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2012 DIGILAW 795 (MP)

Sapna Parihar v. Maheshkumar Batra

2012-08-09

N.K.MODY

body2012
JUDGMENT : N.K. Mody, J. Being aggrieved by the award dated 19-2-2010 passed by IV MACT, Mandsaur in claim case No. 22/09 whereby the claim petition filed by the appellant for compensation on account of death of husband Arun was dismissed, the present appeal has been filed. 2. Short facts of the case are that appellant filed a claim petition alleging that Arun o was husband of the appellant who died in a motor accident which took place on 3-8-2004 when the deceased was going from Nimbaheda to Neemuch. It was alleged that o respondent Nos. 3 and 4 are parents of the N deceased. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was filed under Section 163-A of the Motor Vehicles Act wherein income was mentioned as Rs. 40,000/- per 2 year meaning thereby Rs. 3,300/- per month. The claim petition was contested by respondent No. 2 on various grounds including on the ground that petition itself is not maintainable as earlier the claim petition was filed by the appellant which was dismissed and also the claim petition filed by respondent Nos. 3 and 4 under the provisions of Workmen's Compensation Act which was also dismissed. After framing of issues and recording of evidence learned tribunal dismissed the claim petition on the ground that tribunal is having no territorial jurisdiction and also the claim petition is not maintainable because of principles of res judicata and also the claim petition is not maintainable under Section 163-A of the Motor Vehicles Act as income of the deceased was more than Rs. 40,000/- per year, against which the present appeal has been filed. Learned counsel submits that on none of the grounds the claim petition could not have been dismissed as not maintainable, in the facts and circumstances of the case the appeal be allowed and impugned award be set aside. 3. Learned counsel for respondent No. 2 submits that no illegality has been committed by the learned tribunal in dismissing the claim petition. It is submitted that appeal be dismissed. 4. Since learned tribunal was of the view that tribunal is not having the territorial jurisdiction, therefore in the circumstances, learned tribunal was not justified to entertain the petition on merits and in holding that the claim petition itself is not maintainable. It is submitted that appeal be dismissed. 4. Since learned tribunal was of the view that tribunal is not having the territorial jurisdiction, therefore in the circumstances, learned tribunal was not justified to entertain the petition on merits and in holding that the claim petition itself is not maintainable. One the Court is of the view that Court is having no territorial jurisdiction, the Court has no right to go through the merits of the case. Since the petitioner has alleged that petitioner is posted as teacher at Awleshwar, Tahsil Pratapgarh in the State of Rajasthan and she is residing at village Sat-sod, District Mandsaur which is hardly 15-20kms, away from Rajasthan, therefore there was no reason to disbelieve the version of the appellant. The claim petition could not have been dismissed on the ground that respondent Nos. 1, 3 and 4 are residing at Rajasthan. So far as earlier claim petition filed by appellant is concerned, it is true that claim petition was filed by the appellant before the learned tribunal but same was withdrawn because of pendency of the claim petition under the provisions of Workmen's Compensation Act. It is true that claim petition was tiled by the appellant along with respondent Nos. 3 and 4 before the Labour Court under the provisions of Workmen's Compensation Act but the same was also not decided on merits as same was withdrawn before the claim petition could have been decided on merits. It appears that in the claim petition filed by the appellant earlier before Labour Court the income of deceased was shown as Rs. 5,500/- per month from salary and T.A. while before the MACT, the appellant stated the income as Rs. 9,000/- per month and in the claim petition which is dismissed by the impugned award, the income is stated as Rs. 3,300/- per month, but all these facts are required to be decided on merits. Since the claim petition filed by the appellant repeatedly has not been disposed of by any of the competent Court on merits, therefore appeal is allowed. The impugned award is set aside and learned tribunal is directed to decide the claim petition on merits after securing the presence of respondent Nos. 3 and 4. 5. With the aforesaid observation, the appeal stands disposed of.