Full Judgment
K.T. Thomas, J.
1. In a motor accident which happened on 9.6.1974, the appellant sustained injuries. The Motor Accidents Claims Tribunal awarded a sum of Rs. 33,000/- as compensation and directed the owner and driver of lorry TNE 421 to pay the awarded sum with interest at the rate of 6 per cent per annum from the date of claim petition. Dissatisfied with the amount awarded, this appeal has been filed by the appellant.
2. The appellant and his wife were travelling in a taxi car along the national highway. As the car reached the scene of accident, the lorry, which came from the opposite direction, collided with the taxi car. Among the injuries which appellant sustained, the serious one was a penetrating injury in his left eye, besides a lacerated wound starting from root of nose extending up to the left eyebrow, cutting the upper eyelid. He filed the claim petition on 21.11.1979 with an application to condone delay, claiming an amount of Rs. 33,000/-. The delay was condoned and the claim petition was entertained by the Claims Tribunal and finally awarded the sum claimed in the petition.
3. The grievance of the appellant is that the Claims Tribunal has improperly dismissed his application to amend the claim petition. The application for amendment was filed on 28.11.1980 in which the appellant sought to amend the claim amount from Rs. 33,000/- to Rs. 1,08,000/-. The application was dismissed, for which the Claims Tribunal has given reasons in the award. The main reason is that the application for amendment has not been filed within six months of the date of accident and hence the amendment application does not merit entertainment. According to the Claims Tribunal, 'a valuable right has accrued to the opposite party as a result of limitation and this Tribunal will not be justified in allowing the amendment resulting in enhancement of the claim'. This reasoning of the Claims Tribunal is severely assailed by the learned counsel for appellant. He cited the decision of this court in Mathew Alexander v. Bhaskaran Pillai Sreedharan Pillai 1990 ACJ 898 (Kerala), in which a Division Bench of this court held that in as much as Order VI, Rule 17 of the Code of Civil Procedure (for short 'the Code') is made applicable to proceedings before Motor Accidents Claims Tribunal the mere fact that the claim was barred on the date of application for amendment is no ground for rejecting the same. The Division Bench took the view that even otherwise Claims Tribunal has power to condone delay in filing the application and hence in appropriate cases, amendment of pleadings can be allowed even after the period of limitation.
4. Mr. T.S. Venkiteswara Iyer, learned counsel for the first respondent (owner of the lorry), contended that the aforesaid decision of the Division Bench requires reconsideration, since the Claims Tribunal is subjected to a statutory ban against entertaining an application filed after the period of six months.
5. Section 110-A (3) of the Motor Vehicles Act, 1939 (for short 'the Act'), no doubt, says that no application for compensation shall be entertained unless it is made within six months of the date of accident. In the proviso to the said Sub-section Claims Tribunal is given power to entertain the application filed beyond time if the Tribunal is satisfied that the claimant was prevented by sufficient cause from making the application within time. Learned counsel cited the decision of a Full Bench of this court in Ponnamma Pillai v. Nambi 1981 ACJ 475 (Kerala), in which the word 'entertained' in Section 110-A (3) of the Act is interpreted as to mean 'adjudicate upon' or 'to proceed to consider on merits'. The point sought to be decided by the Full Bench was whether the order dismissing a claim on the ground of it having been filed after the period of six months is an award for purposes of appeal. Two decisions of the Patna High Court were cited in support of the contention that Claims Tribunal has no power to allow an application for amendment of the claim if it was filed after six months of the date of accident. [Vide Bihar Co-op. Motor Vehicles Insurance Society Ltd. v. Rameshwar Raut 1969 ACJ 405 (Patna) and Champa v. C.C. and Industries AIR 1972 Patna 259]. In the former decision, a Division Bench of Patna High Court held that amendment should not be allowed if a valuable right has accrued in favour of the opposite party on account of expiry of the period of limitation. In the latter decision, another Division Bench of the same High Court followed the dictum in the former case. It seems to us that a different view has been adopted by some other High Courts on the question whether Claims Tribunal can allow an application for amendment filed after the period of six months. In Urmila Bahri v. Motor Accidents Claims Tribunal 1975 ACJ 293 (Allahabad), the claim petition was filed by the injured within the statutory period. But on his death, his legal representatives were impleaded who then filed an application to amend the amount of damages claimed. The application was opposed on the ground that it was filed after the period of limitation. The argument was repelled holding that limitation applies only to claim petition and not to any subsequent application seeking changes in the claim. This view was affirmed by a Division Bench of the same High Court in N.I. Assurance Co. v. Urmila AIR 1975 Allahabad 422. The reasoning of the Division Bench is that the application contemplated in Section 110-A is the one claiming compensation payable in respect of injuries sustained by the victim in the accident and once the claim is entertained amendments thereto can be made as there is no provision in the Act which restricts such amendments. The purpose of the provision is to afford remedy to aggrieved persons in consequence of motor accidents for getting compensation. Fixation of amount of compensation is the function of the Claims Tribunal and not the applicant. It is more in the nature of evidence that the applicant mentions the amount of damages in his application. There is no reason to restrict the freedom of the applicant from correcting the figure in his application, if such correction is sought for in good faith. So long as the statute does not directly or with necessary implication put restrictions against making necessary corrections or changes in the claim it is quite unnecessary to introduce restrictions through a process of interpretation. As far as possible court should refrain from scuttling the powers of Tribunals to do substantial justice to parties, unless the statute imposes limitation on such powers.
6. Section 110-B of the Act says that on receipt of application for compensation Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and make an award determining the amount of compensation 'which appears to it to be just'. We do not find any limitation in the said section restricting the powers of the Claims Tribunal to determine the amount of compensation except that the assessment must be just. There is no other provision in the Act which prevents the Claims Tribunal from entertaining an application seeking corrections, modifications or changes in the claim petition. Entertainability of claim petition should not be narrowly construed as restricting the powers of Claims Tribunal to determine the amount of compensation which appears to it to be just. One instance of injustice, if a different interpretation is adopted, is this: If a person who sustained injuries in a motor accident files application within the statutory period, but he dies later due to those injuries, cannot his legal heirs be permitted to enhance the amount of compensation by amending the application including counts such as loss of consortium etc.? If the application for amendment cannot be made in such circumstance, will it not lead to manifest injustice contrary to the spirit and tenor of the legislative policy in incorporating the provisions in the Act? It must be left to the discretion of the Claims Tribunal to consider circumstances and averments in such application for amendment and to decide whether the amendment is necessary for a just decision of the case.
7. If the position is as stated above, even without the help of Order VI, Rule 17 of the Code, the position became clearer when the rules in Order VI were made applicable to proceedings before Claims Tribunal. Rule 21 of the Kerala Motor Accidents Claims Tribunal Rules, 1977 permits the Claims Tribunal to use powers envisaged in certain provisions of the Code while exercising jurisdiction under Section 110 of the Act. Order VI, Rules 16 to 18 of the Code are some of those provisions which were made applicable. It was mainly on the strength of those rules in Order VI of the Code that the earlier Division Bench held that Claims Tribunal has power to allow application for amendment made after the period of six months. We are in respectful agreement with the aforesaid view of the Division Bench.
8. We, therefore, set aside the order of the Claims Tribunal as per which the application for amendment was dismissed. We allow the said application. Now it is for the Claims Tribunal to fix the quantum of compensation in the light of the amended claim.
9. The Claims Tribunal in this case has committed another glaring error. The owner of the lorry has a contention that he is entitled to be indemnified in view of the policy of insurance issued by the insurance company. According to the counsel, the Claims Tribunal had, in fact, issued notice to the insurance company returnable on 12.11.1981, but the Tribunal proceeded to pass the award on 16.9.1981 even without waiting for return of the notice. This factual position is not disputed.
10. Section 96(1) of the Act casts obligation on the insurer to pay to the person entitled to the benefit of the award 'as if he were the judgment-debtor, in respect of the liability'. But Sub-section (2) says that no sum shall be payable by an insurer in respect of any judgment (award) 'unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings'. The insurer, to whom notice of the bringing of any such proceeding is so given, shall be entitled to be made a party thereto and to defend the action on any of the grounds enumerated in the Sub-section. Sub-section (6) says that no insurer to whom the notice has been given shall be entitled to avoid his liability otherwise than in the manner provided in Sub-section (2). A combined reading of the aforesaid Sub-sections in Section 96 shows that the insurer is also a party to an action for recovery of damages initiated under Section 110-A of the Act. But he cannot be made a party without giving him notice under Sub-section (2).
11. A Division Bench of the Karnataka High Court has observed in B. Srinivasa Reddy v. Khatumbi 1974 ACJ 426 (Karnataka), as follows: 'When such notice is issued to the insurer, he can be regarded as a party to the proceedings before the Tribunal. Then the claimant has no right to give up the insurer as a party to the proceedings before the Tribunal, nor can he ask the Tribunal to delete the insurer as a party to those proceedings'. The Division Bench held further that so long as the claimant does not give up his claim against the owner of the vehicle, the insurer to whom notice has already been issued is a necessary party. A.P. Sen, J. (as he then was) has held in M.P. State Road Thans. Corporation v. Jahiram 1969 ACJ 3 (MP), that 'in view of the clear provisions contained in Section 96 (2) and (6) of the Motor Vehicles Act, it can hardly be asserted that an insurer is not a party to an action for recovery of damages. Thus, the insurer must, of necessity, be a party to such proceedings'.
12. In this case there can possibly be no contention that there is no need to make insurer a party because the Claims Tribunal has already issued notice to it. The wrong step committed by the Claims Tribunal was in proceeding in haste to pass the award even without waiting for return of the notice issued to the insurer.
13. For the aforesaid reasons, we remit the case to the Claims Tribunal for passing a fresh award after issuing fresh notice to the insurance company and after affording the company an opportunity of being heard. Appeal is disposed of in the above terms without any order as to costs.