Dismissed

New India Assurance Company Ltd. v. Sanjeev Kumar and Anr.

Punjab & Haryana HC8 Dec 2009CR/7164/2009

Case brief

AI extract

What is this about?

The High Court dismissed the insurer's revision petition. It held that the Claims Tribunal correctly allowed a bona fide amendment to correct a clerical error in the claimant's stated income. The amendment did not change the nature of the claim under Section 163-A; it merely rectified an inadvertent mistake.

What did the court decide?

The revision petition was dismissed. The impugned order of the Claims Tribunal allowing the amendment of the claim petition was affinned.

New India Assurance Company Ltd. Vs Sanjeev… — Motor Accident Claims | Punjab & Haryana HC (2009)

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Civil Revision No. 7164 2009 (O&M)

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In the High Court of Punjab and Haryana at Chandigarh

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Civil Revision No. 7164 2009 (O&M)

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Date of decision: 8.12. 2009

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The New India Assurance Company Ltd.

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......petitioner

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Versus

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Sanjeev Kumar and another

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.......Respondents

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CORAM: HON'BLE MRS. JUSTICE SABINA

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Present: Mr. V.Ramswaroop, Advocate. for the petitioner.

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SABINA, J.

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Claimant Sanjeev Kumar filed a petition under Section 163-A of the Motor Vehicle Act, 1988 (for short 'the Act') claiming compensation on account of the injuries suffered by him. Vide the impugned order dated 3.11.2009, the application filed by the claimant for permission to amend the claim petition was allowed. Hence, the present revision petition has been filed under Article 227 of the

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Civil Revision No. 7164 2009 (O&M)

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Constitution of India by the New India Assurance Company Limitedpetitioner.

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Learned counsel for the petitioner has submitted that the application for permission to amend the claim petition was liable to be dismissed as the same had been filed with a view to bring the claim petition under Section 163-A of the Act. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Gurmeet Singh vs. Chandigarh Transport Undertaking and others 2008 ACJ 2303, wherein it was held as under:-

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“9. I have considered the arguments raised by the learned counsel for the parties and find no force in the contention raised by learned counsel for the petitioner. The Division Bench of this Court in the case of Himachal Road Transport Corporation v. Baldev Kumar Nayyer, 2007 ACJ 678 (P&H) has been pleaded to lay down as under:-

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“(2)...... However, during the course of proceedings before the Claims Tribunal a prayer was made that the petitions be treated as petition under Section 163-A of the Act by restricting income of the deceased/injured to less than Rs.40,000/- per annum. The Tribunal accepted this prayer and has allowed the petitions by treating the same as

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Civil Revision No. 7164 2009 (O&M)

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petitions under Section 163-A of the Act.

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(3).......to contend that in view of the claim of the claimants themselves that the income of the deceased/injured was more than Rs.40,000/- per annum, the Claims Tribunal was not justified in treating the claim petitions to be petitions under Section 163-A of the Act and awarding compensation without going into the questions of negligence....”

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In view of the Division Bench judgment of this Court it has to be held that the persons whose annual income is more than Rs.40,000/- will not be entitled to invoke the provisions of Section 163-A of the Act as the same is a beneficial piece of legislation mean for a specified class of citizens. It is not open for a person to notionally scale down his income so as to invoke the provisions of Section 163-A of the Act, and, therefore, to defeat the very object of Section 163-A of the Act. Therefore, the learned Tribunal was right in dismissing the application moved by the petitioner which does not call for any interference by this Court in exercise of revisional jurisdiction.”

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After hearing learned counsel for the petitioner, I am of

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the opinion that there is no ground for interference by this Court. In the present case, the claim petition has been filed

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Civil Revision No. 7164 2009 (O&M) 4 under Section 163-A of the Act. The claimant had stated in the claim petition that his monthly income was Rs. 15,000/- per month. In the application for permission to amend the claim petition, it has been stated that due to oversight and inadvertence, in column No.5 of the claim petition, it had been mentioned that monthly income of the claimant was Rs.15,000/- per month, whereas, in fact, the income of the claimant was Rs.3,000/- per month.

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It has been held by the Apex Court in Revajeetu Builders and Developers vs. Narayanaswamy and sons and others (2009) 10 SCC 84, wherein it was held as under:-

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“The Courts have very wide discretion in the matter of amendment of pleadings but Court's powers must be exercised judiciously and with great care. While deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

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The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the court's discretion in grant or refusal of the amendment.

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Civil Revision No. 7164 2009 (O&M)

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The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite site.

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Some basic principles which ought to be taken

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into consideration while allowing or rejecting the application for amendment are: (i) whether the amendment sought is imperative for proper and effective adjudication of the case: (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The fact that the claim is barred by the law of limitation is but one of the actors to be taken into account by the court in exercising the discretion as to whether the amendment should be

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Civil Revision No. 7164 2009 (O&M)

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allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.”

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In the present case, the claimant has sought amendment in the claim petition qua column No.5 relating to his monthly income. The claimant is a barber and had pleaded initially that his monthly income was Rs.15,000/- per month. However, in the application, it has been averred that this was due to inadvertence as in a previous petition of some other person, the income had been mentioned as Rs.15,000/- per month and consequently, the same income was mentioned qua the claimant at the time of filing of the claim petition, whereas, the claimant was only earning Rs.3,000/- per month. The claimant has filed the claim petition under Section 163-A of the Act. At the time of initial filing of the claim petition, the claimant could have claimed Rs.3,000/- per month as his income. It is not a case where the claimant wants to convert his claim petition from Section 166 of the Act to Section 163-A of the Act. The claim is also not barred by limitation. In the facts and circumstances of the present case, the learned Tribunal had rightly allowed the application for permission to amend the claim petition as the mistake in the column of income was due to inadvertence. The judgment relied upon by learned counsel for the petitioner fails to advance the case of the petitioner as the same is on different facts.

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Civil Revision No. 7164 2009 (O&M)

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Hence, the impugned order does not suffer from any material irregularity and illegality warranting interference by this

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Court.

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Accordingly, this petition is dismissed.

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(SABINA) JUDGE

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