This Civil Revision Petition is filed against order dated 1.8.2008 passed in IA.NO.488/2008 in MACOP.NO.980/2002 by the learned Additional District Judge (MACT-FTC) Pudukkottai dismissing the said application filed by the 2nd Respondent/Insurance Company seeking permission to receive an additional counter.
2. The Respondents/claimants have filed the said MACOP claiming compensation on the allegation that the husband of the 1st Respondent one Murugesan, while he was traveling in a Lorry bearing Reg.No.TN-55-0025 as its cleaner, met with an accident on 24.9.2002 and the accident had occurred due to the rash and negligent driving of one Ramalingam, the driver of the lorry and it capsized in the early morning crushing the said Murugesan. The 1st Respondent/owner in the claim petition filed a counter stating that the said Murugesan was working as a cleaner in the lorry which met with an accident and the lorry has been insured with the Petitioner Insurance Company.
3. The Petitioner Company filed its additional counter contending that none of the available records including the criminal court records furnish any details as to the nature of avocation of the deceased Murugesan and the owner of the lorry having not filed any claim form describing him as its cleaner, it would only lead to the presumption that the deceased was an unauthorised passenger.
4. It appears that the trial has commenced and the claimants' evidence was over. When it was posted for Respondents' evidence, the Insurance Company has sought permission to file an additional counter for the second time stating that in the investigation conducted by them, it has been brought to their notice that Murugesan himself was driving the vehicle at the time of the accident and the accident had occurred only due to his rash and negligent driving and that the deceased Murugesan possessed driving licence only to drive light motor vehicle and did not have an endorsement to drive a public transport vehicle with the necessary badge, etc.
5. The Tribunal refused to grant leave to file an additional counter on the ground that a contradictory plea has been raised by the Petitioner Insurance Company that too belatedly.
6. Mr.G.Prabhu Rajadurai, the learned counsel for the Petitioner contended that the subsequent pleadings even though contradictory to the original counter could be taken in the form of additional counter in order to have a fair trial by affording adequate opportunity to both parties, more particularly when the Insurance Company had been misled by the averment made in the counter filed by the owner that Murugesan was the cleaner of the lorry.
7. Per contra, Mr.K.Balasundaram, the learned counsel for the Respondents contended that in the first additional counter filed by the Insurance Company, the contention of the Insurance Company was that the said Murugesan was an unauthorised passenger and now by way of an additional counter a contradictory plea is made that the said Murugesan had driven the vehicle without any proper license and in such circumstances, if the Petitioner is allowed to file an Additional counter, then it would take the valuable right accrued to the claimants and the owner of the lorry, as the pleadings are contradictory to each other and filed belatedly without any proper reason.
8. In Subramani and 3 others Vs. Jayaram [1998-3-CTC-52], it is held by this court that subsequent pleading by the Defendant even though contradictory to the original Written Statement could be taken in the form of additional Written Statement in order to afford an adequate opportunity to both parties.
9. In this respect, it is useful to refer to the findings of the Honourable Supreme Court rendered in the case of Baldev Singh and others Vs. Manohar Singh and another [2006-5-Supreme-943, wherein the Honourable Supreme Court has held that the courts should be extremely liberal in granting the prayer for amendment unless serious injustice or irreparable loss is caused to the other side. Their Lordships observed that wide power and unfettered discretion has been conferred on courts to allow amendments of pleadings by way of additional plea in such manner and on such terms as it appears to the court just and proper. In that context, it has been held as follows:- "... That apart, it is now well settled that an enhancement of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the Courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the later case. That being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint."
9. The above judgement is to the effect that even inconsistent pleas could be raised by the Defendants in the Written Statement and the amendments to that effect by Additional plea could be permitted.
10. In the decision of this court rendered in the case of Sri Srivasamuthu Mandiran Vs. Gnanasoundar [AIR-2004-518], in an eviction suit, the legal heirs of the deceased tenant in original statement without giving the status of the Plaintiff claimed protection under City Tenant Protection Act,but in Additional Written Statement new defence was taken that the Plaintiff Trust was a public trust and that the suit for eviction was not maintainable. This court has held that additional Written Statement could not be described as unnecessary, scandalous, frivolous or vexatious and inconsistent plea cannot also be termed as aimed to delay the fair trial apart from holding that an inconsistent plea can be included in the Additional plea by the Defendants.
11. In view of the said position of law, the order of the court below refusing to receive the additional counter is not sustainable. To compensate the Respondents for the delay caused in filing the additional plea, the Petitioner Company can be directed to pay a sum of Rs.5000/- as costs to the claimants. It is also made clear that on receiving the additional counter filed by the Petitioner Company, an opportunity shall be given to the claimants to meet the averments made by the Petitioner Company.
12. In the result, the impugned order passed by the Tribunal is set aside and the said IA.No.488/08 stands allowed on payment of cost of Rs.5000/- by the Petitioner Company to the claimants before the Tribunal within four weeks from the date of receipt of a copy of this order. Consequently, the connected MP is closed.
Srcm To:
The Additional District Judge (MACT-FTC) Pudukkottai.