IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.34006 OF 2018 (GM-AC) & WRIT PETITON NO.34946 OF 2018 BETWEEN:
New India Assurance Company Limited, R.T.Nagar Branch, No.374, 1st Floor, Sri Krishna Rukmini Complex, 5th Cross, 9th Main Road, Opp. HMT Play Ground, Near Gandhi Nagar Bus Stand, R.T.Nagara, Bengaluru.
Rep. by its Manager.
(By Smt.Padma.S.Uttur, Advocate for Sri.Ashok.N.Patil, Advocate) AND:
1. C.Munikrishnappa, S/o. Chinnappa, Aged about 48 years, R/o. Rayasandra Village, Channarayapattana Hobli, Devanahalli Taluk, Bengaluru Rural District-562 110.
… Petitioner 2. Shamala.V, W/o. Purushotham Kumar.B.L, No.163, Bychapura Village, Devanahalli Taluk-562 110, Bengaluru Rural District.
(By Sri.K.Murthy, Advocate for R1; R2-Served and unrepresented) … Respondents These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash orders dated 07.04.2018 and 26.07.2018; set aside the order dated 07.04.2018 passed on the IA rejecting application filed under Order 6 Rule 17 read with 151 of CPC in MVC No.1369/2016 passed by the Learned VII Additional Senior Civil Judge and XXXII ACMM, Court of Small Causes (SCCH-3) at Bengaluru, produced as Annexure-J and etc.
These Petitions coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Smt.Padma S. Uttur, learned counsel for Sri.Ashok N. Patil, learned counsel for the petitioner.
Sri.K.Murthy, learned counsel for respondent No.1.
These petitions are admitted for hearing. With the consent of both parties, the same is heard finally.
2. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of orders dated 07.04.2018 and 26.07.2018, by which applications for amendment of written statement filed by the petitioner- Insurance Company has been rejected.
3. Facts giving rise to filing of the writ petitions briefly stated are that on 21.09.2015, respondent No.1/claimant was riding a scooter along with a pillion rider and was proceeding from Devanahalli to Bychapura. It is pleaded in the petition under Section 166 of the Motor Vehicles Act, 1988, that when they reached near Anjaneyaswamy temple, a car bearing No.KA-04- MB-9933 driven by the driver in a rash and negligent manner dashed against them. As a result of which, respondent No.1/claimant sustained injuries. The petitioner/Insurance Company filed written statement in which initially it was pleaded that there was no negligence on the part of the driver of the vehicle, which was involved in the accident. Thereafter, the claimant filed medical records and on the aforesaid basis, the petitioner summoned hospital authorities to produce MLC records as well as police intimation. Thereupon, the petitioner came to know that in fact the vehicle in question was not involved in the accident. The petitioner, therefore, filed an application for amendment of the written statement by which a plea was sought to be impleaded namely, Toyota Qualis, was not involved in the accident. The aforesaid application was rejected by the impugned order 07.04.2018 interalia on the ground that the petitioner cannot be permitted to withdraw the admission made in the written statement.
4. I have heard the learned counsel for the parties and perused the records.
5. From careful perusal of the written statement, which was initially filed by the petitioner as well as the application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), it is evident that there is no admission in the written statement, which is sought to be withdrawn. In fact, the application for amendment of the written statement has been filed on the basis of the documents, which have been placed on record by the claimant himself. Therefore, the finding recorded by the Tribunal that by the proposed amendment the petitioner is seeking to withdraw the admission cannot be said to be perverse.
6. The respondent-claimant shall also be at liberty to file a consequential amendment of the pleadings and therefore, no prejudice will be suffered to him. In any case, the trial Court ought to have appreciated that the burden to prove the respective case pleaded by the parties is on them. The impugned order suffers from error apparent on the face of the record.
7. Accordingly, the impugned order is quashed and set aside. The application filed by the petitioner under Order VI Rule 17 of the Code for amendment of the written statement is allowed.
8. It is made clear that the respondents shall be at liberty to file amended written statement, if so advised.
In view of the fact that the application under Order VI Rule 17 of the Code is already been allowed, no order is required to be passed with regard to the validity of the order dated 26.07.2018.
Accordingly, the petitions are disposed of.
Sd/- JUDGE dn/-