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2014 DIGILAW 468 (RAJ)

Kalyan Das v. State of Rajasthan

2014-02-12

SANDEEP MEHTA

body2014
Judgment The instant appeal has been filed on behalf of the appellants challenging the order dated 14.10.1996 passed by the learned Additional District & Sessions Judge, No.3, Jodhpur in Civil Original Suit No.33/1991, whereby, the learned trial court returned the suit to the appellants for being filed before before the Motor Accident Claims Tribunal. Briefly stated the facts necessary for the disposal of this appeal are that three persons namely Manoj Kumar Joshi, Shyam Bhattad and Hasan were travelling on a scooter bearing registration No.RJ-19-5940 from Jodhpur to Pali. At about 8 O'clock in the evening, whilst they were crossing the road bridge constructed on the Luni river, they collided with a toll barrier resulting into the death of all three of them. The legal heirs of the deceased Manoj Kumar Joshi filed a suit in the court of the learned Addl. Distt. & Sessions Judge, No.3, Jodhpur under the Fatal Accidents Act, 1855 claiming compensation to the tune of Rs.45,76,000/-against the State Government, the Distt. Executive Engineer, PWD (B&R) Division II, Jodhpur, M/s Madan Lal Loonker, the operator of the toll booth and Bhaley Khan, the employee of the toll booth operator. It was pleaded in the suit that the persons operating the toll booth were under the control of the State Government. They acted rashly and negligently and put up the toll barrier without any warning signs resulting in to accident leading to the death of the three scooter riders. The defendants Nos.2 and 3 filed written statements to the suit and took an objection that the suit was not maintainable in view of the provisions of Section 110-A and 110-F of the Motor Vehicles Act, 1939 and the analogous provisions of the Act of 1988. It was submitted that the said provisions oust the jurisdiction of the civil court to entertain the proceedings in relation to the compensation claimable under motor accident and, therefore, the suit was not maintainable. The trial court whilst exercising powers under Order 7 Rule 10 CPC directed the suit to be returned back to the appellants for being filed before the Motor Accident Claims Tribunal. Hence this appeal. Learned counsel Shri Amit Mehta appearing on behalf of the appellants vehemently contended that the learned trial court has committed a grave error of law in returning back the suit for being filed before the Motor Accident Claims Tribunal. Hence this appeal. Learned counsel Shri Amit Mehta appearing on behalf of the appellants vehemently contended that the learned trial court has committed a grave error of law in returning back the suit for being filed before the Motor Accident Claims Tribunal. He submitted that the judgment relied upon by the learned Tribunal rendered in the case of New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, reported in AIR 1976 SC 237 is not relevant and applicable to the facts of the present case. He thus prayed that the impugned order be set aside and the learned Addl. Distt. & Sessions Judge, No.3, Jodhpur be directed to proceed with and decide the suit in accordance with law. Per contra, Shri Rajesh Panwar, learned Addl. Advocate General appearing on behalf of the respondents Nos.1 and 2 vehemently opposed the submission advanced by the learned counsel for the appellants. He however conceded that the remedy under the Fatal Accidents Act, 1855 would not be totally ousted unless the conditions of Section 166 read with Section 175 of the Motor Vehicles Act, 1988 applies on all fairs to the facts of the case. Heard learned counsel for the parties at the bar, perused the order impugned as well as the record. The accident in question occurred on 11.2.1990, thus, the provisions of the Act of 1988 would be applicable. The basic question which has arisen in this case for decision is as to whether the jurisdiction of the civil court was totally ousted in this case in view of Section 175 of the Motor Vehicles Act, 1988 which reads as under:- “175. The basic question which has arisen in this case for decision is as to whether the jurisdiction of the civil court was totally ousted in this case in view of Section 175 of the Motor Vehicles Act, 1988 which reads as under:- “175. Bar on jurisdiction of Civil Courts.-Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.” The thrust of the legislature's intent in this provision is that the civil court does not have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court. Section 168(1) of the Motor Vehicles Act, 1988 which is para materia to Section 110-B of the Motor Vehicles Act, 1939 reads as below:- “168. Section 168(1) of the Motor Vehicles Act, 1988 which is para materia to Section 110-B of the Motor Vehicles Act, 1939 reads as below:- “168. Award of the Claims Tribunal.-(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.” From a bare reading of the said Section, it is evident that the relief of compensation can be awarded by the Claims Tribunal specifying the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. A plain reading of the aforesaid Section makes it clear that the Claims Tribunal has no jurisdiction to award the relief of compensation against any person other than the insurer or owner or driver of the vehicle involved in the accident. In the case at hand, none of the defendants to the suit falls in any of the categories i.e. the insurer, owner or the driver of the vehicle in question. Therefore, ex facie, the Motor Accident Claims Tribunal constituted under Section 175 of the Motor Vehicles Act, 1988 had no jurisdiction to entertain the suit and grant the relief claimed by the claimants in this case. The Hon'ble Division Bench of the High Court of Andhra Pradesh whilst dealing with the similar issue under the analogous provisions of the Act of 1939 in the case of the Oriental Fire & General Insurance Co. Ltd. and another Vs. The Hon'ble Division Bench of the High Court of Andhra Pradesh whilst dealing with the similar issue under the analogous provisions of the Act of 1939 in the case of the Oriental Fire & General Insurance Co. Ltd. and another Vs. Union of India Owning South Central Railway, reported in 1975 A.C.J. 33 held as under:- “For instance, a person proceeding in a motor vehicle may be injured by an accident resulting from the fall of a tree or the collapse of a building. It cannot be said that the occupants can lay a claim in the Tribunal constituted under the Motor Vehicles Act against the owners of the building or of the tree, if it was due to the negligence of such owner that such accident occurred. Similarly in this case we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of a motor vehicle. In our view, the claims referred to in section 110 are applicable only to cases of claims against the owner or the driver of the motor vehicle or the insurer as the case may be and not as against the strangers. The proper forum for adjudicating the claims against the strangers is a civil Court. The jurisdiction of the civil Court is not in our view barred by section 110-F of the Act.” In view of the above discussion, this Court is of the opinion that the learned trial court committed a grave error in directing the suit to be returned back to the appellants for being filed before the Motor Accident Claims Tribunal. The judgment relied upon by the learned trial court in the case of New India Insurance Co. Ltd. Vs. Smt.Shanti Misra (supra) is not relevant to the case at hand because the same relates to an accident between two vehicles and the relief was claimed against the insurer and the owner. Thus, the civil court was totally unjustified in refusing to try the appellants' suit and in returning the same back to the claimants by the impugned order dated 14.10.1996. Resultantly, the appeal is allowed. The order dated 14.10.1996 passed by the learned Additional District & Sessions Judge, No.3, Jodhpur in Civil Original Suit No.33/1991 is set aside. Thus, the civil court was totally unjustified in refusing to try the appellants' suit and in returning the same back to the claimants by the impugned order dated 14.10.1996. Resultantly, the appeal is allowed. The order dated 14.10.1996 passed by the learned Additional District & Sessions Judge, No.3, Jodhpur in Civil Original Suit No.33/1991 is set aside. The parties are directed to appear before the learned Additional District & Sessions Judge, No.3, Jodhpur on or before 10.3.2014, whereafter, the learned trial court shall fix the next date in the matter and shall proceed to decide the suit expeditiously. Record be sent back forthwith.