Sri T.eswara Rao

1

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE CUM

CHAIRMAN -MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Present: Sri. T. Eswara Rao, B.Com., B.L.,

Chairman, Motor Accident Claims Tribunal -Cum- VI Addl. Dist. Judge, Visakhapatnam.

Monday, the 29th day of September 2014

M.O.P. NO.644/2009

Between :

Bandaru Simhachalam, S/o. Yerakama Patrudu, Age:26yrs, Cultivation, R/o.Arle Village, K. Kotapadu Mandal, Visakhapatnam District. …. Petitioner

And :

1.Bodda Lazaru @ Nagarjuna, S/o. Satyanandam, Age:40yrs, R/o. D.NO.13/46, Sivaraopeta, Bhimavaram, West Godavari District. 2.G. Mohana Rao, S/o. Nageswara Rao, Age: not known, R/o. D.NO. 40-9-84, srinagar, Vijayawada. 3.United India Insurance Co. Ltd., rep., by it's Divisional Manager, upstairs, Dabagardens, Visakhapatnam.

…. Respondents

This petition coming on 08.09.2014 for final hearing before me in the presence of Sri L. Satyanarayana, advocate for the petitioner and Sri M. Srinivas Das, advocate for R.3 and R1 and R2 set ex parte, the same having stood over till this day for consideration, this Court delivers the fol- lowing:

O R D E R

1.This is the claim petition filed by the petitioner under Sec.166(1) and 140 of MV Act 1988 read with 451 of APMV Rules of 1980 for the compensation of Rs.5,00,000/- against the respondent 1 to 3 jointly and severally with costs and subsequent interest for the injuries received by the 2 petitioner in a road accident occurred on 10/11/2006 at 3:30am near

Regupalem Junction of Yelamanchili Mandal in Visakhapatnam District.

2.It is alleged in the claim petition in brief that the petitioner is a resident of

Arle Village, K. Kotapadu Mandal in Visakhapatnam District and a wholesale

Vegetable vendor and that the petitioner used to purchase cauliflower, cabbage, carrot from Hanuman Junction, Ravuluppadu, Penkanamatta and other places including Kalaru of Karnataka State and supplied said vegetables at various markets in Visakhapatnam and earning Rs.3,000/- per day in season and Rs.1,000/- per day in off season and an average earnings

Rs.30,000/- to Rs.35,000/- per month.

3.It is further alleged in the claim petition that on 09/11/2006 as usual the petitioner went to Penakanamatta Village and purchased cauliflower and

Bananas from K. Durga Rao and B. Satti Babu of Penakanametta of Kovvuru

Mandal of West Godavari Junction for an amount of Rs.52,970/- and got loaded and boarded the lorry at Dommeru Junction near Kovvuru of West

Godavari District at 10:00pm in a vehicle bearing no. AP 16 TW 1063 to unload at NAD Junction, Visakhapatnam and paid an amount of Rs.1,750/- to the driver of the lorry towards transport charges and the petitioner traveled in the lorry along with his vegetables load where the petitioner and other persons are sitting in the cabin of the lorry and the lorry reached Regupalem

Junction, near Yelamanchili, at about 3:30am on 10/11/2006, the driver of the lorry drove the same rashly and negligently and dashed against one stationed lorry from behind resulting which Smt. G. Ramanamma received injuries and died while shifting to hospital and both legs of the petitioner broken and received other injuries and shifted to Government Hospital,

Yelamanchili by the high way patrolling vehicle and after first aid, he shifted to St. Joseph's hospital for better treatment where he was taken treatment 3 as inpatient from 10/11/2006 to 27/11/2006 and under went operation with

Dr. I. Babji Sham Kumar, MS(Ortho) and again the petitioner was admitted on 20/12/2006 for removal of nails in both legs and discharged on 21/12/2006 and continued the treatment till now where he spent Rs.25,000/- for extra nourishment and Rs.79,077.39 for medicines, hospital charges,

Doctor fees etc., and the petitioner also no able to do business for a period of two years and sustained a loss of two legs and he is also suffered with untold pain and mental agony besides shortening of right leg and unable to work and now he is a dependent on third parties for his day to day affairs and police also registered a case against the driver of the lorry/R1 and so he claimed reasonable compensation of Rs.5,00,000/- and the first respondent as a driver, the second respondent as a owner of the lorry and the same was insured with the third respondent and hence all of them jointly and severally liable to pay the said compensation. So the claim.

4.The first respondent remained ex parte.

5.The second respondent remained ex parte.

6.The third respondent filed the counter admitting the accident and denied other averments and attacking the petition claim. It is alleged in precise that at the time of the accident, the petitioner and others were traveling in the goods vehicle/lorry bearing no. AP 16 TW 1063 in the capacity of Gratitious passengers and thereby the second respondent willfully and knowingly violated the terms and conditions of the policy by allowing unauthorized passengers in the goods vehicle and hence the third respondent is not liable to pay the compensation to the petitioner and that the third respondent denied all the allegations made in the claim petition and the petitioner is put to strict proof for manner of the accident as alleged, the petitioner received 4 such injuries in the accident, taken treatment and spent amount for extra nourishment, treatment etc., age, earnings of the injured and loss of earnings due to injuries received in accident and the amount claimed under each and every head to a tune of Rs.5,00,000/- in total. Claiming of such an amount is also excessive. So the third respondent request the court to dismiss the petition with costs.

7.Basing on the above pleadings, the following issues are settled for enquiry:

1.Whether the petitioner sustained injuries in the Motor

accident that occurred on 10/11/2006?

2. Whether the pleaded accident occurred due to the rash and

negligent driving of Lorry bearing NO. AP 16 TW 1063 by it's

driver R1?

3. Whether Lorry bearing No. AP 16 TW 1063 belongs to R2 and stood insured with R3 Insurance Company on the date of accident and if so whether the policy covers the risk of claimant?

4. Whether claimant is entitled for compensation and if so, to

what amount and what is the liability of respondents?

5. To what relief?

8.On behalf of the petitioner, he was examined as PW1 and marked Exs.A1 to

A6. He also got examined Dr. Babji Shyam Kumar as PW2 and marked

Exs.X1 and X2 case sheets.

9.On behalf of the contesting third respondent, they got examined

Bathkeswar Mahapatro, Deputy Manager of their insurance company as RW1 and marked Exs. B1 and B2.

5 10.R3 filed petition U/Sec.170 of MVI Act and the same was allowed in

IA 337/2011 dated 08/04/2011.

11.Heard arguments.

12.ISSUE Nos.1 to 3: It is admitted case and evidence of both parties that on 10/11/2006 at 3:30am, an accident took place near Regupalem Junction of Yelamanchili Road in Visakhapatnam District where the second respondent lorry insured with the third respondent under Ex.B1 policy bearing no. AP 16

TW 1063 involved and the petitioner who was in the cabin of the lorry received injuries in that accident. It is also clearly admitted case and evidence of both parties that while the lorry was traveling from Vijayawada to Visakhapatnam and when the same was reached near Regupalem Junction, the lorry dashed behind stationed lorry bearing no. AP 04V 178. It is further case of the petitioner and his evidence as PW1 that the driver of the lorry/first respondent drove the same with such a rash and negligent manner and dashed the stationed lorry where himself, driver of the lorry, cleaner and another in cabin received injuries in that accident. The manner of accident as such was not disputed. It is also not the attack of contesting third respondent either in the counter or during course of evidence by way of suggestion to PW1 that no such negligence on the part of the driver of the lorry/first respondent. It is suggested that petitioner is an unauthorized passenger in the lorry. The same was denied by the witness. It will be discussed in coming issues. The petitioner is a direct witness and one of the injured in the accident who spoken about rash and negligent driving of the lorry responsible for accident where one person died, he/petitioner received injuries, lorry driver and cleaner also received injuries in that accident. On the report given by one of the injured Pela Sambasiva Rao, the police 6 registered a case under Ex.A1 and filed the charge sheet under Ex.B2. Ex.A2 is the wound certificate for the injuries received by the petitioner. Ex.A3 is the MVI report who opined that accident was not due to any mechanical defects. Absolutely no contra material from contesting third respondent on oral and documentary evidence placed by the petitioner with regard to manner of accident. So the court accepted the evidence of PW1 coupled with documents.

13.Therefore, in the above discussion, it is held that accident took place and the petitioner received injuries in that accident due to rash and negligent driving of the driver of the lorry bearing no. AP 16 TW 1063/first respondent and the said lorry belongs to the second respondent was duly insured before

R3 Insurance Company. I find all the three points accordingly.

14.ISSUE NO.4: It is case of the petitioner and his evidence as PW1 that he was aged 25years by the date of accident. On perusal of record particularly wound certificate Ex.X1 and X2 case sheets, age of the petitioner noted as 25years and the same can be safely accepted.

15.It is further case of the petitioner and his evidence as PW1 that he received grievous injuries in the accident and taken treatment in Saint Joseph hospital at Visakhapatnam and spent huge amount for treatment, extra nourishment etc. On perusal of Ex.A2 wound certificate the petitioner received the injuries where the doctor opined that those are grievous injuries as follows:

1. Crush injury to right little finger with laceration of 5x1x1/2 cm.

2. A deep lacerated injury of 15x10x5cm on anterolateral aspect of right up with exposed torn muscles, vessels and bones. Distal pulses not felt. X-ray shows both tibia and fibula of right up.

7

3. Diffuse swelling pain and tenderness of right ankle

4. A deep laceration of 10x5x1/2 cm on anteromedical aspect of left up exposing fractured bones. X-ray shows Tibia left and fibula left.

5. Irregular laceration of 15x10x1/2 around left ankle exposing under lying muscular and tenders over left foot. X-ray shows 1st and 2nd meta tarsal of left toe.

6. Loss of little toe of left foot.

16.The petitioner got examined Dr. I. Babji Sham Kumar as PW2 who deposed about the injuries received by the petitioner in a road accident in support of the Ex.A2 wound certificate and also further deposed about taken treatment by PW1 as inpatient form 10/11/2006 to 27/11/2006 and under went operation for the fracture injuries Tibia and fibula of both legs and fracture of metacel bones and also crush injury of little toe and loss of little toe of left foot. He also further deposed about the admission of the injured on 20/12/2006 and removal of nails at the fractures of tibia and fibula of both legs and discharged on 21/12/2006. PW2 also deposed that Ex.A4 medical bills and prescriptions of Rs.59,409/0- are from their hospital. PW2 admitted that the bunch of medical bills are not followed by prescriptions but they were mentioned under Ex.X1 case sheet. So the petitioner proved that he received four fracture injuries and two simple injuries and after first aid in Government

Hospital of Yelamanchili, he was shifted to St. Joseph Hospital of

Visakhapatnam where he taken treatment as inpatient for first and second time and spent amount for transport, treatment, medicines, extra nourishment and also suffered with pain out of those injuries. So the petitioner is entitled for reasonable amount of Rs.5,000/- for transport,

Rs.10,000/- for extra nourishment, Rs.59,400/- for treatment and medicines and Rs.15,000/- for pain and suffering.

8 17.The petitioner claimed Rs.1,60,000/- for permanent disability and

Rs.2,00,000/- for loss of earnings power. The petitioner as PW1 deposed that he is a wholesale vegetable businessman and on the date of the accident also he went to Penakanametta village of West Godavari District and purchased cabbage and bananas and boarded into the crime lorry after paying fair amount for transport and on the way accident took place and he received injuries. No doubt the petitioner not placed any document for his business and his earnings of Rs.30,000/- to Rs.35,000/- per month out of the wholesale vegetable business. But he placed Ex.A6 bill for Rs.52,970/- to show that he purchased cabbage and bananas on that day and paid amount for transport charges and loaded into the lorry under Ex.A7 and Ex.A8. It is suggested that all the documents fabricated for the purpose of the case and he is an unauthorized passenger. In support of it he got marked Ex.B2 charge sheet where it is noted that the deceased and the injured boarded in the crime vehicle at Vijayawada and they were proceeded towards

Visakhapatnam with a view to travel their villages at Cheaper rates, RW1 also admitted that the same fact noted in Ex.B2 charge sheet is the basis for them to show that the petitioner is also an unauthorized passenger in the lorry. On perusal of report of the injured enclosed to Ex.A1 FIR, the complainant and another went to Vijayawada with flowers and after sold flowers, they boarded the lorry to go to their villages of Gajapathinagar, in Chodavaram in

Visakhapatnam District and on the way, the petitioner and another boarded the lorry. So the persons boarded the lorry at Vijayawada traveling to their villages with a cheaper rates should not be tagged to the petitioner so as to conclude that he is an unauthorized passenger. Ex.A6 to Ex.A8 documents also filed along with the claim petition. RW1 admitted in his cross examination that it is true that on the date of accident, the petitioner boarded the goods lorry along with the goods –cabbage at Dommeru Junction of West

Godavari District to come to Visakhapatnam. So the said admission of the 9

RW1 also directly supported the case and evidence of the petitioner to conclude that the petitioner traveled in the lorry from Dommeru of West

Godavari District as the owner of the goods and not a passenger. So the earnings of the injured from that Vegetable business can be concluded at minimum of Rs.10,000/- per month. PW2 Doctor deposed that the petitioner may to walk with support up to three months and without support, after five months. So the petitioner is entitled for Rs.50,000/- for the loss of earnings during treatment period. PW2 further deposed that Ex.A5 disability certificate issued by him assessing the disability at 10% related to right lower limb, basing on residual weakness of Personeal comportment of muscles in right foot and shortening of 1.5cm of right lower limb. PW2 admitted that Ex.A5 is not in a proper proforma and any way disability is to be issued by District

Medical Board. It is suggested that he is not a competent to issue Ex.A5 disability certificate and the same was denied by the witness. But the doctor is an Ortho Specialist and Neuro Surgeon since 1998 in Visakhapatnam. So, he is also qualified person to assess disability. The petitioner is a vegetable vendor. So shortening of leg and loss of little toe of left foot is no way obstruct him for his business. However the same is a partial disability and it is better to grant reasonable amount of Rs.1,00,000/- for such disability. So the petitioner is entitled for compensation as follows:

Transport : Rs.5,000/-

Treatment and medicines : Rs.59,400/-

Extra Nourishment :Rs.10,000/-

Pain and sufferings :Rs.15,000/-

Loss of earnings during treatment period: Rs.50,000/-

Partial disability:Rs.1,00,000/-

Total : Rs.2,39,400/- 10

18.Advocate for the second respondent argued that the petitioner is an unauthorized passenger in goods vehicle and so the third respondent is not liable to pay compensation and R2/Owner of the vehicle is liable to pay the same. In support of the argument he submitted a decision of our High Court in MACMA 391/09 dated 13/03/2014 in between New India

Assurance Company Vs. Y Pothu Raju and others. In this decision the deceased Veerayamma a labourer traveled in a lorry with her rice bags and on the way vehicle involved in accident where she received injuries and died and her heirs filed OP for compensation. It is contention of the insurance company contended that the deceased is an unauthorized passenger in a goods vehicle and so not liable to pay compensation. The Tribunal granted compensation against the owner and insurance company and then the matter went before our High Court where it is held that the deceased boarded a lorry at Gurajala with some rice bags and that one or two bags of vegetables and a passenger who boarded the lorry on the mid way with such goods would not become goods within the meaning of MV Act and so the deceased is an unauthorized passenger and thereby appeal is allowed and insurance company exempted from liability and directing the owner to pay compensation. In the present case on hand, the court already observed and held that the petitioner is the owner of the goods and traveling in the vehicle as such and not an unauthorized passenger. So the decision has no application in the present case on hand and not helpful to the third respondent.

19.Advocate for the petitioner submitted a decision reported in 2007(2) A.

New India Assurance Co., Ltd., Vs. Smt Banita Mehar dated

05/02/2007 in MACA 196/2003. In this decision, the son of the petitioners died while traveling in offending vehicle as owner of the goods and filed OP for compensation and the court granted Rs.2,00,000/- compensation 11 to the parents of the deceased. Insurance company filed the appeal before our High Court mainly on the ground that the deceased is an unauthorized passenger in goods vehicle and so insurance has no liability to indemnify the owner of the vehicle. Our High Court observed and held that the poor claimants should not suffer for such breach of policy condition, if any and appellant insurance company are to be directed to pay compensation with liberty to realize from the owner of the offending vehicle in accordance with law, in case, the policy conditions are violated by him in any manner.

Accordingly appeal allowed modifying the order to deposit the amount by insurance company and the claimants are liberty to withdraw and thereafter appellant insurance company to proceed against the owner of the vehicle for realization of the entire amount deposited by them in accordance with law for violations of the terms and conditions of policy, if any. This court already observed and held that the petitioner traveled in the vehicle as owner of the goods and the same was also admitted by RW1 in his evidence. So this decision also has no application in the present case on hand.

20.Therefore, in the above discussion, the petitioner is entitled for

Rs. 2,39,400/- against the second and third respondents. I find this point accordingly.

21.ISSUE NO.5: In the result, the petition is allowed in part in favour of the petitioner and against the second and third respondents granting compensation of Rs.2,39,400/- with costs and subsequent interest @7.5% per annum form the date of petition/09-06-2009 till realization. Direct the third respondent to deposit the amount within two months. On such deposit the petitioner is liberty to withdraw Rs.1,49,400/- with costs and interests.

The balance of Rs.1,00,000/- shall be kept in FDR for a period of one year.

The petitioner is liberty to withdraw the same with accrued interest after the 12 expiry of FD period. Rest of the claim is dismissed without costs. The petition against the first respondent is dismissed without costs. Advocate fee is fixed at Rs.1500/-.

Dictated to the personal assistant, VII Addl. Dist. & Sessions Judge's

Court, transcribed by her, corrected and pronounced by me in open Court this the 29th day of September 2014

VI Addl. Dist. Judge, Mahila Court,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witnesses examined for:

Petitioner:

P.W.1Babdaru Simhachalam P.W.2Dr. Babji Shyam Kumar

Respondents:

R.W.1 : Bathkeswar Mahapatro

Documents marked for:

Petitioner:

Ex.A1: Attested copy of FIR

Ex.A2: Attested copy of Wound Certificate

Ex.A3 : Attested copy of MVI Report

Ex.A4:Bunch of medical bills along with statement for Rs.59,409-24ps.

Ex.A5:Disability Certificate issued by Dr. I. Babji Syam Kumar

Ex.A6 :officer copy of bill for Rs.52,970/- bearing no. 609,

Dt.09-11-2006 issued by Sri B. Sattibabu.

Ex.A7 :Another bill for Rs.1,750/- bearing No. 603, dt. 09-11-2006 issued by Sri K. Durga

Ex.A8 : Bill for Rs.1,750/- bearing no. 608, dt.09-11-2006 issued by

Sri B. Sattibabu 13

Respondents: Ex.B1:Insurance Policy Ex.B2: Charge sheet

X- Series Ex.X1:Case sheet of St. Joseph's Hospital dated 10-11-2006 Ex.X2:Re-admission case sheet dated 20-12-2006 of St. Joseph's hospital

VI Addl. Dist. Judge,

Mahila Court,

VISAKHAPATNAM

14

Date of presentation:09-06-2009 Date of filing: 29-07-2009

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE CUM

CHAIRMAN -MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Present: Sri. T. Eswara Rao, B.Com., B.L.,

Chairman, Motor Accident Claims Tribunal -Cum- VI Addl. Dist. Judge, Visakhapatnam.

Monday, the 29th day of September 2014

M.O.P. NO.644/2009

Between :

Bandaru Simhachalam, S/o. Yerakama Patrudu, Age:26 yrs, Cultivation, R/o.Arle Village, K. Kotapadu Mandal, Visakhapatnam District. …. Petitioner And :

1. Bodda Lazaru @ Nagarjuna, S/o. Satyanandam, Age:40 yrs, R/o. D.NO.13/46, Sivaraopeta, Bhimavaram, West Godavari District.

2. G. Mohana Rao, S/o. Nageswara Rao, Age: not known, R/o. D.NO. 40-9-84, srinagar, Vijayawada.

3. United India Insurance Co. Ltd., rep., by it's Divisional Manager, upstairs, Dabagardens, Visakhapatnam. …. Respondents

This is the claim petition filed by the petitioner under Sec.166(1) and 140 of MV Act 1988 read with 451 of APMV Rules of 1980 for the compen- sation of Rs.5,00,000/- against the respondent 1 to 3 jointly and severally with costs and subsequent interest for the injuries received by the petitioner in a road accident occurred on 10/11/2006 at 3:30am near Regupalem Junc- tion of Yelamanchili Mandal in Visakhapatnam District.

Amount claimed is Rs.5,00,000-00. A court fee of Rs.4,360-00 is paid under Rule 475(1) of APMV Rules vide challan No.3 dated 09.06.2009 de- posited in SBH. District Court Branch, Visakhpatnam.

This petition coming on 08.09.2014 for final hearing before me in the presence of Sri L. Satyanarayana, advocate for the petitioner and Sri M. Srinivas Das, advocate for R.3 and R1 and R2 set ex parte, the same having stood over till this day for consideration, this Court doth Order; and 15

D E C R E E

1. that the petition be and the same is hereby allowed in part in favour of the petitioner and against the second and third respondents grant- ing compensation of Rs.2,39,400/- with costs and subsequent interest @7.5% per annum form the date of petition/09-06-2009 till realiza- tion;

2. that the third respondent be and is hereby directed to deposit the amount within two months;

3. that on such deposit the petitioner is liberty to withdraw Rs.1,49,400/- with costs and interests;

4. that the balance of Rs.1,00,000/- shall be kept in FDR for a period of one year;

5. that the petitioner is liberty to withdraw the same with accrued inter- est after the expiry of FD period;

6. that the rest of the claim is dismissed without costs;

7. that the petition against the first respondent is dismissed without costs;

8. that the Advocate fee is fixed at Rs.1500/-.

Given under my hand and the seal of the Court, this the 29th day of September, 2014.

VI ADDITIONAL DISTRICT JUDGE-CUM-CHAIRMAN

-MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Memorandum of Costs

For Petitioners :For Respondents :

Stamps on vakalat2-00No costs memo is filed Stamps on petition 4,360-00 Stamps on petitions5-00 Stamps on process 189-00 Advocate fee (fixed by court) 1,500-00 ----------- Total Costs : Rs.6,056-00 ======

Proportionate Costs Allowed : Rs.3,682-00

VI ADJ-CUM-CHAIRMAN,

16

M.A.C.T. / VSP.

1

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE CUM

CHAIRMAN -MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Present: Sri. T. Eswara Rao, B.Com., B.L.,

Chairman, Motor Accident Claims Tribunal -Cum- VI Addl. Dist. Judge, Visakhapatnam.

Tuesday the 30th day of September 2014

M.O.P. NO.34/2011

Between :

Katari Raju, S/o. Late Apparao, Hindu, Age:41yrs, R/o. D.NO. 26-18-1, College Down Area, Velamapeta, Visakhapatnam. …. Petitioner

And :

1.V. Raj Kumar, S/o. Vellayya, Hindu, Age: about 35yrs, R/o. D.No. 2-7-222, Sector-10, Fisherman Colony, Opp: Appugar, M.V.P. Colony, Visakhapatnam. 2.The Bajaj Allianz General Insurance Co., Ltd., Rep. by it's Senior Divisional Manager, III Floor, C.B.M. Compound, V.I.P. Road, Visakhapatnam.

…. Respondents

This petition coming on 21.08.2014 for final hearing before me in the presence of Sri J.A. Naidu, advocate for the petitioner and Sri Syed Moinuddin, advocate for R.2 and R1 set ex parte, the same having stood over till this day for consideration, this Court delivers the following:

O R D E R

1.This is the claim petition filed by the petitioner under Sec.166 of MV Act read with 455 of APMV Rules for the compensation of Rs.10,00,000/- against the respondent first and second jointly and severally with costs and subsequent interest for the injuries received by the petitioner in a 2 road accident occurred on 19/04/2009 at 11:45pm near Collector Office

Junction of Visakhapatnam District.

2.It is alleged in the claim petition in brief that the petitioner is a resident in a D.No. 26-18-11 of Velamapet, College Down Road in Visakhapatnam and that on 19/04/2009 night, while the petitioner returning from his friend house at Gokul Park to their house through Collector Office up on a motor cycle bearing no. AP 31 B 3215 and when he reached near Collector

Office Junction, at about 11:45pm, the rider Caliber motor vehicle bearing no. AP 31 AY 7222 ride the same with a high speed and also with a rash and negligent manner and dashed the petitioner in opposite direction, resulting which the petitioner received grievous injuries including severe head injury and fractures and became unconscious and immediately shifted to KGH, Visakhapatnam and after first aid and CT Scan, the petitioner was shifted to Sagar Durga Hospital and ESI Hospital in unconscious condition, then taken treatment and subsequently the petitioner was drowsy and semiconscious and urinary retention and then after due investigation, the petitioner shifted to Care Hospital and CT Scan brain was done and Parietal subdural haematoma with mass effect diagonised and that petitioner under went treatment as out patient till now and two operations were done by opening the skull and one more operation is required to him and the police also registered a case against the rider of the motor cycle bearing no. AP 31 AY 7222.

3.It is further alleged in the claim petition, the petitioner is aged about 40years at the time of accident and he is very active and intelligent and well educated person and he is also hails from respected and educated family and he used to do the insurance besides other services and also do the business of film distributor and was earning Rs.15000/- per month 3 and that with the sever head injuries received in the accident, the petitioner suffered a lot and spent huge amount for medicines, transport, extra nourishment etc., and also spent some more amount for his assistance/attendants in the hospital and that the petitioner lost his memory and earning power and he is permanently disabled for his job and that the petitioner is unable to think properly due to head injury and so the loss of petitioner will not be calculated in terms of money and however he claimed reasonable compensation of Rs.10,00,000/- and the the first respondent is the owner of the crime vehicle and the same was insured with the second respondent and thereby both of them are jointly and severally liable to pay the said compensation. So the claim.

4.The first respondent remained ex parte.

5.The second respondent filed the counter alleging that all the material allegations including the petitioner returning from his friends house on his motor cycle bearing no. AP 31 B 3215 and when reached the Collector

Office Junction, rider of the first respondent motor cycle bearing no. AP 31

AY 7222came in a rash and negligent manner and dashed the petitioner is not known to the second respondent and the same is hereby denied and the petitioner is put to strict proof of the same and on the other hand, the petitioner contributed to the cause of accident and rider of the first respondent motor cycle bearing no. AP 31 AY 7222 was never rash or negligent in riding the crime vehicle and so accident occurred only due to negligence of the petitioner and that the second respondent also denied other allegations with regard to such severe injuries received by the petitioner in the accident, taken treatment as in and out patient and spent amount for transport, medicines, extra nourishment, age, earnings and loss of earnings due to injuries received in the accident and the petitioner 4 is put to strict proof of the same including amount claimed under each and every head to a tune of Rs.10,00,000/- in total.

6.It is further alleged in the counter that the motor cycle bearing no. AP 31 AY 7222 was insured with them and policy was issued in favour of the first respondent for a period from 12/12/2008 to 11/12/2009 and directed the first respondent to produce original insurance policy before the court and also put to strict proof that the terms and conditions of the policy was not violated and the rider of the crime vehicle possessed valid and effective driving license to drive the said vehicle with valid documents.

Claiming of such an amount of Rs.10,00,000/- is also excessive. So the second petitioner request the court to claim petition with costs.

7.Basing on the pleadings following issues are settled for trial:

1. Whether the petitioner sustained injuries in a motor accident

that occurred on 19-04-2009 due to rash and negligent driving

of Motor cycle bearing no. AP 31 AY 7222 by its rider?

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

3. To what relief?

8.On behalf of the petitioner, he was examined as PW1 and marked

Exs.A1 to A7 and also got examined Dr. G. Rajasekhar Kennedy as PW2.

9.On behalf of contesting second respondent, there is neither oral nor documentary evidence.

10.R2 filed petition U/Sec.170 of MVI Act and the same was allowed in IA 240/2013 dated 14/03/2013.

5

11. Heard arguments. R2 also filed written arguments and perused the same.

12.ISSUE NO.1: Admittedly on 19/04/2009 at 11:45pm, an accident took place near Collector Office Junction in Visakhapatnam where the first respondent Caliber motor cycle bearing no. AP 31 AY 7222 was involved and the petitioner who was the rider of the motor cycle bearing no. AP 31 B 3215 received injuries in that accident. It is also equally admitted fact that both the motor cycles coming on opposite direction to each other and when reached near

Collector Office Junction, this accident took place.

13.It is further case of the petitioner and his evidence as PW1 that while he was returning from his friends house to their house and when reached Collector Office Junction, the rider of the first respondent motor cycle came with high speed in a rash and negligent manner and dashed his motor cycle who received such sever injuries including to the head and went unconscious and so accident took place due to such a rash and negligent riding of the rider of the first respondent motor vehicle bearing no. AP 31 AY 7222. It is suggested to PW1 that accident occurred due to his negligence and there is no negligence on the part of the rider of the crime vehicle. The same was denied by the witness. On the report given by the brother of the injured, the police registered a case under Ex.A1 FIR against the rider of the crime vehicle namely B.

Ramu, investigated into and filed charge sheet against that Ramu under Ex.A4 for the offence U/Sec. 338 IPC. It is empathetically noted in report that the petitioner returning from his friends house 6 to his house on his own motor cycle. So it is not a believable that the petitioner was riding the vehicle without any Driving license.

Nothing was noted by the investigation officer in the charge sheet about the driving license of the petitioner. Ex.A3 is the accident report from Care Hospital. Ex.A2 is the MVI report who opined that accident was not due to any mechanical defects of the crime vehicle bearing no. AP 31 AY 7222. In Ex.A2 the said MVI also noted the valid policy particulars for the crime vehicle as well as Driving license particulars of the rider of the motor cycle namely B. Ramu who is the accused under Ex.A4. The petitioner is the direct eye witness and the injured in the accident. Except bald attack and suggestions, no contra material from contesting second respondent on the oral and documentary evidence placed by the petitioner with regard to the manner of the accident. So the court accepted the evidence of PW1 coupled with documents.

14.Therefore, in the above discussion, it is held that accident took place and the petitioner received injuries in that accident due to rash and negligent riding of the rider of the first respondent motor cycle bearing no. AP 31 AY 7222 namely B. Ramu. I find this point accordingly.

15.ISSUE NO.2: It is the case of the petitioner and his evidence as

PW1 that he was aged 41 years by the date of accident. The brother of the injured gave a report as injured was unconscious noting age of his injured brother as 41 years. The documents

before the court particularly medical record also in support of it. So

7 age of the injured by the date of accident is ranged from 41 to 45 and thereby relevant multiplier is 14 as per the decision of our

Hon'ble Supreme Court in Sarla Varma's case.

16.It is further case of the petitioner and his evidence as PW1 that he did various insurance business and also done film distributor business and earned Rs.15,000/- per month. Advocate for the second respondent pointed out that except sole testimony of the petitioner, no supported document. It is true. But the petitioner is aged about 41 years, earned amount and maintain the family. PW1 also admitted that his treatment in Care Hospital covered by

Aurogyasri Scheme. PW1 also further admitted that it is true that those people below poverty will benefit under Aurogyasri scheme.

If the petitioner did such a business in film distributor and insurance and earned Rs.15,000/- per month, certainly he was an income tax assessee and paid income tax for income. No supported material from the petitioner for such occupation and source of income up to Rs.15,000/- per month. In the absence of the same, the court safely can be taken earnings of the injured as

Rs.5,000/- per month.

17.It is further case of the petitioner and his evidence as PW1that he received severe head injury and fractures and went unconscious, immediately shifted to KGH and after first aid and CT Scan and as he was unconscious, he was shifted to Sagar Durga Hospital and

ESI Hospital. Contesting second respondent also not disputing such a first aid treatment in KGH and after shifting other hospitals, treatment taken in that hospitals but no documents in support of it.

8 18.It is further case of the petitioner and his evidence as PW1 that while under going treatment, the petitioner was drowsy and semiconscious and urinary retention and after due investigation, he was shifted to Care Hospital and the CT Scan brain was done where parietal subdural haemotoma with mass effect diagonised and operation was done by opening the skull and one more operation is required by reopening the skull and even now he is taking treatment as out patient and he already spent huge amount for transport, medicines, extra nourishment etc. In support of it the petitioner placed Ex.A7 photo of the petitioner disclosing head injury and Ex.A5 discharge summary of the Care Hospital and Ex.A6 disability certificate with 50%. It is suggested to PW1 that he sustained only simple injuries and as such not filed OP Chit of KGH.

It is further suggested to PW1 that he did not undergo any treatment in KGH and he joined in Care Hospital for treatment of some other ailment. The said suggestions denied by the witness.

19.The petitioner got examined Dr. G. Rajasekhar Kennedy as PW2 who issued Ex.A6 disability certificate with 50% disability. PW2 deposed that he is working as Assistant professor in KGH,

Visakhapatnam since 2001 and the same is not a disputed fact.

PW2 further deposed that on 22/01/2012, he find that patient was suffering from post traumatic headache, epileptic fits, memory declaim and difficulty in concentration vertigo (Reeling sensation) and the injured sustained head injury on 19/04/2009 with bilateral subdural haematoma over both cerebral convexities and he under 9 went surgery and the patient unable to perform his duties and he used to do as earlier and the patient requires craneio plastic surgery and appropriate cost may be Rs.1,50,000/- to

Rs.2,00,000/-. Advocate for R2 pointed out that the witness is not a treated doctor and also not a member of medical board and so

Ex.A6 is not a considerable document and that is why they also gave suggestion to PW2 that there are no guidelines for assessment of head injury and the same is also higher side. PW2 denied that suggestion.

20.Ex.A5 is the discharge summary from Care hospital which shows that the petitioner admitted in their hospital on 26/05/2009, under went surgery on that day and discharged on 04/06/2009 for the severe injury of bilateral subdural haematoma with mass effect.

The doctors also noted about the previous treatment taken by the injured in KGH and later ESI hospitals conservatively where the injured regain conscious and doing well till 24/05/2009 but last two days injured was drowsy and semiconscious and urinary retention and so on their advise CT Scan brain was done on 25/06/2009 and the investigation revealed that severe problem out of injury and thereby surgery was done and taken treatment as in and outpatient. PW2 also admitted that he has gone through medical records of the patient before assessing the disability. PW2 also further admitted that after discharge from Care Hospital, the patient once went for follow up treatment. It is also admitted that if the patient is under gone same operation at KGH, it will be done free of cost and there is no compulsion that the approach me alone 10 for re-operation. But when an injured approach a doctor for treatment and under went surgery for the problem, the said patient preferred to approach the same doctor for further treatment including second surgery. It is lastly suggested that PW2 deposing false to help the petitioner. The same was denied by the witness.

PW2 is a qualified doctor with MS, M.Ch Neuro, a Consultant Neuro

Surgeon and Assistant Professor of Neuro Surgery in KGH,

Visakhapatnam and without any disability, no need for me to give such a certificate and come to the court and give evidence for the disability for the sake of getting more compensation by the injured.

So the court accepted the evidence of PW2 and injured received severe head injury and he has taken treatment in hospital as in and out patient and also under went surgery of open brain and spent amount for transport, medicines, extra nourishment and also suffer with pain out the injuries. The petitioner also not attend for regular duties at least for three to four months.

21. No doubt the doctor as PW2 deposed that Rs.1,50,000/- to

Rs.2,00,000/- is required for the second surgery. He also further admitted that if the operation done in KGH it is free of cost. But injured received injury in the month of April 2009 and the claim petition filed nearly two years after the accident. In claim petition it is also pleaded that one more operation is required without noting approximate amount required for it. During course of evidence

PW2 deposed that approximate amount is Rs.1,50,000/- to

Rs.2,00,000/-. But such a certificate was not given by any doctor including PW2 before came into witness box and furnish figure of 11 amount. So the petitioner is entitled for Rs.50,000/- for the future surgery and treatment.

22. So the petitioner is entitled reasonable compensation of each and every head as follows:

Transport: Rs.10,000/-

Medicines and extra nourishment:Rs.20,000/-

Pain and suffering :Rs.20,000/-

Loss of earning during treatment period :Rs.20,000/-

Amount required for further surgery and treatment:Rs.50,000/- compensation for a partial and permanent disability(6,000x14x50%):Rs.4,20,000/-

Total:Rs.5,40,000/- 23.So, the petitioner is entitled for total compensation of

Rs.5,40,000/- against the first and second respondents. I find this point accordingly.

24.ISSUE NO.3: In the result, the petition is allowed in part in favour of the petitioner and against the first and second respondents granting compensation of Rs.5,40,000/- with costs and subsequent interest @ 7.5% per annum from the date of petition/06-12-2010 till realization. Direct the second respondent insurance company to deposit the compensation amount within two months. On such deposit the petitioner is liberty to withdraw

Rs.3,40,000/- with costs and interests. The balance of 12

Rs.2,00,000/- shall be kept in FD for a period of one year. The petitioner is liberty to withdraw the same with interest after expiry of FD period. Rest of the claim is dismissed without costs.

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

Dictated to the personal assistant, VII Addl. Dist. & Sessions Judge's

Court, transcribed by her, corrected and pronounced by me in open Court this the 30th day of September 2014

VI Addl. Dist. Judge, Mahila Court, VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witnesses examined for: Petitioner:Respondents:

P.W.1Katari RajuNone P.W.2Dr. G. Rajasekhar Kennedy

Documents marked for: Petitioner:

Ex.A1: Attested copy of FIR in Cr.No. 50/09 of II Town P.S.

Ex.A2: Attested copy of M.V.I Report

Ex.A3 : Attested copy of accident report of Care Hospital

Ex.A4:Attested copy of Charge Sheet

Ex.A5:Discharge Summary

Ex.A6 : Attested coy of Disability Certificate

Ex.A7 : Photo of the petitioner disclosing the Head injury.

Respondents: NIL

VI Addl. Dist. Judge,

Mahila Court, VISAKHAPATNAM 13

Date of presentation:06.12.2010 Date of filing: 06.01.2011

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE CUM

CHAIRMAN -MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Present: Sri. T. Eswara Rao, B.Com., B.L.,

Chairman, Motor Accident Claims Tribunal -Cum- VI Addl. Dist. Judge, Visakhapatnam.

Tuesday the 30th day of September 2014

M.O.P. NO.34/2011

Between :

Katari Raju, S/o. Late Apparao, Hindu, Age:41yrs, R/o. D.NO. 26-18- 1, College Down Area, Velamapeta, Visakhapatnam. …. Petitioner

And :

1. Raj Kumar, S/o. Vellayya, Hindu, Age: about 35yrs, R/o. D.No. 2-7- 222, Sector-10, Fisherman Colony, Opp: Appugar, M.V.P. Colony, Visakhapatnam.

2. The Bajaj Allianz General Insurance Co., Ltd., Rep. by it's Senior Divisional Manager, III Floor, C.B.M. Compound, V.I.P. Road, Visakhapatnam. …. Respondents

This is the claim petition filed by the petitioner under Sec.166 of MV

Act read with 455 of APMV Rules for the compensation of Rs.10,00,000/- against the respondent first and second jointly and severally with costs and subsequent interest for the injuries received by the petitioner in a road acci- dent occurred on 19/04/2009 at 11:45pm near Collector Office Junction of

Visakhapatnam District.

Amount claimed Rs.10,00,000-00. A court fee of Rs.9,360-00 is paid under Rule 475(1) of APMV Rules, vide challan No.55 dated 1.12.2010 deposited in SBH, District Court Branch, Visakhapatnam.

This petition coming on 21.08.2014 for final hearing before me in the presence of Sri J.A. Naidu, advocate for the petitioner and Sri Syed Moinuddin, advocate for R.2 and R1 set ex parte, the same having stood over till this day for consideration, this Court doth Order; and 14

D E C R E E

1. that the petition be and the same is hereby allowed in part in favour of the petitioner and against the first and second respondents granting compensation of Rs.5,40,000/- with costs and subsequent interest @ 7.5% per annum from the date of petition/06-12-2010 till realization;

2. that the second respondent insurance company be and is hereby directed to deposit the compensation amount within two months;

3. that on such deposit the petitioner is liberty to withdraw Rs.3,40,000/- with costs and interests;

4. that the balance of Rs.2,00,000/- shall be kept in FD for a period of one year;

5. that the petitioner is liberty to withdraw the same with interest after expiry of FD period;

6. that the rest of the claim is dismissed without costs; and

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

Given under my hand and the seal of the Court, this the 30th day of September, 2014.

VI ADDITIONAL DISTRICT JUDGE-CUM-CHAIRMAN

-MOTOR ACCIDENT CLAIMS TRIBUNAL,

VISAKHAPATNAM

Memorandum of Costs

For Petitioner :For Respondents :

Stamps on vakalat2-00No costs memo filed Stamps on petition 9,360-00 Stamps on petitions6-00 Stamps on process 126-00 Stamps on documents3-00 Advocate fee (fixed by court) 1,500-00 ------------ Total Costs : Rs.10,997-00 =======

Proportionate costs allowed : Rs.6,629-00

VI ADJ-CUM-CHAIRMAN,

MACT, VSP

1

SC.95/2013

VI ADJ/VSP

IN THE COURT OF THE SESSIONS JUDGE, MAHILA COURT, VISAKHAPATNAM.

PRESENT: - SRI T. ESWARA RAO

SESSIONS JUDGE, MAHILA COURT,

VISAKHAPATNAM

TUESDAY, THE 30 TH DAY OF SEPTEMBER 2014

SESSIONS CASE No.95/2013

(P.R.C.4/2013 on the file of I Additional Chief Metropolitan Magistrate,

Visakhapatnam in Crime No.143/2013 of IV Town Police Station,

Dwaraka Zone, Visakhapatnam City).

Name of the Complainant :State represented by Inspector of Police, IV Town P.S, Dwaraka Zone, Visakhapatnam City.

Name of the Accused :Shaik Jahangeer, S/o Shajahan, aged 33 years, Muslim, resident of D.No.19-6-74,Sangadigunta, Lanchestar Road, Guntur.

Date, time and place of Occurrence :On 3.4.2013 at 8.30 p.m at Dwaraka Nagar, Visakhapatnam City.

Charges :U/sec.354 of I.P.C.

Plea of the accused :Accused pleaded not guilty.

Finding of the Court :Accused found not guilty for the charge U/Sec.354 IPC.

Sentence or Order : In the result, accused found not guilty for the offence under Sec.354 IPC and thereby, acquitted himunder Sec.235(1) Cr.P.C. Bail bonds of the accused shall be in force for a period of six months.

Prosecution conducted by : Sri S. Rama Murthy Naidu, Addl. Public Prosecutor Gr.I, Visakhapatnam.

Accused defended by :Sri T.Venkata Rantnam, Advocate for the Accused

This case coming on 29.09.2014 final hearing before me in the presence of the Additional Public Prosecutor on behalf of State and of Sri T.Venkata Ratnam, the learned counsel appearing for the Accused and having been stood over for consideration till this day, this court delivered the following:

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J U D G M E N T

1. The State represented by the Inspector of Police, IV Town Police Station,

Dwaraka Zone, Visakhapatnam City filed the charge sheet against the accused for the offence under Section 354 of IPC in Crime No.143/2013 of their Police

Station.

2. It is alleged in the charge sheet, in brief, that the accused is a resident of

Guntur Town whereas the complainant/Doddi Ramanamma is a resident of

Visakhapanam and a practicing Advocate and that on 3.4.2013 at 8.30 p.m, while the complainant was purchasing fruits near RTC complex, accused who followed her and outraged her modesty by putting his hands on her shoulder and tried to haul her into his hug on the public road and the same was witnessed by LW.2/Routhu Ramana, LW3/Mahanthi Atchum Naidu, and

LW4/Dulla Eswararao and others who rescued the complainant and on the report given by the complainant, the Inspect of Police,/M.Eliababu/LW6 registered a case in Cr.No.143/2013 under Sec.354 IPC on 4.4.2013 at 11.00 hours and endorsed the same for investigation to their Sub Inspector of

Police/B.B.S.Ganesh/LW5 who visited the scene of offence, observed and prepared rough sketch of the scene of offence, examined and recorded the statements of all the witnesses and he also arrested the accused on 5.4.2013 and sent him for judicial custody and after completion of investigation, their

Inspector of Police/LW6 filed the charge sheet. So, the accused is liable for punishment under the above section of law for the outrage the modesty of complainant/D.Ramanamma. So, the charge.

3. Accused is on bail.

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4. The learned I Additional Chief Metropolitan Magistrate, Visakhapatnam has taken the case on file under Section 354 IPC against the accused and on his appearance, by following due process of law, committed the same to the Court of Metropolitan Sessions Judge, Visakhapatnam who in turn made over the same to this Court for disposal in accordance with law.

5. On hearing both sides, the Court framed charge under Section 354 of IPC against the accused, read over and explained to him in Telugu but he pleaded not guilty and claimed for trial.

6. On behalf of prosecution, they got examined the Complainant/alleged victim woman/D.Ramanamma as PW.1 and marked Ex.P1/Report and Ex.P2/portion of her 161 Cr.P.C. statement, Routhu Ramana and D.Eswararao as PWs.2 and 3 and marked their 161 Cr.P.C. statements as Exs.P3 and P4 and the Inspector of

Police and one of the Police Officer and Investigating Officer/B.B.S.Ganesh as

PW4 and marked Ex.P5/Rough Sketch of Scene of offence and another

Investigating Officer/M. Eliababu who registered the case and filed the charge sheet, as PW5 and marked Ex.P6/FIR. Prosecution evidence is closed.

7. Accused examined under Section 313 Cr.P.C who denied incriminating material appearing from the evidence of witnesses against him.

8. On behalf of accused, no witnesses examined and no documents marked for accused.

9. Heard arguments.

10.Now the points for consideration are that:

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1. Whether the accused intentionally outraged the modesty of the complainant/D.Ramanamma as alleged?

2. Whether the prosecution proved the guilt of the accused for the charge under Section 354 IPC beyond all reasonable doubt?

3. To what relief?

POINT Nos.1 and 2:

11. It is the case of the prosecution that on 3.4.2013 at 8.30 p.m while the complainant/D.Ramanamma purchasing fruits on Fruits Stall of Routhu

Ramana/PW2, the accused came and intentionally outraged her modesty and on raised cries, the witnesses gathered and rescued the complainant/Ramanamma and the complainant/Ramanamma/PW1 gave Ex.P1 report to Police for necessary action. Accused denied the incident and claimed his innocence.

12. PW5 is the Inspector of Police of IV Town Police Station of Dwaraka Zone,

Visakhapatnam City deposed that on 4.4.20103 at 11.00 a.m while he was in

Police Station, the complainant/D.Ramanamma came to Police Station and presented Ex.P1 written report and basing on it, he registered a case in

Cr.No.143/2013 under Sec.354 IPC and submitted Ex.P6/FIR and endorsed the same to their Sub Inspector of Police/BBS Ganesh for investigation who investigated the case and after completed the same, he verified the investigation done by his Sub Inspector of Police/PW4 and filed the charge sheet against the accused. It is suggested to PW5 that as the complainant is an Advocate, without knowing the correctness of the fact noted in Ex.P1, he simply registered a case against the accused. It is also further suggested that

PW4 done table investigation and without verifying the true facts, he simply filed the charge sheet against the accused. Both the suggestions denied by 5

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the witnesses.

13. PW4 is the Sub Inspector of Police/BBS Ganesh deposed that he took up investigation in this case on 4.4.2013 and examined and recorded the statement of the complainant/D.Ramanamma in the station itself and later visited the scene of offence and observed the same and prepared

Ex.P5/Rough Sketch and he also examined and recorded the statements of

PW2, PW3 and Atchum Naidu/LW3 and on 5.4.2013, he arrested the accused and on the same day produced him before the Court for judicial custody and his Inspector of Police/PW5 filed the charge sheet against the accused. He also further deposed that PW1, PW2 and PW3 stated before him as in their respective 161 Cr.P.C. statements under Exs.P2, P3 and P4. It is suggested that he examined and recorded the statements of witnesses and went to the scene of offence and prepared rough sketch all are false and his investigation is a table investigation in Police Station. It is also suggested that arrested the accused by him is also false. Both the suggestions denied by the witness.

14. According to prosecution, PW2, PW3 and LW3/M.Achum Naidu are the direct eye witnesses to the incident where the complainant is a victim in the hands of accused for the incident of outrage of her modesty. PW3 is a resident of

Shanti Nagar in Vizag and doing private business. According to prosecution, on the date of incident and at that time, while PW3 went to petrol bunk and when reached the spot, he witnessed the incident and also stated before

Police as in Ex.P4/statement. But, the witness deposed that he do not know

PW1, PW2 as well as accused standing in the dock. He also further deposed that he do not know anything about this case and the Police not examined him. In the cross-examination from Addl.P.P, it is suggested to PW3 that he witnessed the incident where accused outraged the modesty of PW1 on 6

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3.4.2013 at 8.30 p.m while she was purchasing fruits opposite to RTC complex and that when himself and others asked the accused where he threatened them as contained in Ex.P4 and now deposing false. The same was denied by the witness.

15. PW2 is a resident of Visakhapatnam and doing business near RTC complex and the alleged incident or godava took place where he is doing the same business on pushing cart. So, PW2 is also an independent witness for the alleged incident. PW2 deposed that he knew PW1 as well as accused. But, he do not know the name of the accused but he is also doing fruits business since last 2 or 3 years near petrol bunk opposite to RTC complex and his business is from 8.00 a.m to 9.30 p.m. Such a portion of evidence of PW2 was not disputed. PW2 further deposed that in the last year and on one day night, PW1 came to his shop and purchased fruits and at the time of incident, accused also came to his shop and so, he seen him and later he left the place by pushing his fruits stall to other spot. So, PW2 spoken the presence of the complainant and accused on that day and at the time of incident or galata.

PW2 further deposed that he has not seen whether accused misbehaved towards PW1. He also further deposed that when the Police asked him, he told them that some galata took place and then the Police went away stating that they will come to his house. In the cross-examination from Addl.P.P, it is suggested to PW2 that he stated before Police that on 3.4.2013 at 8.30 p.m while PW1 purchasing fruits, accused came and put his hand on the shoulder of PW1 and also pushed her by caught her hand and inspite of PW1 tried to escape from him, he has not left the hand and then, himself and the gathered people admonished him who also threatened to kill them and when PW1 asked the name of the accused, he told him that name of the accused is Shaik

Jahangeer as contained in Ex.P3/statement. PW2 deposed that he did not 7

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state before Police as in Ex.P3 and also denied the suggestion given by

Addl.P.P. It is lastly suggested that he stated before Police with regard to incident and the accused is the person who outraged the modesty of PW1 as contained in Ex.P3 and now deposing false to help the accused. The same was denied by the witness. PW2 admitted in the cross-examination that he is not in a habit of know about the names of persons who approached and purchase fruits from him. So, PW2 spoken about the incident or galata on that day at 8.30 p.m. and not supported the prosecution that the accused is the person who misbehaved and outraged the modesty of complainant , in support of the version of the prosecution.

16. Now coming to the evidence of complainant/PW1 who is resident of

Akkayyapalem in Visakhaptnam and practicing as an Advocate in

Visakhapatnam Bar since last four years deposed that in April of last year, she gave a report to IV Town Police Station and on that day at about 8.30 p.m to 9.00 p.m while she was purchasing fruits opposite to RTC complex of Vizag, one person came and dashed and when asked him, he again dashed her and then, she raised cries where public gathered there, caught that person and beat him and the Police also came there and taken her to the Police Station and Ex.P1 is the complaint signed by her. PW1 further deposed that she do not know the contents of Ex.P1 and somebody prepared Ex.P1 where she put her signature and the Police examined her. So, PW1 also spoken about the incident where she was a victim for outrage of modesty in the hands of a person. Now, whether the accused is the said person is the crucial point for consideration and the evidence of complainant/PW1 is only the basis to prove the charge against the accused. But, in the chief-examination itself, PW1 deposed that she do not know the accused previously. PW1 further deposed that in the chief that she cannot identify that person now as she seen him in 8

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darkness. No more material either from alleged victim woman/PW1 and the direct witnesses including Police Officials that the accused is the person who outraged the modesty of the complainant/PW1 and on the spot, the public gathered caught the accused, beat him and handed over the accused to the

Police. No doubt, PW4 deposed that PW1, PW2 and PW3 stated before him as in their respective 161 Cr.P.C. statements under Exs.P2, P3 and P4. But, those statements can be used for corroboration or contradiction and not substantive piece of evidence to prove the guilt of the accused. No whisper from the evidence of Police Officials also that the gathered public caught the accused and handed over to him and so, on the same day arrested the accused and on the next day produced before the Court for judicial custody. On the other hand, it is the evidence of PW1 that on 4.4.2013 at 11.00 a.m. PW1 gave report and a case was registered under Ex.P6 and on the next day/5.4.2013, they arrested accused and produced before the Court. So, the evidence of the

Police also not helpful to conclude that the accused is the person who outraged the modesty of PW1 in an incident or galata spoken by PW2 at his fruit stall. According to prosecution, as the accused is a regular customer to

PW2, he knew the name of the accused and through PW2, PW1 came to know the name of the accused as Jahangeer and the same was stated as contained in Ex.P2/statement. But, PW1 deposed that she did not state before Police as in Ex.P2/statement. So, absolutely no acceptable material to tag the incident to the accused who said to be outraged the modesty of complainant/PW1/D.Ramanamma in that incident.

17. Therefore, in the above discussion, it is held that prosecution not established thattheaccusedintentionallyoutragedthemodestyof complainant/PW1/D.Ramanamma and thereby, the prosecution not proved the guilt of the accused for the charge U/Sec.354 IPC beyond all reasonable 9

SC.95/2013

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doubt. I find both the points accordingly.

18.POINT No.3:

In the result, accused found not guilty for the offence under Sec.354 IPC and thereby, acquitted him under Sec.235(1) Cr.P.C. Bail bonds of the accused shall be in force for a period of six months.

Dictated to Stenographer Gr.I, transcribed by him, corrected and

pronounced by me in open court, this the 30th day of September 2014.

SESSIONS JUDGE,

MAHILA COURT,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No. of the witnesses examined

For Prosecution: For Defence

PW.1/24.3.2014 : D.Ramanamma PW.2/24.3.2014 : Routhu Ramana –NONE- PW.3/25.3.2014 : D.Eswara Rao PW.4/1.4.2014: B.B.S.Ganesh (SI of Police) PW.5/21.8.2014: M.Eliababu (Inspector of Police)

No. of exhibits marked

For Prosecution: For Defence

Ex.P1/4.4.2013 : Report given by PW1 to police. – NIL- Ex.P2/4.4.2013 : Relevant portion in 161 Cr.P.C statement of PW1. Ex.P3/4.4.2013 : Relevant portion in 161 Cr.P.C statement of PW2. Ex.P4/4.4.2013 : 161 Cr.P.C statement of PW3. Ex.P5/4.4.2013 : Rough Sketch of scene of offence. Ex.P6/4.4.2013 : Original FIR in Cr.No.143/2013 of IV (T) PS.

Material Objects marked on behalf of the Prosecution

-NIL-

Sessions Judge,

Mahila Court, Visakhapatnam 10

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C A L E N D A R

IN THE COURT OF THE SESSIONS JUDGE, MAHILA COURT, VISAKHAPATNAM.

PRESENT: - SRI T. ESWARA RAO

SESSIONS JUDGE, MAHILA COURT,

VISAKHAPATNAM

TUESDAY, THE 30 TH DAY OF SEPTEMBER 2014

SESSIONS CASE No.95/2013

(P.R.C.4/2013 on the file of I Additional Chief Metropolitan Magistrate,

Visakhapatnam in Crime No.143/2013 of IV Town Police Station,

Dwaraka Zone, Visakhapatnam City).

Name of the Complainant :State represented by Inspector of Police, IV Town P.S, Dwaraka Zone, Visakhapatnam City.

Name of the Accused :Shaik Jahangeer, S/o Shajahan, aged 33 years, Muslim, resident of D.No.19-6-74,Sangadigunta, Lanchestar Road, Guntur.

Date, time and place of Occurrence :On 3.4.2013 at 8.30 p.m at Dwaraka

Date of complaint :04.04.2013

Date of Committal :29.05.2013

Date of apprehension :05.04.2013

Whether the accused is in Jail :on Bail Or on Bail. :

Date of commencement of Trial :24.03.2014

Date of Closure of Trial :21.08.2014

Date of Judgment :30.09.2014

This Sessions case was made over from Metropolitan Sessions Judge, Visakhapatnam for disposal and received by this Court on 09.07.2013 and on that summons issued to Accused and posted to 30.08.2013. On 30.08.2013 due to strike reposted to 16.9.2013. On 16.9.2013 due to strike reposted to 30.9.2013. On 30.09.2013 due to strike reposted to 17.10.2013. On 17.10.2013 due to strike reposted to 1.11.2013. On 1.11.2013 accused present. Sri TVR & MMK filed memo of appearance for accused. So, for hearing on charges by 27.12.2013. On 27.12.2013 accused present and not ready. Call on 18.2.2014 for hearing on charges. On 18.2.2014 accused is present. For hearing call on 25.2.2014. On 25.2.2014 accused present and request time. Heard on charges. So, for consideration by 26.2.2014. On 26.2.2014 accused present. A charge U/Sec.354 of IPC is framed against accused, read over and explained to him in Telugu who pleased not guilty and claimed for trial. Accused filed a petition for 11

SC.95/2013

VI ADJ/VSP

early disposal as he is a native of Guntur and the same is allowed. So, issue summons to witness i.e., LW1 and 2 – 24.3.2014, LW3 and 4 – 25.3.2014 and LW5 and 6 – 26.3.2013 call on 24.3.2014. On 24.3.2014 accused present. PW1 and 2 examined, Ex.P1 to P3 marked. So, call on 25.3.2014. On 25.3.2014 accused present. PW3 examined, Ex.P4 marked. LW3 absent. Concerned SHO/SI of IV Town P.S,. not attending the court from the date of beginning of the schedule. So, call on 26.3.2014 as per schedule. On 26.3.2014 accused present. S.I of IV town P.S. present. All the witnesses absent. At request call on 1.4.2014. On 1.4.2014 accused present. Police filed report stating that whereabouts of LW3 is not known and the same is recorded. PW4 examined and Ex.P5 marked. So, for record the evidence of LW6 by 21.4.2014. On 21.4.2014 accused present. LW6 absent. Issue fresh summons to LW6 call on 12.5.2014. On 12.5.2014 accused present. P.O. is on leave, reposted to 16.5.2014. On 16.5.2014 Accused present. LW6 absent. At request of Addl.P.P. call on 12.6.2014. On 12.6.2014 accused present. LW6 absent. call on 18.6.2014. On 18.6.2014 accused present. LW6 absent. Call on 26.6.2014. On 26.6.2014 accused present. I.O. absent. At request of Addl.P.P. call on 4.7.2014. On 4.7.2014 accused present. LW6 absent. On memo of police call on 7.7.2014. On 7.7.2014 accused present. LW6 absent. At request of PP call on 14.7.2014. On 14.7.2014 accused present. LW6 absent. The police filed adjournment memo with Radio message. So, time extended till 11.8.2014. On 11.8.2014 accused present. LW6 absent. Police request time stating that another matter in the same court pending for I.O. evidence. So, call on 21.8.2014 for LW6 evidence. Witness shall present and cooperate court, otherwise next step follows. On 21.8.2014 accused present. PW5 examined, Ex.P6 marked. Prosecution evidence is closed. So, for 313 Cr.PC examination of the accused by 5.9.2014. On 5.9.2014 accused present and requested time. So, for 313 examination by 29.9.2014. On 29.9.2014 accused present and examined U/s.313 Cr.P.C. Accused reported no defence witnesses. So, defence side evidence is closed. Heard arguments. So, for judgment by 30.9.2014. On 30.9.20-14 judgment pronounced.

Judgment pronounced vide separate judgment. In the result, accused found not guilty for the offence under Sec.354 of IPC and thereby, acquitted him under Sec.235(1) of Cr.P.C. Bail bonds of the accused shall be in force for a period of six months.

SESSIONS JUDGE,

MAHILA COURT,

VISAKHAPATNAM.

1

IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE, MAHILA COURT,

VISAKHAPATNAM.

PRESENT: - SRI T. ESWARA RAO, B.Com,B.L.,

VI ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

MONDAY, THE 27 TH DAY OF OCTOBER 2014.

O.S.No.597/2013

Between: Alapati Lakshmi, W/o Narasimharao, Hindu, aged 43 years, Residing at D.No.49-45-10/10, Flat No.302, 3rd floor, Ramyaraj Enclave, Akkayyapalem, Visakhapatnam.

.. Plaintiff

And:

1.Gavara Vazram, W/o Late Chiranjeevi, Hindu, aged 45 years, residing at D.No.49-46-4/4, Chakalipeta, Ramakrishnanagar, Akkayyapalem, Visakhapatnam.

2.Gavara Dilipkumar, S/o Late Chiranjeevi, Hindu, aged 28 years, residing at D.No.49-46-4/4, Chakalipeta, Ramakrishnanagar, Akkayyapalem, Visakhapatnam.

3.Gavara Girija, D/o Late Chiranjeevi, Hindu, aged 25 years, residing at D.No.49- 46-4/4, Chakalipeta, Ramakrishnanagar, Akkayyapalem, Visakhapatnam

.. Defendants.

This suit coming on 21.10.2014 for hearing before me in the presence of Sri A.Ramamohanrao, Advocate for the plaintiff and the defendants 1 to 3 having remained exparte and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1. Plaintiff filed the suit under Order VII Rule 1 r/w Sec. 26 of C.P.C for recovery of Rs.10,94,838/- against the estate of deceased/Gavara

Chiranjeevi in the hands of his legal representatives who are defendants 1 to 3 herein basing on a promissory note dated 18.6.2012 executed by deceased Chiranjeevi in favour of plaintiff for Rs.8,00,000/- with costs and interest.

2. It is alleged in the plaint, in brief, that the husband of the Ist defendant and father of defendants 2 and 3 Gavara Chiranjeevi borrowed

Rs.8,00,000/- from the plaintiff on 18.6.2012 for the purpose of his business and executed the suit promissory note agreeing to repay the same with 24% interest per annum either to the plaintiff or to her bearer on demand and subsequently, inspite of demands, no amount was paid and later, he came to know that the said Gavara Chranjeevi died on 11.8.2012 leaving

2

behind the defendants and that the plaintiff also asked the defendants to clear off the debt but they did not choose to repay the same. So, the suit.

3. The defendants 1 to 3 remained exparte.

4. On behalf of the plaintiff, she was examined as PW1 and marked Ex.A1 pronote and also examined S.Sridhar as PW2 and M.V.Ramana Murthy as

PW3 by filing chief affidavits.

5. Heard arguments.

6. Now, the points for consideration are that:

1). Whether the plaintiff is entitled for decree for suit amount against the estate of deceased-Chiranjeevi in the hands of defendants as prayed for? 2). To what relief?

POINT No.1:

7. It is the case of the plaintiff and her evidence as PW1 that on 18.6.2012

Gavara Chiranjeevi borrowed Rs.8,00,000/- from her for his business and executed Ex.A1 suit promissory note agreeing to repay the same with interest at 24% per annum either to herself or to her order on demand and subsequently, inspite of demands made to Chiranjeevi, he has not paid the same and that on 11.8.2012, the said Chirajeevi died and later, when the plaintiff demanded the defendants to clear off the suit debt, they did not choose to repay the same and so, she was forced to file the suit. Absolutely, no dispute from the defendants about the relationship between Gavara

Chiranjeevi and themselves. PW2 is one of the attestor on the pronote and

PW3 is the scribe of the pronote who spoken about the suit transaction in between the plaintiff and deceased-Gavara Chiranjeevi and execution of

Ex.A1 pronote by deceased/Chiranjeevi who agreed to repay the amount with 24% interest per annum. It is also clear from the evidence of the plaintiff that after the death of Chiranjeevi, she requested the defendants to clear off the suit debt who have not choose to repay the same. So, the plaintiff proved the suit transaction and the liability to recover the same

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against the estate of the deceased-Chiranjeevi in the hands of defendants who are legal representatives of deceased/Chiranjeevi.

8. Therefore, in the above discussion, it is held that the plaintiff is entitled for recovery of the suit amount against the estate of the deceased-

Chiranjeevi in the hands of his legal representatives who are defendants 1 to 3 herein. I find this point accordingly.

POINT No.2:

9. In the result, the suit is decreed with costs in favour of plaintiff and against the estate of the deceased/Gavara Chiranjeevi in the hands of defendants 1 to 3 herein for Rs.10,94,838/-(Rupees ten lakhs, ninety four thousand, eight hundred and thirty eight only) with subsequent interest at 12% per annum from the date of suit i.e., 31.12.2013 till realization on

principal amount Rs.8,00,000/-(Rupees eight lakhs only).

Dictated to the Stenographer Gr.I, transcribed by him, corrected and

pronounced by me in the open Court on this the 27th day of October

2014.

VI ADDL. DISTRICT JUDGE,

MAHILA COURT,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

List of Witnesses examined

For Plaintiff :

PW1/Smt.Alapati Lakshmi. (plaintiff) PW2/Surisetty Sridhar. PW3/Mutyam Venkata Ramanamurthy.

For Defendants: -None-

List of documents filed

For Plaintiff:

Ex-A.1/18.6.2012: Demand Promissory Note executed by deceased/Gavara Chiranjeevi (the father of D1 to D3) in favour of plaintiff for Rs.8,00,000/-

For defendants: -NIL-

VI ADDL. DISTRICT JUDGE,

MAHILA COURT,

VISAKHAPATNAM.

1

IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE, MAHILA COURT,

VISAKHAPATNAM.

PRESENT: - SRI T. ESWARA RAO, B.Com,B.L.,

VI ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

FRIDAY, THE 24 TH DAY OF OCTOBER 2014.

O.S.No.388/2012

Between: Karri Eswara Reddy, S/o Dora Reddy, Hindu, aged 30 years, Residing at D.No.49-48-24/4, NGGO’s colony, Akkayyapalem, Visakhapatnam-16.

.. Plaintiff

And: Pallikala Venkata Shyam Sunder Reddy, S/o Suryanarayana, Hindu, aged 43 years, residing at D.No.7-1-53, Sree Ganesh Chambers, Beside Kotak School, Kirlampudi layout, China Waltair, Visakhapatnam.

.. Defendant

This suit coming on 07.10.2014 for hearing before me in the presence of Sri P.S.Kumar, Advocate for the plaintiff and the defendant having remained exparte and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1. Plaintiff filed the suit under Order VII Rule 1 r/w Sec. 26 of C.P.C against the defendant for recovery of Rs.12,18,533/- with costs and subsequent at 24% p.a. interest basing on suit promissory note, dated 20.7.2011 for

Rs.9,50,000/-.

2. It is alleged in the plaint, in brief, that the defendant approached the plaintiff and borrowed an sum of Rs.9,50,000/- on 20.7.2011 for the purpose of his family expenses and clearing debts and executed the suit promissory note at the residence of plaintiff at Visakhapatnam agreeing to repay the same with 24% per annum interest to the plaintiff or his order and later, inspite of demands, no such payment made and that the defendant is not entitled to the benefits of any Debt Relief Laws. So, the suit.

3. The defendant remained exparte.

4. On behalf of the plaintiff, he was examined as PW1 and marked Ex.A1 pronote and he also got examined Mallidi Venkata Reddy as PW2 and

Nallamilli Venkata Reddy as PW3 by filing proof affidavits.

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5. Heard arguments.

6. Now, the points for consideration are that:

1). Whether the plaintiff is entitled for decree for suit amount as prayed for? 2). To what relief?

POINT No.1:

7. It is the case of the plaintiff and his evidence that the defendant borrowed Rs.9,50,000/- on 20.7.2011 from him in the presence of scribe and two attestors and executed Ex.A1 suit promissory note agreeing to repay the same with interest and later inspite of demands, no payment was made. So, request the Court to decree the suit as prayed for. PW2 and PW3 are the attestors of Ex.A1 pronote who spoken about the suit transaction in between plaintiff and defendant in their presence and in the presence of scribe. But, the defendant failed to pay the due amount inspite of repeated demands from the plaintiff. So, the plaintiff proved the suit claim.

8. Therefore, in the above discussion, it is held that the plaintiff is entitled to a decree for the suit amount as prayed for. I find this point accordingly.

POINT No.2:

9. In the result, the suit is decreed in favour of plaintiff and against the defendant for Rs.12,18,533/-(Rupees twelve lakhs, eighteen thousand, five hundred and thirty three only) with costs and subsequent interest at 12% per annum from the date of suit i.e., 25.9.2012 till realization on

principal amount Rs.9,50,000/-(Rupees nine lakhs and fifty thousand only),

except for the default period from 11.12.2012 to 16.7.2014.

Dictated to the Stenographer Gr.I, transcribed by him, corrected and

pronounced by me in the open Court on this the 24th day of October

2014.

VI ADDL. DISTRICT JUDGE,

MAHILA COURT,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

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List of Witnesses examined

For Plaintiff :

PW1/Karri Eswara Reddy (plaintiff) PW2/Mallidi Venkata Reddy. PW3/Nallamilli Venkata Reddy.

For Defendant: -None-

List of documents filed

For Plaintiff:

Ex-A.1/20.7.2011: Demand Promissory Note executed by defendant in favour of plaintiff for Rs.9,50,000/-

For defendant: -NIL-

VI ADDL. DISTRICT JUDGE,

MAHILA COURT,

VISAKHAPATNAM.