1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 687 OF 2009 Smt. Ratan Pandurang Melge. ... ... Appellant. Versus Maharashtra State Road Transport Corporation & Ors. ... ... Respondents. Mr. Amit Shete for the Appellant. Mr. C. M. Lokesh i/by M/s. G. S. Hegde & Associates for Respondent Nos.1 and 2. CORAM : A. M. KHANWILKAR and A. A. SAYED, JJ. DATED : 18TH JUNE, 2010. P. C.: Heard learned Counsel for the parties. Admit. 2. Printing of appeal record is dispensed with. As short question is involved, the appeal is taken up for final disposal forthwith by consent. 3. The appellant filed claim under Section 163A of the Motor Vehicles Act, 1988 for compensation against the respondents as well as Insurer of the motor cycle bearing No. MH­13/L­7512 which had met with an accident after colluding with the vehicle of the Maharashtra State Road Transport Corporation bearing No.MH­12/FA 1276. 4. The trial court, however, on the finding that the income of the deceased 2 was more than Rs.40,000/­ per annum proceeded to hold that the claim petition under Section 163A was not maintainable. This decision is the subject matter of challenge in the present appeal. 5. This Court issued notice on 15th June, 2009 while noting the contention of the appellant that the appellant be permitted to amend the claim petition to one under Section 166 of the Act. That is permissible in view of the decision of this Court in the case of New India Assurance Co. Ltd. v/s Latabai Madhav Sarode & Ors. 2009(1) Bom. C.R. 304. The principal question that arises for consideration is whether it is open to the appellant to amend the claim petition at this stage for the first time in appeal. 6. After having considered the rival submissions canvased on behalf of the parties, there can be no difficulty in accepting the stand of the appellant that considering the dictum of our High Court in the case of New India Assurance Co. Ltd. v/s Latabai Madhav Sarode & Ors. (supra) the appellant can be permitted to amend the claim petition and pursue the same under Section 166 of the Act in the interest of justice. 7. Learned Counsel appearing for the respondents, however, submits that that liberty was given to the appellant even by the lower court as can be seen from the fact stated in the end of paragraph 13 of the impugned decision. There is no difficulty in accepting this submission of the respondents. However, the question is whether any prejudice would be caused to the respondents if the appellant wants to pursue the remedy under Section 166 of the Act and give up the claim petition 3 under Section 163A of the Act which indeed was not available to the appellant. The fact that the appellant was illadvised to pursue the remedy under Section 163A of the Act can not disentitle the appellant, even if they were inclined to amend the claim petition and confine the same to the one under Section 166 of the Act. Declining such a relief would result in serious miscarriage of justice qua the appellants who are the claimants of compensation in relation to the death of their predecessor on account of accident caused by the driver of the S. T. bus of Maharashtra State Road Transport Corporation. 8. The next contention canvased before us is that the appellants have deleted insurance company from the array of the parties in the present appeal. This argument clearly overlooks that it is matter of record that National Insurance Company Limited was the insurer of the motor cycle No. MH­13/L­7512. In the event the Tribunal was to come to the view that it was a case of the negligent driving by the motor cyclist, namely, predecessor of the appellants and the insurance company of the motor cycle will have to apportion the claim amount, it would be open to the Tribunal to pass appropriate order as may be advised considering the fact that the appellants have chosen to delete the National Insurance Company Limited from the array of parties and are inclined to proceed only against the Maharashtra State Road Transport Corporation and the driver of the S. T. Bus. The Tribunal would be free to pass appropriate order in that behalf. 9. Taking over all view of the matter, this appeal succeeds. Impugned judgment and decree is set aside aside. Instead, the claim petition is restored to 4 the file of the Tribunal on clear undertaking that the appellants would take steps to amend the claim petition by carrying out necessary amendments to the effect that the claim petition would proceed under Section 166 of the Act. That amendment will have to be carried out as expeditiously as possible and in any case not later than four weeks from the date of record becoming available before the trial Court. The parties shall appear before the trial Court on 26th July, 2010 on which date the trial Court would be free to pass appropriate order as may be advised. 10. The appeal is allowed on the above terms. 11. There shall be no order as to costs. 12. Refund of court fees as per Rule. (A. A. SAYED, J.) (A. M. KHANWILKAR, J.)