MINOR ABHISHEK and MINOR VISHNU v. K. PRAKASH, K. RATHEESH KUMAR and NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932** ## **WP(C).No. 37352 of 2008(V)** **------------------------------------AGAINST THE ORDER IN OPMV.674/2001 IN OPMV.673/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** **....................** ## **PETITIONER(S):** ## **-------------------------** **1. MINOR ABHISHEK , AGED 16 YEARS, REP. BY THEIR NEXT FRIEND & GUARDIAN DR.SATHISH .B AGED 48 YEARS,S/O. BALAN, T.C. 27/460,KUNNUKUZHI TRIVANDRUM-37 NOW RESIDING AT "USHUS" 26/501, FRIENDS NAGAR, KONTHURUTHY, COCHIN 682 013.** **2. MINOR VISHNU AGED 14 YEARS,REPRESENTED BY THEIR NEXT FRIEND & GUARDIAN DR.SATHISH .B S/O. BALAN, T.C. 27/460,KUNNUKUZHI,TRIVANDRUM-37 NOW RESIDING AT USHUS, 26/501, FRIENDS NAGAR, KONTHURUTHY, COCHIN - 682 013.** **BY ADVS. MR.SREELAL N.WARRIER MR.B.RAGHUNANDANAN** ## **RESPONDENT(S):** **----------------------------** **1. K.PRAKASH , KANNATTU HOUSE, THAKAZHY P.O., ALAPPUZHA DISTRICT.** **2. K.R.RATHEESH KUMAR, S/O. P.K.RAJU KALLUPALAM HOUSE, MALAM P.O.,KOTTAYAM DISTRICT.** **3. NATIONAL INSURANCE CO.LTD BY ITS REGL. MANAGER,REGL.OFFICE, MUTHOOT TOWERS M.G.ROAD, COCHIN-35.** **R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE R3 BY ADV.MR.P.JACOB MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.37352/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- INTERLOCUTORY APPLICATION NO.6384/08 IN OP(MV) 673/01 ON THE FILE OF MACT, ERNAKULAM.** **P2:- INTERLOCUTORY APPLICATION NO. 6382/08 IN OP.(MV) 674/01 ON THE FILE OF ADDL. MACT, ERNAKULAM.** **P3:- COUNTER AFFIDAVIT IN IA. 6384/08 IN OP(MV) NO.673/01 ON THE FILE OF MACT, ERNAKULAM.** **P4:- COUNTER AFFIDAVIT IN IA. NO.6382/08 IN OP.(MV) 674/01 ON THE FILE OF MACT, ERNAKULAM.** **P5:- COPY OF THE COMMON ORDER IN IA. NOS. 6384 & 6382/08 IN OP(MV) NOS. 673 & 674 IN IA. 6383/08.** **TRUE COPY** ## **P.S. TO JUDGE** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 37352 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. ## **JUDGMENT** In this proceedings under Article 227 of the constitution of India, the petitioners assail Ext.P5 order, whereby their application seeking amendment to the claim petition was dismissed by the court below. 2. In an accident that took place on 30.12.1999 at Mamithara, the petitioners and their parents suffered serious injuries. Parents did not survive the accident. The only other person, who was lucky enough to escape was Sri.Madhavan Pillai, who was travelling along with them. It was based on his statement that FIS was recorded and the crime was registered. Claim petition was laid in respect of the parents of the minor children and the uncle independently. O.P.(MV) 673 and 674 of 2001 were in respect of the death of the parents. All the petitions including the one involved in this proceedings were filed WPC.37352/2008. 2 on the basis of the then available police records and other materials. During trial, it was revealed that the incident had occurred in a different manner and therefore it became necessary to seek amendment of the petitions. Applications were filed for that purpose. Exts.P1 and P2 are the applications so filed. The Insurance Company took objections to the petitions. The Tribunal, which was seized of the matter, dismissed the petitions by order dated 17.11.2008, copy of which is produced as Ext.P5. It is the said order that is under challenge. 3. Learned counsel appearing for the petitioners pointed out the Tribunal was not justified in taking a strict view of the matter since it is well settled that a liberal approach has to be made in respect of the pleadings in motor accident cases. Much importance is not given to the pleadings since the Act is a social legislation and the intention and the object is to do justice to the parties. Learned counsel pointed out that the allegations in the petitions were that the accident was due to the negligence WPC.37352/2008. 3 on the part of the lorry driver and that is not sought to be altered by the amendment. According to the learned counsel, only the mode in which the accident occurred is sought to be incorporated. That does not affect the cause of action or the nature of the accident. It was only during the evidence stage that the real manner in which the accident had occurred came to be revealed and that necessitated the amendment. The Tribunal has taken too technical a view resulting in miscarriage of justice. 4. Learned counsel appearing for the contesting respondents on the other pointed out that it was almost after the trial that the amendments were sought for. According to learned counsel, it changes the cause of action. In the petitions, the petitioners had taken a definite stand regarding the accident and that is now sought to be altered. According to learned counsel in the initial pleadings the petitioners were sure to loose their case and in order to get over that handicap, the amendments have been sought for. WPC.37352/2008. 4 5. Learned counsel appearing for the respondents also contended that there is nothing to show that the petitioners were precluded from making the proper statements because they could not get the proper information even after exercising due diligence. Learned counsel pointed out that the present amendment sought for is a clear after thought and that cannot be allowed. In support of the above contention, learned counsel relied on the decision reported in **Chander Kanta Bansal v. Rajinder Singh Anand** ((2008)5 SCC 117). 6. Learned counsel appearing for the petitioners on the other hand relied on the decisions reported in **Surendra Kumar Sharma v. Makhan Singh** (2009 AIAR (Civil) 887) and **North Eastern Railway Admin. Gorakhpur v. Bhagwan Das** (D) by LRS. (2008 AIAR (Civil) 511) and contended for the position that a liberal approach has to be adopted in considering the application for amendment if the amendment sought for is required to determine the actual issues involved in the case. The mere WPC.37352/2008. 5 fact that the amendments have been sought for belatedly is not a ground to reject the same. 7. One has to notice that the proceedings is a summary one. Motor Vehicles Act provides that the police officer who comes to know about the accident has to inform the court about the same is a statutory mandate. Even such an intimation could be treated as a petition for compensation. Section 169 of the Motor Vehicles Act enables the Tribunal subject to the Rules, to adopt its own procedure for adjudicating the claim petition. As rightly pointed out by the learned counsel for the petitioner, as far as motor accident cases are concerned, the courts have to take a very liberal approach regarding the pleadings and the strictness which is usually applied in the civil cases is not adopted in motor accident claims cases. 8. In the case on hand, initially the petitioners stated that the car in which they were travelling had run into a lorry which was parked illegally. By amendment what they sought was that the lorry overtook their car in which WPC.37352/2008. 6 they were travelling and suddenly applied break and the car hit behind the lorry. It may at once be noticed that in both cases, the petitioners attribute negligence to the driver of the lorry. The change that is now sought is only regarding the manner in which the accident had occurred. 9. It is true that the first information statement was given by a person who was travelling in the vehicle. But it should be noticed that the statement was given soon after the accident and one could imagine the state in which that person would have been at the moment. Later the parents of the petitioners succumbed to their injuries and moreover, it is unwise to insist that such a person who was travelling in the car should give the correct version of the accident. One should also remember that it is an accident and nobody could anticipate the same. The person who gave the FIS stated as to what he thought he had seen and that need not be the real facts. 10. During trial, when P.W.2 was examined, it came out that the incident occurred while after the lorry WPC.37352/2008. 7 overtook the car and suddenly applied the break of the vehicle. This was corroborated by the investigating officer in the said case. The evidence of the investigating officer reveals a shocking state of affairs. It is not necessary to refer to those aspects in the present case. One may notice that as soon as P.W.2 was examined the insurance company was put on alert regarding the actual manner in which the accident had occurred. It is then the petitioners realised the true state of affairs. One cannot omit to note that in the criminal case relating to the incident a refer report had been filed. The petitioners may not be in possession of those documents or able to get them. 11. Learned counsel for the insurance company placed considerable reliance on Order VI Rule 17 which reads as follows: _“_ _**17. Amendment of pleadings** .- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may_ WPC.37352/2008. 8 _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.”_ Much emphasis was laid on the proviso to the said provision. It is contended that the proviso is not satisfied in the present case. 12. True, the decision relied on by the learned counsel for the respondents in support of the above proposition does say that normally after the trial has commenced unless the conditions in the proviso are satisfied, amendment should not be allowed. 13. One must remember that that the said principle usually applies in civil cases where the persons litigating are in possession of the relevant materials. In the case of a motor accident claim, the petitioners have to rely on the document and the versions given by others especially WPC.37352/2008. 9 in cases of accident of the nature involved in the proceedings. It could not be said that if proper care had been taken by the petitioners, they could have got all the materials which disclosed the true version of the manner in which the incident had occurred. 14. Merely, because the FIS was given by one of the relatives of the petitioners and a person, who was travelling in the vehicle, it could not be said that it is the gospel truth. As already noticed, one must remember that he was a victim and it is not possible to expect him to give a complete and proper version of the incident. His version depends upon his perceptions. 15. In the decision relied on by the learned counsel for the petitioners, it has been laid down that normally amendment should be allowed which satisfies two conditions. They are i) of not working injustice to the other side and ii) of being necessary for the purpose for determining the real question in controversy between the parties. WPC.37352/2008. 10 16. One may now have a look at the amendment sought for. It reads as follows: _“In Column No.28(2) of the claim petition, in the 2[nd] sentence delete the words i.e., which was unauthorisedly parked in a dangerous manner on the road side without any proper signal, inflicting grievous injuries to Vijayakumaran Nair, his wife and relative Mr. Madhavan Pillai and add the same as “coming from north to south carelessly and in high over speed overtook Maruti car without signal and horn. Immediately after overtooking the driver of the offending lorry applied sudden break without signal and took reverse thereby back side of the lorry hit to the front side of the Maruti car, inflicting grievous injuries to Vijayakumaran Nair, his wife and relative Mr. Madhavan Pillai.”_ On going through the above statements, one fails to understand as to how the cause of action is altered. It only seeks to make a change to the manner in which the incident had occurred. The allegation of negligence of the lorry driver remains and that the is crux of the issue. It is not possible to understand as to what injustice is caused to the WPC.37352/2008. 11 respondents by allowing the amendment. It cannot be disputed that the amendment is necessary for the proper determination of the issue involved in the case. The proviso relied on by the learned counsel for the petitioner has no application to the facts of the present case. 17. The Tribunal has gone on to observe that the basic principles of amendment cannot be ignored in motor accident claim petitions. It was unkind on the part of the Tribunal to say that a version as presently sought to be brought in was introduced with an ill motive. One can only say that it was quite unkind on the part of the Tribunal to observe so. The observation of the Tribunal that it introduces a new cause of action is not correct. There is no alteration of the cause of action. There is only a change regarding the manner in which the incident had occurred. The observation that the amendments are not made in good earnest too is baseless. 18. As rightly pointed out by the learned counsel for the petitioners, it is a social legislation intended to give WPC.37352/2008. 12 justice to the parties and technicalities shall not stand in the way of denying what is due to them especially when no injuries or injustice is caused to the opposite side. This court finds no reason as to why the amendment should not be allowed. In the result, this petition is allowed, the impugned order is set aside and the amendments sought for are allowed and the amendment shall be carried out within a period of one month from the date of receipt of a copy judgment and the Tribunal is directed to dispose of the matter in accordance with law. **P. BHAVADASAN, JUDGE** sb.