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2004 DIGILAW 253 (MP)

Surendra Kaur v. Shamsher Singh

2004-03-15

SUBHASH SAMVATSAR

body2004
Judgment ( 1. ) THIS appeal is filed by the claimant challenging award dated 23-10-2002 passed by the Special Judge (N. D. P. S.) and Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 23/2002, whereby the Claims Tribunal has dismissed the claim petition on the ground of territorial jurisdiction. ( 2. ) THE brief facts of the case are that the claimant filed an application for compensation under Section 166 of the Motor Vehicles Act (hereinafter referred to as act) claiming compensation for the injuries sustained by her. According to the claimant the accident has taken place at Village Banmore, District Morena on 23-2-2002 at about 11. 00 A. M. The claim petition was filed at Gwalior alleging that she is a resident of 80, Laxmi Bai Colony, Gwalior. The Claims Tribunal issued notices to the parties. The claim petition was contested by the Insurance Company. The Claims Tribunal framed as many as seven issues out of which issue No. 5 relates to territorial jurisdiction of the Claims Tribunal. The Claims Tribunal after recording the evidence dismissed the claim petition on issue No. 5 and rest of the issues are not at all decided by the Claims Tribunal. The Claims Tribunal after appreciating the evidence has come to the conclusion that the claimant was a resident of Banmore, which is in District Morena and she is not residing at 80, Laxmi Bai Colony, Gwalior. ( 3. ) SUB-CLAUSE (2) of Section 166 of the Act reads as under :- " (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. " As per said section, every application for compensation can 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 the Claims Tribunal where the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. ( 4. ) IN the present case, the defendant Nos. ( 4. ) IN the present case, the defendant Nos. 1 and 2 are the residents of Faridabad while the respondent No. 2 is Insurance Company whose offices are situated in all the cities in the country including Gwalior. In the cause title of the claim petition, the appellant mentioned her residential address as 80, Laxmi Bai Colony, Gwalior. The conclusion of the Claims Tribunal that the appellant is not residing at Gwalior is based on appreciation of evidence. The Full Bench of this Court in the case of Ramdayal Umraomal v. Pannalal Jagannathji, 1979 MPLJ 736 , has laid down that the issue as to jurisdiction requires recording of evidence should not be tried as preliminary issue. In light of the aforesaid judgment, the Claims Tribunal was apparently erred in deciding the issue No. 5 as preliminary issue on the basis of evidence. ( 5. ) IN fact the record shows that the Claims Tribunal has recorded evidence on all the issues and have also heard arguments on all the issues, but instead of deciding other issues Tribunal has decided one issue as preliminary issue, which is not permissible in light of the aforesaid judgment of the Full Bench. Moreover, the Apex Court in the case of Dolly Kantibhai Patel v. Balu Tukaram Auhad and Ors. , 2003 ACT 227, has held that the claim petition, which is pending at Nasik (Maharashtra) can be transferred to Vadodara (Gujrat), as the office of the Insurance Company, which is a contesting party is situated at Vadodara. In that case the claimant was residing at U. S. A. and the accident has taken place at Nasik (Maharashtra) and power of attorney of the claimant was Vadodara. In that case the Apex Court transferred the claim proceeding to Vadodara by holding that Vadodara Court has jurisdiction, as the office of the Insurance Company, which is a contesting party is situated at Vadodara (Guj. ). ( 6. ) CONSIDERING all these facts, the impugned award is not sustainable in law. Hence the award of the Claims Tribunal is set aside and Claims Tribunal is directed to decide all the issues and dispose of the claim petition within a period of one month from the date of appearance. Parties are directed to appear before the Claims Tribunal on 12-4-2004.