M.A.C.A Nos.1994 and 2015 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **AGAINST THE AWARD IN OPMV 1774/2015 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 21-11-2016** ## **APPELLAN/1ST RESPONDENT** **BINU JOSE, AGED 41 YEARS, S/O.JOSEPH, VETTITHANAM HOUSE, KODENCHERY, PULLOORAMPARA P.O., PALLIPADI, THIRUVAMBADI, KOZHIKODE.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** ## **RESPONDENT(S)/APPELLANT/RESPONDENT NO.2 & 3:** **1. RAJU MATHAI @ RAJU S/O.MATHAI @ MATHEW, AGED 51 YEARS, KOCHUKUDIYIL HOUSE, PULLORAMPARA, KOZHIKODE - 673001** **2. HONEY BINU** **W/O.BINU JOSE, AGED 39 YEARS, VETTITHANAM HOUSE, KODENCHERY, PULLOORAMPARA P.O., PALLIPADI, THIRUVAMBADI, KOZHIKODE - 673001** **3. UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, WHITE LINES BUILDING, KALLAI ROAD, CALICUT - 673001** **R1 BY ADV. SRI.K.M.JAMALUDHEEN R1 BY ADV. SMT.LATHA PRABHAKARAN R3 BY ADV. SRI.P.V.JYOTHI PRASAD R2 BY ADV. SMT.BOBBY U. NAIR R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BNG** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.1994 & 2015 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 5[th] day of June, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) Nos.1773/2015 and 1774/2015 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the owner of the vehicle. Claimant's case in the lower court is that on 20.09.2015 at 9.40 am, while they were standing on the side of the Thiruvambadi-Pullorampara road, a car KL-57E-4428 driven in a rash and negligent manner by its driver knocked down the claimants. As a result, they sustained serious injuries. Immediately, they were removed to Santhi Hospital, Omassery and Medical College Hospital, Kozhikode. The learned Tribunal awarded Rs.11,31,180/with 9% interest and proportionate cost to claimants in O.P(MV) No.1773/2015 and Rs.6,66,770/- with 9% interest and proportionate cost to claimants in O.P(MV) No.1774/2015. The insurer was directed to satisfy the ## **M.A.C.A Nos.1994 and 2015 of 2017** **-2-** award and directed to reimburse the amount from the appellant (R1 Owner). Being aggrieved by that, owner of the vehicle preferred these appeals. 2. In the lower court, the driver and owner of the vehicle contested the matter by filing a written statement and contended that the driver was holding a valid driving licence. The insurer admitted the insurance of the vehicle, but contended that the driver was not holding a valid driving licence and he was charge sheeted under Section 3(1) read with 181 of the Motor Vehicles Act, 1988. Both cases were tried jointly and evidence was recorded in OP(MV) No.1773/2015. Claimants evidence consist of oral evidence of PW1 and 2 and documentary evidence of Exts.A1 to A25. Ext.C1 and C2 were marked in support of claimants. Respondents evidence consist of Exts.B1 to B3. 3. The learned counsel appearing for the appellant contended that claimants have no dispute with ## **M.A.C.A Nos.1994 and 2015 of 2017** **-3-** regard to the amount awarded by the Tribunal. The appellant was accompanying the driver at the time of accident who was taking instruction from him and that fact was not mentioned in the written statement. The driver was his wife, holding learner's licence. The investigating officer failed to note that fact in the final report. After detecting the above defect in the final report, he filed Annexure A1 petition before the CI of police, but that was not considered. In this circumstance, it is necessary to amend the written statement, for that he filed I.A Nos.1815/2018 and 1816/2018. Respondents have no objection in amending the written statement. 4. Order 6 R.17 of Code of Civil procedure read as follows: _Appellant is permitted to amend their written statement and incorporate amendment as prayed in application. Claimants are also given an opportunity to amend plaint and adduce any_ ## **M.A.C.A Nos.1994 and 2015 of 2017** **==> picture [18 x 9] intentionally omitted <==** _further evidence, if they so desire before defendants are called upon to adduce their evidence.”_ 5. I have perused the amendment application filed by the appellant. The amendment is only on facts and the appellant seeks to add additional facts in the written statement in the nature of his defence. Paragraph 6 in I.A No.1816/2018 reads as follows: I humbly submit that my earlier counsel did not advise me of the necessity to incorporate all the details regarding the possession of valid Learners Driving Licence by the 2[nd] respondent in the written statement. These defects in the written statement were noticed by my present counsel now only. I am now advised by my counsel to file a petition to amend the written statement by incorporating the facts mentioned in the accompanying petition. There is no willful delay or laches on my part in not filing the petition earlier. I further submit that myself and my wife couldn't give oral evidence before the **-5-** ## **M.A.C.A Nos.1994 and 2015 of 2017** Trial to prove our defence earlier. 6. Apex court in _**State of Bihar and others v. Modern Tent House and another (2017 (8) SCC 567)**_ held as follows: _“Amendment of written statement sought by appellants (defendants) at completion of evidence of respondents (plaintiffs) and that of appellants (defendants) remaining, by adding two paragraphs held, no dispute that (i) proposed amendment is on facts and appellants in substance seek to elaborate facts originally pleaded in the written statement; (ii) it is amplification of defence already taken; (iii) it does not introduce any new defence compared to what has originally been pleaded in written statement; (iv) if allowed, it would neither result in changing defence already taken nor will result in withdrawing any kind of admission, if made in written statement; (v) there is no prejudice to plaintiffs, if such amendment is allowed because notwithstanding defence_ ## **M.A.C.A Nos.1994 and 2015 of 2017** **-6-** _or/and the proposed amendment, the initial burden to prove case continues to remain on plaintiffs; and (vi) since trial is not yet completed, it is in interest of justice that proposed amendment of defendants should have been allowed by courts below rather than to allow defendants to raise such plea at appellate stage, if occasion so arises._ When written statement is amended, proper evidence have to be adduced for proving the defence set out in these two appeals. If that be the position, it is better to remit the matter to the Tribunal for considering the amendment of the written statement. If written statement is amended, both parties are at liberty to adduce oral and documentary evidence in support of the amendment. In view of the above discussion the impugned order is set aside. The application I.A Nos.1811/2018 and 1815/2018 filed by the appellant under Order 6 R.17 of the Code is remitted to the ## **M.A.C.A Nos.1994 and 2015 of 2017** **-7-** Motor Accidents Claims Tribunal for fresh consideration. The Tribunal shall renumber the amendment application and give opportunity to the other parties before amendment of the written statement and both parties are at liberty to adduce further evidence. Both parties are directed to appear before the Tribunal on 30.07.2018. The Registry is directed to forward the amendment application to Tribunal forthwith. Since the matter is of the year 2015 the Trial Court shall ensure expeditious disposal within six months from the date of appearance of the parties. Sd/- **P.D.RAJAN JUDGE** bng