Delhi High Court
Oriental Insurance Co.Ltd. vs Rajinder Sharma & Ors. on 27 August, 2013
Author: Suresh Kait
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:27th August, 2013
+ CM(M) 1054/2012
ORIENTAL INSURANCE CO.LTD. ..... Petitioner
Through: Mr. Pradeep Gaur and Mr.Amit
Gaur, Advocates.
Versus
RAJINDER SHARMA & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CM(M) 1054/2012
1. Perusal of the order sheets reveals that respondent No.3 has been
served by citation, however, none appears on his behalf.
2. On behalf of the respondent Nos. 1 and 2, one Mr. J.S. Kanwar,
Advocate appeared on 01.07.2013. Thereafter, for the last two consecutive
dates, none is appearing on behalf of the aforesaid respondents. So is the
position today.
3. In view of the above, this Court is left with no option but to proceed
with the instant petition.
4. Vide the instant petition, the petitioner has challenged the impugned
order dated 24.08.2012, whereby an application under Order VI Rule 17
read with Section 151 CPC filed by the petitioner seeking amendment of the
written statement was dismissed by the learned Tribunal.
5. The learned Tribunal has recorded that in para 17 of the written
statement, it is admitted by the petitioner that the vehicle No.HR-38 H-3524
was insured with the petitioner/Insurance Company vide cover note
No.354430 w.e.f. 15.03.2006 to 14.03.2007 in the name of respondent No. 3
subject to terms, conditions and limitations of policy.
6. Earlier also, an application under Order VI Rule 17 read with Section
151 CPC was moved by the petitioner, however, the same was withdrawn on
02.02.2009.
7. While dismissing the successive application vide aforesaid order dated
24.08.2012, the learned Tribunal has opined that admission once made
cannot be withdrawn by making an amendment in the pleadings.
8. Learned counsel appearing on behalf of the petitioner submits that in
the cases of the accidents, the Tribunals have to enquire the matter and come
to the real issue. Therefore, inadvertently, if something contrary to the
documentary proof is admitted at one stage, then in that eventuality,
amendments do not prejudice the rights and change the issue of the petition.
Hence, the learned Tribunal has wrongly dismissed the said application.
9. To strengthen, his arguments, learned counsel relies upon a case of
Baldev Singh & Ors. etc. Vs. Manohar Singh & Anr., etc. 2006(3) CCC
2013 (SC), wherein the Apex Court has held as under:-
"15. Let us now take up the last ground on which the
application for amendment of the written statement was
rejected by the High Court as well as the Trial Court. The
rejection was made on the ground that inconsistent plea cannot
be allowed to be taken. We are unable to appreciate the ground
of rejection made by the High Court as well as the Trial Court.
After going through the pleadings and also the statements made
in the application for amendment of the written statement, we
fail to understand how inconsistent plea could be said to have
been taken by the Appellants in their application for
amendment of the written statement, excepting the plea taken by
the Appellants in the application for amendment of written
statement regarding the joint ownership of the suit property.
Accordingly, on facts, we are not satisfied that the application
for amendment of the written statement could be rejected also
on this ground. That apart, it is now well settled that an
amendment of a plaint and amendment of a written statement
are not necessarily governed by exactly the same principle. It is
true that some general principles are certainly common to both,
but the rules that the Plaintiff cannot be allowed to amend his
pleadings so as to alter materially or substitute his cause of
action or the nature of his claim has necessarily no counterpart
in the law relating to amendment of the written statement.
Adding a new ground of defence or substituting or altering a
defence does not raise the same problem as adding, altering or
substituting a new cause of action. Accordingly, in the case of
amendment of the written statement, the Courts are inclined to
be more liberal in allowing amendment of written statement
than of plaint and question of prejudice is less likely to operate
with same rigor in the former than in the latter case.
16. This being the position, we are therefore of the view that
inconsistent pleas can be raised by Defendants in the written
statement although the same may not be permissible in the case
of plaint. In the case of M/s. Modi Spinning and Weaving Mills
Co. Ltd. & Anr. Vs. M/s.Ladha Ram & Co., (1976) 4 SCC 320,
this principle has been enunciated by this Court in which it has
been clearly laid down that inconsistent or alternative pleas
can be made in the written statement. Accordingly, the High
Court and the Trial Court had gone wrong in holding that
Defendants/Appellants are not allowed to take inconsistent
pleas in their defence."
10. While recording the opinion on amendment of the written statement,
the only question to be considered by the court is whether such
amendment would be necessary for decision of the real controversy
between the parties in the petition. The court cannot go into the question
of merit of the amendment, as has been held in the case of Andhra Bank
Vs. ABN Amro Bank, N.V., AIR 2007 SC 2511.
11. In the present case, one of the issue before this Court is whether the
offending vehicle is insured with the petitioner so that the liability can be
fastened accordingly. If the petitioner has the documentary proof contrary
to the statement/admission made in the written statement filed before the
learned Tribunal, then, it will not prejudice the rights of the
respondents/claimants. In such a situation, there is no embargo to allow
the amendment in the written statement.
12. In view of the submissions made by the learned counsel for the
petitioner and the noted dictum of the Supreme Court in the case of
Baldev Singh (supra), I set aside the impugned order dated 24.08.2012.
13. Consequently, the learned Tribunal is directed to allow the
petitioner to amend the written statement.
14. In view of the above, the instant petition stands disposed of.
CM No. 16555/2012 (for stay)
With the disposal of the petition itself, this application has become
infructuous. The same is accordingly dismissed.
SURESH KAIT, J.
AUGUST 27, 2013
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