Sri V.Jaya Surya

IN THE COURT OF THE PRL. SESSIONS JUDGE

KARIMNAGAR

PRESENT: SRI V. JAYA SURYA, B.Sc., B.L.,

PRL. SESSIONS JUDGE,

K A R I M N A G A R.

WEDNESDAY, the 8 th DAY of MAY, 2013

CRIMINAL APPEAL NO. 76 OF 2012

From which Court the Appeal : Spl. Judicial Magistrate of First Class is preferred. (Excise), Karimnagar.

Number of the case in that : C.C.No.179 of 2002 Court. Number of the Appeal : Crl.A.No.76 of 2012

Name and description of the : M/s N. Thirupathi Rao & Company, a Appellant/Complainant. partnership firm, represented by its Managing Partner Sri N. Ravinder Rao, S/o Thirupathi Rao, aged 42 yrs., R/o Karimnagar. …Appellant/Complainant.

Name of the : 1.The State of A.P., represented by Respondent/State/Accused Public Prosecutor, Sessions Court, Karimnagar. …Respondent.

2.M/s Shakti Infrastructure Investments and Leasing Limited, a company registered under the Companies Act, 1956, Regd. Office 24.5” floor, Krishna Complex, Tilak Road, Hyderabad, represented by its Managing Director Mr. Gyan Sagar Kangiri.

3.Mr. Gyan Sagar Kangiri, H.No.16- 2-705/8/2, Malakpet, Hyderabad.

..Respondents/Accused.

Sentence and Law under A1 and A2 were found not guilty of the which it was imposed in the : offence punishable under Sec.138 of N.I. Lower Court. Act., and accordingly they were acquitted under Sec.255 (1) Cr. P.C.

Whether confirmed, modified : In the result, the appeal is allowed, or reversed and if modified, setting aside the Judgment of acquittal the modification. passed by the Spl. Judicial Magistrate of

First Class (Excise), Karimnagar in C.C.

No.179 of 2002, dt.19.08.2010.

2 Crl. A. No.76 of 2012

The respondents No.2 and 3 are found guilty of the offence punishable under Sec.138 of the N.I. Act and accordingly they are convicted under Sec.255 (2) of Cr. PC.

The respondent No.2 is sentenced to pay a fine of Rs.35,00,000/- for the offence punishable under Sec.138 of N.I. Act and out of the said fine amount, an amount of Rs.34,50,000/- shall be paid to the appellant towards compensation under Sec.357 (3) Cr. PC.

The respondent No.3 is sentenced to undergo imprisonment for a period of one year and also to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for a period of two months for the offence punishable under Sec.138 of the N.I. Act.

This appeal coming before me on today for hearing, upon perusing the grounds of appeal and the record of evidence and proceedings, upon duly considering the same, after hearing Sri K. Sudhakar Rao, Counselfor the Appellant, the Public Prosecutor for the State/Respondent No.1, Sri B.S. Prasad and Sri N. Parameshwar, Counsels for the respondents No.2 and 3, I do adjudge and pass the following:-

-: J U D G M E N T :-

This criminal appeal is filed against the Judgment rendered in

C.C.No.179 of 2002 by the learned Spl. Judicial Magistrate of First Class (Excise), Karimnagar, dt.19.08.2010 whereunder the respondents No.1 and 2 were found not guilty and acquitted of the offence punishable under Sec.138 of Negotiable Instruments Act.

(Note : Initially, the appellant filed this appeal before the Hon’ble High Court of A.P., Hyderabad which was transferred to this Court for disposal according to law by giving opportunity to the parties by its Order, dt.26.03.2012 in Crl.

Appeal No.1214/2010).

2. The allegations leveled by the appellant against the respondents No.2 and 3 for having committed the offence punishable under Sec.138 of N.I. Act, the evidence adduced to prove the said 3 Crl. A. No.76 of 2012 allegations, the findings recorded by the learned Magistrate in the impugned Judgment and the basis for those findings all that lead to the filing of this criminal appeal are as follows :-

The appellant-company filed a complaint under Sec.200 Cr. P.C., alleging that M/s Shakti Concrete Industries Limited had entered into a contract with South Central Railway for execution of gauge conversion work vide agreement, dt.19.12.1996 and they gave security deposit to the said firm for the above contract. Having completed part of the contract work, the said Company raised bills for the same. On finding it necessary to get income tax incentives available for the infrastructure projects, the said

Shakti Concrete Industries Ltd., had incorporated its name as M/s

Shakti Infrastructure Investment and Leasing Ltd., i.e. the respondent No.2, under the Companies Act. Subsequently, both the Companies had entered into M.O.U. on 4th December, 1998 according to which, M/s Shakti Concrete Industries Ltd., agreed to transfer or assign all the contractual rights, obligations, commitments and duties under the agreement with the appellant- company in favour of the respondent No.2 Company and also agreed to assign the benefits accrued from the agreements with the railways to the respondent No.2 Company and it had agreed to all contractual obligation/agreement entered into by M/s Shakti Concrete Industries Ltd., with the appellant-company. As per the tripartite agreement, dt.10.10.1998 under Ext.P-5, all claims of the appellant-company pending against M/s Shakti Concrete

Industries Ltd., as on the date of agreement stood transferred in favour of the respondent No.2 Company making it liable for payment of bills, deposits and other expenditure incurred by the appellant-company in connection with the contract work. The respondent No.3 was the Managing Director of the respondent

No.2 Company, formerly known as M/s Shakti Concrete Industries Limited.

The respondents No.2 and 3 could not complete the project work with the railways and the work had come to a standstill. Since the work was not being carried out and the payment for the work already done was pending since long time, the appellant- company requested the respondents No.2 and 3 to return the 4 Crl. A. No.76 of 2012 money deposited with them and also to make payment for the work already done. Accordingly, in part payment of the due towards bills raised by the appellant-company and also towards refund of the deposit, the respondent No.3, in the capacity of the Managing Director of the respondent No.2 Company, issued two

Cheques bearing Nos.215955 and 215954, dt.30.09.2000 for Rs.22.50 lakhs and Rs.12.00 lakhs respectively vide Exts.P-7 and

P-8, drawn on Canara Bank, Abid Road, Hyderabad. When the appellant-company presented the said cheques for realization at

Bank of Baroda, Karimnagar Branch, the same were dishonoured and returned to it with memos, dt.30.03.2001 and dt.04.04.2001 vide Exts.P-9 and P-10 for the reason “insufficient funds”.

Thereupon, the appellant-company got issued a legal notice, dt.18.04.2001 vide Ext.P-11, which was served on the respondent

No.3 on 21.04.2001 vide Ext.P-12 but the respondent No.2 refused to take the notice sent to it under Ext.P-13. The respondents No.2 and 3 deliberately issued the said cheques knowing well that there were no sufficient funds in their account and thus committed the offences punishable under Sec.138 and 142 of N.I. Act.

3. The trial Court after recording the sworn statement of the appellant-complainant and having found prima facie case under Sec.138 of N.I. Act, took the case on file and issued summons to the respondents

No.2 and 3.

4. The respondent No.3 made his appearance on his behalf and on behalf of the respondent No.2 Company and the trial Court after furnishing him copies of the documents of the case as required under

Sec.207 Cr. PC., examined him u/s 251 Cr. PC., explaining the substance of accusation leveled against him to which, he pleaded not guilty and claimed to be tried.

5 Crl. A. No.76 of 2012

5. To prove that the respondents No.2 and 3 had committed the offence punishable under Sec.138 of N.I. Act, Sri N. Ravinder Rao, the

Managing Partner of the appellant-company was examined as PW.1. Sri

N.A. Prasad, Director of M/s Sree Balaji Fasteners Pvt. Ltd., Hyderabad was examined as PW.2. Sri Y. Ramakrishna, the then Officer in Bank of

Baroda, Karimnagar Branch, the banker of the appellant-company, was examined as PW.3 and Sri M. Raja Rao, the then Senior Manager, Canara

Bank, Abid Road, Hyderabad, the banker of the respondent No.2

Company, was examined as PW.4, to prove the presentation of Exts.P-7 and P-8 cheques and their dishonour for insufficiency of funds in the account of the respondent No.2 Company. Sri Kanagiri Gyan Sagar, i.e.

the respondent No.3, was examined as DW.1. While Exts.P-1 to P-15 were marked on behalf of the appellant-complainant, Exts.D-1 and D-2 were marked on behalf of the respondents No.2 and 3.

6. The trial Court noted the following point for consideration :-

Whether the prosecution is able to prove the guilt of the accused beyond reasonable doubt for the offence U/sec.138 of N.I. Act ?

7. The learned trial Court Judge, on due consideration of the allegations leveled by the appellant-complaint and the evidence adduced by it to prove the offence alleged vis-à-vis the defence evidence, recorded a finding that the respondents No.2 and 3 have rebutted the presumption under Sec.139 of the N.I. Act and found them not guilty of the offence punishable under Sec.138 of N.I. Act and consequently acquitted them of the said offence.

6 Crl. A. No.76 of 2012

8. Being aggrieved by the acquittal of the respondents No.2 and 3 herein, the appellant-complainant preferred this appeal on the following grounds :-

i) That, the Judgment under appeal is bad in law and contrary to the material on record, that the learned Magistrate erred in dismissing the complaint filed for the offence punishable under Sec.138 of N.I. Act, and that the learned Magistrate erred in appreciating the evidence on record and acquitted the accused.

ii) That, the learned Magistrate erred in placing reliance on Ext.D.1 and recorded a finding that the accused are not guilty of the offence punishable under Sec.138 of N.I. Act.

iii) That, the learned Magistrate ought to have seen that the cheques in dispute were issued by the accused and there was no dispute about the issuance of cheques in favour of the appellant for discharge of legally enforceable debt.

iv) That, the learned Magistrate ought to have seen that the accused has not rebutted the presumption under Sec.138 of

N.I. Act and they are squarely liable for the offence under Sec.138 of N.I. Act.

v) That, the learned Magistrate ought to have seen that Ext.D-1 is not binding on the parties to the dispute as such, no reliance can be placed on it for determination of the issues involved in the case and, vi) That, the learned Magistrate contrary to the evidence on record acquitted the accused for the offence punishable under Sec.138 of N.I. Act.

9. Heard learned counsel for the appellant and of the respondents No.2 and 3.

7 Crl. A. No.76 of 2012

10.Now the point that arises for consideration is :-

Whether the Judgment of acquittal, dt.19.08.2010 in C.C. No.179 of 2002 passed by the learned Spl. Judl.

Magistrate of 1 st Class (Excise), Karimnagar has

suffered from any legal infirmity, if so, whether the same is liable to be set aside ?

11. POINT :

The admitted facts and the facts which are not in dispute are as follows :-

The respondent No.2 Company, namely, M/s Shakti

Concrete Industries Limited (Incorporated later as M/s Shakti Infrastructure Investment and Leasing Ltd.), represented by its

Managing Director, i.e. the respondent No.3, had entered into a contract with South Central Railway for execution of gauge conversion work vide agreement, dt.19.12.1996 and the appellant-company gave security deposit to the said Company for execution of the above contract work. Since the respondents

No.2 and 3 could not complete the project work with the railways and the work had come to a standstill and the payment for the work already done was pending since long time, the appellant- company requested the respondents No.2 and 3 to return the money deposited with them and also to make payment for the work already done. Accordingly, in part payment of the due towards bills raised by the appellant-company and also towards refund of the deposit, the respondent No.3, in the capacity of the Managing Director of the respondent No.2 Company, had issued two Cheques bearing Nos.215955 and 215954, dt.30.09.2000 for Rs.22.50 lakhs and Rs.12.00 lakhs respectively vide Exts.P-7 and

P-8, drawn on Canara Bank, Abid Road, Hyderabad. When the appellant-company presented the said cheques for realization at

Bank of Baroda, Karimnagar Branch, the same were dishonoured and returned to it with memos, dt.30.03.2001 and dt.04.04.2001 vide Exts.P-9 and P-10 for the reason “insufficient funds”. The appellant-company got issued a legal notice, dt.18.04.2001 vide Ext.P-11, which was served on the respondent No.3 on 8 Crl. A. No.76 of 2012 21.04.2001 vide Ext.P-12 but the respondent No.2 refused to take the notice sent to it under Ext.P-13. Therefore, the appellant-company filed a complaint against the respondents No.2 and 3 for having committed the offences punishable under Sec.138 and 142 of N.I. Act.

12. The case of the appellant-company is that the respondent

No.3 being the Managing Director of the respondent No.2 Company had issued two cheques vide Exts.P-7 and P-8 towards part payment for the work already done by their company and refund of deposit, but when the said cheques were presented for realization of amounts, they were dishonoured for want of sufficient funds. Therefore, to substantiate his case that the respondents No.2 and 3 had committed the offence punishable under Sec.138 of N.I. Act, the appellant was required to prove that there was a legally enforceable debt against the respondents

No.2 and 3 and to discharge the said debt, Exts.P-7 and P-8 cheques were issued and when presented to the banker of the appellant, the said cheques were dishonored for want of sufficient funds and then service of the legal notice on the respondents No.2 and 3 intimating the dishonour of cheques. By adducing the evidence of PW.3 and PW.4, who are the bankers of the appellant and the respondent No.2 respectively and by producing the documents, viz. cheque return memos, the office copy of the legal notice, the postal acknowledgement and returned postal cover, marked as Exts.P-9 to P-13 respectively, the appellant had proved that

Exts.P-7 and P-8 cheques issued by the respondent No.3 on behalf of the respondent No.2 were dishonoured.

13. On the other hand, the case of the respondent No.3 is that their company issued two cheques on 30.09.2000 in favour of the 9 Crl. A. No.76 of 2012 complainant for the work done by him and also towards the security for

Rs.22,50,000/- and Rs.12,00,000/- respectively, but as per the memo of understanding under Ext.D-1, dt.21.10.2011 entered into between his company, the complainant-company and Vasavi Group of Industries, he was seized to be the Managing Director of the respondent No.2 Company and all the liabilities of the complainant-company, i.e. work done and the security deposits collected by their company, were transferred to Vasavi

Group of Industries, and that by virtue of Ext.D-1, the cheques and liabilities which were issued to the complainant are not enforceable against him and the respondent No.2 company, and that Vasavi Group of

Industries is liable to pay the due amount, if any, to the complainant.

Thus, the respondent No.3 had admitted issuance of Exts.P-7 and P-8 cheques in favour of the appellant-company in discharge of a legally enforceable liability. As could be seen from the impugned Judgment, it was held in para Nos.13 that the cheques issued by A2 on behalf of A1 prior to Ext.D-1 can never meant to have been issued by A2 as A2 has no role in the companies affairs after Ext.D-1, dt.22.10.2000 and the cheques under Exts.P-7 and P-8, dt.30.09.2000 have become virtually invalid as it is clear from the admission on the part of the complainant (the appellant herein) and the witness produced by it, i.e. PWs.1 and 2, which clearly prove that there was a legally enforceable liability.

14. In the light of the above contentions, since the dispute is in between the two companies, it is necessary to extract on record the relevant provision under Sec.141 (1) and (2) of N.I. Act, which reads as under :- 10 Crl. A. No.76 of 2012 (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

Provided further that where a person is nominated as a Director of a company by virtue of his holding any offence or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

The respondent No.3, who had examined himself as DW.1, stated in his evidence that he worked as Managing Director of Shakti Infrastructure

Investments and Leasing Ltd., from the date of its inception till 04.12.2000. Therefore, it can be safely held that at the time the offence was committed, the respondent No.3 was in charge of and was responsible for the conduct of the business of the respondent No.2

Company. The respondent No.3 also stated in his evidence that during the year 1997, their company had entrusted the contract work to the 11 Crl. A. No.76 of 2012 complainant for railway gauge conversion between Mudkhed and

Adilabad, and that their company issued two cheques vide Exts.P-7 and

P-8 in favour of the complainant for the work done by him and also towards refund of security deposit. The respondent No.3 did not dispute issuance of Exts.P-7 and P-8 cheques in favour of the complainant to discharge the legally enforceable liability. His main contention is that as per the memorandum of understanding under Ext.D-1 entered between their company, the complainant-company and M/s Vasavi Group of

Industries, he was seized to be the Managing Director of his company and all the liabilities of the third party, i.e. work done and security deposits collected by his company have been transferred to the said

Vasavi Group of Industries and thus there was no legally enforceable debt between him and the complainant-appellant. A perusal of the impugned Judgment shows, at para No.14, the learned Magistrate observed that the accused have produced vital documentary evidence under Exts.D-1 and D-2 whereunder both the accused 1 and 2 stood discharged under law and thus rebutted the presumption under Sec.139 of N.I. Act, and that the complainant did not produce any material evidence to show that Ext.D-1 was not acted upon and admittedly no action has been taken by the complainant as against the new management which admittedly undertook to discharge the alleged subject debts incurred by the company prior to Ext.D-1. Therefore, it is incumbent on the part of this appellate Court to examine the veracity of

Ext.D-1 and the contents incorporated therein to come to the conclusion that the respondents No.2 and 3 herein have rebutted the presumption under Sec.139 of the N.I. Act.

12 Crl. A. No.76 of 2012

15. A close scrutiny of Ext.D-1 reveals that it is a Xerox copy of memorandum of understanding entered into between the promoters and directors of M/s Shakthi Infrastructure Investments and Leasing Ltd. (the respondent No.2 herein) represented by the respondent No.3 as the first party and M/s Vasavi Industries Ltd. as the second party and the

Contractors and Suppliers numbering to (24), including the appellant herein (Sl. No.10) as the third party. As per clause (9) of Ext.D-1, the third party shall enter into separate agreement afresh with the second party in due course, and that the third party shall not make any claims against the first party for their works done towards work on the project, supplies made and earnest money deposited. Though it is mentioned in

Ext.D-1 that the details of civil works done by the third party (Contractors) are given in Annexure-I while the details of earnest money deposited are given in Annexure-II and the details of preliminary and preoperative expenses are given in Annexure-III, no such annexures are enclosed to it to know that the amounts paid to the appellant under

Exts.P-7 and P-8 for the work done by him and refund of security deposit are included in it. Though the respondent No.3 admitted during cross- examination that in Ext.D-1 it is mentioned that its original is in his possession, he failed to produce the same. Even if the execution of

Ext.D-1 and the resignation of the respondent No.3 recorded by the

Registrar of Companies under Ext.D-2 is believed to be true, in the absence of any documentary evidence to show that the amounts due to be paid to the appellant by the respondents No.2 and 3 are covered in

Ext.D-1, the evidence of the respondent No.3 that the cheques and liabilities which were issued to the appellant are not enforceable against him and the company cannot be accepted. However, Ext.D-1 applies 13 Crl. A. No.76 of 2012 only to the future claims payable to the contractors of the respondents

No.2 and 3 and not to the claims that existed prior to Ext.D.1.

Admittedly, the memorandum of understanding under Ext.D-1 was entered on 22.10.2000 and Exts.P-7 and P-8 cheques were issued in favour of the appellant by the respondent No.3 on behalf of the respondent No.2 on 30.09.2000 for the work done by him and towards refund of security deposit. Since the said cheques were dishonoured, the cause of action arose for the appellant to file a complaint against the respondents No.2 and 3 herein. In view of the above facts and circumstances, it must be held that the learned Magistrate attached undue importance to Ext.D-1 and erred in recording a finding that the respondents No.2 and 3 have rebutted the presumption under Sec.139 of the N.I. Act.

16. Learned counsel for the appellant in his written arguments submitted that since the issuance of cheques, liability and failure to discharge the liability are admitted and the amounts covered by the cheques were not paid to the appellant, there is no escape for conviction.

He further submitted that since the cheques were issued by the respondent No.2 and signed by the respondent No.3 as the Managing

Director of the Company, they continue to be valid and both are liable till the amounts covered by the said cheques are paid and the liability is discharged. He placed reliance on a decision rendered in the case of

S.M.S. Pharmaceuticals Ltd., Vs. Neeta Bhalla and another reported in (2005) 8 Supreme Court Cases 89 in which the Hon’ble Apex Court held at para 9 as under :- “…The position of a managing director or a joint managing director in a company may be different. These persons, as the 14 Crl. A. No.76 of 2012 designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. In order to escape liability, such persons may have to bring their case within the proviso to Section 141 (1), that is, they will have to prove that when the offence was committed they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of offence…”

17. On the other hand, learned counsel for the respondent No.3 in his written arguments submitted that the case law relied by the appellant at best may have little application when a company or

Managing Director are prosecuted for a subsisting liability of the company under the cheques. He further submitted that by producing

Exts.D-1 and D-2, the respondent No.3 has well rebutted the presumption under Sec.139 of the N.I. Act. He placed reliance on a decision reported in AIR 2010 SC 1898 in which the Hon’ble Apex Court has reiterated as how the legal presumption in favour of the payee can be rebutted by the drawer of the instrument, i.e. by preponderance of probabilities. He also placed reliance on a decision reported in AIR 1959

SC 1362 wherein the Hon’ble Apex Court dealt with the subject of

discharge and the facts referred to therein are quite identical which clinches the issue on the legally enforceable debt. A perusal of the said

Judgment shows that it deals with the question of survival of an arbitration clause in a contract after the said contract is superseded by a fresh one and thus it is not applicable to the facts of this case. Since this Court has not believed the veracity of Ext.D-1, the decision relied on by the respondent No.3 reported in AIR 2010 SC 1898 is also not applicable to the facts of this case.

15 Crl. A. No.76 of 2012

18. From the above discussion, after appraising the oral and documentary evidence adduced by both the parties, this Court is unable to agree with the trial Court that the respondents No.2 and 3 by producing documentary evidence under Exts.D-1 and D-2 have rebutted the presumption under Sec.139 of the N.I. Act. Considering the language used while defining Sec.141 (1) and (2) of the N.I. Act and by following the principles laid down in the decision reported in (2005) 8

Supreme Court Cases 89, since the respondent No.3 was admittedly in charge of and was responsible for the conduct of the business of the

Company and since he failed to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence, both the respondents No.2 and 3 are liable for punishment for the offence punishable under Sec.138 of the N.I. Act. On the other hand, the appellant could establish the existence of legally enforceable liability between him and the respondents No.2 and 3, and the respondent No.3 being the Managing

Director of the respondent No.2 Company at the relevant point of time, knowing well that there is no sufficient balance in their account, had issued Exts.P-7 and P-8 cheques in favour of the appellant to discharge such liability, and when presented, the said cheques were dishonoured and then the mandatory notice as required under clause (b) of Sec.138 of N.I. Act was issued to the respondents No.2 and 3 before the prosecution is launched. Therefore, the Judgment of acquittal passed by the trial Court suffers from legal infirmity of law and warrants interference of this Court. Since the Judgment of acquittal recorded by the learned Spl. Judicial Magistrate of 1st Class (Excise), Karimnagar is 16 Crl. A. No.76 of 2012 not based on proper appreciation of material available on record, the same is liable to be set aside. Accordingly, the point is answered.

19. In the result, the criminal appeal is allowed, setting aside the Judgment of acquittal passed by the Spl. Judicial Magistrate of First

Class (Excise), Karimnagar in C.C. No.179 of 2002, dt.19.08.2010.

The respondents No.2 and 3 (accused No.1 and 2) are found guilty of the offence punishable under Sec.138 of the N.I. Act and accordingly they are convicted under Sec.255 (2) of Cr. PC.

The respondent No.2 (accused No.1) is sentenced to pay a fine of Rs.35,00,000/- (Rupees thirty five lakhs only) for the offence punishable under Sec.138 of N.I. Act and out of the said fine amount, an amount of Rs.34,50,000/- (Rupees thirty four lakhs fifty thousand only) shall be paid to the appellant towards compensation under Sec.357 (3)

Cr. PC.

The respondent No.3 (accused No.2) is sentenced to undergo imprisonment for a period of one year and also to pay a fine of

Rs.5,000/- (Rupees five thousand only), in default, to suffer simple imprisonment for a period of two months for the offence punishable under Sec.138 of the N.I. Act.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open Court, on this the 8th day of May, 2013.

Prl. Sessions Judge, Karimnagar.

-:-

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE

KARIMNAGAR.

PRESENT:- SRI V. JAYA SURYA, B.Com., B.L.,

PRL. SESSIONS JUDGE,

KARIMNAGAR.

MONDAY, THE 16 th DAY OF SEPTEMBER, 2013

SESSIONS CASE NO. 184 OF 2013

(On committal by the Addl. Judicial Magistrate of First Class, Huzurabad by her Order in PRC No.96 of 2012, dt.12.03.2013)

Name of the Complainant : The State through the Inspector of Police, Huzurabad (Cr.No.102/2012 of P.S., Huzurabad).

Name of the Accused : Bavu Komuraiah, S/o Ellaiah, aged 55 yrs., Yadava, R/o Jupaka Village.

Charges : Under Sec.302 and 201 of IPC.

Plea of the Accused : “ Not guilty ” Finding of the Court : “ Not guilty ”

Sentence or Order : Accused is found not guilty of the offence punishable under Sec.302 and 201 of IPC., and accordingly he is acquitted under Sec.235 (1) of Cr. PC. Prosecution conducted by : Sri P. Harishankar Rao, In-charge Public Prosecutor, Sessions Court, Karimnagar.

Accused defended by : Sri V.V. Ramana Rao, Advocate.

-: J U D G M E N T :-

The Inspector of Police, Huzurabad laid charge sheet against the accused alleging as extracted hereunder :-

On 18.06.2012, at 0830 hours, the complainant Thokala

Premalatha, W/o Mallesh, lodged a complaint before the police,

Huzurabad, stating that her elder sister Radha’s marriage was performed with one Abba Sammaiah, about 11-years back and they were blessed with two children, namely, Pavan and Arun, who are now aged 9 and 3 years respectively. About nine months back, her sister Radha died of lungs disease due to the carelessness of her brother-in-law in providing medical treatment to her sister. After the death of her sister, she along with two sons of her sister was staying at her parents’ house. Her father convened a panchayath regarding dowry amount wherein the elders decided that her brother-in-law should fix some amount in favour of his children and he agreed to do so within two months.

2 S.C. 184 of 13

Thereafter, her parents demanded her brother-in-law to give the amount as agreed in the panchayath, but he refused and on the other hand, informed them that he would take away his children and in this regard, quarrels took place between them. On the intervention of the elders, finally her brother-in-law gave

Rs.1,25,000/- and after deducting the debt amount taken by her brother-in-law, her father deposited the remaining amount of

Rs.70,000/- in the bank in the name of two children of her sister. Thereafter, her brother-in-law came to Jupaka village two or three times and demanded that he would take away his children and also threatened her parents saying that he would kill them and take away his children. About one month back, her brother- in-law Sammaiah again came to Jupaka village and quarreled with her parents but they refused to hand over the children to him.

In the meantime, one Bashavena Mallesh of Jupaka Village convinced her brother-in-law, but he warned that he would kill her parents and take away his children at any cost and left the place. On 17.06.2012, at 08.00 P.M., her father went to sheep flock for guarding and her mother Lachamma slept along with her sister’s younger son. On18.06.2012, at 00430 hours, her father came from sheep herd and found the compound wall doors fastened and house doors opened and he scaled over the compound wall and found her mother dead in a pool of blood with deep injuries on the eye and neck and back side of shoulder. She thought that her brother-in-law Abba Sammaiah came in the odd hours, took way his son Arun and when her mother Lachamma tried to stop, her brother-in-law stabbed her mother with a knife and fled away from the spot.

On receipt of the said complaint, Sri P. Srinivas, Inspector of Police, Huzurabad, registered a case in Cr. No.102/2012 under Sec.302 of IPC., and issued express FIR to all concerned and took up the investigation. During the course of investigation, he visited the scene of offence at Jupaka Village, found the dead body of the deceased in a pool of blood and observed deep injuries under the eye, neck and back side of the shoulder, secured the presence of Thoakala Premalatha, daughter of the deceased, Sri Thokala Mallesh, the husband of the complainant, Sri Bavu Odelu, brother-in-law of the deceased, Bashaveni

Mallesh, an elder of the village, Sri Munjala Kumaraswamy, Sri Bandi Rajaiah @ Tractor Rajaiah and Sri Madagoni Mohan, who witnessed the presence of alleged accused at his native village on the intervening night of 17/18.06.2012 and recorded their 3 S.C. 184 of 13 statements and later got the dead body photographed through

Vemula Vikram, conducted an inquest on the dead body of the deceased in the presence of Sri Rupireddy Niranjan Reddy, Sri

Bashaveni Sammaiah and Smt. Munja Aruna, and sent the dead body to Govt. Civil Hospital, Huzurabad for postmortem examination. Later, he noted down the details of the scene of offence under the crime details form and seized the control earth and blood stained stone. Dr. Swathi, Civil Asst. Surgeon, Govt. Civil Hospital, Huzurabad conducted autopsy over the dead body of the deceased and preserved the blood stained clothes of the deceased. The Inspector of Police again visited the scene of offence, secured the presence of Sri Thallapalli Sarangapani, a grocery shop owner, and Sri Pudari Lingaiah, the co-shepherd of the accused and recorded their statements. Later he examined

Sri Thallapally Danaiah, the toddy seller who supplied toddy to the accused, Smt. Bavu Sarojana and Smt. Bavu Rajitha, co- sisters of the deceased, Sri chepuri Prabhakar, a neighbour of the accused, Sri Kukkala Komuraiah and Sri Munja Srinivas, the elders and circumstantial witnesses.

On 29.06.2012, at 04.00 P.M., Sri Kethiri Raji Reddy came to the police station along with the accused and stated that the accused came to his house and confessed to have committed the offence. The Inspector of Police, secured the presence of Smt Katikanapalli Shailaja and Sri Thallapalli Venkataswamy, and during the course of interrogation, the accused voluntarily admitted his guilt and stated that he went to guard the sheep herd and relieved Sri Pudari Lingaiah and slept there and at about 0300 hours on 18.06.2012, the said Pudari Lingaiah came to sheep herd and relieved him to go home, that he returned to the house, found the compound wall door fastened and then he scaled over the compound wall and went into bed room where his wife, i.e. the deceased, was sleeping, that he woke up the deceased to fulfill his sexual lust but she refused and started abusing him in filthy language, that he became angry and kicked the deceased, caused her fell on the ground, that since he was keeping grudge against the deceased, he picked up an axe and hacked her on the eye and back side of the shoulder and then picked up a knife from the shelf and inflicted stab injury on her neck and caused her instantaneous death, that he washed the knife and hands and hide the knife in a firewood heap in front of his house but forgotten the axe, that later he hatched a plan to implicate the son-in-law of the deceased in the offence who was 4 S.C. 184 of 13 quarreling with her on the issue of his children, and that he came out from the house along with grand son of the deceased and raised cries. The Inspector of Police recorded the confessional statement of the accused in the presence of the above mediators and later proceeded to Jupaka village along with the above panchas and recovered the knife, blood stained axe, banian of the accused under the cover of recovery panchanama, brought the accused to police station and produced him before the Court for judicial remand. He forwarded the material objects to RFSL,

Karimnagar for examination and report. Subsequently, Sri Ch.

Nagender, Inspector of Police, Huzurabad took up further investigation, received a copy of RFSL Report from the Court and obtained final opinion from Dr. Swathi, Civil Asst. Surgeon in which she opined that the cause of death of the deceased was due to hemorrhagic shock due to poly trauma and after completion of investigation, he filed the charge sheet. Hence, the charge.

2. The case was taken on file by the learned Addl. Judl.

Magistrate of 1st Class, Huzurabad as PRC. No.96/2012 and on

complying with the provisions under sections 208 & 209 Cr. PC., committed the case to the Sessions Court, Karimnagar, directing the accused to take the trial before the Sessions Division, Karimnagar.

3. On appearance of the accused and on hearing the learned counsel for the accused and learned Public Prosecutor for the State, a charge under Sec.302 and 201 of IPC., have been framed, read over and explained to him in his known language. On such examination, the accused pleaded not guilty and claimed to be tried.

4. In order to prove and establish the charges framed against the accused, the prosecution has examined Smt. Thokala Premalatha, the complainant and daughter of the deceased, Sri Thallapally

Sarangapani, the kirana shop owner, Sri Pudari Lingaiah, the co- shepherd of the accused, Sri Thallapally Danaiah, the toddy tapper,

Smt. Bavu Sarojana and Bavu Rajitha, the co-sisters of the deceased 5 S.C. 184 of 13 and neighbourers, Sri Chepuri Prabhakar and Sri Kukkala Komuraiah,

Sri Munja Srinivas, the neighbouers and circumstantial witnesses, Sri

Sri Vemula Vikram, the Photographer who took the photographs of the dead body of the deceased, Sri Kethiri Raji Reddy, the witness before whom the accused is said to have made extra judicial confession, Sri

Rupireddy Niranjan Reddy, the panch witness for the inquest and crime details form, Smt. Katikanapalli Shailaja, the panch witness for the confession and recovery panchanama of the accused, Sri P. Srinivas, the then Inspector of Police, Huzurabad, Dr. Swatho, Civil Asst.

Surgeon, Govt. Civil Hospital, Huzurabad who conducted autopsy over the dead body of the deceased and Sri Ch. Nagender, the Inspector of

Police, Huzurabad, as PWs.1 to 16 respectively. The prosecution has given up the evidence of Sri Thokala Mallesh, the husband of the complainant, Sri Bavu Odelu, the brother-in-law of the deceased, Sri

Bashaveni Mallesh, the person who witnessed the quarrel between the deceased and her son-in-law, Sri Munjala Kumaraswamy, Bandi Rajaiah and Madagoni Mohan, the persons who saw the alleged accused Abba

Sammaiah at his native place on the date of offence, Sri Bashaveni

Sammaiah and Smt. Munja Aruna, the panch witnesses for the inquest and crime details form, and Sri Thallapalli Venkataswamy, the panch witness for the confession and recovery panchanama. The prosecution has marked the complaint given by PW.1, the 161 Cr. PC. Statements of PW.2 to 7 and 9, the bunch of seven photographs, 161 Cr. PC.

Statement of PW.11, the inquest panchanama, the crime details form, relevant portion in the confession statement of the accused, the recovery panchanama, the F.I.R., the postmortem examination report and the FSL Report, as Exts.P-1 to P-17 respectively. Further, it has marked the axe, knife, banian, sari, blouse, petticoat, blood stained stone and control earth, as M.Os.1 to 8.

6 S.C. 184 of 13

5. After closure of the evidence on prosecution side, the incriminating factual circumstances deposed by the prosecution witnesses were explained to the accused in his known language under

Sec.313 Cr. PC., and the accused denied the same. When questioned as to defence witnesses to be examined, if any, the accused reported no defence on his behalf.

6. Heard the arguments from the Public Prosecutor and Sri

V.V. Ramana Rao, learned defence counsel.

7. Now the point that arises for consideration is :-

Whether the prosecution has proved the guilt of the accused for the offence punishable under Sec.302

and 201 of IPC., beyond all reasonable doubt ?

8. POINT :-

The prosecution alleges that the accused killed his wife

Bavu Lachamma on the ground that she was not fulfilling his sexual lust and later fabricated a false story that his son-in-law, who was quarrelling with them for taking his children with him and also threatened to kill them. In order to establish the alleged involvement of the accused in the crime, the prosecution has examined as many as (16) witnesses cited in the charge sheet. Of the witnesses examined,

PW.2 Sri Thallapally Sarangapani, the kirana shop owner, Sri Pudari

Lingaiah, the co-shepherd of the accused, Sri Thallapally Danaiah, the toddy tapper, Smt. Bavu Sarojana and Smt. Bavu Rajitha, the co-sisters of the deceased, Sri Chepuri Prabhakar, Sri Munja Srinivas, the circumstantial witnesses, and Sri Kethiri Raji Reddy, the witness before whom the accused is said to have made an extra judicial confession, did not support the prosecution version and they all turned hostile. The prosecution case has rested on the evidence of PW.1 Smt. Thokala 7 S.C. 184 of 13

Premalatha, the complainant and daughter of the deceased, PW.8 Sri

Kukkala Komuraiah, PW.10 Sri Vemula Vikram, the Photographer,

PW.12 Sri Rupireddy Niranjan Reddy, the panch witness for the inquest and the crime details form, PW.13 Smt. Katikanapalli Shailaja, the panch witness for the confession-cum-recovery panchanama of the accused, PW.14 Sri P. Srinivas, the 1st Investigation Officer, PW.15 Dr.

Swathi, the Civil Asst. Surgeon, who conducted autopsy over the dead body of the deceased and Sri Ch. Nagender, the 2nd Investigation

Officer who filed the charge sheet. Now it has to be seen whether the prosecution, with the evidence of PW.1, PW.8, PW.10, PW.12 and

PW.13 to PW.16, is able to prove the alleged guilt of the accused person beyond all reasonable doubt.

9. PW.1 Thokala Premalatha, the complainant and daughter of the deceased, stated that on being informed over telephone, she went to the house of her parents at Jupaka village and found her mother lying dead with injuries, and that on suspicion she lodged a complaint against her brother-in-law Abba Sammaiah vide Ext.P-1.

PW.2 Thallapally Sarangapani, a kirana shop owner, stated that he does not know how the deceased died and who killed her. PW.3 Sri

Pudari Lingaiah, the co-shepherd of the accused, stated that on the date of the incident, he and the accused were present at the sheep herd during night time, that during the early hours, the villagers passing through the agricultural field informed that Lachamma died, and that he and the accused rushed to the house of the accused and found the deceased lying dead with injuries. PW.4 Sri Thallapally Danaiah,, a toddy tapper, stated that the accused never used to visit his house to consume toddy, and that he does not know who killed Lachamma.

PW.5 Smt. Bavu Sarojana and PW.6 Smt. Bavu Rajitha, the co-sisters of the deceased, stated that they do not know who killed the deceased.

8 S.C. 184 of 13

PW.7 Sri Chepuri Prabhakar, PW.8 Sri Kukkala Komuraiah and PW.9 Sri

Munja Srinivas, the circumstantial witnesses, stated that they do not who killed the deceased and how she died. During the course of cross- examination, PWs.2 to 7 and PW.9 denied having stated to the police as in Exts.P-2 to P-8 respectively. However, a careful appreciation of

Exts.P-2 to P-8 which are the 161 Cr. PC. Statements of the above witnesses does not inspire confidence to be made as the version of the prosecution is materially vague in respect of the person who was responsible for the death of the deceased. At one breathe, while it is the case of the prosecution that PW.13 having visited the scene of offence where the deceased Lachamma was found dead lying with injuries recorded the statements of the said witnesses according to which, the son-in-law of the deceased might have killed the deceased on the score that he was not allowed to take his children with him, at another breathe, it is the version of the prosecution that it is the accused who actually killed the deceased Lachamma on being not allowed by his wife (the deceased) to have sexual act with him on the fateful day of the incident. In such circumstances, it is not possible to place any reliance on such inconsistent and discrepant evidence of the prosecution, more particularly, i.e. Exts.P-2 to P-8. Even according to the prosecution, it is not its version to the effect that the said witnesses being present at the relevant point of time noticed the accused perpetrating criminal violence on his wife, the deceased Lachamma.

10. PW.10 Sri Vemula Vikram is the Photographer who took the photographs of the dead body of the deceased and the scene of offence.

He stated that he visited the scene of offence situated at Jupaka Village and took photographs of the dead body of the deceased and the scene of offence, and that Ext.P-9 is the bunch of seven digital photographs along with C.D.

9 S.C. 184 of 13

PW.11 Sri Kethiri Raji Reddy, the person before whom the accused stated to have made an extra judicial confession, stated that the accused never came to him nor made any extra judicial confession admitting that he had killed his wife and sought for his help to surrender himself before the police, and that he does not know anything about this case. During cross-examination, he denied having stated to the police as in Ext.P-10.

12. PW.12 Rupireddy Niranjan Reddy, who is the panch witness for the inquest and the crime details form, stated that about one year back, the police called him and conducted an inquest over the dead body of the deceased in his presence vide Ext.P-11 and noticed some injuries on the person of the deceased and the panchas opined that the deceased died due to injuries. He further stated that the police also noted down the details of the scene under the crime details form vide

Ext.P-12 which bears his signature.

PW.13 Smt. Katikanapalli Shailaja, the V.R.O., of Jupaka Village, is the panch witness for the confession and recovery panchanamas of the accused. She stated that about one year back, on one day, the police called her to Huzurabad Police Station where the accused was in the custody of the police, that on interrogation in her presence, the accused confessed that he killed his wife by inflicting injuries with an axe, and that the police recorded the confessional statement of the accused in her presence and Ext.P-13 is the relevant portion in the confessional statement of the accused. She further stated that thereafter, the accused led them to his house where from he produced an axe and a knife near by heap of sticks and the police seized the said axe and knife under the cover of recovery panchanama vide Ext.P-14.

She identified M.O.1 as the axe, M.O.2 as the knife and M.O.3 as the 10 S.C. 184 of 13 banian seized by the police under Ext.P-14 at the instance of the accused from his house.

14. It may be noted that PW.13 is an official witness. During cross-examination, she admitted that on the instructions of concerned

M.R.O., she acted as panch witness. Therefore, it can be said that she is not an independent witness to act as panch witness for the confession and recovery panchanama of the accused. Though the police have cited one Sri Thallapalli Kumaraswamy as another panch witness for the confession and recovery panchanama of the accused, but the prosecution has given up his evidence. PW.13 further stated in her cross-examination that the place where M.Os.1 to 3 were seized was a house of asbestos roof and an open area which was covered by a compound wall and any one can visit and come back from the said house. Furthermore, PW.11 Sri Kethiri Raji Reddy before whom the accused is stated to have made an extra judicial confession about committing the murder of his wife and in pursuance of such confession he led the police and PW.13 and the said Sri Thallapalli Kumaraswamy to his house, turned hostile and did not support the prosecution case.

Therefore, in the absence of any corroborative evidence, it is not safe to place reliance on the solitary testimony of PW.13, who is an official witness, to connect the accused with the alleged seizure of M.Os. 1 to 3.

The entire case of the prosecution, subsequent to the inquest and the scene of offence panchanama having been conducted, has turned with a statement that PW.11 Kethiri Raji Reddy came along with the accused to the police station and exposed before PW.14 that the accused voluntarily approached him and confessed to have committed the murder of his wife and thereupon, PW.14, after procuring the presence of PW.13 and another recorded the confessional statement of the accused and on the basis of such confessional statement seized M.Os.1 11 S.C. 184 of 13 to 3. In the instant case, PW.11 did not support such prosecution version. Since the prosecution has failed to prove the alleged extra judicial confession of the accused said to have been made before PW.11, it would be unjust to believe the evidence of PW.13 insofar as the seizure and recovery of M.Os.1 to 3 from the possession of the accused to say that the said seizure and recovery of M.Os.1 to 3 is established within the parameters of law.

15. PW.15 Dr. Swathi is the Civil Asst. Surgeon who conducted autopsy over the dead body of the deceased. She stated that on 18.06.2012, on a requisition filed by the police, Huzurabad, she conducted an autopsy over the dead body of the deceased Bavu

Lachamma and noticed the following external injuries –

(i) deep laceration of 5x6 cms., and 6 cm., depth over left side of face below left eye extending upto brain matter involving fracture of left mandibular bone,

(ii) deep laceration of 3x4 cms., and 5 cm., depth over anterior part of neck extending upto trachea and esophagus and associated with fracture of hyoid bone involving major arteries and veins of neck on right side,

(iii) deep laceration of 2x3 cms., and 3 cm., depth on anterior part of neck extending upto trachea and carotid and internal jugular vein of left side and

(iv) deep laceration of 6xm cms., and back of neck upper part extending upto the superior ramus of scapular bone.

She further stated that she issued Ext.P-16 post-mortem examination report with an opinion that the cause of death of the deceased was due to hemorrhage and shock due to poly trauma. Thus, with the evidence of PW.15, the prosecution could prove to the extent of the fact that the death of the deceased is homicidal.

16. PW.14 Sri P. Srinivas, is the then Inspector of Police,

Huzurabad who registered the F.I.R., recorded the statements of 12 S.C. 184 of 13 witnesses, conducted an inquest on the dead body of the deceased, sent the dead body for postmortem examination, effected arrest of the accused on his surrender and recovered M.Os.1 to 3 from him and sent the accused for judicial remand. PW.16 Sri Ch. Nagender is the

Inspector of Police who filed the charge sheet against the accused.

Basing on the evidence adduced by the prosecution, it can be safely held that the death of the deceased Lachamma was homicidal, but there is no evidence to prove that the accused had killed her by inflicting injuries with an axe and a knife on the ground that she refused to satisfy his sexual desire. On the complaint lodged by PW.1 suspecting the involvement of her brother-in-law Abba Sammaiah in the death of her mother, the investigation of PW.14 initially revolved around the said

Sammaiah and he recorded the statements of witnesses. But, during the course of investigation, PW.11 came to the police station along with the accused and stated before PW.14 that the accused has made an extra judicial confession before him to the effect that he killed his wife and then the prosecution case took a volte-face. Thus, there are two versions of the prosecution case, one suspecting the involvement of the son-in-law of the deceased and the other basing on the extra judicial confession said to have been made by the accused before PW.11. But, except the evidence of the Doctor and the Investigation Officers, i.e.

PW.15, PW.14 and PW.16, which is not substantive evidence as per law to record and give any finding, there is no independent evidence available on record to establish the involvement of the accused in the killing of his wife Lachamma. Thus, the prosecution has failed to prove the alleged motive and the involvement of the accused person in the homicidal death of the deceased that occurred in the early hours of 18.06.2012.

13 S.C. 184 of 13

17. Considering the evidence placed before the Court, it must be held that the prosecution has failed to prove and establish the guilt of the accused beyond all reasonable doubt for the offences punishable under Sec.302 and 201 of IPC., and consequently he is entitled to benefit of doubt and acquittal. Accordingly, the point is answered.

18. In the result, the accused is found not guilty of the offences punishable under Sec.302 and 201 of IPC., and accordingly he is acquitted under Sec.235 (1) Cr. P.C. His bail bonds shall stand cancelled. M.Os.1 to 8 shall be destroyed after expiry of appeal time.

Dictated to personal Assistant, transcribed by him, corrected and

pronounced by me in the open court on this the 16th day of September, 2013.

Prl. Sessions Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION :

PW.1 : Thokala Premalatha.

PW.2 : Thallapally Sarangapani. PW.3 : Pudari Lingaiah.

PW.4 : Thallapally Danaiah. PW.5 : Bavu Sarojana.

PW.6 : Bavu Rajitha. PW.7 : Chepuri Prabhakar.

PW.8 : Kukkala Komuraiah.

PW.9 : Munja Srinivas. PW.10 : Vemula Vikram.

PW.11 : Kethiri Raji Reddy. PW.12 : Rupireddy Niranjan Reddy.

PW.13 : Katikanapalli Shailaja. PW.14 : Sri P. Srinivas, Inspector of Police.

PW.15 : Dr. Swathi, Civil Asst. Surgeon. PW.16 : Sri Ch. Nagender, Inspector of Police.

FOR THE DEFENCE : -NONE – 14 S.C. 184 of 13

EXHIBITS MARKED

FOR THE PROSECUTION:

Ext.P-1 Complaint given by PW.1. Ext.P-2 161 Cr. PC. Statement of PW.2.

Ext.P-3 161 Cr. PC. Statement of PW.3. Ext.P-4 161 Cr. PC. Statement of PW.4.

Ext.P-5 161 Cr. PC. Statement of PW.5. Ext.P-6 161 Cr. PC. Statement of PW.6.

Ext.P-7 161 Cr. PC. Statement of PW.7.

Ext.P-8 161 Cr. PC. Statement of PW.9. Ext.P-9 7 Nos. Photographs along with C.D.

Ext.P-10 161 Cr. PC. Statement of PW.11. Ext.P-11 Inquest Panchanama.

Ext.P-12 Crime Details Form. Ext.P-13 Relevant portion in the confession panchanama of the accused. Ext.P-14 Recovery Panchanama of the accused. Ext.P-15 F.I.R. in Cr. 102/2012 of Huzurabad P.S.

Ext.P-16 Postmortem Examination Report. Ext.P-17 RFSL Report.

FOR THE DEFENCE :

- Nil -

MATERIAL OBJECTS MARKED

M.O.1 : Axe. M.O.2 : Knife. M.O.3 : Banian. M.O.4 : Sari. M.O.5 : Blouse. M.O.6 : Petticoat. M.O.7 : Blood stained stone. M.O.8 : Control earth.

Prl. Sessions Judge Karimnagar.

-:-

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENT

CLAIMS TRIBUNAL-CUM- DISTRICT JUDGE : KARIMNAGAR

PRESENT:- SRI V. JAYA SURYA, B.Com., B.L.,

CHAIRMAN, MACT-CUM-DISTRICT JUDGE,

KARIMNAGAR.

FRIDAY, THE 13 th DAY OF SEPTEMBER, 2013

ORIGINAL PETITION No. 49 OF 2010

Between :-

1.Edla Narsaiah, S/o Rajaiah, aged 43 yrs., Occ : Agriculture,

2.Edla Komuravva, W/o Narsaiah, aged 39 yrs., Occ : Agriculture, Both are R/o Samudrala Village, Koheda Mandal, Karimnagar District. …PETITIONERS.

A n d

1.Devaraju Ramana Chary, S/o Saraiah, aged 23 yrs., Occ : Driver of Tata Sumo bearing No.AP-01-W-0765, R/o H.No.27-171, Hamaliwada, Mancherial, Adilabad District.

2.Boini Thirupathi, S/o Lingaiah, aged 30 yrs., Occ : Owner of Tata Sumo bearing No.AP-01-W-0765, H.No.27-112, Hamaliwada, Mancherial, Adilabad District.

3.The Reliance General Insurance Company Ltd., represented by its Branch Manager, 3rd floor, Kyas Tower, Ambedkar Road, Court Chowrastha, Karimnagar (Policy bearing No.1805792338001701 valid from 29.03.2009 to 28.03.2010).

…RESPONDENTS.

PETITION UNDER SECTION 166 (1) (c) of M.V. ACT

This petition coming on before me for final hearing in the presence of Sri A. Krishna Murthy, Advocate for the petitioners, Sri K.V. Ram Reddy, Advocate

for the respondent No.1, Smt. A. Madhavi, Advocate for the respondent No.2

and of Sri Ch. Venkateshwar Rao, Advocate for the respondent No.3; having been heard and having stood over for consideration till this day, the Court passed the following :-

-: A W A R D :-

The petitioner No.1, the father and the petitioner No.2, the mother of the deceased Edla Thirupathi, who died in a motor vehicle accident that occurred on 24.05.2009, at about 1530 hours, near

Padmanayaka Old Age Home, at the outskirts of Irukulla Village, have filed this petition under Section 166 (1) © of the Motor Vehicles Act claiming a compensation of Rs.8,00,000/- together with an interest @ 12% per annum from the date of filing of the petition till the date of 2 realization from the respondents No.1 to 3, in view of the facts and circumstances enumerated in the petition.

2. The case of the petitioners as set out in the claim petition to the extent relevant for disposal of the matter on hand is extracted hereunder :-

On 24.05.2009, while the deceased Edla Thirupathi and his friend Ravinder Reddy were proceeding on a Hero Honda motorcycle bearing No.AP-28-DA-0157 to meet their friend at Godavarikhani, on the way at about 1530 hours, when they reached near Padmanayaka Old Age Home, at the outskirts of Irukulla Village, the respondent No.1 came driving the Tata Sumo bearing No.AP-01-W-0765 in a rash and negligent manner with high speed and dashed against their motorcycle from opposite direction as a result of which, both of them sustained grievous injuries. Immediately after the accident, they were shifted to Govt. Civil Hospital, Karimnagar in 108 ambulance from where

Edla Thirupathi was shifted to Gandhi Hospital, Hyderabad where he succumbed to the injuries on 29.05.2009 while undergoing treatment.

On receipt of the complaint, the police Karimnagar Rural registered a case in Cr. No.170/2009 under Sec.304-A and 338 of

IPC., against the respondent No.1 and later filed the charge sheet against him for the said offences.

As on the date of accident, the deceased Edla Thirupathi was aged 24 years and maintaining good health and had completed ITI course. He was working as Technician in Sai

Telecommunications, Hyderabad and was drawing a salary of

Rs.10,000/- per month. Had he not died in the accident, he would have provided a better future to the petitioners at their old age.

Due to the untimely death of the deceased, the petitioners have lost their dependency and suffered a great mental shock.

Therefore, the petitioners are entitled to a total compensation of Rs.8,00,000/- from the respondents.

3

The respondent No.1 who caused the accident was under the employment with the respondent No.2 and the vehicle in question had been validly insured with the respondent No.3 Insurance Company. Therefore, the respondents No.1 to 3 are jointly and severally liable to pay the compensation to the petitioners.

3. The respondents No.1 and 2, the driver and the owner of the offending vehicle, have filed separate counters with similar contents denying the allegations made in the claim petition and contending as extracted hereunder :-

The manner of the accident as narrated in the claim petition is false. The accident had occurred due to the negligence of the deceased himself while riding the motorcycle and there was no fault on the part of the respondent No.1. Though the respondent

No.1 had given a complaint against the rider of the motorcycle, the petitioners had managed the police and got registered a case against him. The age, occupation and income of the deceased are false. The amount of compensation claimed by the petitioners is excessive. The respondent No.1 was having a valid driving licence to drive the offending vehicle and the respondent No.2 had insured the said vehicle with the respondent No.3. Therefore, the respondent No.3 is liable to pay the compensation to the petitioners.

4. The case of the respondent No.3 Insurance Company as set out in the counter is extracted in brief hereunder :-

The manner of the accident as narrated in the claim petition is false. The age, occupation and income of the deceased are false. The amount of compensation claimed by the petitioners is highly excessive and exorbitant. Since this was a case of collision between the motorcycle and the Tata Sumo, the accident might have occurred due to the negligence on the part of the rider of the motorcycle or the driver of the Tata Sumo or due to the composite negligence of both of them. Therefore, the owner and insurer of the motorcycle bearing No.AP-28-DA-0157 are necessary parties to the petition. The respondent No.1 was not having a valid and effective driving licence to drive the offending vehicle and as there was breach of conditions of insurance policy, the respondent No.3 4 is not liable to pay any compensation. The respondent No.3

Insurance Company seeks protection under Sec.147, 149 and 170 of M.V. Act.

5. On the basis of the pleadings in the claim petition as well as the counters, the issues mentioned below have been framed for trial :-

1. Whether the accident had occurred due to rash and negligent driving of driver of Tata Sumo bearing No.AP-01-W-0765 ?

2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom ?

3. To what relief?

6. Smt. Edla Komuravva, the petitioner No.2 and mother of the deceased, has examined as PW.1. One Sri Mengani Srinivas, an eye witness to the accident, was examined as PW.2. Sri P. Venugopal, Sr.

Executive (H.R.), Sri Sai Telecom Services, Hyderabad, where the deceased was working, was examined as PW.3. The petitioners have marked the certified copy of F.I.R., in Cr. No.170/2009 of P.S.,

Karimnagar Rural, the certified copy of M.V.I. Report, the certified copy of

Form-54, the certified copy of postmortem examination report, the certified copy of charge sheet, the certified copy of Inquest Report and the Service Certificate of the deceased issued by Sri Sai Telecom

Services, Hyderabad, as Exts.A-1 to A-7 respectively. On behalf of the respondents, Sri D. Rajasekhar, Deputy Manager (Legal) working in the

Office of the respondent No.3 Insurance Company was examined as RW.1 and Ext.B-1 the copy of insurance policy and Ext.B-2 the driving licence extract of the respondent No.1 were marked through him. Sri K.

Rajashekhar, Senior Asst., working in the Office of R.T.A., Mancherial, was examined as RW.2. Sri Boini Thirupathi, the respondent No.2, was examined as RW.3 and the extract of R.C. of the offending vehicle was marked through him as Ext.B-3.

5

7. Heard arguments from both sides.

8. ISSUE NO.1:-

The admitted facts and the facts which are not in dispute are as follows :-

The petitioners No.1 and 2 are the parents of the deceased

Edla Thirupathi, who died in a motor vehicle accident that occurred on 24.05.2009, at about 1530 hours, near Padmanayaka Old Age Home, at the outskirts of Irukulla Village, involving Tata Sumo bearing No.AP-01-W-0765. Basing on the complaint given by the brother-in- law of the injured Ravinder Reddy who was traveling on the pillion of the motorcycle being driven by the deceased, the S.H.O., of P.S.,

Karimnagar Rural registered a case in Cr. No.170/2009 under

Sec.304-A and 338 of IPC., and issued an F.I.R., vide Ext.A-1 the certified copy of F.I.R., and the police also filed the charge sheet vide

Ext.A-5 against the respondent No.1. The respondent No.2 was the owner while the respondent No.3 was the insurer of the crime lorry.

9. While it is the claim of the petitioners that the accident in question had occurred due to the rash and negligent driving of the offending Tata Sumo bearing No.AP-01-W-0765 by the respondent No.1, it is the specific case of the respondents that the accident had occurred due to the negligence of the deceased while riding the motorcycle. Smt.

Edla Komuravva, the petitioner No.2 and mother of the deceased, who has examined as PW.1, while filing an affidavit in lieu of her chief- examination, has reiterated what has been pleaded in the petition, but she was not eye witness to the accident. PW.2 Sri Mengani Srinivas was the eye witness to the accident and she stated that on 24.05.2009, while he was proceeding from Karimnagar to Sulthanabad in an auto, on the way, at about 1530 hours, when he reached near Padmanayaka Old Age

Home, at Irukulla Bridge, at that time, the deceased and his friend

Ravinder Reddy were also proceeding on their Hero Honda motorcycle bearing No.AP-28-DA-0157 to meet their friend at Godavarikhani, at the 6 same time, one Tata Sumo bearing No.AP-01-W-0765, being driven by the respondent No.1 in a rash and negligent manner came from opposite direction and dashed against their motorcycle due to which, both of them received grievous injuries. He further stated that he called for the services of 108 ambulance and shifted them to Govt. Civil Hospital,

Karimnagar and as per the advice of the doctors, the son of the petitioners was shifted to Gandhi Hospital, Hyderabad where he succumbed to the injuries on 29.05.2009 while undergoing treatment.

PW.2 categorically stated that the accident had occurred due to the rash and negligent driving of the offending Tata Sumo. His evidence as to the manner of the accident could not be shattered during the cross- examination. On the other hand, Sri Boini Thirupathi, the respondent

No.2, who examined himself as RW.3, stated that the alleged accident had occurred on 24.05.2009, at about 1530 hours, at the outskirts of

Irukulla Village, due to the riding of the rider of motorcycle bearing

No.AP-DA-0157 and there was no fault on the part of the respondent

No.1. He further stated that after the accident, the respondent No.1 had lodged a report before the police, but they did not register the case against the rider of the motorcycle, and that the petitioners have managed the police and got registered the case against the respondent

No.1. Admittedly, the respondent No.1 is the proper person to speak about the manner of the accident in which it had occurred, but he did not enter the witness box to rebut the evidence of PWs.1 and 2. Therefore, the evidence of RW.3 as to the manner of the accident cannot be believed. The evidence of PWs.1 and 2 as to the manner of the accident receives ample support from the contents of Ext.A-1 the certified copy of

F.I.R. and Ext.A-5 the certified copy of charge sheet whereunder the respondent No.1 was charged for the offences punishable under Section 304-A and 338 IPC.From these facts elicited, it is the opinion of the 7

Court that the accident that occurred on 24.05.2009 was on account of the rash and negligent driving of offending Tata Sumo by the respondent

No.1 and there was no negligence on the part of the deceased in riding his motorcycle. Therefore, it is held under this issue that the accident had occurred due to rash and negligent driving of offending Tata Sumo bearing No.AP-01-W-0765 by the respondent No.1. Accordingly, this issue is answered.

10. ISSUE NO.2 :-

While claiming a sum of Rs.8.00 lakhs from the respondents in all heads mentioned specifically in the petition as compensation, the petitioners specifically pleaded that the deceased was aged 24 years and having completed the ITI Course, he was working as Technician in Sri Sai

Telecom Services, Hyderabad and was drawing a salary of Rs.10,000/- per month. In support of their claim, the petitioners have examined

PW.3 Sri P. Venugopal, Sr. Executive (H.R.) of Sri Sai Telecom Services,

Hyderabad where the deceased was working. He stated that the deceased Thirupathi was appointed in their organization as Electrician on 01.05.2008 and continued as such till his death in the accident. He further stated that the deceased Tirupathi was paid an amount of

Rs.11,500/- per month towards salary for the month of May, 2009. He identified Ext.A-7 as the Certificate issued by their organization showing the emoluments paid to the deceased. PW.3 stated that had the deceased continued in service as an employee in their organization in

Hyderabad, he would have been paid salary of Rs.75,000/- per month.

In Ext.A-7, it is stated that the last drawn gross salary of the deceased was Rs.11,500/- per month and after statutory deductions like P.F. and

Professional Tax, his net salary was Rs.10,735/- per month. During cross-examination, except suggesting to PW.3 that Ext.A-7 is created and 8 issued to help the petitioners, nothing fruitful was elicited to discredit his evidence. Though PW.3 stated during cross-examination that their firm maintains relevant records, i.e. acquittance register and other registers, he did not bring any other record except Ext.A-7. Considering the evidence of PW.3 and the nature of job the deceased was doing, his income can be taken as Rs.7,500/- per month or Rs.90,000/- per annum.

11. To fix the compensation that shall be payable to the dependents of a person died in a road accident and the loss of life and dependency invocation of the table given in Second Schedule in Sec.163-

A of M.V. Act would be proper. In the decision rendered in the case of

Amrit Bhanu Shali and others Vs. National Insurance Co. Ltd., reported in 2012 SAR (Civil) 708 Supreme Court, the Hon’ble Apex Court held that selection of multiplier is based on the age of the deceased and not on the age of the dependent, and that 50% of income is to be deducted towards personal expenses where the deceased was unmarried. Therefore, by following the decision cited supra, 50% amount from the annual income of the deceased shall be deducted towards personal expenses which he would have incurred for himself had he been alive. In the case on hand, the income of the deceased is assessed at Rs.90,000/- per annum and if 50% of the said amount is deducted, the loss of dependency comes to

Rs.45,000/- (Rs.90,000 – Rs.45,000) per annum. Coming to the age of the deceased, in Ext.A-4 the postmortem examination report and Ext.A-6 the inquest report, the age of the deceased is shown as 24 years. As claimed by the petitioners, the deceased had completed ITI Course and thus was an educated person, but they have not filed any Certificates to ascertain the actual age of the deceased. In the cause title of the claim petition, the petitioners have mentioned their age as 43 years and 39 years respectively. But, on seeing the photographs of the petitioners 9 affixed to the claim petition and their physical appearance, it can be easily assessed that they are aged more than fifty years. Therefore, in the absence of any cogent evidence, it can be safely held that the deceased was within the age range of 26 to 30 years. Following the decision cited supra ( 2012 SAR (Civil) 708 Supreme Court), the age of the deceased can be taken into consideration to pick up the multiplier applicable. In the decision rendered in the case of Sarla Verma and others Vs Delhi Transport Corporation and another’s case (2009 ACJ 1298) their lordships have drawn a structured formula according to which, for a person who is aged between 26 to 30 years, the multiplier applicable as mentioned in Column No.4 is ‘17’. Therefore, the petitioners are entitled to a compensation of Rs.7,65,000/- under the head loss of life and loss of dependency.

12. Apart from the above, the petitioners are also entitled to a sum of Rs.5,000/- towards funeral expenses, a sum of Rs.5,000/- towards transportation charges and a sum of Rs.25,000/- towards loss of love and affection, totally a sum of Rs.35,000/- towards non-pecuniary damages. Thus, the petitioners are entitled to a total compensation of

Rs.8,00,000/-.

13. Coming to the aspect of liability, it is a fact that the respondent No.1 was the driver of the offending Tata Sumo which has caused the accident. The respondent No.2 was the owner of the said vehicle and he had insured it with the respondent No.3 Insurance

Company. The respondent No.3 Insurance Company pleaded in its counter that the respondent No.1 was not having a valid driving licence to drive the offending vehicle. In support of its claim, the respondent

No.3 Insurance Company has examined its Deputy Manager (Legal) Sri 10

D. Rajasekhar, as RW.1. While admitting issuance of Ext.B-1 insurance policy to the offending vehicle bearing No.AP-01-W-0765 covering the period from 29.03.2009 to 28.03.2010, RW.1 stated that the offending vehicle is a transport vehicle which is meant for carrying passengers and the driver by name Ramana Chary (the respondent No.1) was not holding transport badge to drive the said vehicle as on the date of accident. He further stated that their company obtained the extract of driving licence particulars of the respondent No.1 from Addl. Licensing

Authority, Mancherial vide Ext.B-2 whereunder he was authorized to drive LMV and motorcycle with gear for non-transport, which was valid from 11.12.2008 to 10.12.2028 and he was not authorized to drive the transport vehicle. During cross-examination, RW.1 admitted that the vehicle Tata Sumo comes under light motor vehicle and the respondent

No.1 was authorized to drive light motor vehicle (non-transport). A perusal of Ext.B-2 shows that the respondent No.1 was authorized to drive motorcycle with gear (non-transport) and LMV (non-transport). In support of its claim, the respondent No.3 Insurance Company also examined Sri K. Rajashekhar, the Senior Assistant working in the Office of R.T.A. Mancherial, as RW.2. He stated that as per Ext.B-2 driving licence extract issued by their office, the respondent No.1 was authorized to drive motorcycle with gear and LMV (non-transport) while the offending vehicle bearing No.AP-01-W-0765 is a transport vehicle, and that as per Ext.B-2, the respondent was not authorized to drive the transport vehicle. During cross-examination, RW.2 admitted that the vehicle which was registered as transport vehicle comes under the category of light motor vehicle. On the other hand, the respondent

No.2 who is the owner of the offending vehicle and who examined himself as RW.3, stated that the respondent No.1 was having a valid driving licence as on the date of accident. During cross-examination by 11 the learned counsel for the respondent No.3, he stated that his Tata

Sumo vehicle was registered as transport vehicle. In support of his claim, RW.3 filed Ext.B-3 extract of R.C. of the offending vehicle bearing

No.AP-01-W-0765. A perusal of Ext.B-3 shows that the offending vehicle was classified as Motorcab – LMV.

14. Learned counsel for the respondent No.3 Insurance Company placed reliance on a decision rendered in the case of New India

Assurance Co. Ltd., Vs. G. Sampoorna and others reported in (2010 (4)

ALD 586) wherein the Hon’ble High Court of A.P., held that if the driver was not holding a valid driving as on the date of accident, as the statute itself excludes insurer’s liability in such a case, the fact that the claimant being a third party is not a privy to insurance policy between insurer and owner, has no relevance. On the other hand, the learned counsel for the petitioners placed reliance on a decision rendered in the case of S.

Iyyapan Vs. M/s United India Insurance Co. Ltd., and another in Civil

Appeal No.4834 of 2013 (arising out of SLP (Civil) No.5091/2009) wherein the Hon’ble Apex Court held as under :- ”…Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but for driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence.

In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.

12

In the instant case, admittedly the driver was holding a valid driving to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside…”

In the above case, the Hon’ble Apex Court, while dealing with the case where the driver holding a valid driving licence to drive a light motor vehicle was driving the maxicab, which means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward, held that the insurance company cannot disown its liability merely on the ground that the driver did not obtain endorsement in the driving licence to drive a commercial vehicle. In the instant case, the respondent No.1 was also holding a driving licence to drive light motor vehicle (non- transport) and he was driving the offending Tata Sumo at the time of accident. A perusal of Ext.B-3 the extract of R.C. shows that the offending Tata Sumo is classified as motorcab which means any motor vehicle constructed or adapted to carry not more than six passengers, excluding the driver, for hire or reward. RWs.1 and 2 admitted that the offending vehicle, i.e. Tata Sumo, is a light motor vehicle. Considering the evidence of RWs.1 and 2 and the contents of Ext.B-3 and following the principles laid down by the Hon’ble Supreme Court of India in the decision cited supra rendered in the case of S. Iyyapan Vs. M/s United

India Insurance Co. Ltd., and another, it can be safely held that the respondent No.1 was having a valid driving licence to drive the offending vehicle as on the date of accident and the respondent No.3 Insurance 13

Company cannot disown its liability to pay the compensation to the petitioners. Ext.B.1 is the copy of insurance policy which was issued by the respondent No.3 in the name of the respondent No.2 and it was valid from 29.03.2009 to 28.03.2010 and thus it was subsisting as on the date of accident that occurred on 24.05.2009 covering the risk of the offending vehicle. As the owner of the offending vehicle, the respondent

No.2 is vicariously liable for the acts of his driver, i.e. the respondent

No.1. The respondent No.3 as the insurer has to indemnify the liability of the respondent No.2 in the event of any eventualities, as per the terms and conditions of insurance policy. Therefore, the respondents

No.1 to 3 are jointly and severally liable to pay the above determined compensation to the petitioners. Accordingly, this issue is answered.

15. ISSUE No.3 :-

In the result, the petition is allowed, awarding a compensation of Rs.8,00,000/- (Rupees eight lakhs only) to the petitioners with costs and interest at 7.5% per annum from the date of petition till the date of actual deposit and the respondents 1 to 3 are jointly and severally liable to pay the same. The respondent No.3 is directed to deposit the said amount in to the Court within thirty days from the date of this award.

Out of the said amount, an amount Rs.4,00,000/- (Rupees four lakhs only) each is apportioned in favour of the petitioners No.1 and 2 equally.

On such deposit being made, the petitioners No.1 and 2 are permitted to withdraw half of the amount apportioned in their favour along with interest accrued on the entire amount and costs and the remaining amount shall be kept in fixed deposit in any nationalized bank in their names for a period of two years.

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Advocate fee is fixed at Rs.8,000/- (Rupees eight thousand) only.

Dictated to the Personal Asst., transcribed by him, corrected and

pronounced by me in open Court, on this the 13th day of September, 2013.

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

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONERS: FOR THE RESPONDENTS:

PW.1 : Smt. Edla Komuravva. RW.1 : Sri D. Rajasekhar. PW.2 : Sri Mengani Srinivas. RW.2 : Sri K. Rajashekhar. PW.3 : Sri P. Venugopal. RW.3 : Sri Boini Thirupathi.

EXHIBITS MARKED

FOR THE PETITIONERS:

Ext.A1 Dt.25.05.2009 C.C. of FIR in Cr.No.170/2009 of P.S., Karimnagar Rural. Ext.A2 Dt. C.C. of M.V.I. Report. Ext.A3 Dt. C.C. of Form-54. Ext.A4 Dt.29.05.2009 C.C. of Postmortem Examination Report. Ext.A5 Dt.30.06.2009 C.C. of Charge Sheet. Ext.A6 Dt.29.05.2009 C.C. of Inquest Report. Ext.A7 Dt.12.10.2009 Service Certificate issued by Sri Sai Telecom Services, Hyderabad.

FOR THE RESPONDENTS:

Ext.B-1 : Copy of insurance policy. Ext.B-2 : Copy of extract of driving licence of the respondent No.1. Ext.B-3 : Copy of extract of R.C. of vehicle bearing No.AP-01-W-0765.

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

-:-

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENT

CLAIMS TRIBUNAL-CUM- DISTRICT JUDGE : AT : KARIMNAGAR

PRESENT:- SRI V. JAYA SURYA, B.Com., B.L.,

CHAIRMAN, MACT-CUM-DISTRICT JUDGE,

KARIMNAGAR.

MONDAY, THE 16 th DAY OF SEPTEMBER, 2013

ORIGINAL PETITION No. 332 OF 2010

Between :-

1.Thadagonda Chandrakala, W/o Laxmirajam, aged 33 yrs., Occ : Household,

2.Thadagonda Simran, D/o Laxmirajam, aged 15 yrs., (Minor), Occ : Student, represented by her mother, next friend and guardian Thadagonda Chandrakala, i.e. Petitioner No.1 herein. Previously resided at Ithupally Village of Pegadapalli Mandal, Karimnagar District, now at residing at H.No.6-4-5, Karkhanagadda, Karimnagar. …PETITIONERS.

A n d

1.G. Narsimha Reddy, S/o Raghava Reddy, aged major, Occ : Driver of Tractor-trailer bearing No.AP-15-U-5526/5527, R/o H.No.2-10-813, Jyothinagar, Karimnagar.

2.Burra Narsaiah, S/o Gouraiah, aged 50 yrs., Occ : Owner of Tractor-trailer bearing No.AP-15-U-5526/5527, R/o H.No.9-1- 131/A, Bhagathnagar, Karimnagar Town and District.

3.Reliance General Insurance Company Ltd., represented by its Branch Manager, Wyra Road, Khammam Branch (Insurance Policy No.180508009322 valid from 25.11.2009 to 24.11.2010).

4.Thadagonda Ramya Bindhu, D/o Kanthaiah, aged 19 yrs., R/o Ithupally Village, Pegadapalli Mandal, Karimnagar District.

…RESPONDENTS.

PETITION UNDER SECTION 166 (1) (c) of M.V. Act

This petition coming before me for final hearing in the presence of Sri E. Dilleshwar Reddy, Advocate for the petitioners, Sri E. Raja Reddy and Sri V. Balakishan Rao, Advocate for the respondents No.1 and 2 and of Sri T.G. Singh, Advocate for the respondent No.3, the respondent No.4 having remained exparte, having been heard and having stood over for consideration till this day, the Court passed the following :

-: A W A R D :-

The petitioner No.1, the wife and the petitioner No.2, the minor daughter of the deceased Thadagonda Laxmirajam, who died in a motor vehicle accident that occurred on 27.03.2010, at about 2000 hours, near

Pullela Hospital, behind Civil Hospital, Karimnagar, arraying the sister of the deceased as the respondent No.4, have filed this petition under 2

Section 166 (1) © of the Motor Vehicles Act claiming a compensation of

Rs.6,00,000/- together with an interest @ 18% per annum from the date of filing of the petition till the date of realization from the respondents

No.1 to 3, in view of the facts and circumstances enumerated in the petition.

2. The case of the petitioners as set out in the claim petition to the extent relevant for disposal of the matter on hand is extracted hereunder :-

On 27.03.2010, in the evening hours, after attending the labour work, while the deceased Thadagonda Laxmirajam was returning home by walk, on the way, at about 08.00 P.M., when he reached near Pullela Hospital, behind Civil Hospital, Karimnagar, at Doctors’ Street, Karimnagar, the respondent No.1 came driving the

Tractor-trailer bearing No.AP-15-U-5526/5527 from opposite direction in a rash and negligent manner with high speed and dashed against him as a result of which, he sustained severe bleeding injuries on his head besides other injuries all over the body. Immediately, he was shifted to Govt. Civil Hospital, Karimnagar, where he succumbed to the injuries on 28.03.2010 while undergoing treatment.

On receipt of the complaint, the police Karimnagar Traffic registered a case in Cr. No.36/2010 under Sec.304-A of IPC., against the respondent No.1 and later filed the charge sheet against him for the said offence.

As on the date of accident, the deceased Laxmirajam was aged 38 years and maintaining good health. He was working as labourer and earning a sum of Rs.6,000/- per month and contributing the same to his family.

Due to the untimely death of the deceased, the petitioners have suffered great mental shock and lost their source of dependency. Therefore, the petitioners are entitled to a total compensation of Rs.6.00 lakhs from the respondents.

After the death of the deceased in the accident on 28.03.2010, the parents of the deceased by name Thadagonda

Kanthaiah and Thadagonda Durgamma who were alive then, did 3 not cooperate with the petitioners in filing the claim petition and on the other hand, they filed PLC (S.R.) No.694/2010 before the

District Legal Services Authority, Khammam showing the petitioner No.1 as the respondent No.3 without her knowledge and consent with an intention to harass her, though the accident had occurred at Karimnagar and the driver and the owner of the offending vehicle reside within the jurisdiction of this Court. Therefore, the petitioner No.1 preferred an appeal and the

Hon’ble High Court of A.P., in its Order passed in CMA

No.526/2010, dt.04.02.2011 transferring the said PLC (S.R.)

No.694/2010 from the District Legal Services Authority,

Khammam to the District Legal Services Authority, Karimnagar.

The deceased along with the petitioners was residing at Karimnagar separately from his parents, while the respondent

No.4 was living with her parents by the date of death of the deceased. The deceased was the elder brother and his three younger brothers are living separately and the respondent No.4 is living with them by doing a private job and as such, she is not dependent on the deceased and therefore, not entitled to any amount.

The respondent No.1 who caused the accident was the driver of the offending vehicle working under the employment with the respondent No.2. The vehicle in question had been validly insured with the respondent No.3 Insurance and the insurance policy was subsisting by the date of accident.

Therefore, the respondents No.1 to 3 are jointly and severally liable to pay the compensation to the petitioners.

3. The respondents No.1 and 2, the driver and the owner of the offending lorry, filed a common counter denying the allegations made in the claim petition and contending as extracted hereunder :-

The manner of the accident as narrated in the claim petition is false. The age, occupation and income of the deceased are false. The respondent No.1 was the driver while the respondent No.2 was the owner of the vehicle which was insured with the respondent No.3 and the insurance policy was subsisting by the date of accident. Therefore, the respondent No.3 is liable to pay the compensation to the petitioners.The amount of compensation claimed by the petitioners is excessive.

4

4. The case of the respondent No.3 Insurance Company as set out in the counter is extracted in brief hereunder :-

The manner of the accident as narrated in the claim petition is false. The accident had occurred due to the contributory negligence of the deceased. The respondent No.1 was not having a valid and effective driving licence to drive the offending vehicle.

The police have registered the case against the respondent No.1 at the instance of the petitioners. The amount of compensation claimed by the petitioners is highly excessive and exorbitant. The respondent No.3 Insurance Company seeks protection under Sec.147, 149 and 170 of M.V. Act.

5. On the basis of the pleadings in the claim petition as well as counters, the issues mentioned below have been framed for trial :-

1. Whether the accident occurred due to rash and negligent driving of the Tractor-trailer bearing No.AP-15-U-5526/5527 by the respondent No.1 ?

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

3. To what relief?

6. Smt. Thadagonda Chandrakala, the petitioner No.1 and wife of the deceased, has examined as PW.1. Sri Macherla Mohan, an eye witness to the accident, was examined as PW.2. The petitioners have marked the certified copy of F.I.R., in Cr. No.36/2010 of P.S., Karimnagar

Traffic, the certified copy of Charge Sheet, the certified copy of inquest report, the certified copy of postmortem examination report, the certified copy of Form-54, the certified copy of M.V.I. Report, the certified copy of

Order in Transfer CMP No.526/2010 on the file of Hon’ble High Court of

A.P., Hyderabad, the Death Certificate of Thadagonda Durgamma issued by Registrar, Birth and Death, Municipal Corporation, Karimnagar and the

Death Certificate of Thadagonda Kanthaiah issued by Registrar, Birth and

Death, Municipal Corporation, Karimnagar, as Exts.A-1 to A-9 respectively. On behalf of the respondents, no oral evidence was 5 adduced but the learned counsel for the respondent No.3 has filed copy of insurance policy which was marked as Ext.B-1 with consent.

7. Heard arguments from both sides.

8. ISSUE NO.1:-

The admitted facts and the facts which are not in dispute are as follows :-

The petitioner No.1 is the wife while the petitioner No.2 is the minor daughter and the respondent No.4 is the younger sister of the deceased Thadagonda Laxmirajam, who met with an accident that occurred on 27.03.2010, at about 2000 hours, near Pullela Hospital, behind Civil Hospital, at Doctors’ Street, Karimnagar, involving

Tractor-trailer bearing No.AP-15-U-5526/5527. Basing on the complaint given by the petitioner No.1, the wife of the deceased, the

S.H.O., of P.S., Karimnagar Traffic registered a case in Cr. No.36/2010 under Sec.304-A of IPC., and issued an F.I.R., vide Ext.A-1 the certified copy of F.I.R., and later filed the charge sheet vide Ext.A-2 against the respondent No.1 for the said offence. The respondent No.1 was the driver, the respondent No.2 was the owner and the respondent No.3 was the insurer of the offending vehicle.

9. While it is the claim of the petitioners that the accident in question had occurred due to the rash and negligent driving of the offending Tractor-trailer bearing No.AP-15-U-5526/5527 by the respondent No.1, it is the case of the respondent No.3 Insurance

Company that the accident might have occurred due to the contributory negligence of the deceased himself. Smt. Thadagonda Chandrakala, the petitioner No.1 and wife of the deceased, who has examined as PW.1, while filing an affidavit in lieu of her chief-examination, has reiterated what has been pleaded in the petition, but she was not an eye witness to the accident. PW.2 Sri Macherla Mohan, was the eye witness to the accident and he stated that on 27.03.2010, after completion of his work at Karimnagar, while he was going to Mancherial Chowrastha in order to 6 board a bus, on the way, at about 08.00 P.M., when he reached near

Pullela Hospital, behind Civil Hospital, at Doctors’ Street, Karimnagar, he observed the deceased proceeding ahead of him by walk, at the same time, the tractor-trailer bearing No.AP-15-U-5526/5527 being driven by the respondent No.1 in a rash and negligent manner with high speed came from opposite direction and dashed the deceased as a result of which, he sustained severe bleeding injuries on his head besides other bleeding injuries all over the body and later he came to know that the deceased succumbed to the injuries on 28.03.2010 while undergoing treatment at the hospital. He categorically stated that the accident had occurred due to the rash and negligent driving of the tractor-trailer by its driver and there was no negligence on the part of the deceased as he was proceeding by the side of the road. His evidence as to the manner of the accident could not be shattered during cross-examination. The evidence of PWs.1 and 2 receives ample support from the contents of

Ext.A-1 the certified copy of F.I.R., and Ext.A-2 the certified copy of charge sheet whereunder the respondent No.1 was charged for the offence punishable under Section 304-A of IPC. Though the respondent

No.3 in its counter pleaded that the accident had occurred due to the negligence of the deceased himself, it did not adduce any evidence to prove the same. In the absence of any evidence to the contrary, it is the opinion of the Court that the accident that occurred on 27.03.2010 was on account of the rash and negligent driving of offending tractor- trailer by the respondent No.1 and there was no negligence on the part of the deceased. Therefore, it is held under this issue that the accident had occurred due to rash and negligent driving of offending Tractor- trailer bearing No.AP-15-U-5526/5527 by the respondent No.1.

Accordingly, this issue is answered.

7

10. ISSUE NO.2 :-

While claiming a sum of Rs.6.00 lakhs from the respondents in all heads mentioned specifically in the petition as compensation, the petitioners specifically pleaded that the deceased was aged 38 years and was working as labourer and earning a sum of Rs.6,000/- per month.

But the petitioners have not adduced any evidence to prove the occupation and income of the deceased. It is stated in Ext.A-1 the F.I.R.

and Ext.A-2 the charge sheet that after attending the labour work while the deceased was returning home, he met with the accident. During cross-examination, PW.1 stated that her husband used to work as a labourer under the building works contractor and he was a daily wage worker. In the absence of any evidence to the contrary, it can be safely held that the deceased was a labourer and his income can be taken as

Rs.4,500/- per month or Rs.54,000/- per annum.

11. To fix the compensation that shall be payable to the dependents of a person died in a road accident and to fix the loss of life and dependency invocation of the table given in Second Schedule in

Sec.163-A of M.V. Act has been suggested. The petitioners stated in their claim petition that the respondent No.4 is the younger sister of the deceased but she is residing separately along with her other brother and doing a private job and not dependent on the income of the deceased.

The petitioners further stated that the other three younger brothers of the deceased are living separately. The petitioners also filed Exts.A-8 the

Death Certificate of Thadagonda Durgamma, the mother of the deceased, and Ext.A-9 the Death Certificate of Thadagonda Kanthaiah, the father of the deceased. A perusal of Ext.A-7 shows that the petitioner No.1 herein, while the parents of the deceased were alive, filed a transfer petition in Trans. Civil Misc. Petition No.526/2010 and the 8

Hon’ble High Court of A.P., Hyderabad passed Orders, dt.04.02.2011

transferring the PLC (SR) No.694/2010 filed by her parents-in-law and the respondent No.4 herein before the District Legal Services Authority,

Khammam to the District Legal Services Authority, Karimnagar.

Irrespective of the fact whether or not she was not a dependent on the income of the deceased, inspite of notice being served on his brother, the respondent No.4 did not appear before the Court and file the counter and as such, she was set exparte. Thus, the number of dependent family members on the income of the deceased can be taken as two. In the decision rendered by the Hon’ble Supreme Court of India in the case of

Sarla Verma and others Vs Delhi Transport Corporation and another’s case (2009 ACJ 1298), their lordship have held that 1/3rd amount from the annual income of the deceased shall be deducted towards personal expenses of the deceased which he would have incurred for himself had he been alive where the number of dependent family members is 2 to 3.

If that is done, the loss of dependency comes to Rs.36,000/- (Rs.54,000 – Rs.18,000) per annum. The petitioners claimed that the deceased was aged 38 years by the date of his death. In Ext.A-3 the Inquest Report and Ext.A-2 the charge sheet, the age of the deceased is shown as 38 years. Therefore, in the absence of any evidence to the contrary, the age of the deceased can be taken as 38 years as on the date of accident.

In the decision cited supra, their lordships have also drawn a structured formula according to which, for a person who is aged between 36 to 40 years, the multiplier applicable as mentioned in Column No.4 is ‘15’.

Therefore, the petitioners are entitled to a sum of Rs.5,40,000/- towards compensation for the loss of life and loss of dependency.

12. Apart from the above, the petitioners are also entitled to a sum of Rs.5,000/- towards funeral expenses, a sum of Rs.5,000/- 9 towards transportation charges, a sum of Rs.15,000/- towards loss of estate and the Petitioner No.1, wife of the deceased, is entitled to a sum of Rs.15,000/- towards loss of consortium, totally a sum of Rs.40,000/- towards non-pecuniary damages. Thus, the petitioners are entitled to a total compensation of Rs.5,80,000/-

13. Coming to the aspect of liability, it is a fact that the respondent No.1 as the driver of offending tractor-trailer bearing No.AP- 15-U-5526/5527 was under the employment with the respondent No.2, the owner who insured the crime vehicle which has caused the accident.

Therefore, as the owner of the crime vehicle the respondent No.2 is vicariously liable for the acts of his driver, i.e. respondent No.1. Though the respondent No.3 Insurance Company pleaded in its counter that the respondent No.1 was not having a valid driving licence, Ext.A-5 Form

No.54 shows that the respondent No.1 was having a valid driving licence to drive the offending vehicle, which was valid upto 18.05.2012. Ext.B.1 is the copy of insurance policy valid from 25.11.2009 to 24.11.2010 and thus it was subsisting as on the date of accident that occurred on 27.03.2010 covering the risk of the offending vehicle. Therefore, the respondent No.3 being the insurer has to indemnify the liability of the respondent No.2 in the event of any eventualities, as per the terms and conditions of insurance policy. Therefore, the respondents No.1 to 3 are jointly and severally liable to pay the above determined compensation to the petitioners. Accordingly, this issue is answered.

14. ISSUE NO.3 :-

In the result, the petition is allowed in part awarding a compensation of Rs.5,80,000/- (Rupees five lakhs eighty thousand only) to the petitioners with costs proportionate and interest at 7.5% per 10 annum from the date of petition till actual deposit and the respondents No.1 to 3 are jointly and severally liable to pay the same.

The respondent No.3 is directed to deposit the said amount in to the

Court within thirty days from the date of this award.

Out of the said amount, an amount Rs.2,80,000/- (Rupees two lakhs eighty thousand only) is apportioned in favour of the petitioner

No.1 and an amount of Rs.3,00,000/- (Rupees three lakhs only) is apportioned in favour of the petitioner No.2.

On such deposit being made, the petitioner No.1 is permitted to withdraw half of the amount apportioned in her favour along with interest accrued on the entire amount and costs and the remaining amount shall be kept in fixed deposit in any nationalized bank in her name for a period of two years.

The amount apportioned in favour of the minor petitioner

No.2 shall also be kept in fixed deposit in her name in any nationalized bank till she attains majority and to utilize the same for her marriage.

However, the petitioner No.1 is permitted to withdraw the interest accrued on the F.D.R. once in every three months to meet the day to day expenses of the minor petitioner No.2.

The petition against the respondent No.4 is dismissed without costs.

Advocate fee is fixed at Rs.5,000/- (Rupees five thousand) only.

Dictated to the Personal Asst., transcribed by him, corrected and

pronounced by me in open Court, on this the 16th day of September 2013.

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

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONERS: FOR THE RESPONDENTS:

PW.1 : Thadagonda Chandrakala. - None - PW.2 : Macherla Mohan.

EXHIBITS MARKED

FOR THE PETITIONERS:

Ext.A1 Dt.28.03.2010 C.C. of FIR in Cr.No.36/2010 of P.S., Karimnagar Traffic. Ext.A2 Dt.12.04.2010 C.C. of Charge Sheet. Ext.A3 Dt.28.03.2010 C.C. of Inquest Report. Ext.A4 Dt.28.03.2010 C.C. of Postmortem Examination Report Ext.A5 Dt.12.04.2010 C.C. of Form No.54. Ext.A6 Dt.12.04.2010 C.C. of M.V.I. Report. Ext.A7 Dt.04.02.2011 Certified copy of Order in Trans. Civil Misc. Petition No.526/2010 on the file of Hon’ble High Court of A.P., Hyderabad. Ext.A8 Dt.07.09.2011 Death Certificate of Thadagonda Durgamma issued by Registrar, Birth and Death, Municipal Corporation, Karimnagar. Ext.A9 Dt.25.08.2011 Death Certificate of Thadagonda Kanthaiah issued by Registrar, Birth and Death, Municipal Corporation, Karimnagar.

FOR THE RESPONDENTS:

Ext.B-1 : Copy of Insurance Policy.

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

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IN THE COURT OF THE CHAIRPERSON, MOTOR VEHICLE

ACCIDENTS CLAIMS TRIBUNAL-CUM- DISTRICT JUDGE :

KARIMNAGAR

PRESENT:- SMT. P. SREE SUDHA, B.Com., M.L.,

CHAIRPERSON, MACT-CUM-

PRL. DISTRICT JUDGE,

KARIMNAGAR.

THURSDAY, THE 10 th DAY OF NOVEMBER, 2011

ORIGINAL PETITION No. 221 OF 2009

Between :-

1.Sircilla Jayamma @ Jaya, W/o late Joseph, aged 48 yrs., Occ : Household,

2.Sircilla Yobu Raj, S/o late Joseph, aged 33 yrs., Occ : Business, Both are R/o H.No.17-2-228, Indiranagar, Godavarikhani, Ramagundam Mandal, Karimnagar District. …PETITIONERS.

A n d

1.P. Suresh, S/o Narayana, aged major, Occ : Owner of Hero Honda Splendor Plus motorcycle bearing No.AP-15- S-1617, R/o H.No.4-2/G, Bodakuntapalli H/o Kannala, Kamanpur Mandal, Karimnagar District.

2.The United India Insurance Co. Ltd., represented by its Branch Manager, Dr. K.V. Rao Complex, Pragathinagar, Peddapally Branch (Insurance Policy No.050881/31/07/01/00600069 valid from 25.04.2007 to 24.04.2008). …RESPONDENTS.

PETITION UNDER SECTION 163-A OF M.V. ACT

This petition coming on 03.11.2011 before me for final hearing in the presence of Sri P. Murahari Rao, Advocate for the petitioners, Sri M. Anil Kumar, Advocate for the respondent No.1 and Sri K. Sanjeeva Reddy, Advocate for the respondent No.2, having been heard and having stood over for consideration till this day, the Court passed the following:-

- : A W A R D :-

Sircilla Joseph, aged 55 years, worked as Coal Cutter in

Singareni Collieries Co. Ltd., and took voluntary retirement. After his retirement he was working as Office Boy in T.D.P. Office and earning

Rs.3,000/- per month. Apart from that, he was also getting Rs.1,800/- per month towards pension and maintaining the family. The petitioner 2 O.P. No. 221 of 2009

No.1 is his wife and the petitioner No.2 is son. On 22.03.2008, while he was returning from the duty and entered on the main road at Gandhi

Chowk, the rider of Hero Honda Passion (Sic. Splendor) Plus motorcycle bearing No.AP-15-S-1617 along with two pillion riders came with high speed and in a rash and negligent manner and dashed him, as a result he fell down and sustained severe head injury besides other bleeding injuries all over the body. He was shifted to Area Hospital,

Godavarikhani, but the doctors declared that he was brought dead to the hospital. The police, Ramagundam Traffic registered a case in Cr.

No.36/2008 under Sec.304-A IPC., against the rider of the motorcycle.

Due to his sudden demise, the petitioners became destitute. The respondent No.1 is the owner of the motorcycle who permitted the rider and the vehicle is validly insured with the respondent No.2 and the policy was in subsistence, as such both of them are jointly and severally liable to pay the compensation. Therefore, the petitioners requested the Court to grant an amount of Rs.3,00,000/- towards compensation along with interest @ 18% per annum from the date of the petition till the date of realization.

2. In a counter filed by the respondent No.1, he denied all the material allegations and further submitted that his motorcycle was not involved in the accident and he never permitted any person to use his motorcycle and the allegations are leveled against him only to claim compensation. However, the vehicle is insured with the respondent

No.2 and he has to indemnify the liability.

3. In a counter filed by the respondent No.2, he denied all the material allegations except that are specifically admitted herein. He 3 O.P. No. 221 of 2009 disputed the manner of the accident, involvement of the crime vehicle and rash and negligent riding of the motorcycle by its rider. He also disputed the age, occupation and income of the deceased. He further stated that the rider of the motorcycle was going with two pillion riders and thus violated the terms of the policy and the rider has no valid driving licence. They have searched for the policy but it was not traced out and thus requested the Court to dismiss the petition.

4. Basing on the above pleadings, the following issues were settled for enquiry.

1. Whether the accident occurred due to rash and negligent driving of the rider of Hero Honda Splendor Plus motorcycle bearing No.AP-15-S- 1617 ?

2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom ?

3. To what relief ?

5. The wife of the deceased is examined as PW.1. Exts.A-1 to

A-6 were marked.

6. The Insurance Officer working in the Office of the respondent No.2 Insurance Company is examined as RW.1 and Exts.B-1 to B-4 were marked.

7. Heard both sides.

8. ISSUE NO.1:-

The brother-in-law of the deceased gave complaint immediately after the accident and stated that the deceased was working as Office Boy from past one year. On 22.03.2008, while he 4 O.P. No. 221 of 2009 was returning from the Office at 06.00 P.M., and entered on the main road near Gandhi Chowk, a motorcycle with two pillion riders came in a rash and negligent manner and dashed him. The said two pillion riders were women and they also sustained injuries. The motorcyclist fled away from the place and hence he shifted his brother-in-law and the said two women to the hospital but they went away from the hospital without any intimation. He has not stated the number of motorcycle in his complaint, but in the inquest report the name of the rider/accused and the number of the motorcycle was mentioned, as such, basing on his complaint charge sheet was filed against one P. Abhilash of

Godavarikhani who was riding the motorcycle at the time of accident.

It was also mentioned that the respondent No.1 handed over the vehicle to the said P. Abhilash and he has not verified whether Abhilash is having valid driving licence or not. Though the respondent No.1 stated in his counter that he has not entrusted the bike to anybody and the allegation is made against him only to claim compensation, he has not entered into the witness box and deposed accordingly. Therefore, considering the oral and documentary evidence placed by the petitioners, the Court feels that the accident was occurred out of use of the offending motorcycle and due to the rash and negligent riding of P.

Abhilash who was riding it with two pillion riders at the time of accident.

Accordingly, this issue is answered.

9. ISSUE NO.2 :-

PW.1 is wife of the deceased. She stated that her husband was aged 58 years, worked as Coal Cutter in S.C.C.L., took voluntary retirement and was working as Office Boy and earning Rs.3,000/- per month, but she has not examined anyone in support of her contention.

5 O.P. No. 221 of 2009

In the complaint, brother-in-law of the deceased stated regarding nature of work of the deceased, but there is no evidence regarding his income. It was suggested to PW.1 that the deceased was aged 60 years and the same was mentioned in Ext.A-2 inquest report and

Ext.A.4 Postmortem Examination Report, but she denied the same.

However, she has not placed any evidence regarding his correct age.

Therefore, considering the age of the deceased mentioned in the inquest report at the earliest point of time, the Court feels that he was aged 60 years as on the date of accident and thus the multiplier ‘8’ is to be considered. As there is no evidence regarding income, considering the age of the deceased, the Court feels that it is just and reasonable to take the notional income of Rs.15,000/- per annum, out of which, 1/3rd amount shall be deducted towards personal expenses of the deceased and thus the loss of dependency comes to Rs.10,000/- per annum. As on the date of filing the petition, the petitioner No.2 was aged 33 years and his occupation was shown as business, as such he is not dependent on the income of his father aged 60 years. Therefore, the petitioner

No.1 alone is entitled to a compensation of Rs.80,000/- (Rs.10,000x8) under the head loss of life and loss of dependency.

10. The petitioner No.1 is wife of the deceased and she lost her husband and thus she is entitled for an amount of Rs.15,000/- towards loss of consortium, an amount of Rs.15,000/- towards loss of estate and an amount of Rs.5,000/- towards transportation and funeral expenses, totally an amount of Rs.35,000/- towards non-pecuniary damages.

Thus, the total compensation payable to the petitioner No.1 comes to

Rs.1,15,000/-.

6 O.P. No. 221 of 2009

11. The respondent No.2 is owner and the respondent No.2 is the insurer of the offending motorcycle. The respondent No.2

Insurance Company examined its Insurance Officer as RW.1 and he stated that the policy was in existence as on the date of accident, but the rider of the motorcycle was not having valid driving licence and thus they are not liable to pay the compensation. He further stated that they issued Ext.B-2 notice to the rider, i.e. P. Abhilash and also to the owner with a direction to produce driving licence within 15 days.

Inspite of receipt of the notice, they have not turned up and submitted the driving licence. He filed acknowledgements under Exts.B-3 and

B-4. The notice issued to the respondent No.1 was served on one P.

Kavitha and the notice issued to P. Abhilash was received by him.

Though the respondent No.1 appeared before the Court and filed counter, he did not choose to enter into the witness box and depose in support of his contention.

12. The learned counsel for the petitioners relied upon a citation reported in 2011 (2) TAC 515 (A.P.)between D. Krishnaveni and others

Vs. Mohd. Sikander and another and argued that the respondents did not examine the owner and driver and mere filing of charge sheet against the driver under Sec.181 of M.V. Act is not a conclusive proof of the fact that he has no driving licence and thus he cannot avoid the liability. The learned counsel for the respondent No.2 also relied upon a citation reported in 2010 (4) ALD 586between New India Assurance

Co. Ltd., Tirupathi, Chittoor District Vs. G. Sampoorna and others and argued that their company is not liable to pay the compensation. As 7 O.P. No. 221 of 2009 per the citation reported in 2009 ACJ 581 : 2008 (3) TAC 748 (SC) between National Insurance Co. Ltd., Vs. Tulna Devi, it was held that in the absence of any evidence to prove that the owner had not taken any care before the vehicle was given to the driver to drive it and that he was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicle by a duly licensed driver, the liability of the Insurance Company to pay the compensation qua the owner of the vehicle cannot be doubted. A perusal of the above citation clearly shows that the burden of proof regarding the fact that whether the driver was having valid driving licence or not and the owner of the vehicle allowed the driver willfully and he failed to exercise reasonable care is on the Insurance

Company and thus the Company cannot disown its liability on the ground of breach of terms and conditions of the policy.

13. In this case, though the respondent No.1, owner of the vehicle, stated that he never entrusted the bike to anyone in his counter and the respondent No.2 stated that the rider of the motorcycle has no valid driving licence, both of them did not enter into the witness box and thus the Insurance Company failed to prove the negligence on the part of the owner that he allowed the rider without any proper verification and thus it cannot be exempted from the liability.

However, in Ext.A-5 M.V.I. Report, it was clearly mentioned that the driving licence is not produced and even RW.1 stated that they issued notice to the respondent No.1 and the rider of the motorcycle with a direction to produce the driving licence and thus it clearly shows that there was violation of terms of the insurance policy. Therefore, the 8 O.P. No. 221 of 2009

Court feels that it is just and reasonable to direct the Insurance

Company to pay the above compensation to the petitioner No.1 and then recover the same from the respondent No.1. Accordingly, this issue is answered.

14. ISSUE NO.3 :-

In the result, the petition is allowed in part, awarding a compensation of Rs.1,15,000/- (Rupees one lakh fifteen thousand only) to the petitioner No.1 with proportionate costs and interest at 7.5% per annum from the date of petition till the date of actual deposit.

The respondent No.2 is directed to satisfy the decree at first instance and deposit the said amount in to the Court within two months from the date of this award and then recover the same from the respondent

No.1.

On such deposit being made, the petitioner No.1 is permitted to withdraw the entire amount.

Since the petitioner No.2 is aged 33 years and his occupation is shown as business, he cannot be treated as dependent on the income of his deceased father, as such no amount is apportioned in his favour.

Advocate fee is fixed at Rs.1,000/- (Rupees one thousand) only.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open Court, on this the 10th day of November, 2011.

Chairperson, MACT-cum- Prl. District Judge, Karimnagar.

9 O.P. No. 221 of 2009

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONERS : FOR THE RESPONDENTS :

PW.1 : Sircilla Jayamma @ Jaya. RW.1 : S.V. Sainadh.

EXHIBITS MARKED

FOR THE PETITIONERS:

Ext.A-1 : dt.22.03.2008 C.C. of F.I.R. in Cr.No.36/2008 of P.S., Karimnagar Traffic. Ext.A-2 : dt.23.03.2008 C.C. of Inquest Report. Ext.A-3 : dt.23.04.2008 C.C. of Charge Sheet. Ext.A-4 : dt.23.03.2008 C.C. of Postmortem Examination Report. Ext.A-5 : dt.—C.C. of M.V.I. Report. Ext.A-6 : dt.23.04.2008 C.C. of Form No.54.

FOR RESPONDENTS :

Ext.B-1 : Copy of Insurance Policy. Ext.B-2 : Legal Notice. Ext.B-3 : Postal Acknowledgement. Ext.B-4 : Postal Acknowledgement.

Chairperson, MACT-cum- Prl. District Judge, Karimnagar.

-:-