Bakshish Singh vs Raj Kumar Alias Raju And Others

Satyen Vaidya, J

Having remained unsuccessful in getting any compensation from the Claims Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”), appellant has approached this Court by way of instant appeal under Section 173 of the Act.

A claim petition was filed by the appellant under Section 166 of the Act before the learned Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, H.P. (for short, “Claims Tribunal”) with a prayer to grant Rs.5,00,000/- as compensation. It was alleged that on 18.9.2008 appellant was hit by Jeep bearing No. HP-01D-0272 at Bus Stand Kuthera. The cause of accident was attributed to rash and negligent driving of Respondent No.1, who at the time of accident was alleged to be on the driving wheel of the offending vehicle. Appellant suffered injuries that resulted in his permanent disablement to the extent of 30%. Respondents No. 2 and 3 were impleaded as insured and insurer respectively of the offending vehicle. The appellant had also reported the matter to the police and on his report FIR No. 135 of 2008 dated 19.09.2008 was registered at Police Station, Ghumarwin, District Bilaspur, H.P.

Respondent No.1 in his reply denied the factum of accident. He denied that he had been driving Jeep No. HP-01D-0272. It was also denied that the said vehicle had not met with an accident on 18.9.2008.

The insured died during the pendency of the petition. His legal representatives were brought on record, who filed their reply and denied the factum of accident as alleged in the petition.

The insurer/respondent No.3 denied being insurer of vehicle No. HP-01D-0272. In alternative breach of policy was also pleaded.

The Claims Tribunal framed the following issues:

Whether the petitioner has sustained injuries in an accident which had taken place on account of rash and negligent driving of Jeep No. HP-01D-0272 by respondent No.1 Raj Kumar? OPP

If issue No.1 is proved in affirmative, whether the petitioner is entitled for compensation and if so, to what amount and from whom? OPP

Whether the claim petition is not maintainable? OPR

Whether the petitioner has no cause of action and locus standi to file the petition? OPR 1&2.

Whether the petitioner is estopped to file the petition on account of his acts, conducts, omissions and commissions? OPR-1.

Whether the petition is bad for non-joinder and mis-joinder of parties? OPR-1.

Whether the petitioner has not come to the Tribunal with clean hands, as he has suppressed material facts? OPR-2.

Whether the vehicle was being driven by a person who was not having valid and effective driving licence at the time of accident? OPR-3.

Relief.

Issues No. 1 to 3, 5 to 7 were decided in negative. Issue No.4 was decided in affirmative and issue No.8 was held to be redundant. The petition was accordingly dismissed.

Learned Claims Tribunal came to the conclusion that though the appellant was categoric about the involvement of vehicle (Jeep) bearing No. HP-01D-0272 in the accident but the vehicle with said registration number was neither a jeep nor was owned by respondent No.2. Reliance was placed on a document Ext.RW-1/A, which was the screen report of vehicle bearing No.HP-01D -0272. It was found that the said registration number was assigned to a Maruti Car owned by one Shri Bir Singh. Since, learned Claims Tribunal had found a huge discrepancy in the identification of vehicle allegedly involved in the accident, the version of appellant was disbelieved and the appellant was held not entitled to any compensation.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

Mr. Ashwani K. Sharma, learned Senior Counsel for the appellant submitted at the outset that the appellant was about 70 years of age at the time of accident and it was not unusual for a person at such age to have forgotten or fumbled with the registration number of the vehicle. He pointed out that though the appellant had filed two separate applications before the Claims Tribunal, one for amendment of the pleadings and the other for withdrawal of admission but both his applications were dismissed by the Claims Tribunal on 13.10.2015 and 15.10.2015.

The record reveals that the appellant had sought leave of the Claims Tribunal to amend his claim petition. The petition was sought to be amended by making a correction in the registration number of offending vehicle from HP-01D-0272 to HP-01B-0272. The basis for claiming such change was verification made by the appellant from the record of Police Station, Registration Certificate of the vehicle etc. Alongwith the application, the appellant had placed on record, a copy of report under Section 173 Cr.P.C. submitted by the police after investigation of FIR No.135 of 2008. In the said report, the number of offending vehicle was mentioned as HP-01B-0272. A copy of Registration Certificate of vehicle No. HP-01B-0272 was also filed, according to which, the vehicle with aforesaid registration number belonged to respondent No.2 (now deceased) and was a ‘Maxi Cab’ having seating capacity of 10 persons. Even a copy of policy of insurance purchased by respondent No.2 (now deceased) from respondent No.3 for the period 9.11.2007 to 8.11.2008 was placed on record. Thus, the appellant had placed sufficient material before learned Claims Tribunal to show that the number of offending vehicle earlier mentioned by him was not correct.

The application for amendment of petition filed by the appellant was dismissed by learned Claims Tribunal on 13.10.2015 for the reason that the appellant had not shown due diligence in pursuing the case and that the appellant throughout the trial of the case was sure about the registration number of the offending vehicle as HP-01D-0272, therefore, he could not raise belated plea of having mentioned the number by mistake. The appellant was simply disbelieved in his version.

The other application filed by the appellant was for withdrawal of admission. It was pleaded that due to the injury suffered by the appellant in the accident, he was not in a position to correctly remember the registration number and under a mistaken belief had mentioned it as HP-01D-0272 throughout the trial. The appellant, thus, had intended to withdraw his admission with respect to registration number of the offending vehicle.

The second application of the appellant was also dismissed by learned Claims Tribunal almost on the same grounds, which had weighed with the Tribunal while dismissing the application under Order VI Rule 17 of the Code of Civil Procedure.

Though, both the orders, as noticed above, were not challenged by the appellant, still, in the instant appeal, the legality and propriety of such orders can be looked into as, in my considered view, both the said orders have materially affected the decision of the case. Section 105 (1) of the Code of Civil Procedure, reads as under:

“105. Other orders. – (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”

In Wada Arun Asbestos Private Limited vs. Gujarat Water Supply and Sewerage Board (2009) 2 SCC 432, Hon’ble Supreme Court has held as under:

“15. Where a conditional leave is granted and the conditions therefor are not complied with, a judgment in favour of the plaintiff can be passed. It is not in dispute that the first appeal was maintainable. Where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal as envisaged under Section 105 of the Code of Civil Procedure.

We fail to persuade ourselves to agree with the contention of Mr. Chitale that although a revision from an order granting conditional leave was maintainable, the same could not have been a subject matter of challenge in an appeal from a decree as envisaged under Section 105 of the Code of Civil Procedure.”

The respondents have been absolved from liability to pay compensation to the appellant only on the ground that the identification of the offending vehicle was not proved. Had the application for amendment of claim petition been allowed, the appellant would have got the opportunity to bring on record additional facts which would have helped learned Claims Tribunal to decide the issues more effectively and completely.

Thus, taking into consideration the facts of the case as also the exposition of law as noticed above, the orders passed on 13.10.2015 and 15.10.2015 on applications of the appellant for amendment of pleadings and withdrawal of admission cannot be sustained. The appellant had made out a case for amendment in the pleadings. Learned Claims Tribunal has clearly erred in not appreciating that mere incorporation of new plea was not sufficient. The party pleading the fact had to discharge the burden of proving the pleaded facts also. In any case, the fact sought to be pleaded by appellant by way of amendment was relevant to the controversy and if allowed would not have changed the nature of the case. There was no need of substitution or addition of the parties even. Further, learned Claims Tribunal had not appreciated that the conduct of respondents No. 1 and 2 was not bonafide. They had nowhere disclosed that respondent No.2 was the owner of vehicle No. HP-01B-0272.

It can also be seen that the only difference between two numbers was of letters “D” and “B” which could easily be misunderstood by anyone more particularly a person at the age of appellant and when he was in trauma.

Learned Claims Tribunal had taken a very hyper-technical view on procedural aspect in a claim petition under Section 166 of the Act without considering that it was only an enquiry and not a trial in civil suit.

In light of what has been held above, both the above noticed applications of the appellant filed before the learned Claims Tribunal are allowed. The impugned award dated 02.11.2015 passed by learned Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, H.P. in MAC No. 16/2 of 2010 is set-aside and the matter is remanded back to the learned Claims Tribunal for deciding it afresh after affording the parties opportunity to complete the pleadings and thereafter to prove their respective contention(s) in accordance with law.

The parties are directed to appear before the learned MACT below on 31.08.2023 and records of the case be also sent back forthwith.

The appeal stands accordingly disposed of, so also the pending miscellaneous application(s), if any.