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2014 DIGILAW 842 (PNJ)

Shanti Devi v. Deepak Singh

2014-05-14

AJAY TEWARI

body2014
JUDGMENT Mr. Ajay Tewari, J (Oral):- This appeal has been filed against the Award of the Tribunal dated 1.10.2009 dismissing the claim petition under Section 163A of the Motor Vehicle Act (for short “the Act”). 2. Brief facts necessary to be noticed for decision of this appeal are that earlier also the claimants had filed a claim petition under Section 163-A of the Act but had claimed that the income of the deceased was Rs. 7,000/- per month. After some time they realized that their petition under Section 163-A of the Act would not be maintainable in view of the income which they had pleaded, and they moved an application for amendment of the claim petition to scale down the income under the ceiling of Rs. 40,000/- pa. That application was declined. Thereafter, the appellants filed another application for permission to withdraw the claim petition with liberty to file a fresh one on the same cause of action. Admittedly, this application was allowed. It is thereafter that the instant claim petition under Section 163A of the Act has been filed wherein the income has been pleaded to be Rs. 3300/- per month. 3. The Tribunal dismissed the petition by holding that once in the earlier claim petition the appellants had claimed the income to be Rs. 7,000/- per month, they cannot be permitted to now turn around and claim lesser income. 4. Counsel for the appellants has argued that rejection of an application for amendment may not be illegal but because the appellants were permitted to withdraw the claim petition with liberty to file a fresh one on the same cause of action, the Tribunal could not have looked at the previous claim petition as the same had been withdrawn and by fiction of law had ceased to exist. 5. Counsel for respondent No.2, on the other hand, has argued that the intention of the Tribunal while granting permission to the appellants to file a fresh petition could have been construed to mean that they were permitted to file a petition under Section 166 of the Act. 6. Counsel for the appellants has urged that there was no such limitation expressed in the order and, therefore, it was incumbent upon the Insurance Company to have challenged that order if they felt that the order was not as specifically worded as they are now seeking to interpret it. 6. Counsel for the appellants has urged that there was no such limitation expressed in the order and, therefore, it was incumbent upon the Insurance Company to have challenged that order if they felt that the order was not as specifically worded as they are now seeking to interpret it. As per the counsel, the interest of justice, in the present case would be served if the Award is set aside and the matter is remitted back to the Tribunal for a fresh decision on merits. 7. I find that the argument of counsel for the appellants has to be accepted. The Tribunal erred in looking at the withdrawn claim petition to non-suit the appellants. Once the original claim petition was permitted to be withdrawn with liberty file a fresh one on the same cause of action, the Tribunal could not have gone behind the order and decide the case in this summary manner. In the circumstances, this appeal is allowed, the impugned Award is set aside and the matter is remitted back to the Tribunal for a fresh decision on merits. Parties, through their counsel, are directed to appear before the Tribunal on 15.7.2014. ---------0.B.S.0------------ --------------------