3, Gayathri Nagar, Street No.5, Moulali, Hyderabad, Pin Code No.500040.

...Defendants

This suit is coming on 02-12-2016 before me for final hearing in the presence of Sri G. Naga Rajeshwar Rao, Advocate for the plaintiff and the defendants No.1 to 3 remained ex-parte and after hearing the argumetns of counsel for the plaintiff and the matter having stood over for consideration, till this day, this Court delivered the following:

JUDGMENT

1.This is a suit filed for partition and separate possession of the suit schedule properties.

2.The brief facts are that the plaintiff, defendants No.2 and 3 are the children of the defendants No.1 and late Akula Venkata Ramana and the 2 Of 3 OS No.160 of 2015.

defendant No.1 is the manager of Hindu joint family. The plaintiff and the defendants No.1 to 3 are the owners and possessors of the suit schedule properties and the said properties came to the share of their father vide partition deed document bearing No.273/1994, dated 16.04.1994. The plaintiff is having her ligitimate share in and over the suit schedule properties according to Hindu Succession Act and she demanded the defendant No.1 and other defendants on 01.12.2015 for partition but the defendants No.1 to 3 denied the partition and refused to give her due share and that the plaintiff has got 15/48 share and that the defendants are trying to alienate the properties in favour of the third parties ignoring the share of the plaintiff and hence the suit for partition.

3.The defendants No.1 to 3 remained absent and accordingly they were set ex-parte.

4.The plaintiff who filed the suit for partition, examined herself as

PW.1 and marked Exts.A1 and A2. The plaintiff also examined PW.2-K.

Srinivasa Rao in support of her claim.

5.Heard the plaintiff.

6.The issues for consideration are:

(i) Whether the plaintiff is entitled to claim share as prayed for?

(ii) To what relief?

7. ISSUE NO.1: Both Pws.1 and 2 stated in their evidence that the subject point of the suit schedule properties were fell to the share of the father of the plaintiff, defendants No.2 and 3 and husband of the defendant No.1 as per the registered partition deed No.273/1994, dated 3 Of 3 OS No.160 of 2015.

16.4.1994 and the said document goes to show that the father of the plaintiff and defendants No.2 and 3 alloted the said properties towards his share. The plaintiff being the daughter of the defendant No.1 and the property being jointly family property, it appears that the plaintiff is entitled to claim her share of 15/48 and accordingly the issue is answered in favour of the plaintff and against the defendants.

8. ISSUE NO.2: In the result the suit of the plaintiff for partition and separate possession is decreed as prayed for and accordingly a preliminary decree is passed. The plaintiff is at liberty to apply for final decree according to the law. No costs.

(Dictated to the Steno-Typist, transcribed by her, corrected and

pronounced by me in the open Court on this 6th day of January, 2017.)

FAC.V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS: PW.1 Vuppala Sucharitha -None- PW.2 K. Srinivasa Rao

DOCUMENTS MARKED

FOR PLAINTIFF: FOR DEFENDANTS: Ex.A1 CC of Partition deed bearing -Nil- document No.273/1994, dt.16.04.2014. Ex.A2 Encumbrance certificate.

FAC.V-ADDL. DISTRICT JUDGE,

WARANGAL AT JANGAON.

TSJN000000162010

Presented on : 13-07-2010 Registered on : 13-07-2010 Decided on : 03-03-2017 Duration : 6 years, 7 months, 21 days

IN THE COURT OF V ADDL. DISTRICT AND SESSIONS JUDGE,

JANGAON

Presided Over by Sri. K. Ramesh

MVOP/500534/2010

MD.Abbs Address: Ro.Goverdhanagiri vil., Raghunathpally Mdl., Warangal

VERSUS

Voma someshwer, Address: R/o.H.No.8-12-57, JPN road, Warangal.

----------------------------------------------------------------------------------------- Advocate for : SPS

ORDER

(Delivered on 03-03-2017 )

Petitioner called absent. No rep. Inspite of conditional order the petitioner failed to adduce any evidence. Hence the petition is dismissed for default.

Sd/-

forV ADDL. DISTRICT AND SESSIONS JUDGE,

JANGAON

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