Oriental Insurance Company Ltd. vs Deepak Kumar and Others

G.C. Garg, J.—This order will dispose of Civil Revision Petitions 3356 and 3357 of 1991, both arising out of one claim petition, though directed against two orders passed on two different dates, as noticed hereinafter.

Claimant-respondents filed claim petition u/s 110-A of the Motor Vehicles Act in December, 1988 claiming compensation for the death of Ram Sarup father of respondents 1 to 6 and husband of respondent No. 7, who died in a motor accident. It was alleged that Ram Sarup (deceased) was going on a Scooter which was hit by an Ambassador Car bearing registration No. D.L.Y. 1652 as a result of which he died. The petitioner Insurance Company being the insurer of the car was also arrayed as respondent in the claim petition. The Insurance Company filed writ-ten statement in the claim petition wherein it was stated that its liability was limited to the extent of Rs. 1,50,000/-. After about two years of the filing of the written statement the petitioner-company moved an application for amendment of the written statement on the allegations that since the copy of the insurance policy sent by the concerned Branch Office to the counsel representing the Insurance Company was not legible, the legal plea regarding liability of the insurance company could not be properly pleaded and that as per the terms of the insurance policy the liability of the petitioner-company was limited to Rs. 50,000/- only and not Rs. 1,50,000/- as already pleaded in the written statement. The claimants opposed the prayer made in the application by filing a reply. It was stated that in the written statement the Insurance Company had made an admission that its liability is Rs. 1,50,000/- and therefore, the petitioner company was estopped from filing the application for amendment of the written statement.

Learned Motor Accidents Claims Tribunal (hereinafter to be referred as the ''Tribunal'') on a consideration of the matter and relying on two judgments of the High Court dismissed the application for amendment of the written statement by order dated 18.7.1991. Learned Tribunal noticed that it was mentioned in the insurance policy that the limit of liability of the petitioner-company u/s 11(1) of The Motor Vehicles Act in respect of any one accident was such amount as was necessary to meet the requirements of the Motor Vehicles Act, 1939 and there is no mention in the insurance policy that the liability of the petitioner-company is limited to Rs. 50,000/-. In one of the judgments relied upon by the learned Tribunal, the admission once made by a party was not allowed to be withdrawn by the trial court. In the other judgment, the insurance company wanted to raise the plea of limit of its liability by amending the written statement but the High Court dismissed the application of the Insurance Company on the ground of having been moved at a belated stage. It was thus concluded by the learned Tribunal that the Insurance Company in the present case filed written statement on 23.5.1989 whereas the amendment application was filed on 4.5.1991 and therefore, it had no merit. It is against this order of the learned Tribunal that the petitioner-company has filed Civil Revision 3356 of 1991, under Article 227 of the Constitution of India for quashing the impugned order.

Having failed in its endeavour to plead the factum of its liability, properly suiting to its defence, the petitioner insurance company in less than a month of the dismissal of its application for amendment of the written statement, moved another application, but this time for additional evidence. It was alleged in the application that the Insurance Company wanted to place on record the original carbon copy of the insurance policy because the figures on the carbon copy, already produced and exhibited as Exhibit R.1 were not clear and legible. It was further alleged that since the copy of the telegram Exhibit R-3 produced in evidence by Ramesh Adwani, Assistant Divisional Manager of the petitioner was objected to by the opposite counsel, it was necessary to examine the scribe of the original premium receipt in order to prove the exact amount of premium and to produce on record the original carbon copy of the premium receipt and the certified copy of telegram sent to the insured. Prayer made in this application as well, was opposed by the claimants by filing a reply. It was alleged that the figures in the insurance policy Exhibit R.1 were quite clear and the same were admitted by Ramesh Adwani, Assistant Divisional Manager appearing as a witness on behalf of the petitioner Insurance Company and that every carbon copy is a true copy of the original and no carbon copy can be termed as original carbon copy. Learned Tribunal on a consideration of the matter, dismissed this application also by this order dated 17.8.1991. The application was dismissed primarily on two grounds. Firstly, the petitioner company failed to conclude its evidence in spite of availing six long adjournments and thus its evidence had been closed by court order. Secondly, the learned Tribunal noticed that Ramesh Adwani, RW-1 did not state while appearing as a witness that insurance policy Exhibit R.1 is not legible. It was also observed by the learned Tribunal that even otherwise, once the aforesaid witness had deposed that the certified copy of the telegram could be obtained from the Postal Department and this fact was within the knowledge of the Insurance Company but still the certified copy was not obtained. Learned Tribunal also observed that the Insurance Company was trying to delay the case on one pretext or the other and in the circumstances aforesaid, the application was dismissed. Civil Revision 3357 of 1991 has thus been filed by the Insurance Company under Article 227 of the Constitution of India, seeking quashment of the impugned order dated 17.8.1991.

In the written statement filed by the petitioner, it was pleaded that the liability of the petitioner company was limited to the extent of Rs. 1,50,000/- but the firm stand of the petitioner was that its liability was as per the provisions of Section 95(2) (b) of the Motor Vehicles Act and the terms and conditions of the insurance policy. It was the specific stand of the petitioner company in the application seeking amendment of the written statement that the legal plea regarding its liability could not be properly pleaded as per Section-95 of the Motor Vehicles Act in the written statement filed originally. It also deserves to be noticed that the application for ? amendment of the written statement was moved when the claim petition was at the stage of recording evidence of the petitioner company. Amendment of the written statement is allowed more liberally than the plaint. It is always open to the respondent to explain that the admission earlier made was erroneous while seeking amendment of the pleadings. This is precisely what the Insurance Company is trying to do while seeking amendment. By seeking amendment of the written statement, the petitioner company only seeks to substitute the figure of Rs. 1.50,000/-" to "Rs. 50,000/-. As per provisions of the Act the liability of the Insurance Company at the time of the accident wasRs. 50,000/- unless it is otherwise shown by the insured that the liability was unlimited or of a higher amount than Rs. 50,000/- by producing-the insurance policy. In the instant case, the amendment of the written statement : was sought primarily on the ground that the carbon copy of the insurance policy sent to the counsel for the Insurance Company was not legible and it was for this reason that the factum of its liability could not be correctly pleaded in the written statement filed earlier. Moreover, the allegation regarding liability which was sought to be corrected and rectified as noticed above is a mixed question of law and fact, if not purely of law and such a question in the circumstances of the present case ought to have been allowed to be pleaded by way of amendment of the written statement especially when the previous admission was explained. Amendment of the written statement is normally declined in cases where a contradictory or mutually destructive plea or a plea which takes away a vested right is sought to be taken. Thus, having regard to the circumstances as noticed above, I am of the opinion that the learned Tribunal acted illegally in declining the prayer for amendment of the written statement. Civil Revision 3356 of 1991 is consequently allowed and the impugned order dated 18.7.1991 is set aside. The application of the petitioner company for the amendment of the written statement is allowed to the extent indicated above.

Since Civil Revision 3356 of 1991 seeking quashment of the order dated 18.7.1991 declining the petitioner''s prayer for amendment of the written statement has been allowed, the application for leading additional evidence has been rendered infructuous for the simple reason that the latter application was moved obviously to over-come the situation that had arisen on the dismissal of the application for amendment of the written statement. By producing additional evidence the petitioner wanted to bring on record such material which could show that the liability of the Insurance Company was limited to Rs. 50,000/-. Civil Revision 3357 of 1991 is consequently dismissed as such, the- petitioner having a fight now to lead evidence after the amendment. No costs.

From the perusal of the impugned orders, I find that the claim petition was filed in December 1988 and that too, claiming compensation for the death of Ram Sarup by his dependents and it is still pending disposal. Learned Tribunal is, therefore, directed to dispose of the claim petition as early as possible but not later than six months from the date of filing of the amended written statement by the petitioner Insurance Company. Parties through their counsel are directed to appear before the learned Tribunal on 5.12.1997 and the amended written statement be filed on or before 5.12.1997 positively. The Insurance Company shall thereafter be afforded one or two opportunities for its evidence at short intervals. The above direction has been given having regard to the fact that the claim petition may be the oldest one pending before the Tribunal.