Orissa High Court
Constitution Of India vs Reliance General Insurance Co. Ltd on 11 April, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 23-Apr-2025 18:11:49
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22489 of 2023
(In the matter of an application under Articles 226 and 227of the
Constitution of India, 1950).
Baijayanti Kund & Ors. .... Petitioner(s)
-versus-
Reliance General Insurance Co. Ltd., .... Opposite Party (s)
Bhubaneswar & Ors.
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Dillip Kumar Mohapatra, Adv.
For Opposite Party (s) : Mr. G.P. Dutta, Adv. for O.P.1
Ms. J.P. Tripathy, Adv. for O.P.2
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-12.03.2025
DATE OF JUDGMENT:-11.04.2025
Dr. S.K. Panigrahi, J.
1. The Petitioner, in the present Writ Petition, assails the order dated
09.05.2023 passed by the learned 3rd MACT cum-ADJ, Jagatsinghpur in
MAC Case No. 167 of 2008, on the ground that the said order is illegal,
erroneous, and unsustainable in law.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
Location: ORISSA HIGH COURT, CUTTACK
(i) On 27.08.2007, the deceased, Sandeep Kumar Kund, was returning to
his residence in Kendrapada district from Cuttack after completing his
work. He was traveling as an occupant in his own Ambassador car
bearing registration number OR-02-D-9009, which was being driven
by his driver.
(ii) At approximately 2:00 AM, while the vehicle was proceeding near
Chandi Bazar on the Cuttack-Chandabali road, it collided with the
rear portion of a stationary truck bearing registration number OR-21-
A-0952, which had been parked in the middle of the road.
(iii) Owing to the impact, the deceased sustained grievous injuries on his
head, neck, and other parts of the body, resulting in profuse bleeding.
The driver of the Ambassador car suffered minor injuries.
(iv) The injured were immediately shifted by local residents to the District
Government Hospital, Kendrapada, where Sandeep Kumar Kund was
declared brought dead.
(v) Pursuant to the incident, Kendrapada Police registered P.S. Case No.
325 of 2007 under Sections 279 and 304-A of the Indian Penal Code.
(vi) The widow and minor children of the deceased filed an application for
compensation under Section 166 of the Motor Vehicles Act, 1988,
before the 1st MACT-cum-ADJ, Jagatsinghpur, seeking compensation
of ₹10,00,000/- (Rupees Ten Lakhs only) from the owner and insurer of
the offending truck.
(vii) During the course of proceedings, the claimants filed an application
under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking
to amend the claim petition by invoking Section 163-A of the Motor
Location: ORISSA HIGH COURT, CUTTACK
Vehicles Act, 1988, in lieu of Section 166. The said amendment was
allowed, and the claimants were directed to file a consolidated claim
petition accordingly.
(viii) At the stage of final arguments, the claimants filed another application
under Order VI Rule 17 CPC on 28.02.2023, seeking to amend the
monthly income of the deceased to ₹5,000/- (Rupees Five Thousand
only) and to proportionately reduce the total compensation claimed to
₹5,00,000/- (Rupees Five Lakhs only).
(ix) The 3rdMACT-cum-ADJ, Jagatsinghpur, by order dated 09.05.2023,
rejected the aforesaid application, thereby declining the prayer for
amendment in the income of the deceased and the corresponding
reduction in the compensation amount.
(x) Aggrieved by the said order, the Petitioners have approached this
Court by way of the present writ petition.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The Petitioner submitted that, at the stage of final arguments, an
application dated 28.02.2023 was filed under Order VI Rule 17 of the
Code of Civil Procedure, 1908, seeking to amend the monthly income
of the deceased to ₹5,000/- (Rupees Five Thousand only) and to reduce
the total compensation claimed to ₹5,00,000/- (Rupees Five Lakhs
only). The amendment was sought as there was no cogent
Location: ORISSA HIGH COURT, CUTTACK
documentary evidence to establish that the deceased was earning
₹10,000/- (Rupees Ten Thousand only) per month.
(ii) The Petitioner submitted that the proposed amendment was merely
formal in nature and did not alter the fundamental character of the
claim filed before 3rdMACT-cum-ADJ, Jagatsinghpur.
(iii) The Petitioner submitted that the 3rdMACT-cum-ADJ, Jagatsinghpur,
by order dated 09.05.2023, rejected the Petitioners' prayer for
amendment solely on technical grounds, without properly considering
the statutory provisions or the binding precedents laid down by this
Court and the Supreme Court.
(iv) The Petitioner submitted that although Section 163-A of the Motor
Vehicles Act, 1988 provides for compensation based on a structured
formula set out in the Second Schedule, the Schedule is not to be
treated as a ready reckoner for determining just and fair
compensation. In support of this contention, reliance was placed on
the observations of the Supreme Court in National Insurance Co. Ltd.
v. Pranay Sethi & Others.1
(v) The Petitioner submitted that in Nagappa v. Gurudayal Singh,2the
Supreme Court held that amendment of claim petition can be
permitted even at the appellate stage.
(vi) Furthermore, the Petitioner relied on the decision of the Supreme
Court in Baldev Singh v. Manohar Singh,3wherein it was observed that
while considering an application under Order VI Rule 17 of the Code
(2017) 16 SCC 680.
(2003) 2 SCC 274.
(2006) 6 SCC 498.
Location: ORISSA HIGH COURT, CUTTACK
of Civil Procedure, the Court should adopt a liberal approach in
allowing amendments, unless serious injustice or irreparable loss is
likely to be caused to the opposite party.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the
following submissions in support of his contentions:
(i) The Petitioners filed the claim application in the year 2008. After a
lapse of 15 years, they filed a petition under Order VI Rule 17 of the
Code of Civil Procedure, seeking amendment of the claim amount.
Such a belated attempt to amend the pleadings, without any
justification for the delay, is impermissible in law, and the writ
petition is liable to be dismissed on this ground alone.
(ii) The Petitioners initially instituted the claim under Section 166 of the
Motor Vehicles Act, 1988. After 11 years, they sought and obtained
permission to amend the claim petition by invoking Section 163-A of
the Act, pursuant to an order dated 05.08.2019. However, even at that
stage, the income component remained unchanged, with continued
assertion that the deceased was engaged in business and
earned₹10,000/- per month.
(iii) A consolidated claim application was filed thereafter, based on which
issues were framed. Witnesses were examined, and evidence from
both sides was concluded. When the matter was posted for final
arguments, the Petitioners filed the present application seeking to
revise the monthly income of the deceased and reduce the total claim
Location: ORISSA HIGH COURT, CUTTACK
amount. Such an amendment at the stage of final hearing, after
conclusion of trial, is clearly impermissible.
(iv) P.W.1, the widow of the deceased, was examined on 26.04.2022 and, in
her examination-in-chief, categorically affirmed that the deceased was
earning ₹10,000/- per month. The attempt to revise this to ₹5,000/- and
reduce the compensation amount after closure of evidence cannot be
permitted and was rightly rejected by the 3rd MACT-cum-ADJ,
Jagatsinghpur.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard the learned counsel for the Parties and perused the materials
placed on record.
6. The primary issue for consideration in the present writ petition is
whether the learned 3rd MACT-cum-ADJ, Jagatsinghpur, erred in
rejecting the Petitioners' application for amendment of the monthly
income of the deceased from ₹10,000/- to ₹5,000/- in MAC Case No.
167 of 2008.
7. The position regarding amendment of pleadings is well-settled. Order
VI Rule 17 of the Code of Civil Procedure, 1908, provides that the
Court may, at any stage of the proceedings, permit amendment of the
pleadings if such amendment is necessary for determining the real
question in controversy. However, the proviso imposes a clear bar on
allowing such amendments after commencement of trial unless the
Court is satisfied that, despite due diligence, the party could not have
raised the matter earlier. The provision is replicated hereinunder:
Location: ORISSA HIGH COURT, CUTTACK
"17. Amendment of pleadings.--The Court may at any
stage of the proceedings allow either party to alter or amend
his pleading in such manner and on such terms as may be
just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions
in controversy between the parties:
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."
8. The proviso to Order VI Rule 17 is couched in mandatory terms.
InVidyabai and Others v. Padmalatha and Another,4the Supreme
Court held that the jurisdiction of the Court to allow such an
application post-commencement of trial is strictly confined to cases
where due diligence is clearly established. The relevant portion is
replicated hereinunder:
"10. By reason of the Civil Procedure Code (Amendment)
Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a
proviso to Order 6 Rule 17 of the Code, which reads 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."
(2009) 2 SCC 409.
Location: ORISSA HIGH COURT, CUTTACK
It is couched in a mandatory form. The court's jurisdiction
to allow such an application is taken away unless the
conditions precedent therefor are satisfied viz. it must come
to a conclusion that in spite of due diligence the parties
could not have raised the matter before the commencement
of the trial."
9. In Salem Advocate Bar Association, Tamil Nadu v. Union of
India,5the Supreme Court observed that the discretion of the Court to
permit amendments post-commencement of trial must be exercised in
a restrained manner, only upon satisfaction of the statutory test of due
diligence. It was observed:
"26. Order 6 Rule 17 of the Code deals with amendment of
pleadings. By Amendment Act 46 of 1999, this provision
was deleted. It has again been restored by Amendment Act
22 of 2002 but with an added proviso to prevent application
for amendment 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 trial. The proviso, to some extent,
curtails absolute discretion to allow amendment at any
stage. Now, if application is filed after commencement of
trial, it has to be shown that in spite of due diligence, such
amendment could not have been sought earlier. The object is
to prevent frivolous applications which are filed to delay the
trial. There is no illegality in the provision."
10. Reverting to the facts of the present case, the original claim application
was filed on 02.07.2008 under Section 166 of the Motor Vehicles Act,
1988, wherein the Petitioners specifically pleaded that the deceased
(2005) 6 SCC 344
Location: ORISSA HIGH COURT, CUTTACK
was earning ₹10,000/- per month. Although the Petitioners later sought
to amend the claim to one under Section 163-A, no corresponding
amendment was sought to revise the stated income at that time.
11. A consolidated claim petition was thereafter filed. Issues were framed,
and evidence was adduced by both parties. Significantly, when the
Petitioner-wife of the deceased was examined as P.W.1 on 26.04.2022,
she reiterated in her examination-in-chief that the deceased was
earning ₹10,000/- per month. It was only after the conclusion of
evidence and at the stage of final arguments that the Petitioners, vide
application dated 28.02.2023, sought to amend the income to ₹5,000/-
per month.
12. The 3rd MACT-cum-ADJ, Jagatsinghpur, while rejecting the
amendment application, recorded that no material had been produced
in support of the proposed revision in income. Throughout the
pleadings and evidence, the income had consistently been stated as
₹10,000/- per month. No explanation was offered for the belated
attempt to alter the figure at the final stage.
13. A perusal of the record reveals that the amendment application was
filed after the close of evidence, at the stage of final arguments. No
reasonable justification for the delay was furnished, nor was any
material placed on record to demonstrate that the Petitioners, despite
due diligence, were prevented from seeking the amendment at an
earlier stage.
14. In the considered view of this Court, the amendment sought at such a
stage, unsupported by any cogent explanation or documentation, does
Location: ORISSA HIGH COURT, CUTTACK
not satisfy the threshold prescribed under the proviso to Order VI
Rule 17 CPC. The discretion to permit post-trial amendments is to be
exercised only in circumstances where compelling reasons are shown,
which is clearly not the case here.
15. This Court, therefore, finds no infirmity or perversity in the impugned
order.
V. CONCLUSION:
16. In light of the foregoing, this Court finds no merit in the Writ Petition.
17. The order of the 3rdMACT-cum-ADJ, Jagatsinghpur does not suffer
from any perversity, arbitrariness, or material irregularity warranting
intervention.
18. Accordingly, this Writ Petition is dismissed.
19. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 11th April, 2025.
