Varghese M.E. v. Rajesh and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 18TH DAY OF DECEMBER 2017 / 27TH AGRAHAYANA, 1939 MACA.No. 1074 of 2017 AGAINST THE AWARD IN OPMV 638/2008 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL- II,(ADDL.DISTRICT JUDGE-II)PATHANAMTHITTA DATED 30-09-2016 APPELLANT(S)/PETITIONER VARGHESE.M.E, MALAPPURATHU HOUSE, VALIYAKAVU P.O., ANGADI VILLAGE, RANNY TALUK. BY ADVS.SRI.T.K.KOSHY SRI.SABU I.KOSHY RESPONDENT(S)/RESPONDENTS 1 TO 7: 1. RAJESH, S/O.RAVEENDRAN, ASARIPARAMBIL HOUSE, THRIKKOMALA, ETTICHUVADU P.O., ANGADI VILLAGE, RANNY TALUK, PIN-689675. 2. P.V.MATHEW, PUTHENPARAMBIL HOUSE, KARIKULAM P.O., RANNY, PIN-689673. (DIED) 3. V.M.MATHAI, S/O.V.M.MATHEW, VALLAMKUZHIYIL HOUSE, KARIKULAM P.O., PAZHAVANGADI VILLAGE, RANNY TALUK, PIN-689673. 4. JESSY MATHEW, PUTHENPARAMBIL HOUSE, KARIKULAM P.O., RANNY, PIN-689673. 5. RIGIL V. MATHEW, PUTHENPARAMBIL HOUSE, KARIKULAM P.O., RANNY, PIN-689673. 6. ISMAIL C.M., CHENNAMPARA HOUSE, PONTHENPUZHA P.O., KOTTAYAM, PIN-686544. 7. BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., 1ST FLOOR, NEDUVELIL BUILDING, PAZHAVANGADI P.O., RANNY, PIN-689673. R3 BY ADV. SRI.MANU RAMACHANDRAN R7 BY ADV. SRI.RENIL ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: acd ## **P.D.RAJAN, J.** ---------------------------------M.A.C.A.No.1074 of 2017 ---------------------------------Dated this the 18[th] day of December, 2017 ## **JUDGMENT** **'C.R.'** This appeal is preferred against the award in O.P.(M.V.) No.638 of 2008 of the Additional Motor Accidents Claims Tribunal-II, Pathanamathitta by the injured. sustained in a motor accident on Appellant injuries 03.01.2008 and the learned tribunal awarded compensation and directed the rider, owners of the Scooter KL-03/9355 to satisfy the award. Being aggrieved by that, the claimant preferred this appeal. 2. The above petition was filed under Sec.163A of the the Motor Vehicles Act, 1988 (for short MV Act) for getting compensation on structured formula in the case of permanent disability to the claimant due to the accident arising out of the use of motor vehicle as indicated in the second schedule. His case is that on 03.01.2008 at 9.30 a.m., he was riding a motorcycle along Ranny-Valiyakavu public M.A.C.ANo.1074/2017 2 road and when he reached near Methanmukku, another vehicle KL-03/9355 ridden in a rash and negligent manner, hit against the appellant's vehicle as a result, he sustained serious injuries. Immediately he was removed to hospital. 1[st] respondent is the driver, 2[nd] respondent is the registered owner and 3[rd] respondent is the defacto owner. After filing the above petition, the owner of the vehicle died and his legal representatives were impleaded as additional 4[th] and 5[th] respondents. The owner and injured of the motorcycle were impleaded as R6 and R7. In the trial court, R1 and R3 contested the matter and filed written statement. R7 the insurer of the motor cycle contested the matter and admitted the insurance of the motor cycle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A12. Respondents did not adduce any oral evidence. 3. Heard Advocate T.K. Koshy, the learned counsel appearing for the appellant and Adv. Manu Ramachandran, M.A.C.ANo.1074/2017 3 learned counsel for the 3[rd] respondent. The learned counsel appearing for the appellant submitted that the additional 7[th] respondent is the insurer and the motor cycle driven by the claimant was covered under a package policy. The insurer had collected the additional premium to cover the liability of the owner and the driver of the vehicle, which was not pleaded in the petition, hence he filed I.A.No.4541/2017 to amend the claim petition. 4. The learned counsel for the insurance company contended that the appellant cannot be permitted to amend the claim petition at this appellate stage. 5. Before dealing with the liability of the insurer, I would like to refer the question of amendment raised in this appeal. The learned counsel for the appellant filed the above interlocutory application seeking to amend the claim petition and implead the insurer of motor cycle driven by the claimant since they have issued a package policy. In view of the scheme of the Motor Vehicles Act and according to the M.A.C.ANo.1074/2017 4 Kerala Motor Vehicle Rules 1989, there is no prohibition in the Act for amending the claim petition. The power to grant amendment of the pleadings must be vested with all tribunals, which are charged by the law with the duty of enquiring into rights and liabilities of the parties and for adjudicating their claims. Where the pleading plays an important role in the legal proceedings before tribunals and other authorities where they form basis for evidence to be adduced during enquiry. Therefore, power to amend the pleadings must be necessarily an indispensable factor within their jurisdiction. Error cannot be completely avoided in matters of writing or pleadings. In short, amendment of pleadings must be allowed to correct such errors. 6. According to the Kerala Motor Vehicles Rules 1989, Rule 395 mandates that Order 6 Rule 17 is applicable to such claim petitions filed under the Kerala Motor Vehicle Act 1988. Rule 395 of the Kerala Motor Vehicles Rules 1989 says about the application of certain provisions of Code of M.A.C.ANo.1074/2017 5 Civil Procedure. Rule 395 of the Kerala Motor Vehicles Rules reads as follows: “Code of Civil Procedure to apply in certain cases.- The provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, Order IX,Rules 3 to 10 of Order XIII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal.” As far as the question of amendment is concerned, it has not been shown by the learned counsel for the respondent that how the amendment is not maintainable. So far as the question of amendment is concerned, rightly the Rule 395 of the Motor Vehicles Rule 1989 is applicable in which it is held that Order VI Rules 16 to 17 are applicable to the Motor Accidents Claims Tribunals. The above provision enables any party to apply for the amendment of the whole or any part of his pleadings, which may be necessary for the fair trial of the claim. The main object of the Rules is that the tribunal should get and try the merit of the case that comes before them and consequently allow all amendments that may be necessary for determining the real question in the M.A.C.ANo.1074/2017 6 controversy between the parties without causing any injustice to the other side. Full bench of the Apex Court in _**Haridas Girdharidas and others**_ v. _**Varadaraja Pillai & another**_ [1971 SC 2366] held that “ p _arty will be allowed to amend the pleading if no injustice is caused to the opposite party and relief claimed thereby is within the period of limitation.”_ Here, the appellant is seeking amendment of the claim petition and no period of limitation is provided in the Motor Vehicles Rules for filing a claim petition. Appellant contended that the insurer had issued a package policy. At this juncture, merit of amendment is hardly a relevant factor for granting permission for amendment of a claim petition. A reading of Order 6 Rule 17 postulates amendment of pleadings at any stage of the proceedings. Moreover, the question of liability sought through amendment will not change the cause of action. 7. The appeal Courts do not allow amendments ordinarily. If the amendment application is malafide or M.A.C.ANo.1074/2017 7 irrelevant or useless, the permission to amend will be refused by the Court. Full Bench of the Apex Court in _**Nanduri Yogananda Lakshminarasimhachari and Others**_ v. _**Agastheswaraswamivaru**_ [AIR 1960 SC 622] held that “ _the High Court was right in allowing at the appellate stage the amendment by the addition of a new prayer in the prayer clause of the plaint, when all the allegations had been made in the plaint, requisite pleas had been raised by the appellant, an issue was framed on the question, the parties were fully cognizant of the points in controversy and they had led the necessary evidence.”_ However late is the proposed amendment in this case, such amendment at this appellate stage should be allowed, if it may not cause any injustice to the other side. Here, the petition is filed for getting compensation and not for taking away any right of the opposite side by lapse of several years. However, the amendment of the pleading will not make any injustice to the opposite party. Moreover, the relief claimed by the appellant M.A.C.ANo.1074/2017 8 was not covered under any of the provisions of law of limitation. The appellant's case is that a package policy was issued by the insurer, such facts were not mentioned in the claim petition. In _**Anand Kumar Jain**_ v. _**Union of India and another**_ [AIR 1986 SC 1125], Apex Court allowed the amendment application at the appellate stage. In the above, appellant wanted to enhance the original claim on the ground that permanent disability extended to 50% after filing original claim. In such a situation, Apex Court allowed the applicant to amend the claim petition before tribunal and liberty was granted to the respondent to file additional written statement, if any. 8. A similar question was considered by the Apex Court in _**Nagappa**_ v. _**Gurudayal Singh and others**_ [2003 (2) SCC 274] while discussing the Karnataka Motor Vehicles Rules 1989, in which it is held as follows: “11. Secondly, under Section 169, the Claims Tribunal in holding any inquiry under Section 168 is required to follow the rules that are made in this behalf and follow such summary procedure as it thinks fit. In the present case, it has been M.A.C.ANo.1074/2017 9 pointed out that Rule 253 of the Karnataka Motor Vehicles Rules, 1989 empowers the Claims Tribunal to exercise all or any of the powers vested in a civil court under the provisions of the Code of Civil Procedure, 1908. Rule 254 inter alia makes specific provision that Order 6 Rule 17 CPC is applicable to such proceedings. In this view of the matter, in an appropriate case, depending upon the facts and the evidence which has been brought on record and in the interest of justice, the court may permit amendment of claim petition so as to award enhanced compensation. Further, for amendment of the pleadings, it is settled law that unless it causes injustice to the other side or it is not necessary for the purpose of determining the real issue between the parties, the court would grant amendment. It is also to be stated that under the MV Act there is no timelimit prescribed for claiming compensation. Therefore, there is no question of enhanced claim being barred by limitation.” Similar provisions are inserted under Rule 395 of the Kerala Motor Vehicles Rules 1989, which ensures that the Order VI Rule 16 to 18 is applicable to claim petitions filed under the Motor Vehicles Act, 1989. Therefore, in appropriate cases, considering the facts and evidence before tribunal, amendment of the claim petition can be allowed at the appellate stage so as to award just compensation, provided the amendment of the pleadings will not cause any injustice M.A.C.ANo.1074/2017 10 to the other side. Therefore, for the purpose of determining the real issue between the parties, the application filed by the appellant is relevant. In the Motor Vehicles Act, no time limit is prescribed for claiming compensation. In the circumstance, for determining just compensation u/s.163A, the liability of the owner and the insurer has to be decided in the light of the amendment. 9. This Court while discussing the powers of the Claims Tribunal in _**Annamma Philip**_ v. _**The Accident Claims Tribunal and others**_ [AIR 1980 Kerala 196] held that _tribunal has jurisdiction to allow the amendment petition. The same view has been expressed in_ _**Sherifa Beevi** v._ _**Komu** [2006(4) KLT 857]_ and held that _“the Court may at any stage of the proceedings allow either party to amend or alter his pleadings in the claim petition, that was filed u/s.163A of the M.V. Act.”_ In _**National Insurance Company**_ v. _**Jabbar**_ [2007(1) KLT 331], it was held that _“The parties will be entitled to file additional pleadings or apply for amendment of pleadings. This will also include an opportunity to the claimant to apply to amend the_ M.A.C.ANo.1074/2017 11 _claim petition even as regards his income, if he desires to do so._ ” The facts of the case show that for deciding the real controversy between the parties, the Court can permit amendment to the claim petition. In view of the above discussion, the award of the tribunal is set aside and the matter is remitted to the trial Court for fresh consideration. I.A.No.4541/2017 filed in this appeal is closed. The appellant is at liberty to file fresh amendment application before the tribunal and the respondents are also at liberty to file additional written statement, if any. Both parties are directed to appear before the tribunal on 12.02.2018 and on such appearance, the tribunal shall dispose of the matter within three months from the date of their appearance. M.A.C.A. is disposed of as above. **P.D.RAJAN, JUDGE** acd