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2012 DIGILAW 119 (GAU)

State of Tripura v. Tapas Deb Choudhury

2012-01-30

T.NK.SINGH

body2012
JUDGMENT T. NK. Singh, J. 1. Heard Mr. S. Chakraborty, learned Government Advocate appearing for the appellants and also Mr. P. Roy Barman, learned Counsel appearing for the respondent/claimant. This appeal is directed against the judgment and order dated 10.9.2011 passed by the learned District Judge, West Tripura, Agartala in Case No. T.S. (F.A.) 16 of 1997. 2. At the very outset of hearing Mr. S. Chakraborty, learned Government Advocate appearing for the appellants contends that Case No. T.S. (F.A.) 16 of 1997 is not maintainable inasmuch as suit for compensation under section 1-A of the Fatal Accidents Act, 1855 could be filed only in the case of death of a person and only the family members, i.e. wife, husband, parents and child of the person who died due to fatal accident could file said suit for compensation under section 1-A of the Fatal Accidents Act, 1855. 3. In the present case, it is the admitted case of the parties that the claimant-petitioner filed the said case, i.e. Case No. T.S. (F.A.) 16 of 1997 for the injury sustained by him under section 1-A of the Fatal Accidents Act, 1855. For easy reference. Section 1-A of the Fatal Accidents Act, 1855 is quoted hereunder: 1-A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.--Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. 4. On bare perusal of the section 1-A, it is clear that the suit of the nature mentioned in section 1-A could be filed only in case of the death of a person caused by wrongful act, neglect or default. 5. Mr. P. Roy Barman, learned Counsel appearing for the respondent-claimant contends that the learned District Judge, West Tripura, Agartala had treated the said Case No. T.S. (F.A.) 16 of 1997 as regular suit for damages and the quotation of provisions of the Fatal Accidents Act, 1855 in the impugned judgment and order is only a misquotation. To the contra, Mr. S. Chakraborty, learned Government Advocate appearing for the appellant contends that in case the Case No. T.S. (F.A.) 16 of 1997 is to be treated as ordinary civil suit for damages, the said suit should have been tried by a Court of competent jurisdiction. 6. It is the submission of the learned Counsel for the parties that Court of competent jurisdiction may be Civil Judge (Junior Division) or Civil Judge (Senior Division) having the territorial jurisdiction. Over and above, the learned District Judge, West Tripura, Agartala has no original jurisdiction for trying the civil suit or money suit and the learned District Judge is a first Court of Appeal so far as the money suit and the suit for damages are concerned provided the concerned money suit or the civil suit is within the pecuniary jurisdiction of the learned District Judge, West Tripura. 7. 7. For the foregoing discussions, it appears that the Case No. T.S. (F.A.) 16 of 1997 cannot be tried and proceeded by the learned District Judge, West Tripura, Agartala even if it had been treated as an ordinary money suit/suit for damages. 8. Mr. P. Roy Barman, learned Counsel appearing for the respondent-claimant contends that the appellant, in the written statement or the show-cause statement filed in the Case No. T.S. (F.A.) 16 of 1997, did not raise question of maintainability of the Case No. T.S. (F.A.) 16 of 1997. No doubt, the parties have to prove their pleaded cases; but the question of law for which no evidence is required, can be raised by the parties even for the first time in the Appellate Court. 9. In the instant case, question of maintainability of the Case No. T.S. (F.A) 16 of 1997 is only a pure question of law. The question of law in the present Appeal is "whether under section 1-A of the Fatal Accidents Act, 1855 the said case, i.e. Case No. T.S. (F.A.) 16 of 1997 is maintainable." Answer is that the T.S. (F.A.) 16 of 1997 is not maintainable for the reason discussed above. Pursuant to an interim order of this Court passed in the present appeal, a sum of Rs. 50,000/- had been deposited by the appellant in the Registry of this Bench and that amount had already been withdrawn by the respondent-claimant. In such circumstances, even if the judgment and order dated 10.9.2001 passed by the learned District Judge, West Tripura, Agartala is the judgment passed without jurisdiction, the said amount of Rs. 50,000/- which had already been withdrawn by the respondent-claimant should not be recovered. With the above observations and direction, this appeal is allowed. Appeal allowed