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IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Indra Kumar Jha - Appellant
Versus
Pramit B. Varak - Respondent
Writ Petition No. 37 of 2023
Decided On : 28-03-2023
AMENDMENT - Motor Vehicles Act - Sec. 163-A, Sec. 166 - The court discussed the provisions of Sec. 163-A and Sec. 166 of the Motor Vehicles Act, emphasizing that Sec. 163-A allows for compensation without the need to prove negligence, which is a significant departure from the requirements of Sec. 166. The court highlighted that the Tribunal's dismissal of the amendment application based on the absence of an FIR and the burden of proof was contrary to the beneficial nature of Sec. 163-A, leading to the decision to allow the amendment.
Fact of the Case:
The petitioner suffered an accident on 29/1/2017, resulting in the amputation of four fingers after being run over by a Tipper Truck driven by the respondent. The petitioner filed a claim under Sec. 166 of the Motor Vehicles Act, seeking to amend the claim to Sec. 163-A, which was dismissed by the Tribunal on the grounds of no FIR being registered and the burden of proof lying with the claimant.
Finding of the Court:
The court found that the Tribunal's reasoning for dismissing the amendment was flawed, as Sec. 163-A does not require proof of negligence or an FIR for compensation claims. The court recognized the beneficial intent of the Motor Vehicles Act and allowed the amendment to proceed.
Issues: Whether the Tribunal erred in dismissing the petitioner's application for amendment from Sec. 166 to Sec. 163-A of the Motor Vehicles Act based on the absence of an FIR and the burden of proof regarding negligence.
Ratio Decidendi: The court held that under Sec. 163-A, the claimant is not required to establish negligence, and the absence of an FIR does not preclude the amendment of the claim. The beneficial nature of the Motor Vehicles Act supports allowing the amendment to facilitate compensation.
Final Decision: The petition was allowed, the Tribunal's order was set aside, and the application for amendment was granted, with a directive to carry out the amendments within two weeks.
JUDGMENT/ORDER
1. Heard learned Counsel for the parties.
2. The challenge in this Petition is to an Order dtd. 23/11/2022 passed by the Member, Motor Accident Claims Tribunal (Tribunal for short), Mapusa, thereby dismissing the application filed by the claimant for amendment under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC).
3. The accident in question occurred on 29/1/2017. One scooter gave dash to the Petitioner's scooter due to which he fell down on the road. The front tyre from the driver's side of the Tipper Truck which Respondent No.1 was driving went over the left leg of the Petitioner resulting in amputation of his four fingers. The Petitioner filed a Claim Petition before the Tribunal under Sec. 166 of the Motor Vehicles Act, 1988 (M. V. Act, for short), against the Respondents herein being Claim Petition No. 63/2016.
4. On 19/11/2022, the Petitioner filed an application under Order VI Rule 17 of the CPC for amending his Claim Petition from Sec. 166 to Sec. 163-A of the Motor Vehicles Act, which application was not seriously objected to by the Respondent No.2-Insurance Company. An endorsement was made by the learned Counsel for the Respondent No.2 to the effect "I leave it to the Court to decide upon the present application". The Tribunal by the impugned Order dismissed the application for amendment for the reason that no FIR was registered against the Respondent No.1 and the driver is unknown. It is further recorded that as per the Claim Petition, the Petitioner-claimant has averred that the accident occurred due to rash and negligent driving of the Respondent No.1. The Tribunal observed that the burden is on the claimant to prove rash and negligence of the Respondent No.1.
5. I have heard the learned Counsel for the Petitioner as well as the learned Counsel for the Respondent No.2. Respondent No.1- cum-driver, is not represented before the Tribunal and there is no appearance on his behalf in this Petition. Affidavit of service has been duly filed.
6. Heard.
7. A reading of the impugned Order reveals that the request for amendment is rejected on the ground that no FIR has been registered against the Respondent No.1 and that the Petitioner-claimant pleaded that the accident is as a result of the rash and negligent driving of Respondent No.1. According to the Tribunal, the burden to prove the rash and negligent driving of Respondent No.1 is on the claimant.
8. The Petitioner prayed that he be allowed to amend the Claim Petition one under Sec. 166 of the M.V. Act to that of Sec. 163- A of the said Act. To appreciate the controversy, it would be material to re-produce Sec. 163-A and Sec. 166 of the M.V. Act, which reads thus :
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation : -For the purposes of this sub-sec., "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-sec. (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
...
Sec. 166 - Application for compensation.-
(1) An application for compensation arising out of an accident of the nature specified in sub-sec. (1) of Sec. 1
Sec. 163-A of the Motor Vehicles Act allows for compensation without the need to prove negligence, reflecting the Act's beneficial nature for claimants.
Amendment of a claim petition from S.166 to S.163-A is permissible since negligence need not be proven under S.163-A.
While the accident itself gives cause of action for relaxation of compensation under Section 163A-The cause of action for sustaining a claim under Section 166 is not merely the accident, but a tortio....
Amendment to change MV Act claim section allowed post-trial to protect compensation rights despite due diligence requirement.
The Amendment of claim petition under the Motor Vehicles Act does not prejudice the insurance company and should be expedited by the Tribunal.
Amendment under Order VI Rule 17 rejected as it introduced new inconsistent facts changing accident from passengers injured in rollover to workers crushed by rolling vehicle, altering cause of action....
The court's decision was based on the interpretation of the provisions of Sec. 163A of the Motor Vehicles Act and the precedent set by the Division Bench of the Court.
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