Baijayanti Kund & Ors vs Reliance General Insurance Co. Ltd., Bhubaneswar & Ors Vs

Dr. S.K. Panigrahi, J.

The Petitioner, in the present Writ Petition, assails the order dated 09.05.2023 passed by the learned 3rd MACT cum-ADJ, Jagatsinghpur in MAC Case No. 167 of 2008, on the ground that the said order is illegal, erroneous, and unsustainable in law.

I.   FACTUAL MATRIX OF THE CASE:

The brief facts of the case are as follows:

(i) On 27.08.2007, the deceased, Sandeep Kumar Kund, was returning to his residence in Kendrapada district from Cuttack after completing his work. He was traveling as an occupant in his own Ambassador car bearing registration number OR-02-D-9009, which was being driven by his driver.

(ii) At approximately 2:00 AM, while the vehicle was proceeding near Chandi Bazar on the Cuttack–Chandabali road, it collided with the rear portion of a stationary truck bearing registration number OR-21-A-0952, which had been parked in the middle of the road.

(iii) Owing to the impact, the deceased sustained grievous injuries on his head, neck, and other parts of the body, resulting in profuse bleeding. The driver of the Ambassador car suffered minor injuries.

(iv) The injured were immediately shifted by local residents to the District Government Hospital, Kendrapada, where Sandeep Kumar Kund was declared brought dead.

(v) Pursuant to the incident, Kendrapada Police registered P.S. Case No. 325 of 2007 under Sections 279 and 304-A of the Indian Penal Code.

(vi) The widow and minor children of the deceased filed an application for compensation under Section 166 of the Motor Vehicles Act, 1988, before the 1st MACT-cum-ADJ, Jagatsinghpur, seeking compensation of ₹10,00,000/- (Rupees Ten Lakhs only) from the owner and insurer of the offending truck.

(vii) During the course of proceedings, the claimants filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to amend the claim petition by invoking Section 163-A of the Motor Vehicles Act, 1988, in lieu of Section 166. The said amendment was allowed, and the claimants were directed to file a consolidated claim petition accordingly.

(viii) At the stage of final arguments, the claimants filed another application under Order VI Rule 17 CPC on 28.02.2023, seeking to amend the monthly income of the deceased to ₹5,000/- (Rupees Five Thousand only) and to proportionately reduce the total compensation claimed to ₹5,00,000/- (Rupees Five Lakhs only).

(ix) The 3rdMACT-cum-ADJ, Jagatsinghpur, by order dated 09.05.2023, rejected the aforesaid application, thereby declining the prayer for amendment in the income of the deceased and the corresponding reduction in the compensation amount.

(x) Aggrieved by the said order, the Petitioners have approached this Court by way of the present writ petition.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:

(i) The Petitioner submitted that, at the stage of final arguments, an application dated 28.02.2023 was filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to amend the monthly income of the deceased to ₹5,000/- (Rupees Five Thousand only) and to reduce the total compensation claimed to ₹5,00,000/- (Rupees Five Lakhs only). The amendment was sought as there was no cogent documentary evidence to establish that the deceased was earning ₹10,000/- (Rupees Ten Thousand only) per month.

(ii) The Petitioner submitted that the proposed amendment was merely formal in nature and did not alter the fundamental character of the claim filed before 3rdMACT-cum-ADJ, Jagatsinghpur.

(iii) The Petitioner submitted that the 3rdMACT-cum-ADJ, Jagatsinghpur, by order dated 09.05.2023, rejected the Petitioners' prayer for amendment solely on technical grounds, without properly considering the statutory provisions or the binding precedents laid down by this Court and the Supreme Court.

(iv) The Petitioner submitted that although Section 163-A of the Motor Vehicles Act, 1988 provides for compensation based on a structured formula set out in the Second Schedule, the Schedule is not to be treated as a ready reckoner for determining just and fair compensation. In support of this contention, reliance was placed on the observations of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi & Others. (2017) 16 SCC 680.

(v) The Petitioner submitted that in Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 the Supreme Court held that amendment of claim petition can be permitted even at the appellate stage.

(vi) Furthermore, the Petitioner relied on the decision of the Supreme Court in Baldev Singh v. Manohar Singh, (2006) 6 SCC 498 wherein it was observed that while considering an application under Order VI Rule 17 of the Code of Civil Procedure, the Court should adopt a liberal approach in allowing amendments, unless serious injustice or irreparable loss is likely to be caused to the opposite party.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:

(i) The Petitioners filed the claim application in the year 2008. After a lapse of 15 years, they filed a petition under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment of the claim amount. Such a belated attempt to amend the pleadings, without any justification for the delay, is impermissible in law, and the writ petition is liable to be dismissed on this ground alone.

(ii) The Petitioners initially instituted the claim under Section 166 of the Motor Vehicles Act, 1988. After 11 years, they sought and obtained permission to amend the claim petition by invoking Section 163-A of the Act, pursuant to an order dated 05.08.2019. However, even at that stage, the income component remained unchanged, with continued assertion that the deceased was engaged in business and earned₹10,000/- per month.

(iii) A consolidated claim application was filed thereafter, based on which issues were framed. Witnesses were examined, and evidence from both sides was concluded. When the matter was posted for final arguments, the Petitioners filed the present application seeking to revise the monthly income of the deceased and reduce the total claim amount. Such an amendment at the stage of final hearing, after conclusion of trial, is clearly impermissible.

(iv) P.W.1, the widow of the deceased, was examined on 26.04.2022 and, in her examination-in-chief, categorically affirmed that the deceased was earning ₹10,000/- per month. The attempt to revise this to ₹5,000/- and reduce the compensation amount after closure of evidence cannot be permitted and was rightly rejected by the 3rd MACT-cum-ADJ, Jagatsinghpur.

IV. COURT’S REASONING AND ANALYSIS:

Heard the learned counsel for the Parties and perused the materials placed on record.

The primary issue for consideration in the present writ petition is whether the learned 3rd MACT-cum-ADJ, Jagatsinghpur, erred in rejecting the Petitioners’ application for amendment of the monthly income of the deceased from ₹10,000/- to ₹5,000/- in MAC Case No. 167 of 2008.

The position regarding amendment of pleadings is well-settled. Order VI Rule 17 of the Code of Civil Procedure, 1908, provides that the Court may, at any stage of the proceedings, permit amendment of the pleadings if such amendment is necessary for determining the real question in controversy. However, the proviso imposes a clear bar on allowing such amendments after commencement of trial unless the Court is satisfied that, despite due diligence, the party could not have raised the matter earlier. The provision is replicated hereinunder:

“17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such 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 questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

The proviso to Order VI Rule 17 is couched in mandatory terms. InVidyabai and Others v. Padmalatha and Another, (2009) 2 SCC 409 the Supreme Court held that the jurisdiction of the Court to allow such an application post-commencement of trial is strictly confined to cases where due diligence is clearly established. The relevant portion is replicated hereinunder:

“10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

“Provided  that  no  application  for  amendment  shall  be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.”

In Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344 the Supreme Court observed that the discretion of the Court to permit amendments post-commencement of trial must be exercised in a restrained manner, only upon satisfaction of the statutory test of due diligence. It was observed:

“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.”

Reverting to the facts of the present case, the original claim application was filed on 02.07.2008 under Section 166 of the Motor Vehicles Act, 1988, wherein the Petitioners specifically pleaded that the deceased was earning ₹10,000/- per month. Although the Petitioners later sought to amend the claim to one under Section 163-A, no corresponding amendment was sought to revise the stated income at that time.

A consolidated claim petition was thereafter filed. Issues were framed, and evidence was adduced by both parties. Significantly, when the Petitioner–wife of the deceased was examined as P.W.1 on 26.04.2022, she reiterated in her examination-in-chief that the deceased was earning ₹10,000/- per month. It was only after the conclusion of evidence and at the stage of final arguments that the Petitioners, vide application dated 28.02.2023, sought to amend the income to ₹5,000/-per month.

The 3rd MACT-cum-ADJ, Jagatsinghpur, while rejecting the amendment application, recorded that no material had been produced in support of the proposed revision in income. Throughout the pleadings and evidence, the income had consistently been stated as ₹10,000/- per month. No explanation was offered for the belated attempt to alter the figure at the final stage.

A perusal of the record reveals that the amendment application was filed after the close of evidence, at the stage of final arguments. No reasonable justification for the delay was furnished, nor was any material placed on record to demonstrate that the Petitioners, despite due diligence, were prevented from seeking the amendment at an earlier stage.

In the considered view of this Court, the amendment sought at such a stage, unsupported by any cogent explanation or documentation, does not satisfy the threshold prescribed under the proviso to Order VI Rule 17 CPC. The discretion to permit post-trial amendments is to be exercised only in circumstances where compelling reasons are shown, which is clearly not the case here.

This Court, therefore, finds no infirmity or perversity in the impugned order.

V. CONCLUSION:

In light of the foregoing, this Court finds no merit in the Writ Petition.

The order of the 3rdMACT-cum-ADJ, Jagatsinghpur does not suffer from any perversity, arbitrariness, or material irregularity warranting intervention.

Accordingly, this Writ Petition is dismissed.

Interim order, if any, passed earlier stands vacated.

......………………………….