Shriram General Insurance ... vs Smt. Shubhadra Sharma
2021 Latest Caselaw 8902 MP

                                                                         1                                   MP-5601-2019
                                              The High Court Of Madhya Pradesh
                                                        MP No. 5601 of 2019
                                         (SHRIRAM GENERAL INSURANCE CO.LTD. Vs SMT. SHUBHADRA SHARMA AND OTHERS)


                                    Jabalpur, Dated : 16-12-2021
                                             Shri A.N. Sharma, learned counsel for the petitioner.

                                             Shri Nikhil Tiwari, learned counsel for the respondent No.1.

With the consent of the parties, the matter is heard finally. The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 23.09.2019 (Annexure P/1) passed by

6th Additional Motor Accident Claims Tribunal (in short 'MACT'), Damoh, whereby an application under Order 6 Rule 17 of C.P.C. has been partly allowed.

It is alleged that the respondent No.1 has filed a claim application under Section 166 of the Motor Vehicle Act claiming compensation to the tune of Rs.90,76,893 in lieu of death of one Durga Prasad Sharma in an accident dated 26.09.2017. After issuance of notice, the present petitioner appeared before the Tribunal and has contested the matter. Claimant sought amendment in the pleadings and the same was allowed by learned MACT and an

application under Order 6 Rule 17 of C.P.C. for consequential amendment was filed by the petitioner, which was partly allowed and specific plea of contributory negligence as per eye witness's admission has been rejected.

It is submitted that the petitioner herein had specifically stated that the accident was caused as a collusion between two vehicles being registration No. MP18T-3069 and CG-12S-2809. It is submitted that the factum of involvement of other vehicle in the accident is also admitted in the statement and, therefore, the tribunal has wrongly the plea. The amendment which is sought will not create any major differences to the claim, but will be creating a major problem for the petitioner as he will not be in a position to adduce evidence on the aforesaid aspect regarding involvement of other vehicle and contributory negligence. He has prayed for setting aside of the impugned Signature Not Verified SAN order.

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.12.17 16:44:29 IST 2 MP-5601-2019 Per contra, learned counsel appearing for the respondent No.1 has vehemently opposed the submissions and has supported the impugned order pointing out that on earlier occasion, an application under Order 1 Rule 10 CPC was filed for impleadment of the owner as well as insurance company of so said SUV MP 18T 3069 whose involvement was shown in the accident.

The aforesaid application was rejected. Thereafter, this application has been filed after a considerable period without proper explanation for the same. Proviso to Order 6 Rule 17 of CPC clearly says that due diligence is required to be explained by the person filing an application under Order 6 Rule 17 of C.P.C. with certain delay. No such explanation is being given by the petitioner, in such circumstances, there is no illegality committed by the tribunal.

Heard learned counsel for the parties and perused the record. From the record, it is admitted position that an application under Order 1 Rule 10 CPC filed by the petitioner stood rejected which was filed for impleadment of owner of the vehicle and insurance company of the SUV bearing registration No. MP 18T 3069. No application seeking amendment was filed at the relevant point of time. It is not disputed that the case is at the stage of trial and evidences are being recorded. Therefore, proviso to Order 6 Rule 17 CPC comes into play.

Proviso to Order 6 Rule 17 CPC read as under:-

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

The aforesaid aspect was considered by Hon'ble Supreme Court in the case of M. Revanna Vs. Anjanamma, (dead) and others reported in (2019) 4, SCC 332 wherein, the Hon'ble Supreme Court considering the

Signature Not Verified proviso to Order 6 Rule 17 of CPC has held that the due diligence is required SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.12.17 16:44:29 IST 3 MP-5601-2019 to the extent by the parties seeking amendment at a later stage. In the case of M.Revanna (supra) has held as under :-

"ÂœThe proviso to Order 6 Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion t o allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that i n spite o f d u e diligence, such an amendment could

not have been sought earlier. An amendment cannot be claimed as a matter of right, and u n d er a l l circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether th e application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

(Para 7) In this case there is no explanation by Plaintiffs 1 to 5 as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. They kept quiet without filing an application for amendment of the plaint within a reasonable time. By the time the application was filed the evidence of both parties had been recorded and the matter was listed for final hearing before the trial court. The suit itself is for partition and separate possession. N ow, b y virtue o f the application for amendment of pleadings, Plaintiffs 1 to 5 want to plead that the partition had already taken place in the year 1972 Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.12.17 16:44:29 IST 4 MP-5601-2019 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.

(Para 8) In the circumstances, the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and 4 character o f t h e suit. I f the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, t o grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.

(Para 9) From the aforesaid, it is clear that due diligence is required to be explained by the parties seeking amendment when they filed the application with certain delay. The case is at the stage of trial, therefore, in terms of the proviso to Order 6 Rule 17 CPC, they were required to explain due diligence and the same is not being explained by the petitioner and, therefore, no relief can be extended to him.

In a petition under Article 227 of the Constitution of India, this Court is having a limited scope of interference as this Court is exercising supervisory jurisdiction. The law with respect to supervisory jurisdiction Article 227 of the Constitution of India is made clear by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 S CC 329, wherein certain guidelines have been issued by the Supreme Court, which are as under :-

"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.12.17 16:44:29 IST 5 MP-5601-2019 having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."

After going through the facts and circumstances of the case and considering the judgments passed by the Hon'ble Supreme Court in the aforesaid cases, it appears that the impugned order has rightly been passed by the tribunal and the same does not call for any interference in the present petition.

Petition sans merits and is hereby rejected.

(VISHAL MISHRA) JUDGE

sj

Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.12.17 16:44:29 IST