Sri V.jaya Surya

1

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENT CLAIMS

TRIBUNAL-CUM-PRINCIPAL DISTRICT JUDGE: VISAKHAPATNAM.

PRESENT: SRI V.JAYA SURYA,

CHAIRMAN, MACT-CUM-DISTRICT JUDGE,

VISAKHAPATNAM.

MONDAY, the 24 th day of October, 2016.

M.V.O.P. NO.863/2011

Between: Smt Sabita Banik, W/o.late Paradeep Kumar Banik, Hindu, Aged 47 years, Housewife, Residing at D.No.58-15-122/4, Sri Sai Vihar Apartments, Santhi Nagar, N.A.D.Kotha Road, Visakhapatnam.

....Petitioner

And:

1. Sri K.Varahalamma, W/o.Tata Rao, Age not known to the petitioner, but major – owner of the Scropio bearing No.AP 31 AJ 9402, Residing at D.No.3-176, Adarsha Nagar, Visakhapatnam.

2. HDFC ERGO General Insurance Company Limited, C/o.HDFC Standard Life Insurance Corporation Limited, Represented by its Manager, Dwarakanagar, Visakhapatnam-530 016 Policy/Cover

Note NO.VP00581596000100, Valid from 24-02-2010 to 23-02-2011.

3. K.Janardhan Reddy, S/o.Buchi Reddy, Hindu, Age not known to the petitioner, but major, Owner of the Lorry Bearing Registration No.AP 24 X 3679, Residing at Aregudem, Chityada, Nalgonda District, Andhra Pradesh.

4.The New India Assurance Company Limited, Represented by its Manager, Regional Office, 2nd Floor, Pavan Paradise, Opp. Pollocks School, Dwarakanagar, Visakhapatnam. Bearing Policy No.61320131100100000283, Valid from 11-04-2010 to 10-04-2011.

5. Veeramalla Nani, S/o.Kanaka Raju, Hindu, Aged 26 years, Residing at H.No.45-47-56, Madeti Gardens, Akkayyapalem, Visakhapatnam-530 0166, (Driver of Scorpio bearing No.AP31 AJ 9402).

6. Bodapati Venkata Reddy, S/o.Sambareddy, Hindu, Aged 64 years, Residing at Purlakunta Village, Narayanapuram Mandal, 2 Nalgonda District. Cell No.9542558039 (Driver of lorry bearing registration No.AP 24 X 3679). (The Respondents 5 and 6 were added as per the Orders in

IA.1202/2015, Dt.25-08-2015).

..Respondents

This petition coming on before me for final hearing in the presence of SriK.SasibhushanaRao,Advocateforthepetitioner, Sri M.A.Satyanarayana, Advocate for the Respondent No.1, Sri M.Nagesh,

Advocate for Respondent No.2 and Sri T.H.Ramnath, Advocate for Respondent No.4, Respondents No.3, 5 & 6 having remained exparte and having been heard and having stood over for consideration till this day, the Court made the following:-

-: A W A R D :-

The petitioner, who is mother of the deceased Sri Ashish Kumar

Banik has filed this claim Petition under Sec.166 of Motor Vehicles Act read with Rule 455 of motor Vehicles Rules praying the court to issue a direction to the respondents No.1 to 6 to pay a sum of Rs.10,00,000/- as compensation together with an interest @ 18% per annum in the facts and circumstances enumerated in the petition.

2. The case of the petitioner as enumerated in the claim application to the extent relevant is, extracted hereunder:

The petitioner is the mother of the deceased Sri Ashish Kumar Banik. The deceased was aged 27 years, hale and healthy and working as Bank Officer in ICICI Bank, and earning Rs.16,749 per month (Gross salary), Rs.15,825/- per month (Net salary). On 19-06-2010 the deceased Sri Ashish Kumar Banik started from his house along with his friends in a Scorpio car bearing registration NO.AP 31 AJ 9402 and went to Upmaka village to attend the marriage of his friend on 20-06-2010 morning and after marriage, they left Upmaka and when they reached Thandala Dibba village of Yelamanchili Mandalam (NH.5) at about 6.10 hours, at that time one of the friends of 3 the deceased drove the Scorpio vehicle in a rash and negligent manner at high speed, dashed against the stationed lorry bearing registration No.AP 24 X 3679, which was parked negligently without taking any proper precautionary measures as a result of which the deceased died on the spot. The Yelamanchili Rural Police Station, Visakhapatnam registered a case in Cr.No.32/2010 under Section 304-A of IPC and the charge sheet was also filed against the drivers of both the vehicles i.e. Scorpio bearing registration NO.AP31 AJ 9402 and lorry bearing registration No.AP 24 X 3679.

The 1st respondent was the owner and the 2nd respondent was the insurer, and the Respondent NO.5 was the driver of the Scorpio bearing registration NO.AP31 AJ 9402, and the 3rd respondent was the owner and the 4th respondent was the insurer and the 6th respondent was the driver of the lorry bearing registration No.AP24 X 3679. All the Respondents NO.1 to 6 are jointly liable to pay the compensation to the petitioner.

3.The respondents NO.1, 3 5 and 6 remained exparte. The case of the respondent No.2 as set out in the counter to the extent relevant and necessary is extracted hereunder :

The driver of the Scorpio bearing No.AP 31 AJ 9402 i.e., R5 was not holding a valid and effective driving license, and driving vehicle without a valid and effective driving license amounts to breach of terms and conditions of the insurance policy. R1 being owner of the vehicle has intentionally and willfully handed over the vehicle to the driver who was not holding license and thus committed breach of conditions of policy., The accident was only due to the negligent act of the driver of 3rd respondent who stationed his lorry without taking any proper precautionary measures and there was no negligence on the part of R5, therefore, R3, R4 and R6 alone are liable to pay compensation to the petitioner. The compensation claimed by the petitioner is excessive and exorbitant. Hence, the petition is liable to be dismissed.

4.The case of the respondent No.4 as set out in the counter to the extent relevant and necessary is extracted hereunder :

4 The respondent nO.3 has not produced any copy of insurance policy, hence R4 is not liable to pay any compensation to the petitioner. As per MV Inspectors report, the R6- driver of the lorry was not possessing and valid driving license to drive the lorry, hence R4 is not liable to pay any compensation. The deceased was unmarried major son of the petitioner, it is well established that the age of the mother/petitioner must be taken into consideration while calculating the just and reasonable compensation, but not the age of the deceased. The lorry bearing NO.AP 24 X 3679 was not involved in the accident. The driver of the Scorpio i.e., R5 came in a rash and negligent manner at high speed probably in a drunken stage or sleepless condition and dashed against the backside of the lorry which was properly parked. More over the said driver of Scorpio i.e., R5 was not possessing any valid driving license, therefore, R1 and R2 are liable to pay compensation and no liability can be fixed on R3 and R4. Hence the petition is liable to be dismissed against R4.

5. Basing on the pleadings in the petition as well as the counter, the following issues were framed :

1. Whether the accident took place on 20-06-2010 at 6.10 hours, at Thandala Dibba Village on account of the rash and negligent driving by the driver of lorry bearing No.AP 24 X 3679 and the Scorpio bearing registration No.AP 31 AJ 9402 resulting in the death of Ashish Kumar ?

2. What was the age of the deceased ?

3. What were the earnings of the deceased ?

4. Whether the petitioner is entitled to any compensation if so to what extent and against whom ?

5. Whether the said lorry bearing No.AP 24 X 3679 and Scorpio bearing registration No.AP 31 AJ 9402 were insured with the 2 nd respondent and 4 th respondent, if so whether the policies were subsisting by the date of accident ?

6. Whether there were any violations of policy conditions ?

7.To what relief ?

6.The petitioner- Smt Sabita Banik, filed an evidence affidavit in lieu of her chief examination and has examined as P.W.1. In support of her 5 contention, the petitioner has examined Sri K.Damodhara Rao eye witness and Sri Satish Kumar Venisetty, Manager, ICICI MVP Colony Branch,

Visakhapatnam as P.W.2 and PW.3 respectively. The attested copy of the

F.I.R. in Cr.No.32/2010 of Yellamanchili PS u/sec.304-A of IPC, the attested copy of the post mortem report, the attested copy of inquest report, the attested copy of Motor Vehicle Inspector report, the attested copy of charge sheet, the attested copy of C Book of the AP31 AJ 9402, the attested copy of C Book of the AP24 X 3679, the attested copy of the driving license of the driver of AP24 X 3679, the original appointment letter issued by the ICICI bank (Six pages), the attested copy of the Legal heir certificate dated 05-10- 2010, the attested copy of death certificate dated 24-06-2010, the attested copy of degree certificate of the deceased, the copy of the intermediate certificate of the deceased and the copy of the salary certificate for the month of May, 2010 issued by the ICICI bank as A.1, A.2, A.3, A.4, A.5,

A.6, A.7, A.8, A.9, A.10, A.11, A.12, A.13 and A.14 respectively. Ex.X1 is the served summons. On behalf of respondent No.2 Sri V.Sankar Das,

Senior Manager, Legal Claims, HDFC ERGO General Insurance Company

Limited, Hyderabad, Smt Karri Varahalamma, owner of Scorpio AP 31 AJ 9402, Smt K.Nagamani, Senior Assistant, Regional Transport Office,

Visakhapatnam were examined as RW.1, RW.2 and RW.3 respectively. On behalf of respondent No.4 an evidence affidavit of Sri. Jagannadha Rao, the

Administrative Officer of R4 Insurance Company was filed as R.W.4, but as he did not stand for the test of cross examination, the evidence of RW.4 is eschewed. Through RW.1 the copy of insurance policy, relating to Scorpio registration NO.AP31 AJ 9402, the office copy of legal notice and acknowledgment are marked as Ex.R.1, R.2 & R.3. Through RW.3 the authorization letter and D.L. extract are marked as Exs.R.4 and R.5. On behalf of R4, the copy of policy of the lorry bearing registration No.AP 24 X 3679 and the rough sketch are marked with consent as Exs.R.6 and R.7 on 6 behalf of respondent No.4. ( Note: The authorization letter and the D.L.

Extract marked through the witness R.W.3 and the copy of policy of

the lorry No.AP 24 X 3679 and the certified copy of the rough sketch

marked on behalf of the respondent No.4 with consent were marked

as Ex.B3, B4, B5 and B6 wrongly, the same may be read as Ex.R4, R5,

R6 and R7 respectively)

7.Heard arguments from counsel for the parties.

8. ISSUE No.1:

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

The petitioner is the mother of the deceased Sri Ashish Kumar Banik. The deceased was aged 27 years, hale and healthy and working as Bank Officer in ICICI Bank, and earning monthly salary. On 19-06-2010 the deceased Sri Ashish Kumar Banik started from his house along with his friends in one Scorpio bearing registration NO.AP 31 AJ 9402 and went to Upmaka village to attend the marriage of his friend on 20-06- 2010 morning and after marriage, they left Upmaka and when they reached Thandala Dibba village of Yelamanchili Mandalam (NH.5) at about 6.10 hours, at that time one of the friend of the deceased drove the Scorpio vehicle in a rash and negligent manner at high speed, dashed against the stationed lorry bearing registration No.AP 24 X 3679 on its back, which was parked on the road, as a result the deceased died on the spot. The Yelamanchili Rural Police Station, Visakhapatnam registered a case in Cr.No.32/2010 under Section 304-A of IPC and the charge sheet also filed against the drivers of both the vehicles i.e. Scorpio bearing registration NO.AP31 AJ 9402 and lorry bearing registration No.AP 24 X 3679.

The 1st respondent was the owner and the 2nd respondent was the insurer, and the Respondent NO.5 was the driver of the Scorpio bearing registration NO.AP31 AJ 9402, and the 3rd respondent was the owner and the 4th respondent was the 7 insurer and the 6th respondent was the driver of the lorry bearing registration No.AP24 X 3679.

9.While it is the case of the petitioner that the accident in question had occurred due to the rash and negligent act of the respondents No.5 and 6 being the driver of the Scorpio bearing No.AP 31 AJ 9402 and the lorry bearing nO.AP 24 X 3679 parked on the road. The respondent no.2 and 4 /insurance companies have not disputed the occurrence of the accident.

However, P.W.1 -the petitioner and the mother of the deceased i.e., Smt

Sabita Banik, who filed an evidence affidavit in lieu of her chief-examination reiterated what has been pleaded in the claim petition and relied on Ex.A1 the attested copy of F.I.R. in Cr.No.32/2010 of Yelamanchili Rural PS, Ex.A2 the attested copy of Post Mortem Certificate, Ex.A3 the attested copy of inquest report, Ex.A4 the attested copy of the MV Inspectors report, and

Ex.A5 is the charge sheet. It is an admitted fact that the P.W.1 is not an eye witnesses to the accident. P.W.1 has also admitted that she is not an eye witness to the accident in her cross examination and in order to prove the said accident she has examined P.W.2 Sri Kadumula Damodara Rao, the alleged eye witness. P.W.2 has deposed that he was present at the time of the accident and witnessed that on 20.6.2010 morning the deceased and his friends left Upmaka and proceeding towards Visakhapatnam in Scorpio and when they reached Thandala Dibba village of Yelamanchili village, the driver of the Scorpio drove the said vehicle in a rash and negligent manner and dashed against one stationed lorry bearing NO.AP 24 X 3679 on its back, due to which the deceased died on the spot. In the cross examination he stated that he reached the accident place after 10 minutes of the accident, and he has not witnessed the accident. Hence the evidence of P.W.2 cannot be taken into consideration.

10. A perusal of complaint appended to the Ex.A1 attested copy of FIR shows that complaint was given by one Chevveti Moolayya, Talayari of 8 Thandala dibba village about the accident and basing on the said complaint police have registered a case against the respondent nO.5 i.e., driver of the offending vehicle i.e., Scorpio bearing No.AP 31 AJ 9402, and against respondents No./6 driver of the lorry bearing NO.AP 24 X 3679. Moreover, the Respondent NO.2&4 insurance companies have not denied the taking place of the accident and the death of the deceased and others in the said accident. Ex.A2 Post mortem report and Ex.A3 inquest report also reiterate that the reason for the death of the deceased is the injuries sustained in the accident. Therefore, in such circumstances, after careful examination of the material on record, it is the opinion of the tribunal that the respondent

No.5 driver- of the offending vehicle i.e., Scorpio bearing No.AP 31 AJ 9402 drove the said vehicle in a rash and negligent manner and dashed against the stationed lorry bearing No.AP 24 X 3679 which was parked by its driver /Respondent NO.6 without taking any precautionary measures, on account of which the deceased who was traveling in the Scorpio sustained grievous injuries and succumbed to the injuries. Thus, the respondents No.5 and 6 was responsible for the accident. Accordingly the issue is answered.

11. ISSUES NO.2 to 4:

While claiming a sum of Rs.10,00,000/- from the respondents 1 to 6 under all heads mentioned specifically in the claim petition as compensation, the petitioner has specifically pleaded that the deceased was aged 27 years as on the date of the accident. Ex.A2 the attested copy of the post mortem report, Ex.A3 the attested copy of the Inquest report and Ex.A5 the charge sheet go to show that the deceased was 27 years old as on the date of accident. The petitioner has though filed Ex.A12 Copy of Degree Certificate and

Ex.A13 copy of intermediate Certificate, they do not contain the date 9 of birth of the deceased. Therefore, the age of the deceased is taken

as 27 years as on the date of accident as shown in Ex.A2, A3 and

A5.

12. It is the claim of the petitioner that the deceased was working as Bank Officer in ICICI bank and earning Rs.16,749/- per month as gross salary and contributing all his earnings for the family. To substantiate her contention, the petitioner has filed Ex.A9 the original appointment letter of the deceased issued by ICICI Bank and Ex.A14

Copy of the salary certificate of the deceased. She has also examined

P.W.3 Sri Satish Kumar Venisetty who is Manager of ICICI MVP

Colony Branch, and the said witness supported the case of the petitioner. In cross examination, P.W.3 has denied the suggestion that Ex.A14 is fabricated one. In such circumstances, the monthly income of the deceased can be taken as Rs.16,749/- per month as a Bank official. Thus the annual income of the deceased comes to

Rs.2,00,988/- (16,749 x 12).

13. To fix compensation that shall be payable to the dependants of a person died in a road accident and to fix loss of life and dependency, invocation of the table given in the Second Schedule given in Section 163-A of the Motor Vehicles Act, has been suggested. 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

(2009 ACJ 1298) their Lordships have held that half of the 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, if the deceased is an unmarried 10 person. If that is done, the loss of dependency comes to

Rs.1,00,494/- (Rs.2,00,988/- minus ½ i.e., Rs.1,00,494/-) per annum. IN the decision cited supra, it was also held that if the deceased was an employee below the age of 30 years future prospects at 50% of his annual income is to be awarded as the deceased person would have contributed to his family. If the future prospects are calculated the annual income of the deceased comes to

Rs.1,50,741/- (1,00,494 + 50,247) In the decision cited supra, their Lordships have also drawn a structured formula according to which, for a person who is aged in between 26 to 30 years, the multiplier applicable as mentioned in column no.4 is “17”. Therefore, the petitioner is entitled to a sum of Rs.25,62,597/- (Rs.1,50741 x

17) towards compensation for the loss of life and dependency.

14. Apart from the above, the petitioner is also entitled to a sum of Rs.5,000/- towards funeral expenses, a sum of Rs.5,000/- towards transport charges, and Rs.1,00,000/- for loss of love and affection, thus totally a sum of Rs.1,10,000/- towards non- pecuniary damages. The petitioner has filed Ex.A10 Proper Person

Certificate which shows that the deceased has a brother and mother i.e., petitioner herein and the said brother has expressed his consent to issue the proper person certificate in favour of the petitioner, hence the petitioner is alone entitled to receive the compensation in this claim petition. Thus, the petitioner in all is entitled to a sum of

Rs.26,72,597/- (25,62,597+1,10,000) towards compensation from the respondents. However, as the petitioner has specifically mentioned in the petition that she is restricting her claim to 11 Rs.10,00,000/- the petitioner is awarded a sum of Rs.10,00,000/- (Rupees ten lakhs only) towards compensation. The issues NO.2 to 4 are answered accordingly.

ISSUES NO.5 and 6 :

15. Coming to the issue of liability, it is an undisputed fact that the accident was caused due to the negligent act of the respondent No.5 & 6 i.e., the drivers of Scorpio and lorry. It is the contention of R2- insurance Company that the driver of the Scorpio was not possessing valid and effective driving license as on the date of the accident. The insurance company/R2 has examined R.W.1 Sri V.Sankar Das, Sr.

Manager, Legal Claims of R2 Insurance company and he deposed that

Ex.R1 the insurance policy was valid and subsisting, but as the driver of the offending vehicle Scorpio was not holding any valid driving license, R2 is not liable to pay any compensation. In support of its contention it has examined R.W.2 Smt Karri Varahalamma/R1 owner of the Scorpio bearing No.AP 31 AJ 9402 and she stated that she does not know whether R5 was possessing valid driving license or not as on the date of accident, but the offending vehicle Scorpio was insured with R2 insurance company and the policy was subsisting as on the date of accident. Further R2 has examined R.W.3 Smt K.Nagamani,

Senior Assistant R.T.O., Visakhapatnam and she deposed that Ex.R5 is the driving license extract and according to the same, the driver of the offending vehicle i.e., R5 was holding a license to drive MCWG i.e., Motor cycle with gear and he was not holding any license to drive a four wheeler as per the records of RTA, Visakhapatnam. As per 12 Ex.A4 MV Inspectors report, the driver of the Scorpio has not produced any driving license.

16.At this juncture the R2 insurance company has placed reliance various decisions rendered by Hon'ble Apex Court and various High

Courts stating that if the driver of the offending vehicle is found not possessing any valid and effective driving license as on the date of the accident, the insurance company is exempted from paying any compensation. IN the instant case, though R.W.2 admitted that she does not know whether the driver had license or not on the fateful day, she stated that the vehicle was insured with R2 insurance company and the insurance company is liable to pay the awarded compensation if any. R.W.3 Smt K.Nagamani Sr., Assistant from RTA

Office Visakhapatnam stated that as per the records, the R5 was in possession of MCMG DL which means he can drive a motor cycle with gear, but not a four wheeler and though Ex.R5 DL Extract which was also filed shows that R5 was in possession of MCWG DL as on the date of accident. IN the present case, the R2 insurance company has not examined R5 the driver of the Scorpio to prove that he is not in possession of driving license to drive a four wheeler. Admittedly, as seen from Ex.A5 Charge sheet the driver of Scorpio was not charged for driving a four wheeler without possessing a valid license, that shows that R5 was in possession of a valid driving license as on the date of accident. R5 being the driver of the vehicle is liable to pay compensation and R1 being owner of the said vehicle is vicariously liable to pay the compensation, likewise R2 being the insurer and 13 when there is valid and subsisting policy as per Ex.R1, is liable to indemnify R1.

17. It is the contention of R4 that the lorry bearing NO.AP 24 X 3769 was stationed by the side of the road and the R5 might have driven the Scorpio in a drunken state or sleepless state and there was no negligence on the part of R6 driver of the lorry. R4 has not examined either R3 or R6 to prove its stand. On the other hand as seen from the record, Ex.A5 charge sheet was filed against R6 also for his negligent parking of the vehicle without taking any precautionary measures. Possession of valid driving license by R6 is not disputed as

Ex.A8 copy of Driving license shows that R6 was possessing valid driving license as on the date of accident. Respondent NO.4 has filed

Ex.R6 true copy of the policy which shows that the insurance policy was subsisting and valid as on the date of accident. In such circumstances, R3, R4 and R6 cannot be exempted from paying the compensation to the petitioner.

18. On the foregoing discussion, as all the respondents are jointly and severally liable to pay the compensation, the R2 and R4 are directed to pay the awarded compensation at 50:50 ratio.

Accordingly, the issues are answered.

19. Issue No.8:

In the result, the petition is allowed awarding a sum of

Rs.10,00,000/- (Rupees ten lakhs only) towards compensation to the petitioner with costs and interest @ 7.5% p.a., from the date of the petition till the actual deposit and the respondents 1 to 6 are 14 jointly and severally liable to pay the same. The respondents No.2 and 4 are directed to deposit the said amount into court within thirty days from the date of this Award at 50:50 ratio.

On such deposit, the petitioner is permitted to withdraw an half of the amount along with interest accrued on her share amount and costs, and the remaining amounts shall be kept in fixed deposit in any nationalized bank for a period of two years. Advocate’s fee is fixed at

Rs.10,000/-.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in Open Court, this the 24th day of October,

2016.

Chairman, MACT-cum- Principal District Judge,

Visakhapatnam.

Appendix of Evidence

No. of witness examined

Petitioner : Respondents :

P.W.1Smt Sabita Banik R.W.1 Sri V.Sankar Das P.W.2Sri K.Damadhara RaoR.W.2 Smt K.Varahalamma P.W.3Sri V.Satish KumarR.W.3 Smt K.Nagamani R.W.4 Sri M.Jagannadha Rao (eschewed)

Documents marked on behalf of petitioner:

Ex.A.1The attested copy of the FIR in Cr.No.32/2010 of Yellamanchili PS u/sec.304-A of IPC

Ex.A.2The attested copy of the Postmortem Certificate Ex.A.3The attested copy of the Inquest report Ex.A.4 The attested Copy of the Motor Vehicle Inspector Report Ex.A.5The attested copy of the Charge sheet. Ex.A.6The attested copy of C Book of the AP31 AJ 9402 Ex.A.7The attested copy of C Book of the AP24 X 3679 Ex.A.8The attested copy of the driving license of the driver of AP24 X 3679 Ex.A.9The original appointment letter issued by the ICICI bank (Six pages) 15 Ex.A.10The attested copy of the Legal heir certificate dated 05-10-2010 Ex.A.11 The attested copy of death certificate dated 24-06-2010 Ex.A.12The attested copy of degree certificate of the deceased Ex.A.13The copy of the intermediate certificate of the deceased Ex.A.14The copy of the salary certificate for the month of May, 2010 issued by the ICICI bank

Documents marked on behalf of Respondents:

Ex.R.1The copy of Insurance policy insured by HDFC ERGO General Insurance Company Limited Scorpio registration NO.AP31 AJ 9402. Ex.R.2The office copy of legal notice Ex.R.3The acknowledgment Ex.R.4The authorization letter Ex.R.5The D.L.Extract Ex.R.6The true copy of the policy insured by the New India Assurance Company Limited lorry bearing registration No.AP 24 X 3679 lorry AP24 X 3679 Ex.R.7Certified copy of rough sketch

DOCUMENTS MARKED IN X-SERIES :

Ex.X1 : The served summons of P.W.3

Chairman, MACT-cum Prl.Dist.Judge, Vsp.

1

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENT CLAIMS

TRIBUNAL-CUM-PRINCIPAL DISTRICT JUDGE: VISAKHAPATNAM.

PRESENT: SRI V.JAYA SURYA,

CHAIRMAN, MACT-CUM-DISTRICT JUDGE,

VISAKHAPATNAM.

Monday, the 24 th day of October, 2016.

M.V.O.P. NO.558/2012

Between:

1. Smt Dadi Nooka Ratnam W/o. Late D.V.Apparao, Hindu, Age: 48 years, R/at.D.No.64-6-4/1, Ramnagar, Sriharipuram, Malkapruam, Visakhapatnam District.

2. Kum Dadi Tulasi, D/o. Late D.V.Apparao, Hindu, Age: 27 years,

R/at.D.No.64-6-4/1, Ramnagar, Sriharipuram, Malkapruam, Visakhapatnam District.

3. Mr. Dadi Anand, S/o. Late D.V.Apparao, Hindu, Age: 23 years, R/at.D.No.64-6-4/1, Ramnagar, Sriharipuram, Malkapruam, Visakhapatnam District.

4. Sri Dadi Ramu Naidu, S/o. Late Appanna, Hindu, Age: 77 years, R/at.D.No.64-6-4/1, Ramnagar, Sriharipuram, Malkapruam, Visakhapatnam District.

....Petitioners

And:

1. Sri T.Kesava Ananth, S/o. Chandra Rao, Hindu, Age: not known, R/at.D.No.50-40-25,T.P.T.Colony,Seethammadhara, Visakhapatnam

2. Sri K.Shyam Kumar, S/o. Not known, Flat No.402, Ramya Residency, Near Dugalamma Temple, Arilova, Visakhapatnam.

3.Reliance General iNsurance Co., Ltd., Rep., by its Manager, D.No.47-14-5 (403) 3rd Floor, Eswar Paradise, Dwarakanagar Main Road, Visakhapatnam

4. Bobbari Raju @ Nookaraju, S/o. Tata Rao, Hindu, Ager: 28 years, R/at.D.No.65-6-670, Ganapathinagar, Gajuwaka, Visakhapatnam (Driver of Tata Indica Car AP 31 TV 442) ( The 4th Respondent is added as per the Order dated 01.10.2015 in I.A.1897/2015)

..Respondents

This petition coming on before me for final hearing in the presence of Sri G.Trinadha Murthy and Sri D.Chandra Rao, Advocate for the petitioners, 2 Sri D.Siva Prasad, Advocate for the Respondent No.3, and the Respondents No.1, 2, and 4 having remained exparte and having been heard and having stood over for consideration till this day, the Court made the following:-

-: A W A R D :-

The petitioners, who are wife, daughter, son and father of the deceased Sri Dadi Venkata Apparao have filed this claim Petition under

Sec.166 of Motor Vehicles Act read with Rule 455 of motor Vehicles Rules praying the court to issue a direction to the respondents No.1 to 4 to pay a sum of Rs.10,00,000/- as compensation together with an interest @ 18% per annum in the facts and circumstances enumerated in the petition.

2. The case of the petitioners as enumerated in the claim application to the extent relevant is, extracted hereunder:

The first petitioner is the wife, the second and third petitioners are the sons, while the fourth petitioner is the father of the deceased Sri Dadi Venkata Apparao. The deceased was aged 54 years, hale and healthy and was working as M.C.MN. In Naval Dockyard, Visakhapatnam and earning Rs.22,000/- per month. On 22.3.2008 at about 22.00 hours, the deceased was going to his in-laws house at Ramakrishnapuram on his Hero

Honda motor cycle bearing no,AP 31 AL 4374 from Sriharipurm

to Ramakrishnapuram, and when crossing the road towards St. Joseph School Road, Ramakrishnapuram Junction, Malapuram Post, Visakhapatnam, at the same time, one TATA Indica Car bearing No.AP 31 TV 0442 the driver of the car i.e., R4 drove the same in a rash and negligent manner and dashed against the Hero Honda Motor cycle of the deceased, due to which the deceased fell on the road and received grievous injuries on his head, legs and all over his body. Immediately he was shifted to King George Hospital, where he was declared dead. The Malkapuram Police registered a case in Cr.No.65/2008 u/sec.304-A of IPC against the fourth respondent. The untimely death of the deceased caused much havoc in the family of the petitioners The accident was purely on the negligent driving of the 4th respondent. The 1st respondent 3 being the owner, the second respondent being the earlier owner who insured the vehicle, the third respondent insurer of the crime vehicle, and the fourth respondent being the driver of the crime vehicle TATA Indica CAB bearing No. AP 31 TV 0442 are jointly liable to pay the compensation to the petitioners.

3. The case of the respondent No.3 as set out in the counter and

additional counter to the extent relevant and necessary is extracted

hereunder :

As per the MV Inspectors report the offending vehicle is a passenger carrying transport vehicle, and as on the date of accident, the driver of the offending vehicle i.e., R4 was in possession of LMV non-transport driving license, and he was not in possession license to drive a transport vehicle, hence this respondent is not liable to pay compensation to the petitioners. The interest rate claimed by the petitioners is high and excessive and is liable to be scaled down as per the present guidelines of the RBI. The petition is bad for non-joinder of the owner and insurer of the motor cycle. The RC owner/R1 and R2 Policy holder committed fundamental breach of conditions of policy as such they alone are liable to pay compensation.

4. Basing on the pleadings in the petition as well as the counter and

additional counter, the following issues were framed :

1.Whether the deceased i.e., Dadi Venkata Rao S/o. Ramu Naidu died in a motor accident occurred on 22.3.2009 at 10.00 pm, at Ramakrishnapuram Jn., to 2ndrespondent driven by the 1strespondent Malikapuram, Visakhapatnam due to rash and negligent driving of the Motor car bearing NO.AP 31 TV 0442 belonging - driver ?

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

3.To what relief ?

4

5.The first petitioner- Smt Dadi Nooka Ratnam filed an evidence affidavit in lieu of her chief examination and has examined as P.W.1. She has also examined Sri Vadlapudi Nani, Eye witness, Sri K.V.S.G.P. Sastry,

UDC in Naval Dockyard, as P.W.2 and P.W.3 respectively. She has also marked the attested copy of the F.I.R. in Cr.No.65/2008 of Malkapuram PS u/sec.304-A of IPC, the attested copy of the inquest report, the attested copy of the post mortem report, the attested copy of the MV Inspectors report, the attested copy of the charge sheet and the copy of the Insurance policy as Ex.A1, A2, A3, A4, A5 and A6 respectively. Through P.W.3, the authorization letter and salary particulars of the deceased as marked as

Ex.X1 and Ex.X2 respectively. On behalf of the respondent No.3 Sri Dasari

Gopi Executive-Legal of R3 Insurance Company, Sri D. Satya Rao Reddy,

Senior Assistant, RTA Visakhapatnam, Sri P.Srinu babu, Junior Assistant,

RTA, Gajuwaka, and Sri B.Ravi Kumar, Assistant Manager of R3 Insurance

Company were examined as R.W.1, R.W.2, R.W.3 and R.W.4 respectively.

Through R.W.1 the copy of policy was marked as Ex.R1. Through R.W.2 the authorization letter, and the B-Ledger Extract were marked as Ex.X3 and

Ex.X4 respectively. Through R.W.3 the authorization letter and letter issued by Government of A.P. Transport Department were marked as Ex.X5 and

Ex.X6 respectively.

6.Heard arguments from counsel for the parties.

7. ISSUE No.1:

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

On 22.3.2008 at about 22.00 hours, the deceased was going to his in-laws house at Ramakrishnapuram on his Hero Honda motor cycle bearing no,AP 31 AL 4374 from Sriharipurm to Ramakrishnapuram, and when crossing the road towards St. Joseph School Road, Ramakrishnapuram Junction, Malkapuram Post, Visakhapatnam, at the same time, one TATA Indica Car 5 bearing No.AP 31 TV 0442 the driver of the car i.e., R4 dashed against the Hero Honda Motor cycle of the deceased, due to which the deceased fell on the road and received grievous injuries on his head, legs and all over his body. Immediately he was shifted to King George Hospital, where he was declared as dead. The Malkapuram Police registered a case in Cr.No.65/2008 u/sec.304-A of IPC against the fourth respondent. The 1st respondent was the owner, while the second respondent was the earlier owner who insured the vehicle, and the third respondent was insurer, and the fourth respondent was the driver of the crime vehicle TATA Indica CAB bearing No. AP 31 TV 0442.

8.While it is the case of the petitioners that the accident in question had occurred due to the rash and negligent driving of the TATA Indica Tourist Cab car bearing No.AP 31 TV 0442 by the respondent no.4-driver, the respondent no.3/insurance company has not disputed the occurrence of the accident. However, P.W.1 -the 1st petitioner and the wife of the deceased i.e., Smt Dadi Nooka Ratnam who filed an evidence affidavit in lieu of her chief-examination reiterated what has been pleaded in the claim petition and relied on Ex.A1 the attested copy of F.I.R. in Cr.No.65/2008 of

Malakpuram PS, Ex.A2 the attested copy of inquest Report, Ex.A3 the attested copy of Post Mortem Certificate, Ex.A4 the attested copy of the MV

Inspectors report and Ex.A5 the attested copy of the charge sheet. It is an admitted fact that the P.W.1 is not an eye witnesses to the accident. P.W.1 has also admitted that she is not an eye witness to the accident in her cross examination and in order to prove the said accident she got examined

P.W.2 Sri Vadlapudi Nani, who is an eye witness to the accident. P.W.2 has categorically deposed that the Tata Indica car bearing NO.AP 31 TV 0442 driven by its driver in a rash and negligent manner without blowing horn dashed against the deceased who was going on his Hero Honda Motor cycle, that he accompanied the deceased to King George Hospital where he was 6 declared dead. Except suggesting him that he was deposing false to help the petitioners, the insurance company did not dispute the evidence of

P.W.2. More over as seen from Ex.A5 attested copy of the charge sheet, this

P.W.2 was cited as witness to speak about the accident. In such circumstances, this tribunal finds no reasons to dis-believe the evidence of

P.W.2.

9. A perusal of complaint appended to the Ex.A1 attested copy of FIR shows that the complaint was given by the brother of the deceased viz.,

Dadi Trinadha Swamy about the accident and basing on the said complaint police have registered a case against the respondent No.4 i.e., driver of the offending vehicle. Moreover, the Respondent No.3 insurance company has not denied the taking place of the accident and the death of the deceased in the said accident. Ex.A3 Post mortem report and Ex.A2 inquest report also reiterate that the reason for the death of the deceased is the injuries sustained in the accident. Ex.A4 MV Inspectors report also shows that the rider of the motor cycle died immediately after the accident and that the accident has not occurred due to any mechanical defects to the vehicles. In such circumstances, it is the opinion of the tribunal that the respondent

No.4 driver- of the offending vehicle i.e., TATA Indica Tourist Cab bearing

No.AP 31 TV 0442 drove the said vehicle in a rash and negligent manner and dashed against the Hero Honda Motor cycle of the deceased, on account of which the deceased sustained grievous injuries and succumbed to the injuries. Thus, the respondent No.4 was responsible for the accident.

Accordingly the issue is answered.

10. ISSUE NO.2:

While claiming a sum of Rs.10,00,000/- from the respondents under all heads mentioned specifically in the claim petition as compensation, the petitioners have specifically pleaded that the deceased was aged 54 years as 7 on the date of the accident, and was working as M.C.M. ( Master Crafts) in

Naval Dockyard and earning Rs.22,000/- per month and contributing the income to the petitioners for their livelihood. In order to prove their contention, the petitioners have examined P.W.3 Sri K.V.S.G.P. Sastry,

U.D.C., Naval Dockyard. P.W.3 stated that the date of birth of the deceased was 30.3.1952 and his date of retirement was 31.3.2012. P.W.3 has got marked the authorization letter authorizing him to depose in this claim application and the salary particulars of the deceased as Ex.X1 and X2 respectively. Ex.X2 clearly shows it was issued by the Assistant Manager (Pensions) for Admiral Superintendent and according to Ex.X2 the date of birth of deceased is 30.3.1952. Therefore, taking into consideration the dated of birth of the deceased as 30.3.1952, the age of the deceased as on the date of accident was 54 years. Therefore, the age of the deceased is taken as 54 years as on the date of accident as shown in Ex.X2.

According to Ex.X2 the gross salary of deceased as on the date of his death was Rs.25,745/- per month. Thus, the annual income of the deceased comes to Rs.3,08,940/- (25,745 x 12).

10. To fix compensation that shall be payable to the dependants of a person died in a road accident and to fix loss of life and dependency, invocation of the table given in the Second Schedule given in Section 163-A of the Motor Vehicles Act, has been suggested. 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 (2009 ACJ 1298) their

Lordships have held that 1/4th of the 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, if the number of dependants are 4 to 6. If that is done, the loss of dependency comes to

Rs.2,31,705/- (Rs.3,08,940 minus 1/4th i.e., Rs.77,235/-) per annum. In the decision cited supra, their Lordships have also drawn a structured 8 formula according to which, for a person who is aged in between 51 to 55 years, the multiplier applicable as mentioned in column no.4 is “11”.

Therefore, the petitioners are entitled to a sum of Rs.25,48,755/- (Rs.2,31,705x 11) towards compensation for the loss of life and dependency.

11. Apart from the above, the petitioners are also entitled to a sum of

Rs.17,000/- towards funeral expenses, a sum of Rs.5,000/- towards transport charges, and Rs.50,000/- towards consortium, thus totally a sum of Rs.72,000/- towards non-pecuniary damages. Thus, the petitioners in all are entitled/ awarded to a sum of Rs.26,20,755/- (25,48,755 + 72,000) towards compensation, but as the petitioners have claimed for Rs.10,00,000/-, the awarded compensation is restricted to the amount of Rs.10,00,000/- (Rupees ten lakhs only).

12.Coming to the issue of liability, it is an established fact that the accident was caused by the respondent No.4/ the driver of the crime vehicle.

It is the contention of R3-insurance company that the offending vehicle was a passenger transport vehicle and the driver of the vehicle i.e., R4 was not having any valid license to drive a transport vehicle. The respondent No.3 insurance company has examined R.W.2 Sri D.Satya Rao reddy, Sr.

Assistant of RTA, Visakhapatnam and he deposed that EX.X4 is the B-

Register Extract of the offending vehicle and it is the passengers carrying transport vehicle. In his cross examination the deposed that a person who is possessing valid driving license for LMV can drive the vehicle which is below gross weight of 7500 kgs. Therefore, it is evident from this admission that a person possessing LMV driving license can drive the vehicle which is below 7500 kgs. As per Ex.X4 the gross weight of the offending vehicle is 1395 kgs. As per Ex.A4 MV Inspectors report, the driver of the offending vehicle was in possession of LMV driving license.

9

13. It is the further contention of the R-3 insurance company that the driver of the offending vehicle was not possessing any driving license as on the date of accident. In order to prove the said fact the insurance company has not examined the R2 or R4. As seen from Ex.A4 MV Inspectors report, the driver of the offending vehicle was possessing LMV- non-transport driving license bearing No.DLF AP 23623642006 and it was valid till 2029.

Neither the petitioners nor the respondent No.3 have chosen to file any copy of the driving license of R4. On the other hand, R3-insurance company has examined R.W.3 Sri P.Srinu Babu, Jr. Assistant of RTA, Gajuwaka. R.W.3 has deposed that he was authorized to depose before the Court as per

Ex.X5 authorization letter and Ex.X6 is the letter given by the RT Officer,

Gajuwaka stating that the driving license No.DLF AP 23623642006 is not found in their computer data. The learned counsel for the R3 insurance company placed reliance on the following citations. In the authority reported in 2008 ACJ 1307 in the case between Sardari and others Vs.

Sushil Kumar and others the Hon'ble Apex Court held that the owner of the vehicle has a statutory obligation to see that driver of vehicle whom he authorized to drive holds a valid license. In the present case on hand the

R3-insurance company has not examined R2 to prove the fact whether he has verified the license of R4 or not, therefore, this authority is not applicable to the present case on hand. In the Civil Appeal No.231/2012 (arising out of SLP (C) No.17740/2008) between United India Insurance

Co, Ltd., Vs. Sujata Arora and others the Hon'ble Apex Court held that “in case it is found that the offending vehicle was driven by driver who was either holding no license or a fake license, then it amounts to violation of terms and conditions of policy and in that circumstances, no liability can be fastened on the Insurance Company.” In another authority reported in 2015 ACJ 576 in the case between Bajaj Allianz General Insurance Cop.

Ltd., V. Gandam Somulamma and others the Hon'ble High Court of A.P., 10 held that “The Insurance Company has discharged its burden to prove that it was within the conscious knowledge of the owner that driver had no driving license, is exempted from liability.” However, Ex.A4 MV Inspectors report shows that the driver of the offending vehicle was holding a LMV license which was valid upto 2029. To prove that the said license was fake, the R3 insurance company has examined R.W.3 – Sri P. Srinu Babu, Jr. Asst of RTA

Gajuwaka and he deposed that as per Ex.X6 their office has not issued any driving license No.DLF AP 236236342006. In his cross examination he stated that personally he did not verify the record in respect of the vehicle mentioned in Ex.A4 and that as per Ex.A4 the driver of the offending vehicle is holding a valid driving license. R.W.4 Sri B.Ravi Kumar, Assistant

Manager of the R3 Insurance company has also emphasized on the issue that the driver of the offending vehicle was not possessing any valid license and that the R1/R2 entrusted the vehicle to unlicensed driver to drive the motor vehicle with fake license in public place, thereby committed fundamental breach of conditions. The R.W.3 belongs to Gajuwaka RTA Office and basing on his evidence it cannot be stated that the driving license of R4 is fake one, and he has not obtained any driving license under due process of law.

In such circumstances, the plea of the insurance company to exonerate it, cannot be taken into consideration.

14.It is admitted by R.W.1 Sri Dasari Gopi – Legal Executive of R3- insurance company that there was a valid and subsisting policy and the petitioners have marked Ex.A6 policy copy and R3 has marked Ex.R1 policy copy, which is same policy. Hence there was a valid and subsisting policy as on the date of accident. Therefore, R1 to R4 are jointly and severally liable to pay the awarded compensation to the petitioners. Accordingly, the issue is answered.

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15. Issue No.3:

In the result, the petition is allowed awarding a sum of

Rs.10,00,000/- (Rupees ten lakhs only) towards compensation to the petitioners with costs and interest @ 7.5% p.a., from the date of the petition till the actual deposit and the respondents 1 to 4 are jointly and severally liable to pay the same. The respondent No.3 is directed to deposit the said amount into court within thirty days from the date of this Award.

Of the said amount, an amount of Rs.5,00,000/- is apportioned to the 1st petitioner-wife, Rs.2,00,000/- each to the petitioners No.2 and 3 i.e., daughter and son and Rs.1,00,000/- to the petitioner No.4 i.e., father of the deceased towards their share.

On such deposit, the petitioners No.1 to 4 are permitted to withdraw an half of the amount along with interest accrued on their share amount and costs, and the remaining amounts shall be kept in fixed deposit in their names in any nationalized bank for a period of two years.

Advocate’s fee is fixed at Rs.10,000/-.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in Open Court, this the 24th day of October,

2016.

Chairman, MACT-cum- Principal District Judge,

Visakhapatnam.

Appendix of Evidence

No. of witness examined

Petitioners : Respondents :

P.W.1 : Smt D.Nooka ratnam R.W.1 : Sri Dasari Gopi P.W.2 : Sri Vadlapudi Nani R.W.2 : Sri D.Satya Rao Reddy P.W.3 : Sri K.V.S.G.P. Sastry R.W.3 : Sri P. Srinu Babu R.W.4 : Sri D.Ravi Kumar 12 Documents marked on behalf of petitioner:

Ex.A.1: the Attested Copy of the FIR in Cr.No.65/2008 of III Town PS u/sec.304-A of IPC.

Ex.A.2: the Attested copy of Inquest report.

Ex.A.3: the Attested copy of Postmortem Certificate.

Ex.A.4: The Attested copy of MV Inspectors report

Ex.A.5 : The attested copy of Charge sheet

Ex.A.6 : The copy of insurance policy.

Documents marked on behalf of Respondent No.3 :

Ex. R.1: the Copy of first Insurance Policy

X-SERIES :

Ex.X.1 : The Authorization Letter Ex.X.2 : The Salary Particulars of deceased Ex.X.3 : The Authorization Letter Ex.X.4 : The B-Register Extract Ex.X.5: The Authorization Letter Ex.X.6 : Letter by Government of A,.P. Transport Department

Chairman, MACT-cum- Prl. Dist. Judge, Vsp.

1

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACCIDENT CLAIMS

TRIBUNAL-CUM-PRINCIPAL DISTRICT JUDGE: VISAKHAPATNAM.

PRESENT: SRI V.JAYA SURYA,

CHAIRMAN, MACT-CUM-DISTRICT JUDGE,

VISAKHAPATNAM.

Monday, the 24 th day of October, 2016.

M.V.O.P. NO.362/2014

Between:

1. Smt Pinnamraju Devi, W/o. Late Satyanarayana Raju, Age: 42 years,Housewife,R/at.D.no.39-9-96/9,Muralinagar, Visakhapatnam

2. Sri Pinnamraju Venkata Satish Raju, S/o. Late Satyanarayana

Raju, Age: 23 years, Un-employee, R/at.D.no.39-9-96/9, Muralinagar, Visakhapatnam

3. Sri Pinnamraju Rama Krishnam Raju, S/o. Late Satyanarayana, Age: 21 years, Student, R/at.D.no.39-9-96/9, Muralinagar, Visakhapatnam

....Petitioners

And:

1. Sri Karuna Ganesham, S/o. Sanjeeva Rao, Age: about 30 years,

Driver of Car AP 31 X 8787, Garikpalem Village, Ranasthalam Mandala, Srikakulam District

2. Sri T.Durga Prasad Rao, S/o. Venkata Rao, Age: about 40 years, Owner of Car AP 31 X 8787 R/o. Dannanapeta Village, Ranasthalam Mandal, Srikakulam District

3. M/s. United India Insurance Co. Ltd., by its Regional Manager, Pavan Complex, Dabagardens, Visakhapatnam

..Respondents

This petition coming on before me for final hearing in the presence of Sri L.Satyanarayana, Advocate for the petitioners, Smt B.Manjula, Advocate

for the Respondent No.3, and the Respondents No.1, and 2 having remained

exparte and having been heard and having stood over for consideration till this day, the Court made the following:-

-: A W A R D :-

The petitioners, who are wife and sons of the deceased Sri Late

Satyanarayana Raju have filed this claim Petition under Sec.166 of Motor

Vehicles Act read with Rule 455 of motor Vehicles Rules praying the court to 2 issue a direction to the respondents No.1 to 3 to pay a sum of

Rs.25,00,000/- as compensation together with an interest @ 9% per annum in the facts and circumstances enumerated in the petition.

2. The case of the petitioners as enumerated in the claim application to the extent relevant is, extracted hereunder:

The first petitioner is the wife, while the second and third petitioners are the sons of the deceased Sri Late Satyanarayana Raju. The deceased was aged 56 years, hale and healthy and was a permanent employee in NMDC Ltd., a Government of India Enterprises at Visakhapatnam as a Cook Grade-II, UECH 0033 and earning Rs.39,749/- per month and contributing the said amount for maintenance of the family. On 14.10.2012 at about 10.00am, the deceased along with his friend Dharma Rao was coming from Visalakshinagar to Seethammadhara on NH-16 Road on his Honda Activa Scooter AP 31 Q 5633 and when they reached to Leelavathi TVS Showroom, near MVP Double Road Signal Point, Opp. To Krishna Temple, a car bearing NO.AP 31 X 8787 which was Luxury Tourist Cab driven in a rash and negligent manner by its driver i.e., respondent No.1 dashed against the Honda Activa Scooter of the deceased, due to which the deceased and pillion rider fell on road and the crime vehicle ran over the deceased, and the deceased sustained grievous injuries and they were shifted to NRI Hospital, Seethammadhara, Visakhapatnam, while undergoing treatment, the deceased was succumbed to the injuries on the same day at 12.45pm. The III Town Police registered a case in Cr.No.345/2012 u/sec.304-A and 338 of IPC against the first respondent. The 1st respondent being the driver the second respondent being the owner and the third respondent insurer of the crime vehicle Tourist Cab bearing No. AP 31 X 8787 are jointly liable to pay the compensation to the petitioners.

3. The case of the respondent No.3 as set out in the counter to the extent relevant and necessary is extracted hereunder :

3 The amount claimed by the petitioners is highly exorbitant and devoid of norms and high exaggerated beyond imagination. The petitioners NO.2 and 3 being the sons of the deceased are majors and they cannot be termed as Dependants of the deceased and as petitioner NO.1 is being look after by the 2nd petitioner, thus there is no loss of earnings or dependency. The deceased was instrumental in the occurrence of the accident as the Respondent No.1 was proceeding on his correct road and it was fault of the deceased to fall down, there was no rash and negligent driving on the part of the Respondent No.1 and the petitioners cannot take advantage of the wrongful act of the deceased and claim for compensation from the Respondents. the Respondent No.1 was not holding any valid and subsisting driving license with required endorsement.

4. Basing on the pleadings in the petition as well as the counter, the following issues were framed :

1.Whether the deceased died in the motor accident occurred on 14.10.2012 due to the rash and negligent driving of the motor vehicle bearing Regn. No.AP 31 X 8787 ( Luxury Tourist Cab MV TATA Indica) driven by its driver ?

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

3.To what relief ?

5.The first petitioner- Smt P.Devi, filed an evidence affidavit in lieu of her chief examination and has examined as P.W.1. She got examined Sri

D.Seethamaraju, eye witness to the accident and Smt Pedaparthi Meenakshi,

Junior officer, N.M.D.C., Port Area, Visakhapatnam as P.W.2 and P.W.3 respectively. The attested copy of the F.I.R. in Cr.No.345/2012 of III Town

Traffic PS u/sec.304-A of IPC, the attested copy of the charge sheet, the attested copy of inquest report, the attested copy of the post mortem report, the attested copy of MV Inspectors report, the original salary report , the original service certificate and the copy Insurance policy as

Ex.P1, P2, P3, P4 P5, P6, P7 and P8 respectively. On behalf of the 4 respondent NO.3 Sri Arunal Raja, Manager, Personal, NMDC Limited, and

Sri Shivinder Singh Bedi, Administrative Officer of R3 were examined as

R.W.1 and R.W.2 respectively. Through R.W.1 the salary particulars of the deceased is marked as Ex.X1.

6.Heard arguments from counsel for the parties.

7. ISSUE No.1:

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

The first petitioner is the wife and the second and third petitioners are the sons of the deceased Sri Late Satyanarayana Raju. The deceased was a permanent employee in NMDC Ltd., a Government of India Enterprises at Visakhapatnam as a Cook Grade-II, UEC No.0033. On 14.10.2012 at about 10.00am, the deceased along with his friend Dharma Rao was coming from Visalakshinagar to Seethammadhara on NH-16 Road on his Honda Activa Scooter AP 31 Q 5633 and when they reached to Leelavathi TVS Showroom, near MVP Double Road Signal Point, Opp. To Krishna Temple, a car bearing NO.AP 31 X 8787 which was Luxury Tourist Cab driven by its driver i.e., respondent No.1 dashed against the Honda Activa Scooter of the deceased, due to which the deceased and pillion rider fell on road and the crime vehicle ran over the deceased, and the deceased sustained grievous injuries and they were shifted to NRI Hospital, Seethammadhara, Visakhapatnam, while undergoing treatment, the deceased was succumbed to the injuries on the same day at 12.45pm. The III Town Police registered a case in Cr.No.345/2012 u/sec.304-A and 338 of IPC against the first respondent. The 1st respondent was the driver, the second respondent was the owner, and the third respondent was insurer of the crime vehicle Tourist Cab bearing No. AP 31 X 8787.

8.While it is the case of the petitioners that the accident in question had occurred due to the rash and negligent driving of the TATA Indica Tourist Cab 5 bearing No.AP 31 X 8787 by the respondent no.1-driver, the respondent no.3/insurance company has not disputed the occurrence of the accident. On the other hand it has contended that the deceased was instruments in the occurrence of the accident. However, P.W.1 -the 1st petitioner and the wife of the deceased i.e., Smt P.Devi, who filed an evidence affidavit in lieu of her chief-examination reiterated what has been pleaded in the claim petition and relied on Ex.P1 the attested copy of F.I.R. in Cr.No.345/2012 of III Town Traffic PS, Ex.P2 the attested copy of the charge sheet, Ex.P3 the attested copy of inquest report, Ex.P4 the attested copy of inquest report, and Ex.P5 the attested copy of MV Inspectors report. It is an admitted fact that the P.W.1 is not an eye witnesses to the accident.

P.W.1 has also admitted that she is not an eye witness to the accident in her cross examination and in order to prove the said accident she has examined

P.W.2 Sri D.Seetharama Raju, who was an eye witness to the accident.

P.W.2 has categorically deposed that on 14.10.2012 at about 9.50am, while he was waiting at the MVP Double Road signal point Bus stop to go to

Town, he found his uncle P.Satyanrayana raju i.e., deceased along with friend Dharma Rao going on his Activa scooter and they reached near

Leelavathi TVS Show room and he witnessed that they were hit by a TATA

Indica Tourist cab bearing No.AP 31 X 8787 which was driven by its driver at high speed in a rash and negligent manner, due to which the deceased fell on the road and the crime vehicle ran over him, and the deceased succumbed to the injuries on the same day at 12.45pm, that he gave complaint to III

Town PS, basing on which Cr.No.345/2012 was registered. Nothing was elicited from the cross examination of this witness by R3-Insurance company to prove their contention that the accident was occurred due to the negligence of the deceased.

9. A perusal of complaint appended to the Ex.A1 attested copy of FIR shows that complaint was given by P.W.2 about the accident and basing on 6 the said complaint police have registered a case against the respondent No.1 i.e., driver of the offending vehicle. Moreover, the Respondent NO.3 insurance company has not denied about the taking place of the accident and the death of the deceased in the said accident. Ex.A4 Post mortem report and Ex.A3 inquest report also reiterate that the reason for the death of the deceased is the injuries sustained in the accident. Though the Respondent

No.3 has contended that the deceased was instrumental for the accident, it has not examined any person more particularly the said friend viz., Dharma

Rao, who is said to have been travelling along with the deceased on the fateful day, to prove its contention. More over after completion of investigation the police have also filed Ex.P2 charge sheet against the respondent no.1 holding him responsible for the accident. Therefore, in such circumstances, after careful examination of the material on record, it is the opinion of the tribunal that the respondent No.1 driver- of the offending vehicle i.e., TATA Indica Tourist Cab bearing No.AP 31 X 8787 drove the said vehicle in a rash and negligent manner and dashed against the scooter on which the deceased was travelling along with his friend, on account of which the deceased sustained grievous injuries and succumbed to the injuries. Thus, the respondent No.1 was responsible for the accident.

Accordingly the issue is answered.

9. ISSUES NO.2:

While claiming a sum of Rs.25,00,000/- from the respondents 1 to 3 under all heads mentioned specifically in the claim petition as compensation, the petitioners have specifically pleaded that the deceased was aged 56 years as on the date of the accident, and was working Cook Gr. II in NMDC Ltd., and earning Rs.39,749/- per month and contributing the income to the petitioners for their livelihood. The petitioners claimed that the deceased was 56 years old as on the date 7 of the death in the accident. The petitioners have not filed any documentary proof to show the date of birth of the petitioner. But they have examined P.W.3 Smt P.Meenakshi, Junior Officer, NMDC and she has stated that the deceased still has 3 years 6 months and 17 days service and she marked Ex.P7 the Service Certificate showing the remaining service particulars of the deceased I..e, the deceased still have 3 years 6 months and 17 days of service as the age of superannuation is 60 years. Ex.A4 the attested copy of the post mortem report and Ex.A3 the attested copy of the Inquest report go to show that the deceased was 56 years old as on the date of accident. Therefore, basing on Ex.P7, the age of the deceased is taken as 56 years 6 months i.e., 56 years as on the date of accident as pleaded by the petitioners.

10. It is the claim of the petitioners that the deceased was working as Cook Gr-I, NMDC, Visakhapatnam and earning Rs.39,749/- per month and contributing all his earnings for the family. To substantiate their contention, the petitioners have filed Ex.P6 which is the Service/Salary Certificate of the deceased and according to Ex.P6 the last drawn salary of the deceased is Rs.39,749/-. The petitioners have also examined P.W.3 Smt P.Meenakshi, from NMDC and she has confirmed the particulars mentioned in Ex.P6. Further the respondent

No.3 has examined R.W.1 Sri Arunal Raja, the Assistant Manager of

NMDC and through him Ex.X1 was marked showing the basic pay particulars of the deceased from the date of his joining the job i.e., from 11.9.1979 to 14.10.2012. As per Ex.X1 there was enhancement in the basic pay from 2012 and by the date of his death the basic pay 8 was enhanced from Rs.21,900/- to Rs.42,210/- and his gross salary as on 14.10.2012 was Rs.43,476/- and R.W.1 has stated the savings amount was paid to the petitioners. Basing on the Ex.X1 the monthly salary of the deceased as on 14.10.2012 is taken as Rs.43,476/-.

Thus the annual income of the deceased comes to Rs.5,21,712/- (43,476 x 12).

11. To fix compensation that shall be payable to the dependants of a person died in a road accident and to fix loss of life and dependency, invocation of the table given in the Second Schedule given in Section 163-A of the Motor Vehicles Act, has been suggested. 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

(2009 ACJ 1298) their Lordships have held that 1/3rd of the 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, if the number of dependants are 2 to 3. If that is done, the loss of dependency comes to

Rs.3,47,808/- (Rs.5,21,712 minus 1/3rd i.e., Rs.1,73,904/-) per annum. In the decision cited supra, their Lordships have also drawn a structured formula according to which, for a person who is aged in between 56 to 60 years, the multiplier applicable as mentioned in column no.4 is “9”. Therefore, the petitioners are entitled to a sum of

Rs.31,30,272/- (Rs.3,47,808 x 9) towards compensation for the loss of life and 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 transport charges and damages of clothes and articles, and

Rs.25,000/- towards consortium, thus totally a sum of Rs.35,000/- towards non-pecuniary damages. Thus, the petitioners in all are entitled to a sum of Rs.31,65,272/- (31,30,272+ 35,000) towards total compensation from the respondents. The petitioners have claimed Rs.25,00,000/-, as such they are entitled to a sum of

Rs.25,00,000/- (Rupees twenty five lakhs only).

13.Coming to the issue of liability, it is an undisputed fact that the accident was caused by the respondent No.1/ the driver of the crime vehicle. The insurance company has not disputed about the existence of a valid and subsisting policy. More over, P.W.1 has marked Ex.P8 the copy of insurance policy and the same is not disputed by the insurance company/R3. The R3 has further contended that the petitioners No.2 and 3 are majors and no longer they are depandants of the deceased and they are not entitled for any compensation. Nowhere either in the petition or in the evidence of

R.W.2 it was elicited that the 2nd and 3rd petitioners are earning members of the family. The 2nd and 3rd petitioners have prosecuted studies, and the insurance company has not put forth any sort of evidence to show that the 2nd and 3rd petitioners are earning members.

However, as Class -I Heirs of the deceased, all the petitioners are entitled to the compensation. Accordingly, the issue is answered.

18. Issue No.3:

In the result, the petition is allowed in part awarding a sum of

Rs.25,00,000/- (Rupees twenty five lakhs only) towards compensation to the petitioners with costs and interest @ 7.5% p.a., 10 from the date of the petition till the 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 into court within thirty days from the date of this Award.

Of the said amount, an amount of Rs.15,00,000/- is apportioned to the 1st petitioner-wife and Rs.5,00,000/- each to the petitioners

NO.2 and 3 i.e., sons of the deceased towards their share.

On such deposit, the petitioners No.1 to 3 are permitted to withdraw half of the amount along with interest accrued on their share amount and costs, and the remaining amounts shall be kept in their names in fixed deposit in any nationalized bank for a period of two years.

Advocate’s fee is fixed at Rs.25,000/-.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in Open Court, this the day of 24th, October,

2016.

Chairman, MACT-cum- Principal District Judge,

Visakhapatnam.

Appendix of Evidence

No. of witness examined

Petitioners : Respondent :

PW.1: Smt P. Devi R.W.1 : Sri Arunal Raja PW.2: Sri D.Seetharama Raju R.W.2 : Sri Shivinder Singh PW.3: Smt P.Meenakshi

Documents marked on behalf of petitioner:

Ex.P.1: the Attested Copy of the FIR in Cr.No.345/2012 of III Town PS u/sec.304-A of IPC.

Ex.P.2: the Attested copy of charge sheet 11 Ex.P.3 : the attested copy of Inquest report Ex.P.4 : the attested copy of Postmortem Certificate. Ex.P.5: the Attested copy of MV Inspectors Report . Ex.P.6 : the original salary certificate issued by NMDC Limited Ex.P.7: the Original Service Certificate issued by NMDC Limited Ex.P.8 : the Copy of the insurance policy

Documents marked on behalf of Respondent: nil

X-SERIES :

Ex. X.1 : The salary particulars of the deceased.

Chairman, MACT-cum Prl.Dist.Judge, Vsp.

1

In the Court of the Principal District & Sessions Judge :: Visakhapatnam

Present: Sri V. Jaya Surya,

Principal District & Sessions Judge,

Visakhapatnam.

Wednesday, the 26 th day of October, 2016.

Crl.M.P.581/2016 IN Cr.No.227/2016 of Bheemunipatnam P.S

Between: Sri Velampudi Raja Vardhan, S/o. Rajasekhar Reddy, Age: 21 years, B./TEch., Final year, Pydha College, Boyapalem, Visakhaptnam R/o.D.No.31-1-, Beside R.R.Ground Hotel, Dabagardens, Visakhapatnam .

..Petitioner /Accused

And:

State Rep. by Public Prosecutor, Visakhapatnam.

....Respondent

This petition coming on before me for final hearing in the presence of Sri G. Nasgeswara Rao, G.Vasundhara, G.Swathi counsel appearing for the petitioner/accused and of Sri M.Venugopala Rao, Public Prosecutor for the State, and the matter having been heard and stood over for consideration till this day, the Court made the following:

O R D E R

This is an application under Section 439 Cr.P.C., filed by the petitioner/accused No.3 praying the Court to grant bail to him in Crime

No.227/2016 of Bheemunipatnam Police station for the alleged offence punishable u/s.302, 201 of IPC.

2. The case of the prosecution in brief is as follows :

The de facto complainant Sri Bone Apparao V.R.O. Of Kapuluppada of Behemunipatnam Mandal came to the PS and presented a written report that on the morning of 14.9.2016 at about 9.00am, he received an information from Kapuluppada Villave Revenue Assistant Rattipalli Appalanarasayya that an unknown partially burnt dead body was found at the vacant site of A.T.Rayudu in Kapuluppada panchayat and hence he gave report. During investigation, the prosecution has arrested A1 to A3 who have committed the murder of the deceased and arrested them and sent them to judicial custody. Hence the report.

2

3. The learned Public Prosecutor opposed the bail application stating that the material witnesses are yet to be examined and investigation is not yet complete.

4. The learned counsel for the petitioner submitted that the petitioner/accused is innocent and he did not commit any offence.

5.Heard both sides.

6. The point for consideration is: Whether the petitioner/ accused is entitled to be enlarged on bail?

7. POINT:

A perusal of the CD shows that the petitioner/accused is remanded to

Judicial custody on 29.09.2016 and from then onwards he is in judicial custody.

8. It is the case of the de facto complainant Sri Boni Apparo VRO of

Kapupuppada Panchayat about the fining of a partially burnt dead body in the vacant site of A.TY.Rayudu and during the course of investigation, the police of Bheemunipatnam have found that the dead body is of Chukka

Yesudasu and that the petitioner including the other accused namely Chukka

Vijaya mala and Chukka Peter Bhooshan kUmar have committed the murder of the deceased and tried to burn the dead body so as to de-screen the evidence. It is the contention of the learned counsel for the petitioner that the petitioner is a law abiding citizen and he did not commit any offence, that the petitioner is studying B.TEch Final year and his educational career will be badly effected if he is in judicial custody for long time and sought to enlarge him on bail. The learned Public Prosecutor has opposed the bail application by stating that investigation is still in progress and some more witnesses are yet to be examined and also contended that if released on bail, the accused may tamper the evidence, cause harm to the witnesses. Having 3 regard to the submissions made by the learned Public Prosecutor, counsel

for the petitioner and the material record, it is an admitted fact that the

petitioner is in judicial custody from 29.9.2016, and further it is also evident from the record that except the confession statement of the accused persons, there is no direct evidence to show that the petitioner is the person who allegedly killed the deceased. Therefore, keeping that the petitioner is a

B.TEch student prosecuting his final year studies, it is desirable to enlarge the petitioner /accused on bail. The point is answered accordingly.

9. In the result, the petitioner/accused shall be released on bail on his executing personal bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) each with two sureties for a like sum each to the satisfaction of the VI Metropolitan Magistrate, Bheemunipatnam. The petitioner/accused shall deposit his passport, if any, in the Committal Court.

If he does not possess any such passport, he shall file his affidavit to that effect in the committal Court.

Typed to my dictation, corrected and pronounced by me in open Court, this the 26th day of October, 2016.

Sd/- V.Jaya Surya,

Sessions Judge,

Visakhapatnam. //T.C.B.O.//

Chief Administrative Officer, District Court, Visakhapatnam

Copy to :

1. The VI Metropolitan Magistrate, Bheemunipatnam

2. The Station House Officer, Bheemunipatnam PS

3. Sri Gubbala Nageswara Rao Counsel for the Petitioner

In the Court of the Principal District Judge :: Visakhapatnam

Present: Sri V. Jaya Surya

Principal District Judge,

Visakhapatnam

Friday, the 28 th day of October, 2016

TOP.No.621/2016

Between: Smt.Nakkanna Appayyamma, W/o Late Sri Demudu, Christian, Retired Employee, aged 62 years, residing at House bearing D.No.13-709/1, Sector-2, Parvathinagar, Arilova, Visakhapatnam.

.....Petitioner

And

Sri Peddiredla Gowri Venkata Ramana, S/o Late Sri Sannibabu, Hindu, aged about 42 years, resident of House bearing D.No.50- 13-224/3, Seethampeta, Visakhapatnam. …Respondent This Petition is coming before me in the presence of Sri K.V.Sridhar, Counsel appearing for the Petitioner and no notice given to the Respondent, the matter having stood over for this day, the Court made the following:

O R D E R

This Petition is filed by the Petitioner U/Sec.24 of C.P.C., with a prayer to order transferring the suit in OS.No.524/2009 from the file of the VI Addl. Senior

Civil Judge's Court, Visakhapatnam to any other competent Court at

Visakhapatnam.

Batta not paid. No representation is made. Hence Petition is dismissed for default.

Pronounced by me in open Court, this the 28th day of October, 2016.

Sd/- V.Jaya Surya

PRINCIPAL DISTRICT JUDGE,

VISAKHAPATNAM.