# Smt. Richa Khare & Ors. Revisionist v. Ankit Gupta & Ors

- **Citation:** (2015) 1 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-10
- **Case number:** Civil Revision No. 412 of 2013
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-richa-khare-ors-revisionist-v-ankit-gupta-ors-43176
- **Pages:** 6

## Headnote

C.P.C.-Section
115-Civil
Revision
-
against rejection-application to amend
heading in provision-instead of 163 Ashould
be
Section
166-held-Tribunal
taken
hyper
technical
view-in
both
sections-the vehicle owner or insurance
company-on fault of injured or deceasedcan be defeat claim-no prejudice caused.
Held: Para-12
Significantly,
in
the
amendment
application
no
amendment
of
the
pleading or the relief has been sought by
the claimants. Thus, there is no question
of
change
of
nature
of
the
case.
Moreover, if the amendment is allowed,
no prejudice will be caused either to the
owner or to the insurance company as
under both the provisions i.e. Sections
163A and 166, the owner and the
insurance company can defeat the claim
of the claimants on the ground of fault on
the part of the claimants or injured.
Case Law discussed:
AIR 2004 SC 2107:(2004) 5 SCC 385; 2007
ACJ 2067 Gujrat (DB); 2008 ACJ 909
Rajasthan (FB); 2012 Law Suit (SC) 200:
(2012) 5 SCC 337; 2012 Law Suit (SC)
642:(2012) 11 SC 341; 1998 Law Suit (AP
243:AIR 1998 AP 337; 2007 Law Suit (KAR)
439; Laws (APH)-2006-9-10; (2012) 2 SCC
356; (2012) 2 SCC 300; (2005) 7 SCC 534;
(2006) 12 SCC 1; (2008) 5 SCC 117; (2008) 14
SCC 364; (2009) 2 SCC 409:(2009) 1 SCC
(Civ) 562; (2010) 10 SCC 512:(2010) 4 SCC
(Civ) 239; (2011) 12 SCC 268; (2009) 10 SCC
626:(2009) 4 SCC (Civ) 294.(2006) 4 SCC 385;
(2009) 10 SCC 84.

## Text

1 All] Smt. Richa Khare & Ors. Vs. Ankit Gupta & Ors.
415
parties are on conflict with regard to the fact
whether the landlord had given the
possession of entire premises or not. As
noted above, the said disputed question of
fact cannot be adjudicated in revisional
jurisdiction under Section 25 of the Small
Cause Courts Act. The court below has
recorded a finding of fact on the basis of the
unrebutted report of the Amin and the other
evidence on the record.
37. In view of the above, the
revision lacks merit and it is accordingly
dismissed.
38. The tenant-revisionist is granted
three months' time to vacate the premises
subject to the following conditions;
(i) the tenant shall submit an
undertaking in the court below that he
will handover the vacant and peaceful
possession to the landlord on or before 3
July 2015;
(ii) he will continue to pay the rent
on each succeeding month till vacation of
the accommodation on 07th day of each
month.
(iii) he will not create any third party
interest in the disputed premises.
39. No order as to costs
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Revision No. 412 of 2013
Smt. Richa Khare & Ors. ...Revisionist
Versus
Ankit Gupta & Ors.
...Opp. Parties
Counsel for the Revisionist:
Amit Kumar Shukla
Counsel for the Opp. Parties:
Arun Kumar Shukla
C.P.C.-Section
115-Civil
Revision
-
against rejection-application to amend
heading in provision-instead of 163 Ashould
be
Section
166-held-Tribunal
taken
hyper
technical
view-in
both
sections-the vehicle owner or insurance
company-on fault of injured or deceasedcan be defeat claim-no prejudice caused.
Held: Para-12
Significantly,
in
the
amendment
application
no
amendment
of
the
pleading or the relief has been sought by
the claimants. Thus, there is no question
of
change
of
nature
of
the
case.
Moreover, if the amendment is allowed,
no prejudice will be caused either to the
owner or to the insurance company as
under both the provisions i.e. Sections
163A and 166, the owner and the
insurance company can defeat the claim
of the claimants on the ground of fault on
the part of the claimants or injured.
Case Law discussed:
AIR 2004 SC 2107:(2004) 5 SCC 385; 2007
ACJ 2067 Gujrat (DB); 2008 ACJ 909
Rajasthan (FB); 2012 Law Suit (SC) 200:
(2012) 5 SCC 337; 2012 Law Suit (SC)
642:(2012) 11 SC 341; 1998 Law Suit (AP
243:AIR 1998 AP 337; 2007 Law Suit (KAR)
439; Laws (APH)-2006-9-10; (2012) 2 SCC
356; (2012) 2 SCC 300; (2005) 7 SCC 534;
(2006) 12 SCC 1; (2008) 5 SCC 117; (2008) 14
SCC 364; (2009) 2 SCC 409:(2009) 1 SCC
(Civ) 562; (2010) 10 SCC 512:(2010) 4 SCC
(Civ) 239; (2011) 12 SCC 268; (2009) 10 SCC
626:(2009) 4 SCC (Civ) 294.(2006) 4 SCC 385;
(2009) 10 SCC 84.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. This civil revision under Section
115 of the Code of Civil Procedure,
416
 INDIAN LAW REPORTS ALLAHABAD SERIES
19081 arises out of an order dated 22nd
August, 2013 passed by the Additional
District
Judge/Special
Judge
(EC
Act)/Motor Accidents Claims Tribunal,
Shahjahanpur2 in Motor Accident Claim
Petition No. 297 of 2010 (Smt. Richa
Khare v. Ankit Gupta and others)
whereby the Tribunal has rejected the
amendment application of the claimantsrevisionists under Order VI Rule 17 CPC.
2. The essential facts are that late
Sanjay Khare, husband of the revisionist
no. 1 and father of the revisionist nos. 2
and 3, was a Government employee
working on the post of Assistant Nazir (I)
at District Court, Shahjahanpur. He met
an accident on 25th September, 2008 with
a truck bearing Registration No. U.P.27C5624. He succumbed to his injuries on
30th September, 2008. The revisionists
moved a claim petition before the
Tribunal under Section 163A of the Motor
Vehicles Act, 19883 which was registered
as Motor Accident Claim Petition No. 297
of 2010 (Smt. Richa Khare v. Ankit
Gupta and others). The case of the
claimants-revisionists was that on the
fateful day the driver of the offending
vehicle,
which
is
owned
by
the
respondent no. 1 and insured by the
respondent no. 2, was driving the vehicle
rashly and negligently and he hit the
husband of the revisionist no. 1 who was
returning to his home. In the claim
petition, a claim of Rs.50,45,400/- was
raised. The claim petition was contested
by the defendants-respondents.
3. In the claim petition the
claimants-revisionists
moved
an
application for amendment under Order
VI Rule 17 CPC on 07th August, 2013 on
the ground that due to clerical mistake,
the claim petition was filed under Section
163A of the Act instead of Section 166.
Thus, the claimants sought the only relief
for amendment of section of the claim
petition.
The
said
amendment
was
opposed by the respondents on the ground
that it had been filed at a belated stage.
The amendment application has been
rejected by the Tribunal by the impugned
order dated 22nd August, 2013 on the
ground that there was an option to the
claimants to move the claim petition
either under Section 163A or under
Section 166 of the Act. The Tribunal
further took the view that the proceeding
under Section 163A of the Act is of final
nature which cannot be converted, and in
this regard the Tribunal has placed
reliance on the judgements in Deepal
Girishbhai Soni and others v. United India
Insurance Co. Ltd., Baroda4, New India
Assurance Company Limited v. V.B.N.
Panchan Bhai Patel5, and United India
Insurance Company Limited v. Satya
Narayan Sharma6. The Tribunal has
further
held
that
the
amendment
application has been filed
after a
considerable delay.
4. I have heard learned counsel
appearing for the parties.
5.

Learned
counsel
for
the
revisionists submitted that the claimantsrevisionists did not seek any amendment
in the pleading or the relief of the claim
petition but they only wanted to amend
the section, under which the claim
petition was filed. The amendment was
not going to change the basic nature of the
claim petition. In fact, the amendment
was a bona fide and legitimate. However,
the Tribunal has taken a hypertechnical
approach in rejecting the amendment.
Lastly, he urged that under Section 163A
of the Act a person whose annual income
1 All] Smt. Richa Khare & Ors. Vs. Ankit Gupta & Ors.
417
is Rs.40,000/- or less is covered, which is
evident from the Second Schedule of the
Act. Under Section 163A of the Act,
being
a
social
security
provision
providing for a distinct scheme, only
those persons whose annual income is
upto Rs.40,000/- can take the benefit
thereof. All other claims are required to
be determined in terms of Chapter XII of
the Act. He has placed reliance on several
judgements of the Supreme Court and
other High Courts in Rameshkumar
Agarwal v. Rajmala Exports Private
Limited and others7, Abdul Rehman and
another v. Mohd. Ruldu and others8, Smt.
Pochamma and others v. Mirza Dawood
Bagi and another9, Bangalore Metro
Transport
Corporation
v.
Lakshmamma10,
Deekonda
Suresh
Dharmoji and others v. New India
Assurance
Company
Limited
and
others11.
6.

Learned
counsel
for
the
respondents has supported the findings of
the Tribunal. No other submission has
been made.
7. I have considered the rival
submissions advanced by the learned
counsel appearing for the parties and
perused the record.
8. Section 163A of the Act was
inserted in Chapter XI of the Act by Act
No. 54 of 1994 with effect from 14th
November, 1994. It provides the special
provisions for payment of compensation
on structured formula basis which is
indicated in the Second Schedule of the
Act. Under Chapter X of the Act, Section
140
provides
liability
to
pay
compensation in certain cases on the
principle of 'no fault'. Chapter XII of the
Act deals with the Claims Tribunals.
Section 166 provides that an application
for compensation arising out of an
accident may be made, amongst others, by
the person who has sustained the injury,
or, where death has resulted from the
accident, by all or any of the legal
representatives of the deceased.
9. The distinction among Sections
140, 163A and 166 of the Act has been
elaborately considered by the Supreme
Court in the case of Deepal Girishbhai
Soni (supra). In the said case, the
Supreme Court has held that Section 140
of the Act provides for the claim for
compensation under no fault liability and
by the reason of the said provision, a
fixed sum is to be paid. The Supreme
Court has further held that Section 140 of
the
Act
deals
with
the
interim
compensation but Section 163A was
inserted in the Act to avoid the long
drawn trial or proof of negligence in the
cause of accident. The said section was
inserted for grant of immediate relief to a
section of people whose annual income is
not more than Rs.40,000/-, whereas
Section 166 under Chapter XII of the Act
does not have any such ceiling.
10. The Supreme Court in the case
of National Insurance Company Limited
v. Sinitha and others12 has considered the
distinction between Sections 140 and
163A of the Act. The Court held that the
claim of compensation under Section 140
of the Act cannot be defeated because of
any of the fault grounds i.e. "wrongful
act", "neglect" or "default". Thus, in the
case of Section 140, the owner or insurer
cannot take a plea that there was fault on
the part of the claimant or the deceased.
Therefore, the claim made under Section
140 is based on "no-fault liability"
principle. However, under Section 163A
418
 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act it is not essential for the
claimants to plead or establish that the
accident suffers from "wrongful act" or
"neglect" or "default" of the offending
vehicle, but the owner or the insurance
company can plead that there was
"wrongful act", "neglect" or "default" on
the part of the deceased/ injured. In case
the owner or the insurance company
established that the accident took place
due to fault of the deceased/injured then
the claim petition can be defeated. The
Court while drawing distinction between
no fault theory held as under:
"27. Thus, in our view, it is open to a
party concerned (the owner or the insurer)
to defeat a claim raised under Section
163-A of the Act by pleading and
establishing any one of the three "faults",
namely, "wrongful act", "neglect" or
"default". But for the above reason we
find no plausible logic in the wisdom of
the legislature for providing an additional
negative bar precluding the defence from
defeating a claim for compensation in
Section 140 of the Act and in avoiding to
include a similar negative bar in Section
163-A of the Act. The object for
incorporating sub-section (2) in Section
163-A of the Act is that the burden of
pleading
and
establishing
proof
of
"wrongful act", "neglect" or "default"
would not rest on the shoulders of the
claimant. The absence of a provision
similar to sub-section (4) of Section 140
of the Act from Section 163-A of the Act
is for shifting the onus of proof on the
grounds of "wrongful act", "neglect" or
"default" on to the shoulders of the
defence (the owner or the insurance
company). A claim which can be defeated
on the basis of any of the aforesaid
considerations, regulated under the "fault"
liability principle. We have no hesitation
therefore to conclude that Section 163-A
of the Act is founded on the "fault"
liability principle."
11. In the present case, a copy of the
claim petition is on the record. From a
perusal of pleadings of the claim petition
it is evident that all the necessary
pleadings required under Section 166 of
the Act have been made in the claim
petition and a claim of Rs.50,45,400/-has
been made. It is also pleaded by the
claimants in the claim petition that the
accident had taken place due to rash and
negligent driving of the truck driver.
Thus, all the necessary ingredients for an
application under Section 166 of the Act
are present in the claim petition.
12. Significantly, in the amendment
application no amendment of the pleading
or the relief has been sought by the
claimants. Thus, there is no question of
change of nature of the case. Moreover, if
the amendment is allowed, no prejudice
will be caused either to the owner or to
the insurance company as under both the
provisions i.e. Sections 163A and 166, the
owner and the insurance company can
defeat the claim of the claimants on the
ground of fault on the part of the
claimants or injured.
13. Insofar as the finding of the
Tribunal that the amendment application
has been moved at a belated stage is
concerned, the law in respect of such
amendment has been considered by the
Supreme Court in the case of J. Samuel
and others v. Gattu Mahesh and others13,
in the following terms:
"23. Though the counsel for the
appellants have cited many decisions, on
perusal, we are of the view that some of
1 All] Smt. Richa Khare & Ors. Vs. Ankit Gupta & Ors.
419
those cases have been decided prior to the
insertion of Order 6 Rule 17 with proviso or
on the peculiar facts of that case. This Court
in various decisions upheld the power that in
deserving cases, the Court can allow delayed
amendment by compensating the other side
by awarding costs. The entire object of the
amendment to Order 6 Rule 17 as introduced
in 2002 is to stall filing of application for
amending a pleading subsequent to the
commencement of trial, to avoid surprises
and that the parties had sufficient knowledge
of other's case. It also helps checking the
delays in filing the applications. [Vide
Aniglase
Yohannan
v.
Ramlatha14,
Ajendraprasadji N. Pandey v. Swami
Keshavprakeshdasji N.15, Chander Kanta
Bansal
v.
Rajinder
Singh
Anand16,
Rajkumar Gurawara v. S.K. Sarwagi and Co.
(P) Ltd.17, Vidyabai v. Padmalatha18 and
Man Kaur v. Hartar Singh Sangha19.]"
(Emphasis supplied by me)
14. In the case of State of Madhya
Pradesh v. Union of India and another20
the Supreme Court has held that in case
the amendment is moved at a belated
stage, the Court has wide and unfettered
discretion to allow the amendment of the
pleadings on such terms as it appears to
the Court proper and just. The amendment
cannot be refused if it is found that for
deciding the real controversy between the
parties it can be allowed on payment of
cost. The relevant part of the judgement
reads as under:
"10. This Court, while considering
Order 6 Rule 17 of the Code, in several
judgments has laid down the principles to
be applicable in the case of amendment of
plaint which are as follows:
(i)
Surender Kumar Sharma v.
Makhan Singh21, at para 5: (SCC p. 627)
"5. As noted hereinearlier, the prayer
for amendment was refused by the High
Court on two grounds. So far as the first
ground is concerned i.e. the prayer for
amendment was a belated one, we are of
the view that even if it was belated, then
also, the question that needs to be decided
is to see whether by allowing the
amendment, the real controversy between
the parties may be resolved. It is well
settled that under Order 6 Rule 17 of the
Code of Civil Procedure, wide powers
and unfettered discretion have been
conferred
on
the
court
to
allow
amendment of the pleadings to a party in
such a manner and on such terms as it
appears to the court just and proper. Even
if, such an application for amendment of
the plaint was filed belatedly, such
belated amendment cannot be refused if it
is found that for deciding the real
controversy between the parties, it can be
allowed on payment of costs. Therefore,
in our view, mere delay and laches in
making the application for amendment
cannot be a ground to refuse the
amendment."
(ii) **** **** ****
(iii) **** **** ****
(iv) Rajesh Kumar Aggarwal v. K.K.
Modi22, at paras 15 & 16: (SCC pp. 39293)
"15. The object of the rule is that the
courts should try the merits of the case
that come before them and should,
consequently, allow all amendments that
may be necessary for determining the real
question in controversy between the
parties provided it does not cause injustice
or prejudice to the other side.
16. Order 6 Rule 17 consists of two
parts.
Whereas
the
first
part
is
discretionary (may) and leaves it to the
court to order amendment of pleading.
420
 INDIAN LAW REPORTS ALLAHABAD SERIES
The second part is imperative (shall) and
enjoins the court to allow all amendments
which are necessary for the purpose of
determining
the
real
question
in
controversy between the parties."
15. The Supreme Court in Revajeetu
Builders
and
Developers
v.
Narayanaswamy and Sons and others23
has culled out certain factors to be taken
into consideration while dealing with the
application for amendment:
"63. On critically analyzing both the
English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:
(1) whether the amendment sought is
imperative for proper and effective
adjudication of the case;
(2) whether the application for
amendment is bona fide or mala fide;
(3) the amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;
(4) refusing amendment would in
fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes
the nature and character of the case; and
(6) as a general rule, the court should
decline amendments if a fresh suit on the
amended claims would be barred by
limitation on the date of application.
These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 Rule 17. These are only illustrative and
not exhaustive."
16.

Applying
the
aforesaid
parameters to the present case, it is
evident that the Tribunal has taken a
hypertechnical view and has rejected the
amendment
application
on
wrong
premise.
17. In view of the above, the
impugned order dated 22nd August, 2013
passed by the Tribunal is set aside. The
matter is remitted to the Tribunal to
decide the amendment application afresh
within three months from the date of
communication of this order.
18. The revision is, accordingly,
allowed. No order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Criminal Revision No. 497 of 2006
Abhay Kumar Dubey
 ...Revisionist
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Revisionist:
Arvind Kumar Tewari
Counsel for the Respondents:
Govt. Advocate
Criminal
Revision-Against
order
by
Magistrate-treating
complaint
caseinstead directing the police to registered
the case-on application under Section
156
(3)
Cr.P.C.-held-finding
by
Magistrate-controversy
being
civil
in
nature-rightly treated it the complaint
case-no
illegality
committed-revision
rejected.
Held: Para-9
In present matter all evidence required
to be proved in the case is within
knowledge of revisionist. Learned Court