Allowed

Hdfc Ergo General Insurance Co. Ltd. v. Smt Poornima

Karnataka HC28 Mar 2023WP/579/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition and quashed the Motor Accident Claims Tribunal order refusing to amend a written statement. The Court held that the petitioners should be permitted to amend their pleadings to allege fraud regarding the insurance policy particulars, overriding the Tribunal's refusal to withdraw an admission.

What did the court decide?

The impugned order quashed; application for amendment allowed on costs of Rs.5,000/-; petitioner directed to file amended written statement.

Hdfc Ergo General Insurance Co. Ltd. Vs Smt Poornima — Insurance | Karnataka HC (2023)

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1 - WP No. 579 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO.579 OF 2018 (GM-AC)

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BETWEEN:

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HDFC ERGO GENERAL INSURANCE CO. LTD., CORPORATE OFFICE, 65^TH FLOOR, LEELA BUSINESS PARK, ANDHERI, KURLA ROAD, ANDHERL (E), MUMBAI-400 020. BY HDFC ERGO GENERAL INSURANCE CO LTD., II FLOOR, NO.25/1, BUILDING NO.2, SHANKARNARAYANA BUILDING, M.G.ROAD, BENGALURU-560 001, BY ITS MANAGER-CLAIMS -SOUTH SRI. V.R.JAYASHEKAR, AGE: 32 YEARS.

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…PETITIONER

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[BY SRI. O MAHESH.,ADVOCATE (VC)]

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AND:

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SMT POORNIMA, W/O LATE RAMESH @ PREMKUMAR, AGED ABOUT 31 YEARS, COOLIE, R/O MACHAGONDANAHALLI VILLAGE, ALDUR HOBLI, CHIKMAGALUR-577 802.

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Digitally signed by GURURAJ D Location: High Court of Karnataka

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MASTER SHASHIKUMAR, MINOR, S/O LATE RAMESH @ PREMKUMAR, AGED ABOUT 15 YEARS, STUDENT, R/O MACHAGONDANAHALLI VILLAGE, ALDUR HOBLI, CHIKMAGALUR-577 801,

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KUM KAVYA, MINOR, D/O LATE RAMESH @ PREMKUMAR, AGED ABOUT 13 YEARS, STUDENT, R/O MACHAGONDANAHALLI VILLAGE, ALDUR HOBLI, CHIKMAGALUR-577 801. RESPONDENTS NO.2 & 3 ARE MINORS, REP. BY THEIR MOTHER AND NATURAL GUARDIAN SMT.POORNIMA.

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MR. CHANDRA BABU, S/O GOPAL GOUNDER,

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WP No. 579 of 2018

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AGED ABOUT 39 YEARS, DRIVER OF TRACTOR, R/O ALADAGADDE, VASTARE HOBLI, CHIKMAGALUR TALUK-577 801.

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SMT. LAKSHMAMMA, W/O LATE BASAVAIAH, AGED ABOUT 59 YEARS, HOUSEWIFE, R/O KESAVINAMANE VILLAGE, AMBLE HOBLI, CHIKMAGALUR TALUK-577 801.

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MANAGER, UNITED INDIA INSURANCE CO. LTD., CHIKMAGALUR-577 801.

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SRI GANGADHARAPPA, S/O SURESHAPPA, MAJOR, R/O KUSHKOOR VILLAGE, MATTR POST, SHIVAMOGGA DISTRICT, OWNER OF TRAILER BEARING REG NO.KA-33-T-7479.

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…RESPONDENTS

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(BY NOTICE TO R4, R5 & R6 DISPENSED WITH; NOTICE TO R7 SERVED AND UNREPRESENTED, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 21.08.2017 PASSED BY THE COURT OF THE I ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, CHIKKAMAGALUR IN M.V.C.NO.91 OF 2014 AND PRODUCED AND MARKED AS ANNEXURE-'D'.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING B- GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Challenging order dated 21.08.2017 (Annexure-D),

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passed by I Additional District Judge and Motor Accident Claims

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WP No. 579 of 2018

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Tribunal, Chikkamagaluru in MVC.no.91/2014 (referred to as 'Tribunal' for short), this writ petition is filed.

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Sri O. Mahesh, learned counsel for petitioner submitted that respondents no.1 to 3 herein had filed MVC.no.91/2014 before Tribunal claiming compensation on account of death of Sri Ramesh, in accident occurred allegedly on account of actionable negligence on part of driver of tractor-trailor bearing registration nos.KA-18-T-2162 and KA-33-T-7479 belonging to respondent no.4. It was submitted that at time of filing claim petition, M/s. United India Insurance Co., Ltd., was arrayed as respondent no.3 on ground that it was insurer of offending vehicle. Subsequently, claim petition was amended and petitioner herein was impleaded. Thereafter on 12.01.2016, petitioner filed statement of objections based on available information.

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Subsequently, on verification of insurance policy as per particulars furnished in claim petition, it was found to be fake and not genuine, thereby indicating that claim petition was fraudulent. Immediately on 21.07.2017, I.A.no.9 was filed under Order VI Rule 17 read with Section 151 of CPC, to amend written statement by striking off paragraphs no.9, 10

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WP No. 579 of 2018

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13 and 14 and to add paragraphs to specifically aver about insurance policy number furnished in claim petition as false and fraudulent. Though, application was filed without any further delay and clearly stating that it was required to unearth fraud, without proper appreciation and merely on ground that petitioner was seeking to withdraw admission, application was rejected and same was unjustified and called for interference.

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On other hand, claimants are served and

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unrepresented.

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From above submissions, there is no dispute about claim petition having been filed by respondents no.1 to 3 claiming compensation on account of death of Sri Ramesh, in an accident involving tractor-trailor bearing registration nos. KA-18-T-2162 and KA-33-T-7479. While petitioner contends that amendment sought was necessary to bring out real controversy between parties and to unearth fraudulent claim; even when application was not opposed by claimants themselves, Tribunal proceeded to reject application on ground that amendment sought was for purposes of withdrawing admission which was impermissible.

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WP No. 579 of 2018

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The principles of law governing amendment of pleading are well laid out. Hon'ble Supreme Court in its decisions in B.K.Narayana Pillai v/s Parameswaran Pillai and Ors. , reported in 2000 (1) SCC 712 , Baldev Singh and Ors. v/s Manohar Singh and Anr. , reported in 2006 (6) SCC 498 and Sushil Kumar Jain v/s Manoj Kumar and Anr. , reported in 2009 (14) SCC 38, held that principle applicable for amendment of plaint would be equally applicable to written statement as well and Courts approach should be liberal and with intention to bring out real controversy between parties. It is also observed that insofar as application for amendment of written statement, approach should even be more liberal as defendants are also entitled to take inconsistent plea.

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In instant case, amendment is sought with intention of bringing out real controversy namely, entitlement of claimants for compensation from petitioner under alleged insurance policy. Especially when petitioner-insurer is contending that it has not issued insurance policy particulars of which were stated in claim petition and when insurer is seeking to contend that claim petition was fraudulent.

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WP No. 579 of 2018

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8. Learned Single Judge of High Court of Punjab and

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Haryana in case of Mahender Singh v/s Pawan Kumar ,

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reported in 2009 SCC OnLine P&H 6220 , has held:

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"General view is taken that intentional admissions made by the parties in the pleadings cannot be allowed to be withdrawn, but at the same time, it is also settled view that the admissions made by a party may be withdrawn or may be explained away, therefore, by an amendment, an admission of fact can be withdrawn in order to effectively adjudicate the dispute between the parties. It is also settled that the admissions against facts can be withdrawn at any time and it is not necessary for the applicant to disclose the reason as to why he wants to withdraw or abandon such facts. A similar point arose in case Bant Singh v. Kuldeep Singh and another , 1995(1) The Punjab Law Reporter 214 . If a party withdrawing the admissions alleged fraud and manipulation upon them in obtaining the admissions, then the party was at liberty to take such plea. A similar view was taken in case Harwinder Singh v. Balwinder Singh and others 2004 (3) The Punjab Law Reporter 126 = 2004 AIHC 4320 and M/s Mahendra Radio and Television, Meerut and another v. State Bank of India, AIR 1988 Allahabad 257 , wherein it was observed that an admission in the written statement, which is not the one on which the plaintiff could rely or which would bind the defendant or create a right in favour of the plaintiff,

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could not be disallowed to be amended. If any willful admissions are being withdrawn or the withdrawal was wrong, then the same could be examined by the Court at the time of arguments.

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Anyway, still the petitioners would prove that the admissions so made in the written statements were against the facts. The Trial Court has not taken into consideration the aforesaid aspect of the case and has outrightly dismissed the application on the assumption that the petitioners could not be allowed to withdraw the admissions, once made. The Court should not generally take such impression, but should look into the facts and circumstances, in which the written statement had been filed and why such admissions are being withdrawn."

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9. In another case of Sagar Singh Slathia v/s

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Surinder Pal Singh , reported in 2009 SCC OnLine P&H

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1047 , principles were summed up as follows:

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"8. To my mind, the conspectus of decisions bring out following propositions:-

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(i) Amendment of pleadings could be introduced under the circumstances which showed that there had been an accidental mistake or error that required to be rectified by appropriate altered pleadings or to bring to fore the changed circumstances or positions of law.

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(ii) The attempt of the Court shall always be to secure the truth and to advance the cause of justice. If any mistake had arisen in the pleadings, parties should be allowed to amend the pleadings.

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(iii) Admissions are the best form of evidence which a party can rely against the other, but such admissions could always be explained whether the admission was made under the circumstances that either vitiated the admission or explained the admission.

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(iv) The amendment of pleadings are brought out only to eliminate surprise at the trial for allowing the parties to make the correct statements of facts, so that no fact which what was intended to be sold is a core controversy and that could not have been undertaken, unless all the facts relating to the property in the manner in which the parties respectively understood"

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As in instant case, petitioner-applicant has pleaded that earlier admission was on account of illinformation and amendment was necessitated after discovering that insurance policy as per particulars mentioned in claim petition was not issued by it, same cannot be stated to be voluntary but against facts, which, in any case, would be

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WP No. 579 of 2018

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burdened to prove. It would also be available for petitioner to have filed additional written statement. Instead of circuitous process, which would delay adjudication of claim petition, it would be appropriate for this Court to set-aside impugned order and permit amendment, by suitably compensating claimants as they would be put to inconvenience due to restoration of stage of proceedings to framing of issues.

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Hence, I pass following:

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O R D E R

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i. Writ petition is allowed.

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ii. Impugned order dated 21.08.2017 (Annexure-D), passed by I Additional District Judge and Motor Accident Claims Tribunal, Chikkamagaluru in MVC.no.91/2014 is quashed.

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iii. I.A.no.9 filed under Order VI Rule 17 read with Section 151 of CPC is allowed on cost of Rs.5,000/-, which shall be paid by petitioner to claimants within period of four weeks or such further time as may be permitted by Tribunal.

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