Civil Miscellaneous Appeal No.1337 of 1998

21st January, 2009

Petitioner Counsel: T. BHEEMSEN
Respondent Counsel: V. SREENIVASA RAO

Cases Cited:
United India Insurance Company Limited Vs. Shaik Saibaqtualla, 1992 ACJ 858 [Para PARA4,5]
Nagappa Vs. Gurudayal Singh, 2003 ACJ 12 [Para PARA5,7,8]
Shikharchand Vs. D.J. Karini Sabha, AIR 1974 SC 1178 [Para PARA6]
Anand Kumar Jain Vs. Union of India, 1986 ACJ 774 (SC) [Para PARA6]
Pasupuleti Venkateswarlu Vs. The Motor and General Traders, AIR 1975 SC 1409 [Para PARA8]
Kotturuswami Vs. Setra Veeravva, AIR 1959 SC 577 [Para PARA8]
Lachmeshwar Prasad Shukul Vs. Keshwar Lal Chaudhuri, AIR 1941 FC 5 [Para PARA8]

JUDGMENT

-This Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 (1988 Act, for brevity) is against the award, dated 26.11.1997 in O.P. No.434 of 1993 passed by Motor Accident Claims Tribunal, Eluru granting a sum of Rs.34,000/- for injuries.

2. The case of appellant is as follows. On 07.03.1993, he was travelling along with his wife and fourth respondent, who was the owner of the car, in Maruti Car bearing No.AP-7-T-2588 (insured of fifth respondent) from Guntur to Kakinada. Between Chebrolu and Kaikaram, oil tanker lorry bearing No.ATW-1002 dashed against the car resulting in serious injuries to petitioner. A criminal case being C.C. No.286 of 1993 on the file of the Additional Judicial Magistrate of First Class, Tadepalligudem, was taken cognizance of the case. He was admitted to hospital at Eluru. On 09.03.1993, he was shifted to a private hospital in Guntur, wherein his leg was operated. He was discharged on 30.03.1993. In spite of operation, he was not able to walk properly or sit properly. He required another operation for which he had to go to Madras. In his O.P., he claimed Rs.4,95,000/- towards loss of future earning capacity due to permanent disability, Rs.35,000/- towards medical treatment and extra nourishment, Rs.45,000/- for pain and suffering and Rs.25,000/- for loss of amenities. He also alleged that he was engaged in iron business earning a sum of Rs.5,000/- per month.

3. Respondents 1, 2 and 4 remained ex parte and respondent No.3, the insurer of oil tanker, contested the case. It was alleged that the driver of Maruthi Car rashly and negligently tried to overtake another vehicle and dashed against oil tanker, and therefore, appellant is not entitled for any compensation.

4. Learned Tribunal settled two issues for trial. The appellant examined P.Ws.1 to 4 and marked Exs.A.1 to A.54. No evidence was let in by insurer. On considering oral and documentary evidence, learned Tribunal believed the version of appellant and came to a conclusion that accident occurred due to rash and negligent driving of oil tanker lorry. The learned Tribunal, having regard to the fact that appellant underwent operation on 10.03.1993 before filing O.P., and subsequently also underwent operation at Madras after filing O.P., did not allow the amount claimed as per Exs.A.6 to A.39. In doing so, learned Tribunal applied the ratio laid down by this Court in United India Insurance Company Limited Vs. Shaik Saibaqtualla, 1992 ACJ 858. Learned Tribunal awarded an amount of Rs.1000/- each for four simple injuries and Rs.15,000/- for grievous injuries under all heads and Rs.15,000/- for partial temporary disability, thus totalling to Rs.34,000/-.

5. In this appeal, learned counsel for appellant relies on the evidence of P.Ws.3 and 4, and Exs.A.6 to A.39 to contend that as the appellant underwent major surgery after filing the O.P., learned Tribunal ought to have taken into consideration the amounts incurred by appellant for medical expenses. He also challenges the award on the ground that it denied loss of earning capacity and future earnings contrary to law. He relies on the decision of Supreme Court in Nagappa Vs. Gurudayal Singh, 2003 ACJ 12. Per contra, learned Standing Counsel for United India Insurance Company Limited submits that an amendment of O.P., cannot be allowed and even subsequent to filing O.P., the claimant incurred medical expenses for medical treatment, the same cannot be allowed. He relies strongly on Shaik Saibaqtualla's case (supra). In Shaik Saibaqtualla's case (supra), a Division Bench of this Court considered the question whether the petition for amendment of O.P., filed under Section 110-A of the Motor Vehicles Act, 1939 (1939 Act, for brevity) can be allowed.

6. The Division Bench after referring to Shikharchand Vs. D.J. Karini Sabha, AIR 1974 SC 1178 and Anand Kumar Jain Vs. Union of India, 1986 ACJ 774 (SC), took a view that as there is no provision in the 1939 Act for amending the O.P., after a period of limitation after filing O.P., if the claimant feels that he is entitled to relief, he has to file a fresh suit and claim damages or file a fresh petition if it is maintainable. The relevant observations are as follows.

Under the Motor Vehicles Act, there is no provision for amending the O.P., after the period of limitation for filing the O.P. Similarly there is no provision or rule, which allows an O.P. to be amended after the O.P., is decided. The facts, which are discovered subsequently cannot form the basis for seeking an amendment of the O.P. Another decision relied upon by the claimant's counsel is Anand Kumar Jain's case (supra). In this decision, the permanent disability of 50% was discovered after filing the original claim. Then amendment was sought for, for enhancement of the original claim. This was filed while the O.P., was still pending. Though the Claims Tribunal and the High Court negatived it, the Supreme Court, while allowing the amendment to the O.P., directed the respondents to file supplementary written statements and then get along with the trial. In the present case, the facts are totally different. The claim has been adjudicated and compensation awarded. The injured, on his own, went to United States with a fond hope that he can have a full care and underwent costly treatment. We are unable to understand how such remote actions can give rise to a cause of action for the injured claimant to seek amendment of the O.P. If the injured petitioner feels that he is entitled to relief, he has necessarily to file a fresh suit and claim the damages or if he thinks that a fresh petition is maintainable, he should file a petition and seek his remedy. It should also be remembered that the present amendment petition, which was filed on 06.10.1989 is hopelessly barred by time because the accident took place on 17.07.1983 and the claim has been adjudicated finally by the court on 3rd March, 1988. We are of the view that the amendment sought for cannot be allowed and C.M.P. No.18898 of 1991 has to be dismissed.

7. The view of the Division Bench of this Court, however, was rendered when the rule of limitation was strictly applied and there is no provision in 1939 Act for amending the original petition for damages. After Motor Vehicles Act, 1988, especially after amendment of the said Act by Central Act No.54 of 1994, there is no limitation for claiming damages, and therefore, the question has to be approached differently. In Nagappa's case (supra), a Division Bench of Supreme Court considered two questions, namely, whether one time payment of compensation to a poor agriculturist would be sufficient to meet future expenses and is it permissible under 1988 Act to grant recurring medical expenses to such a victim and secondly, whether the amendment to claim petition would be granted at appellate stage. Referring to various provisions of 1988 Act and Karnataka Motor Vehicles Rules, 1989, the apex Court held that, "though for future medical expenses, which are required to be incurred by the victim, a fresh award cannot be passed for such medical treatment, the Court has to arrive at a reasonable estimate on the basis of evidence brought on record, at the time of passing of award". Insofar as amending the petition for damages, the Court ruled as under.

"Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation.

Secondly, under Section 169, the Claims Tribunal in holding any inquiry under Section 168 is required to follow the rules that are made in this behalf and follow such summary procedure as it thinks fit. In the present case, it has been pointed out that Rule 253 of Karnataka Motor Vehicles Rules, 1989 empowers the Claims Tribunal to exercise all or any of the powers vested in a civil Court under the provisions of Code of Civil Procedure, 1908. Rules 254 inter alia makes specific provision that Order 6, Rule 17, CPC is applicable to such proceedings. In this view of the matter, in an appropriate case, depending upon the facts and evidence which has been brought on record and in the interest of justice, Court may permit amendment of claim petition so as to award enhanced compensation. Further, for amendment of the pleadings, it is settled law that unless it causes injustice to other side or it is not necessary for the purpose of determining real issue between the parties. Court would grant amendment. It is also to be stated that under the M.V. Act there is no time limit prescribed for claiming compensation. Therefore, there is no question of enhanced claim being barred by limitation."

8. Learned counsel for Insurance Company made an effort to distinguish Nagappa's case (supra) contending that Rule 253 of Karnataka Motor Vehicles Rules empowers the Claims Tribunal to exercise all or any of the powers vested in civil Court under the provisions of Order 6, Rule 17 of Code of Civil Procedure, 1908 (CPC) and therefore, Supreme Court came to the conclusion that amendment can be allowed. This Court, however, is not inclined to accept such a submission. It is no doubt true that Rules 253 and 254 of Karnataka Motor Vehicles Rules made CPC applicable in toto. There is no such provision in Andhra Pradesh Motor Vehicles Rules, 1989. The same, in the considered opinion of this Court, does not make any difference because under Section 168 of the 1988 Act, it is the duty of the Motor Accident Claims Tribunal to award 'just' compensation. 'Just compensation' means to compensate damage suffered by the victim or claimants. Just compensation is not gratis, it is a right of the victim/injured and the duty of the Tribunal to award just compensation would not be completed till the legal injury suffered by the victim/injured is completely compensated. For so doing, nothing prevents the Tribunal to allow amendment in appropriate case or take into consideration the events that occurred subsequent to filing of O.P. There is no gainsaying that every Court or Tribunal adjudicating civil law dispute cannot ignore the change in law or subsequent events. In Pasupuleti Venkateswarlu Vs. The Motor and General Traders, AIR 1975 SC 1409, after referring to Kotturuswami Vs. Setra Veeravva, AIR 1959 SC 577 and Lachmeshwar Prasad Shukul Vs. Keshwar Lal Chaudhuri, AIR 1941 FC 5, Supreme Court held as under.

"First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to event which stultify or render inept the decreetal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors of just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view."

9. In the case on hand, the appellant claimed a sum of Rs.6,00,000/- including a sum of Rs.4,95,000/- towards loss of earnings and earning capacity to permanent disability. He also claimed other sums, though much evidence was not let in on this aspect, evidence was let in to show that he underwent major operation and incurred expenditure. He examined P.W.4, who is Orthopaedic Surgeon and Administrative Director of Madras Institute of Orthopaedic and Traumatology, Chennai (MIO Hospitals, for brevity). To prove the expenditure incurred, the appellant marked Exs.A.5 to A.39. The total amount he incurred is Rs.1,56,007-98ps. This aspect of the matter is not seriously disputed by advocate for Insurance company. Indeed, the insurer did not lead any evidence except marking Ex.B.1, policy. In that view of the matter, the appeal has to be partly allowed.

10. The learned Tribunal awarded a sum of Rs.34,000/- being the total, Rs.15,000/- for grievous injuries, Rs.1,000/- each for four simple injuries and Rs.15,000/- for partial disability.

11. Having regard to the finding as above, the appellant would be entitled to a sum of Rs.1,56,000/- (rounded off) towards medical expenditure. In his O.P., he also claimed Rs.35,000/- towards medical treatment and extra nourishment. There is no evidence on record to show that he was in MIO Hospitals from 10.09.2003 to 24.10.2003, where he was operated, at which he suffered 50% disability. Therefore, a sum of Rs.25,000/- can be reasonably fixed as expenditure for medical treatment and extra nourishment. He also claimed a sum of Rs.40,000/- for pain and mental suffering. On this count, a sum of Rs.15,000/- can be allowed. He also claimed loss of amenities. Having regard to the calling of the appellant, he is an iron merchant, a sum of Rs.25,000/- can be granted. Insofar as loss of earning is concerned, except marking Ex.A.40, Income Tax Assessment Order, he did not produce any evidence regarding his income that an iron merchant cannot carry on its business with 50% disability is a thing, which has not been proved by the appellant. When the appellant took care to lead evidence regarding the medical treatment, he underwent operation after filing of O.P., he did not take any steps to adduce evidence regarding business loss or fall in the turnover of the business only due to disability suffered by him. However, a sum of Rs.25,000 is awarded. Thus the petitioner would be entitled a sum of Rs.2,46,000/-.

12. The appeal is accordingly partly allowed without any order as to costs.

Appeal partly allowed.