SSK/ 1 WP/708.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 708 OF 2011 Mrs. Bhawna B. Jokhakar ....Petitioner Versus Mr. Suhash Harichandra & Ors. ...Respondents Mr. A. M. Gokhale i/b. Mr. M. B. Kothak, Advocate for the petitioner. Ms. P. S. Cardozo, AGP for respondent no.3. CORAM : RANJIT MORE, J. DATED : 7th SEPTEMBER, 2011. P.C.: By order dated 27th April, 2011, notice before admission was issued to the respondents and the same was made returnable on 15th June, 2011 with intimation to them that the petition would be heard finally at the stage of admission. Liberty was also given to the petitioner to serve the respondents by private service and file affidavit of service. The petitioner has, accordingly, served the respondents by private service and has filed affidavit of service to that effect. 2. In pursuance of service, Ms.Cardozo, learned AGP appears on behalf of respondent no.3. Nobody appears on behalf of respondent nos. 1 & 2. Heard learned counsel for the petitioner and Ms.Cardozo, learned AGP for respondent no.3. SSK/ 2 WP/708.11 3. The writ petition challenges the legality, validity and propriety of order dated 27th April, 2011 passed by learned member of MACT, Mumbai below application at Exhibit “15” in Claim Application No.3635 of 2006. By the said order, the petitioner’s application to amend the claim application so as to enhance the claim from Rs.4,00,000/ to Rs.25,00,000/- came to be rejected. 4. The petitioner met with an accident on 11th November, 2006. The petitioner sustained grievous injury in the accident involving a scooter on which the petitioner was travelling from Napean Sea Road along Bhulabai Desai Road and Bus No.MH-01-L-7323 belonging to respondent no.1. The petitioner, thereafter, preferred an application in the month of December, 2006 claiming compensation of an amount of Rs.4,00,000/- from respondent nos. 1, 2 & 3 jointly and severally. After filing the claim application, the petitioner was required to spend an amount of Rs.15,00,000/- towards medical treatment. 5. In the above circumstances, the petitioner was constrained to make an application at Exhibit “15” for amendment in the claim application so as to enhance the claim from Rs.4,00,000/- to Rs.25,00,000/- being the amount he actually spent towards the treatment and towards loss of income and future medical expenses. This application as stated above was SSK/ 3 WP/708.11 rejected by the impugned order, and therefore, the present petition. 6. Having gone through the impugned order, in my opinion, same cannot be sustained. The petitioner’s application to amend the claim application is rejected mainly on the ground that the petitioner has not produced a single document to justify the expenses claimed to have been incurred subsequent to the filing of the claim application. I have perused the application at Exhibit “15” Para (4) thereof gives the details of the expenses incurred by the petitioner towards the medical treatment. Learned member ignored the same on the ground that there is no evidence produced by the petitioner to substantiate this. In my opinion, the approach of the learned member in seeking evidence to justify enhancement at this stage is incorrect. By the application under Exhibit “15”, the petitioner just wanted to enhance the claim. This enhanced claim cannot be granted unless the same is proved by the petitioner by leading cogent evidence on record. However, it is a settled principal of law that the merits of the pleadings cannot be gone into while considering the application for amendment. 7. Be that as it may, the Supreme Court in the case of Nagappa versus Gurudayal Singh & Ors. Reported in 2003 ACJ 12 has held that there is no restriction that compensation could be awarded up to the SSK/ 4 WP/708.11 amount claimed. The Tribunal is obliged to award ‘just’ compensation which is reasonable on the basis of evidence on record. The Apex Court further observed that the court may permit amendment to the claim petition, if necessary. It was also held that there is no question of claim being time- barred. The Apex Court specifically held that by enhancing the claim, the cause of action cannot be changed. In the teeth of above ratio of the Apex Court, the petitioner’s application could not have been rejected. The trial of the claim application has not yet commenced. The respondents always can file additional written statement, so that there would be no prejudice to them. The petitioner’s application, in these circumstances, deserves to be allowed. I therefore, dispose of the above petition by passing the following order: 1. The impugned order is quashed and set-aside and the petitioner’s application at Exhibit “15” is allowed. 2. The petitioner to carry out amendment within a period of four weeks from today. 3. The respondents will be at liberty to file additional written statement. 8. In view of the disposal of the writ petition, Civil Application No. 160 of 2011 will not survive for consideration and same is accordingly disposed of. (RANJIT MORE, J.)