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2010 DIGILAW 1088 (CAL)

Nam It A. Sarkar v. Arjun Kumar Jatty

2010-08-27

RAGHUNATH BHATTACHARYA

body2010
JUDGMENT 1. THE hearing stems from an application filed by the petitioner/claimant under Article 227 of the Constitution of India praying for setting aside the order passed by the learned Claims Tribunal at Alipore in M.A.C.C. No. 298 of 2006 under Section 166 of the M.V. Act, 1988 as amended by way of setting aside the same inter alia on the ground that the learned court below erred in law and facts in appreciating the evidence and also failed to scan the evidence adduced by the PW's and came to an erroneous finding that the instant case be returned to the claimant/petitioner for filing before the appropriate jurisdiction. 2. ADMITTEDLY, claimant Smt. Namita Sarkar the wife of the victim and father of other claimants who happens to be the minor daughter of the victim filed the instant claim for compensation to the tune of Rs. 6 lakhs on the ground that the husband of the claimant No. 1 Sri Sudam Ch. Sarkar met an accident on 16.01.2006 at Amta Ranihati Road and as he was knocked down by bus bearing no. WB-11A - 0814 as the same was plying rush and negligently at Amta Ranihati Road and proceedings towards Ranihati and when it has reached at Debligh dairy suddenly the said bus dashed and: hit one Maruti Car bearing No. WB-02K 2142, as a result the passenger of the motor cars i.e. the applicant's husband namely the victim died at the spot. He was immediately removed to .nearby hospital where he was succumbed to the injury. It was the contention of the claimants that the accident took place due to the rush and negligent driving of the driver of Bus No. WB-11A 0814. The instant writ petition was contested by the Oriental Insurance Company by filing written objection inter alia denying all the material allegations made in the application. 3. LEARNED Claims Tribunal recorded the evidence of both sides, heard argument and arrived at a conclusion that the claim petition is returned to the claimant or to her filing advocate for presenting the same before the M.A.C.C Tribunal having jurisdiction to entertain and try the case. 4. ON a careful scrutiny of the evidence on record and judgment it appears that the petitioner has failed to prove that she was residing within the jurisdiction of the Claims Tribunal. As a result, the plaint was returned. 4. ON a careful scrutiny of the evidence on record and judgment it appears that the petitioner has failed to prove that she was residing within the jurisdiction of the Claims Tribunal. As a result, the plaint was returned. From the side of the claimants four witnesses were examined. According to the claimant she has stated about the accident and she was residing at Jagannath Sarkar Lane within P.S. Watganj which falls within the jurisdiction of Alipore Court. P.W.3 is an eye-witness to the occurrence. P.W.1 Ratna Bhattacharya has deposed in this case and according to her Sudam Sarkar with his family was a tenant under her at the premises mentioned above. Now some documentary was filed from the side of the Claimant Petitioners which shows that ration card of the claimant and her minor daughter issued from the district Howrah. Even the ration card of the victim indicates that he was residing within the jurisdiction of district Howrah. The Voter I.D. filed on behalf of the claimant showing that her husband was a voter in respect of Sankrail Assembly Constituency which was within the jurisdiction of Howrah District. All the documents filed on behalf of the claimants prove that the victim and his family were residing at Howrah. Learned Advocate for the petitioner filed a decision of this court passed by the Hon'ble Mr. Justice Bhaskar Bhattacharya and Hon'ble Mr. Justice R. N. Banerjee where it was observed that due to the want of territorial jurisdiction the plaint was returned for filing before appropriate forum in accordance with the law. Another decision was filed, reported in 2009 (1) IAC 30 (SC) where it was observed by the learned Judges that 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. A claimant has a wide option. Residence of claimant also determines jurisdiction of the Tribunal. 5. WHAT would be a residence of a person would, however, depend upon the fact situation obtaining in each case. The appellant had been a resident of Pilbhit is in the State of Uttar Pradesh. He being a migrant labourer accepts job wherever he gets and resides there. He, admittedly, had been working in Nainital District and residing there during the period of accident. The appellant had been a resident of Pilbhit is in the State of Uttar Pradesh. He being a migrant labourer accepts job wherever he gets and resides there. He, admittedly, had been working in Nainital District and residing there during the period of accident. The fact that he was thus a resident of Nainital in the State of Uttaranchal is neither denied nor disputed. No doubt the Tribunal must exercise jurisdiction having regard to the ingredients laid down under subsection (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 has 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. 6. IN view of the two decisions and also as per provision of the Act these two applications must be filed where the claimant resides or where the accident took place or where the opposite party had their register office. On a careful scrutiny of the ocular version of the witnesses examined from the side of the claimant coupled with the documentary evidence it is crystal clear that the claimant or her late husband was residing at Howrah so it may be argued that the instant petition may be filed within the territorial jurisdiction of the place-where the accident took place on where the claimant resides. 7. BUT as per claim application under Section 166 of the M. V. Act, 1988 as amended the present address of the applicant is 8, Jhgannath Sarkar Lane, P.S. - Watgunj, Kolkata -700 023. So, in view of the decision referred above coupled with the decision reported in (2010)1 TAC 405 (Cal), claim application, may be filed within the local jurisdiction where the claimant presently resides. 8. ADMITTEDLY, in this type of claim application: strict proof of Evidence Act is not necessary. This type of application is more or less described as welfare legislation so the strict proof of Evidence Act is not at all required. 8. ADMITTEDLY, in this type of claim application: strict proof of Evidence Act is not necessary. This type of application is more or less described as welfare legislation so the strict proof of Evidence Act is not at all required. In view of aforesaid discussions, I think that the learned Court below has made an error and it should be rectified. Hence the order passed by the learned Court is liable to be set aside. Learned Court is hereby directed to hear the application afresh and deliver judgment preferably within three months' from the date of receipt of the judgment. The application being C.A.N. No. 6558 of 2010 is disposed of.