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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • L.M. Suri
  • Hemant Kumar (for Nos. 1 to 6) and H. S. Sawhney (for Nos. 7 and 8)
Judges
  • S.S Sodhi, J.
Acts
  • provisions of S; 95(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).
  • provisions of S. 96 of the Motor Vehicles Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • L.M. Suri
  • Hemant Kumar (for Nos. 1 to 6) and H. S. Sawhney (for Nos. 7 and 8)
Judges
  • S.S Sodhi, J.
Acts
  • provisions of S; 95(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).
  • provisions of S. 96 of the Motor Vehicles Act
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The opinion arises out of a road accident on June 20, 1977 at about 4 p.m. on the road between Chandigarh and S.A.S. Nagar, in which a motorcycle and truck PUN 1781 collided. Ram Singh, the motorcycle rider, was killed and the pillion rider Gian Singh sustained serious injuries. The Motor Accident Claims Tribunal found the truck driver wholly to blame and awarded Rs. 1,08,000 to the widow and children of the deceased Ram Singh and Rs. 36,000 to Gian Singh.

On appeal the Insurance Company and the truck driver challenged, inter alia, the Tribunal's order of March 20, 1980 by which respondents were proceeded against ex parte after the respondents' evidence was closed and the impugned award was announced. Applications to set aside the ex parte award were dismissed by the Tribunal on August 28, 1980. The appeals were heard in this Court, which considered both procedural and substantive issues including negligence, quantum of compensation, the insurer's liability under S.95(2) of the Motor Vehicles Act, 1939 and a belated attempt by the Insurance Company to amend its pleadings at the appellate stage.

Legal Issues Presented

  1. Whether the order of the Tribunal dated March 20, 1980 proceeding against the respondents ex parte should be set aside on the ground of counsel's absence (allegedly due to a Bar Association call).
  2. Whether the Tribunal's finding of negligence — that the truck driver was wholly to blame — was correct and should be interfered with on appeal.
  3. Whether the quantum of compensation awarded by the Tribunal (Rs. 1,08,000 to the deceased's dependants; Rs. 36,000 to Gian Singh) was appropriate, and if not, whether adjustment or enhancement was warranted.
  4. Whether the Insurance Company's liability is limited to Rs. 50,000 under S.95(2) of the Motor Vehicles Act, 1939 in the absence of a specific plea and production of the policy.
  5. Whether the Insurance Company should be permitted to amend its written statement at the appellate stage to raise, belatedly, the plea of limitation of liability.

Arguments of the Parties

Claimants' Arguments

  • The deceased Ram Singh was travelling on his correct side of the road when the truck, coming from the opposite direction at high speed, suddenly crossed to its wrong side and struck the motorcycle.
  • Evidence supporting this account included testimony of injured claimant P.W.7 (Gian Singh), P.W.10 (Harnek Singh who lodged the FIR), the FIR (Exhibit P.C) recorded within an hour of the occurrence, and photographs of the scene (e.g., Exhibits P.B and P.B/4).
  • On quantum, Gian Singh (40 years old at the time) suffered amputation of the right leg above the knee after prolonged treatment and multiple operations and therefore deserved substantial compensation for pain, suffering, loss of amenities and future loss of earnings.

Appellant — Insurance Company

  • Challenged the Tribunal's ex parte proceedings of March 20, 1980 on the ground that counsel had abstained from appearing pursuant to a Bar Association call and therefore the ex parte proceedings should be set aside.
  • Sought to contend that, under S.95(2) of the Motor Vehicles Act, 1939, the insurer's liability was limited to Rs. 50,000 and that, in the absence of a plea to the contrary by the claimants, the insurer should be liable only to that amount.
  • After the appeal had been listed for hearing, sought leave to amend the written statement at the appellate stage to raise the plea that liability was limited to Rs. 50,000 (relying on principles of amendment under Order 6, Rule 17, Civil Procedure Code and authorities allowing amendments where no injustice results).

Truck Driver / Truck Owner

  • Maintained that the deceased brought the motorcycle onto the wrong side of the road and struck the truck (i.e., blamed the deceased for causing the accident).
  • Applied (with the Insurance Company) to set aside the ex parte award; however, evidence shows the truck driver and the Insurance Company had already closed their evidence prior to the date on which the ex parte order was passed.
  • The truck owner admitted there was no further evidence to be led on his behalf.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Lachhman Singh v. Gurmit Kaur, (1979) 81 Pun LR 1 : AIR 1979 Punj & Har 50 Used by the Tribunal as context for assessing dependency and selecting a multiplier for calculating compensation. The Tribunal applied this Full Bench authority in assessing dependency at Rs. 500 per month with a multiplier of 18 for the deceased; this Court found no reason to reduce that assessment.
Hamirpur Cooperative Transport Society Ltd. v. Kaushalya Devi, 1983 Acc CJ 70 (Him Pra) Authority containing observations that, in the absence of a plea to the contrary, insurer's liability would be limited to the amount mentioned in S.95(2). The Court noted these observations but treated them alongside other authorities; ultimately the Court relied on later decisions holding that S.95(2) prescribes a minimum cover and does not limit maximum liability absent a specific plea and production of the policy.
Des Raj v. Ram Narain, 1980 Acc CJ 202 : AIR 1979 All 328 Similar observations regarding insurer's liability being limited to S.95(2) in absence of a contrary plea. Noted by the Court but not followed in the present matter because subsequent decisions of this Court treated S.95(2) as prescribing minimum cover only.
Automobile Transport (Rajasthan) Pvt. Ltd. v. Dewalal, 1977 Acc CJ 150 : AIR 1977 Raj 121 Observed limits on insurer's liability in absence of a specific plea under S.95(2). Not applied to limit liability here; the Court relied on later authorities holding that absent a plea and production of the policy, insurer's liability extends to the full award.
Bai Dahiben v. Jesingbhai Bijalbhai, 1984 Acc CJ 150 (Guj) Contains observations to the effect that insurer's liability may be limited to S.95(2) in absence of a contrary plea. Not followed to restrict liability because the Court relied on its later precedents holding S.95(2) prescribes minimum cover and that lack of a policy prevents limiting liability.
Smt. Harjeet Kaur v. Balvinder Singh, F.A.O. 265 of 1982 (decided Sept. 6, 1985) Held that S.95(2) prescribes the minimum but not the maximum liability of the Insurance Company; in absence of a specific plea and production of the policy, insurer's liability extends to the entire amount awarded. The Court relied on this decision and related earlier authorities to hold that, since no policy was placed on record and no plea limiting liability was taken, the Insurance Company is liable for the full amount awarded.
Ajit Singh v. Sham Lal, (1984) 86 Pun LR 314 : AIR 1984 Punj & Har 223 Division Bench authority supporting the proposition that S.95(2) prescribes minimum cover; insurer's liability extends if no limiting plea and policy placed on record. Referred to as supporting the rule adopted by this Court in holding the insurer liable for the entire amount when no policy was produced and no limiting plea taken.
Dr. Karam Singh v. Dhian Singh (FAO No. 106 of 1976), decided Aug. 1, 1983 Earlier judgment of this Court used to support the principle that insurer's liability is not limited to S.95(2) absent a specific plea and production of the insurance policy. Used as part of the line of authorities leading to the conclusion that the insurer must meet the full award in the absence of a contrary plea and production of policy.
New India Assurance Co. Ltd. v. Smt. Mohinder Kaur (FAO No. 735 of 1979), decided July 12, 1984 Earlier authority reinforcing the principle that S.95(2) sets a minimum and does not prevent higher liability being covered. Counted among the authorities supporting the decision to hold the insurer liable for the entire award when no policy was produced to limit liability.
Hari Bacchan Singh v. Har Bhajan Singh, AIR 1975 Punj & Har 205 Statement that an amendment should be allowed if it can be made without injustice to the other side; where no injustice results, costs may suffice as remedy. The Court considered this principle but refused the belated amendment because it would work injustice to the claimants and delay was unexplained; mere costs would not be adequate compensation to claimants.
Smt. Dulia Devi v. Smt. Ram Kaur, (1975) 77 Pun LR 739 Expresses views supportive of allowing amendments in appropriate cases where no injustice would result. Referred to as part of the authorities on amendment but did not lead the Court to permit the belated amendment in the present case because of delay and potential injustice.
Puran Chand v. Harjinder Singh, (1984) 86 Pun LR 294 Similar view as to allowing amendments where appropriate and without causing injustice. Not decisive here; Court denied amendment because of the unexplained and long delay and because amendment would prejudice claimants' rights.
Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 Supreme Court test for amendments: the decisive question is whether the amendment can be allowed without injustice to the other side. The Court applied this test and concluded that allowing the belated amendment would cause injustice to the claimants and therefore should be refused.
Ranjit Kaur v. Ajaib Singh, (1984) 86 Pun LR 608 : AIR 1984 Punj & Har 292 On amendment at appellate stage: amendments are not a matter of right in appeals; they may be allowed only where necessary for determination of controversy and where delay is satisfactorily explained. The Court applied this principle to deny the proposed amendment at the appellate stage because no satisfactory explanation was offered for the long delay and the amendment was not necessary in the circumstances.

Court's Reasoning and Analysis

The Court addressed both procedural and substantive matters. The reasoning follows the framework of the issues raised in the appeal as set out below.

Procedural: Challenge to Ex Parte Proceedings

The Tribunal's order of March 20, 1980 proceeding against the respondents ex parte was challenged on the ground that counsel for the appellant had abstained from appearing on that date pursuant to a Bar Association call. The Court examined the record and noted that both the truck driver and the Insurance Company had already closed their evidence on November 29, 1979. The case had been adjourned several times with specific directions that the truck owner and the Bank of India produce their evidence on the adjourned date. The truck owner ultimately admitted there was no further evidence to be led on his behalf, and no relief had been sought against the Bank of India.

Given that the parties who sought to set aside the ex parte proceedings had already closed their evidence before the date on which the ex parte order was passed, and that there was no showing that the Bank of India or truck owner were aggrieved or had evidence to produce, the Court found no warrant to interfere with the Tribunal's March 20, 1980 order. The Court therefore upheld the Tribunal's decision to proceed against respondents ex parte.

Substantive: Negligence

On the issue of negligence, the Court reviewed the evidence relied upon by the claimants: testimony of P.W.7 (Gian Singh) and P.W.10 (Harnek Singh, who lodged the FIR), the FIR (Exhibit P.C) recorded within an hour of the accident, and photographs of the scene (e.g., Exhibits P.B and P.B/4). The witnesses consistently testified that the motorcycle was on its correct side and the truck crossed to the wrong side and hit it. No contradictions or discrepancies were pointed out by counsel that would undermine this testimony.

The photographs were found to corroborate the claimants' version: the motorcycle was shown on the extreme left and partly on the kutcha portion of the road; the distance between the truck and the motorcycle in the photographs supported the inference that the truck was traveling at speed. The truck driver accepted that the photographs were correct. Given that the photographic evidence was inconsistent with the truck driver's account that the motorcycle came onto the wrong side, the Court concluded there was no reason to disturb the Tribunal's finding of negligence and accordingly upheld it.

Quantum of Compensation

For the deceased Ram Singh: The Tribunal's assessment — dependency at Rs. 500 per month with a multiplier of 18 — was made in the context of the Full Bench judgment in Lachhman Singh v. Gurmit Kaur. The Court observed that although the normal multiplier may be 16, taking 18 did not warrant any reduction and the evidence did not justify enhancement. The Court therefore upheld the award of Rs. 1,08,000 to the widow and children.

For Gian Singh: The Court reviewed the medical evidence (including P.W.6 Dr. P.C. Chari) establishing prolonged hospitalization, five operations between July 1977 and February 1978, eventual amputation of the right leg above the knee and continued outpatient follow-up. Considering his age (40 at the time) and the permanent loss of amenities and earning capacity, the Court concluded that an award of Rs. 50,000 for pain, suffering and loss of amenities was justified. The Tribunal's assessment of loss of income during treatment at Rs. 9,000 was accepted. For future loss of earnings and expenses of medical treatment and special diet the Court assessed an overall sum of Rs. 31,000 (rounded). Aggregating these heads (Rs. 50,000 + Rs. 9,000 + Rs. 31,000) resulted in Rs. 90,000, and the Court enhanced the compensation to Gian Singh to that amount.

Insurance Company's Liability under S.95(2)

The Insurance Company argued that its liability was limited to Rs. 50,000 under S.95(2) of the Motor Vehicles Act, 1939 and that, in the absence of any plea by the claimants to the contrary, the Court should so hold. The Court reviewed authorities which had observations limiting insurer liability in absence of a plea (e.g., Hamirpur Cooperative Transport Society Ltd. and others) but relied on more recent decisions of this Court, notably Smt. Harjeet Kaur v. Balvinder Singh and Ajit Singh v. Sham Lal and two earlier decisions (Dr. Karam Singh v. Dhian Singh and New India Assurance Co. Ltd. v. Smt. Mohinder Kaur), which held that S.95(2) prescribes a minimum cover but not the maximum. The principle distilled in these authorities is that unless the insurer specifically pleads and produces the insurance policy showing a lesser cover, the insurer's liability extends to the entire amount awarded.

Because no policy of insurance had been placed on the record and no specific plea limiting liability had been taken by the Insurance Company, the Court held the Insurance Company liable for the entire amounts awarded.

Amendment of Pleadings at Appellate Stage

The Insurance Company sought to amend its written statement at the appellate stage to plead a limitation of liability to Rs. 50,000. The Court reviewed the applicable principles on amendment under Order 6, Rule 17 CPC: although courts have wide discretion to allow amendments to advance substantial justice, the discretion must be exercised so as to avoid injustice; the ultimate test (per the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil) is whether the amendment can be allowed without injustice to the other side.

The Court further noted that amendments at the appellate stage are not a matter of right and may be permitted only where necessary to determine the controversy and where delay is explained (Ranjit Kaur v. Ajaib Singh). The record showed the accident occurred in June 1977, claims were filed in August 1977, the Insurance Company filed its written statement on Sept. 21, 1977 and placed the policy on record on Nov. 29, 1977. The impugned award was made on March 20, 1980, the appeals were filed Jan. 5, 1981 and admitted Feb. 10, 1981; the applications for amendment were filed only after the appeals were listed for hearing in May 1985. No satisfactory explanation for this long delay was offered.

The Court considered the welfare-oriented purpose of motor accident compensation laws and the claimants' valuable right to recovery from the insurer, and observed that allowing such a belated amendment could result in injustice (including potential dissipation of assets by other wrongdoers to defeat recovery). Given these factors and the availability of S.96 of the Motor Vehicles Act as a remedy for the insurer against the insured, the Court refused permission to amend and denied the belated application.

Holding and Implications

Final Disposition: All the appeals are dismissed and the claimants' cross-objections are accepted to the extent indicated in the opinion.

Core Rulings (effects on parties):

  • The Tribunal's ex parte proceedings of March 20, 1980 and the consequential award stand; there is no interference with the Tribunal's procedural order.
  • The Tribunal's finding of negligence — that the truck driver was wholly to blame — is upheld and confirmed.
  • The compensation awarded to the widow and children of Ram Singh (Rs. 1,08,000) is upheld and confirmed.
  • The compensation payable to Gian Singh is enhanced to Rs. 90,000 (comprised of Rs. 50,000 for pain and suffering and loss of amenities, Rs. 9,000 for loss of income during treatment, and Rs. 31,000 for future loss, medical expenses and related heads as assessed by the Court).
  • The Insurance Company is held liable to pay the entire amounts awarded because it did not place the insurance policy on record and did not take a specific plea limiting liability under S.95(2).
  • Interest at the rate of 12% per annum is payable on the compensation from the date of the application to the date of payment.
  • All the appeals are dismissed; the claimants are entitled to their costs in the appeals. The cross-objections filed by the truck owner in F.A.Os 22 and 23 of 1981 are dismissed. Counsel's fee: Rs. 500 (one set only).

Implications regarding precedent: The decision follows this Court's line of authorities holding that S.95(2) prescribes a minimum insurance cover and does not itself limit the insurer's exposure to the amount mentioned in that section where the insurer fails to plead and place the policy on record. The Court also reinforced established principles governing amendments to pleadings at the appellate stage: belated amendments that cause injustice and are unexplained should be refused.

This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond what appears in that opinion.

Show full summary ...

    New India Assurance Co. Ltd., Chandigarh v. Charan Kaur And Others

    In an accident between a motor cycle and the truck PUN 1781 coming from the opposite direction, Ram Singh, who was driving the motor cycle, was killed while the pillion rider Gian Singh sustained serious injuries. This happened on June 20, 1977, at about 4 p.m on the road between Chandigarh and S.A.S Nagar.

    2. It was the finding of the Tribunal that it was the truck driver who was wholly to blame for this accident. A sum of Rs. 1,08,000/- was awarded as compensation to the widow and children of Ram Singh deceased while Rs. 36,000/- were awarded to Gian Singh for the injuries suffered by him in this accident.

    3. In appeal here, the challenge in the first instance was to the order of the Tribunal of Mar. 20, 1980, whereby the evidence of the respondents was closed and thereafter the impugned award was announced. The contention of Mr. L.M Suri, counsel for the appellant-Insurance Company, being that as counsel had abstained from appearing in Court on that date in pursuance of a call to this effect by the Bar Association, there was obviously sufficient cause for setting aside the ex parte proceedings taken on that date.

    4. Applications for setting aside the ex parte award were filed before the Tribunal by the Insurance Company as also the truck driver. These were dismissed by the Tribunal by its order of Aug. 28, 1980. No exception can indeed be taken to this order. A reference to the record would show that both the truck driver as also the Insurance Company had closed their evidence on Nov. 29, 1979. The case was then adjourned for the evidence of the truck owner and the Bank of India to Jan. 10, 1980. The Presiding Officer of the Tribunal was absent on that date and the case was accordingly adjourned to Jan. 14, 1980, on which date it was adjourned to Feb. 14, 1980, for the evidence of the truck owner. On that date again, no evidence was summoned by the Truck owner nor present and the case was then adjourned to Mar. 20, 1980, with the specific direction that it shall be the responsibility of truck owner and the Bank of India to produce their evidence on the adjourned date.

    5. The position that now emerges is that both the parties, namely, the truck driver and the Insurance Company who had applied for the setting aside of the ex parte proceedings had already closed their evidence, before the date when the order to this effect was passed. As regards the Bank of India, no relief was granted against it, and it cannot therefore, be said to be aggrieved by this order in any manner. Similar is the position of the truck owner. Indeed, the counsel for the truck owner admitted that there was no further evidence to be led on his behalf. This being the situation, there is clearly no warrant for interfering with the order of the Tribunal of Mar. 20, 1980, that the respondents be proceeded against ex parte.

    6. Coming now to the merits of the case, the finding on the issue of negligence warrants no interference in appeal. According to the claimants, the deceased was travelling on his correct side of the road when the truck coming from the opposite direction at a very fast speed suddenly went to its wrong side and hit into the motor cycle. The truck driver, owner as also the Insurance Company, on the other hand, accused the deceased of having brought his motor-cycle on to the wrong side of the road and striking it against the truck.

    7. The case of the claimants rests upon the testimony of the injured claimant P.W 7 Gian Singh and P.W 10 Harnek Singh, who lodged the first information report regarding this incident. It was the consistent testimony of both these witnesses that the motor cycle was on its correct side of the road when the truck came on its wrong side and hit into it Counsel could point to no contradictions or discrepancies to create any doubt in their testimony. Important corroboration to this version is provided by the first information report Exhibit P.C, which was recorded on the statement of P.W 10 Harnak Singh and that too within an hour of the occurrence. A similar version finds mention there. What is more, the photographs of the scene of occurrence taken soon thereafter fully bear out the correctness of the claimants' version. It may be pointed out here that the truck driver R.W 1 Simmer Singh accepted that these photographs were correct. The photograph Exhibit P.B clearly shows the motor-cycle lying on its extreme left. In the photograph Exhibit P.B/4 in fact the deceased and the motor cycle are shown to be partly on the kutcha portion of the road. The distance at which the truck is shown from the motor cycle also bears eloquent testimony to the speed at which it must have been travelling at that time. This being the situation, it cannot be accepted, as stated by the truck driver R.W 1 Simmer Singh, that the accident had taken place when the motor cycle came on to its wrong side of the road. If that had been so, the photographs would not have depicted the scene they show. The finding on the issue of negligence must accordingly be upheld and confirmed.

    8. As regards the quantum of compensation payable to the claimants, no exception can be taken to the amount awarded in respect of Ram Singh deceased. The evidence shows that he was only 27 years of age at the time of his death and he died leaving behind his young widow, two sons and three daughters, who were all minors. Ram Singh was a milk seller and according to his widow P.W 8 Charan Kaur, he had 10-12 buffaloes and used to provide them Rs. 1,000/-per month for the household expenses. The Tribunal, keeping in view the circumstances of the deceased and the claimants in the context of the judgment of the Full Bench in Lachhman Singh v. Gurmit Kaur, (1979) 81 Pun LR 1 :(AIR 1979 Punj & Har 50), assessed the dependency at Rs. 500/- per month with a multiplier of 18. The normal course, no doubt, in such cases is to take 16 as the multiplier, but the mere fact that 18 has been taken instead of 16, provides no occasion for any reduction in the compensation awarded, nor indeed does the evidence on record justify any enhancement of it either. The amount awarded must thus be maintained.

    9. Turning to the claimant Gian Singh, it will be seen that his right leg had to be amputated from above the knee on account of this accident. He spent a long period in hospital and had to undergo as many as five operations between July 1977 and Feb. 1978 and during this entire period he remained admitted as an indoor patient at the Postgraduate Medical Institute, Chandigarh; P.W 6 Dr. P.C Chari, Assistant Professor of Plastic Surgery at the Postgraduate Medical Institute, Chandigarh, who had been treating him further deposed that even after his discharge from the hospital he had been seeing him as an out-patient.

    10. There can be no manner of doubt that the claimant Gian Singh must indeed have undergone a great deal of pain and suffering both on account of the injuries suffered by him as also on account of the prolonged treatment in the hospital leading eventually to the amputation of his right leg. Considerable loss of enjoyment of amenities of life and inability to lead a normal life is now inherent in the present situation of the claimant and that too for the rest of his life. Gian Singh was by no means an old man being only 40 years of age at the time of this accident. Considered in its totality the condition and situation of the claimant, under all these heads an award of Rs. 50,000/- as compensation would indeed be amply justified.

    11. During the prolonged period of treatment and convalescence which certainly extended for a year and a half, if not more, it was a period of total loss of income as far as the claimant is concerned. The Tribunal rightly assessed this loss at Rs. 9,000/-. Besides this, his present physical condition would also lead to some loss of earnings by him in the years to come for which he must be compensated. Another head under which compensation deserves to be awarded is for the expenses of medical treatment and special diet. There can, of course, be no precise measure of the amount to be awarded under these heads, but taking an overall view of the matter, a sum of Rs. 31,000/- (to make it a round figure) would clearly meet the ends of justice.

    12. Here, Mr. L.M Suri, counsel for the respondent-Insurance Company sought to contend that the liability of the Insurance Company must be held to be limited to Rs. 50,000/- in each case. He adverted in this behalf to the provisions of S; 95(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). The argument being that as no plea had been put forth by the claimants that the liability of the Insurance Company exceeded this amount, it must be held to be limited to Rs. 50,000/-, which was the sum mentioned in S. 95 (2) of the Act. He cited in support Hamirpur Cooperative Transport Society Ltd. v. Kaushalya Devi, 1983 Acc CJ 70 (Him Pra), Des Raj v. Ram Narain, 1980 Acc CJ 202 : (AIR 1979 All 328), Automobile Transport (Rajasthan) Private Ltd. v. Dewalal, 1977 Acc CJ 150 : (AIR 1977 Raj 121) and Bai Dahiben v. Jesingbhai Bijalbhai, 1984 Acc CJ 150 (Guj). In all these authorities, there were observations to the effect that in the absence of a plea to the contrary, the liability of the Insurance Company would be limited to the amount mentioned in S. 95 (2) of the Act.

    13. Recently, this Court had occasion to consider the matter in F.A.O 265 of 1982 Smt. Harjeet Kaur v. Balvinder Singh, decided on Sept. 6, 1985, where it was observed :—

    “It has been taken to be well settled by our Court that S. 95(2) of the Act merely prescribes the minimum but not the maximum liability of the Insurance Company. In other words, the insurance cover cannot be less than the sum mentioned in S. 95(2) of the Act, but it does not preclude a higher risk being covered by the Insurance Company, and; therefore, in the absence of a specific plea by the Insurance Company that its liability is limited to any particular sum, (not being less than the minimum prescribed) and the policy of insurance being placed on record in support of such plea, the liability of the Insurance Company must be held to extend to the entire amount awarded. Reference here may be made to the judgment of the Division Bench in Ajit Singh v. Sham Lal, (1984) 86 Pun LR 314 : (AIR 1984 Punj & Har 223), as also the two earlier judgments of this Court in FAO No. 106 of 1976 (Dr. Karam Singh v. Dhian Singh), decided on Aug. 1, 1983, and FAO No. 735 of 1979 (New India Assurance Company Ltd. v. Smt. Mohinder Kaur) decided on July 12, 1984. No policy of insurance having been placed on record in the present case, the liability of the Insurance Company must be held to extend to the entire amount awarded.”

    No plea was raised in the present case regarding any limitation in the liability, of the Insurance Company, this being so, it must be held that the Insurance Company was liable for the entire amount awarded in both these cases.

    14. Faced with the situation, counsel for the Insurance Company sought amendment of the written statement to raise the plea, not taken earlier, that its liability was limited to Rs. 50,000/-.

    15. Counsel cited a number of authorities with regard to the scope and ambit of the power of the Court to allow amendment of pleadings under O. 6, R. 17 of the Civil P.C Reliance was, in the main, placed upon Hari Bacchan Singh v. Har Bhajan Singh, AIR 1975 Punj and Har 205, where it was observed, “It is well settled law that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated for by costs……” Reference was also made to Smt. Dulia Devi v. Smt. Ram Kaur, (1975) 77 Pun LR 739, and Puran Chand v. Harjinder Singh, (1984) 86 Pun LR 294, where similar views were expressed.

    16. The law is indeed well settled that the Court possesses a wide discretion in the matter of amendment of pleadings, but it is a discretion to be exercised judiciously so as to advance the cause of substantial justice and avoid injustice. The ultimate test, as held by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 being, can the amendment be allowed without injustice to the other side?

    17. As regards amendment of pleadings at the appellate stage, reference must be made to the judgment of J.V Gupta J. in Ranjit Kaur… v. Ajaib Singh…., (1984) 86 Pun LR 608 : (AIR 1984 Punj & Har 292), where it was observed that no one is entitled to seek amendment of pleadings as a matter of right particularly in appeals. It is only where the Court finds that the proposed amendment is necessary for determination of the controversy between the parties that it may be allowed even at a late stage. The jurisdiction of the appellate Court in the matter is further limited as rights of parties come into being after the passing of the decree by the trial Court. A strong case has thus to be made out why the plea sought to be taken by the amendment could not be put forth earlier. In this situation, delay has also to be explained to the satisfaction of the Court.

    18. There is no explanation for the delay in seeking amendment in the present case. The record of the case would show that the accident here took place in June 1977 and the claims for compensation were filed in Aug. 1977. The Insurance Company filed its written statement on Sept. 21, 1977, and issues were thereafter framed on Oct. 6, 1977, and then on Nov. 29, 1977, the Insurance Company placed on record the policy of insurance. The impugned award, as mentioned earlier, was made on Mar. 20, 1980. The present appeals were filed on Jan. 5, 1981 and were admitted to hearing on Feb. 10, 1981. It was after the appeal had been listed for hearing and had actually come up for hearing on May 13, 1985, when they were adjourned as counsel for the Insurance Company had stated that he had not received notice of the Cross-Objections, that the applications for amendment of the written statements were filed. Unjustified delay is thus writ large.

    19. The law relating to compensation to victims of motor accidents is but a species of welfare laws and has thus to be considered and construed from the standpoint of the claimants. There is a facility and certainty of recovery of compensation from the Insurance Company which is so vividly in contrast with the delays and obstacles that claimants often encounter from the other parties liable, for example, the driver and owner. It is thus a valuable right conferred upon the claimants to recover compensation from the Insurance Company, which it would clearly be unjust to deprive them by the amendment so belatedly sought. Further, it is quite possible that in the intervening period, the other parties liable may have disposed of their assets with a view to defeat the claimants from recovering the compensation awarded. In these, circumstances, mere payment of costs cannot obviously provide them adequate recompense and it would thus work injustice to the claimants to permit such an amendment at this stage. As regards the Insurance Company, it has the provisions of S. 96 of the Motor Vehicles Act to fall back upon to seek its remedy against the insured.

    20. No occasion is thus provided for granting the Insurance Company permission to amend that written statement as prayed for.

    21. The compensation awarded to the widow and children of Ram Singh deceased is accordingly hereby upheld and confirmed while that payable to the claimant Gian Singh is enhanced to Rs. 90,000/-. The claimants shall, in addition, be entitled to interest on the compensation awarded at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded.

    22. In the result, all the appeals are hereby dismissed while the cross-objections filed by the claimants are accepted to the extent indicated above. The claimants shall be entitled to their costs in these appeals. The cross-objections filed by the truck owner in F. A.Os 22 and 23 of 1981 are hereby dismissed. Counsel's fee Rs. 500/- (one set only).

    Order accordingly.

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    Comments

    New India Assurance Co. Ltd., Chandigarh v. Charan Kaur And Others
    (Nov 20, 1985)