Sri.V.Venkata Seshu Babu

BEFORE THE II ADDITIONAL DISTRICT JUDGE,

AT L B NAGAR, RANGA REDDY DISTRICT

PRESENT: V.V.SESHU BABU II Addl.District Judge

Monday, the 30th day of November, 2020.

A.S.No.238 of 2014

Between:

1. Kuntimalla Bashamma W/o.late Narsaiah @ Narsimha, Aged about 80 years, Occ: Agriculture,

2. Kuntimalla Srisailam, S/o.late Narsaiah @ Narsimha, aged about 30 years, Occ: Agriculture,

3. Kuntimalla Srinu S/o.late Narsaiah @ Narsimha, aged about 26 yearsf, Occ: Agriculture,

4. Kuntimalla Vikram S/o.late Narsaiah @ Narsimha, aged about 23 years, Occ: Agriculture,

5. Kuntimalla Anjaiah S/o.Mallaiah, aged about 52 years, Occ: Agriculture,

6. Kuntimalla Krishna S/o.Mallaiah, aged about 48 years, Occ: Agriculture,

All are R/o.Mangalpally Patelguda Village, Ibrahimpatan Mandal, R.R.District. … Appellants/Plaintiffs

AND

Kuntimalla Jangaiah S/o.Narsaiah, Aged about 78 years, Occ: Agriculture, R/o.Patelguda Village, Ibrahimpatan Mandal, Ranga Redy District. … Respondent/Defendant

Appeal against the Judgment and Decree dated 12.11.2014 passed by the learned Junior Civil Judge, Ibrahimpatan, Ranga Reddy

District, in;

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Page No.2 of 14

O.S.No.2 of 2007

Between:

1. Kuntimalla Bashamma

2. Kuntimalla Srisailam

3. Kuntimalla Srinu

4. Kuntimalla Vikram

5. Kuntimalla Anjaiah

6. Kuntimalla Krishna … Plaintiffs

AND

Kuntimalla Jangaiah … Defendant

This appeal coming before me on 11.11.2020 for final hearing in the presence of Sri G.Chandrasekhar Reddy, counsel for appellants, Sri

M.Srinivas Reddy, counsel for respondent and upon hearing both sides, perusal of the material on record and the matter having stood over for consideration till this day, this court made the following:-

JUDGMENT

01. The appeal is filed under Order 41 Rule 1 of C.P.C aggrieved by the dismissal of suit filed by them for partition vide Judgment dated 12.11.2014 in O.S.No.2/2007 on the file of Prl.Junior Civil Judge,

Ibrahimpatan, R.R.District.

02. The brief averments of the plaint in O.S.No.2/2007 are that, defendant herein and one Kuntimalla Mallaiah are real brothers; that they jointly purchased the suit schedule property consisting of Ac.2-00 gts in

Sy.No.473 (sub-division No.473/AA1), situated at Mangalpally Village,

Ibrahimpatan Mandal from Smt.Hussain Bee and others about more than 30 years back for valuable consideration and since then their family members were in continuous possession and enjoyment of the same; that

Kuntimalla Mallaiah died leaving behind his sons Kuntimalla Narsaiah @

Narsimha (husband of 1st plaintiff and father of plaintiffs 2 to 4, plaintiffs 5 and 6; that Kuntimalla Narsaiah @ Narsimha being the elder of the family of plaintiffs along with the defendant filed O.S.No.43/1974 for rectification

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Page No.3 of 14 of records in respect of the suit land against Smt.Hussain Bee and others and obtained a decree on 29.06.1974; that the family members of plaintiffs and defendant are in joint possession and enjoyment of the suit land without regular partition; that due to some differences between them, the defendant is trying to alienate the suit land in favour of third parties to deprive the rights of plaintiffs in the suit land; that plaintiffs are in joint possession and enjoyment of the suit land and they are entitled to half share in it; hence, the suit.

03. The brief averments of the written statement are that, defendant is the absolute owner and possessor of schedule land consisting of agricultural land in Sy.No.473/A admeasuring Ac.0-20 gts, Sy.No.473/AA admeasuring Ac.1-00 gts and Sy.No.273/E admeasuring Ac.0-20 gts, totally Ac.2-00 gts, out of total extent of Ac.16-04 guntas in Sy.No.473 of

Mangalpally Village; that defendant and the husband of 1st plaintiff

Kuntimalla Narsaiah have jointly purchased the suit land from its original pattedar Smt.Hussaini Bee and others about 46 years back for valuable consideration and both of them were in possession till 1974; that they filed O.S.No.43/1974 and it was decreed; that after obtaining decree, in the same year, K.Narsaiah orally settled the matter with the defendant by receiving amount from the defendant thereby relinquished his right over

Ac.1-00 gts of land in favour of defendant and and with that the defendant became the absolute owner and possessor of Ac.2-00 gts; that the name of defendant was recorded as possessor for the total extent of Ac.2-00 gts in the revenue records and due to illiteracy and lack knowledge, the defendant could not implement his name as pattedar; that when the revenue authorities recorded the name of defendant as possessor of Ac.1- 00 gts of land from 2000-01 pahani, the plaintiffs made an application for correction of pahanies and after enquiry, the Mandal Revenue Authorities

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Page No.4 of 14 recorded the name of defendant for total extent of Ac.2-00 gts in

Sy.No.473; that the pattedars of land sold away the remaining land in

Sy.No.473 to various persons; that when the adjacent cultivators Donkani

Pentaiah and others without right claimed title over the suit land tried to interfere with the peaceful possession and enjoyment of the defendant, then he filed O.S.No.47/2004 and obtained decree on 29.09.2004 for declartion as the absolute owner and possessor of suit schedule land; that after the decree, on the application of defendant, the revenue authorities issued mutation proceedings in favour of the defendant and he was issued with pattedar pass book and title deed in respect of the suit land; that plaintiffs are no way concerned with the suit land, as their ancestor K.Narsaiah relinquished his rights in favour of the defendant by receiving sale consideration; that it is the self acquired property of

K.Narsaiah and he sold it in 1974 i.e., 32 years back and since then, defendant is in continuous uninterrupted possession without any objection being raised by plaintiffs; that due to recent abnormal increase in the rate of suit land, plaintiffs with the support of anti social elements of the village in collusion with the Village Secretary and revenue officials got some wrong entries in the pahanies for the year 2005-06 and also created one memo in file No.B/403/2005 and taking advantage of the same, with a view to blackmail the defendant and to grab the valuable property, filed the suit with false allegations; that there is no cause of action for the suit and the alleged cause of action is created; that plaintiffs were never in possession and enjoyment of the suit land, hence the Court Fee paid u/S.34(2) of APCF and SV Act is not sufficient; hence, prayed to dismiss the suit with costs.

04. Basing on the pleadings of both sides, the Court below settled the following issues for trial:-

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Page No.5 of 14

1) Whether the plaintiffs herein entitled to seek partition of the suit schedule land?

2) Whether plaintiffs are in joint possession of suit land as joint family property/ancestral property?

3) Whether the defendant is absolute owner of suit land since 1974?

4)Whether late Narsaiah @ Narsimha relinquished his right to share/title to an extent of Ac.1-00 guntas in favour of the defendant?

5) Whether plaintiffs jointly entitled to ½ share out of the suit land?

6) Whether plaintiffs entitled to decree as prayed for?

7) To what relief, if any plaintiffs are entitled?

05. To prove the case, PWs.1 and 2 were examined and Exs.A1 to A3 were marked for the plaintiffs. DWs.1 to 4 were examined and Exs.B1 to

B36 were marked for the defendant. The affidavit of DW4 was eschewed from consideration as not appeared for cross examination.

06. Having heard both sides, the Court below dismissed the suit.

07. Aggrieved by the same, plaintiffs preferred the present appeal with the following grounds:- (1)The impugned Judgment and decree of the Court below is against to the principles of natural justice and probabilities of the case.

(2)The Court below not properly examined the evidence available on record and passed the Judgment only on assumptions and presumptions.

(3)The Court below failed to consider the documents filed by the plaintiffs in a proper way and no specific reason was given for the same.

A.S.238 of 2014

Page No.6 of 14 (4)The Court below ought to have considered the fact that defendant failed to prove his specific plea of relinquishment of right of Kuntimalla Narsaiah @

Narsimha over the suit land in his favour.

(5)The Court below gave much importance to the revenue records filed by the defendant, which were fabricated to deprive the rights of plaintiffs.

(6)The Court below failed to consider that Exs.B26 to B36 pertains to after filing of the suit and they were brought into existence only for the purpose of suit.

(7)The Court below ought to have seen that plaintiffs are also half share holders in the suit land and defendant failed to place any evidence that family members of plaintiffs relinquished their right in respect of their half share.

(8)The Court below miserably failed to peruse the true spirit of the documents filed by the plaintiffs.

With these grounds and others that will be urged at the time of arguments requested to allow the appeal by setting aside the Judgment and Decree of the lower Court.

08. Both sides filed written arguments and also filed a memo to pronounce the Judgment, which was not pronounced previously due to lockdown.

09.Now, the points for determination are:- (1) Whether the plaintiffs are entitled for half share in the suit schedule property?

(2) Whether the defendant purchased Ac.1-00 of the suit schedule property from the husband of 1st plaintiff, if so, is the vendor relinquished his rights over the Ac.1-00?

(3) Whether the Judgment of the Court below is sustainable under law?

(4) Whether IAs.1559/2018 and 103/2020 filed by respondent/defendant under Order 41 Rule 27 C.P.C can

A.S.238 of 2014

Page No.7 of 14 be allowed? So also, whether the IA filed by appellants/plaintiffs in I.A.No.101/2020 under Order 41 Rule 27 C.P.C can be allowed?

10. POINTS 1 TO 4: Admittedly, plaintiffs 1 to 6 filed the suit for partition of the suit schedule property into two equal shares and to allot half share to the plaintiffs and remaining half share to the defendant. One

Kuntimalla Mallaiah is the father of plaintiffs 5, 6 and husband of 1st plaintiff by name Intimalla Narsaiah @ Narsimha. Plaintiffs 2 to 4 are the children of 1st plaintiff through her husband Narsaiah @ Narsimha. As per

the plaint pleadings, the suit schedule property to an extent of

Ac.2-00 gts covered by Sy.No.473 after subdivision 473/AA1,

situated at Mangalpalli, was purchased by Kuntimalla Mallaiah

along with defendant; that after the death of Mallaiah, husband of 1st plaintiff, being elder of the family, along with defendant filed

O.S.No.43/1974 against the vendors Smt.Hussaini Bee and others for

rectification of records relating to the suit property and the said suit was decreed on 29.06.1974 vide Judgment and Decree under Exs.A2 and A3.

The plaint in the said Judgment goes to show that husband of 1st plaintiff and defendant herein are the absolute owners of the Ac.2-00 gts in

Sy.No.473 having purchased the same from the defendants/vendors therein long back and have been in possession and enjoyment of the same, but due to the interference of the vendors, their names were not mutated, hence, the suit. It is important to note that, the defendants in

O.S.No.43/1974 not contested the suit and filed written statement

admitting the suit claim. Thereupon, the suit was decreed. Ex.A2 goes to show that husband of 1st plaintiff and defendant herein/K.Jangaiah examined themselves as PWs1 and 2 and husband of 1st plaintiff stated that he purchased the land about 16 years back. It is needless to observe that O.S.No.43/1974 is a consent decree.

A.S.238 of 2014

Page No.8 of 14

11. Defendant/DW1/K.Jangaiah in the written statement at para 6 stated that “It is a fact that grandfather of plaintiffs 2 to 4 and father of plaintiffs 5 and 6 and the defendant have purchased the agricultural land admeasuring Ac.2-00 gts out of the land bearing Sy.No.473 or 473/1 from original pattedars Hussaini Bee and others about 48 years back”. It shows, DW1 admitted the plaint version about the purchase of the property along with Kuntimalla Mallaiah. Again, in para 13 of the written statement it is pleaded that “The defendant and his cousine brother K.Narsaiah purchased the suit land from its original pattedars

Smt.Hussaini Bee and others about 46 years back for valuable consideration and both of them were in possession till 1974 and thereafter, in the year 1974 they have filed O.S.No.43/1974 for rectification of records; that after obtaining the decree, in the same year, the cousin brother of defendant, K.Narsaiah, orally settled the matter with defendant herein and received amount and relinquished his right and title over Ac.1-00 and so, defendant became absolute owner of the total extent of Ac.2-00 gts. It shows, DW1 took a somersault in paragraph 13 of the written statement when compared with the pleadings in paragraph 6 of the written statement.

12. Though it is mentioned in paragraph 13 that along with his cousin brother K.Narsaiah purchased the suit land, not mentioned the father’s name of Narsaiah. One can get clarity regarding the identity of K.Narsaiah by perusing the Ex.A2, wherein, the name of Kuntimalla Narsaiah

S/o.Mallaiah is shown as 1st plaintiff and name of DW1 mentioned as

Kuntimalla Jangaiah S/o.Narsaiah. It is to be observed that the name of father-in-law of the 1st plaintiff is Kuntimalla Malaiah, which is similar to the father’s name of 1st plaintiff in O.S.No.43/1974 (Ex.A2). So, it is a foregone conclusion that DW1 alleged to have purchased half share of

A.S.238 of 2014

Page No.9 of 14

Kuntimalla Narsaiah S/o.Mallaiah in the year 1974 itself after Ex.A2 and A3.

13. Admitted facts need not be proved. Both plaintiffs and defendant not filed registered sale deed or any sale deed to

establish that the suit land was purchased by DW1 and Kuntimalla

Narsaiah. It is an admitted fact as per the written statement pleadings and the evidence of DW1 that till 2000-01 the name of DW1 not mutated in the revenue records as the absolute owner of the suit property. The suit is filed on 03.01.2007. No document whatsoever is filed by DW1 to establish that he acquired title/rights over the Ac.1-00 alleged to have been sold by Kuntimalla Narsaiah S/o.Mallaiah under the law of adverse possession or ouster. Therefore, burden is on DW1 to prove that he purchased the property at first and otherwise also became absolute owner of the Ac.1-00 under law of adverse possession or ouster.

In the absence of such evidence, DW1 cannot be permitted to claim absolute rights over the entire suit land of Ac.2-00 by denying the rights of Kuntimalla Narsaiah and his legal heirs. As both of them jointly purchased, one has to infer joint possession also. It may as it be there.

14. It is the contention of DW1 that, when he was exclusively enjoying the Ac.2-00 as the absolute owner, Mr.Donkani Pentaiah and two others interfered with his possession by denying the title, as such, filed

O.S.No.47/2004 before Junior Civil Judge, Ibrahimpatnam, for declaration of

title and for permanent injunction, which was decreed in his favour. To establish the same filed the plaint copy, Judgment and Decree in

O.S.No.47/2004 dated 29.09.2004. This is an exparte decree and the

defendants therein not made their appearance at all. It is very important to note that, any of the plaintiffs herein, husband of the 1st plaintiff herein

A.S.238 of 2014

Page No.10 of 14 or father-in-law of 1st plaintiff is not made as a party to O.S.No.47/2004.

Irrespective of the pleadings in the plaint, O.S.No.47/2004 is not binding on the plaintiffs herein, because they are not parties to the same.

Therefore, all the documents that are being filed relating to

O.S.No.47/2004 are not admissible in evidence in the present case on

hand, which was filed for partition.

15. DW1 also filed proceedings of the R.D.O in Case

Nos.A2/5277/2012 dated 16.03.2016 filed by him against 1st plaintiff, plaintiffs 5 and 6 herein aggrieved by the orders of Tahsildar,

Ibrahimpatnam in File No.D/2226/2012 dated 22.06.2012. This appeal was dismissed confirming the order of the Tahsildar and given more emphasis regarding the pendency of the present suit for partition. So, the said proceedings of the R.D.O are no way helpful to the DW1 to claim that he is the absolute owner of the entire suit land to a extent of Ac.2-00, more particularly, to the Ac.1-00, which was alleged to have purchased from Kuntimalla Narsaiah. The respondents, who are plaintiffs 1, 5 and 6 in the above proceedings before the R.D.O put forward the same version as pleaded in the present plaint filed for partition. The other documents filed by DW1 are reopen petition in O.S.No.2/2007, to receive documents i.e., (1) plaint in O.S.No47/2004 (2) Judgment and Decree in

O.S.No.47/2004 and to recall DW1 to mark them on the ground that by

mistake they were not marked and he was under the impression that the

Court below would consider the same, since they were filed at the stage of arguments. These arguments cannot be taken into consideration or appreciated in the absence of plaintiffs herein as parties to

O.S.No.47/2004.

16. DWs.2 and 3 stated in the chief examination that, DW1

A.S.238 of 2014

Page No.11 of 14 purchased the Ac.1-00 from K.Narsaiah, who relinquished his share over

Ac.1-00 . DW2 stated in the cross examination that he does not know

when DW1 and K.Narsaiah purchased the land; that when oral

settlement took place between Narsaiah and DW1; that what was

the consideration for such oral settlement and does not know

when Narsaiah relinquished his rights over Ac.1-00. DW3 deposed that, originally, DW1 and Mallaiah (probably father-in-law of 1st plaintiff) purchased the suit land from the original pattedar; that does not

know DW1 and Narsaiah making any oral settlement and Narsaiah

relinquishing his rights in favour of DW1 by receiving money over

his half share of Ac.1-00. DW1 in the cross examination admitted that

Kuntimalla Narsimham, father of plaintiffs 2 to 4, and husband of 1st plaintiff was the eldest son of Kuntimalla Mallaiah and Mallaiah is his elder brother. He also stated that he (DW1) alone filed O.S.No.43/1974 against

Hussaini Bee and others, which is palpably false. So, the defendant failed to establish his purchase of Ac.1-00 i.e., half of the suit schedule property from the husband of 1st plaintiff and the vendor relinquished his rights over the Ac.1-00. Accordingly, point No.2 is answered against the respondent/defendant.

17. Then, coming to the petition in I.A.No.101/2020 filed by the appellants/plaintiffs under Order 41 Rule 27 C.P.C to receive the documents. In the counter, the respondent/defendant vociferously contended that these documents were obtained prior to filing of the suit i.e., in the year 2005 and the alleged contention that they were mixed with the old papers and found only at the time of recently shifting the house is a concocted story and on the other hand, these documents are created and so, requested to dismiss the petition. It is also contended by the respondent/defendant that, recently he filed RTI to secure those

A.S.238 of 2014

Page No.12 of 14 documents, but said application was returned with an endorsement that the documents are damaged and certified copies cannot be furnished. It shows, these documents are prepared with anti date and so, requested to dismiss the petition. It is important to note that, perusal of the documents would reveal that they are of the year 2005. No whisper was made at the time of adducing the evidence before the Court below that the documents were obtained and they were missing. It is also important to note that, even if the documents were missing, there is no embargo for the appellants/plaintiffs to again obtain certified copies while leading evidence and those documents should have been marked at the time of their evidence. Without taking any such steps, only in the year 2019 this petition is filed to receive the documents and mark them as additional evidence. In view of the discussions made as above, I am of the view that the appellants/plaintiffs failed to bring the circumstances within the fore corners of Order 41 Rule 27 C.P.C to receive the documents. Therefore, the petition is liable for dismissal.

18. Then, coming to the petition filed by the respondent/defendant to receive the RTI application made by him as an additional evidence, I am of the view that as I.A.No.101/2020 is dismissed, the petition of the respondent/defendant lost its importance and it also cannot be entertained. Accordingly, point No.4 is answered against both the parties.

19. It is the contention of respondent/defendant that, as the appellants/plaintiffs are not specific about the plea of title and they have changed version from the pleadings to the evidence, the suit is liable for dismissal. In other words, it is his conention that as per the plaint pleadings, the property originally belonged to Kuntimalla Mallaiah and

A.S.238 of 2014

Page No.13 of 14 subsequently, in the evidence they have contended that it was purchased by the husband of 1st plaintiff and in view of the two divergent views taken up by the plaintiffs, the suit has to be dismissed. I am of the view

that, the arguments advanced by the defendant cannot be

appreciated for the following reasons, viz., (1) If the property originally purchased by Kuntimalla Mallaiah and DW1, the legal heirs of

Kuntimalla Mallaiah are entitled for share in it, i.e., husband of 1st plaintiff, plaintiffs 5 and 6. (2) If the property is purchased by the husband of 1st plaintiff, the plaintiffs 5 and 6 are not entitled for a share and the legal heirs, i.e., plaintiffs 1 to 4 alone are entitled for share in the property.

(3) The other circumstance is that, even if it is purchased by the husband of 1st plaintiff and for any reason it is purchased with the nucleus of the joint family, then also all the plaintiffs are entitled for share in it, of course, it is not their contention that the suit property was purchased with the nucleus of the joint family. In any view of the matter, there is no

dispute among the plaintiffs in sharing the suit schedule property.

All of them are in one voice contending that the defendant is

having only half share in the suit property and the other half

belonged to them. Whether it is purchased by Kuntimalla Mallaiah or the husband of 1st plaintiff, they are entitled for half share in the suit schedule property, more so, when the defendant failed to establish that he purchased the half share from the husband of 1st plaintiff. DW1 also failed to prove that the husband of 1st plaintiff relinquished his rights over the

Ac.1-00, i.e., half of the suit schedule property. Therefore, I am of the view that, plaintiffs are entitled for a decree. Accordingly, point No.1 is answered in favour of the appellants/plaintiffs.

20. The Court below failed to observe that the defendant miserably failed to establish that he purchased the half share i.e., Ac.1-00 from the

A.S.238 of 2014

Page No.14 of 14 husband of 1st plaintiff and ever since the same, he has been in possession and enjoyment of the property. As already stated supra, the defendant failed to prove his possession under law of adbverse possession or ouster. Accodingly, poiont No.4 is answered by holding that the

Judgment of the Court below is not sustainable under law and it is

liable to be set aside.

21. In the result, the appeal is allowed by setting aside the Judgment of the Court below in O.S.No.2/2007 dated 12.11.2014. The plaintiffs are entitled for half share in the suit schedule property. Accordingly, a preliminary decree is passed with costs throughout.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on this the 30th day of November, 2020.

II Additional District Judge,

Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

II Additional District Judge, Ranga Reddy District.

A.S.238 of 2014

Page No.15 of 14

BEFORE THE CHAIRMAN MACT -CUM

II ADDL. DISTRICT JUDGE, RANGA REDDY DISTRICT,

AT L.B.NAGAR

PRESENT : V.V.SESHU BABU, Chairman MACT-cum-II ADJ

Wednesday, the 18 th day of November, 2020.

M.V.O.P. No.273 of 2018

Between:

1. Smt.Palleti Chandrakala W/o.P.Chandraiah, Aged about 43 years, Occ: Service,

2. Palleti Chandraiah, S/o.late P.Sailu, Aged about 51 years, Occ: Service,

3. P.Swathi, D/o.P.Chandraiah, Aged about 24 years, Occ: Student,

4. P.Swetha, D/o.P.Chandraiah, Aged about 19 years, Occ: Household,

All are R/o.H.No.11-21-357, N.T.R.Nagar, L.B.Nagar, Saroornagar, R.R.District. … Petitioners

AND

1. Bheem Singh Rathod S/o.Rathod Kalu Singh, Aged: Major, Occ: Business, R/o.Omlanaik Tanda, Tateepally Village, Peddemul Mandal, Ranga Reddy District, T.S 501 141.

2. The Bajaj Alliance General Insurance Co.Ltd., Rep.by its Manager, IV Floor, North East Plaza, Beside BMW Showroom, Yerra Mangil X Roads, Hyderabad.

(Policy No. 6B-18-1529-1803-00024259, Valid from 30-01-2018 to 29-01-2019)

3. Tabrez MD S/o.Shaik Mehbub, Aged about 38 years, Occ: Lorry Driver, R/o.H.No.2-1-1/295, NTR Colony, Tandur, Vikarabad District, T.S 501 141. … Respondents

This petition is coming before me on 22.10.2020 in the presence of Sri P.Venkateshwarlu, counsel for petitioners, Sri K.Ramchander Rao, counsel for respondents 1 & 3, Sri C.Chakradhar, counsel for respondent

No.2, and upon hearing both sides, perusing the material on record and having stood over the matter for consideration till this day, this court passed the following:

MVOP 273 of 2018 Page No. 2 of 10

A W A R D

01.The Claim Petition is filed u/S.166 of the M.V.Act r/w Rule 475(1)(b) of A.P.M.V.Rules claiming compensation of Rs.25,00,000/- for the death of Palleti Praveen Kumar (hereafter referred as ‘deceased’) in a motor accident that toomk place on 22.02.2018 at about 13:45 hours near Pipes Company at Agapally Village, Manchal Mandal, Ranga Reddy

District, within the jurisdictional limits of P.S.Manchal.

02.The brief averments of the petition are that, petitioners 1 and 2 are parents and petitioners 3 and 4 are sisters of the deceased

Praveen Kumar; that deceased is 23 years old and working as Bike Team

Technician in Skyway Networks at the time of accident and getting monthly income of Rs.11,000/- besides earning Rs.9,000/- p.m by working as part time driver and in total earning Rs.20,000/- p.m; that on 22.02.2018 at about 3.00 p.m the deceased and his father were proceeding to Nampally in Nalgonda District from Hyderabad in order to pay open 10th Class exam fee on their Splendor bike bearing No.AP 09

AM 9360; that when they reached near Pipes Company, Agapally Village, respondent No.3, being the driver of Lorry bearing No. AP 24 W 4196 drove the same in a rash and negligent manner and dashed the bike of the deceased from opposite direction, due to which, the deceased died on the spot and his father sustained multiple fractures and was shifted to Nizam’s Institute of Medical Sciences; that police Manchal registered a case in Cr.No.28/2018 u/Ss.304-A and 338 IPC against the respondent

No.3; that the deceased was hale and healthy at the time of accident and due to his sudden demise, the petitioners are put to mental agony; that respondent No.1 is the owner and respondent No.2 is the insurer of the lorry; that as the accident occurred only due to the rash and negligent driving of respondent No.3, all the respondents are jointly and

MVOP 273 of 2018 Page No. 3 of 10 severally liable to pay the compensation of Rs.25,00,000/- @ 18% p.a from the date of petition till realization. Hence, the claim petition.

03.Respondents No.1 and 3 filed joint counter and the brief averments of the same are that, the accident occurred only due to the rash and negligent driving of the deceased, who was a minor and not holding any driving license; that the bike of deceased was proceeding at a high speed of 70 to 80 kmph, whereas, respondent No.3 was driving the lorry at a speed of 30 to 40 kmph; that the father of deceased being a pillion rider on the bike tried to arrange helmet on his son/deceased while the bike was moving and due to the same, there was obstruction to the vision of his son and as he was driving the bike at a high speed, himself came and dashed the lorry of respondent No.3, which was proceeding to its extreme left side of the road; that by suppressing the real facts the claim petition is filed and so, requested for dismissal of the petition with exemplary costs.

04.The brief averments of the counter of respondent No.2 are that, the petitioners are put to strict proof of the age, occupation, income of the deceased; that the lorry was insured by respondent No.2 in the name of respondent No.1 at the time of accident; that the driver of lorry/R3 was not holding valid driving license; that the deceased, who is riding the bike at the time of accident, is also not holding driving license and the accident occurred only due to his rash and negligent driving; that respondent No.1 violated the terms and conditions of the policy by entrusting the vehicle to respondent No.3, who was not holding driving license; that the petition is bad for non-joinder of owner and insurer of the bike, on which the deceased was travelling; that the claim amount is excessive; that the claimed rate of interest is usurious; that the petitioner shall prove his entitlement for the claimed amount;

MVOP 273 of 2018 Page No. 4 of 10 that the petitioners has to furnish the PAN number and KYC details of the deceased, which are required as per the provisions of IT Act and also his

Aadhar Card details. With these pleas, prayed for dismissal of the petition with costs.

05. Basing on the pleadings of both sides, the following issues are settled for trial:

1.Whether accident occurred on 22.02.2018 at 1.45 p.m near Pipes Company at Agapally Village, Manchal Mandal, R.R.District, due to rash and negligent driving of Lorry bearing No.AP 24W 4196 by the respondent No.3 herein?

2.Whether the petitioner is entitled to compensation, if so, to what amount and from which respondent?

3. To what relief?

06.To prove the case, PWs.1 to 4 are examined and Exs.A1 to

A8 are marked for the petitioner. No witness is examined for the respondents, but Ex.B1 is got marked with consent for the respondent

No.2.

07.Heard the arguments of both sides. Written arguments filed by both sides.

08. ISSUE No.1: This is a case of overhead collision between the lorry and the motorbike on the middle of the road. Admittedly, the son of PWs.1 and 2 was riding the motorbike and respondent No.3 was driving the lorry. One side is blaming the other that the entire negligence lies with the opposite party. It is the contention of counsel

for respondent No.2 that the deceased was a minor by the date of

accident and in spite of not having any knowledge about the driving, did so, hence, the accident occurred due to the rash and negligent driving of the deceased, coupled with the same, at the time of incident vision

MVOP 273 of 2018 Page No. 5 of 10 of the deceased being obstructed by PW2, as he attempted to place helmet on the head of the deceased just before the accident. In order to disprove the deceased as minor, the driving licence of the deceased was marked as Ex.A7 and as per the same, the deceased was born on 15.01.1996. The accident took place on 22.02.2018. It means, by the date of accident, the deceased Praveen Kumar, who was riding the motor bike, was aged 22 years.

09. PW2, who is the injured/eye witness, categorically stated that when the bike was proceeding, the lorry came in the opposite direction and dashed the bike. Respondent No.2 not at all examined the driver of lorry/R3 to establish that just before the accident PW2 tried to place helmet on the head of deceased, who was riding the motorbike, thereby obstructed his vision, which resulted in the accident. No eye witness is also examined to prove the same. PW2 categorically denied the placing of helmet on the head of deceased etc,. Therefore, the contention of respondent No.2 cannot be accepted.

10. Photostat copy of the place of accident is confronted to PW2 and he stated by seeing it that his son fell down on the road and bike was also on the road at some distance. Even though respondents 1 and 3 along with the counter filed copy of the photo, it is not exhibited.

Therefore, it cannot be taken into consideration. As per the said photograph, the deceased was found lying on the white marks painted on the middle of the road, so also the motorbike. It is important to

note that just by seeing the photo, one cannot decide who is at

fault. Admittedly, the police filed charge sheet under Ex.A2 against the

R3 for his rash and negligent driving for the offences u/Ss.304-A and

MVOP 273 of 2018 Page No. 6 of 10 338 IPC. The counsel for respondent No.2 relied upon the following case law:

(1) (2012) 4 SCC 552

Surinder Kumar Arora Vs. Manoj Bisla

Once the claimants approached the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned.

(2) The New India Assurance Co.Ltd.,

Vs

Sinjini Gupta and others

In a proceeding under Section 166 of the Motor Vehicle Act unless it is established that due to rash and negligent act on the part of the owner or driver of a vehicle the death occurred, no compensation should be payable at the instance of the owner of the said vehicle.

11. I am of the view that the above case law is not applicable to the facts of the present case, because, PW2, who is injured eye witness, categorically stated that the entire negligence lies with the respondent

No.3. There is no reason to disbelieve the version of PW2. More so, no material whatsoever is placed by the respondent No.2 before the Court to establish the contributory negligence of the deceased with the help of documents like rough sketch, scene of offence panchanama, examination of independent eye witness, etc. So, the issue is answered by holding that respondent No.3 is responsible for the accident by driving the lorry bearing No. AP 24 W 4196 in a rash and negligent manner.

12. Issue No.2: As per Ex.A7, the date of birth of the deceased is 16.01.1996. So, as on the date of accident, his age is about 22 years.

As per the Judgment in Sarala Varma’s case, multiplier of 18 is applicable

MVOP 273 of 2018 Page No. 7 of 10 to the persons in the age group of 21 to 25 years. Therefore, multiplier 18 can be applied in this case. Likewise, for self employed or persons on fixed salaries, if their age is below 40 years, 40% hike can be taken into consideration from the existing income towards future prospects. It may as it be there.

13. In the claim application, the employment of deceased is mentioned as bike team technician and part time driver. PW3 is the

Paster and said to be founder president of Jesus Grace Church Ministries at L.B.Nagar, Hyderabad. Ex.A8 is the salary certificate issued by PW3 and as per the same, the deceased has been working under him for the last 2 years by receiving a salary of Rs.9,000/- p.m. The registration number of said Ministries is not mentioned anywhere on Ex.A8. It is also not mentioned whether the employment is full time or part time. In any view of the matter, normally car drivers used to earn around Rs.9,000/- p.m during the days of accident. As per Ex.A7, deceased was having

Light Motor Non-transport license. There is evidence from the parents of the deceased i.e., PWs.1 and 2 that deceased used to be a driver. There is no reason to disbelieve their version. Therefore, I am of the view that the salary of deceased can be taken as Rs.9,000/- p.m by the date of accident.

14. PW4, who claimed himself as Team leader in Skyway Net

Works, stated that since 2017 till the death deceased worked in their organization by drawing a salary of Rs.11,000/- p.m. PW4 further stated that the duty timings are from 9.30 a.m to 6.30 p.m. In such case, it is difficult to believe that the deceased used to attend as part time driver under PW3. For a part time driver nobody would pay Rs.9,000/- p.m.

Therefore, employment under PW3 is difficult to believe. PW4 stated in

MVOP 273 of 2018 Page No. 8 of 10 the cross examination that there is attendance register in their organization to know the presence of employees for work besides bio metric system. But those documents are not filed into the Court. He further stated that he was only deposing on the instructions of owner Mr.

Nani, but cannot say who issued Ex.A6 salary certificate. No supporting document to Ex.A6 is filed to show that deceased was a full time employee in Skyway Networks and drawing Rs.11,000/- p.m. As already stated supra, in view of the deceased holding license to drive light motor vehicle, his occupation can be considered as a driver so also his income at Rs.9,000/- p.m. After adding future prospects of 40%, the monthly income comes to Rs.12,600/-, annual income comes to Rs.1,52,200/- and multiplied by 18 comes to Rs.27,21,600/- and it is the total income of the deceased.

15. PWs.1 and 2 are the parents of deceased and they are also employees. PW1 stated that she was a Sweeper in GHMC and earning

Rs.11,000/- p.m. PW2 is a driver in TSRTC and his services were terminated after the accident due to amputation of right leg above knee.

So, they are not dependents on the deceased. Petitioners 3 and 4 are the sisters of deceased, who attained majority. PW1 deposed that she along with PW2 were providing all basic day to day necessities to the petitioners 3 and 4 and they are not dependents on the deceased. The deceased is an un-married person. Taking all these aspects into consideration, I am of the view that half of the income of deceased is to be deducted towards his personal expenses and the remaining half shall be taken as contribution to the family. So, petitioners are entitled to

Rs.13,60,800/- towards loss of earnings of the deceased. Besides this, petitioners are entitled to Rs.1,00,000/- towards loss of estate,

MVOP 273 of 2018 Page No. 9 of 10

Rs.25,000/- towards funeral expenses and towards loss of love and affection of a son the petitioners 1 and 2 are entitled to Rs.25,000/- each.

Altogether, petitioners are entitled to Rs.15,35,800/- as compensation.

16. As per Ex.B1, the policy was in force for the lorry as on the date of accident and it was in the name of respondent No.1. Nobody is examined to prove that respondent No.3 is not holding valid driving license. As per the MVI report under Ex.A3, respondent No.3 is having valid driving license by the date of accident and it is a Heavy Motor

Vehicle License. Therefore, respondent No.2 cannot avoid the liability to pay the compensation due to vicarious liability. Therefore, respondents 1 to 3 are jointly and severally liable to pay the compensation.

17. At the time of arguments, it is submitted that the petitioner dragged on the matter, as such not entitled for interest and further argued that due to Covid and as per the guidelines of Hon’ble Supreme

Court of India, respondent No.2 shall not be ordered to pay interest from 24.03.2020 to 08.10.2020 and filed I.A No.122/2020 to that effect. I am also of the view that as both sides have suffered due to Covid, the rate of interest during that period is to be reduced to half of the interest that will be granted to the petitioner to the rest of the period of pendency of the petition. The issue is accordingly answered.

18. Issue No.3: In the result, the claim application is partly allowed, awarding compensation of Rs.15,35,800/- (Rs. Fifteen Lakhs Thirty Five

Thousand and Eight Hundred only) with proportionate costs and interest @ 7.5% p.a from the date of petition till the date of realization against the respondents 1 to 3, except from 25.03.2020 to 08.10.2020, during which period half of 7.5% interest is awarded; that respondents 1 to 3 are jointly and severally liable to pay the said compensation; that time for

MVOP 273 of 2018 Page No. 10 of 10 deposit is one month; that out of the compensation amount, petitioners 1 and 2/parents are each entitled to Rs.5,67,900/- with accrued interest thereon and costs and petitioners 3 and 4 are each entitled to

Rs.2,00,000/- with accrued interest thereon; that on deposit, petitioners are permitted to withdraw the entire amount; that advocate fee is fixed at

Rs.3,000/-; that the court fee shall be deducted from and out of the amount payable to the petitioners, since they are exempted from paying court fee at the time of filing the original petition.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the 18th day of

November, 2020.

Chairman, MACT-cum- II Additional District Judge Ranga Reddy District

Appendix of Evidence

Witnesses Examined

For Petitioners:

PW1 - P.Chandrakala PW2 - P.Chandraiah PW2 - Rev.Dr.M.S.Dayanand PW3 - G.Naresh Babu

For Respondents: NIL

Exhibits Marked

For Petitioners:

Ex.A1 - CC of FIR dt.22.02.2018 in Cr.No.28/2018 of P.S.Manchal Ex.A2 - CC of Charge Sheet dt.22.02.2018 Ex.A3 - CC of Inquest panchanama Ex.A4 - CC of Postmortem Report Ex.A5 - CC of MVI Report Ex.A6 - Salary Certificate of deceased issued by Skyway Networks Ex.A7 - Driving License of deceased Ex.A8 - Salary Certificate of deceased issued by PW3

For Respondent No.2:

Ex.B1 - True copy of insurance policy for Lorry No.AP 24W 4196

Chairman, MACT-cum- II Addl. District Judge, Ranga Reddy District

MVOP 273 of 2018 Page No. 11 of 10

BEFORE THE CHAIRMAN MACT -CUM

II ADDL. DISTRICT JUDGE, RANGA REDDY DISTRICT,

AT L.B.NAGAR

PRESENT : V.V.SESHU BABU, Chairman MACT-cum-II ADJ

Wednesday, the 18th day of November, 2020.

M.V.O.P. No.272 of 2018

Between:

Palleti Chandraiah S/o.late P.Sailu, Aged 51 years, Occ: Service, R/o.H.No.11-21-357, NTR Nagar, L.B.Nagar, R.R.District, Telangana State 500 074. … Petitioner AND

1. Bheem Singh Rathod S/o.Rathod Kalu Singh, Aged: Major, Occ: Business, R/o.Omlanaik Tanda, Tateepally Village, Peddemul Mandal, Ranga Reddy District, T.S 501 141.

2. The Bajaj Alliance General Insurance Co.Ltd., Rep.by its Manager, IV Floor, North East Plaza, Beside BMW Showroom, Yerra Mangil X Roads, Hyderabad.

(Policy No. 6B-18-1529-1803-00024259, Valid from 30-01-2018 to 29-01-2019)

3. Tabrez MD S/o.Shaik Mehbub, Aged about 38 years, Occ: Lorry Driver, R/o.H.No.2-1-1/295, NTR Colony, Tandur, Vikarabad District, T.S 501 141. … Respondents

This petition is coming before me on 22.10.2020 in the presence of Sri P.Venkateshwarlu, counsel for petitioners, Sri K.Ramchander Rao, counsel for respondents 1 & 3, Sri C.Chakradhar, counsel for respondent No.2, and upon hearing both sides, perusing the material on record and having stood over the matter for consideration till this day, this court passed the following:

A W A R D

01.The Claim Petition is filed u/S.166 of the M.V.Act r/w Rule 475(1)(b) of A.P.M.V.Rules claiming compensation of Rs.35,00,000/- for the injuries sustained by the petitioner in a motor accident that took place on 22.02.2018 at about 13:45 hours near Pipes Company at

Agapally Village, Manchal Mandal, Ranga Reddy District, within the jurisdictional limits of P.S.Manchal.

MVOP 272 of 2018 Page No. 2 of 10

02.The brief averments of the petition are that, the petitioner is 51 years and working as driver in TSRTC at the time of accident and drawing Rs.38,000/- p.m; that on 22.02.2018 at about 3.00 p.m the petitioner and his son by name Praveen Kumar were proceeding to

Nampally in Nalgonda District from Hyderabad in order to pay open 10th

Class exam fee on their Splendor bike bearing No.AP 09 AM 9360; that when they reached near Pipes Company, Agapally Village, respondent

No.3, being the driver of Lorry bearing No. AP 24 W 4196 drove the same in a rash and negligent manner and dashed the bike of the petitioner from opposite direction, due to which, the son of the petitioner died on the spot and the petitioner sustained multiple fractures; that the petitioner was shifted to Nizam’s Institute of Medical Sciences,

Panjagutta and undergone 3 surgeries on 25.02.2018, 03.03.2018 and 10.03.2018 and was discharged on 15.03.2018; that the right leg of the petitoner was amputated above the knee; that police Manchal registered a case in Cr.No.28/2018 u/Ss.304-A and 338 IPC against the respondent

No.3; that the petitioner was hale and healthy at the time of accident and incurred more than Rs.2 lakhs for the treatment and medicines; that unable to attend the duties due to the amputation of leg; that respondent No.1 is the owner and respondent No.2 is the insurer of the lorry; that as the accident occurred only due to the rash and negligent driving of respondent No.3, all the respondents are jointly and severally liable to pay the compensation of Rs.35,00,000/- @ 18% p.a from the date of petition till realization; hence, the claim petition.

03.Respondents No.1 and 3 filed joint counter and the brief averments of the same are that, the accident occurred only due to the rash and negligent driving of the son of the petitioner, who was a minor and not holding any driving license; that petitioner’s bike was

MVOP 272 of 2018 Page No. 3 of 10 proceeding at a high speed of 70 to 80 kmph, whereas, respondent No.3 was driving the lorry at a speed of 30 to 40 kmph; that the petitioner being a pillion rider on the bike tried to arrange helmet on his son while the bike was moving and due to the same, there was obstruction to the vision of his son and as he was driving the bike at a high speed, himself came and dashed the lorry of respondent No.3, which was proceeding to its extreme left side of the road; that by suppressing the real facts the claim petition is filed and so, requested for dismissal of the petition with exemplary costs.

04.The brief averments of the counter of respondent No.2 are that, the petitioner is put to strict proof of his age, occupation, income and his present disability; that the lorry was insured by respondent No.2 in the name of respondent No.1 at the time of accident; that the driver of lorry/R3 was not holding valid driving license; that the son of petitioner is also not holding driving license and the accident occurred only due to his rash and negligent driving; that respondent No.1 violated the terms and conditions of the policy by entrusting the vehicle to respondent No.3, who was not holding driving license; that the petition is bad for non-joinder of owner and insurer of the bike, on which the petitioner was travelling; that the claim amount is excessive; that the claimed rate of interest is usurious; that the petitioner shall prove his entitlement for the claimed amount; that the petitioner has to furnish the PAN number and KYC details, which are required as per the provisions of IT Act and also his Aadhar Card details. With these pleas, prayed for dismissal of the petition with costs.

MVOP 272 of 2018 Page No. 4 of 10

05.As per the orders of the Hon’ble Prl.District & Sessions Judge,

R.R.District, vide Order Dis.No.4650/2019 dt.23.07.2019, the case was transferred to this Court from the Court of I Addl.District & Sessions

Judge, R.R.District.

06. As issues are not framed, they are settled like the following:-

1.Whether accident occurred on 22.02.2018 at 1.45 p.m near Pipes Company at Agapally Village, Manchal Mandal, R.R.District, due to rash and negligent driving of Lorry bearing No. AP 24-W 4196 by the respondent No.3 herein?

2.Whether the petitioner is entitled to compensation, if so, to what amount and from which respondent?

3. To what relief?

07.To prove the case, PWs.1 to 3 are examined and Exs.A1 to

A13 and Exs.X1 & X2 are marked for the petitioner. No witness is examined for the respondents, but Ex.B1 is got marked with consent for the respondent No.2.

08.Heard the arguments of both sides. Written arguments filed by both sides.

09. ISSUE No.1: This is a case of overhead collision between the lorry and the motorbike on the middle of the road. Admittedly, the son of PW1 was riding the motorbike and respondent No.3 was driving the lorry. One side is blaming the other that the entire negligence lies with the opposite party. It is the contention of counsel for respondent No.2 that the deceased was a minor by the date of accident and in spite of not having any knowledge about the driving, did so and hence, the accident occurred due to the rash and negligent driving of the deceased coupled with the same, at the time of incident vision of the deceased

MVOP 272 of 2018 Page No. 5 of 10 being obstructed by PW1, as he attempted to place helmet on the head of the deceased just before the accident. In order to disprove the deceased as minor, the driving licence of the deceased was filed in

M.V.O.P No.273/2018, wherein, it was marked as Ex.A7 and as per the same, the deceased was born on 15.01.1996. The accident took place on 22.02.2018. It means, by the date of accident, the deceased Praveen

Kumar, who was riding the motor bike, was aged 22 years.

10. PW1, who is the injured/eye witness, categorically stated that when the bike was proceeding, the lorry came in the opposite direction and dashed the bike. Respondent No.2 not at all examined the driver of lorry/R3 to establish that just before the accident PW1 tried to place helmet on the head of deceased, who was riding the motorbike, thereby obstructed his vision, which resulted in the accident. No eye witness is also examined to prove the same. PW1 categorically denied the placing of helmet on the head of deceased etc,. Therefore, the contention of respondent No.2 cannot be accepted.

11. Photostat copy of the place of accident is confronted to PW1 and he stated by seeing it that his son fell down on the road and bike was also on the road at some distance. Even though respondents 1 and 3 along with the counter filed copy of the photo, it is not exhibited.

Therefore, it cannot be taken into consideration. As per the said photograph, the deceased was found lying on the white marks painted on the middle of the road, so also the motorbike. It is important to

note that just by seeing the photo, one cannot decide who is at

fault. Admittedly, the police filed charge sheet under Ex.A2 against the

R3 for his rash and negligent driving for the offences u/Ss.304-A and 338

IPC. The counsel for respondent No.2 relied upon the following case law:

MVOP 272 of 2018 Page No. 6 of 10 (1) (2012) 4 SCC 552

Surinder Kumar Arora Vs. Manoj Bisla

Once the claimants approached the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned.

(2) The New India Assurance Co.Ltd.,

Vs

Sinjini Gupta and others

In a proceeding under Section 166 of the Motor Vehicle Act unless it is established that due to rash and negligent act on the part of the owner or driver of a vehicle the death occurred, no compensation should be payable at the instance of the owner of the said vehicle.

12. I am of the view that the above case law is not applicable to the facts of the present case, because, PW1, who is injured eye witness, categorically stated that the entire negligence lies with the respondent

No.3. There is no reason to disbelieve the version of PW1. Moreso, no material whatsoever is placed by the respondent No.2 before the Court to establish the contributory negligence of the deceased with the help of documents like rough sketch, scene of offence panchanama, examination of independent eye witness, etc. So, the issue is answered by holding that respondent No.3 is responsible for the accident by driving the lorry bearing No. AP 24 W 4196 in a rash and negligent manner.

13. ISSUE No.2: Ex.A5 is the OP Card issued by Kamineni

Hospital dated 22.02.2018 at 3:46:53 p.m. As per the same, PW1 met with a road traffic accident on 22.02.2018 around 2.00 p.m dashed by a lorry while travelling on a bike; that he sustained (1) fracture of right upper limb (2) fracture of right lower limb and he was treated under

MVOP 272 of 2018 Page No. 7 of 10

Arogya Sree Scheme. Ex.A4 is the photostat copy of Wound Certificate issued by NIMS, Hyderabad. It shows the injuries of (1) closed middle third humerus fracture right + Olecranon fracture right + pubic diastasis fracture (2) Grade IIIC compound distal third femur fracture left with bone loss with communited proximal tibia with vascular injury (3) surgeries of (a) above knee amputation right (b) ORIF with plating humerus right + TBW olecranan right (c) Pubic symphysis plating with 5 holed DCP. The petitioner was admitted on 23.01.2018 and discharged on 15.03.2018 and the injuries are grievous in nature. No case sheet and discharge summary issued by NIMS are filed. It shows, PW1 was treated under Arogya Sree Scheme and for that reason, he had not filed any original documents. Therefore, no compensation can be awarded towards treatment and expenditure incurred for the same.

14. PW1 claimed himself as driver in TSRTC at the time of accident. Ex.X1 is the photo copy of the Service Register of PW1 and as per the same, he was born on 04.08.1063. So, by the date of accident, his age is 55 years plus. Ex.X2 is the office order copy and it shows,

PW1 retired from the service on medical grounds with effect from 11.09.2018 due to his post traumatic above knee amputation of right leg, but mentioned that he is eligible for additional monetary benefits.

So, due to the accident his right leg was removed above knee and he suffered a permanent disability. He also sustained fractures as stated supra. He has to spend rest of his life without the right leg. PW2 issued the Disability Certificate under Ex.A13 by assessing the disability at 85%. Though PW2 stated that he treated PW1 as an outpatient, no piece of paper is filed to that effect. PW2 is an Orthopedic Surgeon, of course doing private practice. Therefore, he is competent to assess the disability. Ex.A7 is also certificate for person with disability, of course, a

MVOP 272 of 2018 Page No. 8 of 10 note was made on the document itself that it is not valid for medico legal cases. However, the disability is assessed at 85%. Therefore, the disability can be taken as 85%.

15. Ex.X1 goes to show that PW1 received 90% of the gratuity and other benefits and he was also given additional monetary benefits for the failure of the Department to provide alternative category job to him and also received earned leave amount, etc. Taking into consideration the amounts received by PW1 i.e., 90% gratuity at

Rs.2,89,233/- besides 10% gratuity at Rs.32,137/-, RPS amount of

Rs.82,345/-, earned leave amount of Rs.3,09,966/-, etc., a sum of

Rs.10,00,000/- can be awarded towards permanent disability and loss of amenities in future, etc. Towards pain and suffering, another

Rs.2,00,000/- can be awarded as compensation. The petitioner was hospitalized for nearly one month with injuries sustained in the accident and might have taken 2 months rest for healing of fractures. So, towards loss of earnings for 3 months a sum of Rs.1,00,000/- can be awarded, as his gross salary was Rs.37,654/- p.m as per Ex.A10. So,

altogether petitioner is entitled for Rs.13,00,000/- as

compensation.

16. As per Ex.B1, the policy was in force for the lorry as on the date of accident and it was in the name of respondent No.1. Nobody is examined to prove that respondent No.3 is not holding valid driving license. As per the MVI report under Ex.A3, respondent No.3 is having valid driving license by the date of accident and it is a Heavy Motor

Vehicle License. Therefore, respondent No.2 cannot avoid the liability to pay the compensation due to vicarious liability. Therefore, respondents 1 to 3 are jointly and severally liable to pay the compensation.

MVOP 272 of 2018 Page No. 9 of 10

17. At the time of arguments, it is submitted that the petitioner dragged on the matter, as such not entitled for interest and further argued that due to Covid and as per the guidelines of Hon’ble Supreme

Court of India, respondent No.2 shall not be ordered to pay interest from 24.03.2020 to 08.10.2020 and filed I.A No.122/2020 to that effect. I am also of the view that as both sides have suffered due to Covid, the rate of interest during that period is to be reduced to half of the interest that will be granted to the petitioner to the rest of the period of pendency of the petition. The issue is accordingly answered.

18. Issue No.3: In the result, the claim application is partly allowed, awarding compensation of Rs.13,00,000/- (Rs. Thirteen Lakhs only) with proportionate costs and interest @ 7.5% p.a from the date of petition till the date of realization against the respondents 1 to 3, except from 25.03.2020 to 08.10.2020, during which period half of 7.5% interest is awarded; that respondents 1 to 3 are jointly and severally liable to pay the said compensation; that time for deposit is one month; that on such deposit, petitioner is permitted to withdraw the entire amount; that advocate fee is fixed at Rs.3,000/-; that the court fee shall be deducted from and out of the amount payable to the petitioners, since they are exempted from paying court fee at the time of filing the original petition.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the

Chairman, MACT-cum- II Additional District Judge Ranga Reddy District

MVOP 272 of 2018 Page No. 10 of 10

Appendix of Evidence

Witnesses Examined

For Petitioners:

PW1 - P.Chandraiah PW2 - Dr G.Subhashan Rao PW3 - K.Mallikarjun Rao

For Respondents: NIL

Exhibits Marked

For Petitioners:

Ex.P1 - CC of FIR dt.22.02.2018 in Cr.No.28/2018 of P.S.Manchal Ex.P2 - CC of Charge Sheet dt.22.02.2018 Ex.P3 - CC of MVI Report dt.24.02.2018 Ex.P4 - Wound Certificate dt.22.03.2018 issued by NIMS, Hyderabad Ex.P5 - OP Card dt.22.02.2018 issued by Kamineni Hospital Ex.P6 - Outpatient prescription issued by Kamineni Hospital under Arogya Sree Scheme Ex.P7 - Disability Certificate dt.12.09.2018 issued by Medical Board, Area Hospital, Vanasthalipuram Ex.P8 - Photos (2 in no.) with CD Ex.P9 - Bunch of Medical Bills total for Rs.8,852/- with essentiality Certificate Ex.P10- Pay Slip for the month of January, 2018 Ex.P11- Discharge Sumary dt.15.03.2018 issued by NIMS, Hyderabad Ex.P12- Policy issued by R2 for vehicle No.AP 24W 4196 Ex.A13- Disability Certificate issued by PW2

Ex.X1 - Attested copy of Service Record of petitioner Ex.X2 - Attested copy of Office Order dt.05.10.2018

For Respondent No.2:

Ex.B1 - True copy of insurance policy for Lorry No.AP 24W 4196

Chairman, MACT-cum- II Addl. District Judge, Ranga Reddy District

IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS COURT,

CYBERABAD AT L.B.NAGAR, RANGAREDDY DISTRICT.

PRESENT: SRI V.V.SESHU BABU, Addl. Metropolitan Sessions Judge, Cyberabad.

Wednesday, the 18th day of November, 2020.

Crl.A.No.701 of 2017

1. From what court the appeal is :I Special Magistrate, preferred Cyberabad at Rajendranagar.

2. Number of the case in that Court:

CC. No. 249 of 2015

3. Number of the Appeal: Crl. Appeal No. 701 of 2017

4. Name and description of the: Smt.Esuhasini W/o.E.Chandra Shaker, Aged Appellant about 52 years, Occ: Business, R/o.H.No. 3-5-29/8, Opp: Delhi School of Excellence, Gummakonda Colony, Hyderguda, Attapur, Rajendranagar, Hyderabad.

5. Name of the Respondent/ Smt.late B.Kamala W/o.B.Baswanth Reddy, Complainant Aged about 55 years, Occ: Housewife, rep.by her husband B.Baswanth Reddy, R/o.Flat No.102, Ground Floor, Road No.7, Kranthi Nagar, Saroornagar, Hyderabad.

6. Sentence and law under which it Accused is convicted u/S.255(2) Cr.P.C for was imposed in the lower court the offences u/S.138 of Negotiable Instruments Act and sentenced to undergo R.I for Six months and to pay the cheques amount of Rs.3,48,000/- with interest at 12% p.a from the date of filing of the complainant to the complainant within one month from the date of the order.

7. Whether confirmed modified or Confirmed : reversed and if modified the modification

Date ofDateof Notice Bail bond, ifAppellantHearingOrder Filing issued by appellantsordered presentationcourt to has been letto appearout on bailappear 20.06.201713.06.2017 -- -03.03.202018.11.2020

This appeal is coming before me on 03.03.2020 for final hearing, in the presence of Sri E.Sreenivas Reddy, counsel for appellant and in the absence of Sri J.Ravinder, counsel for respondent, and upon hearing the counsel for appellant and treating the arguments of respondent as Nil, perusal of the material on record and having stood over the matter for consideration till this day, this court passed the following:

Crl.A.701 of 2017

Page No.2 of 7

JUDGMENT

01. ]The appeal is filed u/Sec.374 (3) Cr.P.C against the Judgment of conviction in C.C.No.249/2015 dated 24.05.2017 of the I Special Magistrate,

Cyberabad at Rajendranagar, whereunder, the appellant/accused was sentenced to suffer R.I for 6 months and to pay cheques amount of Rs.3,48,000/- with interest at 12% p.a from the date of complaint within one month for the offence u/

S.138 of Negotiable Instruments Act.

02. The brief averments of the complaint filed u/S.200 Cr.P.C are that, complainant and accused are known to each other from several years; that on 01.04.2015 accused approached the complainant and requested for a loan of

Rs.4,00,000/- for the family necessities and promised to discharge the same within few months; that complainant stated that amount would be arranged in the first week of May, 2015; that on 02.05.2015, complainant stated that she was having only Rs.3,48,000/- but not Rs.4,00,000/- and accused agreed to receive the same and executed 3 promissory notes on the same day, two for Rs.1,00,000/- each and another one for Rs.1,48,000/-, repayable with interest at 24% p.a; that on the demand of complainant for repayment of promissory notes debt, accused accused issued 4 cheques towards principal amount i.e., three for Rs.1,00,000/- each and one for Rs.48,000/-, drawn on Bank of India, Attapur Branch; that when the complainant presented the cheques for collection, they were bounced with the endorsement ‘funds insufficient’; that complainant got issued a legal notice on 24.08.2015 and it was returned with endorsement ‘door locked’. Hence, the complaint.

03.The learned I Special Magistrate, Cyberabad at Rajendranagar took the case on file as C.C.No.890/2015 u/S.138 of Negotiable Instruments Act and issued summons to the accused. On appearance of the accused, copies of documents were furnished to her u/S.207 Cr.P.C and she was examined u/S.251

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Cr.P.C of the offence u/S. 138 of N.I.Act, for which she pleaded not guilty and claimed to be tried.

04. To prove the case, the complainant got examined herself as PW1 and also examined PW2 and got marked Exs.P1 to 12 and with that the prosecution side closed.

05.Accused was examined u/Sec.313 Cr.P.C, for which she denied the incriminating material available against her and reported defense evidence, but no witness was examined for the accused and no document was marked. While the matter was coming up for Judgment, the complainant died and her husband was substituted in her place vide Crl.M.P.No.163/2017.

06.Having heard both sides, the Court below found the accused guilty for the offence u/S.138 of N.I.Act and convicted and sentenced her as stated supra.

07. Aggrieved by the said Judgment of conviction and sentence, the present appeal is filed with the following grounds.

(a) The impugned Judgment of the Court below is illegal and void and it is against the law, facts and circumstances.

(b) The Court below erred in appreciating the material evidence available on record in a right perspective.

(c)The Court below not appreciated the fact of appellant adducing acceptable rebuttal evidence.

(d) The Court below failed to observe material contradictions and alternations in the evidence of PWs.1 and 2.

(e) the Court below failed to consider the fact that appellant never issued any cheques to the complainant.

(f)The punishment imposed by the Court below is at very high side.

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With these grounds and others that will be urged at the time of arguments requested to allow the appeal by setting aside the Judgment of conviction and sentence.

08. No oral or documentary evidence is adduced by either side before the appellate Court.

09. Heard the arguments of counsel for appellant and inspite of giving opportunity, the respondent’s counsel failed to avail the same and so, the arguments are treated as Nil.

10. Though the matter was posted for Judgment on 21.04.2020, due to

Covid-19 pandemic, Judgment could not be pronounced. On 04.11.2020, the counsel for appellant filed Memo to pronounce the Judgment basing on the arguments advanced earlier. Hence, taken up for Judgment.

11. Now, the points for determination are:- (1)Whether PW1/complainant has no means to lend the amount?

(2)Whether the cheques in question are not supported by legally enforceable debt?

(3)Whether accused not issued the cheques in question?

(4)Whether the Judgment of the Court below is sustainable under law?

12. For sake of convenience, the parties will be addressed as they arrayed in the Judgment of the Court below.

13. POINTS 1 to 4: The important aspects to appreciate in the case on hand are viz:- (1) accused not denied her friendship with PW1 (2) the 3 cheques were marked as Exs,.P4 to P7 (3) the name of accused is printed on all the 3 cheques.

Therefore, without adducing any acceptable evidence, accused cannot deny that those cheques are not belonged to her. Though a suggestion was given to PW1 that accused is a resident of H.No.3-5-29/6, Dumma Konda Colony, Hyderguda, not placed any evidence at all to show that she is not residing in the said house or

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Page No.5 of 7 residing in the address mentioned in the complaint. The legal notice was issued on the address of the accused mentioned in the complaint. Incidentally the same address is mentioned in the promissory notes under Exs.P1 to P3. Therefore, the

Court below rightly invoked Sec.27 of the General Clauses Act and concluded that

Ex.P12 is deemed to be a proper service. There will be several documents to prove the correct address of the accused like Aadhar Card, Bank Pass Book, Votor

Identity Card, Household Card, etc.

14. No suggestion whatsoever is given to PWs.1 and 2 suggesting the reason for filing a false complaint, that too, by fabricating false promissory notes and cheques. Nobody will file a false case against the other without any reason, that too, by incurring lot of expenditure, which involves forgery and fabrication of cheques and promissory notes. Therefore, the contention of accused that the cheques and promissory notes are forgery cannot be accepted.

15. It is the sphere head attack of the appellant’s counsel that PW1 failed to prove her financial capacity to lend Rs.3,48,000/- to the accused. PW1 deposed in the cross examination that she has no personal earnings, but her father gave 4- 00 acres of land, which she sold; that her husband was a retired employee and received retirement benefits; that from and out of the same, loan was arranged to the accused. PW1 also stated that she is not an income tax assessee and so, not filed any tax returns showing the transaction in question in the returns. In the absence of any rebutal evidence and any suggestion that husband of PW1 is not a retired employee or employee, one cannot brush aside the oral evidence of PW1.

PW1 further stated that accused herself written Exs.P4 to P7 cheques in her presence and then gave the same to her. PW2 is one of the attesting witness to

Exs.P1 to P3 promissory notes and she categorically stated that amount of

Rs.3,48,000/- was given to the accused. PW2 is the sister of PW1. In the cross examination also the evidence of PW2 is intact and she stated that PW1 lent the amount to accused. In the 313 Cr.P.C examination also, except denying the incriminating material from the evidence of PWs.1 and 2 as false, not stated

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Page No.6 of 7 anything about PW1 filing a false case against her. Accused also stated that she is having witnesses on her side but not examined anybody. The appellant counsel relied upon the following case law:

(1) 2015(1) SCC 99

K. Subramani Vs. K.Damodara Naidu

The facts of said case are that both the parties are Government

Servants and governed by Government Servant Conduct Rules. No necessary averment present in the contents of complaint regarding financial source out of which the disputed huge amount was paid for which cheque was received.

In the case on hand, PW1 is not a Government servant and not an income tax assessee. Therefore, the above case law is not applicable to the facts of the present one.

(2) 2010 CrLJ 2159

Rosa Maria Fernandes Vs. Nauso N. Kepkar

The Hon’ble High Court dismissed the appeal filed by the complainant by holding that, accused by cross examination of complainant raised serious doubt about the loan transaction as alleged by the complainant and demonstrated that complainant had no financial capacity to give loan. The trial Court by considering the facts and circumstances held that accused has successfully rebutted the presumption u/S.139 of Act and hence, complainant was not entitled to any reliefs u/S.138 of Act.

In the case on hand, except one suggestion or other, here and there, not adduced acceptable rebutal evidence regarding the financial capacity of

PW1/complainant to give the loan. So, this case is also not applicable to the facts of the present one.

(3) 2019 AIR (SC) 1983

Basalingappa Vs. Mudibasappa

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In the said case, it is held by the Hon’ble Supreme Court that when financial capacity was being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.

In the case on hand, PW1 explained how she got amount to part with the same to the accused, of course, she had not placed any documentary evidence in support of her evidence. However, total circumstances of the case shall be taken into consideration to conclude that PW1 has no means.

16. In view of the discussions made as above, I am of the view that the

Court below rightly found the accused guilty and registered the conviction. The sentence cannot be considered as harsh, because, only the amount that was taken is ordered to refund with interest at 12% p.a, that too, from the date of complaint.

So, all the points are answered against the appellant.

17. In the result, the appeal is dismissed by confirming the Judgment of conviction and sentence of the lower Court in C.C.No.249 of 2015 dated 24.05.2017. The accused deposited Rs.1,04,400/- as per the orders in

Crl.M.P.No.82/2017 in Crl.Apl.No.701.2017 dt.27.06.2017. The Court below is

directed to see that the sentence is served on the Accused and also to recover the balance amount.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in theopen Court on this the 18th day of November, 2020.

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

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