The United India Insurance Co. ... vs Smt. Naseem Bano W/O Lal Mohd. & ...
2019 Latest Caselaw 1727 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                                      
 
A.F.R
 
Reserved
 
Case :- FIRST APPEAL FROM ORDER No. - 1394 of 2010
 
Appellant :- The United India Insurance Co. Ltd. Thru Dy.
 
Manager
 
Respondent :- Smt. Naseem Bano W/O Lal Mohd. & Ors.
 
Counsel for Appellant :- U.P.S. Kushwaha
 
Counsel for Respondent :- Anil Kr. Pandey,Rajeev Mishra,Smt.Shikha Srivastava
 

 
Hon'ble Jaspreet Singh,J.

By means of the present First Appeal From Order the Insurance Company assails the award passed by the Motor Accident Claims Tribunal/Special Judge, (EC Act), Barabanki dated 23.08.2010, whereby it has awarded a sum of Rs.3,14,000/- in favour of claimants and fastened liability on the appellant and the respondent no.6. It would be relevant to mention here that respondent no.6 has not assailed the award and it is only the appellant Insurance Company who has preferred the above appeal and while filing the above appeal a sum of Rs.2 lacs inclusive of statutory deposit was directed to be deposited by this Court by means of its order dated 1.12.2010.

Before adverting to the submissions of the learned counsel for the parties, the Court takes notice of the facts giving rise to the above appeal.

That the claimants, who are respondent nos.1 and 2 before this Court, preferred a petition, under Section 163-A of the Motor Vehicle Act 1988 stating therein that their son namely Mohd. Salim @ Babloo, who was a cleaner of Truck No.UAM-9873 was travelling from Ghaziabad to Barabanki and at around 12.30 P.M. when it reached Sidhauli, District Sitapur, another Truck bearing No.U.P.34A- 9381 came from opposite direction and was being driven rashly and negligently and it dashed with Truck No.UAM-9873. In the aforesaid accident, Mohd. Salim @ Babloo expired. The claimants impleaded the owner of Truck No.UAM-9873 (who are respondent nos.3 and 4 before this Court) while the owner of the truck bearing No.U.P.34A- 9381 Sri Shabban Khan is respondent no.5 and the insurer of this Truck is respondent No.6.

The opposite parties filed their respective written statements and contested the proceedings. The driver is also the owner of Truck No.UAM- 9873, pleaded that the accident occurred on account of rash and negligent driving of the other truck involved bearing Truck No.UP 34A- 9381. He further took the defence that he had a valid driving licence and the truck was duly insured.

The other defendant Sri Shabbir Khan owner of truck No.U.P.34A-9381 filed his Written Statement and contended that the accident was an outcome of the negligence of the truck driver of UAM-9873 and it further contended that his truck was also duly insured with the National Insurance Company Ltd.

During the pendency of the proceedings, the claimants amended its petition and converted the same from section 166 to section 163-A of the Motor Vehicles Act and also sought other factual amendments and which were allowed and in this manner the Tribunal went on and considered the petition as one under Section 163-A of the Motor Vehicle Act, 1988.

Upon pleading of the parties, the Tribunal framed as many as 10 issues and it has upon consideration of oral and documentary evidence held that the accident occurred on 14.6.2004 and both the trucks were equally responsible, wherein Mohd. Salim received grievous injuries and as a result he expired.

The Tribunal also found that both the drivers of the two trucks had valid driving licence and both the trucks were duly insured with their respective insurance companies.

While assessing the compensation, the Tribunal found that the deceased cleaner was getting around Rs.3,000/- per month and considering the same it awarded a sum of Rs.3,12,000/-+2000 towards funeral expenses and accordingly a total sum of Rs.3,14,000/- was awarded along with 6% interest per annum. This liability was equally distributed on the Insurance Company of both the trucks since it found that the accident was an outcome of rash and negligent driving of both the drivers of the two trucks involved.

While assailing the aforesaid award Shri U.P.S. Kushwaha, learned counsel for the appellant has made a twin fold submission. He urged that the petition was preferred initially under Section 166 of Motor Vehicles Act and the claimants-respondents no.1 and 2 at a later stage converted the petition under Section 163-A of the Motor Vehicles Act which is not permissible inasmuch as Sections 166 and 163A are two separate provisions and by converting one to the other, it amounts to superimposition of a new cause of action and such an amendment is not permissible. He further urged that though the amendment was not challenged at the trial stage, however, the appellant has a right to assail the same while preferring this appeal against the final award.

The other limb of his argument is that since the claim application indicated that the deceased was earning Rs.4,000/- per month and this after calculation, amounts to annual income of Rs. 48,000/- which exceeds the limit which has been prescribed by the schedule in respect of cases under Section 163-A of the Motor Vehicles Act, where there is a ceiling of Rs. 40,000/- annual income. Accordingly, as the income of the deceased exceeded the ceiling limit as provided in the second schedule to section 163-A of the Motor Vehicles Act, thus the Tribunal could not entertain the petition under section 163-A of the Motor Vehicles Act. Thus, in substance he submits that first by allowing the amendment and converting a petition from Section 166 to 163-A of the Motor Vehicles Act was erroneous and even so if it was permissible then while making the amendment since the income of the deceased was not amended as it remained at Rs. 4,000/- per month which was beyond the ceiling prescribed thus no award could have been granted under Section 163-A of the Act.

Per contra the learned counsel for the respondents Mrs.Shikha Srivastava urged that there is no bar in converting the petition u/s 166 to 163-A of the Motor Vehicles Act and once the amendment is allowed it relates back to the date of institution and more over the Insurance Company is not an aggrieved party inasmuch they are not prejudiced by allowing of the amendment. Once it is found that the accident had occurred and Mohd. Salim @ Babloo had died, it was incumbent on them to satisfy the award specifically when the truck was duly insured and there is no violation of any policy condition. It was further submitted that the income of deceased was approximately 4,000/-whereas during the trial the owner of the truck himself deposed before the Tribunal that he used to pay Rs.2500/- to the deceased as a cleaner along with Rs.50/- per day as diet money and thus in any case, the mere reference to approximate Rs.4,000/- per month as income of the claimant, does not divest the jurisdiction of the Tribunal as it is the Tribunal which has to assess the income on the facts and evidence and then grant appropriate compensation. In the present case, the Tribunal held Rs.3,000/- as the income and thus there is no error which has been committed by the Tribunal while passing the award.

The Court has given its anxious consideration to the submissions raised by the learned counsel for the parties and also perused the record carefully.

To deal with the first submission whether a petition under section 166 of the Motor Vehicle Act can be converted into a petition under Section 163-A of the Motor Vehicle Act, it is no mere res integra that a party is entitled to make amendment which in the discretion of the Tribunal concerned, is essential for a just and effectual adjudication of the controversy and if such discretion is exercised within four corner of settled legal principles relating to the law of amendment then it cannot be said that such amendment is bad in the eye of law.

It must be borne in mind that the provisions of the Motor Vehicle Act specially provisions relating to grant of compensation are socially beneficial in nature.

It is in this backdrop it has to be seen whether the amendment can be allowed or not. At this juncture this Court gainfully refers to certain well settled principles relating to the law of amendment of pleadings.

The Hon'ble Apex Court after considering the plethora of the English law as well as the law prevailing in this country on the point of amendment in the case of Revajeetu Builders And Developers Vs. Narayanaswamy And Sons And Others reported in 2009 (10) SCC Pg. 84 has held as under:-

"27. If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung has been consistently accepted by the courts till date as correct statement of law. The Privy Council observed:

"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."

Thereafter analyzing the entire law it summarized the principles as under:-

"Whether amendment is necessary to decide real controversy

58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.

NO PREJUDICE OR INJUSTICE TO OTHER PARTY:

59. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.

60. In Ganga Bai's case (supra), this Court has rightly observed:

"22. .... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:

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 VI Rule 17. These are only illustrative and not exhaustive.

Thus, applying the principles as extracted above it would be seen that the Tribunal did not commit any error in allowing the amendment as it fits the condition of determination of the real question in controversy.

Considering this aspect from another angle and it is found that the Motor Vehicles Act does not create a bar for a claimant to convert his petition from one under Section 166 to Section 163-A of the Act.

At the same time the ratio of the Apex Court in the case of Deepal Girishbhai Soni And Others Vs. United India Insurance Company Ltd. 2004 (5) SCC Pg. 385, has to be kept in mind that the only embargo is that a claimant cannot pursue both remedies simultaneously. One has to opt or elect either to go for proceedings under Section 163-A or under Section 166 of the Act but not both.

However, this does not create a bar on the claimant to convert its petition from Section 166 to Section 163-A of the Motor Vehicles Act.

It is not obligatory for the claimant to mention specific provision of the Act under which claim has been filed rather it is a duty of the authority concerned to apply the relevant provisions for the purpose for grant of award. To say if a petition is filed under section 166 of the Act and if a case is made out u/s 163-A of the Motor Vehicle Act and a party has amended its claim to bring it within the ambit of Section 163-A of the Act then it cannot be said to be an exercise in excess of jurisdiction vested in the Tribunal. Accordingly, in view of above, the first submission of the learned counsel for the appellant fails.

Now coming to the second limb of the argument of the learned counsel for the appellant, it has been urged that the claimant had stated that the income of the deceased was Rs.4,000/- per month, which exceeds the limit as contained in II Schedule envisaged under Section 163-A of the M.V. Act. The submission is that once the claimants themselves admitted that the income was beyond the ceiling as prescribed in the Act. Consequently, the Tribunal did not have the jurisdiction to entertain the petition and thus the award is bad.

The purpose and intent of the Section 163-A of the Act is for those section of people whose annual income is not more than 40,000/-, having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of victim and his income but also the other factors relevant therefor. Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structured-formula basis. Sub-section (1) of Section 163-A contains non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Thus, it would be seen that the proceedings under Section 163-A being a social security in nature provides for a distinct scheme only for those whose annual income is upto Rs. 40,000/- annually and they can take its benefit.

Before coming to the facts of the present case, it may be noted that it is common knowledge that in cases of claim and compensation, a person generally makes inflated claim in order to claim a higher sum but mere claim in itself does not vest or divest the Tribunal of its jurisdiction.

The pleading of the party cannot be placed above the law. The jurisdiction of the Tribunal under Motor Vehicles Act is determined by law and it is not dependent on the pleading of the party who invoke the jurisdiction. Rather the jurisdiction is conferred and exercised by the Tribunal in light of Section 165 of the Motor Vehicles Act. Thus, the contention that by merely mentioning the income of Rs. 4,000/- per month which would exceed Rs. 40,000/- annually of the deceased would divest the Tribunal of its jurisdiction is absolutely misconceived and is rejected.

From the perusal of the material available on record, the claimants who are parents of the deceased also did not state with certainty the income of the deceased. It was pleaded that the deceased was a cleaner and was earning Rs.4,000/- per month approximately. This approximate income was considered inasmuch as the owner of the Truck No.UAM-9873 stated in paragraph no.27 of his W.S. being Paper No. Kha- 37 that he was paying Rs.2,500/- per month and even in his examination in chief he has stated that he paid Mohd. Salim Rs. 3,000/- per month and Rs. 20/- per day as diet money. This has not been contradicted or confronted during his cross examination.

Thus in the facts and circumstances of the case, the Tribunal has considered, the income of the deceased as Rs.3,000/- per month and there is no error which can be pointed out nor any perversity can be said to have been committed while returning the finding by the Tribunal. It is on the aforesaid basis that the Tribunal looking into the evidence on record has granted a total compensation of Rs.3,14,000/- in favour of the claimants. This liability has been fastened on the appellant and the respondent no.6.

This Court is of the considered opinion that the grounds on which the award has been assailed are not cogent nor the award suffers from any error which may persuade this Court to interfear. Consequently, it is held that the award dated 23.08.2010 is just and sound and requires no interference, the appeal being devoid of merit is liable to be dismissed.

Consequently, the appeal is dismissed.

There shall be no order as to cost.

Any amount remaining in deposit before this Court shall be remitted to the Tribunal concerned to be released in favour of the respondent nos.1 and 2 along with the record within a period of two weeks.

Order Date :-27.03.2019

SFH