REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1253/2010
SUDERSHAN SINGH ..... Petitioner
Through: Mr. Anand Prakash, Advocate.
versus
RAVINDER UPPAL AND ORS ..... Respondents
Through: Mr. Sanjay Agnihotri, Advocate
for the respondent No.1.
Ms. Manjusha Wadhwa,
Advocate for the respondent
No.3.
% Date of Decision : MAY 26, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
: REVA KHETRAPAL, J.
1. This petition is directed against the order dated 05.07.2010,
passed by the Claims Tribunal, Tis Hazari Courts, Delhi, allowing the
CM(M) 1253/2010 Page 1 of 16
application filed by the respondent No.1 herein under Order VI Rule
17 read with Section 151 CPC for amendment of the petition.
2. The short question which arises for decision in the present
petition is as to whether an application for compensation arising out
of an accident of the nature specified in sub-Section (1) of Section
165 may be made by the father of the person injured without being
duly authorized in writing.
3. The brief facts relevant for the decision of the petition are that a
claim petition was filed on 12.07.2007 under Section 166 read with
Section 140 of the Motor Vehicles Act, 1988 for grant of
compensation against the petitioner and the respondents No.2 and 3
on the ground that on 17.03.2007, when the respondent No.1 was on
his way to Karol Bagh from his residence, the offending vehicle being
driven in a rash and negligent manner by the petitioner slammed into
the respondent No.1 and ran over him, causing multiple injuries. The
said petition was neither signed, nor verified, nor filed by the injured
person, namely, Shri Ravinder Uppal, the respondent No.1. This
necessitated the filing of an amendment application under Order VI
CM(M) 1253/2010 Page 2 of 16
Rule 17 read with Section 151 CPC. The Claims Tribunal in the
impugned order noted as follows:
” It is stated that during the cross examination of
PW1, it was realized that though the present claim
petition has been filed by the petitioner through his
father in a representative capacity but the said fact
of representative character was not mentioned in
the petition. Therefore, there is need for correction
of the title and for the verification accordingly.
The other amendment relates to the subsequent
events in regard to claim of further treatment
expenses and compensation for continued
treatment.
Reply to the application has been filed by
respondent No.3. Wherein it is stated that the
present application has been filed merely to fill in
the lacuna of the case. It would change the nature
of the case and would also cause prejudice to the
respondents.”
4. The Claims Tribunal, after hearing the counsel for the parties,
allowed the first amendment as well as the second amendment. So far
as the second amendment, which relates to the incorporation of
subsequent events with regard to the further medical expenses
incurred by the injured as a result of future complications and
treatment of the injured is concerned, there is no dispute. The
petitioner, however, challenges the first amendment allowed by the
CM(M) 1253/2010 Page 3 of 16
Claims Tribunal on the ground that the amendment prayed for by the
injured viz., the respondent No.1 and allowed by the Claims Tribunal
has the effect of filling-up the lacunae left by the respondent No.1 and
that too after the defence of the petitioner had been put to the
respondent No. 1 in cross-examination, which is not permissible in
law.
5. Mr. Anand Prakash, the learned counsel for the petitioner (who
was the respondent No.1 in the Claim Petition), contended that
serious prejudice would be caused to the petitioner if the amendment
prayed for by the claimant and allowed by the Claims Tribunal by the
impugned order is not set aside by this Court. The counsel for the
petitioner also contended that in the cause title of the petition, it was
nowhere indicated that the petition was being filed through the Power
of Attorney of the respondent No. 1 nor it was mentioned in the
petition itself that it was signed and verified through the Power of
Attorney and, as a matter of fact, there was no power conferred upon
Shri Pradeep Kumar Uppal, the father of the respondent No.1-
claimant, to sign, verify and institute the petition on behalf of the
CM(M) 1253/2010 Page 4 of 16
respondent No.1. The petition, having been filed by the father of the
respondent No.1, without authorization from the respondent No. 1,
was not maintainable in law and hence, liable to be dismissed.
6. Reference was made by the learned counsel for the petitioner to
the provisions of Section 166 (1) (d) of the Act, which read as under:
166. Application for compensation. – (1) An
application for compensation arising out of an
accident of the nature specified in sub-section (1)
of section 165 may be made –
(a)………………..
(b)………………..
(c)…………………
(d) by any agent duly authorized by the person
injured or all or any of the legal representatives of
the deceased, as the case may be.”
7. The learned counsel for the petitioner further contended that
the amendment to the petition was sought at a belated stage after
PW1-Shri Ravinder Uppal had been cross-examined on 15.05.2008,
CM(M) 1253/2010 Page 5 of 16
and had admitted that it was nowhere mentioned in the petition that
the petition had been signed, verified and filed on his behalf through
his father. Further, it was contended on behalf of the petitioner that
the original Power of Attorney purportedly executed by the
respondent No.1/injured in favour of his father Mr. Pradeep Kumar
Uppal, on which reliance was sought to be placed by the respondent
No.1, was still not on record and, in this view of the matter, the
amendment sought for by the respondent No.1 could not have been
allowed by the Claims Tribunal.
8. To counter the aforesaid contentions of the learned counsel for
the petitioner, Mr. Sanjay Agnihotri, the learned counsel for the
respondent No.1/injured contended that a bare glance at the petition
was sufficient to show that though the petition was signed and
verified by Shri Pradeep Kumar Uppal, in the affidavit filed in
support of the petition the said Shri Pradeep Kumar Uppal clearly
stated that he was the father and the Power of Attorney holder of the
petitioner/claimant and was well conversant with the facts of the case
and competent to swear the affidavit. He further submitted that,
CM(M) 1253/2010 Page 6 of 16
inadvertently, in the petition, it was not mentioned that Shri Pradeep
Kumar Uppal, was filing the petition on behalf of his son and this
omission was sought to be corrected by filing the amendment
application. He also submitted that the application under Order VI
Rule 17 read with Section 151 CPC was filed by the respondent No.1
on 12th May, 2009, but despite opportunity granted for the purpose,
the petitioner did not choose to file any reply to the said application
till the date of its disposal on 05.07.2010. On the other hand, after the
amendment was allowed by the Claims Tribunal and the counsel for
the respondent No. 1 made a prayer before the Claims Tribunal that
he wanted to re-examine the respondent No. 1, that is PW1 –
Ravinder Uppal with regard to the subsequent treatment undergone by
him, the petitioner raised no objection thereto, and as a matter of fact
chose to cross-examine the respondent No. 1 at great length on the
date fixed, that is, on 30th August, 2010. The learned counsel
submitted that for all the aforesaid reasons, it was too late in the day
for the petitioner to now raise objection to the amendment, when he
had not even chosen to file a reply to the application for amendment.
CM(M) 1253/2010 Page 7 of 16
9. Having heard the learned counsel for the parties at length, this
Court cannot help but observe that the General Power of Attorney
relied upon by the respondent No.1, authorizes the father of the
respondent No.1 – Shri Pradeep Uppal to sign, verify, present, appear
and pursue all kinds of suits, applications, affidavits, reviews,
petitions, appeals, notices etc., on behalf of the respondent No.1 in all
courts and concerned departments in respect of the motor cycle of the
injured, but no authorization is given to Shri Pradeep Uppal thereby
to institute a claim petition for compensation on account of the
injuries sustained by the respondent No.1. Be that as it may, the said
Power of Attorney, to my mind, is not a relevant document, pertinent
to the controversy in issue, and, in any case, only a photostat copy
thereof is placed on record.
10. A plain reading of sub-section 1(d) of Section 166 of the Motor
Vehicles Act, 1988 shows that an application for compensation
arising out of an accident may be filed by any agent duly authorized
by the person injured and in the case of a fatal accident, by all or any
of the legal representatives of the deceased, as the case may be, but
CM(M) 1253/2010 Page 8 of 16
the said section nowhere envisages that such authorization should be
in writing. If the legislature intended that the person injured should
authorize his agent in writing to institute a claim petition on his
behalf, it would have stated so in clause (d) of Section 166 (1) itself,
but the words “in writing” are conspicuously absent from the said
sub-section.
11. The Motor Vehicles Act, 1988, moreover, being a beneficent
piece of legislation, must be so construed so as to further the object of
the Act. The object of the Act, clearly, is to provide compensation to
the victims of a motor accident. If the grant of such compensation to
motor accident victims is hemmed in by procedural and other
technicalities, the purpose of the Act is liable to be defeated. Even
otherwise, it is well-settled that strict rules of pleadings and evidence
are not to be applied in motor accident claims cases. Procedural
rules, even in civil cases, have been held to be hand-maidens of
justice, which are not to be allowed to obstruct the course of justice.
In a motor accident case, this applies with greater force. Take the
example of an injured victim, who is physically and mentally unfit to
CM(M) 1253/2010 Page 9 of 16
file a claim petition, or is in coma, or is on the brink of collapse, can
such a victim institute a claim petition of his own? The answer, quite
obviously, must be an emphatic „No‟. In such circumstances, it is
only a parent or a spouse or a near relative who can do so on his
behalf. Sometimes, motor accident victims are known to lie in
hospital for several months or to remain bed-ridden for years together.
Are such victims to be denied the expenses for their medical
treatment, attendant charges and claims under other heads merely
because they cannot authorize in writing a member of their family to
institute a petition on their behalf? To construe the provisions of
Section 166(1)(d) in such a narrow and pedantic manner would be a
travesty of justice.
12. In the instant case, the petitioner is stated to have undergone 22
surgeries and is still stated to be undergoing treatment. The record
bears out the fact that he was crushed by the offending truck of Tata
make, which is a heavy vehicle, resulting in grave injuries on his
person. In such circumstances, the petition was signed, verified and
instituted by his father by prominently highlighting in Column no. 1
CM(M) 1253/2010 Page 10 of 16
thereof the name of the injured as Ravinder Uppal, in which column
the name of the victim and the name of the victim‟s father are both set
out but the name of the victim is in bold print. The affidavit filed in
support of the petition further clarifies that the petition is being filed
by the father of the victim. In such circumstances, the allegation that
there was concealment of the true facts is entirely mis-placed, more
so, as at the time of evidence, the claimant himself appeared in the
witness box as PW1. It was only when he was cross-examined that
he became aware of the fact that the averment that his father had been
duly authorized by him to institute the petition on his behalf had not
been made in the petition. He, accordingly, moved an amendment
application to which the petitioner (the respondent No.1 in the claim
petition) chose not to file a reply. Technically, at this point of time,
the petitioner waived his right to file a reply and it is no longer open
to him to challenge the amendment at the appellate stage, more so,
when he has thereafter cross-examined the claimant extensively.
13. In the case of ‘United Bank of India versus Naresh Kumar
and Ors.’, 1996(6) SCC 660 a suit was instituted by a person who
CM(M) 1253/2010 Page 11 of 16
was not duly authorized on behalf of the public corporation to file the
plaint on its behalf. While holding that procedural defects which do
not go to the root of the matter should not be permitted to defeat a just
cause, the Supreme Court exposited that even when the trial court
finds that the plaint is not duly signed and verified by a competent
person, the appellate court in exercise of its power under Order 41
Rule 27 (1) (b) CPC can require a proper Power of Attorney to be
produced or can order a competent person to be examined as a
witness to prove the ratification. As already stated, a claim petition
stands on a higher pedestal than a civil suit, the same being a petition
filed under an Act the intent of which is to confer benefit on the
victims of motor accidents. What applies to the institution of a plaint
will, therefore, apply with all the more force in the case of a motor
accident claim case.
14. In the case of Sri Binod Chandra Goswami versus Dr. Anandi
Ram Baruah and Anr. 1993 ACJ 284, the following apposite
observations were made by a Single Bench of Gauwahati High Court:
“I have considered the submission made on behalf
of the petitioner and the opposite party and haveCM(M) 1253/2010 Page 12 of 16
perused the impugned order and other materials on
records. Technically the impugned order does not
suffer from any infirmity. But the provisions of
law are not to be observed as ritual. There lies the
legislative intendment as well as juristic principles
beneath the words of the provision of law. From a
plain reading of Section 166 of the M. V. Act, it
becomes apparent that legislative intendment
regarding entertaining application claiming
compensation by the tribunal is very liberal. Sub-
section (4) of Section 166 empowers the Tribunal
to treat the report filed by the police officer
regarding an accident as if it were an application
under the provisions of the M. V, Act. What care is
to be taken by the Tribunal is to see that no person
other than the person entitled to compensation
manages to get away with the compensation by
impersonation. In the case wherein the application
is made by a person other than the person entitled
to the compensation, without being authorized,
only course for the learned Tribunal may not be to
reject the application. The learned Tribunal may
treat the application as if it was preferred by the
person entitled to compensation if subsequent to
the filing of such claim application, the real
claimant appears before the Tribunal and endorses
the action taken by the unauthorized person
claiming compensation. Legislative intendment to
provide immediate relief to the injured person as
contemplated under Section 140 of the M. V. Act
cannot be allowed to be sacrificed at the altar of
technicality.”
“In the instant case, no doubt, claim application
was made by the petitioner without obtaining prior
authority from the injured. But if the learned
tribunal is satisfied that subsequently the injuredCM(M) 1253/2010 Page 13 of 16
has appeared before it by his subsequent act of
appointing the petitioner as his constituted
attorney, the Tribunal may treat the application as
if it were, filed by the injured through a duly
authorized person.”
15. A division bench of the Karnataka High Court in the case of
Malini Muralidharan Nair and Ors. versus Geetha Transport
Company and Ors. 2002 ACJ 92, while considering the provisions
of Section 110-A (1) (c) of the Motor Vehicles Act, 1939, which are
in pari materia to the provisions of Section 166 (1) (d) of the Motor
Vehicles Act, 1988 observed as follows:
“The expression “duly authorized agent” contained
in Section 110-A does not mean that authorization
should always be in writing. It includes a person
having an implied authority to claim compensation
for the one who is injured in the accident or even
for the legal representatives of a deceased person.
We have to conceive the situation where the
claimant is injured, suffered severe injuries
resulting in his becoming physically or mentally
handicapped, to apply or to execute an authority
and in such a case if we take that there should be
written authority, it may frustrate the whole object
of creating the special Tribunals, for quick justice
avoiding technicalities. The Section does not
provide or require that authority must be in
writing. The authority may be implied from earlier
or subsequent conduct as well of the person onCM(M) 1253/2010 Page 14 of 16
whose behalf the claim petition had been filed by
another under implied authority.”
16. In view of the aforesaid, I am of the considered opinion that in
the present case, where the injured/respondent No.1 had sustained
grievous injuries in a motor accident allegedly on account of the
recklessness of the petitioner-driver and is undergoing treatment till
date, hyper technicalities cannot be allowed to deflect the course of
justice. Even otherwise, the interpretation sought to be placed on the
provision of Section 166(1)(d) in the instant case is not correct, for
the reason that the said section nowhere requires the victim to
authorize the filing of a petition for compensation on his behalf “in
writing”. The words “in writing”, therefore, in my view, cannot be
read into the section, more so, when they would defeat the object of
the Act itself, and result in non-conferment of benefit on the victims
of road accidents to which they would otherwise be entitled. The
petitioner, in any case, had waived his right to challenge the
impugned order by virtue of the fact that prior to the filing of the
present petition he had not filed written statement to the amended
petition and even cross-examined the respondent No.1 without demur
CM(M) 1253/2010 Page 15 of 16
or protest. The present petition is, therefore, not maintainable and is
liable to be dismissed.
17. The petition is accordingly dismissed with the observation that
in case the respondent No.1 succeeds in his claim petition, and in the
event the Insurance Company is saddled with the liability for payment
of compensation, the petitioner may be burdened with the liability to
pay interest for the period the present petition remained pending in
this Court.
REVA KHETRAPAL
(JUDGE)
MAY 26, 2011
ak
CM(M) 1253/2010 Page 16 of 16