Mathew Alexander Vs. Bhaskaran Pillai Sreedharan Pillai and ors. - Court Judgment

Krishnamoorthy, J.

1. This appeal is by the petitioner in an application under Section 110A of the Motor Vehicles Act. The application was for compensation for the personal injuries which he sustained on 13-1-1975. On that day he was travelling in a scooter from Thiruvalla to Chingavanam. While so a car belonging to the 2nd respondent and driven by the 1st respondent came from the opposite direction and knocked him down. He sustaied serious injuries on his legs and consequently his right lelg had to be amputated. He alleged that the accident occurred due to the rash and negligent driving of the 1st respondent. The petitioner was aged 35. He was a businessman. He claimed an amount of Rs. 965/- towards special damages and an amount of Rs. 20,000/- towards general damages, thus claiming a total amount of Rs. 20,965/- as compensation for the personal injuries sustained by him. The 2nd respondent being the owner of the vehicle was sought to be made vicariously liable and the insurer of the car was impleaded as the 3rd respondent.

2. Respondents 1 and 2 filed a written statement denying rashness or negligence on the part of the 1st respondent and contending that the amputation of the right leg was not the direct result of the accident. They challenged the quantum of compensation claimed. The other averments in the application were also denied by them.

3. The 3rd respondent admitted the existence of a valid policy for the vehicle and generally supported the contentions of respondents 1 and 2.

4. Originally, as stated earlier, th claim was for a compensation of Rs. 20,965/-. On 26-4-1980 the petitioner filed an application to amend the claim petition by modifying the claim for general damages from Rs. 20,000/-to Rs. 75,000/-, thereby making a total claim of Rs. 75,965/-. The respondents objected to the above application and by a separate order dt. 30-4-1981 the Tribunal dismissed that application on the ground that the claim was barred on the date of the amendment application. In the meantime, evidence was adduced by the parties and the Tribunal accepted the case of the petitioner regarding negligence of the 1st respondent and passed an award granting the petitioner compensation to the extent of Rs. 20,965/- as originally claimed, to be recovered from respondents 1 to 3. The 3rd respondent was directed to make the payment. The appeal is by the petitioner against the above award challenging mainly the dismissal of his application for amendment and consequently for enhancement of the damages also.

5. Counsel for the 3rd respondent Insurance Company contended that the appeal itself is not maintainable as the entire claim of the appellant-petitioner has been accepted by the Tribunal. He also contended that no appeal will He against an order refusing the application for amendment of the claim petition as the entire claim originally made by the petitioner was allowed by the Tribunal. Counsel also contended that there is no corresponding provision like Section 105, C.P.C. in the Motor Vehicles Act and as such the appeal against the order refusing to allow amendment cannot be gone into by the appellate Court. The main question to be decided in this appeal is as to whether the appeal is maintainable in the circumstances mentioned above. We think it is.

6. Under Rule 21 of the Kerala Motor Accidents Claims Tribunals Rules, 1977 certain provisions of the C.P.C. are made applicable to the proceedings before the M.A.C.T. Under the above rule, Order VI, Rules 16 to 18 of C.P.C. are made applicable and as such the power of the M.A.C.T. to allow amendment of pleadings in appropriate cases cannot be disputed. An appeal is provided under Section 110D of the Motor Vehicles Act to the High Court against any award passed by the M.A.C.T. In other words, the appellate court can exercise all the powers of the subordinate Tribunal. If the order rejecting the amendment application cannot be sustained and the appellate court allows the application for amendment that shall take effect from the date of the original application. If that be so, the claim of the petitioner shall be treated as the amended claim and when only a lesser amount is allowed than what is claimed by the petitioner, certainly an appeal will lie against such an award. The contention of counsel for the 3rd respondent that in an appeal against an award the correctness of the order refusing an application for amendment cannot be gone into as Section 105, C.P.C. is not made applicable to an appeal against an award under the Motor Vehicles Act, cannot be accepted. First of all, the appeal under the Motor Vehicles Act against an award is to the High Court. When an appeal is filed before the High Court the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well settled that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication it can exercise all powers incidental thereto in order to exercise that power effectively. The power of an appellate court in such matters was considered by their Lordships of the Supreme Court in L-T. Officer v. Mohd. Kunhi, AIR 1969 SC 430. In that case their Lordships were considering the power of the Income-tax Tribunal under the Income-tax Act for granting stay pending appeal. It was contended in that case that in the absence of an express provision in Sections 254 and 255 of the Income-tax Act relating to stay of recovery during the pendency of an appeal, it must be held that no such power can be exercised by the Tribunal. Repelling the above contention their Lordships observed (at p. 433) :

'The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the appellate Tribunal. Indeed the tribunal has been given very wide powers under Section 254(1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal.....

The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. I at page 88, it has been stated :

'It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where ajust application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.'

Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Gui jurisdictio data est, ea quoqe concessa case vindentur, sine quibus jurisdictio explicari non potuit.' An instance is given based on Ex parte, Martin, (1879) 4 QBD 212 at p. 491 (sic) that--

'Where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced.'

Under Section 110D of the Motor Vehicles Act, there are no limitations on the powers of the appellate court and the entire case is open to review by the High Court. In view of the wide powers given to the High Court under Section 110D and especially in view of the fact that Order VI, Rule 17 is made applicable to Motor Accidents Claims Tribunals, this Court has the power to go into the correctness of the order refusing the application for amendment of the claim petition and we overrule the obections raised by counsel for the 3rd respondent.

7. Now, coming to the order refusing to allow the amendment, the ground on which it was rejected was that the claim was barred on the date the amendment application was filed. It is true that on the date of that application the claim was barred. Counsel for the appellant relied on the decisions in Jai Singh v. N. A. Subramaniam, AIR 1982 Punj & Har 407 (FB) and D. Kannan v. Southern Roadways, AIR 1981 Mad 144 for the position that it is not a universal rule that amendment applications filed beyond the period of limitation shall be rejected. But those decisions are mainly concerned with the power of the, Tribunal to amend the pleadings. But so far as Kerala is concerned we are not confronted with that difficulty as Order VI, Rule 17 is specifically made applicable to proceedings before the Motor Accidents Claims Tribunal. The question under what circumstances an amendment of pleadings can be allowed even if the claim is barred on the date of the application was considered by their Lordships of the Supreme Court in A. K. Gupta and Sons v. Damodar Valley Corporation, AIR 1967 SC 96. In considering that question the Supreme Court observed as follows (paras 7 and 8) :--

'..... The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred; Weldon v. Neal, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation see Charan Das v. Amir Khan, 47 Ind App 255 : AIR 1921 PC 50 and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 SCR 438 : AIR 1957 SC 357.

8. The principle reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith, (1884) 26 Ch D 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba, (1909) ILR 33 Bom 644 at p. 651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603) : AIR 1957 SC 363 at p. 366.'

Their Lordships also pointed out that the cause of action will not be changed if there is no new case on facts. On the facts of this case it is clear that no new case is pleaded and there is no change of cause of action but only an enhancement of the compensation is claimed.

8. In Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 considering the scope of Order VI, Rule 17, their Lordships observed (para 4) :

'..... that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is ineffecient in setting out its case initially the shortcoming can certainly be removed generally by appropriate step taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.'

9. The observations of the Supreme Court quoted above are apposite to the facts of the case and we are of the opinion that the mere fact that the claim was barred on the date of the application for amendment is no ground for rejecting the same if there is no change of cause of action or if no new facts are sought to be incorporated.

10. Even otherwise, the Motor Accidents Claims Tribunal has got the power to condone the delay in filing the application for compensation under the Act. But an ordinary civil court has no such power in respect of an original suit. The principle that an amendment shall not ordinarily be allowed if the claim is barred cannot be extended to a proceeding before the M.A.C.T. as specific power is conferred for condening the delay. This further strengthens our view that in appropriate cases, amendment of pleadings can be allowed even after the period of limitation and with respect we dissent from the contrary view taken in Bihar Co.-op. M. V. Insc. Society v. Rameshwar, AIR 1970 Patna 172 and Champa v. C.C. and Industries, AIR 1972 Patna 259 on which reliance was placed by counsel for the respondent.

11. In the application for amendment the petitioner has alleged that though he originally intended to claim Rs. 75,000/- as general damages, by an error committed by his advocate's typist it was shown as Rs. 20,000/-. We do not find any reason not to accept that explanation offered by the petitioner. In Anand Kumar Jain v. Union of India, (1986) 2 TAC 483 : (AIR 1986 SC 1125) the Supreme Court has allowed a similar amendment in an appeal before their Lordships. Their Lordships proceeded on the basis that the mere enhancement of the original claim has to be allowed and that 'there is no reason why this amendment should not be granted'. Though no doubt there is no discussion on the question, in view of the above decision of the Supreme Court we allow the amendment and proceed on the basis that the original claim was Rs. 75,000/- under the head general damages.

12. Both parties submitted that no fresh evidence is necessary and that if the amendment is allowed, this Court itself may consider the claim. It is an admitted fact that the petitioner was injured and that he was an inpatient in the hospital from 13-1-1975 to 4-2-1975. The petitioner's right leg had to be amputated and he might have under gone severe pain and suffering. When a leg is amputated it is well known that there will be phantom pain which will be unbearable. A man may feel pain throuhout the leg as if the amputated leg is still there and the severity of the pain cannot be imagined. In these circumstances, we feel that an amount of Rs. 20,000/- will be adequate compensation for pain and suffering. His earning capacity and enjoyment of life are considerably reduced because of the accident. The Tribunal itself has found that the claim made in the petition originally was far below standard. In the nature of the occupation of the petitioner and other evidence in the case we feel that compensation of Rs. 40,000/- on account of permanent disability and loss of conforts in life will meet the ends of justice. Thus the appellant-petitioner will be entitled to a total compensation of Rs. 60,000/- as general damages. The special damages of Rs. 965/-awarded to him is not challenged and that will stand.

In the result, we modify the award by allowing the appellant to recover an amount of Rs. 60,965/- from the respondents. As the liability of the insurer-3rd respondent is unlimited, the insurer is directed to make the payment. The amount awarded will carry interest as ordered by the Tribunal from 20-11-1975. There will be no order as to costs.