Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 243 (CAL)

Biswajit Roy v. National Insurance Co. Ltd.

2016-03-07

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : Ashis Kumar Chakraborty, J. 1. In this revisional application the petitioner, being the applicant in the Motor Accident Claim Case M.A.C.C. No. 251 of 2011, has challenged the Order No. 25 dated April 09, 2015 passed by the learned 3rd Judge, City Civil Court at Calcutta. By the impugned order, the learned Court below returned the claim petition of the petitioner to his advocate for presentation of the same before the appropriate forum, on the ground that it lacks territorial jurisdiction to entertain the claim. 2. Undisputedly, the petitioner is the resident of Kobala (Purba), Kutirpara, Purbasthali, Burdwan and while working as a hotel boy at Bighati, P.S. Bhadreswar, District-Hooghly, he was hit by a speeding vehicle. The petitioner suffered severe physical injury and became permanently disabled. The said vehicle was under the insurance cover of the opposite party no. 1 insurance company issued from its office at Chandannagore, Hooghly and the residential address of the owner of the offending vehicle is at Balagarh, Hooghly. The petitioner filed an application for compensation under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), before the learned Court below, claiming compensation of Rs. 2,60,000/- against the opposite party no. 1 insurance company and the opposite party no. 2 the owner of the vehicle. According to the petitioner, summons of the said claim case was served upon the opposite parties, but none of them appeared before the learned Court below and the said case was heard ex-parte. The petitioner filed his examination-in-chief on affidavit and disclosed and proved the relevant documents. Although, none of the opposite parties contested the said claim case, by the impugned order the learned Court below held that inasmuch as the accident took place in the District of Hooghly, the offending vehicle was under the insurance cover of the opposite party no. 1 insurance company issued from its office at Chandannagore, Hooghly and the residential address of the owner of the offending vehicle is also at Balagarh, District-Hooghly, the City Civil Court at Calcutta lacked the territorial jurisdiction to entertain the said claim case under sub-section (2) of Section 166 of the Act. 3. Although, none of the opposite parties contested the claim case filed by the petitioner before the learned Court below but this Court directed the petitioner to serve a copy of this application on the opposite parties. 3. Although, none of the opposite parties contested the claim case filed by the petitioner before the learned Court below but this Court directed the petitioner to serve a copy of this application on the opposite parties. The petitioner served a copy of this application on the opposite party no. 1 insurance company and Mr. Rajesh Singh appeared for the opposite party no. 1. This Court even passed an interim order on January 25, 2016 directing stay of operation of the impugned order till February 20, 2016. 4. While assailing the impugned order, Mr. L.M. Ghosh, the learned Advocate appearing for the petitioner placed sub-section (2) of Section 166 of the Act and submitted that the Court within whose jurisdiction the opposite party no. 1 insurance company carries on business will have the jurisdiction to entertain a motor accident claim arising out of an accident, though taken place outside the jurisdiction of the said Court. In support of such contention, Mr. Ghosh relied on the decision of the Supreme Court in the case of Malati Sardar v. National Insurance Co. Ltd. and Others, reported in 2016 (1) TAC (SC). In the said case, relying on the Court’s earlier decision in the case of Mantoo Sarkar v. Oriental Insurance Co. Ltd. reported in (2009) 2 SCC 244 , the Supreme Court held that the provision in Section 166 of the Act is a benevolent provision for the victims of accidents of negligent driving and the provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. The Supreme Court further held that there is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business as there is no prejudice to any party and there is no failure of justice. Thus, according to Mr. Ghosh the impugned decision of the learned Court below in the present case returning the claim petition to the petitioner’s advocate holding that it lacked the territorial jurisdiction to entertain the claim case of the petitioner is patently illegal, contrary to the decision of the Supreme Court, declaring the law of the land and liable to be set aside. 5. However, Mr. Rajesh Singh, the learned Advocate appearing for the opposite party no. 5. However, Mr. Rajesh Singh, the learned Advocate appearing for the opposite party no. 1 insurance company submitted that there is no infirmity in the impugned decision passed by the learned Court below. He cited the decision of the Supreme Court in the case of Deepal Girishbhai Soni v. United Insurance Co. Ltd. reported in (2004) 5 SCC 385 . According to him, in the case of Malati Sardar (supra) notice of the Supreme Court was not drawn to its earlier decision in the case of Deepal Girishbhai (supra), where considering the provision of the Act, the Supreme Court held as follows: "53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby." 6. Relying on the above finding of the Supreme Court in paragraph 53 in the said case of Deepal Girishbhai (supra), Mr. Singh submitted that this Court should not follow the decision of the Supreme Court in the case of Mantoo Sarkar (supra). 7. I have considered the facts of the present case and the rival contention of both Mr. Ghosh and Mr. Singh appearing for the petitioner and the opposite party no. 1 respectively. 8. Since the question raised in this revisional application involves scope and effect of sub Section (2) of Section 166 of the Act it is appropriate to quote the said statutory provision as follows: "Every application under sub-section (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." 9. Although, the petitioner claimant has his residence at Purbasthali, District-Burdwan, the accident out of which the petitioner suffered injury occurred in the District of Hooghly, the insurance cover in respect of the vehicle in question was issued from the office of the opposite party no. 1 situated in the District of Hooghly, but the petitioner filed the claim petition under Section 166 of the Act before the learned claim Tribunal of the learned City Civil Court at Calcutta within whose jurisdiction the opposite no. 1 insurance company has its office and carries on business. In spite of service of the summons of the claim case, neither the opposite party no. 1 insurance company nor the opposite party no. 2 the owner of the vehicle contested the claim petition before the claim Tribunal of the learned City Civil Court, Calcutta. The Supreme Court has held that Section 21 of the Code of Civil Procedure (hereinafter referred to as "the Code") is applicable in respect of a proceeding under Section 166 of the Act. In the present case, the opposite party no. 1 raised no objection under Section 21 of the Code before the learned Court below alleging that it lacks territorial jurisdiction to entertain the claim of the petitioner or that in view of the filing of the claim petition before the learned Court below, it suffered any prejudice. The petitioner filed his affidavit-in-chief and there was no cross-examination of the petitioner by any of the opposite parties alleging the lack of territorial jurisdiction of the claim Tribunal to entertain the claim petition of the petitioner. In the case of Mantoo Sarkar, the petitioner met with a car accident and suffered the injury in the town of Faridpur in the District of Uttar Pradesh. The offending vehicle was registered in Faridabad and was insured with the respondent insurance company in Delhi. However, the petitioner while working as a labourer at Nainital, filed the claim petition before the Tribunal at Nainital, when the insurance company had its branch office at Nainital. The Tribunal allowed the claim petition of the petitioner by holding that in view of the provisions contained in sub-Section (2) of Section 166 of the Act and the insurance company having a branch office at Nainital, it had the territorial jurisdiction to determine the claim petition. The Tribunal allowed the claim petition of the petitioner by holding that in view of the provisions contained in sub-Section (2) of Section 166 of the Act and the insurance company having a branch office at Nainital, it had the territorial jurisdiction to determine the claim petition. On the Insurance company filing an appeal against the award of the claim Tribunal, the High Court of Uttarakhand at Nainital set aside the decision of the Tribunal on the ground that the Tribunal at Nainital had no territorial jurisdiction to entertain the claim petition of the petitioner victim. The petitioner filed a special leave petition against the decision of the High Court. The Supreme Court, however, set aside the decision of the High Court on the ground that neither the insurance company nor the owner of the vehicle raised any objection before the claim Tribunal about its lack of territorial jurisdiction to entertain the claim petition and that the insurance company could not substantiate to have suffered any prejudice by virtue of the claim Tribunal of Nainital having entertained the claim petition, as provided in sub-Section (2) of Section 21 of the Code. 10. In the case of Malati Sardar (supra) relied by the petitioner, the son of the petitioner was hit by a bus in the District of Hooghly and he died. The bus was insured by the respondent insurance company in the district of Hooghly. The petitioner and the victim were also residing in the district of Hooghly. However, the petitioner filed an application under Section 166 of the Act for compensation before the Tribunal in Kolkata. The Tribunal at Kolkata allowed the claim of the petitioner for compensation. On the insurance company filing an appeal against the decision of the claim Tribunal before this Court only on the ground of lack of territorial jurisdiction of the Tribunal, this Court set aside the decision of the claim Tribunal on the ground of lack of territorial jurisdiction. The petitioner challenged the said decision of this Court by filing a special leave petition before the Supreme Court. After considering the provisions in sub-Section (2) of Section 166 of the Act and following the Court’s earlier decision in the case of Mantoo Sarkar (supra), Supreme Court set aside the decision of this Court. The petitioner challenged the said decision of this Court by filing a special leave petition before the Supreme Court. After considering the provisions in sub-Section (2) of Section 166 of the Act and following the Court’s earlier decision in the case of Mantoo Sarkar (supra), Supreme Court set aside the decision of this Court. The Supreme Court held that when the insurance company, being the contesting respondent, had its office in Kolkata, in view of the provisions contained in sub-section (2) of Section 166 of the Act the claim Tribunal in Kolkata had the jurisdiction to entertain the claim. The Supreme Court held that the provisions of the Act being benevolent provision for the victims of accidents of negligent driving, the provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents and there is no bar to a claim petition being filed at a place where the insurance company, the main contesting party in such cases, has its business as in such cases there is no prejudice to any party nor there is any failure of justice. 11. So far as an argument advanced on behalf of the opposite party insurance company by placing reliance on paragraph 53 of the decision of the Supreme Court in the case of Deepal Girishbhai (supra) as recorded above, I find the reliance placed by the insurance company on the said decision is totally misplaced. In the said case the question that fell for consideration before the Supreme Court was whether a person having received compensation under Section 163-A of the Act, can further claim compensation under Section 166 of the Act. The Supreme Court held that the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies under both the said sections simultaneously and one must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both. While repelling the contention of the claimant that since the Act itself is a beneficial one and, therefore, deserves liberal construction to enable an accident victim to have the benefit of compensations both under Section 163-A and Section 166 of the Act, the Supreme Court in paragraph 53 of the said judgment made the observations quoted above. While repelling the contention of the claimant that since the Act itself is a beneficial one and, therefore, deserves liberal construction to enable an accident victim to have the benefit of compensations both under Section 163-A and Section 166 of the Act, the Supreme Court in paragraph 53 of the said judgment made the observations quoted above. Thus, the said observation of the Supreme Court has no bearing on the interpretation of sub-Section (2) of Section 166 of the Act conferring jurisdiction on a claim Tribunal/Court to entertain a claim petition within whose jurisdiction the respondent insurance company has its office and carrying on business. 12. In the present case, when the opposite party insurance company has its business within the jurisdiction of the learned City Civil Court, Calcutta, it did not contest the claim petition filed by the petitioner before the claim Tribunal of the learned City Civil Court at Calcutta and it could not allege to have suffered any prejudice, the decisions of the Supreme Court in both the cases of Mantoo Sarkar and Malati Sardar (supra) are squarely applicable and as such the impugned order passed by the learned Court below cannot be sustained. 13. For the foregoing reasons, the revisional application being C.O. No. 4266 of 2015 is allowed and the order bearing No. 25 dated April 09, 2015 passed by the learned 3rd Judge, City Civil Court at Calcutta in Biswajit Roy v. National Insurance Co. Ltd. and Another, M.A.C.C. No. 251 of 2011, stands set aside. 14. The learned 3rd Judge, City Civil Court at Calcutta is directed expeditiously to dispose of the claim petition of the petitioner, being Biswajit Roy v. National Insurance Co. Ltd. and Another, M.A.C.C. No. 251 of 2011, preferably within a period of four weeks from the date of communication of this order. 15. However, there shall be no order as to costs. Urgent certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Revision application is allowed.