ORDER
C.V. Ramulu, J.
1. This civil revision petition is filed under Article 227 of the Constitution of India being aggrieved by an order dated 3-8-2005 made in I.A.No.339 of 2005 in O.P. No. 768 of 1999 on the file of the learned Motor Accidents Claims Tribunal-cum-IV Additional District Judge (FTC), Mahaboobnagar.
2. Petitioner - National Insurance Company Limited is the 2nd respondent in the claim petition (O.P.) filed by respondents 1 and 2 herein. Respondent No. 3 herein is the 1st respondent in the claim petition. The said LA. was filed seeking to amend the provision of law in the Claim Petition from Section 166 to Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act'). After hearing both sides, the Tribunal allowed the above LA. Aggrieved by the said order, the present civil revision petition is filed by the Insurance Company.
3. Sri T. Mahender Rao, learned Counsel for the petitioner, strenuously contended that the Court below has grossly erred in holding that there is no prohibition under the Act for conversion of provision of law from Section 166 to Section 163-A of the Act. In fact, a petition under Order VI, Rule 17 of the Civil Procedure Code is not maintainable in view of Rule 473 of the A.P. Motor Vehicle Rules, 1989. Even otherwise, the proviso to Order VI, Rule 17 of CPC makes it clear that no application for amendment shall be allowed after the trial has commenced. In the instant case, the trial was concluded and the matter was posted for arguments. At that stage, the present application ought not to have been entertained by the Tribunal. The conversion of provision of law from Section 166 to Section 163-A of the Act completely changes the nature of the claim; therefore, such a change in the provision of law could not have been permitted, particularly, at that belated stage. The proof that required for a claim under Section 166 of the Act is altogether different from a claim under Section 163-A of the Act. In a claim petition filed under Section 166 of the Act, proving of negligence is a must, whereas Section 163-A of the Act is a special provision made for the purpose of a claim as if something akin to 'no fault liability'. Respondents 1 and 2 herein let in the evidence and having realized that they may not be able to prove the negligence on the part of the Driver of the lorry, have conveniently sought for amendment of provision of law in making the claim, which is not permissible under the law. No option is available to the claimants for amendment of provision of law and even the Tribunal also cannot alter the provision of law. Conversion sought for by the claimants is only to overcome the proof of negligence. The Tribunal has erroneously ordered the petition for altering the provision of law in the claim petition. Therefore, the order of the Tribunal is liable to be set aside. In support of his contentions, he relied upon the judgments reported in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 (3) ALD 81 (SC) : 2004 ACJ 934; Nagappa v. Gurudayal Singh and Ors. : 2003(1)ALD1 ; V. Kalpana v. P. Venugopal Reddy : AIR2005AP484 ; Akula Rajaiah v. Kannamalla Krupamma : 2005(2)ALD41 and Rakesh Bhatia v. G. Parimala : 2005(4)ALD461 .
4. Per contra, Mr. Noushad Ali, learned Counsel for the respondent-claimants supported the impugned order and submitted that, in fact, in the claim petition filed and the allegations made therein, though an incidental act of negligence was attributed to the driver of the lorry, the purport of the claim petition was only to seek compensation under Section 163-A of the Act. Mentioning of provision of law in the claim petition as Section 166 of the Act is only a mistake by oversight. Therefore, the Tribunal has rightly ordered the petition as prayed for. Further, the contention of the learned Counsel for the petitioner that the provisions under Order VI, Rule 17 of CPC have no application to the proceedings before the Tribunal is not correct and Rule 473 of the A.P. Motor Vehicles Rules is only a general provision and it does not exclude the Tribunal from exercising the powers of this nature. The power of the procedures need not be conferred specifically and in the absence of specific exclusion, the Tribunal is empowered to entertain such an application to meet the ends of justice.
5. I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the impugned order and other material made available on record.
6. Before going into the merits of the case, it may be necessary to notice the pleadings in the O.P. filed under Section 166 of the Act.
It is the case of the claimants that the husband of the 2nd respondent herein died in a motor accident. The deceased -Mohd. Yousufon 25-1-1998 went to attend repair works of lorry bearing registration No. MP-14-C-1552 in the outskirts of Narayanpet and while repairing the said lorry at 1800 hours, due to negligent act of the driver of the said lorry, suddenly it came reverse towards downwards and turned turtle, as a result of which, the deceased came under the lorry and died on the spot. The claimants stated that due to sudden and unexpected accidental death of the deceased, they suffered mental agony and lost earnings and love and affection of the deceased. Respondent No. 1 herein lost her old-age source of income. Respondent No. 2 lost her life partner at her early age. Due to unexpected death of her husband-Mohammed Yousuf, they became helpless and were thrown on roads and a compensation of Rs. 3,00,000/- was claimed stating that the deceased used to work as Heavy Goods Vehicle Mechanic and used to earn Rs. 10,000/- per month and the same was being contributed to the family.
7. Before the Tribunal, the owner of the vehicle remained ex parte. A counter-affidavit is filed by the 2nd respondent (petitioner herein) before the Tribunal stating that the Insurance Company does not admit that the alleged accident occurred due to the negligent act of the driver of the said lorry and the claimants are put to strict proof of the same.
8. During the trial, claimant No. 2 (wife) was examined as P.W.1 and the alleged eye-witness as P.W.2. The Insurance Company did not examine any witness nor adduced any documentary evidence. At that stage, the present application in I.A.No.339 of 2005 was filed under Order VI, Rule 17 of the Civil Procedure Code seeking to amend the provision of law in the claim petition from Section 166 to that of Section 163-A of the Act. In the affidavit filed in support of the said I.A., it was stated that 'the above matter is coming up for arguments. At the time of filing of this claim petition, the provision of law under Section 166 was mentioned instead of Section 163A mistakenly; as such, the section of law is necessary to be amended. Hence, I request the Hon'ble Court to allow me to amend the provision of law from Section 166 to Section 163-A of Motor Vehicles Act in the claim petition; otherwise, I shall be put be irreparable loss.' This was only the pleading seeking for amendment of the provision of law. For this, a counter-affidavit has been filed by the Insurance Company stating as under :
The petition under counter is filed for change of provision of law i.e., from Section 166 to Section 163-A and the same will alter the entire case. Already, the petitioner has examined P.Ws.1 and 2 to prove the negligence of respondent No. 1 and hence, at this belated stage, the petition under counter is not maintainable. The affidavit is filed by the party, who is an illiterate and unaware of the provision of law under which the matter has to be filed; hence, she cannot file the same.
After hearing both the parties, the Tribunal held as under:.In the present case, no award is passed under s. 166 M.V. Act. The Act provides clear option to the claimants to claim compensation under any of the above two provisions. There is no prohibition under the Act for conversion of provision of law from under Sections 166 to s. 163-A of the Act.
It is also necessary to notice the relevant provisions of law i.e. Sections 163-A and 166 of the Act and Rule 473 of the A.P. Motor Vehicles Rules, which read thus :
163-A. Special provisions as to payment of compensation on structured-formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule, to the legal heirs or the victim, as the case may be.
Explanation.-For the purposes of this subsection, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased, or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be :
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed :
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) x x x
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.
Rule 473 of the A.P. Motor Vehicles Rules 473. Code of Civil Procedure to apply in certain cases :-The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be, apply to proceedings before the Claim Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXVIII, Rules 1 to 3.
Intention of the parties vis-a-vis Section 163-A of the Act
9. A plain reading of the pleadings noticed above would suggest that the allegation that the 'negligent act of the driver' in causing the death of the deceased is only casual and not seriously made to prove that the driver of the lorry was rash and negligent in his driving etc. In fact, except saying the above words, there is no other averment in support of such negligent act in the claim petition. Therefore, it cannot be said that the claim petition was filed only under Section 166 of the Act and not under Section 163-A of the Act. This is further strengthened when the evidence of P.Ws. 1 and 2 is noticed. P.W.1 in her chief-examination deposed that:
On 21-5-1998, the deceased Mohd. Yousuf went to attend repairs work of lorry bearing No. MP-14 C-1552 in the outskirts of Narayanpet and while repairing the said lorry, at 1800 hours, due to negligent acts of the driver of the said lorry, suddenly it came reversed towards downwards approximately 360 feet and turned turtle, as a result, the deceased, who was repairing it, came under the said lorry and died on the spot.
In the cross-examination by the petitioner herein i.e., Insurance Company, she stated that:.I am aged about ,40 years. He was a Mechanic, but I do not know under whom my husband is working. I do not know how the accident occurred and I am not eyewitness to the accident. It is not true to suggest that the accident occurred not due to negligence of the driver of the lorry. It is true that the police filed final report stating that there is no negligence on the part of lorry driver. It is true that I have not filed any document in proof to show the income of my husband. It is not true to suggest that the accident occurred due to the negligence of my husband and not due to negligence of the driver. It is not true to suggest that the claim is excessive and exorbitant and I am not entitled to the same.
P.W.2, the alleged eye-witness, stated in his chief-examination as under:
On 25-1-1998, I accompanied with the deceased Mohd. Yousuf, the Heavy Goods Vehicle Mechanic and went to attend the repair work of lorry No. MP-14-C 1552 in the outskirts of Narayanpet and while repairing the said lorry, at 1800 hours, due to negligent acts of driver of the said lorry, suddenly, the said lorry came reversed towards downwards approximately 360 feet and turned turtle; as a result of which, the deceased came under the said lorry and died on the spot.
In his cross-examination by the Insurance Company, P.W.2 deposed that:
At the time of accident I was present along with the deceased and the police came and recorded my statement. I have given complaint to the police regarding the accident. I am a tailor by profession. The deceased is my friend. The deceased Yousuf was doing repair work underneath the lorry. At that time, the driver of the lorry was sitting in the driver's seat, suddenly the lorry went on reverse direction upto 200 yards. Witness adds that the deceased Yousuf died on the spot. The lorry fell down under the ditch by the road side. I do not know whether there is a cleaner at that time in that lorry. It is true that my name is not cited as a witness to the accident in the final report submitted by the police, I do not know, whether the brother of the deceased cited my name in the complaint or not. It is not true to suggest that I have not witnessed the accident and I have not accompanied with the deceased on that day and I am deposing false to help the family members of the deceased.
10. From the above, it cannot be said that the intention of the claimants was to prove the negligence on the part of the driver and claim compensation under Section 166 of the Act. Therefore, it cannot be said that the petition to amend the provision of law is not maintainable.
11. Here, it may be noticed that a specific Form is prescribed for a claim under Section 166 and for a claim under Section 140 of the Act (Rules 455 and Rule 466 respectively). No proforma is prescribed for a claim petition to be filed under Section 163-A of the Act. Therefore, the argument of the learned Counsel for the petitioner that since the form as prescribed under Section 166 of the Act (Rule 455 Form-CID) was filed, it cannot be construed that it was a claim petition as required under Section 166 of the Act only. What all needs to be seen for the purpose of a claim petition is the intention of the parties. From the pleadings and the evidence of P.Ws.1 and 2, as stated above, it is very clear that there was no intention on the part of the claimants to prove a particular negligent act on the part of the driver of the lorry for claiming compensation. Therefore, the contention of the learned Counsel for the petitioner that P.W.1 admitted in her cross-examination that she did not know how the accident occurred and she was not an eye-witness to the same, but she denied the suggestion that the accident occurred not due to the negligence of the driver of the lorry and only at that stage, the claimants have realized that they may not succeed if the claim is continued under Section 166 of the Act and sought for amendment, cannot be accepted. In the instant case, the pleadings and the evidence of P.Ws.1 and 2 show that the intention of the claimants is only to prove the factum of accident and not the negligence. As such, the contention of the respondent-claimants that there was a mistake, which is inadvertent, in quoting the provision of law in the claim petition filed by them cannot be said to be incorrect.
12. The judgments relied upon by the learned Counsel for the petitioner have no application to the facts of this case. Deepal Girishbhai Soni's case (supra) is a case where a petition under Section 163-A of the Act was filed and the claimants therein were awarded compensation. Thereafter, they sought to pursue their claim under Section 166 of the Act treating the amount of compensation awarded as interim compensation. Claimants therein contended that actual loss suffered was not adjudicated upon and merely 'adequate compensation' under structured formula has been paid and exercise of option was limited only to claim under Section 163-A or Section 140 of the Act and the remedy under Section 166 is not barred. While considering this, the Apex Court held that Section 163B of the Act provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the mind of the parties to the Us having regard to the fact that both relate to the claim on the basis of no fault liability. It was also held that having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claim either under Section 163-A or Section 166 of the Act does not arise and if the submission of the learned Counsel is accepted, the same would lead to an incongruity. The learned Counsel stressed that while making an analysis and while posing a question to itself, the Court held that if in a given case, the Tribunal upon consideration of relevant materials comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty to award compensation in terms of Section 163 thereof. This was considered in the light of an example that if in the proceedings under Section 166 of the Act, after obtaining compensation under Section 163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refused to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of a structured formula The Apex Court answered the said two questions in negative. Taking inspiration from this, the learned Counsel for the petitioner submitted that, in the case on hand, the claim petition is filed under Section 166 of the Act and since the claimants apprehended, after the evidence was closed, that there was no evidence to prove negligence on the part of the driver and they may not succeed under Section 166 of the Act, they sought conversion of the provision of law to that of Section 163-A of the Act, which is not permissible.
13. In the aforesaid case, the question as to what are the pleadings and what is the evidence of the parties have not come up for consideration. In the instant case, only the provision of law is sought to be corrected in the claim petition and not the pleadings as such. For example, in a given case, where even in a petition filed under Section 163-A of the Act negligence is attributed, the very pleadings can be ignored and non-proving of the negligence is of 'no consequence'. Therefore, the intention of the parties and the pleadings must be looked into in a case like this, where the provision of law is sought to be amended. The intention of the claimants in the O.P. is only to claim compensation under Section 163-A of the Act.
Amendment vis-a-vis Order VI, Rule 17 of CPC
14. As stated above, the contention of the learned Counsel for the petitioner is that a petition under Order IV, Rule 17 of the Civil Procedure Code is not maintainable, in this case, in view of Rule 473 of A.P. Motor Vehicles Rules. In support of his contention, he relied upon by the decision in Nagappa's case (supra), wherein the Apex Court held as under :
10. Thereafter, 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.
11. 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. Rule 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 the 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.
He also submitted that Rule 253 of the Karnataka Motor Vehicles Rules, 1989 empowers the Claims Tribunal to exercise all or any of the powers vested in a civil Court under the provision of the Code of Civil Procedure, 1908. Rule 254 thereof inter alia makes specific provision that Order VI Rule 17 of CPC is applicable to such proceedings. Therefore, it was held that the Tribunal can order for amendment. Whereas in the A.P. Motor Vehicles Rules, 1989 under Rule 473, as noticed above, CPC is made applicable only to a limited extent and Order VI, Rule 17 proceedings are not contemplated therein. Therefore, the petition itself under Order VI, Rule 17 of CPC is not maintainable. Whereas, the learned Counsel for the respondent-claimants stated that firstly Rule 473 of the Rules does not exclude the Tribunal to exercise the power under Order VI, Rule 17 of CPC. What all it contemplates is that CPC is applicable insofar as certain provisions are concerned. This itself does not mean that the applicability of the procedure, which is a handmaid, to advance justice is excluded from the purview of the Tribunal while deciding the matter arising out of accident claims. Even otherwise, strictly speaking, in the instant case, it is not the pleadings' that are sought to be amended, but it is only a correction of wrong mentioning of a provision of law, while making the claim. No part of the pleadings are sought to be amended. Therefore, even under Section 151 of CPC the Tribunal is empowered to permit the parties to make correction of the provision of law.
15. Learned Counsel for the petitioner also relied upon the judgment reported in Kalpana 's case (supra) wherein it was held that a party cannot be permitted to amend his pleading taking a diametrically opposite plea to the plea taken earlier. He stated that taking of diametrically opposite pleadings is not permissible even assuming that an amendment as contemplated under Order VI, Rule 17 of CPC is permissible. I am of the view that in this case, since no pleadings are sought to be amended, the only amendment/correction sought to be made is of the provision of law. Therefore, it cannot be said that there is diametrically opposite pleadings are available in this case, which alters the very nature of the claim, if the provision of law is altered. Likewise, the judgments in Akula Rajaiah 's case (supra) and Rakesh Bhatia's case (supra) have no relevance to the facts of this case.
16. In the case relied upon by the learned Counsel for the respondent in National Insurance Co. Ltd. v. Mukeshbai Bhalchandrabhai Jani ; the right to exercise option of converting proceedings under Section 166 to that of Section 163-A of the Act was considered. While considering such a question, it was held that claimants can exercise the option between the two provisions to claim compensation, at any stage of proceedings, including appellate stage by moving an amendment application. However, learned Counsel for the petitioner states that in the said case, the judgment of Karnataka High Court in Guruanna Vadi v. General Manager, K.S.R.T.C. : AIR2001Kant275 , was followed and in the case of Karnataka High Court, there is a provision under the Motor Vehicles Rules i.e., Rule 248 enabling the parties to seek amendment. Since there is no such provision in the A.P. Motor Vehicles Rules, the said decision has no relevance to the facts of this case. In view of the above discussion, the contention of the learned Counsel for the petitioner cannot be accepted.
17. Learned Counsel for the respondent-claimants also relied upon an unreported judgment of this Court in Civil Revision Petition No. 6331 dated 2-1-2006 and submitted that it is well settled that the Civil Procedure Code is a part of adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it and when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done by taking advantage of the technical pleas. I am in full agreement with the submissions made by the learned Counsel for the respondents in this regard.
18. From the above discussion, it is clear that when two provisions are available, the claimants can exercise option to pursue any of the said provisions or the Court itself may decide on its own or the claimants can move the Court for amendment of his claim petition from that of Section 166 to that of Section 163-A of the Act at any stage of the proceedings and it is for the concerned Court/Tribunal to pass an order on that application in accordance with law, provided the claimant satisfies the other conditions i.e., the factor of income etc. In this case, as noticed above, the very pleadings in the claim petition filed under Section 166 of the Act do not satisfy the ingredients of that section. Admittedly, the standard of proof as required under Section 166 of the Act is much higher than that is required under Section 163-A of the Act. Further, the Act indisputably is in the nature of a social welfare legislation. Hence, all the provisions of the Act are to be interpreted in advancement of justice in favour of a claimant as required, by exercising discretion judiciously, unless the facts do not inspire the confidence of the Court. Therefore, I am of the opinion that the intention of the respondent-claimants is only to file an application under Section 163-A of the Act, in the absence of description of the nature of negligent act of the driver and whether it is a petition under Order VI, Rule 17 of CPC or under Section 151 of CPC makes no difference. In the facts and circumstances of the case, the petition filed under Order VI, Rule 17 of CPC also can be treated as a petition under Section 151 of CPC. Therefore, I am of the view of that the Tribunal has not committed any error in passing the impugned order. No grounds are made out to interfere with the impugned order in exercise of the powers of this Court under Article 227 of the Constitution of India.
19. For all the above reasons, the civil revision petition is devoid of merits and liable to be dismissed; accordingly, dismissed. No order as to costs.