Orissa High Court
Choudhury Prasanta vs Atmaprakash Narayan Swain & .... ... on 30 May, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14698 of 2024
(In the matter of an application under Articles 226 and 227of
227 the
Constitution of India, 1950).
Choudhury Prasanta .... Petitioner(s)
Petitioner
Kumar Mishra & Anr.
-versus-
Atmaprakash Narayan Swain & .... Opposite Party
Part (s)
Anr.
Advocates appeared in the case throughHybrid Mode:
For Petitioner(s) : Mr. Swarup Kumar Patnaik, Adv.
For Opposite Partyy (s) : Mr. Ashok Das, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:
HEARING:-14.05.2025
DATE OF JUDGMENT:-30.05.2025
Dr. S.K. Panigrahi,, J.
1. The Petitioner,, by way of the present Writ Petition,, assails the order dated 11.03.2024 passed by the learned First Motor Accident Claims Tribunal, Cuttack, whereby hisapplication for amendment of the claim petition in MAC No.802 of 2019, filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, w was rejected.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case caseare asfollows:
Signature Not Verified Digitally Signed Page 1 of 14 Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23
(i) The wife of Petitioner No.1 and mother of Petitioner No.2, late Smt. Haripriya Dash, was a retired Senior Judicial Officer.
(ii) On 09.12.2018, at approximately 1:00 PM, while returning to her residence at Sector 11, C.D.A., Cuttack, from Windsor Palace, Sector 6, C.D.A., Cuttack, in a Fiat Punto bearing registration number OD OD-
05K-4400, being driven by her engaged driver, who held a valid driving licence, the petitioner's vehicle was allegedly hit by a Maruti car bearing registration number OD OD-19C-8315, 8315, coming from the opposite direction and being driven in a rash and negligent manner.
(iii) As a result of the collision, Smt. Dash sustaine sustained d grievous injuries.
She was initially admitted to Aswini Hospital, Cuttack, and was subsequently shifted to a hospital in Bhubaneswar Bhubaneswar, where she underwent surgery and remained under treatment until her discharge on 20.12.2018.
(iv) Post-discharge,
discharge, she continue
continued
d to receive physiotherapy and regular medical supervision. Despite such treatment, she reportedly experienced persistent pain and stiffness in her right leg and hand, which impaired her mobility and rendered her dependent on others for her routine activit activities.
(v) On account of the injuries and consequential losses sustained, she instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988, before the Motor Accidents Claims Tribunal, Cuttack, registered as MAC No. 802 of 2019, seeking compensation compensat of ₹12,13,094/- with interest.
Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23
(vi) Upon admission of the claim petition, notice was issued to the opposite parties, namely, the owner and insurer of the alleged offending vehicle. Opposite Party No.2, the insurer, filed a written statement admitting the accident accident and insurance coverage but disputing the quantum of compensation claimed. Opposite Party No.1, the owner, did not enter appearance and remained ex parte.
(vii) During the pendency of MAC No. 802 of 2019, Smt. Dash contracted COVID-19 19 amid the pandemic and passed away on 23.10.2021.
(viii) Following her demise, the present petitioners, being her husband and son, filed an application under Order XXII Rule 3 of the Code of Civil Procedure and were substituted as legal representatives in the pending claim before the Motor Accidents Claims Tribunal, Cuttack.
Cuttack Upon examining the original claim application, they sought to bring on record the alleged deterioration in her health following surgery, including her weakened immunity and consequent vulnerability to COVID-19, which, ch, according to them, ultimately led to her death. Accordingly, they filed an application under Order VI Rule 17 of the Code of Civil Procedure on 06.10.2023 before the Motor Accidents Claims Tribunal, Cuttack Cuttack,, praying for amendment of the claim petition under Section 166 of the Motor Vehicles Act, 1988.
(ix) The contesting Opposite Party No.2, the insurer, filed an objection on 13.02.2024, asserting that the amendment application, filed by persons who were not the original claimants, was not maintainable. It was as further contended that the cause of death had no nexus with Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 the accident-related related injuries and that the proposed amendment would alter the fundamental character of the claim, thereby causing serious prejudice to the insurer.
(x) By order dated 11.03.2024, the the Motor Accidents Claims Tribunal, Cuttack, rejected the petitioners' prayer for amendment, inter alia, on the ground that they had previously stated in their substitution application under Order XXII Rule 3 CPC that the original claimant had died due to COVID OVID-19, 19, and could not now take a contradictory stand by attributing her death to the injuries sustained in the accident. The Motor Accidents Claims Tribunal, Cuttack Cuttackheld that the doctrine of approbate and reprobate was attracted in the present case.
(xi) Aggrieved eved thereby, the petitioners have approached this Court by way of this writ petition seeking its intervention. II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioner Petitioners earnestly made the following submissionss in support of his contentions:
(i) The Petitioners submitted that the impugned order passed by the Motor Accidents Claims Tribunal, Cuttack Cuttack, is thoroughly illegal, arbitrary, and based on an erroneous appreciation of the materials available on record, and for these reasons, the same is liable to be set aside or quashed.
(ii) The Petitioners further contended that the original claimant/petitioner before the Motor Accidents Claims Tribunal, Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 Cuttack had admittedly passed away during the pendency of the proceeding, and the present petiti petitioners oners were allowed to be substituted in her place. Upon their substitution, the Petitioners bona fide filed an application praying to incorporate the factum of death of the original claimant and her further sufferings from 16.07.2019 onwards till her demis demisee by way of the proposed amendment. However, the Motor Accidents Claims Tribunal, Cuttack completely misdirected itself in refusing to entertain such an amendment, which is vital for the proper and fair adjudication of the claim. Therefore, the impugned order is liable to be set aside aside.
(iii) The Petitioners asserted that the proposed amendment does not contain any contradictory plea but rather fortifies the factum of the death of the original claimant/petitioner after the alleged accident. These facts are subsequ subsequent ent developments during the pendency of the claim application and are in continuation of the earlier plea. However, the Motor Accidents Claims Tribunal, Cuttack has misconstrued this position by holding that the proposed amendment is hit by the doctrine of approbate and reprobate.
(iv) The Petitioners contended that if the proposed amendment of the claim application is allowed to be incorporated, it would neither change the nature and character of the claim nor affect the quantum of compensation sought, nor woul wouldd it cause any prejudice to the Opposite Parties.
Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23
(v) The Petitioners submitted that the plea in the original claim application was confined solely to the sufferings of the original claimant caused by the rash and negligent driving of the offending vehicle, resulting sulting in her disablement. Her ultimate death, according to the Petitioners, was due to infection with COVID-19 COVID 19 resulting from a weakened immune system.
In this context, the applications filed under Order 22 Rule 3 CPC and Order 6 Rule 17 CPC do not allege allege that the accident itself was the direct cause of death. Therefore, the Tribunal's finding of a contradictory stand is wholly misplaced. Even assuming, without admitting, that such a contradiction exists, it is a matter subject to trial. Hence, the refusa refusall to entertain the amendment on this ground is per se illegal, unreasonable, and indicative of complete non non-
application of judicial mind.
(vi) The Petitioners submitted that the original claimant/petitioner, during her lifetime, had herself filed the application application under Section 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Cuttack,, averring her sufferance due to the alleged accident and claiming compensation against the Opposite Parties. Her cause of death being a subsequent event during during the pendency of the proceeding, it became the legal obligation of the present petitioners to bring such fact of death on record. Even if the proposed amendment is contradictory to the earlier plea, the Opposite Parties have ve every right to dislodge such assertions ssertions during Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 the course of trial. Therefore, prejudging this issue at this stage of the proceeding is impermissible under law.
(vii) The Petitioners contended that it is a settled position of law that, while dealing with a prayer for amendment of pleadings, the Court should avoid a hyper-technical hyper technical approach and is ordinarily required to adopt a liberal stance.
stance The principle governing the amendment of pleadings leadings must be applied liberally and not technically. The manner in which the application seeking the proposed amendment was disallowed by the Motor Accidents Claims Tribunal, Cuttack Cuttackis contrary to this settled legal mandate. To buttress this argument, the t Petitioner relied on the decisions in Rajesh Kumar Agrawall and Others v. K.K. Modi1and Shikharchand Jain v. Digamber Jain PrabandKarini Sabha Sabha.2 III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned d Counsel for the Opposite Part Parties earnestly made the following submissions in support of his contentions:
(i) The original claimant met with an accident on 09.12.2018 and was discharged after full recovery on 20.12.2018. She subsequently passed away on 23.10.2021 due to COVID COVID-19, 19, as categorically categori admitted by the petitioners in their substitution application filed under Order 22 Rule 3 CPC. Now, in an apparent bid to secure enhanced compensation, the petitioners seek to amend the original MAC case to allege that her death was a consequence of the 1 (2006) 4 SCC 385.2
(1974) 1 SCC 675.Signature Not Verified
Digitally Signed Signed by: LITARAM MURMU
Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 accident. This plea is inconsistent with their earlier admission, appears to be an afterthought, and is both factually and legally unsustainable.
(ii) The substitution application contained no reference whatsoever to any causal link between the accident and the claimant's death. The belated amendment, filed nearly two years after her death, seeks to alter the originally stated cause of death and introduce an inconsistent version, unsupported by any medical documentation. The absence of such evidence and the inherent contradiction in the pleadings fully justified the Motor Accidents Claims Tribunal, Cuttack, in rejecting the amendment.
(iii) The Motor Accidents Claims Tribunal, Cuttack Cuttack,, by its order dated 11.03.2024, rightly rejected the application under Order 6 Rule Ru 17 CPC, noting the contradiction between the substitution petition and the proposed amendment. It held that petitioners cannot be permitted to take inconsistent stands on the cause of death. In view of the above, this writ petition challenging the Tribunal's Tribunal's well well-
reasoned order deserves to be dismissed. IV. COURT'S REASONING AND ANALYSIS:
5. Heard learned counsel for the parties and perused the materials on record.
6. The primary issue for consideration in the th present writ petition is whether the Motor Accidents Claims Tribunal, Cuttack erred in Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 rejecting the amendment petition filed by the petitioners under Order VI Rule 17 CPC.
7. Order VI Rule 17 CPC governs the amendment of pleadings and provides that the Court may, may at any stage of the proceedings, allow either party arty to alter or amend his pleadings in such manner and on such terms as may be just, provided the amendments are necessary for determining the real questions in controversy between the parties. The provision is replicated hereinunder:
"17.
17. Amendment of pl pleadings.--The The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions tions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
trial."
8. It is a settled principle that courts must adopt a liberal approach while considering applications for amendment of pleadings. However, such an approach is not unfettered and must operate within the boundaries of the statutory framework.
9. The Supreme Court in North Eastern Railway Admn. v. Bhagwan Das3, observed the following in this regard:
"16. Insofar as the principles which govern the question of granting granting or disallowing amendments under 3 (2008) 8 SCC 511.Signature Not Verified Digitally Signed Signed by: LITARAM MURMU
Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings.
In PirgondaHongondaPatil v. KalgondaShidgondaPati ndaShidgondaPati l [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determinin determining g the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could n not ot be compensated in costs.
(Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166] .)"
10. In a similar vein, the Supreme Court in LIC v. Sanjeev Builders (P) Ltd.4, enumerated the following principles:
"71. Our final conclusions may be summed up thus: 71.2 All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", shall", in the latter part of Order VI Rule 17 of the CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided 4 (2022) 16 SCC 1.Signature Not Verified
Digitally Signed Signed by: LITARAM MURMU
Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment mendment does not raise a time time-barred barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless:
71.4.1. By the amendment, a time time-barred claim m is sought to be introduced, in which case the fact that the claim would be time-barred barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence.
71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin-
pin pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7. Where the amendment merely sought to introduce an additional tional or a new approach without introducing a time-
time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars particulars in the plaint.
71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the he amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed."
11. The Supreme Court reaffirmed these principles in Dinesh Goyal v.
Suman Agarwal (Bindal)5 , emphasising that amendments may be allowed at any stage of the proceedings, provided the amendment is necessary to determine the real question in controversy" between the parties.
12. Turning to the specific facts of the present case, the Motor Accidents Claims Tribunal, Cuttack observed that the petitioners, in their petition for substitution dated 15.02.2021, had stated that the original petitioner died on 23.10.2021 due to COVID COVID-19.
19. However, in the amendment petition, the petitioners took a contradictory stance, alleging that the death resulted from injuries sustained in the 5 2024 SCC OnLine SC 2615 2615.
Signature Not VerifiedDigitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23 alleged accident. The MACT held that such inconsistent pleadings could not be permitted and refused the amendment petition.
13. However, this Court finds that all amendments necessary for determining the real ccontroversy ontroversy between the parties ought to be allowed, provided they do not cause prejudice to the Opposite Parties. In the present case, the amendment sought merely elaborates on the cause of death of the original petitioner and its connection to the injurie injuriess sustained in the accident, which lies at the core of the claim. The earlier reference to COVID-19 COVID 19 cannot be treated as an unequivocal admission that precludes the petitioners from clarifying their position in the interest of justice.
14. Rules of procedure aare re the handmaidens of justice, not its mistress. The amendment in question neither changes the nature of the claim nor sets up a new case. It only places before the Court all relevant facts necessary for proper adjudication. Furthermore, no prejudice is caused used to the Opposite Parties, as they retain the right to dislodge such assertions during the course of the trial.
V. CONCLUSION:
15. In light of the foregoing, this Court finds it appropriate to intervene.
The order dated 11.03.2024 rejecting the amendment application appli by the Motor Accidents Claims Tribunal, Cuttack, is set aside. The Motor Accidents Claims Tribunal, Cuttack, is directed to proceed with adjudication on merits in accordance with the amended pleadings.
Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23
16. Accordingly, the Writ Petition is allowed.
17. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi) Panigrahi Vacation Judge Orissa High Court, Cuttack, Dated the 30th May, 2025 Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Cuttack Date: 06-Jun-2025 14:25:23