Sri T. Bhaktavatsalam, B.sc., B.l.,

MOTOR ACCIDENT CLAIMS TRIBUNAL

(BEFORE THE PRINCIPAL DISTRICT JUDGE, PRAKASAM AT ONGOLE)

Present: Sri T.Bhaktavatsalam, B.Sc., B.L., Chairman,MACT-cum-Prl.District Judge, Ongole

Monday, this the thirtieth day of July, 2012

M.V.O.P.NO.423/2011

Between:

1. Makam Ludhia, W/o. late Chinna Yogaiah, Aged about 25 years,

2. Makam Chandu, S/o. late China Yogaiah, Aged about 4 years

3. Makam Mariyamma, D/o. China Yogaiah, Aged about 2 years

Petitioners 2 and 3 are being minors, rep. by Mother 1st petitioner- Makam Ludhia

4. Makam Elisha, S/o. Chennaiah, Aged about 60 years

5. Makam Bhagyamma, W/o. Elisha, Aged 53 years

All are residents of I.T.Varam Village & Post, Pullalacheruvu Mandal, Prakasam District … Petitioners

and

1. Memmolu Raghavendra, S/o. Ranganna, Owner of the lorry AP 21 TU/5398, Door No.8/98, B.C.Colony, Alawala Village & Post, Alwala Mandalam, Kurnool District.

2. Shriram General Insurance Company Limited, Represented by its authorized Officer, Gayathri Complex, Near Benz Circle, Bandar Road, Vijayawada, Krishna District. … Respondents

This petition coming on 27.7.2012 for final hearing before me in the presence of Sri P.Govindaiah, counsel for the petitioners and of Sri D.Venkateswarlu, counsel for the second respondent and the first respondent having remained ex parte, having perused the oral and documentary evidence available on record and this matter having stood over till this day for consideration, this Court made the following:-

O R D E R

The petitioners filed this petition u/Secs.166 and 168 of the

M.V.Act and Rule-455 of the M.V.Rules claiming compensation of

Rs.6,00,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization for the death of one

Makam Chinna Yogaiah, who is the husband of the petitioner, father of the petitioners 2 and 3 and son of the petitioners 4 and 5, in a motor vehicle accident dated 18.5.2011.

2.The contents of the petition, in brief, are as follows:-

The deceased Makam Chinna Yogaiah was aged about 28 years, hale and healthy, working as a driver and was getting

Rs.60,000/- as net income per year. While so, on 18.5.2011, the deceased as driver of the TATA ACE vehicle bearing No.AP 07TA/4301, after unloading mirchi bags of some ryots of

Tripuranthakam Cherlopalli Village at Jayalakshmi Cold Storage in

Guntur, started back at about 8.00 p.m. at Guntur to reach

Tripuranthakam Cherlopalli village and at about 11.30 p.m. when the vehicle reached near D.V.N.Colony of Tripuranthakam Mandal of Guntur-Kurnool road, one Eicher mini lorry bearing No AP 21

TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against the said

TATA ACE vehicle and as a result, the TATA ACE vehicle was badly damaged and its driver i.e. the deceased Makam Chinna Yogaiah and the ryots Puchakayala Kotaiah and Kakarla Venkata Narayana died on the spot and other ryots in the vehicle also received injuries and immediately thereafter the injured were shifted to

Government Hospital, Vinukonda and subsequently some of the injured persons also died and the said accident occurred only due to the rash and negligent driving of the said Eicher Mini Lorry bearing No. AP 21 TU/5398 by its driver and he is solely responsible for the said accident and for the death of the deceased and others. First respondent is the owner and the second respondent is the insurer of the offending mini lorry bearing No.AP 21TU/5398 and the offending vehicle was covered by the insurance policy issued by the second respondent with policy No.10003/31/11/274676 and it was valid for the period from 5.10.2010 to 4.10.2011. Due to the death of the deceased the petitioners lost his care and protection in old age. The petitioners have been suffering mental agony due to the death of the deceased. Therefore, the petitioners are claiming compensation of

Rs.6,00,000/- and both the respondents are jointly and severally liable to pay the compensation amount together with costs and interest.

3.First respondent remained ex parte. Second respondent insurance company filed its written statement and contested the claim of the petitioners. The contents of the said written statement, in brief, are as follows:-

The petition is not maintainable either in law or on facts and is liable to be dismissed in limine. The material allegations made in the petition are not true. The manner of the accident alleged in the petition is not true. The petitioners shall prove the manner of accident and the death of the deceased in the said accident. They shall also prove the age, avocation and income of the deceased as alleged in the petition. The allegation that the deceased was aged about 28 years by the time of his death is not true. As per the information received, there was no negligence on the part of the driver of the Eicher mini lorry bearing No. AP 21 TU/5398 and the said driver was not having a valid and effective driving licence by the time of accident and therefore, there is no liability on the second respondent to pay any compensation to the petitioners.

The deceased, as the driver of the TATA ACE vehicle involved in the accident negligently drove the said vehicle at the time of accident and therefore the accident occurred and hence second respondent need not pay any compensation to the petitioners. The compensation and the rate of interest claimed are excessive. The petition has to be dismissed with exemplary costs.

4.On the basis of the above pleadings, the following issues are settled for trial:-

1. Whether the accident dated 18.5.2011, which resulted in the death of the deceased Makam Chinna Yogaiah, S/o. Elisha, occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver as alleged in the petition and whether there was any negligence on the part of the driver of the TATA ACE vehicle bearing No. AP 07 TA/4301 as alleged by the second respondent in its written statement?

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

3. To what relief?

5.P.Ws.1 and 2 are examined and Exs.A1 to A5 are marked on the side of the petitioners. No oral evidence is adduced but Ex.B1, copy of the insurance policy filed by the second respondent, is marked on the side of the second respondent by consent of both sides.

6.Issue No.1:-

(a)As per the version mentioned in the petition, the deceased

Makam Chinna Yogaiah was the driver of TATA ACE vehicle bearing No. AP 07TA/4103 and on 18.5.2011 the said vehicle was engaged by some ryots of Tripuranthakam Cherlopalli to transport their mirchi to cold storage in Guntur and the vehicle started back from Guntur to Tripuranthakam village and at about 11.30 p.m.

when it reached near DVN colony of Tripuranthakam mandal, on

Guntur-Kurnool road, one Eicher mini lorry bearing No. AP 21

TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against the said

TATA ACE vehicle and as a result the deceased, who was the driver of the said TATA ACE vehicle died on the spot and some others in the vehicle also died and some others received injuries and the said accident occurred only due to the rash and negligent driving of the Eicher Mini lorry bearing No. AP 21TU/5398 by its driver and the deceased was not at fault.

(b)The first respondent, who is the owner of the offending vehicle i.e. Eicher Mini Lorry bearing No. AP 21TU/5398 remained ex parte. As per the stand taken by the second respondent insurance company in its written statement, there was no negligence on the part of the driver of Eicher Mini lorry bearing

No. AP 21 TU/5398 in the occurrence of accident and that the accident occurred due to the rash and negligent driving of the

TATA ACE vehicle by the deceased Makam Chinna Yogaiah. It has to be stated at this juncture itself that the second respondent did not choose to disclose its source of information for its version that there was no fault on the part of the driver of the mini lorry bearing No. AP 21 TU/5398 and that the accident occurred due to the fault of the deceased driver of TATA ACE vehicle Makam

Chinna Yogaiah.

(c)First petitioner, who is the wife of the deceased gave evidence as P.W.1. She filed her chief affidavit with the same version mentioned in the petition regarding the manner of accident. However, she is not an eyewitness to the accident. P.W.2 is an eyewitness to the accident and as per his testimony, he was in the same TATA ACE vehicle along with the deceased and others at the time of accident. According to him, when their vehicle reached near the scene of accident, one Eicher mini lorry bearing

No. AP 21 TU/5398 came in opposite direction in a rash and negligent manner on wrong side and dashed against their vehicle and as a result, the deceased Makam Chinna Yogaiah, the driver of the TATA ACE vehicle, Venkata Narayana and one Putchakayala

Kotaiah died on the spot and some others received injuries and that the said accident occurred only due to the rash and negligent driving of the Eicher mini lorry by its driver and that there was no fault on the part of the deceased driver of the TATA ACE vehicle.

Ex.A1 is the copy of First Information Report in Cr.No.35/2011 of

Tripuranthakam P.S., Ex.A2 is the copy of the inquest report of the deceased, Ex.A3 is the copy of the P.M.Certificate of the deceased,

Ex.A4 is the copy of accident report issued by the M.V.Inspector and Ex.A5 is the copy of Charge sheet filed by the police in the said Cr.No.35/2011 against one Ethamani Narasimhulu, the diver of the Eicher mini lorry bearing No. AP 21U/5398 for the offences u/Secs. 337,338,304-A and 429 of I.P.C. As per the contents of

Exs.A2 and A3, the death of the deceased was due to the injuries sustained in the accident in question. As per the contents of

Ex.A4, the accident was not due to any mechanical defects of the offending vehicle bearing No.AP 21TU/5398. As per the contents of

Exs.A1 and A5, the driver of Eicher Mini Lorry bearing No.

AP21TU/5398 by name Ethamani Narasimhulu drove the said vehicle at the scene of accident with high speed and in a rash and negligent manner and dashed against one she-buffalow of one

Palle Narasaiah and lost control over the vehicle and as a result the vehicle turned to right side and dashed against the TATA ACE vehicle bearing No. AP07TA/4103 and thus he was solely responsible for the said accident. P.W.2 is L.W.1 in Ex.A5 charge sheet. Thus, the evidence of P.W.2 that the driver of the Eicher

Mini Lorry bearing No. AP 21TU/5398 drove the said vehicle in a rash and negligent manner and dashed against the TATA ACE vehicle bearing No. AP07TA/4103 and thus he was solely responsible for the said accident is supported by the contents of

Exs.A1 and A5. As indicated above, though the second respondent alleged in its written statement that there was no fault on the part of the driver of Eicher Mini Lorry bearing No. AP 21

TU/5398 in the occurrence of accident and that the driver of TATA

ACE vehicle was responsible for the accident, it did not disclose its source of information for such conclusion. The second respondent did not choose to place any evidence either oral or documentary to substantiate the said version. Hence, to conclude under the issue, it has to be stated that, the accident dated 18.5.2011 which resulted in the death of the deceased Makam Chinna Yogaiah occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver and there was no negligence on the part of the deceased in driving the TATA ACE vehicle bearing No.AP 07 TA/4301. This issue is accordingly answered.

7.Issue No.2:-

(a)The claim of the petitioners is for compensation of

Rs.6,00,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization. As per the version mentioned in the petition, the deceased was aged 28 years and was the driver of TATA ACE vehicle involved in the accident and as driver he was getting salary of Rs.6,000/- per month and was the sole bread winner of the family of the petitioners. During the course of his arguments, the learned counsel for the petitioners has argued that as per G.O.Ms.No.83 dated 22.11.2006, a driver of a Heavy Vehicle is entitled for a total sum of Rs.6,067/- per month from the employer from 1.4.2011 and therefore, the income of the deceased in the present case has to be taken as Rs.6,067/- per month.

(b)On the other hand, the learned counsel for the second respondent has argued that though the deceased was the driver of TATA ACE vehicle involved in the accident, there is nothing on record to show that he was possessing a heavy vehicle driving licence and in fact the said TATA ACE vehicle is only a light motor vehicle and therefore, G.O.Ms.No.83 dated 22.11.2006 cannot be taken into consideration for fixing the income of the deceased.

(c)So far as the age of the deceased is concerned, it was 28 years as per the version of the petitioners, but, it was only 27 years as per the crime record pertaining to the accident and therefore, the version of the petitioners can be accepted. So far as the income of the deceased is concerned, though it is admitted that he was the driver of the TATA ACE vehicle at the time of accident no worthwhile effort was made by the petitioners to bring on record his actual income by examining his employer or any one who is well acquainted with the salary of the drivers of such vehicles. During the course of arguments, the learned counsel for the second respondent contended that the TATA ACE vehicle involved in the accident was only a light motor vehicle and it was not disputed. Therefore, the arguments advanced by the learned counsel for the petitioner that the income of the deceased has to be calculated at Rs.6,067/- per month as per the G.O.Ms.No.83

dated 22.11.2006 cannot be accepted as the said G.O. is in

respect of the Heavy Vehicle Drivers from 1.4.2011. The petitioners did not file the driving licence of the deceased and also did not choose to examine the employer i.e. the owner of the

TATA ACE vehicle involved in the accident. Hence, under the circumstances, it is reasonable to take the income of the deceased as Rs.3,000/- per month and at that rate Rs.36,000/- per year. If 1/4th of the income of the deceased is deducted towards his personal and living expenses, his contribution to the family comes to Rs.27,000/- per year. Appropriate multiplier for a person of the age of the deceased is “17” and on application of the said multiplier, the loss to the petitioners comes to Rs.4,59,000/- (Rs.27,000/- x 17). The first petitioner being the wife can be granted a sum of Rs.10,000/- towards loss of consortium, the petitioners 2 and 3 being the children of tender age can be granted a sum of rs.5,000/- each towards loss of love and affection. The petitioners can also be granted a sum of Rs.5,000/- towards loss to the estate and a sum of Rs.5,000/- towards funeral and other incidental expenses. Thus, in all, the petitioners are entitled for a total compensation of Rs.4,89,000/- with costs and subsequent interest. (d)Ex.B1 Insurance Policy issued by the second respondent in favour of the first respondent in respect of the offending vehicle was in force by the time of accident and it covers the risk of a third party like the deceased.

Hence, to conclude under the issue, it has to be stated that, the petitioners are entitled for a total compensation of Rs.4,89,000/- together with proportionate costs and interest and the respondents are jointly and severally liable to pay the same. This issue is accordingly answered.

8.Issue No.3:-

In the result, the petition is partly allowed by awarding compensation of Rs.4,89,000/-(Rupees four lakhs eighty nine thousands only) with proportionate costs and interest at 9% p.a.

from the date of petition till the date of realization. Rest of the claim of the petitioners is dismissed without costs. The respondents 1 and 2 are jointly and severally liable to pay the compensation amount to the petitioners and they are directed to deposit the same within 30 days from the date of this order. The first petitioner is exclusively entitled for a sum of Rs.10,000/- awarded towards loss of consortium together with interest accrued thereon and likewise the petitioners 2 and 3 are exclusively entitled for a sum of Rs.5,000/- each awarded towards loss of love and affection together with interest accrued thereon.

In the remaining amount of compensation, the first petitioner is entitled for a share of 40%, the petitioners 2 and 3 are entitled for a share of 20% each and the petitioners 4 and 5 are entitled for the remaining share of 20% equally. The petitioners 1 and 5 are permitted to receive 25% of compensation from their respective shares and the remaining amount of their compensation amount shall be invested in fixed deposits in any nationalized bank for a period of 3 years and the 4th petitioner being the senior citizen is permitted to receive the entire compensation amount awarded to him. The shares of the petitioners 2 and 3 shall be invested in fixed deposits in any nationalized bank for the period of their minority and their mother i.e. the first petitioner may file applications to withdraw accrued interest once in six months to spend the same for the benefit of the minor petitioners 2 and 3. The petitioners 1 and 5 are entitled to seek permission for withdrawal of compensation amount as per their necessity and Rules. Advocate’s fee is fixed at Rs.3,500/-.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, on this the 30th day of July, 2012.

Sd/- T.Bhaktavatsalam

CHAIRMAN,MACT-CUM-

PRL.DISTRICT JUDGE,

ONGOLE

Appendix of evidence

Witnesses examined

For petitioners For

respondents P.W.1: Makam Ludhia None P.W.2: Putchakayala Kotaiah

DOCUMENTS MARKED

For petitioners :

Ex.A1/19.05.201:Certified Photostat copy of the First 1Information Report in Cr.No.35/2011 of Tripuranthakam P.S.

Ex.A2/19.05.201:Certified Photostat copy of the Inquest 1report of the deceased Putchakayala Kotaiah

Ex.A3/19.05.201:Certified Photostat copy of the Postmortem 1certificate of the deceased Makam Chinna Yogaiah

Ex.A4/28.05.201:Certified Photostat copy of the Accident 1Report from Motor Vehicles Inspector in respect of the vehicle bearing No. AP 21 TU/5398

Ex.A5/:Certified Photostat copy of the Charge sheetfiledinCr.No.35/2011of Thripuranthakam P.S.

For respondents

Ex.B1/ :Attested copy of the Certificate cum Policy schedule bearing No.10003/31/11/274696 issued by Shriram General Insurance Company Limited.

Sd/-

T.Bhaktavatsalam

CHAIRMAN,MAC

T- CUM-PDJ, ONGOLE

MOTOR ACCIDENT CLAIMS TRIBUNAL

(BEFORE THE PRINCIPAL DISTRICT JUDGE, PRAKASAM AT

ONGOLE)

Present: Sri T.Bhaktavatsalam, B.Sc., B.L.,

Chairman,MACT-cum-Prl.District Judge, Ongole

Monday, this the thirtieth day of July, 2012

M.V.O.P.NO.414/2011

Between:

1. Kakarla Ankamma, W/o. Late Venkata Narayana, Aged about 40 years

2. Kakarla Bahmaiah, S/o. Late Venkata Narayana, Aged about 23 years

3. Kakarla Siddaiah, S/o. Late Venkata Narayana, Aged about 21 years

4. Kakarla Mallaiah, S/o. Late Venkata Narayana, Aged about 19 years

5. Kakarla Hanumaiah, S/o. Kotaiah, Aged 65 years

6. Kakarla Ankamma, W/o. Hanumaiah, Aged about 60 years

Residents of Tripuranthakam Cherlopalli Village, Tripuranthakam post & Mandal, Prakasam District. … Petitioners

and

1. Memmolu Raghavendra, S/o. Ranganna, Owner of the lorry AP 21 TU/5398, Door No.8/98, B.C.Colony, Alawala Village & Post, Alwala Mandalam, Kurnool District.

2. Shriram General Insurance Company Limited, Represented by its authorized Officer, Gayathri Complex, Near Benz Circle, Bandar Road, Vijayawada, Krishna District. … Respondents

This petition coming on 27.7.2012 for final hearing before me in the presence of Sri P.Govindaiah, counsel for the petitioners and of Sri D.Venkateswarlu, counsel for the second respondent and the first respondent having remained ex parte, having perused the oral and documentary evidence available on record and this matter having stood over till this day for consideration, this Court made the following:-

O R D E R

The petitioners filed this petition u/Secs.166 and 168 of the

M.V.Act and Rule-455 of the M.V.Rules claiming compensation of

Rs.6,00,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization for the death of one

Kakarla Venkata Narayana, who is the husband of the first petitioner, father of the petitioners 2 to 4 and the son of the petitioners 5 and 6, in a motor vehicle accident dated 18.5.2011.

2.The contents of the petition, in brief, are as follows:-

The deceased Kakarla Venkata Narayana was aged about 43 years, hale and healthy and was attending to agricultural operations personally in his land of Ac.20-00 and used to raise commercial crops like Mirchi, Cotton, Red gram etc., in addition to paddy and was getting Rs.2,00,000/- to Rs.3,00,000/- as net income per year. While so, on 18.5.2011 the deceased Kakarla

Venkata Narayana and some other ryots of Tripuranthakam

Cherlopalli village started their return journey to their village from

Guntur at about 8.00 p.m. by TATA ACE vehicle bearing No.AP 07TA/4301 which was earlier engaged by some of those persons to transport their mirchi bags from the village to cold storage by name Jayalakshmi cold storage, Guntur and at about 11.30 p.m.

when their vehicle reached near D.V.N.Colony of Tripuranthakam

Mandal on Guntur-Kurnool road, one Eicher mini lorry bearing No

AP 21 TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against the said TATA ACE vehicle and as a result, the TATA ACE vehicle was badly damaged and its driver Makam Chinna Yogaiah and the ryots Puchakayala Kotaiah and Kakarla Venkata Narayana died on the spot and other ryots in the vehicle also received injuries and immediately thereafter the injured were shifted to Government

Hospital, Vinukonda and subsequently some of the injured persons also died and the said accident occurred only due to the rash and negligent driving of the said Eicher Mini Lorry bearing

No. AP 21 TU/5398 by its driver and he is solely responsible for the said accident and for the death of the deceased and others. First respondent is the owner and the second respondent is the insurer of the offending mini lorry bearing No.AP 21TU/5398 and the offending vehicle was covered by the insurance policy issued by the second respondent with policy No.10003/31/11/274676 and it was valid for the period from 5.10.2010 to 4.10.2011. Due to the death of the deceased Venkata Narayana, the first petitioner’s marital life came to an abrupt end and the petitioners 2 to 4 lost their love and affection from their father and the petitioners 5 and 6, who are the parents of the deceased, lost his care and protection in old age. All the petitioners have been suffering mental agony due to the death of the deceased. Therefore, the petitioners are claiming compensation of Rs.6,00,000/- and both the respondents are jointly and severally liable to pay the compensation amount together with costs and interest.

3.First respondent remained ex parte. Second respondent insurance company filed its written statement and contested the claim of the petitioners. The contents of the said written statement, in brief, are as follows:-

The petition is not maintainable either in law or on facts and is liable to be dismissed in limine. The material allegations made in the petition are not true. The manner of the accident alleged in the petition is not true. The petitioners shall prove the manner of accident and the death of the deceased in the said accident. They shall also prove the age, avocation and income of the deceased as alleged in the petition. The allegation that the deceased was aged about 43 years by the time of his death is not true. As per the information received, there was no negligence on the part of the driver of the Eicher mini lorry bearing No. AP 21 TU/5398 and the said driver was not having a valid and effective driving licence by the time of accident and therefore, there is no liability on the second respondent to pay any compensation to the petitioners.

Makam Chinna Yogaiah, the driver of the TATA ACE vehicle involved in the accident negligently drove the said vehicle at the time of accident and therefore the accident occurred and hence second respondent need not pay any compensation to the petitioners. The compensation and the rate of interest claimed are excessive. The petition has to be dismissed with exemplary costs.

4.On the basis of the above pleadings, the following issues are settled for trial:-

1. Whether the accident dated 18.5.2011, which resulted in the death of the deceased Kakarla Venkata Narayana, S/o. Hanumaiah, occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver as alleged in the petition and whether there was any negligence on the part of the driver of the TATA ACE vehicle bearing No. AP 07 TA/4301 as alleged by the second respondent in its written statement?

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

3. To what relief?

5.P.Ws.1 and 2 are examined and Exs.A1 to A8 are marked on the side of the petitioners. No oral evidence is adduced but Ex.B1, copy of the insurance policy filed by the second respondent, is marked on the side of the second respondent by consent of both sides.

6.Issue No.1:-

(a)As per the version mentioned in the petition, the deceased

Kakarla Venkata Narayana and some other ryots were travelling by TATA ACE vehicle bearing No. AP 07TA/4309 on 18.5.2011 to go to their village Tripuranthakam Cherlopalli from Guntur and at about 11.30 p.m. when their vehicle reached near D.V.N.colony of

Tripuranthakam Mandal on Guntur-Kurnool road, one Eicher mini lorry bearing No. AP 21TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against TATA ACE vehicle and as a result, the deceased

Venkata Narayana and the driver of the TATA ACE vehicle Makam

Chinna Yogaiah died on the spot and some other ryots, who received injuries, also succumbed to those injuries subsequently and that the said accident occurred only due to the rash and negligent driving of the driver of Eicher Mini Lorry bearing No.

AP21TU/5398. First respondent, who is the owner of the offending vehicle, i.e. Eicher Mini Lorry bearing No.AP 21TU/5398, remained ex parte. The stand taken by the second respondent in its written statement is that, there was no fault on the part of the driver of

Eicher mini lorry bearing No. AP 21TU/5398 in the occurrence of accident and that the accident occurred due to the rash and negligent driving of TATA ACE vehicle by its deceased driver Makam Chinna Yogaiah. It may be stated at this juncture itself that the second respondent did not choose to disclose its source of information for it to conclude that there was no fault on the part of the driver of the mini lorry bearing No.AP 21TU/5398 and that the accident occurred due to the fault of the deceased driver of TATA ACE vehicle.

(b)First petitioner, who is the wife of the deceased, gave evidence as P.W.1. She filed her chief affidavit with the same version mentioned in the petition regarding the manner of accident. However, she is not an eyewitness to the accident. She got marked the exhibits in A-series. P.W.2 is an eyewitness to the accident and as per his testimony, he was actually travelling in the same TATA ACE vehicle along with the deceased and when their vehicle reached the scene of accident, one Eicher mini lorry bearing No. AP 21TU/5398 came in opposite direction in a rash and negligent manner on wrong side and dashed against their vehicle and as a result the deceased Venkata Narayana and the driver of their vehicle died on the spot and the said accident occurred only due to the rash and negligent driving of the said

Eicher mini lorry by its driver and that there was no fault on the part of the driver of their TATA ACE vehicle bearing No.AP 7TA/4103. Ex.A1 is the copy of First Information Report in

Cr.No.35/2011 of Tripuranthakam P.S., Ex.A2 is the copy of the inquest report of the deceased, Ex.A3 is the copy of the

P.M.Certificate of the deceased, Ex.A4 is the copy of accident report issued by the M.V.Inspector and Ex.A5 is the copy of Charge sheet filed by the police in the said Cr.No.35/2011 against one

Ethamani Narasimhulu, the diver of the Eicher mini lorry bearing

No. AP 21U/5398 for the offences u/Secs. 337,338,304-A and 429 of I.P.C. As per the contents of Exs.A2 and A3, the death of the deceased was due to the injuries sustained in the accident in question. As per the contents of Ex.A4, the accident was not due to any mechanical defects of the offending vehicle bearing No.AP 21TU/5398. As per the contents of Exs.A1 and A5, the driver of

Eicher Mini Lorry bearing No. AP21TU/5398 by name Ethamani

Narasimhulu drove the said vehicle at the scene of accident with high speed and in a rash and negligent manner and dashed against one she-buffalow of one Palle Narasaiah and lost control over the vehicle and as a result the vehicle turned to right side and dashed against the TATA ACE vehicle bearing No.

AP07TA/4103 and thus he was solely responsible for the said accident. P.W.2 is L.W.1 in Ex.A5 charge sheet. Thus, the evidence of P.W.2 that the driver of the Eicher Mini Lorry bearing No. AP 21TU/5398 drove the said vehicle in a rash and negligent manner and dashed against the TATA ACE vehicle bearing No.

AP07TA/4103 and thus he was solely responsible for the said accident is supported by the contents of Exs.A1 and A5. As indicated above, though the second respondent alleged in its written statement that there was no fault on the part of the driver of Eicher Mini Lorry bearing No. AP 21 TU/5398 in the occurrence of accident and that the driver of TATA ACE vehicle was responsible for the accident, it did not disclose its source of information for such a conclusion. The second respondent did not choose to place any evidence either oral or documentary to substantiate the said version. Hence, to conclude under the issue, it has to be stated that the accident dated 18.5.2011 which resulted in the death of the deceased Kakarla Venkata Narayana occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver and there was no negligence on the part of the driver of the TATA ACE vehicle bearing No. AP07TA/4301. This issue is accordingly answered.

7.Issue No.2:-

(a)The claim of the petitioners is for compensation of

Rs.6,00,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization. As per the version mentioned in the petition, the deceased was aged 43 years and was having Ac.20-00 of land and raising commercial crops and was getting Rs.2,00,000/- to Rs.3,00,000/- per year as net income and that income is lost due to the death of the deceased. So far as the age of the deceased is concerned, it is shown as 42 years in the crime record pertaining to the accident. Therefore, there is no difficulty in accepting the version of the petitioners that the deceased was aged 43 years by the time of his death. However, it must be stated that there is no acceptable evidence in support of the version that the deceased was having Ac.20-00 of land and was raising commercial crops and earning Rs.2,00,000/- to

Rs.3,00,000/- per year as net income. As per Ex.A6 copy of the title deed issued by the Tahsildar, the deceased was owning Ac.2- 49 cents of dry land in S.No.409 to Lellapalle. The father of the deceased is the owner of some other lands as per the documents

Exs.A7 and A8. Therefore, the version of the petitioners that the deceased was having Ac.20-00 of land and was raising commercial crops and earning Rs.2,00,000/- to Rs.3,00,000/- per year as net income cannot be accepted. P.W.1 in her cross-examination has stated that the deceased was doing cultivation and was not earning any monthly income but was earning Rs.1,00,000/- per year. She denied a suggestion that the deceased was not earning

Rs.1,00,000/- per year through agriculture. The fact remains that the deceased was having an extent of Ac.2-49 cents of dry land in his name and his father was also having some land and he is an agriculturist and therefore, his income can be taken as Rs.4,000/- per month and at that rate Rs.48,000/- per year. If 1/4th of the income of the deceased is deducted towards his personal and living expenses, his contribution to the family comes to

Rs.36,000/- per year. Appropriate multiplier for a person of the age of the deceased is “14” and on application of the said multiplier, the loss to the family comes to Rs.5,04,000/-. First petitioner being the wife can be granted a sum of Rs.10,000/- towards loss of consortium. A sum of Rs.5,000/- towards loss to the estate and a sum of Rs.5,000/- towards funeral and other incidental expenses can also be granted. Thus, in all, the petitioners are entitled for a total compensation of Rs.5,24,000/-.

(b)Ex.B1 Insurance Policy issued by the second respondent in favour of the first respondent in respect of the offending vehicle was in force by the time of accident and it covers the risk of a third party like the deceased. Hence, to conclude under the issue, it has to be stated that the petitioners are entitled for a total compensation of Rs.5,24,000/- together with proportionate costs and interest and the respondents are jointly and severally liable to pay the same. This issue is accordingly answered.

8.Issue No.3:-

In the result, the petition is partly allowed by awarding compensation of Rs.5,24,000/- (Rupees five lakhs twenty four thousands only) with proportionate costs and interest at 9% p.a.

per annum from the date of petition till the date of realization.

Rest of the claim of the petitioners is dismissed without costs. The respondents 1 and 2 are jointly and severally liable to pay the compensation amount and they are directed to deposit the same within 30 days from the date of this order. First petitioner is exclusively entitled for the amount of Rs.10,000/- awarded towards loss of consortium together with the interest accrued thereon. In the remaining amount of compensation, first petitioner is entitled for a share of 45%, the petitioners 2 to 4 are entitled to a share of 15% each and the petitioners 5 and 6 are entitled for equal shares in the remaining 10%. The petitioners 1 to 4 are entitled to receive 25% of the compensation amount from their respective shares and the rest of the compensation amount shall be invested in fixed deposits in any nationalized bank for a period of 3 years. The petitioners 5 and 6 are permitted to receive compensation amount awarded to them as they are senior citizens. The petitioners 1 to 4 are entitled to seek permission to withdraw the amounts from their respective shares as per their necessity and Rules. Advocate’s fee is fixed at Rs.4,000/-.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, on this the 30th day of July, 2012.

Sd/- T.Bhaktavatsalam

CHAIRMAN,MACT-CUM-

PRL.DISTRICT JUDGE,

ONGOLE

Appendix of evidence

Witnesses examined

For petitioners For

respondents P.W.1: Kakarla Ankamma None P.W.2: Putchakayala Kotaiah

DOCUMENTS MARKED

For petitioners :

Ex.A1/19.05.201:Certified Photostat copy of the First 1Information Report in Cr.No.35/2011 of Tripuranthakam P.S.

Ex.A2/19.05.201:Certified Photostat copy of the Inquest 1report of the deceased kakarla Venkata Narayana

Ex.A3/19.05.201:Certified Photostat copy of the Postmortem 1certificate of the deceased Kakarla Venkata Narayana

Ex.A4/28.05.201:Certified Photostat copy of the Accident 1Report from Motor Vehicles Inspector in respect of the vehicle bearing No. AP 21 TU/5398

Ex.A5/:Certified Photostat copy of the Charge sheetfiledinCr.No.35/2011of Thripuranthakam P.S.

Ex.A6/:Photostat Copy of Title Deed Book of The Deceased Kakarla Venkata Narayana

Ex.A7/:Photostat Copy of The Title Deed Book of

Kakarla Hanumaiah

Ex.A8/Photostat Copy of The Title Deed Book of Kakarla Hanumaiah

For respondents

Ex.B1/ :Attested copy of the Certificate cum Policy schedule bearing No.10003/31/11/274696 issued by Shriram General Insurance Company Limited.

Sd/- T.Bhaktavatsalam

CHAIRMAN,MAC

T- CUM-PDJ, ONGOLE

MOTOR ACCIDENT CLAIMS TRIBUNAL

(BEFORE THE PRINCIPAL DISTRICT JUDGE, PRAKASAM AT ONGOLE)

Present: Sri T.Bhaktavatsalam, B.Sc., B.L., Chairman,MACT-cum-Prl.District Judge, Ongole

Monday, this the thirtieth day of July, 2012

M.V.O.P.NO.415/2011

Between: 1.Putchakayala China Venkateswarlu, S/o. Galeaiah, aged about 45 years

2. Putchakayala Kotamma, W/o. China Venkateswarlu, aged about 39 years Residents of Tripuranthakam Cherlopalli Village, Tripuranthakam post & Mandal, Prakasam District. … Petitioners

and

1. Memmolu Raghavendra, S/o. Ranganna, Owner of the lorry AP 21 TU/5398, Door No.8/98, B.C.Colony, Alawala Village & Post, Alwala Mandalam, Kurnool District.

2. Shriram General Insurance Company Limited, Represented by its authorized Officer, Gayathri Complex, Near Benz Circle, Bandar Road, Vijayawada, Krishna District. … Respondents

This petition coming on 27.7.2012 for final hearing before me in the presence of Sri P.Govindaiah, counsel for the petitioners and of Sri D.Venkateswarlu, counsel for the second respondent and the first respondent having remained ex parte, having perused the oral and documentary evidence available on record and this matter having stood over till this day for consideration, this Court made the following:-

O R D E R

The petitioners filed this petition u/Secs.166 and 168 of the

M.V.Act and Rule-455 of the M.V.Rules claiming compensation of

Rs.5,50,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization for the death of one

Putchakayala Kotaiah, who is the son of the petitioners, in a motor vehicle accident dated 18.5.2011.

2.The contents of the petition, in brief, are as follows:-

The deceased Putchakayala Kotaiah was aged about 19 years, hale and healthy and was attending to agricultural operations along with family members in their land of Ac.10-00 and used to raise commercial crops like Mirchi, Cotton, Red gram etc., and was getting Rs.60,000/- as net income per year. While so, on 18.5.2011 the deceased Putchakayala Kotaiah and some other ryots of Tripuranthakam Cherlopalli village started their return journey to their village from Guntur at about 8.00 p.m. by

TATA ACE vehicle bearing No.AP 07TA/4301 which was earlier engaged by some of those persons to transport their mirchi bags from the village to cold storage by name Jayalakshmi cold storage,

Guntur and at about 11.30 p.m. when their vehicle reached near

D.V.N.Colony of Tripuranthakam Mandal on Guntur-Kurnool road, one Eicher mini lorry bearing No AP 21 TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against the said TATA ACE vehicle and as a result, the TATA ACE vehicle was badly damaged and its driver Makam Chinna Yogaiah and the ryots Puchakayala Kotaiah and Kakarla Venkata Narayana died on the spot and other ryots in the vehicle also received injuries and immediately thereafter the injured were shifted to Government Hospital, Vinukonda and subsequently some of the injured persons also died and the said accident occurred only due to the rash and negligent driving of the said Eicher Mini Lorry bearing No. AP 21 TU/5398 by its driver and he is solely responsible for the said accident and for the death of the deceased and others. First respondent is the owner and the second respondent is the insurer of the offending mini lorry bearing No.AP 21TU/5398 and the offending vehicle was covered by the insurance policy issued by the second respondent with policy No.10003/31/11/274676 and it was valid for the period from 5.10.2010 to 4.10.2011. Due to the death of the deceased the petitioners lost his care and protection in old age. The petitioners have been suffering mental agony due to the death of the deceased. Therefore, the petitioners are claiming compensation of

Rs.5,50,000/- and both the respondents are jointly and severally liable to pay the compensation amount together with costs and interest.

3.First respondent remained ex parte. Second respondent insurance company filed its written statement and contested the claim of the petitioners. The contents of the said written statement, in brief, are as follows:-

The petition is not maintainable either in law or on facts and is liable to be dismissed in limine. The material allegations made in the petition are not true. The manner of the accident alleged in the petition is not true. The petitioners shall prove the manner of accident and the death of the deceased in the said accident. They shall also prove the age, avocation and income of the deceased as alleged in the petition. The allegation that the deceased was aged about 19 years by the time of his death is not true. As per the information received, there was no negligence on the part of the driver of the Eicher mini lorry bearing No. AP 21 TU/5398 and the said driver was not having a valid and effective driving licence by the time of accident and therefore, there is no liability on the second respondent to pay any compensation to the petitioners.

Makam Chinna Yogaiah, the driver of the TATA ACE vehicle involved in the accident, negligently drove the said vehicle at the time of accident and therefore the accident occurred and hence second respondent need not pay any compensation to the petitioners. The compensation and the rate of interest claimed are excessive. The petition has to be dismissed with exemplary costs.

4.On the basis of the above pleadings, the following issues are settled for trial:-

1. Whether the accident dated 18.5.2011, which resulted in the death of the deceased Putchakayala Kotaiah, S/o. China Venkateswarlu, occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver as alleged in the petition and whether there was any negligence on the part of the driver of the TATA ACE vehicle bearing No. AP 07 TA/4301 as alleged by the second respondent in its written statement?

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

3. To what relief?

5.P.Ws.1 and 2 are examined and Exs.A1 to A7 are marked on the side of the petitioners. No oral evidence is adduced but Ex.B1, copy of the insurance policy filed by the second respondent, is marked on the side of the second respondent by consent of both sides.

6.Issue No.1:-

(a)As per the version mentioned in the petition, the deceased

Putchakayala Kotaiah and some other ryots were travelling by

TATA ACE vehicle bearing No. AP 07TA/4309 on 18.5.2011 to go to their village Tripuranthakam Cherlopalli from Guntur and at about 11.30 p.m. when their vehicle reached near D.V.N.colony of

Tripuranthakam Mandal on Guntur-Kurnool road, one Eicher mini lorry bearing No. AP 21TU/5398 driven by its driver in a rash and negligent manner came in opposite direction on wrong side and dashed against TATA ACE vehicle and as a result, the deceased

Putchakayala Kotaiah, Venkata Narayana and the driver of the

TATA ACE vehicle Makam Chinna Yogaiah died on the spot and some other ryots, who received injuries, also succumbed to those injuries subsequently and that the said accident occurred only due to the rash and negligent driving of the driver of Eicher Mini Lorry bearing No. AP21TU/5398. First respondent, who is the owner of the offending vehicle, i.e. Eicher Mini Lorry bearing No.AP 21TU/5398, remained ex parte. The stand taken by the second respondent in its written statement is that, there was no fault on the part of the driver of Eicher mini lorry bearing No. AP 21TU/5398 in the occurrence of accident and that the accident occurred due to the rash and negligent driving of TATA ACE vehicle by its deceased driver Makam Chinna Yogaiah. It may be stated at this juncture itself that the second respondent did not choose to disclose its source of information for it to conclude that there was no fault on the part of the driver of the mini lorry bearing No.AP 21TU/5398 and that the accident occurred due to the fault of the deceased driver of TATA ACE vehicle.

(b)First petitioner, who is the father of the deceased, gave evidence as P.W.1. He filed his chief affidavit with the same version mentioned in the petition regarding the manner of accident. However, he is not an eyewitness to the accident. He got marked the exhibits in A-series. P.W.2 is an eyewitness to the accident and as per his testimony, he was actually travelling in the same TATA ACE vehicle along with the deceased and when their vehicle reached the scene of accident, one Eicher mini lorry bearing No. AP 21TU/5398 came in opposite direction in a rash and negligent manner on wrong side and dashed against their vehicle and as a result the deceased Putchakayala Kotaiah and the driver of their vehicle died on the spot and the said accident occurred only due to the rash and negligent driving of the said

Eicher mini lorry by its driver and that there was no fault on the part of the driver of their TATA ACE vehicle bearing No.AP 7TA/4103. Ex.A1 is the copy of First Information Report in

Cr.No.35/2011 of Tripuranthakam P.S., Ex.A2 is the copy of the inquest report of the deceased, Ex.A3 is the copy of the

P.M.Certificate of the deceased, Ex.A4 is the copy of accident report issued by the M.V.Inspector and Ex.A5 is the copy of Charge sheet filed by the police in the said Cr.No.35/2011 against one

Ethamani Narasimhulu, the diver of the Eicher mini lorry bearing

No. AP 21U/5398 for the offences u/Secs. 337,338,304-A and 429 of I.P.C. As per the contents of Exs.A2 and A3, the death of the deceased was due to the injuries sustained in the accident in question. As per the contents of Ex.A4, the accident was not due to any mechanical defects of the offending vehicle bearing No.AP 21TU/5398. As per the contents of Exs.A1 and A5, the driver of

Eicher Mini Lorry bearing No. AP21TU/5398 by name Ethamani

Narasimhulu drove the said vehicle at the scene of accident with high speed and in a rash and negligent manner and dashed against one she-buffalow of one Palle Narasaiah and lost control over the vehicle and as a result the vehicle turned to right side and dashed against the TATA ACE vehicle bearing No.

AP07TA/4103 and thus he was solely responsible for the said accident. P.W.2 is L.W.1 in Ex.A5 charge sheet. Thus, the evidence of P.W.2 that the driver of the Eicher Mini Lorry bearing No. AP 21TU/5398 drove the said vehicle in a rash and negligent manner and dashed against the TATA ACE vehicle bearing No.

AP07TA/4103 and thus he was solely responsible for the said accident is supported by the contents of Exs.A1 and A5. As indicated above, though the second respondent alleged in its written statement that there was no fault on the part of the driver of Eicher Mini Lorry bearing No. AP 21 TU/5398 in the occurrence of accident and that the driver of TATA ACE vehicle was responsible for the accident, it did not disclose its source of information for such conclusion. The second respondent did not choose to place any evidence either oral or documentary to substantiate the said version. Hence, to conclude under the issue, it has to be stated that the accident dated 18.5.2011 which resulted in the death of the deceased Putchakayala Kotaiah occurred due to the rash and negligent driving of the mini lorry bearing No. AP 21 TU/5398 by its driver and there was no negligence on the part of the driver of the TATA ACE vehicle bearing No. AP07TA/4301. This issue is accordingly answered.

7.Issue No.2:-

(a)The claim of the petitioners is for compensation of

Rs.5,50,000/- with costs and subsequent interest at 15% p.a. from the date of petition till the date of realization. As per the version mentioned in the petition, the deceased was aged 19 years and was having Ac.10-00 of land and raising commercial crops and was getting Rs.60,000/- per year as net income and that income is lost due to the death of the deceased. So far as the age of the deceased is concerned, it is shown as 18 years in the crime record pertaining to the accident. Therefore, there is no difficulty in accepting the version of the petitioners that the deceased was aged 19 years by the time of his death. Since the deceased died unmarried, the age of his mother can be taken into consideration for computation of compensation. The age of the mother of the deceased is shown as 39 years. There is no acceptable evidence in support of the version that the deceased was having Ac.10-00 of land and was raising commercial crops and earning Rs.60,000/- per year as net income. Ex.A6 copy of the title deed issued by the

Tahsildar, the mother of the deceased was owning Ac.3-30 cents of dry land. As per Ex.A7, the father of the deceased purchased an extent of Ac.1-22 cents of land . Therefore, the version of the petitioners that the deceased was having Ac.10-00 of land and was raising commercial crops and earning Rs.60,000/- per year as net income cannot be accepted. P.W.1 denied a suggestion that the deceased was not earning more than Rs.20,000/- per year through agriculture. As per the contents of the petition and the evidence of P.W.1 the deceased was their elder son. Thus, though the deceased was not having any land in his name, being elder son of an agricultural family, he has to render hard work and play vital role in conducting and supervising the agricultural operations. Therefore, the income of the deceased can be taken as Rs.3,500/- per month and at that rate Rs.42,000/- per year. If 50% of the income of the deceased is deducted towards his personal and living expenses, his contribution to the family comes to Rs.21,000/- per year. Appropriate multiplier for a person of the age of the mother of the deceased is “15” and on application of the said multiplier, the loss to the family comes to Rs.3,15,000/-.

The petitioners can also be granted a sum of Rs.5,000/- towards loss to the estate and a sum of Rs.5,000/- towards funeral and other incidental expenses. Thus, in all, the petitioners are entitled for a total compensation of Rs.3,25,000/-.

(b)Ex.B1 Insurance Policy issued by the second respondent in favour of the first respondent in respect of the offending vehicle was in force by the time of accident and it covers the risk of a third party like the deceased. Hence, to conclude under the issue, it has to be stated that, the petitioners are entitled for a total compensation of Rs.3,25,000/- together with proportionate costs and interest and the respondents are jointly and severally liable to pay the same. This issue is accordingly answered.

8.Issue No.3:-

In the result, the petition is partly allowed by awarding compensation of Rs.3,25,000/- (Rupees three lakhs twenty five thousands only) with proportionate costs and interest at 9% p.a.

per annum from the date of petition till the date of realization. Rest of the claim of the petitioners is dismissed without costs. The respondents 1 and 2 are jointly and severally liable to pay the compensation amount and they are directed to deposit the same within 30 days from the date of this order. On such deposit, the petitioners are entitled for equal shares in the compensation amount. The petitioners are entitled to receive 25% of the amount from their respective shares and the rest of the compensation amount shall be invested in fixed deposits in any nationalized bank for a period of three years. The petitioners are entitled to seek permission to withdraw the amounts from their respective shares as per their necessity and Rules. Advocate’s fee is fixed at

Rs.3,000/-.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, on this the 30th day of July, 2012.

Sd/- T.Bhaktavatsalam

CHAIRMAN,MACT-CUM-

PRL.DISTRICT JUDGE,

ONGOLE

Appendix of evidence

Witnesses examined

For petitioners For

respondents P.W.1: Putchakayala China Venkateswarlu None P.W.2: Putchakayala Kotaiah

DOCUMENTS MARKED

For petitioners :

Ex.A1/19.05.201:Certified Photostat copy of the First 1Information Report in Cr.No.35/2011 of Tripuranthakam P.S.

Ex.A2/19.05.201:Certified Photostat copy of the Inquest 1report of the deceased Putchakayala Kotaiah

Ex.A3/19.05.201:Certified Photostat copy of the Postmortem 1certificate of the deceased Putchakayala Kotaiah

Ex.A4/28.05.201:Certified Photostat copy of the Accident 1Report from Motor Vehicles Inspector in respect of the vehicle bearing No. AP 21 TU/5398

Ex.A5/:Certified Photostat copy of the Charge sheetfiledinCr.No.35/2011of Thripuranthakam P.S.

Ex.A6/:Photostat copy of the title deed book standing in the name of the second petitioner

Ex.A7/30.09.201:Photostat Copy of The sale deed executed 0in favour of the first petitioner by Adusumalli Kanakaiah and others

For respondents

Ex.B1/ :Attested copy of the Certificate cum Policy schedule bearing No.10003/31/11/274696 issued by Shriram General Insurance Company Limited.

Sd/-

T.Bhaktavatsalam

CHAIRMAN,MAC

T- CUM-PDJ, ONGOLE

IN THE COURT OF THE DISTRICT JUDGE, ONGOLE

Present: Sri T.Bhaktavatsalam, B.Sc., B.L.,

Prl. District Judge, Ongole

Monday, this the thirtieth day of July, 2012

A.S.No.35/2007

Between: Sirisha Fertilisers, Parchur, Rep. by its Proprietor Kolla Seshagiri Rao, S/o. Venkata Subbaiah, 58 years, R/o. Nagulapalem, Parchur Mandal … Appellant (Defendant)

and

1. Lakshmi Traders, Idupulapadu, Rep. by its Managing Partner, Yalavarthi Markandeyulu (died)

2. Yalavarthi Seshamma, W/o. late Markandeyulu, Aged 68 years, Hindu, House wife, Idupulapadu Village, Inkollu Mandal, Prakasam District.

3. Yalavarthi Satyanarayana, W/o. late Markandeyulu, Aged 44 years, Hindu, cultivation, Idupulapadu Village, Inkollu Mandal, Prakasam District.

4. Bandarupalli Uma Maheswari Devi, W/o. Mallikarjuna Rao, Aged 50 years, Hindu, House-wife Idupulapadu Village, Inkollu Mandal, Prakasam District.

5. Chigurupati Dhanalakshmi, W/o. Adinarayana, Aged 47 years, Hindu, Housewife, Chandra Nagar, Hyderabad. (Respondents 2 to 5 are added as L.Rs. of the deceased first respondent as per orders in I.A.No.1443/10 dt.29.7.11… Respondents

On appeal against the decree and judgment dated 29.11.2006 in O.S.No.34/1996 on the file of the Court of Senior

Civil Judge, Parchur

Between:

Lakshmi Traders, Idupulapadu, Rep. by its Managing Partner, Yalavarthi Markandeyulu … Plaintiff

and

Sirisha Fertilisers, Parchur, Rep. by its Proprietor Kolla Seshagiri Rao, … Defendant

This appeal suit coming on 7.6.2012 for final hearing before me in the presence of Sri K.Raghava Rao and O.Narasimha Sastry, Advocate for the appellant/defendant and of Sri M.V.Krupasagar, Advocate for the respondents 2 to 5 and the first respondent having died, having perused the material available on record and this matter having stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

The defendant in O.S.No.34/1996 on the file of the Court of

Senior Civil Judge, Parchur preferred this appeal u/Sec.40 of C.P.C.

as against the decree and judgment dated 29.11.2006 in the said suit with a prayer to set aside the same, dismiss the suit and allow the counter claim made by the defendant by allowing the appeal with costs throughout.

2.The first respondent herein filed the suit in O.S.No.34/1996 against the appellant herein seeking a decree and judgment in its favour for a sum of Rs.68,295/- with costs and subsequent interest at 24% p.a. from the date of suit till the date of realization.

3.The plaint averments, in brief, are as follows:-

The plaintiff has been doing pesticides business and the defendant has been doing business in pesticides and fertilizers at

Parchur. The defendant opened khata in the plaintiff’s firm on 23.8.1991 and used to purchase pesticides on credit basis from time to time and make payments. The khata between the plaintiff and the defendant is a mutual, current, running and open. The part payments made by the defendant were appropriated towards prior credit bills. The defendant continued the khata till 31.5.1993 and discontinued the same thereafter. The defendant became indebted to the plaintiff in a sum of R.39,706-10 ps.

as on 31.5.1993 towards principal and is liable to pay interest on the said amount at 24% p.a. as per the business custom and usage. The plaintiff demanded the defendant to repay the said amount, but the defendant did not pay the same and therefore, the plaintiff got issued a registered lawyer’s notice calling upon the defendant to clear the dues and the defendant received the said notice and got issued a reply notice through his Advocate with false contents and with a request to send copy of the account and thereupon the plaintiff has sent the account copy through his

Advocate to the defendant and requested him to clear the dues and thereafter the defendant again got issued another reply notice with false allegations. The defendant did not come forward to discharge the dues. Hence, the suit. Since the defendant is doing business in fertilizers and pesticides, he is liable to pay interest at 24% p.a. Act 7/1977, 45/1987 and 2/1990 are not applicable to the facts of the case.

4.The defendant filed his written statement and contested the claim of the plaintiff. The contents of the written statement, in brief, are as follows:-

Most of the allegations in the plaint are not true and the suit is not maintainable in law. There are no bona fides in the plaint.

The account copy filed by the plaintiff is not correct. The part payments made by the defendant are not shown in the account copy. The defendant made part payments to the plaintiff i.e.

Rs.4,000/- under receipt No.6/42 dated 3.12.1991, Rs.10,000/- on 13.7.1992 under receipt No.20, Rs.10,000/- on 14.7.1992 under receipt No.30, Rs.9,000/- on 24.7.1992 under receipt No.40 and

Rs.10,000/- on 31.5.1993 under receipt No.19/34 but the same are not shown in the account copy filed by the plaintiff. In fact, the defendant need not pay any amount to the plaintiff and the plaintiff has to pay as per the discount note to the defendant. The plaintiff is a distributor and he has customers in this area and the defendant is one of his customers. The plaintiff gave discount note to all his customers, but, refused to give discount note to the defendant. The notices were exchanged long back and the plaintiff kept quiet, dragged on settlement of account by seeking time after time and ultimately filed the suit with false allegations. After verifying the account copy filed by the plaintiff with the payments made by him, the defendant came to know that he need not pay any amount to the plaintiff and that in fact, he had paid excess amount. The plaintiff calculated interest from 31.5.1993 at 24% p.a. The plaintiff did not show the part payments made by the defendant in the account copy and as such a sum of Rs.3,293-90 ps. is due from the plaintiff to the defendant and he is also claiming interest at the rate of 24% p.a. from 31.5.1993 to 31.5.1996 on the said amount. The defendant is entitled for a

principal amount of Rs.3,293-90 ps. + interest of Rs.2,371-60 ps.

and thus, to a total sum of Rs.5,665-50 ps. The defendant is claiming the said amount by paying court fee of Rs.453-60 ps. and therefore, a decree has to be passed in favour of the defendant for

Rs.5,665-50 with costs and subsequent interest at 24% p.a. from 31.5.1996 and the suit claim of the plaintiff has to be dismissed with costs.

5.On the basis of the above pleadings, the trial Court settled the following issues for trial:- 1.Whether the entries in the suit khata are true and correct?

2.Whether the defendant is entitled for the counter claim for

Rs.5,665-50?

6.P.Ws. 1 and 2 were examined and Exs.A1 to A7 were marked on the side of the plaintiff and D.W.1 was examined and

Exs.B1 to B5 were marked on the side of the defendant during the course of trial.

7.The learned Senior Civil Judge heard the arguments of both sides and through his judgment dated 29.11.2006 decreed the suit partly in favour of the plaintiff for a sum of Rs.64,295/- with costs and subsequent interest at 6% p.a. over the outstanding amount of Rs.35,760/- from the date of suit till the date of realization and dismissed the counter claim of the defendant with costs.

8.Aggrieved by the said decree and judgment, this defendant preferred the present appeal on various grounds.

9.Subsequent to the filing of the appeal, the Managing Partner of the respondent firm died and his L.Rs. were brought on record as respondents 2 to 5 as per order dated 29.7.2011 in

I.A.No.1443/2010.

10.No oral evidence is adduced and no document is marked on behalf of either side in this appeal.

11.Heard both sides and the learned counsel for the appellant also filed written arguments.

12.The points that arise for consideration in this matter are:- 1.Whether the decree and judgment dated 29.11.2006 in

O.S.No.34/1996 on the file of the Court of Senior Civil Judge,

Parchur can be set aside?

2.To what relief?

13.Point No.1:-

(a)The learned counsel for the appellant has argued that the suit is based on the khata account and the account copy is filed and marked as Ex.A3 and it is admitted by P.W.1 that the receipts

Exs.B1 to B5 were all genuine but the payments made by the defendant under those receipts to the plaintiff are not shown in

Ex.A3 account copy and if those payments are given credit to, then there will not be any dues payable by the defendant to the plaintiff and on the other hand, if the usual discount in the trade is given to the defendant, the defendant is entitled for the amount as per its counter claim but the lower court failed to appreciate the facts in proper perspective and decreed the suit and therefore, the decree and judgment of the lower court are liable to be set aside.

(b)On the other hand, the learned counsel for the respondents 2 to 5 has argued that the appellant/defendant opened khata in the first respondent firm on 23.8.1991 and used to purchase fertilizers on credit basis upto 31.5.1993 and Ex.A3 is the account copy pertaining to the defendant and P.W.2 was the person who wrote the accounts in the first respondent firm and even though

Ex.B1 receipt is dated 3.12.1990, since P.W.1 agreed from the witness box to forego amount covered by Ex.B1, the lower court deducted the said amount from the suit claim and as a matter of fact, as per the admitted facts, by the date of Ex.B1 the appellant/defendant did not even open the khata with the first respondent firm and so far as Exs.B2 and B3 receipts are concerned P.W.2 made entry on 15.7.1992 for the payment covered by those receipts and that fact is established through the evidence of P.Ws. 1 and 2 and the evidence of P.W.2 further shows that for the payment of Rs.9,000/- made by the defendant he has issued Ex.B4 receipt, but, mistakenly made entry for Rs.10,000/- on 24.7.1992 for the said payment, and again, for the payment of Rs.10,000/-, P.W.2 mistakenly made an entry as if Rs.20,000/- was paid on 31.5.1993 and the evidence of

P.Ws. 1 and 2 in this regard is quite convincing and that apart, the appellant/defendant failed to produce the accounts maintained during the course of business and D.W.1 has conveniently stated from the witness box that no such accounts were maintained by him and it is impossible to believe that D.W.1 carried on the business in fertilizers and pesticides for several years without maintaining accounts and the lower court appreciated the facts in proper perspective and decreed the suit claim after deducting the amount covered by Ex.B1 and there are absolutely no grounds whatsoever to interfere with the same and the appeal has to be dismissed.

(c)In the light of the above rival contentions, the material on record has to be examined to arrive at a decision under the point.

(d)It is not in dispute that the plaintiff is a registered firm doing business in fertilizers and pesticides and the defendant, which is a proprietary concern, was also doing business in fertilizers and pesticides and opened khata with the plaintiff on 23.8.1991 and was purchasing pesticides and fertilizers on credit and was making part payments. It is also not in dispute that P.W.1 was the

Managing Partner of the plaintiff firm and P.W.2 was writing the accounts in the said firm as a clerk during the relevant period. As per the evidence of P.Ws. 1 and 2, the suit amount was due from the defendant to the plaintiff firm and Ex.A3 is the copy of the ledger account maintained by the plaintiff firm. The stand taken by the defendant is that, apart from the part payments shown in

Ex.A3, it made the payments covered by Exs.B1 to B5 receipts and it is also entitled for discount for all the purchases made by it from the plaintiff and if the amounts covered by Exs.B1 to B5 are given credit and if such discount is also calculated, it is entitled for the amount from the plaintiff as mentioned in its counter claim.

(d)D.W.1 is the proprietor of the defendant concern. In his cross-examination, he has stated that he has started business in the year 1991 and closed it in the year 1997 and he had khata in the plaintiff firm upto 31.5.1993. Quite curiously, D.W.1 claimed that he made part payment of Rs.4,000/- to the plaintiff firm on 3.12.1990 and obtained Ex.B1 receipt. When P.W.1 was in witness box, he has agreed to forego the amount covered by Ex.B1 from out of the suit claim and the lower court thought it fit to deduct

Ex.B1 amount from the suit claim. As per the evidence of both

P.Ws.1 and 2, the receipts Exs.B2 and B3 were issued on 13.7.1992 and 14.7.1992 respectively for Rs.10,000/- each and relevant entry was made in the ledger on 15.7.1992 for the total amount of Rs.20,000/- and that is why in Ex.A3, the entry dated 15.71992 is for Rs.20,000/-. Likewise, their evidence would go to show that for the payment of Rs.9,000/- made by the defendant on 24.7.1992 an entry was made for Rs.10,000/- and for the payment of Rs.10,000/- on 31.5.1993 an entry was made for

Rs.20,000/- by mistake and the receipts Exs.B4 and B5 were issued for the said amounts made on 24.7.1992 and 31.5.1993 respectively and thus, actually excess credit was given to the extent of Rs.11,000/- and it is not correct to say that no credit was given to the amounts covered by Exs.B2 to B5. Admittedly, the defendant was doing business in fertilizers and pesticides on a large scale and therefore, the version spoken by D.W.1 that he was doing business without maintaining any accounts cannot be believed. In the ordinary course of business, he must have maintained accounts for his business with all the entries with regard to payments made by him to the plaintiff firm towards khata account in question, but he did not produce any such accounts. If really, he made the part payments as contended by him i.e Rs.20,000/- on 15.7.1992, Rs.10,000- on 24.7.1992 and

Rs.20,000/- on 31.5.1993 he would not have failed to produce the accounts maintained by him and would not have also failed to produce the receipts for the entries in Ex.A3 on the respective dates. Therefore, the version of the defendant that Ex.A3 account copy is not reflecting the payments made under Exs.B2 to B5 was not rightly accepted by the lower Court. So also its version regarding the counter claim. There is absolutely no acceptable evidence for the business discount as claimed by the defendant.

The lower Court appreciated the material on record in proper perspective and came to the correct conclusion regarding the suit claim of the plaintiff and the counter claim of the defendant. There are no grounds whatsoever to interfere with the judgment and decree passed by the lower Court. This point is accordingly answered.

14.Point No.2:-

In view of the above discussion and finding under point

No.1, this appeal has to be dismissed.

In the result, the appeal is dismissed with costs.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, on this the 30th day of July, 2012.

Sd/- T. Bhaktavatsalam

PRINCIPAL DISTRICT

JUDGE,

ONGOLE No oral evidence is adduced and no document is marked on either side in this appeal.

Sd/- T. Bhaktavatsalam

P.D.J., ONGOLE