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2009 DIGILAW 905 (CAL)

New India Assurance Company Limited v. Kutiswar Pramanik

2009-12-15

PARTHA SAKHA DATTA, SUBHRO KAMAL MUKHERJEE

body2009
Judgment : MUKHERJEE, J. (1.) This is a revisional application under Article 227 of the Constitution of India against order dated January 5, 2006 passed by the learned Judge, Eleventh Bench, City Civil Court, Calcutta in Miscellaneous Judicial Case No. 30 of 2005. (2.) The learned trial Judge held that the application for compensation filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act in short) was maintainable before the City Civil Court, Calcutta, as the regional office of the insurance company situated within the territorial jurisdiction of the said Court. The learned trial Judge relied upon an unreported decision of this Court in Civil Order No. 2199 of 2005. (Lakshman Chandra Pal v. Shyam Sunder Gupta and Ors.). One of us (Subhro Kamal Mukherjee, J.) delivered the said order dated September 27, 2005. (3.) This revisional application came up for consideration before Tapan Kumar Dutta, J. and His Lordship expressed his doubt and differed with the view and/or opinion expressed in the aforesaid unreported decision. (4.) The matter was placed before the My Lord, the Chief Justice for necessary assignment of the matter to a larger Bench. Consequently, this revisional application has been assigned to this Bench. (5.) In view of the importance of the question involved in this case we requested Mr. Sudhis Dasgupta, learned senior Advocate and Mr. Kamal Krishna Das, learned Advocate, to assist us in this matter. In the best tradition of the bar Mr. Dasgupta and Mr. Das readily agreed to act as amicus curiae. (6.) The facts relevant for deciding the issues involved in this revisional application are summarised as under: The claimant, who is the opposite party No. 1 in this revisional application, filed an application for compensation under Section 166 of the said Act before the City Civil Court, Calcutta. It was alleged in the application for compensation that the claimant was a passenger of a treker and the treker met with an accident at Bakultala, Police Station - Dhantala in the district of Nadia on December 9, 2004 resulting in factures on right and left sides of head for which the victim had to undergo an operation. It was alleged that the victim, also, suffered serious injuries, which has made him crippled. It was alleged that the victim, also, suffered serious injuries, which has made him crippled. (7.) In column No. 16 of the claim application it was stated that the owner of the offending vehicle, who is the opposite party No. 2 in this revisional application, was a resident of Ranaghat in the district of Nadia. (8.) In column No. 17 it was stated that the insurance policy of the offending vehicle was issued by Kalyani Branch of the New India Assurance Company Limited, the petitioner in this revisional application. (9.) In column No. 19 it was stated that the victim was a resident of Raghunathpur, Police Station - Dhantala, District - Nadia. (10.) The claim application was, however, filed in the City Civil Court, Calcutta, contending that the said Court had jurisdiction to entertain the claim application as the regional office of the New India Assurance Company Limited was at 4 Mango Lane, 1st Floor, Kolkata-700 001. (11.) The claim application has, since, been registered in the City Civil Court, Calcutta as Miscellaneous Judicial Case No. 30 of 2005. (12.) The petitioner, the insurance company, moved an application before the learned trial Judge challenging the maintainability of the claim application before the City Civil Court, Calcutta, inasmuch as the claimant was a resident of the district of Nadia; the accident took place in the district of Nadia ; the insurance policy was issued from its Kalyani Branch of the insurance company in the district of Nadia. It was, therefore, contended that the City Civil Court, Calcutta had no territorial jurisdiction to try the claim case. (13.) The learned Trial Judge, as we have indicated herein above, by the order impugned, overruled the contentions of the insurance company and held that the City Civil Court, Calcutta, had jurisdiction to try this case. The learned Judge had relied upon the aforementioned unreported decision dated September 27, 2005 in C. O. No. 2199 of 2005. (14.) Section 166 of the said Act deals with the application for compensation. The learned Judge had relied upon the aforementioned unreported decision dated September 27, 2005 in C. O. No. 2199 of 2005. (14.) Section 166 of the said Act deals with the application for compensation. Subsection (2) of Section 166 of the said Act runs as under - "Every application under subsection (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." (15.) Section 166(2) of the said Act gives option to the claimant to make application for compensation 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. (16.) In the claim application the insurance company is always a necessary party when a certificate of insurance has been issued. (17.) In sub-section (2) of Section 166 a claim application can be filed, at the option of the claimant, to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business. (18.) There was a significant departure concerning the defendant. The said section provides the claim application could be made, at the option of the claimant, to the Claims Tribunal within the local limits of whose jurisdiction the defendant resides. The expression carries on business is conspicuously absent. (19.) It is well established canon of construction that when dealing with the same subject or similar subject legislature uses different languages or expressions, one must not lightly credit the legislature with different languages or expressions without having carefully applied its mind to the necessity of using different expressions or languages. The legislature is deemed not to waste its words or say anything in vein. The legislature is deemed not to waste its words or say anything in vein. When legislature uses different expressions in the same section, it must be attributed to different senses. (20.) The question is, therefore, if a claim application could be entertained by a Claims Tribunal within the local limits of whose jurisdiction the defendant carries on business? (21.) The legislature was conscious that, in view of the provisions of Section 149 of the said Act, insurance company would be a necessary party in the claim application. Still, the legislature in its wisdom omitted the expression carries on business in relation to the defendant. (22.) The insurance companies are corporate bodies and they have their different offices, including registered office, regional office, branch office, from where the insurance companies carry on businesses. (23.) Whether such office could be considered as the residence of the insurance company ? (24.) It is, of course, settled law that the residence of the artificial person is a place where the artificial person carries on business. (25.) P. Ramanatha Aiyar in Advanced Law Lexicon (3rd Edition, 2005) deals with the expression reside in reference to the corporation as under: "Probably the only sense in which a corporation may be said to reside anywhere is with reference to its legal or statutory habitat, which is the jurisdiction of its incorporation. In this sense, to say that a corporation is a non-resident is to say that it is a non-domestic corporation, and all corporations, which are not domestic are foreign." (26.) The Supreme Court of India in the case of Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council reported in (1995)2 SCC 479 :1995 WBLR (SC) 179 holds that the said Act, particularly Chapter XII of the said Act, which deals with the Claims Tribunal, creates a forum before which the claim can be laid if it arises Out of an accident caused by the use of a motor vehicle. That being a special law it would prevail over the relevant general law. (27.) In the case of Rajasthan State Road Transport Corporation, Jaipur v. Poonam Pahwa and Ors. reported in (1997)6 SCC 100 :1998 WBLR (SC) 48 the Supreme Court of India holds that the Motor Accident Claims Tribunal has been constituted under the said Act to adjudicate upon the disputes arising out of the claims on account of motor accidents. (27.) In the case of Rajasthan State Road Transport Corporation, Jaipur v. Poonam Pahwa and Ors. reported in (1997)6 SCC 100 :1998 WBLR (SC) 48 the Supreme Court of India holds that the Motor Accident Claims Tribunal has been constituted under the said Act to adjudicate upon the disputes arising out of the claims on account of motor accidents. Such Claim Tribunals have been constituted by giving exclusive jurisdiction to determine such disputes by excluding the jurisdiction of the civil Courts. (28.) Therefore, as a said Act was enacted as a special statute and for a special purpose, there is no scope to apply the provisions of the Code of Civil Procedure, in particular Sections 15 to 20 thereof, with regard to filing of the claim application, for the purpose of regulating the forum of filing the claim application. (29.) In the present case the accident occurred in the district of Nadia, the victim and the owner of the offending vehicle were residing within the district of Nadia. The insurance policy was issued by the branch office at Kalyani in the district of Nadia. (30.) Sub-section (2) of Section 166 gives option to the claimant to file the claim application according to his convenience, but it is difficult to comprehend that an application for compensation could be filed where the regional office of the Insurance Company situates when the insurance policy was issued by a branch office at Kalyani. (31.) In our view, the functional interpretation of the provisions of sub-section (2) of Section 166 would be that the claim application could be filed, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business and within the local limits of whose jurisdiction the defendant resides or to the Claims Tribunal within the local limits of whose jurisdiction the policy issuing office of the Insurance Company situates. (32.) We have no hesitation to say that Civil Order No. 2199 of 2005 was not correctly decided. (33.) We, therefore, hold that the City Civil Court, Calcutta, has no territorial jurisdiction to entertain this claim application. (34.) The order impugned is, therefore, set aside. (32.) We have no hesitation to say that Civil Order No. 2199 of 2005 was not correctly decided. (33.) We, therefore, hold that the City Civil Court, Calcutta, has no territorial jurisdiction to entertain this claim application. (34.) The order impugned is, therefore, set aside. (35.) The learned Trial Judge is directed to return the claim application to the learned Advocate appearing for the claimant for presentation of such application before the appropriate forum. (36.) The revisional application, therefore, stands allowed. (37.) Before we part with we record our appreciation for the valuable assistance rendered by Mr. Dasgupta and Mr. Das. (38.) We, however, direct the parties to bear their respective costs in this revisional application.