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2014 DIGILAW 984 (KAR)

National Insurance Company Ltd. v. Annapoorna

2014-11-13

A.N.VENUGOPALA GOWDA

body2014
Judgment 1. The respondents instituted MVC No.6546/2009 before Motor Accident Claims Tribunal, Bengaluru againstthe owner of a motorcycle bearing registration No.KA-52/E-8196 and the petitioner, which insured the said vehicle, to award compensation of Rs. 35 Lakhs with interest, on the ground that the rider of the said motorcycle caused the accident on 23.03.2009 and due to the said actionable negligence, one Ravi @ Ravikumar, a pillion rider, fell down, sustained grievous injury and succumbed on 24.03.2009, while undergoing treatment in NIMHANS, Bengaluru. The respondents are the wife, child and mother respectively of the said deceased Ravi @ Ravikumar. The petitioner, which is respondent No.2, in MVC No.6546/2009, filed the written statement and contested the case. Issues having been raised and trial having commenced and when the case was at the stage of further evidence of the insured and insurer of the said vehicle, the petitioner filed I.A.No.3, on 08.03.2011, under Order VIII Rule 2 read with S.151 of CPC, to permit filing of ‘Additional Written Statement’, which was annexed thereto. I.A.No.3 having been seriously opposed by the claimants, on the ground that there is no provision to file additional written statement and the prayer in the application is totally impermissible, learned Member of the MACT, finding that no ground was made out to permit filing of the ‘Additional Written Statement’, rejected I.A.No.3, on 16.07.2011. Assailing the said order, this writ petition was filed. 2. Sri O. Mahesh, learned advocate, strenuously urged that the case being one of 'SELF FALL' of the deceased, projected as a case of road accident involving the insured vehicle, with the cooperation (connivance) of the insured and the concerned police, to foist illegal liability on the petitioner and the fraud having been discovered subsequent to the filing of the written statement and commencement of the trial, I.A.No.3 was filed to accept the 'Additional Written Statement', simultaneously presented. He submitted that since fraud has been played, the Tribunal ought to have allowed I.A. No.3, in order to ward off multiplicity of proceedings and to uphold the principles of fair play and natural justice. Learned Counsel contended that I.A.No.3 having been rejected on untenable ground, interference is called for. 3. Sri K.A. Chandrashekar, learned advocate, on the other hand submitted that I.A.No.3 itself being not maintainable and the same having been rightly rejected, impugned order does not call for interference. Learned Counsel contended that I.A.No.3 having been rejected on untenable ground, interference is called for. 3. Sri K.A. Chandrashekar, learned advocate, on the other hand submitted that I.A.No.3 itself being not maintainable and the same having been rightly rejected, impugned order does not call for interference. He supported the impugned order and argued that the Tribunal did not commit any error in rejecting I.A.No.3. 4. Perused the writ record. In view of the aforesaid submissions, the point for consideration is: "Whether under Order VIII Rule 2 of CPC, permission can be granted to file additional written statement?" 5. To appreciate the said point, it is relevant to notice the provision, under Order VIII Rule 2 of CPC. It reads as follows: “O.VIII R.2. New facts must be specially pleaded.- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.” 6. Order VI of CPC deals with “Pleadings Generally”. Rule 1 is with regard to the “Pleading”, meaning plaint or written statement. Rule 2 mandates that ‘the pleading shall state the material facts and not evidence'. Rule 4 mandates for furnishing of particulars wherever necessary. Rule 7 under the heading "Departure" makes it clear that ‘no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same’. Thus, Order VI Rule 7 of CPC makes it clear, that if a party wants to plead any new ground or allegation of fact inconsistent with the previous pleadings, the same shall be raised by way of amendment only. Order VI Rule 7 of CPC starts with a negative and thus, makes it clear that there is total prohibition for pleading new claim or allegation of fact, inconsistent with the previous pleading of the party by any other mode, except by way of amendment of the existing pleading. 7. Order VIII Rule 9 of CPC is with regard to the ‘Subsequent Pleadings’. 7. Order VIII Rule 9 of CPC is with regard to the ‘Subsequent Pleadings’. The scope of the said provision has been explained in MR. GLEN FREDRIC PICARDO VS. MR. RODNEY PICARDO, SINCE DECEASED BY L.Rs. AND ANOTHER, reported in ILR 2010 KAR 4522. 8. Order VI Rule 7 of CPC is with regard to ‘Departure’ from previous pleading and Order VIII Rule 9 of CPC is with regard to ‘Subsequent pleadings’ and Order VI Rule 17 of CPC is with regard to the ‘Amendment of pleadings’. When the said provisions are read together, clear distinction becomes evident. 9. In GURDIAL SINGH AND OTHERS Vs. RAJ KUMAR ANEJA AND OTHERS, (2002) 2 SCC 445 , Apex Court, in the context of an application for primary amendment having been allowed, with regard to the right of the opposite party to effect consequential amendment by way of answer to the amended pleading and the duty of the Court, held as follows: “20. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise oil the opposite party and the court. A reference to Order 6 Rule 7 CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.” (emphasis supplied) 10. The petitioner ought to have raised in its pleading/written statement filed, all matters, which show how the claim petition is not maintainable. If, it has not raised therein, all grounds of defence, petitioner ought to have applied for grant of leave to amend the written statement already filed. New facts/pleading/s, cannot be permitted by way of ‘Additional Written Statement’. New pleading can be by way of independent or primary amendment, in terms of Order VI Rule 17 of CPC only and not otherwise. 11. New facts/pleading/s, cannot be permitted by way of ‘Additional Written Statement’. New pleading can be by way of independent or primary amendment, in terms of Order VI Rule 17 of CPC only and not otherwise. 11. Undisputedly, the petitioner wants to putforth new defence, under Order VIII Rule 2 of CPC, by way of Additional Written Statement. Since Rule 2 of Order VIII of CPC, does not enable the filing of an ‘Additional Written Statement’ and as the provisions under Order VI Rule 7 CPC and Order VIII Rule 9 of CPC not coming to the aid of the petitioner, to raise new defence, I.A.No.3 should fail, though on different grounds than what was held by the Tribunal. In the result, writ petition being devoid of merit, is dismissed, with no order as to costs.