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2005 DIGILAW 628 (AP)

M. v. Prasad VS New India Assurance Co. Ltd

2005-07-14

L.NARASIMHA REDDY

body2005
( 1 ) THE claimant in O. P. No. 796 of 2001, on the file of the Motor Accidents Claims Tribunal- cum-III Additional Chief Judge, City Civil courts, Hyderabad, is the petitioner. He feels aggrieved by the order, dated 28-9-2004, passed by the Tribunal, in I. A. No. 2346 of 2004, according permission to the first respondent to file additional counter affidavit. ( 2 ) THE petitioner filed O. P. , claiming the compensation, against the respondents. According to him, he boarded the vehicle bearing No. TN-9d-9869, owned by the second respondent and insured with the first respondent, at Alagadda, together with luggage, so as to proceed to Maidukur. An accident is said to have taken place in between, resulting in injuries to him. The first respondent filed counter resisting the claim. The trial of the OP. commenced, and the examination of witnesses, on behalf of the petitioner, is said to have been concluded. ( 3 ) THE first respondent filed I. A. No. 2346 of 2004, under Section 151 C. P. C. , seeking permission to file additional counter affidavit. Through the additional counter affidavit, the first respondent sought to introduce the plea that the petitioner is a gratuitous passenger and that the Tribunal does not have territorial jurisdiction. The remaining portion of the additional counter affidavit, is not of much importance. The petitioner resisted the same, mainly relying upon Section 16 (2) (b) of the code of Civil Procedure (Amendment) Act, 2002 (for short "the Amendment Act" ). According to him, the application is not maintainable, in view of the amendment to orders Rule 17c. P. C. The trial court allowed the I. A. ( 4 ) SRI K. Rama Subba Rao, learned counsel for the petitioner, submits that the bar imposed under Rule 17oforder6c. P. C. , applies to the present I. A. , and the Tribunal ought not to have entertained the application. He further submits that the effort of the first respondent was only to protract the proceedings, and to introduce pleas, which were otherwise untenable in law. He contends that a suggestion to the effect that the petitioner is a gratuitous passenger, was already put, during the course of his examination, and that the plea, as to territorial jurisdiction, is contrary to sub-section (2) of section 166 of the Motor Vehicles Act. He contends that a suggestion to the effect that the petitioner is a gratuitous passenger, was already put, during the course of his examination, and that the plea, as to territorial jurisdiction, is contrary to sub-section (2) of section 166 of the Motor Vehicles Act. ( 5 ) SRI Venkataratnam, learned counsel for the first respondent, on the other hand, submits that the restriction placed on amendment of pleadings, in Rule 17 of order 6, C. P. C. , does not apply to this case, because of the fact that the pleading on behalf of the first respondent was delivered before 1-7-2002. As regards the territorial jurisdiction, he submits that mere assertion by the first respondent, does not make any difference, and ultimately it would depend upon the interpretation to be placed on the relevant provisions of law. ( 6 ) BEFORE undertaking the discussion, as to the permissibility of the amendment on merits, one legal aspect needs to be dealt with. Several provisions of C. P. C. were amended, through the Amendment Act. One of such provisions is Order 6 of C. P. C. , dealing with pleadings. Rule 17 thereof was amended in such a way, as to prohibit the amendment of pleadings, once the trial commenced, except where it is shown to the satisfaction of the court that the party was prevented to plead a particular fact, on account of factors beyond his control. Section 16 (2) (b) of the Amendment Act saves the pleadings that were delivered to the court, before the date of commencement of the amendment, i. e. 1-7-2002, from the operation of amendment. It reads as under: "16 (2) (b ). The provisions of Rules 5, 15, 17 and 18 of Order VI of the First schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act. " a perusal of the provision discloses that the restrictions placed on amendment, through rule 17 of Order 6 C. P. C. do not operate in respect of a pleading, be it plaint or written statement, if it was filed into court, before 1 -7-2002. Even where a suit is filed before 1-7-2002, the bar applies, if the written statement is filed subsequent to that date. In the instant case, the counter, which is equivalent to a written statement, is said to have been delivered, before 1-7-2002. In that view of the matter, the bar under amended rule 17 of Order 6 C. P. C. does not apply, for its amendment. ( 7 ) AS to the merits, strictly speaking, the petition filed by the first respondent was not maintainable. In case, it wanted to cause any amendment to its counter, the only course open to it was, to file an application under order 6 Rule 17 C. P. C. The necessity to file additional written statement, orcounter, would have arisen, if only a corresponding pleading was filed by the petitioner. In fact, the situation attracts Rule 9 of Order 8. Even assuming that the present effort was only to bring about amendment to the existing pleading, one part of it, viz. that the petitioner is a gratuitous passenger, has virtually become superfluous, because extensive suggestions were made to P. W. 1, as well as other witnesses. Hence, the petitioner cannot be said to have suffered any prejudice because of this amendment. ( 8 ) SO far as the second aspect, viz. the plea as to territorial jurisdiction, is concerned, it is untenable, in view of sub-section (2) of section 166 of the Motor Vehicles Act. The said provision enables filing of claim petition, either in a Tribunal, within whose, territorial jurisdiction the accident took place, or the one, in whose territorial jurisdiction the claimants reside. ( 9 ) THE C. R. P. is accordingly disposed of, making it clear that the plea, as to territorial jurisdiction contained in the additional written statement, shall not be treated as tenable.