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2019 DIGILAW 1622 (KAR)

Narayan v. Channappa

2019-07-08

S.G.PANDIT

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JUDGMENT : S.G. Pandit, J. The petitioner is before this Court under Article 226 of the Constitution of India praying to set aside the order dated 19.08.2013 in MVC No.184/2012 on the file of the I Additional Senior Civil Judge and Additional MACT, Hubballi. 2. Brief facts of the case are that the petitioner is claimant and respondent No.1 is stated to be owner and respondent No.2 is insurer of the vehicle which involved in a road traffic accident on 24.10.2011 in which the petitioner suffered injuries. Initially, the petitioner filed claim petition showing the respondent No.1 as owner-cum-driver of the tractor. On service of summons, the respondents No.1 and 2 filed their objections to the main petition. Respondent No.1 owner categorically contended in his objection that he was not driving the vehicle tractor on the date of accident and he was only the owner. The Insurance Company has filed its objection denying the very happening of the accident as narrated in the claim petition. The petitioner examined himself as PW.1. In the crossexamination PW.1 stated that on the date of accident the respondent No.1 was driving the vehicle and he had informed to the police to that effect. Subsequent to his cross-examination the petitioner/claimant filed two applications one under Order 1 Rule 10 of CPC to implead one Mahadevappa as driver and another application under Order 6 Rule 17 of CPC to amend the claim petition to the effect that the driver Mahadevappa was driving the vehicle and respondent No.1 was only the owner. It is stated in the affidavit that Mahadevappa is proper and necessary party since he was the driver of the tractor. The trial Court under impugned order rejected both the applications on the ground that having admitted in evidence that respondent No.1 was driving the tractor it is not open for the petitioner to contend subsequently that respondent No.1 is only owner and one Mahadevappa was driver of the tractor on the date of accident. Aggrieved by the same the petitioner/claimant is before this Court in this writ petition. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the writ petition papers. 4. The learned counsel for the petitioner would submit that the claimant injured on the date of accident was shifted immediately to KIMS Hospital and he was not aware who was driving the tractor. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the writ petition papers. 4. The learned counsel for the petitioner would submit that the claimant injured on the date of accident was shifted immediately to KIMS Hospital and he was not aware who was driving the tractor. In the FIR the driver name was not shown. As such, he filed claim petition indicating the owner as also the driver of the tractor. The learned counsel-invites the attention of this Court to the criminal proceedings, wherein charge sheet was filed against the driver Mahadevappa and he has pleaded guilty in C.C.No.1364/2012 which is produced as Annexure-F to the writ petition. The proposed respondent driver has pleaded guilty on 04.06.2012 which was not within the knowledge of the petitioner till he was crossexamined. It is his submission that only on the stray sentence of admission it cannot be said that the petitioner has admitted that the respondent No.1 is owner-cum-driver of the tractor. There are other materials to indicate that the proposed respondent Mahadevappa was the driver of the tractor and was driving the tractor on the date of accident i.e. on 24.10.2011. 5. Per contra, the learned counsel for the insurer/respondent No.2 submits that the claimant/petitioner has categorically admitted that respondent No.1 was the owner and he was driving the tractor on 24.10.2011 when the accident was occurred. The insurer has denied the very happening of the accident. Therefore, the petitioner cannot be permitted to implead the driver at this stage of the proceedings which would affect their right. 6. On the other hand, respondent No.1 owner submits that he was not at all driving the vehicle on the date of accident and driver Mahadevappa was driving the tractor. It is his further submission that the driver has pleaded guilty before the Criminal Court which is not challenged further by the Insurance Company. 7. Having heard the learned counsels for the parties and on perusal of the writ petition papers, the only question requires consideration is, whether the Tribunal is justified in rejecting the applications for impleading and for amendment of claim petition in the facts and circumstances of the present case. 8. 7. Having heard the learned counsels for the parties and on perusal of the writ petition papers, the only question requires consideration is, whether the Tribunal is justified in rejecting the applications for impleading and for amendment of claim petition in the facts and circumstances of the present case. 8. On hearing the learned counsels and on perusal of the writ petition papers, I am of the view that the learned Tribunal has committed an error in rejecting both the I.A's for impleading as well as for amendment. The petitioner/claimant initially filed claim petition making the respondents No.1 and 2 i.e. owner and insurer as parties to the claim petition. The respondent No.1 owner has filed statement categorically stating that he was not driving the tractor but the driver who was driving the tractor has appeared before the JMFC Court and pleaded guilty. The proceedings in C.C.No.1364/2012 produced at Annexure-F would show that the driver Mahadevappa has pleaded guilty with regard to the accident caused by him on 24.10.2011 while driving the tractor bearing No.KA-25/T-6037/6038. It is not in dispute that the said proceedings has attained finality and the insurer has not challenged the same. Even though the claimant in his evidence has stated that the respondent No.1 was driving the vehicle at the time of the accident and he has informed the same to the police cannot be relied upon to reject the applications. If really the petitioner had informed the police about the driving of the respondent No.1, in the FIR the name of the respondent No.1 as driver ought to have been shown. Initially the FIR registered had not indicated the name of the driver. Further the petitioner/claimant suffered injuries and it is stated that immediately he was shifted to KIMS Hospital and in the accident spot, injured knowing the driver would of remote chance. Therefore, the Tribunal ought to have permitted the petitioner/claimant to implead Mahadevappa who is alleged to be the driver of the tractor as respondent No.3. Further, the Tribunal ought to have permitted the claimant/petitioner to amend the claim petition to say that the respondent No.1 is only owner and proposed respondent No.3 is driver of the tractor. Mere allowing the amendment would not entitle the petitioner/claimant to get relief in the claim petition. Further, the Tribunal ought to have permitted the claimant/petitioner to amend the claim petition to say that the respondent No.1 is only owner and proposed respondent No.3 is driver of the tractor. Mere allowing the amendment would not entitle the petitioner/claimant to get relief in the claim petition. It is for the petitioner to prove the accident and at the time of accident the proposed respondent was driving the vehicle. So also it is open for the respondent insurer to prove their contention that the accident as contended by them has not taken place. The purpose of allowing amendment and allowing impleading of a person is to avoid multiplicity of proceedings and to minimize the litigation. In the facts and circumstances of the present case, I am of the view that proposed respondent would be necessary and proper party to the proceedings. 9. Hence, I am of the view that the order requires interference and accordingly, impugned order dated 19.08.2013 is set aside. I.A.Nos.4 and 5 are allowed. The petitioner is permitted to amend the claim petition as sought and also permitted to implead Mahadevappa as respondent No.3. Accordingly, the writ petitions are disposed of. 10. In view of disposal of the writ petitions, pending I.A's, if any, do not survive for consideration and they are disposed of.