Ramchand S/O Shobrajmal Kisnani vs Ghanshyam S/O Jumdomal Ranglani ...
2017 Latest Caselaw 9861 Bom

                                                  1




        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

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)

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.

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

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

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