IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 361 of 2009(R) ------------------------ OPMV.516/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... PETITIONER(S): --------------- MAMMADIKUTTY, W/O.LATE MOOSA,KALATHINGAL MOONIYOOR.P.O, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): --------------- M/S.NEW INDIA ASSURANCE CO LTD, IST FLOOR, OPP.TOWN HALL, TIRUR 676101,MALAPPURAM DISTRICT. ADV. SRI.P.G.GANAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 361/2009. -------------------------------------------------------------- EXT.P1 TRUE COPY OF PETITION O.P.(MV) 516/2007 BEFORE M.A.C.T., TIRUR. EXT.P2 I.A. 3642/2008 IN O.P.(MV) 516/2007. EXT.P3 COUNTER STATEMENT DT. 17-10-2008. EXT.P4 ORDER DT. 22-11-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 361 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th September, 2009. J U D G M E N T The petitioner is the claimant in O.P(MV) No. 516/2007. Originally, the application was filed under Section 166 of the Motor Vehicles Act . Subsequently, the petitioner filed I.A. No. 504/2008 on 17-4-2008 for amending the claim as one under Section 163A of the Act. That was allowed. Subsequently, issues were framed and evidence was also adduced. At that juncture, the petitioner filed another application for again amending the O.P as one under Section 166. That application was dismissed by Ext. P4 order. The petitioner is challenging Ext. P4 order. 2. I have heard counsel on both sides. 3. The operative portion of Ext. P4 reads thus: “6. The point:- It is to be noted that the petition is filed in the year 2007 under Section 166 of the Motor Vehicles Act for claiming compensation. Subsequently, as per order in I.A.504/2008, the application was amended and conversion allowed to come under Section 163-A of the Motor Vehicles Act. Now the case is posted for arguments after the stage of recording evidence. It is at this juncture the petitioner is coming with an application to amend the sections. The learned counsel appearing for the third respondent invited my attention to the ruling held in National Insurance Company V. Jabbar, reported in 2007(1) K.L.T.331. It is seen held in the above decision as follows: “Propriety would require that the election by the claimant as between the two different proceedings under Sections 163-A and 166 is to be made at or before the settlement of issues. If option is exercised at least at this stage, the opposite party could be granted, if necessary, a further opportunity to place further pleading on record before the parties go to trial, after the settlement of issues. Such trial will not deflect the course of justice, but will lead to an end of the lis, on a complete adjudication of the issues that would arise on the rival contentions. No injustice would be caused by such an approach. On the one hand would be the claimant, a victim of a motor accident or his dependents, while on the other would be the entitlement of the driver, owner and insurer to a just and fair trial to W.P.C. No. 361/2009 -: 2 :- contest, either in an adjudication under Section 166 or for an immediate relief under Section 163-A. Viewed in this angle, it is just and proper to extend to the claimant an opportunity, at or before the framing of the issues, to get among the two proceedings .” It is noted by me that this is a case in which evidence is recorded and the matter is posted for arguments. It is observed by the Hon'ble High Court that “It could well be pointed out that it is appropriate and optimal that the option or election is exercised by the claimant while involving the Tribunal's jurisdiction, that is, at the institution of the applicant.” Hence, I am of the view that the prayer cannot be allowable at this stage. It must be filed at or before settlement of issues. In these circumstances I.A. 3642/08 necessarily deserves, only dismissal. Point found accordingly.” The contention of the petitioner is that while relying on the decision in National insurance Co. Ltd. v. Jabbar, 200791) KLT 333, the Tribunal lost sight of the earlier decision of this Court in Sherifa Beevi v. Komu, 2006(4) KLT 857, wherein another learned Judge of this Court had held that amendment can be sought for under Order VI Rule 17 of the Code of Civil Procedure, in which case, amendment can be sought even after settlement of issues. Even assuming that it is so, I am of opinion that in this particular case, the petitioner is not entitled to the reliefs prayed for insofar as the petitioner is unable to decide as to what is good for the petitioner. Originally, she submitted an application under Section 166. She got it amended as one under Section 163A. Evidence was adduced and now the petitioner again seeks to go back under Section 166. The reason mentioned by the petitioner for again amending the same is that the petitioner found out certain medical bills only now. But the learned counsel for the Insurance Company points out that in the claim petition, she had originally claimed Rs. 28,000/- and odd as medical expenses. In view of the above fact, the petitioner is not entitled to the discretionary jurisdiction of this Court under Article 226 of the W.P.C. No. 361/2009 -: 3 :- Constitution of India insofar as I do not find anything wrong with the conclusion reached in Ext. P4 order. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/