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IN THE HIGH COURT OF BOMBAY
K.J.ROHEE AND R.C.CHAVAN, JJ.
Ku. Asha D/o. Bhalchandra Joshi - Appellant
versus
National Insurance Company Limited - Respondent
LETTERS PATENT APPEAL NO.229 OF 2005 IN FIRST APPEAL NO.624 OF 2002.
Decided on: DECEMBER 12, 2007.
To sum up we hold that :
(a) Section 100-A of the Code of Civil Procedure would apply on to the proceedings governed by the Code.
(b) Proceedings under Sections 140 and 163-A or 166 of the Motor Vehicles Act are not governed by the Code and Claims Tribunal is not a Civil Court.
(c) Award by Tribunal is not a decree or order of a Civil Court.
(d) Such award is not a decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court.
(e) A single Judge of this Court hearing appeals under Section 173 of the Motor Vehicles Act from awards of Claims Tribunal consequently does not deliver a judgment in exercise of appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction.
(f) It would therefore follow that such judgment of single Judge would be subject to an appeal under Clause 15 of the Letters Patent.
Motor Vehicles Act, 1988 - Section 173-Appeal-Claim of compensation-Amendment in written statement-Insurer/Respondent provided insurance cover-Admitted-Amendment sought after 5 years to correct admission at one place leaving other admission in explicit terms intact-Tribunal rejected application-Allowed witness to dispose that admission in written statement by insurer due to oversight-Appeal allowed by single Judge-Matter remanded-Intra Court appeal-Correct facts not placed before single Judge-Matter remanded to single Judge to dispose of appeal finally based on material available.-The appellant/claimant has therefore preferred this appeal. As the facts recounted above would show, the respondent company had admitted having provided insurance cover to the vehicle at two places in its reply dated 29.4.1992. The amendment application dated 22.9.1997 sought to correct the admission only at one place, leaving other admission in explicit terms intact. Though the application was rejected by the Tribunal in fact the respondent’s witness Shri Lokhande had been permitted to depose that the company had not provided insurance cover to the vehicle and admission in the written statement was due to oversight. When the observations of the single Judge are seen in this background it would appear that the correct facts had not been unfolded before him. We have no manner of doubt that had the single Judge noticed that in spite of absence of pleadings the witness for the insurance company had been permitted to depose that insurance cover was not provided, the single Judge would not have been persuaded to remand the matter pertaining to disablement suffered by a twenty one year old girl in an accident in the year 1991 for a fresh trial in the year 2005 i.e. almost 14 years after the accident.
1. This appeal is directed against the judgment whereby the learned single Judge, deciding First Appeal No.624 of 2002, remanded the matter to the Motor Accident Claims Tribunal, Nagpur, for reconsidering the liability of insurance company to pay compensation for motor accident.
2. The facts in the context of which the learned Member, Motor Accident Claims Tribunal remanded the matter back are as under : On 11.04.1991 the appellant met with an accident by truck No.NLM-8876, which was allegedly insured with the respondent. She suffered sever injuries to her thigh, legs etc. One of her thighs was crushed. She had to undergo several operations and even after treatment was left disabled. She, therefore, filed petition claiming compensation before Motor Accident Claims Tribunal, Nagpur, against the owner of the truck and the present respondent/ insurer. She had stated in Clause 13 of paragraph 4 of her petition that the respondent had provided insurance cover to the truck under policy No.751 valid for 18.03.1991 to 17.03.1992, presumably as per information which she had received from the police papers. This petition filed on 11.10.1991 was accompanied by an application for compensation under Section 140 of the Motor Vehicles Act as well.
3. The respondent Insurance Company filed reply on 29.04.1992. It admitted the contents of Clause Nos. 12 and 13 in paragraph 4 of the petition. In addition in paragraph 12 of the reply the Company explicitly admitted that it had provided insurance to truck No.NLM 8876, though it denied that any such accident occurred due to the said truck.
4. The respondent company filed an application for amendment to the reply filed on 22.09.1997 i.e. Five years after the initial reply, whereby it sought to replace the word .admitted. appearing in paragraph 9 of the reply (to clauses 12 and 13 of the petition) by the word denied stating that the word .admitted. was a typing mistake due to oversight. There is however, no whisper about the admission in paragraph 12 of the reply where the respondent company had specifically stated that it admitted that respondent No.3 was insurer of truck No.NLM 8876. The learned Member, Motor Accident Claims Tribunal did not allow the application for amendment. By a pursis dated 07.08.2002 the respondent adopted the reply dated 29.04.1992 as the written statement.
5. Evidence of the petitioner and her witnesses was over by 07.08.2002. On 09.08.2002 on behalf of the respondent, its Administrative Officer Shri Lokhande, was examined as a witness. Though _ the amendment to the written statement had not been permitted this witness stated in his examination in chief that they had admitted in the written statement about the validity of the policy due to oversight. Thus, it is not that the respondent was not permitted to tender evidence about the absence of policy for want of pleadings. The learned Member, Motor Accident Claims Tribunal, upon consideration of the evidence tendered before him, awarded compensation of Rs.5,23,000/- to the appellant by his judgment dated 26th August, 2002 (i.e. about 11 years after the accident).
6. The respondent company challenged this judgment by preferring First Appeal No.624 of 2002 which came to be disposed of by impugned judgment dated 5th August, 2005 whereby the learned single Judge remanded the matter back to the Tribunal, allowing the application for amendment. The reasons given by the learned single Judge are to the following effect : ......It is also not in dispute that the insurance company had filed amendment application along with the notice to produce the insurance policy vide Exh.16 which were rejected by the Tribunal on 16/3/2003. Therefore, though the insurance company has admitted in the written statement that the truck was insured with it, this Court is of the considered opinion that it was not proper on the part of the Tribunal to reject the amendment application filed by the insurance company. Th
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