VACANT FAC Sri P.Subramanya Kumar, I Addl.DJ

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IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

BEFORE THE IV ADDITIONAL DISTRICT JUDGE, FTC, ANANTAPUR

Present: Sri P.Subramanya Kumar,B.Sc.,B.L.,

MACT-Cum-IV Additional District Judge

Wednesday, the 7 th day of August, 2013.

Original Petition No. 514/2010

Between:

Bugada Siva Sankar. …. Petitioner.

AND

1. J.Srinivasulu.

2. The Manager, Legal Cell,

Bajaj Allianz Insurance Co., Ltd., Hyderabad.

(Policy No. Cover Note No.BZ-0 801523998, Valid up 10.7.2010).

…..Respondents.

This petition coming on this day for final hearing before me in the presence of Sri P.Chenna Reddy, Advocate for the petitioner and of Sri

C.Surendra natha Reddy, Advocate for the second respondent and the first respondent has remained ex parte and on perusing the material papers on record and the matter having stood over for consideration, this tribunal delivered the following:

O R D E R

This is a claim petition filed by the petitioner U/s. 140 and 163 (a) of

Motor Vehicles Act, 1988 and R.455 of A.P. Motor Vehicle rules, 1989 seeking compensation from the respondents for a sum of Rs.3,50,000/-.

2.Originally the petitioner has claimed compensation of

Rs.1,50,000/- which he has got enhanced to Rs.3,50,000/- by filing an application in I.A.1025/2011 vide Order, dt.14.12.2011.

3.The material averments of the claim petition are as follows:

The petitioner Bugada Siva Sankar was aged about 24 years on the date of accident. He was getting Rs.250/- per day and all the family members are depending on his income.

On 8.4.2010 the petitioner along with his son and his Junior Paternal

Uncle going on a cycle from Jammalamadugu town towards Duttaluru village 2 and while proceeding at about 8.30 p.m when they reached near Municipality

Office, at that time the tractor and trailer bearing No.AP04-H-4268 and 4269 (herein after referred as Offending Vehicle) came behind in a rash and negligent manner and dashed against their cycle which resulted falling of the petitioner and his junior paternal uncle and the tyres of offending vehicle ran over on the right leg of petitioner by causing fracture and multiple simple injuries. They were shifted to Government Hospital, Jammalamadugu where the petitioner took treatment for few hours and then he was shifted to the

Government General Hospital, Anantapur and from there he was shifted to the

Government General Hospital, Kurnool where he was inpatient for 15 days and then he was shifted to Pavani Hospital, Anantapur and his right leg was operated and inserted steel rods and now he became disabled person and not able to do any work. He incurred Rs.50,000/- towards medical, transportation and other expenses. He lost his Beldar work. The accident is occurred due to the rash and negligent driving of the driver of the offending vehicle. The case is registered by the Jammalamadugur Police station in Cr.No.65/2010

U/sec.337 and 338 of I.P.C against the driver of the tractor. The Ist respondent is the owner of the offending vehicle and second respondent is the insurer of the same as such both of them are liable to pay the compensation.

4.The Ist respondent has remained as exparte.

5.The material averments of written statement filed on behalf of the second respondent are as follows:

The petition averments are denied in toto. The person driving the vehicle has no relation in force as on the date of accident to drive the vehicle.

The driver of the offending vehicle Syed Basha was not holding valid effective driving licence at the time of the accident and as such the second respondent is not liable to pay compensation. As per the information of this respondent, the petitioner and his junior Paternal Uncle son were going in the cycle in the middle of the road and they themselves contributed the negligence, as such the respondent is not liable to pay the compensation.

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6.The material averments of the additional counter filed on behalf of the second respondent are as follows:

There was no contract of Insurance between the Ist respondent

J.Sreenivasulu and the 2nd respondent to cover the risk of the offending. The second respondent/company have issued the cover Note bearing

No.BZ0801523998 to Tapan of West Bengal to cover the risk of the vehicle,

Bajaj Discover Motor cycle bearing No.WB 64 B 6048, but not to the offending vehicle Tractor and Trailer. This respondent has never insured the offending vehicle and there is no contact of motor insurance with the Ist respondent. As such this respondent is not liable to indemnify the first respondent.

7.The Second Additional counter filed on behalf of the second respondent are as follows:

The physically handicapped issued by the Government General Hospital showing 40% disability is excessive and it creates for the purpose of the petitioner. The claim of the petitioner at Rs.3,50,000/- is excessive.

8.Basing on the pleadings of both parties, the following issues are settled for trial:-

1. Whether the accident occurred on 8.4.2010 at about 8.30

p.m due to rash and negligent driving of Tractor and Trailer bearing

No.AP02-H-4268 and 4269 by its driver and caused the accident and

caused the injuries to the petitioner?

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

3. To what relief?

9. In the present petition, the petitioner has examined himself as

P.W.1 and in support of his contention P.Ws.2 and 3 are examined and Exs.A.1 to A.9 documents are marked. On behalf of the 2nd respondent, R.W.1 and

R.W.2 are examined by marking Exs.B.1 to B.7.

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10.Issue No.1::-

The petitioner himself examined as P.W.1 substantiating the petition averments in his chief affidavit filed in lieu of chief examination. The petitioner has got marked Exs.A.1 to A.9. Ex.A.1 is the attested copy of F.I.R.

Ex.A.3 is the attested copy of charge sheet which prima facie establishes the occurrence of the accident in dispute as pleaded by the petitioner. On behalf of the second respondent R.W.1 is examined who is Senior Executive-Legal of its company. It is disclosed by R.W.1 that he is deposing as per his office records. The petitioner by filing the documents under Ex.A1 and Ex.A3 prima facie established about the occurrence of the accident which is in dispute as contended by him. The correctness of the document has not been disputed by the contesting respondent No.2 while P.W.1 is in the witness box. Hence, the accident in dispute is occurred due to the rash and negligent driving of the driver of the offending vehicle. Accordingly issue No.1 is answered in favour of the petitioner.

11.Issue No.2::-

It is claimed by the petitioner that on the date of accident, he was aged 24 years and working as a Mason and thereby earning an amount of Rs.250/- per day. It is admitted by P.W.1 that he has not filed any record to show that his age is 24 years on the date of the accident and his income as Rs.250/- per day and that he is working as Mason. In the absence of any record to the above effect, it cannot be believed that the petitioner was earning Rs.250/- per day before the accident and he is aged about 24 years as claimed in the petition. Admittedly, the petitioner is a pillion rider in the motor cycle driven by his uncle son. The petitioner was treated in the Government General

Hospital, Kurnool for two weeks and subsequently he has taken treatment in a private hospital, Anantapur where he was operated.

12.The petitioner has filed Ex.A.2 wound certificate and Ex.A.4 bunch of medical bills for Rs.1,129/-, Ex.A.5 is X-ray films (7), Ex.A.6 is the original physically disabled certificate and Ex.A.7 is the bunch of medical prescriptions, 5 Ex.A.8 is discharge summary of Pavani Hospital, Anantapur and Ex.A.9 is the attested copy of cover note of offending vehicle. The petitioner apart from himself has also examined P.W.2 the Professor of Orthopedics in Government

Medical College, Anantapur who is one of the members of Medical Board and

P.W.3 who is also Assistant Professor in Government General Hospital,

Anantapur who operated the fractures suffered by the petitioner in the accident under Arogya Sree Scheme as per Ex.A.8 discharge summary of

Pavani Hospital.

13.As per Ex.A.2 wound certificate issued by Community Health

Center of Jammalamadugu, Kurnool District revealed that the petitioner has suffered deformity of right thigh and from where he was referred to

Government General Hospital, Kurnool.

14.The petitioner has examined P.W.3 the Assistant Professor of

Government General Hospital, Anantapur who is consultant of Pavani Hospital,

Anantapur has disclosed that he has examined P.W.1 on 26.4.2010 and found the following injury: Fracture femur at proximal middle third junction of right. He has disclosed that the fracture was operated under Arogya Sree

Scheme and the fracture is stabilized with interlocking nail. It is also disclosed by him that P.W.1 was admitted in Pavani Hospital on 26.4.2010 and discharged on 17.5.2010 as per the Ex.A.8 discharge summary. The operated injury is grievous injury. It is further disclosed by P.W.3 that in Arogya Sree

Scheme medicines will be given on free of costs for a period of one month. It has been elicited from P.W.3 by the learned counsel for the respondent/company under Arogya Sree Scheme operation will be done free of costs and medicines will be provided for period of one month after discharge.

P.W.3 has also disclosed that the fracture of femur united and at the time of discharge patient's general condition was good. Thus, the evidence of PW.3 reveals that the petitioner has taken treatment in Pavani Hospital under

Arogya Sree Scheme including getting operated to his fracture femur which is 6 free of costs with medicines provided by the hospital for a period of one month.

15.The petitioner though filed bunch of medical bills under Ex.A.4, but for the reasons best known to him, he has not examined the author of the bills nor substantiated through P.W.3 about the said bills and as such the bill amount mentioned under Ex.A.4 to a tune of Rs.1129/-, the petitioner is not entitled.

16.The petitioner has also examined the Professor in Orthopedics in

Government Medical College, Anantapur who examined the petitioner and issued physically handicapped certificate under Ex.A.6. It is disclosed by

P.W.2 that the petitioner had post traumatic sequalae of right lower limb due to R.T.A on 8.4.2010 and as per the wound certificate issued by Government

Community Health Center, Jammalamadugu and he was treated for segmental fracture upper third and middle third right femur at Pavani Hospital, Anantapur by interlocking nailing as per the discharge summary provided. It is further disclosed by P.W.2 that X-rays were taken, implants were inserted. He has also disclosed that united fracture femur segmental upper third and middle third were present with angulation at upper third and shortening 1 1/2 c.m.

He has further disclosed that wasting of thigh muscles and weakness present and the petitioner has difficulty in squatting, sitting cross leg, long standing, long and fast walking and he needs implants removal. P.W.2 has deposed that disability of the petitioner was assessed as 40% permanent in nature and he has issued disability certificate. In the cross-examination, he has been elicited from the learned counsel for the second respondent that the petitioner was ot treated by P.W.2. It is further elicited from him that the fractures sustained by the petitioner are united. The disability is only to the right lower limb, but he has not assessed the disability to the whole body and they have assessed only the functional disability.

17.In view of the evidence of petitioner and as per the evidence of

P.W.3 he has undergone surgery for one grievous injury sustained by him for 7 which he is entitled a sum of Rs.14,000/-. The petitioner is also entitled for a sum of Rs.10,000/- towards extra nourishment and pain and sufferance. He is entitled for that as the petitioner has taken treatment under Arogya Sree

Scheme under free treatment, he would have incurred some medical expenses which he could not have filed apart from Ex.A.4, bunch of medical bills in the ends of justice and a sum of Rs.6,000/- has been given to the petitioner for medicines.

18.As per the evidence of P.W.2 the petitioner suffered 40% disability to his light limb, for which he is entitled for a sum of Rs.40,000/-. Thus in total, the petitioner is entitled for compensation of Rs.70,000/- from the respondents. Accordingly, the Issue No.2 is partly answered in favour of the petitioner.

19. Though there is no issue in respect of cover note copy of the offending vehicle to show that on the date of the accident, the offending

Vehicle was issued to the second respondent, it is the duty of the Tribunal to give a finding on this aspect, as the second respondent has raised the same.

The second respondent has been contending that the offending vehicle was not insured on the date of the accident and as such the second respondent is not liable to pay compensation.

20.The learned counsel for the second respondent company has contended that the cover note bearing No.BZ 0801523998 to Mr Tapan S/o

Bimal Kumar Maitra, West Bengal to cover the risk of vehicle Bajaj Discover

Motor cycle bearing No.WB 64 B 6048 bearing Chasis No.MD2DSDVZZMJK 23527 and Engine No.DXEBMK 24086 but not to Tractor and Trailer bearing

No.AP.04.H.4268 and 4269. It is further argued by him that the Original cover note copy and Motor vehicle Insurance Certificate Cum Policy schedule of the above mentioned Motor cycle was marked on behalf of second respondent

Insurance company, which establishes that the second respondent/Insurance company had never insured the offending vehicle and there is no contract of 8 Motor Insurance with the first respondent's offending vehicle and as such the second respondent is not liable to pay compensation.

21.The learned counsel for the second respondent has further argued that on receipt of the above said claim of the second respondent/Insurance

Company has issued notice to the first respondent to submit the original cover note and policy copy of the offending vehicle in possession of him or it shall be deemed that he is one of the conspirators in making the fake cover note copies of this Insurance Company. It is further argued by him that the office copy of the letter sent to the respondent No.1, dt.21.12.2012 was marked under Ex.P.4 on behalf of the second respondent company. Inspite of receiving the said letter, the first respondent has not produced the original copy of insurance and as such he requested to pass adverse inference against the first respondent for not producing the policy issued by the second respondent to the offending vehicle.

22.The learned counsel for the second respondent has further argued that the second respondent company has got issued a registered notice to the

Superintendent of Police, Kadapa, dt.7.7.2012 and S.H.O of Jammalamadugu, dt.7.7.2012 registered the complaint on the culprits who have fabricated the cover note No.BZ0801523998 and the office copy of the same were marked as

Ex.B.5 and Ex.B.6.

23.The learned counsel for the second respondent has further argued that the cover note is consisting 10 cover note leaves and with same book number which is mentioned below every cover note further there are four copies to one cover note the first leaf of cover note is issued to insured who takes policy which is called as Insured copy, second leaf is called as office copy, third leaf is called as agent copy when cover note is issued by agents and fourth copy if Book copy. The cover notebook and cover note copies issued to various persons from the same book is marked as Ex.B.7.

24.The learned counsel for the second respondent has further argued that as there was no policy as on the date of the alleged accident and the 9 claim petition is bad for mis-joinder of second respondent and requested to dismiss the petition with exemplary costs.

25.On the other hand, the learned counsel for the petitioner has argued that by pointing out the evidence of P.W.1 in which P.W.1 has filed

Ex.A.9 attested cover note copy of the offending vehicle, which was given to him by Jammalamadugu P.S of Kadapa District and Ex.A.9 is marked subject to objection by respondent No.2. In the cross-examination of P.W.1, the learned counsel for the second respondent has elicited that on his oral request Ex.A.9 was supplied to him by the police and to that effect there is no record. It is further disclosed by P.W.1 that he does not remember the name of the owner of the offending vehicle. He denied a suggestion put to him that Ex.A.9 is created in order to claim mentioned in the petition. It is further denied by him that Ex.A.9 does not pertain to cover note relating to the offending vehicle and that it relates to some other vehicle and as such R.2 is alone liable to indemnify R.1 in paying compensation amount and that R.2 had not issued

Ex.A.9 cover note at all.

26.While R.W.1 Senior Executive while he was in the witness box relied on the photo stat copy relating to cover note shown to him stating that it relates to offending vehicle for which R.W.1 has disclosed that it cannot be compared by him with Ex.B.1. It is admitted by R.W.1 that the cover note number mentioned in the claim petition and the number mentioned in Ex.B.1 are one and the same. He denied the suggestion put to him that they have given a cover note number to respondent No.1 as per claim petition and that in order to escape from the liability from paying compensation amount, he is deposing falsely. But he has admitted that the cover note only in English

Language. It is admitted by R.W.1 that Ex.B.1 cover note bearing

No.BZ0801523998 does not depict the words cover note. It is further admitted by R.W.1 that the period of insurance commences from the date of cover note written on it and the period of insurance would not commence

before the date of cover note and that they will never issue such type of cover

10 notes. It is disclosed by him that Ex.B.1 covers the period from 26.2.2009 to 25.2.2010 and Ex.B.1 was issued on 25.2.2009. It is further admitted by him that Ex.B.1 reveals the branch office seal with date 3.3.2009 with signature of official and with the word accepted by the concerned office on the same date 3.3.2009. R.W.1 has admitted that they have not mentioned about Ex.B.1 in their counter as well as additional counter. He has pleaded ignorance that two wheeler cover notes and four wheeler cover notes including three wheeler cover notes of government forms are identical or not. He denied the suggestion put to him by the learned counsel for the petitioners that the cover note in the original petition and the same number have issued fraudulently to the another vehicle. R.W.2 who is office in charge of Bajaj Allianz, G.I.C Ltd.,

Kurnool has disclosed that Ex.B.7 cover note book of R.2 company bears his signature. He admitted that Ex.B.7 does not contain the particulars of issuing authority with its seal and signature and to whom the said cover note book alloted. He has further added that the same would be registered on line. He has further disclosed that the last page of Ex.B.7 is not filled up as it is not mandatory and it is for the agent or dealer to fill up the same. He has further disclosed that Ex.B.7 carbon copy forms does not disclose the signatures. He has disclosed that Ex.B.7 received from Sillguri branch office, West Bengal by their official mail. He has further disclosed that he has not filed e-mail copy relating to Ex.B.7. It is disclosed by him that Ex.B.7 relating to two wheeler vehicle. The cover note attested copy shown to him was not issued by their company. A suggestion has been put to R.W.2 that the above cover note shown to him issued by their company and that in order to escape from the liability he is deposing falsely and he has denied the same. After the evidence of R.W.2 the claim petitioner himself recalled and marked the attested copy of cover note under Ex.A.9 in respect of the offending vehicle which has said to be given to him by Jammalamadugu P.S of Kadapa District. In the cross- examination, it is disclosed by P.W.1 that on his oral request Ex.A.9 was supplied to him by the police. P.W.1 has pleaded ignorance in respect of the 11 name of the owner and the driver of the offending vehicle. He denied the suggestion put to him by the learned counsel for the second respondent that the second respondent/Insurance company has not insured the offending vehicle at all and that himself and owner of it created Ex.A.9 in order to claim mentioned in the petition. He has also denied another suggestion put to him that Ex.A.9 does not relating to cover note of offending vehicle and it is relating to some other vehicle and that R.2 is not liable to indemnify R.1 in paying compensation amount and Ex.A.9 cover note is not issued at all, which he has not denied at all. The perusal of Ex.A.9 reveals the registration number of the offending vehicle including year manipulating of it. It is mentioned under Ex.A.9 that it has motor vehicle cover note. Ex.B.7 filed by the second respondent is only a carbon copy and it does not contain the particulars of issuing authority with a seal and signature and it does not reveal fill up of last page and Ex.B.7 also does not disclose the signature in carbon copy form. It is stated by R.W.1 as disclosed supra that second respondent allegedly receive

Ex.B.7 from Silliguri Branch Office, West Bengal. For the reasons best known to the second respondent that Ex.B.7 copy is not filed with report. Thus, in view of Ex.B.7 does not depict the signature and seal of the company. As such no much credence given on Ex.B.7. On the other hand, Ex.A.9 filed by the petitioner reveals the name of the second respondent/company the date of issuing the same including registration number of the vehicle and as such the second respondent has been given Ex.A.9, still I am of the opinion that Ex.A.9 attested cover note copy of the offending vehicle has been insured with the second respondent. If really no cover note was issued by the second respondent/company nothing has been precluded. As such by taking any such plea in the counter filed originally or in the additional counter filed subsequently by the second respondent/company. Thus, by considering all the above circumstances also, it probablise that Ex.A.9 was issued by second respondent/Insurance Company, as such it has not taken a plea about the said company is not showing the cover note as pleaded by the petitioner. As per 12 Ex.A.9 premium was paid to the second respondent company and Ex.B.7 is introduced in order to avoid to pay compensation to the petitioner. The learned counsel for the petitioner by relying the judgment decided between

Retu and others Vs Dharmveer and others reported in 2012 ACJ 579.

Where under the Hon'ble Madhya Pradesh, Indore Bench held that "when no

evidence or ledger or any other document produced to prove that

cover note is forged or fabricated and Insurance company is liable to

pay compensation." The claim petition under consideration except Ex.B.7 to negative the contention of the petitioner that Ex.A.9 was not issued by its company, the second respondent has not summoned any other document to prove that cover note has produced by the claim petitioner is fabricated one.

In the absence of it as per Ex.A.9, the second respondent has to indemnify the first respondent in paying the compensation to the second respondent.

27.For the reasons discussed supra I hold that the claim petitioner is entitled for a sum of Rs.70,000/- from the respondent. Accordingly, the Issue

No.2 is answered partly infavour of the petitioner.

28.Issue No.3: In view of my observations on issue No.2 the claim petition has to be allowed partly with proportionate costs.

In the result, the claim petition is partly allowed for Rs.70,000/- with proportionate costs against the respondents 1 and 2 jointly and severally together with interest at 7.5% p.a., from the date of the petition till the date of respondent’s depositing the award amount to the credit of O.P. The respondents are instructed to deposit the awarded amount within three months from today to the credit of O.P. On such deposit made by the respondents, the petitioner has been permitted to withdraw a sum of

Rs.20,000/- at once and the rest of the awarded amount with costs shall be kept in F.D.R of any Nationalized bank for a period of two years. Advocate fee is fixed at Rs.2,000/-.

Dictated to the Personal Assistant, transcribed by her, corrected and

Pronounced by me in open Court this the 7th day of August, 2013.

Chairman, MACT-Cum IV Addl. District Judge,(FTC) Anantapur.

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Appendix of evidence Witnesses examined for

Petitioner Respondents.

P.W.1: B.Siva Sankar. R.W.1: S.Anthervedi.

P.W.2: Dr B.Jayachandra Reddy. R.W.2: N.Satyamohan Reddy.

P.W.3: Dr K.Sathish.

Exhibits marked on behalf of the petitioners.

Ex.A.1 : Attested copy of the F.I.R.

Ex.A.2: Attested copy of Wound certificate.

Ex.A.3: Attested copy of Charge sheet.

Ex.A.4: Bunch of Medical Bills for Rs.1129/-

Ex.A.5: X-ray films (7)

Ex.A.6: Original physically disabled certificate.

Ex.A.7: Bunch of medical prescriptions.

Ex.A.8: Discharge summary.

Ex.A.9: Attested copy of cover note.

Exhibits marked on behalf of Respondents

Ex.B.1: Copy of cover note bearing No.BZ0801523998 issued to Motor cycle bearing No.WB 64 B 6048.

Ex.B.2: Motor Insurance policy issued on cover note.

Ex.B.3: Office copy of the notice to R.1.

Ex.B.4: Served Acknowledgment.

Ex.B.5: Office copy of the notice issued to Superintendent of Police. Kadapa along with postal receipt.

Ex.B.6:Office copy of the notice issued to SHO, Jammalamadugu, Kadapa.

Ex.B.7: Cover note book of R.2 company.

MACT-IV.A.D.J.

Anantapur.

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IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

BEFORE THE IV ADDITIONAL DISTRICT JUDGE, FTC, ANANTAPUR

Present: Sri P.Subramanya Kumar,B.Sc.,B.L.,

MACT-Cum-IV Additional District Judge

Wednesday, the 7 th day of August, 2013.

Original Petition No. 321/2011

Between:

K.Ravindra @ Ravi. …. Petitioner.

AND

1. A.Gangi Reddy.

2. The Divisional Manager, The Oriental Ins. Co., Ltd.,

Anantapur. ...Respondents.

This petition coming on this day for final hearing before me in the presence of Sri D.Ramesh Babu and Sri B.Mallikarjuna Reddy, Advocates for the petitioner and of Sri V.J.Ravi Kumar, Advocate for the second respondent and the first respondent has remained exparte and on perusing the material papers on record and the matter having stood over for consideration, this tribunal delivered the following:

O R D E R

This is a claim petition filed by the claim petitioner U/s. 140 and 166 of

Motor Vehicles Act, 1988 and R.455 of A.P. Motor Vehicle rules, 1985 seeking compensation of Rs.2,50,000/- from the respondents jointly and severally.

2.The material averments of the claim petition are as follows:

The petitioner/injured is aged about 40 years at the time of accident and he was hale and healthy person and easily earning amount of Rs.10,000/- per month from agriculture and he owns 30 acres of land.

On 30.3.2010 while the petitioner was proceeding on motor cycle bearing No.AP.02.N.6614 from Mudigubba to Sirigaripalli along with his brother by name Venkata Subbaiah (pillion rider) and at about 6-00 p.m when the motor cycle was proceeding on Maddileru Bridge, near Rachavaripalli, then the crime vehicle Tractor and Trailer bearing No.AP.02.R.7114 (herein after referred as Offending Vehicle) came from Veerepallipeta side, driven by its 2 driver in a rash and negligent manner with high speed and lost control over the same and dashed against the motor cycle on its right side causing the accident. The accident occurred due to the rash and negligent driving of the offending vehicle. In the accident, the petitioner sustained fracture to his right leg, multiple injuries, bleeding injury on back side and lacerated injury on spine. Immediately he was shifted to Govt., Hospital, Kadiri. Later he was shifted to Snehalatha Nursing Home for better treatment. Due to the gravity of injuries he took treatment for a period of one month and incurred heavy medical expenditure. Due to the accident, the petitioner becomes permanently disabled person and he cannot sit, stand, move freely and lost his earnings and he is depending upon others for his day to day activities.

During the treatment at Bangalore, he underwent surgical operations for his fracture injuries and steel rods were inserted and he has to undergo further operation for removal steel implants by incurring medical expenses. A case was registered against the driver of the offending vehicle by Patnam P.S in

Cr.No.19/2010 under sections 337 and 338 of I.P.C. The first respondent is owner of the offending vehicle and the second respondent is its insurance company and both are jointly and severally liable to pay compensation amount.

3.The Ist respondent has remained as exparte.

4.The material averments of counter filed on behalf of the second respondent are as follows:

The petition averments are denied in toto. The petitioner was driving the motor cycle in a rash and negligent manner without observing the road rules and hit the tractor and trailer and causing the accident as such he is solely responsible for the accident. The driver of the offending vehicle was slowly proceedings towards his left side with very cautious driving and blowing the horn. The petitioner who was in a hurry and chit chatting with his pillion rider did not observe the opposite vehicle and caused the accident. The petitioner has no valid and effective driving licence to drive a motor cycle.

3 The petition is bad for non-joinder of necessary parties as the petitioner failed to add driver and owner of the motor cycle. The driver of the Offending vehicle had no valid driving licence at the time of accident. As such this respondent is not liable to pay any compensation amount. Hence, the claim of the petitioner is excessive and as such requested to dismiss the petition with costs.

5.Basing on the pleadings of both parties, the following issues are settled for trial:-

1. Whether the petitioner sustained injuries in the accident

occurred on 30.3.2010 at about 6-00 p.m at Rachanavaripalli on

Maddileru Bridge?

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

driving of driver of Tractor and Trailer bearing No.A.P.02.R.7114 and

7113?

3. Whether the petitioner is entitled for any compensation? and if so, to what amount and from which respondent? And

4. To what relief?

6. On behalf of the petitioner, P.Ws.1 to 3 are examined by marking

Exs.A.1 to A.6 and Exs.X.1 to X.4 documents. On behalf of the contesting 2nd respondent, R.W.1 and R.W.2 are examined and Exs.B.1 to B.5 documents are marked.

7.Issue Nos.1 and 2::-

The petitioner himself examined as PW1 by filing his chief affidavit in lieu of chief examination substantiating the claim petition averments by marking Ex.A.1 to Ex.A.6. Ex.A.1 is the certified copy of FIR and Ex.A3 is the certified copy of Charge Sheet which prima facie reveals about the occurrence of the accident as averred by the claim petitioner. The correctness of the said documents under Exs.A.1 and A.3 have not been disputed by second respondent while P.W.1 was in the witness box, nor the second respondent has summoned the driver of the offending vehicle to substantiate he was not at fault for causing the accident. R.W.1 who is Officer in second respondent company has not spoken anything in respect of the accident in dispute. Thus, 4 in view of the impeached evidence of P.W.1 in respect of the accident in dispute which took place due to the rash and negligent driving of driver of offending vehicle, I hold that the petitioner has been established that the accident took place due to the rash and negligent driving of the driver of the offending vehicle and the petitioner sustained injures in the said accident.

Accordingly issue Nos.1 and 2 are answered in favour of the petitioner.

8.Issue No.3::-

Before discussing on Issue No.3 in view of the plea taken by the second

respondent that driver of the offending vehicle has no driving licence on the date of the accident, it is the duty on the part of the Tribunal to give a finding on the same. It is contended by the second respondent that the driver of the offending vehicle had no effective driving licence to drive the tractor and trailer. The second respondent has summoned the official from R.t.O office,

Hindupur to mark the driving licence extract of Sri G.Venkataramana who is driver of the offending vehicle at the material time of the accident. As per

Ex.X.4 he is permitted the drive L.M.V non transport and tractor and trailer non transport. R.W.2 has disclosed that he cannot drive non transport tractor and trailer with Ex.X.4. It has been elicited in the cross-examination by the learned counsel for the petitioner from R.W.2 that as on 30.3.2010 Ex.X.4 was in force.

It is also elicited from him if it is agricultural purpose it means it is non transport purpose.

9.The learned counsel for the petitioner has also elicited from the

Senior Assistant working in the second respondent company that Ex.B.1 policy issued by the second respondent company was inforce on the date of accident, which covers the third party risk. It is admitted by R.W.1 that the petitioner is a third party to Ex.B.1 policy. The learned counsel for the petitioner by relying a judgment "National Insurance Company Ltd., Vs

Swaran Singh and others reported in 2004 (1) ACJ page No.1 has contended that on the ground of not having the Valid driving licence, the

Insurance company/Second respondent cannot escape from indemnifying the 5 owner of the vehicle. The Hon'ble Supreme Court held that Minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. The Hon'ble Supreme Court has further observed that the M.V.

Act 1988 is a social welfare legislation to extend relief by way of compensation to victims of accidents caused by use of Motor vehicles. In view of the above observations of the Hon'ble Supreme Court in the above reported case the minor deviations in respect of licensing conditions would not be a ground to deny the benefit of coverage of insurance to the third parties. Hence I hold that on the ground that the driver of the offending vehicle was possessing non transport driving license and not possessing transport driving licence to drive the vehicle. The second respondent cannot be exempted in indemnifying the first respondent in payment of compensation amount.

10.In view of the above settled law the petitioner is a third party to

Ex.B.1 policy merely on the ground that the driver of the offending vehicle was not holding transport tractor and trailer D.L though he was holding D.L of non transport tractor and trailer under Ex.X.4. The second respondent cannot decline to indemnify the first respondent in paying the compensation amount.

Accordingly, I hold that the contention of the second respondent that the driver of the offending vehicle had no valid driving licence in order to exempt it from paying the compensation amount is not permissible.

11.The petitioner in order to substantiate that he incurred medical expenses, he has filed medical bills worth of Rs.82,438/-. He has not admittedly filed any income proof certificate showing that he was earning an amount of Rs.10,000/- per month before the accident. Mere filing of Ex.A.6

Adangal extract issued by Tahsildar of Mudigubba would not establish the income of the petitioner from agriculture. Therefore, the petitioner has not filed any proof to show about any income as pleaded in the claim petition. As such it is not possible to assess the amount of income of the petitioner as claimed in the petition.

6

12.The petitioner apart from examining himself as P.W.1 has also examined P.W.2 the Professor of Orthopedic Surgeon in Government Medical

College, Anantapur who is also one of the members of the Medical Board of

G.G.H., Anantapur in order to speak in respect of the disability suffered by the petitioner as per Ex.A.5 to the extent of 35% permanent in nature. P.W.2 has disclosed that P.W.1 has issued Orthopedically Handicapped certificate and he had post traumatic sequale of right lower limb and history of R.T.A on 30.3.2010 as per the wound certificate issued by C.A.S area Hospital, Kadiri and he was treated with screw fixation of fracture proximal tibia right and with external fixator for compound fracture both bones right leg lower end and x- rays were taken. He has further disclosed that united fracture proximal right tibia present with irregularity of articular surface of knee with screws in situ and mal united fracture both bones right leg lower forth present with over riding, angulation and irregularity of ankle joint. He has further disclosed that due to deformity and swelling of right leg present with weakness of muscles and shortening of right lower limb to the extent of one c.m present with limping. He has further disclosed that partial restriction of movements of right knee and ankle present and he has difficulty in long standing, long and fast walking, squatting and sitting cross legged. He needs screws removal.

According to P.W.2 the disability was assessed as 35% permanent in nature as per Ex.A.5. It is further disclosed by him that the disability suffered by P.W.1 only towards his right lower limb and P.W.1 feel difficulty in attending agricultural works due to disability. In the cross-examination it is elicited by the learned counsel for the second respondent through P.W.2 that in all cases implants inserted into the body of the patient is necessarily required to be removed except for partial and total joint replacement. It is also elicited in the cross-examination of P.W.2 that all the fractures suffered by P.W.1 were united and P.W.1 can supervise agricultural works and he cannot attend agricultural works. In view of the un-impeached evidence of P.W.2 which establishes that due to the accident, the petitioner has suffered 35% disability permanent in 7 nature to his right limb, for which the petitioner is entitled for a sum of

Rs.35,000/-. The petitioner has also examined the doctor at Bangalore as

P.W.3 who is working in Sanjay Gandhi Institute of Trauma and Orthopedics,

Bangalore as Professor has disclosed that the petitioner was admitted in his institute on 31.3.2010 with history of R.T.A with fracture right tibial condyle.

He has disclosed that the fracture type (III-A), compressed fracture in both bones disthal lower third right leg and both the injuries are grievous in nature.

He has disclosed that he was treated by closed internal fixation with canceller screw and external fixator application, fracture lower third right leg under anesthesia on 12.4.2010 and discharged from the hospital on 21.4.2010 with the advice of non weight bearing and review after four weeks. It is disclosed by him that some of the medical bills were issued by their hospital only. It is further disclosed by him that patient has got screw still inside and for the removal the patient needs another operation which costs about Rs.10,000/- to

Rs.15,000/-. Through P.W.3 Ex.X.1 the discharge summary of patient and

Ex.X.2 the case sheet of the hospital of Sanjay Gandhi Institute of Trauma and

Orthopedics, Bangalore is marked in respect of the petitioner. It is elicited in the cross-examination from P.W.3 that the hospital bill is Rs.19,683/- including medicines and the injuries were on the leg only and all the injuries are grievous in nature. He denied the suggestion put to him by the learned counsel for the second respondent that the injuries are simple in nature. Thus, from the evidence of P.W.3 as per Ex.A.4 in the Sanjay Gandhi Institute of

Trauma and Orthopedics, Bangalore, the petitioner while taking treatment spent Rs.19,683/- excluding medicines.

13.As per the evidence of P.W.3, the petitioner has undergone procedure of closing internal fixation with canceller screw and external fixtater application, fracture lower third right leg on 12.4.2010. Thus, for the above surgery under gone by the petitioner, for which he is entitled for a sum of

Rs.10,000/- from the respondents. The petitioner is entitled for Rs.19,683/- towards the hospital bills of the above hospital as deposed by P.W.3. P.W.3 8 has not deposed as per Ex.X.4 the entire medical bill relating to Sanjay Gandhi

Institute of Trauma and Orthopedics, Bangalore, he has only deposed that the hospital bill is Rs.19,683/- excluding medicines. Therefore, Ex.A.4 Bunch of medical bills is rounded to Rs.19,000/-, that does not mean that the petitioner has not spent any medical expenditure at all and keeping in view of the nature of the injuries suffered by the petitioner, he is entitled towards purchase of medicines a sum of Rs.10,000/- in the ends of justice.

14.As per Ex.A.2 wound certificate issued by the Government

Hospital, Kadiri, the petitioner has suffered three grievous injuries i.e., right leg fracture, both tibula and tibia,might proximal, which has not been disputed by the second respondent while P.W.1 was in the witness box, thus for the three injuries suffered by the petitioner, he is entitled for a sum of

Rs.42,000/-.

15.The petitioner has also entitled for pain and sufferance and extra nourishment, which is estimated at Rs.10,000/- for under going surgery in the hospital at Bangalore. He is also entitled for a sum of Rs.10,000/- for attendant charges while he was taking treatment in the Bangalore hospital.

Apart from the above, the petitioner is also entitled for a sum of Rs.10,000/- towards transport charges which is estimated at Rs.5,000/-. The petitioner is also entitled for a sum of Rs.10,000/- towards medical expenses for removal of implants. In total, the petitioner is entitled for a sum of Rs.1,37,000/-.

Accordingly, I hold Issue No.3 partly in favour of the petitioner.

16.Issue No.3:

In view of my observations on issue No.3 the claim petition has to be allowed partly with proportionate costs.

In the result, the claim petition is partly allowed for Rs.1,37,000/- against the respondents jointly and severally with proportionate costs together with interest at 7.5% p.a., from the date of the petition till the date of respondents depositing the compensation amount to the credit of O.P. The respondents are instructed to deposit the awarded amount within three months from today. On such deposit, the petitioner has been permitted to 9 withdraw a sum of Rs.37,000/- at once and the rest of the awarded amount with costs of the petition shall be kept in F.D.R of any Nationalized bank for a period of two years. Advocate fee is fixed at Rs.2,000/-.

Dictated to the Personal Assistant, transcribed by her, corrected and

Pronounced by me in open Court this the 7th day of August, 2013.

Chairman, MACT-Cum IV Addl. District Judge,(FTC) Anantapur.

Appendix of evidence Witnesses examined for Petitioner Respondents.

P.W.1: K.Ravindra @ Ravi. R.W.1: K.Rama Gopal.

P.W.2: Dr B.Jayachandra Reddy.R.W.2: R.Sainatha Reddy.

P.W.3: Dr Shiva Kumar, O.S. (MS)

Exhibits marked on behalf of the petitioners.

Ex.A.1 : Certified copy of the F.I.R.

Ex.A.2: Certified copy of Wound certificate.

Ex.A.3: Certified copy of Charge sheet.

Ex.A.4: Bunch of medical bills for Rs.82,438/-.

Ex.A.5: Disability certificate.

Ex.A.6: Adangal extract issued by Thasildar of Mudigubba.

Ex.X.1: Discharge summary.

Ex.X.2: Case sheet.

Ex.X.3: Authorization letter.

Ex.X.4: D.L Extract copy.

Exhibits marked on behalf of Respondents

Ex.B.1: Copy of Insurance policy.

Ex.B.2: Office copy of registered notice, dt.23.09.2011.

Ex.B.3: Served acknowledgment of R.1

Ex.B.4: Office copy of notice, dt.14.2.2012.

Ex.B.5: Served copy of acknowledgment of driver of the vehicle.

MACT-IV.A.D.J.

1

IN THE COURT OF THE III ADDL.SESSIONS JUDGE, FTC, ANANTAPUR.

Present: Sri P.Subramanya Kumar, B.Sc., B.L.,

I Addl. Sessions Judge, Anantapur.

FAC III Additional Sessions Judge, FTC, Anantapur.

Tuesday, this the Sixteenth day of July, Two Thousand and Thirteen.

Criminal Appeal No.7/2013 in C.C.180/2011

From what court the appeal isSpl. Judl. First Class Magistrate for Prohibition & Excise Cases, Anantapur, FAC Spl. Mobile Court.

Number of the case in that courtC.C.No.180/2011

Number of AppealCrl.A.No.7/2013

Name and description of the appellant 1. Sirigala Nagendra, aged 24 years, S/o Bhaskara Reddy.

2. Sivananda Reddy, aged 21 years, S/o Bhaskara Reddy.

3. Pavan Kumar Reddy, aged 23 years, S/o Rami Reddy.

4. Sirigala Bhaskara Reddy, aged 56 years, S/o Subbi Reddy.

Section of Law under which it was The accused A.1 to A.4 are found imposed in lower court. guilty for the offence punishable

U/s.324 of I.P.C and they are convicted U/sec.248 (2) Cr.P.C and sentenced to undergo simple imprisonment for a period of 1 (one) year and also sentenced to pay fine of Rs.1,000/- (Rupees one thousand only) each, in default of payment of fine amount, accused A.1 to A.4 are sentenced to undergo simple imprisonment for a period of 1 (one) month. The bail bonds of A.1 to A.4 with that of their sureties shall stand cancelled after expiry of six months.

The unmarked case property if any shall be destroyed after expiry of appeal time. The accused are having capacity for engaging counsel.

2

Whether confirmed, modified or In the result, the appeal is allowed. reversed and if modified the The order of conviction and sentence modification. imposed by Spl. Judl. I Class

Magistrate, Proh & Excise, FAC to Spl.

Mobile Court in C.C.No.180 of 2011 is hereby reversed. The appellants/A.1 to A.4 are found not guilty for the offence under section 324 of I.P.C and accordingly, they are acquitted

U/sec.386 (b) (i) of Cr.P.c. The bail bonds on record of appellants/A.1 to

A.4 shall stand cancelled after appeal time is over. The fine amount paid by the appellants/A.1 to A.4 before the lower court shall be returned to them after appeal time is over.

Dates of

Presentation16.01.2013

Filed on18.01.2013

Notice issued by court21.01.2013

Appellant ordered to appear18.02.2013

Hearing03.07.2013

Judgment16.07.2013

The above appeal is coming on 03.7.2013 before me for final hearing in the presence of Sri B.Harshavardhan Reddy, Sri J.Ravindra Babu and Sri

S.Shaik Ahammed, Advocates for the Appellants and of Sri I.Madhusudhan, learned Addl. Public Prosecutor for the State, and after hearing arguments of both sides and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

Judgment

This is a criminal appeal filed by the appellants/accused A.1 to A.4 aggrieved against the order of conviction and sentence imposed by the learned Special Judicial Magistrate of First Class, Prohibition and Excise Court, 3

Anantapur who is Full Additional charge of Special mobile Court, Anantapur vide her judgment in C.C.180/2011, dt.31.12.2012.

2. For the sake of convenience, the appellants herein shall be termed as accused A.1 to A.4 while the complainant shall be termed as respondent while discussing the grounds of appeal on merits.

3.The Sub-Inspector of Police, Kuderu P.S has filed a charge sheet against the accused A.1 to A.4 for the offence punishable under section 324 r/w 34 of Indian Penal Code.

4.The brief contention of the prosecution case is that on 19.01.2011 afternoon while the defacto complainant R.Sreenivasulu was attending business in his kirana shop, A.1 went there and abused him and due to which he questioned A.1 about the unnecessary abusing. There was an altercation took place between them. Later A.1 left that place. Again at 7.30 p.m A.1 to

A.4 went to the house of defacto complainant, armed with iron rod, palugu (an agricultural implement), sickle and stick. A.1 dealt a blow with sickle and caused bleeding injury to the defacto complainant with a plea how dare he questioned his act and later A.2 dealt a blow with an iron rod on his neck and caused contusion injury to the defacto complainant, then A.3 beat him with palugu (an agricultural implement) on the knee and caused contusion injury to him and that the defacto complainant fallen down on the ground with hue and cries. A.4 beat him with a stick behind his head and caused contusion injury and later Boya Vannurappa and Boya Eswaraiah who are present there intervened and separated the defacto complainant from the accused A.1 to

A.4. Subsequently, the injured was shifted to Government General Hospital,

Anantapur for treatment. Basing on the M.L.C admit intimation and on the report of R.Sreenivasulu a case in Cr.No.10/2011 U/sec.324 r/w 34 of I.P.C was registered and investigated into by P.Muni Ramulu, S.I of Police who examined

R.Sreenivasulu, A.Nagabhushanam, Boya Vannurappa and Boya Eswaraiah and recorded their statements. On 24.02.2011 A.1 to A.4 were arrested and 4 sent them for judicial custody. On receipt of wound certificate and after completion of investigation, he laid charge sheet against the accused A.1 to

A.4 under section 324 r/w 34 of I.P.C.

4.The learned A.J.F.C.M., Anantapur has taken cognizance against the Accused A.1 to A.4 for the offence under section 324 r/w 34 of I.P.C and numbered as C.C.90/2011. As per the orders of the Hon'ble Dist. & Sessions

Judge, the case was transferred to Mobile Court, Anantapur where it was

renumbered as C.C.180/2011.

5.On appearance of the accused A.1 to A4 all relevant case records were furnished to the accused and later they were examined U/sec.239 of

Cr.P.C by framing a charge u/sec.324 r/w 34 of I.P.C, which was read over and explained to them in Telugu and the same have been denied by them.

6.Before the lower court, the prosecution has examined P.Ws.1 to 6 by marking Exs.P.1 to P.4. Thereafter the accused were examined under section 313 (1) of Cr.P.C in respect of the incriminating evidence found in the evidence of prosecution witnesses and same have been denied by them.

7.Basing on the material placed before her, the learned Magistrate convicted the accused A.1 to A.4 for the offence punishable under section 324 of I.P.C to undergo simple imprisonment for a period of one year and also sentenced to pay a fine of Rs.1,000/- each, in default of payment of fine amount, to suffer simple imprisonment for one month.

8.Aggrieved the above order of conviction and sentence of the learned Magistrate, the present appeal has been preferred. The material grounds of appeal are as follows:

a) The learned Magistrate ought to have seen that the ingredients to constitute the offence under section 324 of I.P.C; 5

b)The trial court ought to have seen that the offence was taken place on 19.01.2011, but the F.I.R was lodged before the Police on 21.1.2011 and the delay is not explained before preferring Ex.P.1;

c)The lower court ought to have seen the origin and genesis of the alleged offence as P.W.1 in his evidence has deposed that A.1 on 19.01.2011 came to his shop and asked him to give cigarettes on credit. The version spoken by P.W.1 for the first time in the court is against the version of prosecution as well as version found in Ex.P.1 which is itself is sufficient to acquit the accused;

d)The presence of P.W.2 to P.W.4 at the alleged scene of offence itself becomes doubtful at that odd hour, the natural witness would be the wife and children of P.W.1 as such the court ought to have held that the presence of P.Ws.2 to 4 are doubtful;

e) The lower court has totally lost sight of evidence of P.W.5 and

Ex.P.2 wound certificate wherein the doctor has categorically admitted that injury No.1 is only pain and there is no visible injury whereas the evidence of

P.Ws.1 to 4 reveals that A.1 has hacked P.W.1 with a sickle;

f) Ex.P.2 does not disclose any injury over the back of neck of P.W.1 except complaining pain over the back of the neck, where as the evidence of

P.W.1, P.W.3 and P.W.4 goes to show that P.W.2 received injury with iron pipe on the back of his neck by A.2, as such the entire version of A.2using the iron rod will not hold good;

g) The lower court ought not have allowed Cr.M.P.517/2012 filed by the prosecution on 29.11.2012 by allowing P.W.6 to give evidence on behalf of

L.W.6 S.I of Police which is totally against the provisions of the Evidence Act;

h)The trial Court ought not to have marked Ex.P.1 as it is not recorded either by P.W.6 or L.W.6 as such no reliance can be given on Ex.P.1.

Thus, the person who is said to have recorded the statement has not even 6 cited as witness and the prosecution has not taken any steps to examine him during trial;

i)Hence, requested to allow the appeal;

9.Basing on the grounds of appeal, the points that arise for consideration in the appeal are as follows:

1. Whether the learned Special Judicial First Class Magistrate

Prohibition and Excise, Anantapur has been properly appreciated the

oral and documentary evidence placed by the prosecution before her

for passing order of conviction and sentence against the accused?

2. Whether the sentence imposed by the learned Magistrate is

erroneous without examining the Investigating Officer in the crime

and without production of the alleged weapon used by the accused?

3. To what relief?

10.Points 1 and 2::-

The learned counsel for the accused has argued that there is a delay of two days in lodging F.I.R inspite of the fact that scene of offence is 6 Kms from the police station which is not explained and as such he requested to acquit the accused on that ground. I am unable to concede with the contention of the learned counsel for the appellants merely on the ground of delay, the accused are not entitled for acquittal.

11.The learned counsel for the accused pointed out that P.W.1 in his evidence has deposed that on 19.1.2011 Accused No.1 came to his shop and asked him to give cigarettes on credit, which will not find place in the complaint given by P.W.1 to the police. As has been rightly contended by the learned counsel for the appellants that it is disclosed by P.W.1 the defacto complainant in his chief affidavit that on 19.11.2011 A.1 came to him while he was at his petty shop at about 1-00 p.m in intoxication condition and asked 7 him to give cigarettes on credit and then P.W.1 replied that no credit transactions will be there in his shop, for the same, A.1 raised galata with him by abusing him in filthy language. This part of evidence as spoken by P.W.1 would not find place in the complaint given by P.W.1 to the police under

Ex.P.1. Admittedly, the prosecution has not examined the Investigating Officer in the crime. The prosecution has examined P.W.6 Sri C.Nabi Rasool who is

A.S.I in the place of Investigating Officer who did not speak in respect of the above discrepancy as pointed out by the learned counsel for the appellants.

The evidence of P.W.6 only helpful that his recognizing the signature of police officer who registered F.I.R and investigated the matter. Thus, the above discrepancy pointed out by the learned counsel for the appellants have been remained and has not been explained by the prosecution and on the above discrepancy, the accused are entitled for benefit of doubt. Even the evidence of P.W.1 about A.2 beating him with iron pipe is not inconsonance with the medical evidence. The perusal of Ex.P.2 does not reveal any injury over the back of neck of P.W.1 except complaining pain over the back of the neck where as the evidence of P.Ws.1, 3 and 4 reveal that P.W.2 received injury with iron pipe on the back of his neck by A.2. Thus, the above piece of evidence also gives roots for suspicion in respect of the version of P.W.1 and

P.W.2 who deposed before the court. In the cross-examination it has been elicited from P.W.1 that one Lakshmi Devi filed a criminal case against him under section 376 of I.P.C in which P.W.1 was convicted by the Prl. Senior Civil

Judge's Court, Anantapur by imposing fine of Rs.12,000/-. The presence of

Investigating Officer would have been explained how he believed the statement of P.W.1 in filing the charge sheet against the accused inspite of the fact that P.W.1 has got history of facing a criminal complaint u/sec.376 I.P.C.

Though P.W.1 has denied that about his running a cheap liquor shop in the village without licence and creating disturbance in the village and that when the accused informed about his activities to the police, he bore grudge against them and filed case against the accused, which would have been explained if 8 the Investigating Officer is examined about the factor of P.W.1 running a cheap liquor shop in the village of the accused. P.W.1 has denied the suggestion putting to him about his involving in Gaming Act case. This would also been explained if the Investigating Officer entered into the witness box.

12.The perusal of the evidence given by Doctor who is examined as

P.W.5 revealed that he examined Sreenivasulu (P.W.1) and found the following injuries on him (1) Pain and injury over head (2) Deformity of left lower limb and (3) he was complaining pain at the back of neck. In the cross-examination it has been elicited from P.W.5 by the learned counsel for the accused that injury No.1 is complaint of pain and there is no visible injury and the doctor could not state with which weapon, the said injury was caused, as well as injury No.3 also. It is admitted by P.W.5 that all the injuries mentioned in the wound certificate can be possible if a man fallen down on rough surface. He has categorically deposed that these injuries are not visible. It is added by the doctor P.W.5 in his evidence that injury No.2 is possible with a stick.

Admittedly, the Investigating Officer has not seized any crime weapon that was used by the accused in the charge sheet. In the absence of the weapon, the evidence of P.W.5 cannot be appreciated even in respect of second injury.

13.Thus, by non examining the Investigating Officer, the prosecution has been deprived the valuable right of the accused in cross-examining the

Investigating Officer in respect of the discrepancy in the evidence of P.W.1 to

Ex.P.1 complaint and the non production of the crime weapon in order to appreciate the evidence of P.W.5 the doctor who issued wound certificate.

14.Thus, in view of the above discussion supra mentioned, I hold that the learned Magistrate erred in appreciating the oral and documentary evidence placed before her and so also the sentence imposed by her is erroneous for non examination of the Investigating Officer and so also non production of crime weapon. Accordingly, the points 1 and 2 are answered in favour of the appellants/A.1 to A.4.

9

15.Point No.3::-

In view of my observations on Points 1 and 2 the appeal has to be allowed by reversing the order of conviction and sentence passed by the learned Spl. Judicial Magistrate of I Class, Prohibition and Excise Court,

Anantapur FAC Spl. Mobile Court in C.C.No.180/2011.

16.In the result, the appeal is allowed. The order of conviction and sentence imposed by Spl. Judl. I Class Magistrate, Proh & Excise, FAC to Spl.

Mobile Court in C.C.No.180 of 2011 is hereby reversed. The appellants/A.1 to

A.4 are found not guilty for the offence under section 324 r/w 34 of I.P.C and accordingly, they are acquitted U/sec.386 (b) (i) of Cr.P.c. The bail bonds on record of appellants/A.1 to A.4 shall stand cancelled after appeal time is over.

The fine amount paid by the appellants/A.1 to A.4 before the lower court shall be returned to them after appeal time is over.

Dictated to the Personal Assistant, transcribed by her, corrected and

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

III Addl. District & Sessions Judge,

Anantapur.

Appendix of Evidence

Nil

III.A.S.J.

To

The Spl. Judl. First Class Magistrate for Prohibition & Excise Cases, Anantapur, FAC Spl. Mobile Court.

Fair copy along with L.C records in C.C.180/2011.

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTAPURAMU.

Present: Sri P.Subramanya Kumar, I Additional District Judge, (FAC) Chairman-cum-Presiding Officer

TUESDAY THE 23rd DAY OF FEBRUARY, 2016 I.D.No.163/2014

Between:

K.Narayana, Aged 48, E.No.400020, Conductor, S/o Obulesu, 28/2/251, Namodaya Colony, Ananthapuramu, Ananthapuramu Dist. ….Petitioner/Workman

AND

1) The Depot Manager, A.P.S.R.T.C, Kalyandurg Depot, Kalyandurg Anantapuramu District.

2)The Deputy Chief Traffic Manager, A.P.S.R.T.C, Anantahapuramu,

3)The Regional Manager, A.P.S.R.T.C, Anantahapuramu.

4)The Executive Director, A.P.S.R.T.C, Kadapa Zone, Kadapa, Kadapa District.…. Respondents/Management

This Industrial Dispute is existing between the Petitioner and the Respondents and it is a direct filing of the Claim Statement under Section 2-A (2) of the Industrial Disputes Act-1947.

This Industrial Dispute coming on 8-2-2016 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioner and of Sri B.S Hussain, Law officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

1)This is a Petition filed under Sec.2-A (2) of the Industrial Disputes Act, praying the Court to set aside the removal order passed by the 1st Respondent and to direct the Respondents to reinstate him into service with continuity of service with all attendant benefit and back wages.

2

2) The case of the Petitioner in brief is that he was appointed as Conductor in the Respondent’s Corporation in the year 1988 and he discharged his duties sincerely, honestly, continuously and to the utmost satisfaction of his superiors. While that was so, when the Petitioner was conducting the bus on route Kalyandurg to Bangalore a check was exercised on 30-10-2012 by the checking officials at stage No.5/6 Kadiridevarapalli and found some irregularities and they sent report to the Respondent. Basing on the report of the checking officials 1st Respondent issued charge sheet. The charges levelled against the Petitioner are;

1) For having punched the tickets with pen instead of using Nipper, which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963.

2) For having wrongly punched on the tickets Nos.122/668070 to 122/668074 of Rs.100/- den issued to 5 passengers on 30-10-2012 while performing service from Rayadurg – Bangalore, which constitutes misconduct under Reg.28 (vi) (a) of APSRTC Employees (Conduct) Reg. 1963.

3) For having wrongly punched on the tickets Nos.122/668076 of Rs.100/-

as 0,1,5, 5 stages to 0,1,5,8 instead of punching 05 to 18 stages and

also found punched on several stages on the ticket with pen, which constitutes misconduct under Reg.28 (vi) (a) of APSRTC Employees (Conduct) Reg. 1963.

4) For having kept the ticket No.122/668076 of Rs.100/- den., in the ticket tray banded with rubber band on Rs.100/- den., ticket block at the time of check, which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963.

5) For having found re-issued E.10 ticket Nos. from 122/668065 to 122/668075 of Rs.100/- den., ticket E.5 tickets on 29-10-2012 and E.5 tickets on 31-10-2012, which constitutes misconduct under Reg.28 (x) of APSRTC Employees (Conduct) Reg. 1963.

6) For having altered the ticket Nos. From 122/665554 to 122/665556 of E.6 tickets of Rs.100 den., after reaching Bangalore which were already issued at stage No.5 altered the tickets No.122/665556 as 122/665554 from stage No.05 to 15 and also altered ticket No.100/780779 of Rs.70/- den., as 100/780778 from ex-stages 15 to 09 on 22-10-2012 in S.R No.108044788, which constitutes misconduct under Reg.28 (x) of APSRTC Employees (Conduct) Reg. 1963.

7) For having altered 100/782218 at stage No.9 as 100/782208 which were already sold at stage No.01 on 25-10-2012 in S.R No.10804968, which constitutes misconduct under Reg.28 (x) of APSRTC Employees (Conduct) Reg. 1963.

8) For having altered E.16 tickets Nos., of Rs.100/- den., from ticket Nos.122/66584 to 122/665599 which were already sold and opened 3

New Block of Rs.100/- den., with 000 number altered at Bangalore i.e., ex-stage 18 the ticket block opened with 000 as 122/665588 on 26-10- 2012 in S.R No.108045071, which constitutes misconduct under Reg.28 (x) of APSRTC Employees (Conduct) Reg. 1963.

9) For having altered E.16 tickets Nos., of Rs.100/- den., from ticket Nos.122/668060 to 122/668075 which were already issued at stage No.1 and altered as 122/668075 as 122/668065 stage No.15 in the Sr.No.108045279 on 29-10-2012 which constitutes misconduct under Reg.28 (x) of APSRTC Employees (Conduct) Regulations 1963.

3) Petitioner further submitted that due to jerks in the bus certain alterations took place and there is no intentional lapse on his part in over writing the ticket entries in the duties he performed. Petitioner punched the tickets with ball point pen instead of nipper. Nipper was not supplied by the Respondent’s Corporation, so Petitioner used ball point and he had not committed any misconduct. By mistake Petitioner picked up Rs.100/- denomination tickets instead of Rs.70/- denomination ticket from his hand during his previous journey, so he kept those Rs.100/- denomination tickets with him to cover loss. Overwriting as mentioned in the charge crept inadvertently. A farce enquiry was conducted against the Petitioner, the Depot Manager without seeing the material on record passed illegal and invalid, unjust removal order. The punishment of removal is shockingly disproportionate. Appeals made to higher authorities have become unfruitful. Petitioner is surviving with wife three sons aged about 22 years and one unmarried daughter. Petitioner has no other income except earnings from the job. Petitioner requested to set aside the removal order dated 15-5-2013 and to direct the Respondents to reinstate him into service with continuity of service and with all attendant benefits and back-wages.

4) Notice given to the Respondents and Respondents filed counter. In the counter they stated that Petitioner was appointed as Casual Conductor in year 1987 and his services were regularized in the year 1988. The record of the Petitioner is not good; he was censured on 17 occasions, his annual increments deferred on 8 occasions and amount was recovered from his salary on one occasion.

5) On 30-10-2012 while the Petitioner was conducting the service on route Kalyandurg to Bangalore TTIs of Head Quarters Enforcement Squad/Hyderabad exercised a check at stage No.5/6 Kadiridevarapalli and they detected that the Petitioner punched tickets with pen without using nipper and also found that Petitioner collected Rs.170/- from 5 passengers who were travelling from Kalyandurg to Bangalore and issued Rs.100/- denomination ticket plus Rs.70/- denomination ticket which were punched with pen on different stages which indicates that the Petitioner issued tickets which were already issued to the passengers.

4

6) Basing on the irregularities committed by the Petitioner 1st Respondent kept the Petitioner under suspension and ordered for a detailed enquiry. During the enquiry Petitioner and the checking official were examined. Petitioner gave his explanation and he was provided opportunity to cross examine the Respondent’s witness. Basing on the findings of the enquiry officer 1st Respondent issued show cause notice of removal. Petitioner submitted his explanation to the show cause notice. Since the explanation submitted by the Petitioner to the show cause notice was not satisfactory, 1st Respondent removed the Petitioner from service. Petitioner committed grave misconduct so he was removed from service and he is not entitled for any relief. 1st Respondents followed enquiry procedure and there is no violation in the enquiry proceedings. Removal order passed by the 1st Respondent is just and requested to up hold the same and to dismiss the claim Petition.

7) During the course of proceedings the learned counsel for the Petitioner filed Memo stating that the Petitioner is not questioning the validity of domestic enquiry procedurally and requested to reappraise the evidence on record.

8) Neither the Petitioner nor the Respondents choose to adduce evidence in this case. No documents are marked on behalf of the Petitioner. Ex.M-1 to M-21 were marked on behalf of the Respondents.

Heard both sides.

Now the points for determination is:

1) Whether the removal order passed against the Petitioner is justified or not?

2) To what relief the Petitioner is entitled to?

9) FINDINGS ON THE POINTS: Brief facts of the case is that on 30-10-2012 while the Petitioner was conducting the service on route Kalyandurg to Bangalore checking officials exercised check on the bus conducted by the Petitioner and found that the Petitioner used ball point pen instead of nipper for punching and punches were improper and also noticed that the tickets issued by the Petitioner were having more punches in different stages so checking officials suspected and sent report against the Petitioner. Basing on the report 1st Respondent issued charge sheet and later on a detailed enquiry removed the Petitioner from service.

10) Now the documents submitted by the Respondents are to be looked into. Ex.M-1 is the check sheet. Ex.M-2 is the charge Memo issued by the checking officials wherein checking officials mentioned that Petitioner punched improperly on the tickets which was doubted by the checking officials that the said tickets were issued previously and informed the 1st Respondent to make inquiries. Ex.M-3 is the confiscated tickets cover. The tickets enclosed are perused and found that the punching are in different stages. A punched ticket validates for the particular 5 journey only. Petitioner issued tickets which are in serial order and were having punches, so validity ends on reaching the stage. Petitioner punched the tickets without taking proper care, for that he cannot be blamed as he was doing duty guilty mind. Ex.M-4 is the Conductor’s statement wherein he stated that due to jerks he wrongly punched the tickets and he was performing routine duties to Bangalore and at Malakalamaru one passenger boarded into bus and the ticket fare was Rs.158/- and for that he removed Rs.100/- denominations from the try and at that time two tickets of Rs.100/- were stickled, so he issued one ticket and kept another punched ticket with him and there is no mistake on his part. Ex.M-5 is the passengers statement wherein one passenger stated that he boarded the bus at Kalyandurg to go to Bangalore and paid Rs.340/- to the Petitioner and he issued Rs.100/- denomination two tickets and Rs.70/- denomination two tickets to him. The second passenger also stated that he boarded the bus at Malakalamaru to go to Bangalore and paid Rs.158/- to the Conductor and he issued Rs.100/- denomination one ticket, Rs.50/- denomination one ticket, Rs.7/- denomination ticket one ticket and Rs.1/- denomination one ticket. The 3rd passenger stated that he boarded the bus at Kalayandurg and paid Rs.170/- and the Conductor issued him Rs.100/- denomination one ticket and Rs.70/- denomination one ticket total Rs.170/- worth tickets were issued to him. The 4th passenger stated that he boarded the bus at Kalyandurg to go to Bangalore and he paid Rs.340/- to the Conductor and he issued Rs.100/- denomination two tickets and Rs.70/- denomination two tickets to him. Ex.M-6 is the special report of the checking officials wherein mentioned that the Petitioner issued tickets with different punches and requested to take action against the Petitioner. Ex.M-7 is the statistical returns maintained by the Petitioner during his duties on different dates. These statistical returns were submitted to the depot authorities by remitting the sale proceeds amount and they were verified by the depot authorities. Basing on the report of the checking officials these statistics were rechecked and suspected that the Petitioner altered Statistical returns, issued tickets according to his convenience. This allegation cannot totally believed as the Petitioner submitted those statistics to the authorities and they could not point out the alterations so much weight cannot be given on the nature of corrections as the bus will be plying on different roads and corrections may occur while making entries in the Statistical Return. As far as punches are concerned it is the duty of the Petitioner to punch the tickets properly with a nipper which shows that he did not do his duty rightly. Ex.M- 13 is the enquiry report wherein statement of N.S.Krishna, Travelling ticket Inspector stated that they detected certain irregularities of the Petitioner during check and could not issue charge Memo on the spot and they prepared the charge Memo after verifying the statistics maintained by the Petitioner in the previous journey. Statement of the above said checking official gives an impression that the charge Memo was not prepared at the place of check and it was prepared leisurely. As per procedure charge 6

Memo has to be issued on the spot. During cross examination of the said checking officials he stated that he has not verified the passengers with the tickets and also could not check the bus cash. In the check sheet there is a specific column meant for checking of the cash, it is mandatory but said mandatory field was not followed by the checking officials. Enquiry officer has not summoned the passengers who gave statement at the time of check, so their examination is also essential for knowing actualities. Even though this case mainly concentrates on the corrections in the S.R and punches it is mandatory for the enquiry officer to examine the passengers who gave statement at the time of check. This is also procedural irregularity.

11) Over all reading of the material on record gives an impression that Petitioner issued tickets to the passengers which are in order. If really Petitioner had any guilty consciousness he could have issued tickets irregularly. Corrections crept due to bus shakes for that he may not be removed from service. Right punching was not done by the Petitioner so justifiable punishment has to be imposed upon the Petitioner. In the circumstances reinstatement of the Petitioner into service with continuity of service is just and as a measure of punishment deferment of two annual increments after reinstatement may meet ends of justice.

12) In the result, the removal order passed by the 1st Respondent vide proceedings No.02/95(51)/12-KDG dated 15-5-2013 and confirmed by the appellate, review and appeal authorities are set aside and the Respondents are directed to reinstate the Petitioner into service with continuity of service but without back- wages and other attendant benefits. After reinstatement of the Petitioner into service the Respondents are directed to defer two annual increments which will have effect on his future increments.

12) Award is passed accordingly.

The Award is typed to my dictation, corrected and pronounced by me on this the 23rd day of February, 2016.

I Additional District Judge, (FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPURAMU.

APENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PETITIONER:FOR RESPONDENT:

-None- -None-

DOCUMENTS MARKED

7

FOR PETITIONER:

-Nil-

FOR RESPONDENT:

1)Ex.M-1 Dt.30-10-2012TTIs check sheet.

2)Ex.M-2Dt.30-10-2012Charge Memo.

3)Ex.M-3Dt.-Cover containing top punched tickets.

4)Ex.M-4Dt.30-10-2012Petitioner statement.

5)Ex.M-5Dt.30-10-2012Passengers’ statement.

6)Ex.M-6Dt.1-11-2012Special report.

7)Ex.M-7Dt.-Statistical returns.

8)Ex.M-8Dt.12-11-2012Charge sheet.

9)Ex.M-9Dt.12-11-2012Suspension order.

10)Ex.M-10Dt.-Acknowledgment of the Petitioner.

11)Ex.M-11Dt.7-12-2012Explanation of the Petitioner.

12)Ex.M-12Dt.14-12-2012Call letter for enquiry.

13)Ex.M-13Dt.13-4-2013Domestic enquiry report.

14)Ex.M-14Dt.26-4-2013Objections called about enquiry.

15)Ex.M-15Dt.2-5-2013Objections submitted by the Petitioner.

16)Ex.M-16Dt.4-5-2013Show cause notice of removal from service.

17)Ex.M-17Dt.-Acknowledgement of the Petitioner.

18)Ex.M-18Dt.15-5-2013Proceedings of the Disciplinary Authority.

19)Ex.M-19Dt.8-11-2013Proceedings of the Appellate Authority.

20)Ex.M-20Dt.24-5-2014Proceedings of the Review Authority.

21)Ex.M-21Dt.20-9-2014Proceedings of the Appeal Authority.

I Additional District Judge, (FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPURAMU.

Prepared By: Compared By:

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTAPURAMU.

Present: Sri P.Subramanya Kumar, I Additional District Judge, (FAC) Chairman-cum-Presiding Officer

TUESDAY THE 16TH DAY OF FEBRUARY, 2016 I.D.No.34/2000

Between:

Mannuru Rajasekharaiah, E.406793, S/o N.Basavaiah, Ex.RTC, Conductor, Aged 37 years, C/o 8/386, Court Road, Anantapura.….Petitioner/Workman

AND

The Depot Manager, A.P.S.R.T.C, Yemmiganur Depot, Yemmiganur, Kurnool Dist.…. Respondent/Management

This Industrial Dispute is existing between the Petitioner and the Respondent and it is a direct filing of the Claim Statement under Section 2-A (2) of the Industrial Disputes Act-1947.

This Industrial Dispute coming on 15-2-2016 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioner and of Sri B.S Hussain, Law officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

1) This is a Petition filed under Sec.2-A (2) of the Industrial Disputes Act, 1947 praying the Court to set aside the removal order passed by the Respondent and to direct the Respondent to reinstate him into service with continuity of service with all attendant benefit and back wages.

2) Upon the Award passed by this Court dated 2-12-2002 the Petitioner filed Writ Petition before the Hon’ble High Court. The Hon’ble High Court set aside the order passed by this Court dated 2-12-2002 and remitted back the matter to this Court for reconsideration afresh and to decide the matter within two months from the date of receipt of the order and record.

3) The case of the Petitioner in brief is that he was appointed as Conductor in the Respondent’s Corporation in the year 1996 and he discharged his duties sincerely, honestly, continuously and to the utmost satisfaction of his superiors. On 2 15-11-1997 while the Petitioner was conducting the bus on route Yemmiganur to Gudur a check was exercised by the authorities. Basing on the report of the checking officials, Respondent issued charge sheet with the following charge.

1) “For having collected Rs.7.50 i.e., @ Rs.2.50 each from a batch of three passengers found alighting at Belagal having boarded the bus at Kampedu ex-stages 5 to 6 and issued unpunched tickets bearing Nos.332/811367 to 332/811369 of Rs.2.50 denomination without accounting the same in the SR against the stage No.5, which constitutes misconduct under Regulations 28 (xxxii) of APSRTC Employees’ (Conduct) Reg.1963.

2) For having closed the ticket tray numbers of all denominations in the SR up to stage No.6, without accounting the above mentioned tickets i.e., mentioned in charge No.1 which constitutes misconduct under Regulations 28 (xxxii) of APSRTC Employees’ (Conduct) Reg.1963”.

4) Petitioner gave an explanation categorically denying the charges. All the charges that are levelled against the Petitioner are false and baseless, he had not committed any misconduct as alleged in the charge sheet muchless under APSRTC conduct regulations. The Petitioner submits that he was not well on that day, he submitted sick certificate, fact of illness of the Petitioner at the time of check was also admitted by the checking official G.Sankaraiah in the enquiry. Though the Petitioner was not well, the Petitioner was forced to perform the service. The passengers mentioned in the charge sheet had boarded into the bus in between stages. Under those circumstances the charges that are levelled against the Petitioner are false and baseless and the Petitioner had not committed any misconduct. The enquiry conducted by the Respondent is illegal, invalid and against to the principles of natural justice. Due to ill health the mistake crept and the punishment of removal from service imposed by the Respondent and confirmed by the Appellate and Review authorities is disproportionate and requested to reinstate him into service with continuity of service and with full back wages and all other attendant benefits. The appeals made to the higher authorities have become unfruitful. Petitioner is surviving with wife, three children and aged mother who are depending on him and he has no other source of income except from the job. Since the date of removal from service the Petitioner is out of employment and could not secure any alternative employment. Petitioner requests to set aside the removal order dated 13-4-1998 and to direct the Respondent to reinstate him into service with continuity of service and with all attendant benefits and back-wages.

5) Notice given to the Respondent and Respondent filed counter. In the counter he stated that Petitioner was working in the Respondent’s Corporation prior to the date of removal. On 15-11-1997 at 07-50 hrs., while the Petitioner was conducting the bus bearing No.3974 on the route Yemmiganur to Gudur a check was exercised by 3 the Travelling Ticket Inspectors of Regional Enforcement Squad, Kurnool at stage No.6. The checking Officials detected certain cash and ticket irregularities. They obtained statements from the concerned passengers. These statements were written in the presence of the Petitioner. The Petitioner also gave his spot explanation. The checking officials then prepared the charge memo and served it on the Petitioner at the spot. Basing on the report of the checking officials Respondent issued charge sheet and suspended the Petitioner and ordered for detailed enquiry. A fair and proper enquiry was conducted. Basing on the record of the enquiry officer the Respondent removed the Petitioner from service. Principles of natural justice were followed while taking the decision of removal from service and there are no lapses on the part of the Respondent in conducting the enquiry. Petitioner purposefully issued un-punched tickets to the passengers and also avoided to account the said un- punched tickets in the S.R to defraud the revenues of the Respondent’s Corporation. There is scope for the Petitioner to collect the said tickets at the destination point of the Passengers and to reissue the same in subsequent journey. Petitioner is an unprofitable employee to the Respondent’s Corporation. He is not entitled for any relief and requested to uphold the action of the Respondent.

6) During the course of proceedings the learned counsel for the Petitioner filed Memo stating that the Petitioner is not questioning the validity of domestic enquiry procedurally and requested to reappraise the evidence on record.

7) Neither the Petitioner nor the Respondent choose to adduce evidence in this case. No documents are marked on behalf of the Petitioner. Ex.M-1 to M-16 were marked on behalf of the Respondents.

Heard both sides.

Now the points for determination are:

1) Whether the removal order passed against the Petitioner is justified or not?

2) To what relief the Petitioner is entitled to?

8) FINDINGS ON THE POINTS: Petitioner was appointed as Conductor in the Respondent’s Corporation in the year 1996. On 15-11-1997 while the Petitioner was conducting the bus bearing No.3974 on route Yemmiganur to Gudur a check was exercised by the authorities and they detected that the Petitioner issued un-punched tickets to three passengers without accounting said tickets in the Statistical Return. Respondent suspected that Petitioner may collect the said tickets from the passengers and reissue them conveniently and intended to pocket the revenues of 4 the Respondent’s Corporation. Basing on the said allegation, Petitioner was removed from service

9) The record submitted by the Respondent has to be looked into. Ex.M-1 is the check sheet maintained by the checking officials; wherein checking officials mentioned that there were eight passengers in the bus and Petitioner issued three un-punched tickets. In the said check sheet there is a column of cash check which is not touched by the checking officials. The columns mentioned in the check sheet are mandatory and the same has to be filled by the checking officials but the column of cash check is kept blank. This shows that checking officials could not follow the procedure while checking the bus. Ex.M-2 is the charge Memo issued by the checking officials at the place of check. Ex.M-3 is the statement of the Petitioner/Conductor at the place of check recorded by the checking officials. In this statement Petitioner stated that checking officials checked three passengers and they collected Rs.2.50 denomination tickets and the passengers were travelling from Kampadu to Belagal and the said tickets were not punched, so they seized those tickets and Petitioner stated that he was not feeling well and thought that he had punched those tickets and there is no ill motive in issuing those tickets and said lapse detected by the checking officials and requested to pardon him. Petitioner further stated that his eyes were reeling and sick but he was sent to duty and requested to pardon him. This statement was given in the presence of the checking officials, so it has to be believed. When a person is sick, there is likelihood of doing mistake and the mistake committed by the Petitioner was that he had issued un-punched ticket. Ex.M-6 is the report of the checking officials submitted to the Respondent; wherein checking officials mentioned that Petitioner issued un-punched tickets and the said tickets were not accounted in the record and suspected that there is scope for him to issue the said tickets to the passengers. Ex.M-7 is the confiscated tickets in a cover. Ex.M-11 is enquiry report. In this enquiry report statement of the checking officials G.Sankaraiah RES/Kurnool was recorded, wherein Petitioner stated that he issued un-punched tickets to the passengers and the said passengers were alighting with those tickets. Said checking officials was cross examined by the Petitioner and elicited the answer from the checking official that the Petitioner was ill at the time of check. This shows that checking officials found the Petitioner in sick condition. When health is not good there is possibility for committing mistake. The mistake committed by the Petitioner is un- punching the tickets. The un-punched tickets were in the hands of the checking officials at the place of check, so it cannot be imagined that Petitioner may collect said tickets from the said passengers and reissue them in his ensuing journey. So issuing those tickets to the passengers by collecting those tickets from the passengers is far from truth. In the enquiry Petitioner gave his statement. Reading of the material on shows that Petitioner issued un-punched tickets and the passengers 5 were alighting at their destination, and at that time check took place. Passengers are material witness for the incident of check, so their statement was recorded at the place of check. In the said circumstances, examination of passengers is very essential. There is no material on record that the enquiry officer summoned those passengers for the domestic enquiry. Non-examination of passengers during the domestic enquiry gives an impression that the enquiry was not conducted on proper lines, so it can be termed as procedural irregularity. It is clear from the record that Petitioner was ill at the time of check and he committed mistake of issuing un- punched tickets to the passengers. The mistake committed by the Petitioner cannot be termed as misconduct because the tickets were in the hands of passengers and they alighted the bus, at that time check took place. There is no attempt by the Petitioner to collect said tickets from the passengers at the time of check; so ill motive cannot be attached for his mistake.

10) During the course of arguments the learned Counsel for the Petitioner submitted the decision of the Hon’ble High Court of A.P in W.P.No.14571/2000 which is in between M.Balaswami Vs. A.P State Road Transport Corporation, Hyderabad and others wherein held that; “The recycling becomes a possibility only if the Conductor collects any such un-punched tickets from the passengers later on. Fortunately that was not the allegation in the instant case. Therefore, the prospects of recycling these three tickets is only as high as it may not even happen. In such circumstances, such a misconduct can only be described as a minor misconduct”

The case law relied by the Counsel for the Petitioner is applicable to the present case on hand.

11) Since there are procedural irregularities and there is no ill-motive with the Petitioner to defraud the revenue of the Corporation, then imposition of punishment of removal from service appears to be excessive and unjust.

12) In view of the above discussion, the removal order passed by the Respondent dated 13-4-1998 and the orders passed by the appellate and review authority are set aside and the Respondent is directed to reinstate the Petitioner into service with continuity of service but without back-wages and other attendant benefits. As a measure of punishment after reinstatement of the Petitioner, Respondent shall defer one annual increment with cumulative effect.

13) In the result, the removal order passed by the Respondent vide proceedings No.02/62(280)/97-YMGR dated 13-4-1998 and the orders passed by the appellate and review authority are set aside and the Respondent is directed to reinstate the Petitioner into service with continuity of service but without back- 6 wages and other attendant benefits. As a measure of punishment after reinstatement of the Petitioner, Respondent shall defer one annual increment with cumulative effect.

14) Award is passed accordingly.

The Award is typed to my dictation, corrected and pronounced by me on this the 16th day of February, 2016.

I Additional District Judge, (FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPURAMU.

APENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PETITIONER:FOR RESPONDENT:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

-Nil-

FOR RESPONDENT:

1)Ex.M-1 Dt.15-11-1997TTIs check sheet No.1119642.

2)Ex.M-2Dt.15-11-1997Charge Memo No.0757385.

3)Ex.M-3Dt.15-11-1997Petitioner’s explanation on the spot.

4)Ex.M-4Dt.15-11-1997Passenger spot statement.

5)Ex.M-5Dt.15-11-1997Statistical returns No.3595953.

6)Ex.M-6Dt.18-11-1997TTIs special report.

7)Ex.M-7Dt.-Confiscated tickets in a cover.

8)Ex.M-8Dt.22-11-1997Suspension order.

9)Ex.M-9Dt.22-11-1997Charge sheet.

10)Ex.M-10Dt.27-11-1997Petitioner’s explanation to charge sheet.

11)Ex.M-11Dt.10-3-1998Domestic enquiry report.

12)Ex.M-12Dt.28-3-1998Show cause notice of removal from service.

13)Ex.M-13Dt.11-4-1998Petitioner’s explanation to show cause notice.

14)Ex.M-14Dt.13-4-1998Proceedings of Disciplinary Authority.

15)Ex.M-15Dt.8-6-1998Proceedings of Appellate Authority.

16)Ex.M-16Dt.5-9-1998Proceedings of Review Authority.

I Additional District Judge, (FAC) Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTAPURAMU.

Prepared By:

7

Compared By: