Dharavath Bhadru Vs Bherulal Bhill

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENry FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI

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MOTOR ACCIOENT CIVIL MISCELLANEOUS APPEAL NO: 2051 OF 2019

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Appeal filed Under Section 173 of Motor Vehicles Act against the Judgment and decree in MVOP.NO.294|2016, dated.02-08-2018 on the file of the Chairman, the Chairman, Motor Accident Claims Tribunal-cum-Principal District and Sessions Judge, Nalgonda.

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Between :

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Dharavath Bhadru, S/O.Sukya Occ- lorry driver cum owner R/O.Mangali thanda, H/O.Vafti Khammam Phad Village Chiwemula mandal, NALGONDA

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...AppellanUClaimant

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AND

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Bherulal Bhill, S/o.Baluji Bhil, age-30years, Occ- driver, R"/O.Sasota PS Parsoil dist. chitogarh of RAJASTHAN

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Vinod Kumar. S/o.Roopa Chand age- majopur, occ, business, R/O.Dak Bunglow road, Nimbahera town, Chittorgarh Dist of Rajasthan

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New lndia Assurance Company Limited, Rep by its Divisional manager, Divisional Office, R/O.Prakasham bazar, Nalgonda town and dist.

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New lnia Assurance Company Limited, Rep by its Divisional Manager, Divisional office. R/O.Prakadham bazar, Nalgonda

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...Respondenb/Respondent

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: SRI P.S.P.SURESH KUMAR Counsel for the Appellant(s) Counsel for the Respondent No.1 : MD GHOUSE PASHA Counsel for the Respondent No.2 : Lakshmi Kanakavalli Borra Counsel for the Respondent No.3 & 4 : V.Venkat Rami Reddy : JUDGMENT The Court made the following

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THE HoI\I'BLE SMT.JUSTICE M.G.PRIYADA,RSTNI

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M.A.C.M.A.No.2O51 OF 2()19

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JUDGMENT:

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l. Aggrieved by the dismissal order passed by the Motor Accident Claim s Tribunal-cum- Principal District Judge, Nalgonda, in M.V.O.P. No 294 of 2016, dated 02.O8.2018, the prerrent appeal is liled by the claimant.

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For the sake of convenience, hereinafter, tl-re parties are referred to as per their array before the Tribunal

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The fact s of the case are that the claimant fi-ed a claim petition under Section 166 r/u,. l4O of the Motor Vehicles Act, 1988 r/w Rules 455 of A.P.M.V.Rules, 1989 claiming compensation of Rs.25,00,O00/ - along with intercst^(g, lSth per anrrum for the loss sustainec. by him in thc roacl accident that^()ccurred on 17.05.2015. It is stated by the petitioner that on 17.O5.2015 at about 4:0O A.'M, when the petitioncr rvas proceeding on his lorry bearing No. Tti-05-UA-5799, r.r'ith cotton secds at^(iurrtur to go to Hariyana State for unloading of thc said cotton see(ls and after unloading thr, same, when the pctitioner was returning from Hariyana State to go to Madhl'a Pradcsh for loading purpose, on the way on th,1t fateful day, when hc reached on Ll're flyover bridge of Magrole sqr-rare of Rajasthan State, at that timc, one driver of the tanker trailer lorry bearing No. R.J- 09 -GA -2O3 I rvas in lault and

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MEP) [email protected] d 2019

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negligently parked his vehicle on middle of the road without taking any precautions such as, putting red flags, indicators or frarnes etc., indicating that the said vehicle was stationed on the road by its driver. The petitioner/claimant, who was proceeding on the same way on his vehicle, could not observe the stationed tanker tailor bearing No. RJ-09-GA-2O31 due to heavy focus lights coming from opposite vehicles. As a result, the petitioner/claimant and his father who is a cleaner of the said lorry received grievous injuries and multiple fractures and his lorry frontal portion was damaged. Immediately, after the accident the petitioner was shifted to Government Hospital at Nimbahed of Chattigarh District of Rajasthan State and treated for five days. [,ater for further treatment he was shifted to NI MS Hospital, Hyderabad arrd was admitted as in-patient from 23.05.20 i5 to 26-O5-2O15, while undergoing treatment, doctor conducted surgery and his right leg above knee was amputated.

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The Cleaner of thcir Lorry reported the said accident to police of Nimbaheda police, but the police did not register any crime against the said Tanker Trailer bearing No. RJ- 09- GA- 2031^but registered crime against the petitioncr/ claimant in Crirne No. 232 of 2O15 for the offence punishable under Sections 279 and 337 IPC. It is stated by the petitioner that he is aged 30^years and used to Rs.25,00O/- per month by^n'orking as^{driver and contribute the}

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MGP.I Mo na.No.m'l ol2019

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same for maintsnance of his family. But, due to the injuries sustained in tht, accident, he spent huge amount towar(ls medical expenses. Hen<:e. he claimed compensation of Rs.2 5,0O,000/against the resr,ondent Nos. 1 to 4 as the accident occut'red due to rash and negligience of respondent No. l/Driver of Tanker Trailer bearing No. RJ-O9-GA-203 1.

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Respondernt Nos.l and 2 filed common count()r clenying the averments ma'le in the claim petition including age, health, avocation and income of the petitioner and contr:ndt:d that the compensation, if any, is awarded, the 3.d respondent, being the insurer of crirrLe Tanker Trailer, is liable lor payment,rf the same and hence, prayed to dismiss the claim against them.

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Respondent No.3 filed his counter denf inq the date of accident, time of accident and manner in rvtrich thc a,:cident took place and all,:ged that the accident happe ne d o nly because of negligence on part of the petitioner himself and that the claim of compensation is excessive and prayed to dismiss the claim against rt

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Respor dent No.4 liled his count.er contcnding that the pctitioner sultpressed all the facts to gct n,roneful gains. It is alleged that the negligence is on the part of the pe titLoner himself but not on tfre part of the first respondent and aclmitted that the

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MGP.I Motmo No.2O51ot2019

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petitircner is the owner of the lorry bearing No. TS-OS-UA-5799 which was insured with respondent No. 4 and he has paid an amount of Rs. 1,75,OO0/- towards damages to the lorry and denied the liability, if any, claimed in the accident and submitted that he is not the necessary party to the proceedings apart from taking the defenses taken by respondent Nos. I to 3.

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Based on the above pleadings, the learned Tribunal had framed ttre following issues for conducting trial:

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1 Whether tle claimant sustained injuries due to rash and. negligent driuing of the Tanker Trailor beaing No. RJ-O9-GA-2031 bg its diuer?

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2 Wlether the claimant is entitled for compensation and. if so, to uhat amount and from u.thom?

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3 To uhnt relief ?

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In order to prove the issues, on behalf of the claimant, PWs I to 4 were examined and Exs.Al to A15 rvere marked. On behalf of respondents, RWI was examined and Dxs.Bl to 83 were marked.

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Since the petitioner failed to prove rash and negligent act on part of driver of Tanker Traile r bcaring No.RJ-O9-GA-2O3 1, the learned Tribunal dismissed the claim pctition. Aggrieved by the said dismissal order, the^{petitior-rcr/injuredpreferred the present} Appeal for grant of compensation.

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MGP.I Mo.no-No.ZO5l oJ 2019

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1 l. Heard Srr P.S.P.suresh Kumar, learned colrns,:l for the appellant, Sri lvld.Ghouse Pasha, learned counsel frrr Respondent No. 1, Smt.Lakshmi Kanakavalli Borra, learnd counsel for Respondent No.2 and Sri V.Venkat Rami Reddy, learne,l Standing lor Respondent- I nsurance Company.

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Learnecl r:ounsel for the appellant argued thrLt the learned Tribunal failed to appreciate that there is no negligt:nce on part of the appellant in driving the vehicle and erroneously dis.missed the claim petition c,nly on the basis of Ex.A3- Charge sl'reet which was filed against tLre petitioner, though the investigation oone by the Police is not trinding on the Tribunal. It is furthe:r :rrgued that except examin ng RW-l, the respondents have not, arlduced any other evi(lence tc prove the same.

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i 3. On the other hand, learned Standing Counscl for respondent/ In slrrance Company contended that thc Tr bunal, after considering all t1-re aspects, had rightly dismissed th,: claim pe tition and the same reeds no interference by this Court.

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Aclmittcdly, there is no dispute with regarcl to th^j manner of accident. The ;hort question which arises for consideration is,

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Wetler rl.rc Tibunal has ightlg dismisseri the claim petition tttd uarrants ang interference by this Court?

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This Court has perused the entire evidence available on record. A perusal of Ex.A3- Charge sheet discloses that based on the complaint given by brother of the driver of the Tanker Trailer, a case was registered against the claimant and charge sheet was filed against the claimant stating that the accident occurred due to his rash and negligence.

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It is pertinent to state that as the accident occurred in Rajasthan State, the First Information Report and Charge sheet were in Rajasthani language. Though it was translated in English, the evidence of the eye-witness do not find place in the record. Therefore, it is not possible to come to a right conclusion whether the accident had occurred due to the sole negligence of the claimant or not. Even as per the contents of the charge sheet and FIR, the driver of the Tanker Trailer has slopped the vehicle on the fly over bridge of Magrole square of Rajasthan State due to break down of vehicle. Therefore, the negligence on part of the driver of the Tanker- Trailer cannot be ruled out. II precautions are taken, the claimant would have certainly avoided the accidcnt.

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It is pertinent to note that according to Rule 109 of the Central Motor Vehicle Rules, 1989, switching on parking lights in the night is compulsory for all stationary vehiclcs on the road. As discussed supra, in the present casc, the driver of the Tanker Trailer has not put parking lights or indicator and had not taken

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MGP,] Mo .no-No-2051 ol 2019

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proper precauti(,ns to give signal to the other vehicles to show that a vehicle is sta tioned on the middle of fly over bridg.e. If such precautions arc not taken by the driver/owner of stationary vehicle, then lizLbility can be fixed against such driver or owner of the stationed vc hicle.

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[n sirni'ar- facts, the High Court of Kantataka in Mohandas Nair V.Viuek Transporters, observed irt t'ara 100 as under:

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"The displag of lights of motor uehicles is generalLg regu,ated bg statute. [Jnd,zr Rule 109 of C,entral Motor Vehicles Rule:;, 1989. euery ntotcr uehicle, otter than mator cycbs and three-'fiLeeled inualid t:aniages, sh.all be prouided with one uhite or amber colourecl par king light on each side in tle front. Irt addition to the frotrt hgltts, tuto red parking lights, one on each. side in the rear sh.alL be prouided. Tle funt and rear parking lig,'Lts shall remairt lit euen tuhen the uehicle is kept stationary cn ihe road. The prouiso states that rear lamps con be the same o.s the rear lamps ref<'n'ed to in sub-rule (2) of Rule. Sub-rule (21 of Rule IOJ stales lh{it euery motor uehicle, other tl.an three utheeler, shalL aLso corrt lLUo lamps (tereinafter rekrred to as the ntar Lant-p) showi,tg to^the rear a red light uisi.ble in the rear from o distance of one, ht, ndred and ftfig-fiue meters; lamp, uhich m<ry be the rear ktnJ.' Ltr some other deuice, illuminating wilh a white light the wttol<' ,tf the regbtration mark exhibited on the ntar of the uelicle. rrcludinq a construction equipment uehlcle, so as to render it lt gible from a distane of fifieen meters to the rear. Sub-rule (5) of Rule 105 states that in case of a transport uehicle,. t lte rear light mag be fixed at such leue'l as mag be necessarq to illuminate the registration mo.rk. In sub rule (6) of Rule lO5. tt is stated that euery heaug goods carritge includinq

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trailers, shalt be jltted Luith a red indicator lamp of size of thirty centimeters bg ten centimeters on the extreme rear-most bod"g cross- beam and in cose of a uehble not constntcted utith body in the rear, the indicator lamp shnll be fitted near the right, rear light aboue the rear number plote. Under Rule 1O7, it is stated thnt euery gtoods uehicle, inclu"d-ing tmiler and semi-trailer, other tLnn three-u.tleelers and uehicles u.tith ouerall uidth not exceeding 2.7 metres, slnll be fttted Luith two Luhite lights ot the top ight and. lefi. comers sltowing uhite light to the front and two red lbhts at the top right and slnwing red light to th.e rear. The lighrs st,,;;,ll remain lit tulen the uehicle i.s kept stationary on th.e road during night an-d. at tle time of poor uisibility."

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The observation made in the above case is squarely applicable to the present case also. In view of the above decision and having considered the facts and circumstance of the case and taking into consideration the nature of injuries sustained by the claimant, this Court is of the considered opinion that the contributory negligence can be fixed in the ratio of 70:30 i.e.7Oo/o on the part of the Tanker Trailer bearing No. RJ-09^(iA-2O3 I and 30%o on the part of the lorry bearing No.TS 05 UA 5799.

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Coming to the quantum of compensation, it is statcd by the pctitioner that he sustained grievous head inj ury, closed comminuted fracture proxirnal third middle both bones right leg u,ith compartment syndrome and other multiple injurics all over the body and immediately, he was shifted to Government Hospital, Nimbaheda of Chattisgarh District and treated for five da1,s. Later hc rvas shifted to^{NIMS, Panjagutta,} Hyderabacl and admittcd as

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MGPJ Mccmo.No.2O5l oI20tg

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in-patient on 23.5.2015 and while undergoir.lg treatnrent, duty doctors conduc -ed surgery to his right leg and arnputation was done to his right leg above knee. Ex.A9 is the certifi:d copy of medical certific.rtc issued by the Government Hospital, ltlimbaheda to the petitione:. However, the author of Ex.A9 or ttre l)octor who treated the pet itioner was not examined to prove th,: disability sustained by h.m. This Court, considering the injurier; sustained by the petitioner, is inclined to award a sum of Rs.25,00O/ -towards grievous injuric s Rs.2O,00O/- for pain and sufferings, Its.20,000/for extra nouri;hment, attendant and transportation, Iis.2O,OOO/for loss o[ income during the period of treatment and |is.10,00O/for medical extr,enses, which in total comes to Rs.95,00()/-. Hence, the claimant is entitled to a compensation of Rs.95,(XlO/-,

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As far as rate of interest on the compensatior amount is concerned, this Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh :rnd othersr hereby award interesr @ 7.soh per annum from the dar.e of petition till the datc of rt alization.

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As state<l above, the culpability for the accident has been fixed at 7 Ooh : 3Ooh on part of the Tanker- Trailer and Lorry. Exs.B 1 and 83/Copy ol'insurance policies of both the vehicles would shovv that the two ,tffending vehicles were insured with th,: respondent r 20t3 ACJ i40-. = 2013 (41 At.1'35

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Nos.4 and 3 as on the date of accirlent. Therefore, respondent Nos. 1 to 3 shall pay 7 Oo/o of the compensation and respondent No.4 shall pay 3O% of the compensation amount.

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In the result, the Appeal is partly-allowed by fixing liability for contributory negligence in the ratio of 70:30 and by awarding total compensation of Rs.95,0OO/- together with interest @ 7.5% per annum from the date of petition till the date of realization. The Insurance Company is directed to deposit the compensation amount with interest within one month from the date of receipt of copy of this Judgment. On such deposit, the appellant/claimant is permitted to withdraw the same without furnishing any security. There shall be no order as to costs.

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Misccllaneous petitions pending, if any, shall stand closcd

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V.HARI PRASAD, ASS STANT REGI

//TRUE COPY//

To

ECTION OFFICER

The Chairman, the Chairman, Motor Accident Clarms rib unal-cu m-Principal District and Sessions Judge, Nalgonda.

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2 One CC to Sri P S P Suresh Kumar, Advocate [OpUC] 3 One CC to SRI MD GHOUSE PASHA, Advocate tOpUCl 4 One CC to Lakshmi Kanakavalli Borra, Advocate [OpUC] 5 One CC to V.Venkat Rami Reddy Advocate IOpUC] 6 Two CD Copies

S'V S

h,v

HIGH COURT

DATED:2810212025

JUDGMENT

MACMA.No.2051 of 2019

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PARTLY ALI.-OI^'ING THE MACMA

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2051 OF 2019

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Between :

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Dharavath thadru, S/o.Sukya Occ- lorry driver cum owner R/O.Mangali thanda, H/O.Vatti Khammam Phad Village Chiwemula mandal, NALGONDA

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...AppellanUClaimant

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AND

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Bherulal Bhill, S/o.Baluji Bhil, age-30years, Occ- driver, Ri/O.Sasota PS Parsoil dist. chitogarh of RAJASTHAN

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Vinod Kumar, S/o.Roopa Chand age- majopur, occ, business, R/O.Dak Bunglow road, Nimbahera town, Chittorgarh Dist of Rajasthan

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New lndia Assurance Company Limited, Rep by its Divisional manager, Divisional Office, R/O.Prakasham bazar, Nalgonda town and dist.

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|.,lew lnia Assurance Company Limited, Rep by its Divisional Manager, Divisional office, R/O.Prakadham bazar, Nalgonda

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...Respondents/Respondent

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Appeal filed Under Section 173 of Motor Vehicles Act against the Judgment and decree in MVOP.NO.294|2016, dated.02-08-2018 on the file of the Chairman, the Chairman, Motor Accident Claims Tribunal-cum-Principal District and Sessions Judge, Nalgonda.

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This appeal coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri SRI P.S.P.SURESH KUMAR, Advocate for the Petitioners and Sri MD GHOUSE PASHA, Advocate for the Respondent No.1 Lakshmi Kanakavalli Borra for the respondent No. 2. V.Venkat Rami Reddy for the respondent No. 3 & 4.

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This Court doth Order and Decree as follows :

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That the Motor Accident Civil Miscellaneous Appeal No.2051 of 2019 be and here by is partly allowed;

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That by fixing liability for contributory negligence in the ratio rf 70:30 and by awarding total ccmpensation of Rs.95,000/- together with interest @ 7.5o/o pe( annum from the rlate of petition till the date of realization.

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That the lnsuran:e Company is directed to deposit the compensation amount with interest within one month from the date of receipt of copy of this Judgment.

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