1 wp-843.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 843 OF 2010 The Oriental Insurance Co. Ltd. .. Petitioner. Vs Master Sandeep Sunder Kolhe & Ors. .. Respondents -- Shri S.S. Vidyarthi for the Petitioner. Shri T.J. Mendon for the Respondents. -- CORAM : A.S.OKA, J. DATE : 17TH SEPTEMBER, 2010 JUDGMENT: . Considering the nature of controversy involved in this Petition, the same is taken up for final disposal. 2. The 1st Respondent is the Claimant in a Claim Petition under Section 166 of the Motor Vehicle Act, 1988 ( hereinafter referred to as the “said Act” ). The Petitioner has been impleaded as party to the claim petition in its capacity as insurer of the offending vehicle. 3. In the Written Statement filed by the Petitioner in September, 1997, in Paragraphs 2 and 3, it was contended as under: - “2. The insurer say that the opp. Party abovenamed sold his vehicle No.MFA-3415 to Kanta Auto Garage, Dattaprasad Road, Borivali (E), Mumbai – 400 066. On 26.8.1996 i.e. Before the date of accident ( 19.10.1996) and the said purchasers took possession of the vehicle on 26.8.1996. Copies of Delivery note and letter dated 26.8.1996 are annexed hereto. 3. In view of the foregoing, the Insurers submit that the Insurance policy lapsed on 26.8.1996 as the 2 wp-843.10 same was not transferred in the time of the purchasers.” 4. An application for amendment of the Written Statement was moved by the Petitioner-Insurer. A prayer was made for adding two paragraphs which read thus:- “4. That the accident took place on 19/10/96 and the insurance policy pertaining to the vehicle No.MFA-3415 expired on 16/10/96 i.e. Much before the date of accident. Certified copy of the same is annexed herewith and marked as ‘Exh.-’A’. 5. Hence, this opp. Party No. 2 states that the above application deserves to be dismissed with costs against the opp. Party no.2 as the vehicle in question was ‘NOT INSURED’ with them on the date of accident.” 5. By the impugned order, the learned Member of the Motor Accident Claims Tribunal rejected the application for amendment mainly on the ground that the amendment seeks to withdraw admission made in the earlier written statement. 6. Learned counsel appearing for the Petitioner pointed out that the proposed amendment does not amount to withdrawal of the admission and all that it was sought to be pleaded by amendment was that the term of the policy expired on 16th October, 1996. 7. Learned counsel appearing for the 1st Respondent – claimant submitted that an award was made under Section 140 of the said Act which 3 wp-843.10 has been accepted by the Petitioner and the same has been complied with. He submitted that the very fact that the award was complied with shows that the Petitioner accepted that the vehicle involved in the accident was validly insured with it on the date of the accident. He submitted that an award under Section 140 of the said Act records a finding that the offending vehicle insured with the Petitioner and the said finding will operate as res judicata in the claim petition under Section 166 of the said Act. He placed reliance on a decision of the Division Bench of Calcutta High Court in the matter of National Insurance Co. Ltd. v. Rekha Dutta & Ors. ( 2009 ACJ 2694 ). Lastly he relied upon a decision of the Punjab and Haryana High Court in the case of New India Assurance Co. Ltd. v. Kewal Krishan & Ors., (1994 ACJ 196 ). 8. I have carefully considered the submissions. The first question to be decided is whether the award made on a Petition under Section 140 of the said Act will operate as res judicata in a Petition under Section 166 of the said Act. The Section 140 of the Motor Vehicles Act, 1988 was brought on the statute book with a view to provide quick and effective remedy to the victims of the accident to get a small amount towards the compensation. The remedy provided under Section 140 of the said Act is popularly referred to as a remedy for enforcing “no fault liability”. A claimant is not required to plead and establish that the accident occurred due to any wrongful act, negligence or default on the part of the owner or driver of the vehicle. The Section 140 of the said Act 4 wp-843.10 is given overriding effect over the provisions of the said Act. The legislature contemplated that there will not be a regular trial before deciding the claim petition under Section 140 of the said Act. Therefore, the procedure which governs a regular claim petition under Section 166 of the said Act will not apply to a claim petition under Section 140 of the said Act in view of the overriding effect given by Section 144 of the said Act. If the parties are permitted to adduce a detailed evidence in claim petition under Section 140, the very object of the provision will be defeated. As the remedy under Section 140 of the said Act is of a summary remedy, the findings recorded thereunder will not naturally operate as res judicata while deciding the claim petition under Section 166 of the said Act. Therefore, with the greatest respect, the view taken by the Calcutta High Court is not correct. Hence, the submission made by the learned counsel appearing for the 1st Respondent cannot be accepted. Even if an award is made under Section 140 of the said Act which is not challenged, the same will not operate as res judicata in a claim petition under Section 166 of the said Act. 9. Now coming to the merits of the amendment, in the original written statement, the stand taken is that the vehicle though insured with the Petitioner was transferred on 26th August, 1996, and therefore, the policy lapsed on that date as the same was not transferred in the name of the purchaser. The contention which is sought to be raised by way of amendment is that the term of the policy expired on 16th October, 1996. 5 wp-843.10 What is sought to be pleaded by the amendment is that the term of the said policy to which a reference was made in the original written statement expired on 16th October, 1996. Therefore, there is no attempt made by the petitioner to withdraw the admission. In the circumstances, the amendment ought to have been permitted. Even if the amendment is permitted, the burden will be on the Petitioner to establish that on the date of the accident, there was no valid policy in existence. 10. Subject to what is observed above, the Petition must succeed and I pass the following order. (a) The impugned order dated 20th November, 2009 is quashed and set aside. The application for amendment of the original written statement made by the Petitioner is allowed. (b) Amendment to be carried out within a period of two weeks from the date on which writ of this order is received by the Tribunal. (c) Hearing of the claim petition is expedited. (A.S.OKA, J)