Ashok Kumar Roy vs United India Insurance Co. Ltd. and Another

Tapas Kumar Giri, J.—Challenging the order dated 31.5.02 passed by Learned Judge Special Court (E.C.Act), M. A. C. Judge, Tribunal, Alipore, South 24-Parganas in connection with M.A.C.C. No. 520 of 2000 this revisional application under Article 227 of the Constitution of India has been preferred by the petitioner/claimant. Grievances of the petitioner as ventilated in the instant application may briefly be stated as follows:

That the petitioner sustained grievous bodily injuries on his person in an accident and the petitioner filed a claim application on 18.9.2000 u/s 163A of the M.V. Act and afterwards Learned Advocate came to realize that the income of the injured person was above Rs. 40,000/-and the medical expenses was more than Rs. 15,000/- and as such the petitioner filed the amendment application under Order 6 Rule 17 read with Section 151 of C.P.C. and wanted to convert the claim application from Section 163A of M.V. Act to Section 166 of M.V. Act. Learned M.A.C. Judge, Tribunal, Alipore, South 24-Parganas after hearing of both sides dismissed the application under Order 6 Rule 17 read with Section 151 C.P.C. filed by the claimant on 31.05.2002.

Being aggrieved by and dissatisfied with the order dated 20.7.05 passed by the Learned M.A.C, Judge, Tribunal, Alipore in M.A.C.C. No. 520 of 2000, the petitioner approached this Court with the said application under Article 227 of the Constitution of India.

I have heard Learned Counsel for the parties in details on the question whether the amendment sought for ought to have been allowed or not.

Mr. Santosh Kumar Das, Learned Advocate on behalf of the petitioner contended that the Court should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side.

Learned Advocate also contended that the petitioner''s income and the medical expenses exceed the limit as per provision of Section 163A of the Act. As such the applicant filed the amendment application under Order 6 Rule 17 of the C.P.C. read with Section 151 of the C.P.C. to convert the claim u/s 166 of the M.V. Act instead of u/s 163A of the M.V. Act and no new case is made out on the basis of the amendment application filed on behalf of the petitioner.

Learned Advocate also contended that the petitioner is a village man and he had no knowledge about the law and the matter was reported to his Learned lawyer of the Court below about his income and medical expense. By way of mistake the application u/s 163A of the M.V. Act was filed and as soon as the mistake had brought to the notice of the Learned Advocate, the amendment application was filed to convert the claim application u/s 166 of the M.V. Act instead of 163 A of the M.V. Act and the said amendment application can be sought before the Tribunal and there is no limitation under the said Act.

Learned Advocate also contended that the original application was filed in the year of 2000 i.e., before the amendment of Code of Civil Procedure. The amendment CPC came into force on and from 1st July, 2002 and as such the petitioner is entitled to file the application for amendment of the application/plaint in accordance with the old provision and it is well settled that the application for amendment of the plaint should be more liberally considered. The order dated 20.7.05 passed by the Learned M.A.C. Judge Tribunal, Alipore is liable to be set aside and the amendment application filed on behalf of the petitioner may be allowed. In support of his contention Learned advocate cited the decision reported in 2003 SAR (Civil) 67 (Nagappa v. Gurudayal Singh and Ors.); Sherifa Beevi and Others Vs. P. Komu and Others, Alka Khemka Vs. Kishan Lakkar, Pochamma and others Vs. Mirza Dawood Baig and another, Nur Bakta Gayen and Others Vs. Jahur Mohammad Gayen and Another, ; Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., Learned Advocate Mr. K. K. Das on behalf of the Opposite Party submitted that Learned M.A.C. Judge, Tribunal, Alipore, South 24-Parganas rightly rejected the amendment application of the petitioner as the new case had been made out in that application and as such the present application is liable to be dismissed.

At the very outset, I would like to point out that there was no finding in the order of the Learned M.A.C. Judge regarding the scope of maintainability of the amendment application filed on 20.7.05. It is to be noted that the M.A.C.C. Case No. 520 of 2000 was filed before the enforcement of the amendment provision of the CPC and as such the petitioner is entitled to file the application for amendment of the original application in accordance with the old provision.

In the amendment application the petitioner wants to convert the claim application from 163 A of M.V. Act to 166 of M.V. Act on the ground of income of the injured as well as his medical expenses. The said prayer of the application will not completely change the nature and character in case of the claim application though it was filed in a very belated stage.

In a case reported in Sherifa Beevi (supra) as well as Smt. Pochamma and others (supra) it is observed that there is no bar to amend the claim of the application u/s 166 of the M.V. Act instead of 163 (A) of the M. V. Act. It is the settled position of law that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

In the present amendment application no new fact has been introduced in the said application and the petitioner only prayed for the claim u/s 166 of the M.V. Act instead of Section 163(A) of the M.V. Act. Considering all these aspects I think that the Learned Judge under M.A.C. Tribunal was not justified in rejecting the prayer for amendment and as such the said order dated 20.07.2005 be set aside. Application under Order 6 Rule 17 read with Section 151 of the CPC filed by the present petitioner before the M.A.C. Tribunal be allowed and the Learned Court is hereby directed to give time and opportunity to the present Opposite Party to file additional written objection, if any, and thereafter to proceed with the hearing of the case in accordance with law.

This disposes of C.O. No. 2685 of 2006.

There is no order as to cost.

Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.