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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 743 of 2014
with
Civil Application (CAF) No. 4466 of 2017
Appellant : Ramchand son of Sobhrajmal Kishnani,
aged about 52 years, Occ: Business, resident of
Block No. 311/12, Near Chowdhry Chowk,
Jaripatka, Nagpur
Versus
Respondents: 1) Ghanshyam Jumdomal Ranglani, aged
Major, Occ: Owner, resident of Indira Gandhi
Colony, Indora, Jaripatka, Nagpur
2) The Branch Manager, Iffco Tokio General
Insurance Company Limited, Shriram Shyam
Tower, Behind NIT Building, Kingsway, Nagpur
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Shri Shyam Dewani, Advocate for appellant Shri R. G. Somkuwar, Advocate for respondent no. 1 Shri A. J. Pophly, Advocate for respondent no. 2 Coram : S. B. Shukre, J Dated : 20th December 2017 Oral Judgment ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 ::: 2
1. Appeal is already admitted by this Court by order dated 5 th September 2014. Appellant has filed Civil Application No. 4466 of 2017 for grant of permission to convert petition under Section 163-A of the Motor Vehicles Act into the one under Section 166 thereof. However, unless this Court goes through the entire impugned judgment, it would not be possible to grant or reject such permission and, therefore, instead of only hearing the application, this Court has today heard the parties finally by consent in terms of order dated 6th December 2017.
2. The questions that fall for consideration are thus:
(i) Whether it is permissible to convert a petition originally filed under Section 163A of the Motor Vehicles Act into the petition under Section 166 of the said Act ?(ii) What order ?
3. In support of his contention, Shri Dewani, learned counsel for the appellant has relied upon the following four rulings : (1) New India Assurance Co. Pvt. Ltd. v. Geeta Sadanand Naik & ors reported in 2012 (4) ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 ::: 3 Bom. C.R. 31 (2) National Insurance Co. Ltd. v. Bruno Baltazar Saldhana reported in 2011 Lawsuit (Bom) 1862 (3) New India Assurance Co. Ltd. v. Ashabai Kalyan Kothi, reported 2008 (6) Bom. C.R. 89 (4) National Insurance Co. v. Indu Sharma & ors reported 2000 ACJ 808
4. On the other hand, Shri A. J. Pophly, learned counsel for respondent no. 2 has invited my attention to the judgment of Hon'ble Apex Court in the case of Deepal Girishbhai Soni & ors v. United India Insurance Co. Ltd., Baroda reported in (2004) 5 SCC 385.
5. In Deepal (supra), the Hon'ble Apex Court has allowed the exercise of conversion of petition filed under Section 163A into the one under Section 166 of the Motor Vehicles Act. The Hon'ble Apex Court also made it clear that that order shall not be treated as a precedent insofar as grant of interest was concerned in that case. In the case of Ashabai (supra) relied upon by learned counsel for the appellant, the learned single Judge of this Court considered the judgment of Hon'ble Apex Court in Deepal relied upon by learned counsel for respondent no. ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 ::: 4
2. The learned single Judge took a view that it is not the case that there is no discretion existing in the Court regarding conversion or non- conversion of the petition filed under Section 163A into Section 166 of the Motor Vehicles Act. The learned single Judge held that the Motor Vehicles Act being a beneficial legislation and the procedure having been always treated as a handmaid of justice, in fit cases, a favourable discretion for allowing such conversion can always be exercised by the Court. After taking such a view, learned single Judge examined facts of that case and found that the conduct of the appellants therein was not such as would compel the Court to refuse exercise of discretion in their favour.
6. On perusal of the case laws cited by both the counsel and referred to in earlier paragraph, it becomes clear that it is in the discretion of the Court to allow or disallow conversion of petition filed under Section 163A into the one under Section 166 of the Motor Vehicles Act and that such exercise of power would depend upon facts and circumstances of each case.
7. In the present case, the conduct of the claimant, I am of the considered view, would not disentitle him to seek such a relief. It appears that the claimant acted in a bonafide manner in the present case and the ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 ::: 5 petition was filed by his advocate who, perhaps reeled under the wrong impression that remedy under Section 163A of the Act was available even for the claim of amount above Rs. 40,000/-. In the claim petition itself, the income of the claimant has been shown at Rs. 300,000/-. This would show that the claimant did not act dishonestly, rather, he placed all the facts openly before the Court. Therefore, I am of the view that the discretion in favour of the appellant can be exercised only to the extent of allowing the change in the Section under which relief can be sought by setting aside the impugned judgment and remitted back the application for a decision afresh. As regards the interest portion, as held by the Hon'ble Supreme Court in Deepal and in other judgments relied upon by learned counsel for the appellant, the issue would have to be kept open to be decided appropriately in accordance with law by the Tribunal. Both the points are answered accordingly.
8. In the result, Civil Application No. 4466 of 2017 is allowed. Consequently, the impugned judgment and order are hereby quashed and set aside. The matter is remitted back to the Tribunal for trial afresh in accordance with law from the stage of completion of pleadings. The trial Court shall permit carrying out of amendment of pleadings by the rival parties provided request for the same is made in accordance with law. The evidence already available on record shall be taken into consideration ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 ::: 6 for finally deciding the case. Parties are given liberty to adduce additional evidence, if any, including recalling of the witnesses. Parties to appear before the Tribunal on 22 nd January 2018. The Tribunal shall dispose of the claim petition within six months from the date of appearance of the parties. Costs of the appeal shall be borne by the appellant in addition to his own.
S. B. SHUKRE, J joshi ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:58 :::