Bombay High Court
M/S A. K. Gandhi Tvs Through Its ... vs Mrs. Sunanda Wd/O Bhikaram Warthi ... on 19 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5081/2015
M/s A.K. Gandhi TVS
A Unit of M/s A.K. Gandhi Marketing
Pvt. Ltd., 28 Yeshwant Stadium, Dhantoli,
Nagpur, through its duly constituted Special
Power of Attorney Mr. Dhirendra Madhukar
Kayarkar, aged about 47 Yrs., Occu. Service,
R/o Mahal, Nagpur. ..Petitioner.
..Vs..
1. Mrs. Sunanda Wd/o Bhikaram Warthi,
aged about 40 Yrs., Occu. Household,
R/o C/o Shirpur, Tahsil Ramtek,
Distt. Nagpur.
2. The Branch Manager,
National Insurance Co. Ltd., 1248-A,
Shivaji Nagar Deccan Gymkhana, Pune
411 001, through its Nagpur Branch
Paul Commercial Complex, Ajni Chowk,
Wardha Road, Nagpur.
3. Sk. Esanoor Raheman Jumari,
aged about 32 Yrs., Occu. Not known,
R/o Kisan Chowk, Ramtek, Distt. Nagpur. ..Respondents.
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Shri S.D. Deodas, Advocate for the petitioner
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CORAM : Z.A. HAQ, J.
DATE : 19.1.2018.
ORAL JUDGMENT
1. Heard Shri S.D. Deodas, Advocate for the petitioner. None appears
for the respondents though served.
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2. Rule. Rule made returnable forthwith.
3. The claim petition filed by the respondent No.1 under Section 166
of the Motor Vehicles Act, 1988 was allowed by the Tribunal by the award
dated 1st January, 2011. This award was challenged before this Court in First
Appeal No.943/2013 which is decided by the judgment dated 25th August,
2014. The operative part of the judgment is in para 6, which reads as follows:
"6] In the result, the appeal is allowed. The judgment
and award dated 01.01.2011 passed by the Motor Accident
Claims Tribunal-2, Nagpur in Claim Petition No.101/2005,
is hereby quashed and set aside. The matter is remitted back
to the said Tribunal to decide it afresh after giving the parties
an opportunity to lead evidence in the matter. The appellant
to deposit the entire decretal amount before the Motor
Accident Claims Tribunal-2 at Nagpur within a period of one
month from the date of first appearance of the parties before
the Tribunal, along with costs of Rs.10,000/-. Upon deposit
of the amount, the Tribunal to decide the claim petition
within a period of eight months from the date of first
appearance of the parties. The Tribunal shall permit the
claimant to withdraw 50% of the amount so deposited by the
appellant along with an amount of Rs.10,000/- towards
costs. The Tribunal shall pass an appropriate order in respect
of the amount paid and which is balance, amount in
accordance with its ultimate decision in the matter. No oder
as to costs. The parties to appear before the Tribunal on
15.09.2014."
4. The Advocate for the petitioner submits that the amount, as directed
by this Court, is deposited by the petitioner and the claimant is given that
amount.
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5. The petitioner had filed application (Exh. No.59) seeking permission
to amend its written statement to incorporate the pleadings that the vehicle
involved in the accident was used for trial by the customers and the liability, if
any, arising during the use of the vehicle for trial by the customer was covered
under the insurance policy and, therefore, if any liability arises, it would be of
the insurance company. This application is rejected by the Tribunal.
6. The learned Advocate for the petitioner has submitted that the
petitioner wants to amend its written statement and to bring on record the
pleadings to point out that the liability, if any, would be of the insurance
company. It is further submitted that the proposed amendment does not
effect the claim of the claimants and the petitioner does not want to deny the
claim of the claimants on the basis of the proposed amendment.
7. The Tribunal has dismissed the application (Exh. No.59) observing
that the application is moved at a very late stage. The Tribunal has further
recorded that if the petitioner is permitted to amend its written statement and
incorporate the proposed amendment, it will cause prejudice to the insurance
company.
8. The Advocate for the petitioner has pointed out that the evidence on
behalf of insurance company was recorded in the earlier round of proceedings
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and now after remand, the evidence of the petitioner is going on. In the
judgment delivered by this Court in First Appeal No.943/2013, while
remanding the matter, this Court has directed that the parties should be given
opportunity to lead evidence. The insurance company is entitled to exercise its
right of leading evidence and cross-examining the witnesses examined on
behalf of the petitioner. If the petitioner is permitted to incorporate the
proposed amendment in the written statement, then the insurance company
can be permitted to amend its written statement and to lead evidence and then,
it cannot be said that the insurance company would be put to any prejudice.
The submission made on behalf of the petitioner has to be accepted.
9. Considering the facts of the case, the following order is passed:
(i) The impugned order is set aside.
(ii) The application (Exh. No.59) filed by the petitioner is allowed.
(iii) The petitioner is permitted to amend the written statement.
(iv) The Tribunal shall take note of the observations made in this
judgment, while proceeding further in the matter.
The writ petition is allowed in the above terms.
In the circumstances, the parties to bear their own costs
JUDGE
Tambaskar.
