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2012 Supreme(Del) 3286
IN THE HIGH COURT OF DELHI
G.P. Mittal, J.
Hemlata & Ors. - Appellants
Vs.
Vipin Kumar & Others - Respondents
FAO 458 of 2003
Decided On : 02-07-2012
Advocate Appeared:
For the Appellants : Diwan Singh Chauhan
For the Respondents: Pankaj Seth
The involvement of the vehicle is crucial for awarding compensation under section 163A of the Motor Vehicles Act, and the structured formula in the Second Schedule determines the compensation amount.
Headnote:
Motor Vehicles Act - Amendment of Petition - 166 of the Act, 163A of the Act - 166 - 163A - 166, 163A
Fact of the Case:
A Claim Petition u/s 166 of the Motor Vehicles Act, 1988 was dismissed due to lack of proof of negligence. Appellants sought permission to amend the Petition to one u/s 163A of the Act. The Appeal was directed against the judgment dismissing the Claim Petition.
Finding of the Court:
The Court allowed the conversion of the Petition u/s 166 of the Act to one u/s 163A of the Act. It concluded that the involvement of the vehicle was established, and compensation was awarded as per the structured formula given in the Second Schedule to the Motor Vehicles Act.
Issues: The issues framed by the Claims Tribunal included the cause of the accident, negligence of the drivers, and entitlement to compensation.
Ratio Decidendi: The subsequent petition u/s 163A of the Act was not barred, and the involvement of the vehicle was sufficient for awarding compensation. The Court relied on legal provisions to determine the compensation amount.
Final Decision: The Appeal was allowed, and the Insurance Company was directed to deposit the enhanced compensation along with interest with the Claims Tribunal.
G.P. Mittal, J.
CM APPL.16903/2008 in FAO 458/2003
1. A Claim Petition u/s 166 of the Motor Vehicles Act, 1988 (the Act) was preferred by the Appellants claiming compensation for the death of Arjun Singh (the Appellants' son) in a motor accident involving Maruti Van No.DNB-6745 and a truck No.DHG-8486, allegedly owned by the Fourth Respondent. During inquiry before the Motor Accident Claims Tribunal (the Claims Tribunal), it was found that there was no truck with the number DHG-8486. Since the negligence was also not proved against the driver of Maruti Van No.DNB-6745, the Claim Petition was dismissed on the ground that negligence was not proved.
2. By virtue of this Application, the Appellants seek permission to amend the Petition so as to convert it to one u/s 163A of the Act and claim compensation from the owner and Insurer of the Maruti Van No.DNB-6745.
3. The Third Respondent, United India Insurance Company Limited opposes the Application (although no written reply has been filed).
4. It is urged by the learned counsel for the Appellants that the remedy u/s 166 of the Act and 163A of the Act cannot be availed simultaneously. Since the Appellants were unable to prove the involvement of the other vehicle, which was responsible for causing the accident, the Appellants must be permitted to amend the Petition.
5. On the other hand, it is urged by Mr. Pankaj Seth, learned counsel for the Insurance Company that the Claim Petition u/s 166 of the Act having been dismissed on merit; it is too late for the Appellants to make a request for conversion of the Petition.
6. It is well settled that the Appeal is in continuation of the Suit. Bay Berry Apartments Pvt. Ltd. and Another Vs. Shobha and Others, AIR 2007 SC 226 and Rachakonda Narayana Vs. Ponthala Parvathamma and Another, AIR 2001 SC 3353.
7. The law on amendment of pleadings is very liberal. The amendment of pleadings can very well be allowed even during the pendency of an Appeal, in the interest of justice and in order to effectively and finally determine the rights of the parties. It is well settled that the proceeding u/s 163A of the Act and 166 of the Act cannot be pursued simultaneously. (As per Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385.
8. The question for consideration is, if a Petition u/s 166 of the Act is dismissed for want of proof of negligence on the part of the alleged tortfeasor, would a subsequent petition u/s 163A on the same cause of action be barred? Admittedly, in the subsequent petition u/s 163A of the Act, the Claimant would not be required to prove and plead the negligence. The subsequent petition would not be barred under Order II Rule 2 CPC as the claim u/s 163A of the Act was not permissible in the earlier petition. The finding in the earlier petition would also not be res judicata against the Claimant, unless a finding is given by the Court that the vehicle alleged to be involved in the accident was not so involved.
9. In the circumstances, I do not find any ground to decline the request for amendment of the Petition to one u/s 163A of the Act. Rather, allowing the application for amendment would sub serve the cause of justice in social welfare legislation like the Motor Vehicles Act, 1988.
10. The Application is accordingly allowed. The Amended Petition is taken on record.
FAO 458/2003
11. The Appeal is directed against the judgment dated 24.04.2003 passed by the Claims Tribunal whereby a Claim Petition was dismissed on the ground that the negligence on the part of the driver of Maruti Van No.DNB-6745 was not established.
12. While dealing with the CM APPL.16903/2008, I have allowed the conversion of the Petition u/s 166 of the Act to one u/s 163A of the Act.
13. During inquiry of the Claim Petition, the Claims Tribunal framed the following issued:-
1. Whether deceased Arjun Singh died in the accident in question?
2. Whether the accident in question took place due to rash and negligent driving on the pa
