Amendment of a claim petition from S.166 to S.163-A is permissible since negligence need not be proven under S.163-A.

1. CM APPL.16903/2008 in FAO 458/2003
A Claim Petition under 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.

2. 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.

3. By virtue of this Application, the Appellants seek permission to amend the Petition so as to convert it to one under S.163 - A of the Act and claim compensation from the owner and Insurer of the Maruti Van No.DNB - 6745.

4. The Third Respondent, United India Insurance Company Limited opposes the Application (although no written reply has been filed).

5. It is urged by the learned counsel for the Appellants that the remedy under S.166 of the Act and 163 - A 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.

6. On the other hand, it is urged by Mr. Pankaj Seth, learned counsel for the Insurance Company that the Claim Petition under 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.

7. It is well settled that the Appeal is in continuation of the Suit. (Bay Berry Apartments (P) Ltd. & Anr. v. Shobha & Ors., 2006 (13) SCC 737 and Rachakonda Narayana v. Ponthala Parvathamma & Anr. 2001 (8) SCC 173).

8. 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 under S.163 - A of the Act and 166 of the Act cannot be pursued simultaneously. (As per: Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Limited, Baroda, AIR 2004 SC 2107 ).

9. The question for consideration is, if a Petition under S.166 of the Act is dismissed for want of proof of negligence on the part of the alleged tortfeasor, would a subsequent petition under S.163 - A on the same cause of action be barred? Admittedly, in the subsequent petition under S.163 - A 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 R.2 CPC as the claim under S.163 - A 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.

10. In the circumstances, I do not find any ground to decline the request for amendment of the Petition to one under S.163 - A 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 .

11. The Application is accordingly allowed. The Amended Petition is taken on record.

12. FAO 458/2003
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 no