Richa Khare and Others vs Ankit Gupta and Others

Pradeep Kumar Singh Baghel, J.—This civil revision under Section 115 of the Code of Civil Procedure, 1908 (CPC) arises out of an order dated 22nd August, 2013 passed by the Additional District Judge/Special Judge (EC Act)/Motor Accidents Claims Tribunal, Shahjahanpur (the Tribunal) in Motor Accident Claim Petition No. 297 of 2010 (Smt. Richa Khare v. Ankit Gupta and others) whereby the Tribunal has rejected the amendment application of the claimants-revisionists under Order VI Rule 17 CPC. The essential facts are that late Sanjay Khare, husband of the revisionist No. 1 and father of the revisionist Nos. 2 and 3, was a Government employee working on the post of Assistant Nazir (I) at District Court, Shahjahanpur. He met an accident on 25th September, 2008 with a truck bearing Registration No. U.P. 27C-5624. He succumbed to his injuries on 30th September, 2008. The revisionists moved a claim petition before the Tribunal under Section 163A of the Motor Vehicles Act, 1988 (the Act) which was registered as Motor Accident Claim Petition No. 297 of 2010 (Smt. Richa Khare v. Ankit Gupta and others). The case of the claimants-revisionists was that on the fateful day the driver of the offending vehicle, which is owned by the respondent No. 1 and insured by the respondent No. 2, was driving the vehicle rashly and negligently and he hit the husband of the revisionist No. 1 who was returning to his home. In the claim petition, a claim of Rs. 50,45,400/- was raised. The claim petition was contested by the defendants-respondents.

In the claim petition the claimants-revisionists moved an application for amendment under Order VI Rule 17 CPC on 07th August, 2013 on the ground that due to clerical mistake, the claim petition was filed under Section 163A of the Act instead of Section 166. Thus, the claimants sought the only relief for amendment of section of the claim petition. The said amendment was opposed by the respondents on the ground that it had been filed at a belated stage. The amendment application has been rejected by the Tribunal by the impugned order dated 22nd August, 2013 on the ground that there was an option to the claimants to move the claim petition either under Section 163A or under Section 166 of the Act. The Tribunal further took the view that the proceeding under Section 163A of the Act is of final nature which cannot be converted, and in this regard the Tribunal has placed reliance on the judgments in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 1 ACC 728 : AIR 2004 SC 2107 : (2004) 120 CompCas 292 : (2004) 4 JT 83 : (2004) 137 PLR 271 : (2004) 3 SCALE 546 : (2004) 5 SCC 385 : (2004) 3 SCR 213 : (2004) 2 UJ 1100 : (2004) AIRSCW 1864 : (2004) 3 Supreme 602 , New India Assurance Co. Ltd. Vs. Bhavani Nanji Pachanbhai Patel and Others, (2007) ACJ 2067 , and United India Insurance Company Ltd. Vs. Satya Narain Sharma and Others, (2008) ACJ 909 : AIR 2008 Raj 23 . The Tribunal has further held that the amendment application has been filed after a considerable delay.

I have heard learned counsel appearing for the parties.

Learned counsel for the revisionists submitted that the claimants-revisionists did not seek any amendment in the pleading or the relief of the claim petition but they only wanted to amend the section, under which the claim petition was filed. The amendment was not going to change the basic nature of the claim petition. In fact, the amendment was a bona fide and legitimate. However, the Tribunal has taken a hyper technical approach in rejecting the amendment. Lastly, he urged that under Section 163A of the Act a person whose annual income is Rs. 40,000/- or less is covered, which is evident from the Second Schedule of the Act. Under Section 163A of the Act, being a social security provision providing for a distinct scheme, only those persons whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act. He has placed reliance on several judgments of the Supreme Court and other High Courts in Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, AIR 2012 SC 1887 : (2012) 4 SCALE 73 : (2012) 5 SCC 337 : (2012) AIRSCW 2257 : (2012) 2 Supreme 593 , Abdul Rehman and Another Vs. Mohd. Ruldu and Others, (2013) 115 CLT 624 : (2012) 5 CTC 803 : (2012) 10 JT 97 : (2012) 4 RCR(Civil) 481 : (2012) 9 SCALE 582 : (2012) 11 SCC 341 , Pochamma and others Vs. Mirza Dawood Baig and another, (1999) ACJ 1006 : AIR 1998 AP 337 : (1998) 4 ALD 83 : (1998) 3 ALT 674 : (1998) 2 APLJ 267 , Bangalore Metro Transport Corporation Vs. Lakshmamma and Others, (2008) ACJ 1532 : AIR 2008 Kar 316 : (2007) ILR (Kar) 4488 : (2008) 3 KarLJ 173 : (2007) 4 KCCR 2706 ; Deekonda Suresh Dharmoji and others v. New India Assurance Company Limited and others, 2006 (9) Laws (APH) 10.

Learned counsel for the respondents has supported the findings of the Tribunal. No other submission has been made.

I have considered the rival submissions advanced by the learned counsel appearing for the parties and perused the record.

Section 163A of the Act was inserted in Chapter XI of the Act by Act No. 54 of 1994 with effect from 14th November, 1994. It provides the special provisions for payment of compensation on structured formula basis which is indicated in the Second Schedule of the Act. Under Chapter X of the Act, Section 140 provides liability to pay compensation in certain cases on the principle of ''no fault''. Chapter XII of the Act deals with the Claims Tribunals. Section 166 provides that an application for compensation arising out of an accident may be made, amongst others, by the person who has sustained the injury, or, where death has resulted from the accident, by all or any of the legal representatives of the deceased.

The distinction among Sections 140, 163A and 166 of the Act has been elaborately considered by the Supreme Court in the case of Deepal Girishbhai Soni (supra). In the said case, the Supreme Court has held that Section 140 of the Act provides for the claim for compensation under no fault liability and by the reason of the said provision, a fixed sum is to be paid. The Supreme Court has further held that Section 140 of the Act deals with the interim compensation but Section 163A was inserted in the Act to avoid the long drawn trial or proof of negligence in the cause of accident. The said section was inserted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000/-, whereas Section 166 under Chapter XII of the Act does not have any such ceiling.

The Supreme Court in the case of National Insurance Company Ltd. Vs. Sinitha and Others, (2012) ACJ 1 : AIR 2012 SC 797 : (2012) 1 RCR(Civil) 205 : (2011) 13 SCALE 84 : (2012) 2 SCC 356 : (2012) 1 TAC 234 : (2012) 1 UJ 60 : (2012) AIRSCW 10 , has considered the distinction between Sections 140 and 163A of the Act. The Court held that the claim of compensation under Section 140 of the Act cannot be defeated because of any of the fault grounds i.e. "wrongful act", "neglect" or "default". Thus, in the case of Section 140, the owner or insurer cannot take a plea that there was fault on the part of the claimant or the deceased. Therefore, the claim made under Section 140 is based on "no-fault liability" principle. However, under Section 163A of the Act it is not essential for the claimants to plead or establish that the accident suffers from "wrongful act" or "neglect" or "default" of the offending vehicle, but the owner or the insurance company can plead that there was "wrongful act", "neglect" or "default" on the part of the deceased/injured. In case the owner or the insurance company established that the accident took place due to fault of the deceased/injured then the claim petition can be defeated. The Court while drawing distinction between no fault theory held as under:

"27. Thus, in our view, it is open to a party concerned (the owner or the insurer) to defeat a claim raised under Section 163-A of the Act by pleading and establishing any one of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason we find no plausible logic in the wisdom of the legislature for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act and in avoiding to include a similar negative bar in Section 163-A of the Act. The object for incorporating sub-section (2) in Section 163-A of the Act is that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-section (4) of Section 140 of the Act from Section 163-A of the Act is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" on to the shoulders of the defence (the owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude that Section 163-A of the Act is founded on the "fault" liability principle."

In the present case, a copy of the claim petition is on the record. From a perusal of pleadings of the claim petition it is evident that all the necessary pleadings required under Section 166 of the Act have been made in the claim petition and a claim of Rs. 50,45,400/- has been made. It is also pleaded by the claimants in the claim petition that the accident had taken place due to rash and negligent driving of the truck driver. Thus, all the necessary ingredients for an application under Section 166 of the Act are present in the claim petition.

Significantly, in the amendment application no amendment of the pleading or the relief has been sought by the claimants. Thus, there is no question of change of nature of the case. Moreover, if the amendment is allowed, no prejudice will be caused either to the owner or to the insurance company as under both the provisions i.e. Sections 163A and 166, the owner and the insurance company can defeat the claim of the claimants on the ground of fault on the part of the claimants or injured.

Insofar as the finding of the Tribunal that the amendment application has been moved at a belated stage is concerned, the law in respect of such amendment has been considered by the Supreme Court in the case of J. Samuel and Others Vs. Gattu Mahesh and Others, (2012) 2 CTC 94 : (2012) 1 JT 169 : (2012) 167 PLR 93 : (2012) 1 RCR(Civil) 903 : (2012) 1 SCALE 330 : (2012) 2 SCC 300 : (2012) 1 UJ 588 : (2012) AIRSCW 1035 : (2012) 1 Supreme 568 , in the following terms:

"23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading sub-sequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other''s case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan Vs. Ramlatha and Others, AIR 2005 SC 3503 : (2005) 5 CTC 800 : (2005) 2 CTLJ 301 : (2006) 142 PLR 779 : (2005) 7 SCALE 471 : (2005) 7 SCC 534 : (2005) 3 SCR 440 Supp : (2005) AIRSCW 4789 : (2005) 6 Supreme 535 , Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others, AIR 2007 SC 806 : (2007) 1 JT 579 : (2006) 13 SCALE 525 : (2006) 10 SCR 477 Supp , Chander Kanta Bansal Vs. Rajinder Singh Anand, AIR 2008 SC 2234 : (2008) 1 CLT 347 : (2008) 4 JT 496 : (2008) 4 SCALE 546 : (2008) 5 SCC 117 : (2008) AIRSCW 3225 , Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, AIR 2008 SC 2303 : (2008) 5 CTC 253 : (2008) 7 SCALE 471 : (2008) 14 SCC 364 : (2008) AIRSCW 4007 : (2008) 4 Supreme 435 , Vidyabai and Others Vs. Padmalatha and Another, AIR 2009 SC 1433 : (2009) 1 JT 302 : (2009) 154 PLR 490 : (2009) 1 SCALE 202 : (2009) 2 SCC 409 : (2009) 12 Vat Reporter 2524 : (2009) AIRSCW 899 : (2009) 1 Supreme 238 and Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, (2010) 10 JT 565 : (2011) 161 PLR 744 : (2011) 1 RCR(Civil) 189 : (2010) 10 SCC 512 : (2010) 9 UJ 4569 .]"

(Emphasis supplied by me)

In the case of State of Madhya Pradesh Vs. Union of India (UOI) and Another, AIR 2012 SC 2518 : (2011) 9 JT 332 : (2011) 9 SCALE 6 : (2011) 12 SCR 140 : (2012) AIRSCW 771 , the Supreme Court has held that in case the amendment is moved at a belated stage, the Court has wide and unfettered discretion to allow the amendment of the pleadings on such terms as it appears to the Court proper and just. The amendment cannot be refused if it is found that for deciding the real controversy between the parties it can be allowed on payment of cost. The relevant part of the judgment reads as under:

"10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:

(i) Surender Kumar Sharma Vs. Makhan Singh, (2009) 12 SCALE 665 : (2009) 10 SCC 626 : (2009) 9 UJ 4486

"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well-settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."

(ii) **** **** ****

(iii) **** **** ****

(iv) Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, AIR 2006 SC 1647 : (2006) 3 JT 607 : (2006) 3 SCALE 312 : (2006) 4 SCC 385 : (2006) AIRSCW 1538 : (2006) 3 Supreme 507

"15. The object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."

The Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 13 JT 366 : (2009) 10 SCC 84 : (2009) 15 SCR 103 : (2009) 10 UJ 4850 , has culled out certain factors to be taken into consideration while dealing with the application for amendment:

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

Applying the aforesaid parameters to the present case, it is evident that the Tribunal has taken a hypertechnical view and has rejected the amendment application on wrong premise.

In view of the above, the impugned Order dated 22nd August, 2013 passed by the Tribunal is set aside. The matter is remitted to the Tribunal to decide the amendment application afresh within three months from the date of communication of this order. The revision is, accordingly, allowed. No order as to costs.