1. No one is present on behalf of the respondents even in the revised call.
2. The case is of the year 2008 and the matter is listed for final hearing/disposal.
3. I have heard Sri Pradeep Kumar, learned counsel appearing for the appellant.
4. Appellant herein Smt. Seema Pandey w/o of late Satish Chand Pandey is claimant no. 1 in the claim petition being M.A.C.P. No. 645 of 2006 (Smt. Seema Pandey and others Vs. Manoj Kumar and another). Smt. Seema Pandey and others have filed the claim petition before the Motor Accident Claims Tribunal, Etawah under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for accidental death of her husband; father of claimant no. 2-Kumari Rakhi, Claimant No. 3-Kumari Raksha and claimant no. 4-Kunal; and son of claimant no. 5-Sri Kripashankar and claimant no.6-Smt. Sarojani.
5. Facts of the present case are that the claim petition was returned by the learned Tribunal by the impugned order dated 2.9.2008 for being presented before the competent tribunal. It was alleged in the claim petition that Satish Chand Pandey met with an accident on 30.8.2006 at about 10 p.m. when he was coming from Ramleela ground side to Bijlighar, Police Station Rakabganj, district Agra on his motorcycle, he was dashed by one three wheeler No. UP 80 AS 9909, which was allegedly coming from the opposite direction and crossed the divider without giving horn and caused the accident. The accident had taken place in district Agra. It was stated that the deceased was having his wholesale medicine shop in Delhi and after the death of Satish Chand Pandey, claimant nos. 1 to 6 had to leave Delhi and claimant nos. 2, 3 and 4 started living with grand parents, namely claimant nos. 5 and 6 at resident Diviapur Road, Govindnagar, district Auraiya. The appellant-claimant no. 1 somehow could not adjust at district Auraiya and therefore, she came back to Etawah and started living with her parents at Village Bhulpura, Post Dabora, P.S. Ekdil, district Etawah.
6. The claim petition was filed in district Etawah. Documentary as well as oral evidence was led before the learned Tribunal at Etawah and issues were framed on 9.3.2007. While deciding issue no. 1, which was regarding factum of accident, learned Tribunal held that the claim petition could have been filed before tribunal either at district Agra or at Delhi or at Gurgaon (Haryana) or at district Auraiya and that the tribunal at Etawah has no jurisdiction to entertain the petition.
7. From the record it is quite clear that the accident had taken place at district Agra, therefore, claim petition could have been filed at Agra; the deceased was having wholesale medicine shop in Delhi and at the time of accident admittedly the claimants were residing in Delhi, therefore, they could have filed the claim petition before the tribunal concerned in the district of Delhi; since the Insurance Company, who has insured the three wheeler that has caused the accident, has registered office at Gurgaon, it could have been filed at Gurgaon; claimant nos. 2 to 6 are resident of district Auraiya as after the accident claimant nos. 2 to 4 had to leave Delhi and started living with their grand parents at Auraiya, therefore, they could have also maintained the claim petition at Auraiya. In view of the provision of Section 166(2) of the Motor Vehicle Act, 1988, the conclusion drawn by the learned Tribunal is correct.
8. In so far as jurisdiction of motor accident claims tribunal at district Etawah is concerned, there is no dispute that at the time of accident claimant no. 1 was residing in Delhi but after death of her husband she had to leave Delhi and as per claim petition started residing with her parents at Etawah. In paragraph 23 (d) of the claim petition it was specifically asserted by the claimant no. 1 that because of untimely demise of her husband, she had to leave her children with the grand parents and she came to reside with her father and entire family is facing dislocation and financial crisis.
9. Submission of learned counsel for the appellant is that she could have maintained the claim petition at Etawah. Learned counsel for the appellant has submitted that the learned Tribunal has noticed and admitted that claim petition could have been filed in district Auraiya as claimant nos. 2 to 4 are residing there. He further submitted that there was no justification in returning the claim petition for filing before tribunal at other place whereas it was not in dispute and that there was no evidence to the contrary that the claimant no. 1 is residing at Etawah and therefore, she could have maintained claim petition at Etawah and there was no legal impediment in filing the claim petition in Etawah. He further submitted that no prejudice is caused to the opposite parties in case the claim petition is maintained at Etawah.
10. I have considered the submission of learned counsel and have perused the record of the appeal. The issue involved is purely legal in nature.
11. To resolve the issued involved a reference may be made to a judgment rendered by Hon'ble Apex Court in the case of Mantoo Sarkar Vs. Oriental Insurance Company Limited and others, 2009 (2) SCC 244 to the effect that such claim petition could have been filed at a place, in case, any of the claimant is living and mere technicality of territorial jurisdiction should not come in way particularly when no prejudice to the rights of the opposite parties has been caused. In the aforesaid case the Insurance Company had a branch at Nainital; the accident had taken place outside the jurisdiction of the Nainital Tribunal; the claimant was admitted in the hospital at Bareilly and thereafter he had shifted to Pilibhit; and at the time of filing of claim petition the claimant was working as a labourer in Nainital. Relevant paragraph nos. 11, 12, 15, 16, 20 and 23 of the aforesaid judgment are quoted as under:-
11. Section 166 (2) of the Act reads as under :-
"166 - Application for compensation (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant."
The said Act is a special statute. The jurisdiction of the Tribunal having regard to the terminologies used therein must be held to be wider than the civil court.
12. A claimant has a wide option. Residence of the claimant also determines jurisdiction of the Tribunal. What would be a residence of a person would, however, depend upon the fact situation obtaining in each case.
15. No doubt the Tribunal must exercise jurisdiction having regard to the ingredients laid down under sub-section (2) of Section 166 of the Act. We are not unmindful of the fact that in terms of Section 169 of the Act, the Tribunal, subject to any rules, may follow a summary procedure and the provisions of the Code of Civil Procedure under the Act have a limited application but in terms of the rules `save and except' any specific provision made in that behalf, the provisions of the Code of Civil Procedure would apply. Even otherwise the principles laid down in the Code of Civil Procedure may be held to be applicable in a case of this nature.
16. We say so because ordinarily an appellate court shall not, having regard to the provisions contained in sub-section (1) of Section 21 of the Code of Civil Procedure, entertain an appeal on the ground of lack of territorial jurisdiction on the part of the court below unless he has been prejudiced thereby. Other respondents did not raise any question of jurisdiction. Although one witness each had been examined on behalf of the truck owner and owner of the bus, neither a question of lack of territorial jurisdiction was raised nor the question of any prejudice had been argued. It is only the first respondent who raised the question of territorial jurisdiction. However, no prejudice was caused to the appellant by the claim petition being tried by the MACT at Nainital.
20. A distinction, however, must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court should not have, in absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal.
23. We cannot also lose sight of the fact that the appellant herein was a labourer. The justness or otherwise of the amount of compensation has not been disputed before us. If the High Court judgment is to be complied with, appellant would again have to initiate another proceeding either at Bareilly or Gurgaon or at Delhi or at Jabalpur. The same evidence would have to be rendered once again." (emphasis supplied)
12. It may also be noticed that the view in Mantoo Sarkar (supra) has been re-affirmed in the case Malti Sardar Vs. National Insurance Company Limited, 2016 (3) SCC 43. Relevant paragraph nos. 12, 14 and 16 of the aforesaid judgment are also quoted as under:-
"12. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the latter.
14. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata.
16. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC."
(emphasis supplied)
13. A perusal of impugned order indicates that the learned Tribunal on one hand, has held that the tribunal at district Auraiya would have the jurisdiction in view of the residence of claimant nos. 2 to 4 in particular, (who are children of the deceased and claimant no. 1) and claimant nos. 5 and 6 also, who are parents of the deceased, but no cogent reason has been given as to why claim petition has been returned for filing before some other tribunal whereas there was no evidence to the contrary and there was no serious objection by any of the opposite parties, when claimant no. 1-Seema Pandey the appellant herein, was resident of district Auraiya. Further impugned order nowhere indicates that any prejudice is caused to any of the opposite parties, who infact, has not even raised any objection, particularly, claiming any prejudice on this account. On the contrary, documentary as well as oral evidence was led before the learned Tribunal.
14. In any view of the matter, in the light of the judgment rendered by Hon'ble Apex Court as referred to above, no prejudice would have been caused to the opposite parties when they have already submitted their documentary as well as oral evidence before the learned Tribunal at Etawah. Therefore, returning the claim petition at such final stage for technical reasons was not justified. As such the impugned order dated 2.9.2008 passed by learned Tribunal, Etawah is set aside. The matter is remanded back to the learned Tribunal, Etawah for deciding the claim petition on its own merits.
15. Since the claim petition is of the year 2006, therefore, it is expected that the Tribunal shall make all efforts to dispose of the claim petition as expeditiously as possible.
16. With the aforesaid observations the appeal stands allowed.
Order Date :- 2.5.2016 Lalit Shukla