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2019 DIGILAW 1472 (KAR)

Mukund v. Divisional Controller, MSRTC, Sangli

2019-06-28

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimants being aggrieved by the common judgment and award dated 18.2.2016, passed in MVC Nos.1955/13 and 1956/2013 by the VIII Addl. District and Sessions Judge, Belgavi, have filed these appeals. 2. The claimants in both the cases filed the claim petitions under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in the road accident which occurred on 18/7/2013 at about 3.00 p.m. on Miraj to Jaysingpur road within the village limits of Sangli due to rash and negligent driving of MSRTC bus bearing registration No.MH-14/BT-0327. Both the claimants have stated that at the relevant time, they were traveling on the motorcycle bearing registration No.MH-09/BQ-5880 and at that time the MSRTC bus was driven in a rash and negligent manner and dashed against the motorcycle which met with an accident and they sustained injuries. They got treated and spent huge amount for treatment and they are also suffering from permanent disability. Therefore, they filed claim petitions against the Divisional Controller, MSRTC Sangli, Maharashtra, claiming compensation. The claim petitions were filed before the MACT, Belgavi and the same were made over to VIII Addl. District and Sessions Judge, Belgavi for disposal according to law. 3. In pursuance of the notice, the respondent MSRTC appeared in both the cases through its counsel and filed a written statement. It is contended by the respondent that the accident was caused by the rash and negligent driving of the motorcycle by the petitioners and he has denied the age and earning capacity of the petitioners. The petitioners being residents of Jaysingpur, Maharashtra state and alleged accident has occurred within the limits of Miraj village, the Court has no territorial jurisdiction to try the petition. Hence, the same is liable to be dismissed. Further, he has denied that the petitioners are residents of Uchagaon village and Kakti village, Belgavi and that they have shown the said address to bring the case with in the jurisdiction of the Court. 4. On the basis of the pleadings of the parties, the tribunal framed issues in both the cases and both the cases were heard together. 5. In support of their claim petitions, the claimants have got examined themselves and three witnesses as PWs.3 to 5 and got marked in all 41 documents as Exs.P1 to P.41. Respondent has not produced any oral or documentary evidence. 6. 5. In support of their claim petitions, the claimants have got examined themselves and three witnesses as PWs.3 to 5 and got marked in all 41 documents as Exs.P1 to P.41. Respondent has not produced any oral or documentary evidence. 6. The learned member of the tribunal after hearing both the parties, after conclusion of the evidence, passed the impugned judgment, thereby the petitions were returned to the petitioners to present before the proper jurisdictional accident claims tribunal i.e. where the respondent corporation is carrying or having its office and where petitioners are permanently residing with their correct address or where the accident occurred. 7. The claimants being aggrieved with the impugned judgment have filed these appeals on the grounds that the Tribunal failed to note that as per Section 166(2) of M.V. Act the claimant is having four options where he can file claim petition including the place where the claimant resides, it need not be the place of permanent residence. The Tribunal failed to note the that the question of jurisdiction if raised by the respondent or suo moto by the Court, the same has to be decided at the first instance itself and not at the fag end of the case. The aim of the M.V. Act is to pay compensation to the victim or to the dependents of the victim at the earliest. The Tribunal failed to note that the respondent has not suffered any prejudice or otherwise no failure of justice had occurred, ought to have disposed of the claim petition on merits. 8. Heard the learned counsel for the appellants and respondent. 9. A short question which arises for consideration before this Court is as to "whether the impugned judgment is illegal and perverse and is liable to be set aside and the matter needs to be remanded to the Tribunal?" 10. The learned counsel for the appellant vehemently submitted that the tribunal cannot direct the petitioners to file petition before the Tribunal where they are permanently residing. There is no requirement of Section 166(2) of the M.V. Act to file the claim petition where they are permanently residing. The learned counsel submitted that once the petition was registered before the Prl. District Judge and MACT and was made over to the Addl . District Judge for disposal, the said Court cannot return the claim petition. There is no requirement of Section 166(2) of the M.V. Act to file the claim petition where they are permanently residing. The learned counsel submitted that once the petition was registered before the Prl. District Judge and MACT and was made over to the Addl . District Judge for disposal, the said Court cannot return the claim petition. The word "where the petitioner resides" has to be interpreted as where the petitioner presently resides. The learned counsel further submitted that in the present case, no prejudice was caused to the respondent and therefore, the Tribunal ought to have decided claim petition on merits. 11. The learned counsel relying on several decisions further submitted that the Tribunal in the present case had jurisdiction over the subject matter and as such the question of territorial jurisdiction would not have been considered. The learned counsel further submitted that the petitioners are put to prejudice by the impugned judgment as the petitions are ordered to be returned on jurisdictionalissue after examination of 5 wittiness and when the evidence of the parties was concluded. Therefore, the impugned judgment is liable to be set aside and the matter needs to be remanded to the Tribunal with a direction to decide the claim petitions on merits. 12. Learned counsel for the respondent submitted that the claim petitions are not filed in any of the places as provided under Section 166(2) of the M.V. Act. The respondent has no office in the state of Karnataka, and therefore, the claim petitions are not maintainable before the Tribunal as none of the places provided under Section 166(2) of the Act is chosen for filing the claim petition. The learned counsel further submitted that the petitioners have not produced any document to show their present addresses as mentioned in the claim petitions. Therefore, the impugned judgment is sustainable in law. 13. It is true that Section 166(2) of the M.V. Act provides the place of jurisdiction where the claim petition has to be filed. The claim petition may be filed before the Tribunal situated within the limits of the place of accident or where the claimant resides or where the defendant resides or carries on business. In the present case, it is admitted that the respondent MSRTC is not carrying on its business in the State of Karnataka though it is running number of busses in the state of Karnataka. In the present case, it is admitted that the respondent MSRTC is not carrying on its business in the State of Karnataka though it is running number of busses in the state of Karnataka. The claimants have mentioned their present addresses in the claim petitions. The claimant in MVC No.1955/2013 has shown his place of residence as Uchagaon, Belagavi, and claimant in MVC No.1956/2013 has shown his place of residence as Kakati, Belagavi. The Tribunal has held that the petitioners have not produced any documents to show their residential address mentioned in the claimant petition. The Tribunal ordered to return the claim petitions to present the same where the petitioners are permanently residing with their correct address. The word used in Section 166(2) of the M.V. Act is not where 'claimant permanently resides', but, the word is 'claimant resides'. Therefore, the said place need not be a permanent residential place of the claimant. The learned counsel for the appellant has relied on the judgment in the case of Mantoo Sarkar Vs. Oriental Insurance Company Ltd. and Others, (2009) ACJ 564. The learned counsel for the respondent has also relied on this decision in support of his arguments. The Hon'ble Supreme Court in para 17 and para 19 of this judgment has held as follows:- "17. The Tribunal is a court subordinate to the High Court. An appeal against the Tribunallies before the High Court. The High Court, while exercising its appellate power, would follow the provision contained in the code of Civil Procedure or akin thereto. In view of sub-section (1) of section 21 of the code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question, viz., whether the respondent No.1 has been able to show sufferance any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone". 19. A distinction, however, must be made between jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal has no jurisdiction in relation to the subjectmatter of claim. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal has no jurisdiction in relation to the subjectmatter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the court should not have, in absence of any finding of sufferance of any prejudice on the part of the respondent No.1, entertained the appeal." 14. Therefore, on the question of jurisdiction, the Hon'ble Supreme Court has held that where the Tribunal or the Court has got jurisdiction over the subject matter though it has no territorial or pecuniary jurisdiction, the judgment would not be a nullity. Therefore, in the case on hand, it is not a case where the Tribunal had no jurisdiction in relation to the subject matter of the same. Therefore, if the Tribunal had jurisdiction to entertain a claim petition under the M.V. Act, as observed by the Hon'ble Supreme Court in the absence of any finding of sufferance of any prejudice on the part of the respondent, the claim petition would have been disposed of on merits. 15. In the present case, the respondent has not made out any case of prejudice caused to him. Admittedly, the respondent has appeared before the Tribunal, has engaged a counsel, has filed a detailed written statement and has cross examined all the witnesses, on behalf of the respondents. Therefore, absolutely, there is no prejudice caused to the respondent in conducting or defending the claim petitions. Though the respondent is running several buses in the state of Karnataka, admittedly, he has no office in any part of the state of Karnataka. In the event, where the accident occurs within the state of Karnataka involving the bus belonging to the respondent and the claim petition being fi led within the state of Karnataka, the respondent would not have raised the question of jurisdiction. However, the respondent had to engage counsel and defend the claim petition. The similar is the fact in the present case. Therefore, absolutely no prejudice was caused to the respondent by entertaining the claim petition before the Tribunal. However, the respondent had to engage counsel and defend the claim petition. The similar is the fact in the present case. Therefore, absolutely no prejudice was caused to the respondent by entertaining the claim petition before the Tribunal. If at all the respondent was prejudiced in defending the claim petition, the respondent would have requested the Tribunal to decide additionalissue framed in both the cases to decide the jurisdiction of the Tribunal at the first instance. The Tribunal also framed the additionalissue regarding the territorial jurisdiction during the course of recording the evidence of the parties and did not proceed to hear the issue of jurisdiction as a preliminary issue. Thereby the claimants were permitted to proceed with the production of evidence and the said issue was decided after the full fledged trial in both the cases against the claimants. Therefore, the submission made on behalf of the appellants that the claimants have been prejudiced in this regard has to be accepted. The Tribunal ought to have decided the jurisdictionalissue as a preliminary issue at the first instance, and should not have proceeded to record the evidence produced by the claimants and after conclusion of the trial decided the additionalissue and ordered for the return of the claim petitions. 16. The learned counsel for the respondent has relied upon the judgment in the case of Malati Vs. National Insurance Company Ltd. and other,2016 SCCR 129. The Hon'ble Supreme Court in para 12 has held as follows: "12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata." 17. The learned counsel for the appellant has relied on a decision in the case of Roopsingh Mahavadevappa Lamani Vs. Somappa Sangappa Handi and another, (2018) ACJ 1961 in para 6 of the judgment, this Court has held as follows:- "6. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata." 17. The learned counsel for the appellant has relied on a decision in the case of Roopsingh Mahavadevappa Lamani Vs. Somappa Sangappa Handi and another, (2018) ACJ 1961 in para 6 of the judgment, this Court has held as follows:- "6. It is evident that the Tribunal framed additional-issue regarding territorial jurisdiction to try the claim petitions, subsequent to the arguments advanced by the learned counsel for the respondent No.2 on this point, at the time of final arguments, after recording the evidence of both the parties. It is well settled legal position that the territorial jurisdiction of the Tribunal has to be decided at the first available opportunity. Any objection if would have been raised by the Insurance company, an additional-issue would have been framed before recording of the evidence. At this juncture, it would be beneficial to refer to the judgment of the Hon'ble Apex Court in the case of Mantoo Sarkar Vs. Oriental Insurance Company Ltd, (2009) ACJ 564(SC) wherein it has been categorically held that "we cannot also lose sight of the fact that the appellant herein was a labourer. The justness or otherwise of the amount of compensation has not been disputed before us. If the High Court's judgment is to be complied with, the appellant would again have to initiate another proceeding either at Bareilly or Gurgaon or at Delhi or at Jabalpur. The same evidence would have to be rendered once again." Observing thus, held that there was no failure of justice even there was merit in the plea of lack of territorial jurisdiction. In the present case, the evidence of the parties was recorded. If the judgment and order passed by the Tribunal, now at this stage, if to be confirmed, the claimants would again have to initiate another proceedings either at Bilagi or Hubli, the same proceedings would have to be rendered once again. Section 21 of the CPC enunciates with no objection as to the jurisdiction should be allowed by the appellate or revisional Court, unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there was consequent failure of justice. Section 21 of the CPC enunciates with no objection as to the jurisdiction should be allowed by the appellate or revisional Court, unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there was consequent failure of justice. Principles underlying is when cause had been tried by the Court on merits and evidence recorded, it cannot be returned to present before the appropriate Tribunal holding that the Tribunal which recorded the evidence had no territorial jurisdiction, unless it had resulted in failure of justice. It is well established legal position that the policy of the legislature has been to treat the objection of the jurisdiction as technical, unless there has been a prejudice on the merits." 18. The learned counsel has further relied on the judgment in the case of Shri Manoj Ashok Karigar Vs. Shri Siddappa Ramappa Lolasure in MFA No.100481/2014 C/w MFA No.100482/2014 decided by this Court on 16/11/2015. In para 9 of the judgment this Court has held as follows:- "9. In the instant case the accident has taken place at Hidkal Dam, Ingali Road, Ingali, which comes within the jurisdiction of Sankeshwar Taluk for which the MACT is having jurisdiction and accordingly, the case has been filed before the said Tribunal which was made over to V Additional District Judge and VI MACT Belgaum. Accordingly, the said Court alone has to decide the matter and it is not proper to return the claim petition. If at all the court feels that the case does not come within its jurisdiction, the Additional MACT has to get it clarified by the Principal District Judge and it shall not be returned to the parties." 19. The claim petitions were filed before the MACT, Belgavi and the same were made over to VIII Addl. District and Sessions Judge, Belgavi to decide the claim petitions in accordance with law. However, the claim petitions are ordered to be returned to the parties for representation before the jurisdictional Court. 20. It is submitted that the claimants have become disabled and they are not in service and after having already adduced their evidence in both the claim petitions, they are put to much prejudice by the impugned judgment, to return claim petitions for presentation before the jurisdictional Tribunal. 20. It is submitted that the claimants have become disabled and they are not in service and after having already adduced their evidence in both the claim petitions, they are put to much prejudice by the impugned judgment, to return claim petitions for presentation before the jurisdictional Tribunal. Therefore, it is just and necessary that the impugned judgment be set aside and the matter be remanded to the Tribunal with a direction to dispose of the same on merits since the evidence of the parties has been already recorded. Learned counsel further relying on the judgment in the case of Sri Safiyulla Vs. Nationa In Co.LTd. in W.P.No.45217/2012 decided by this Court on 25/6/2013 submitted that the petitioners need not produce any documents to prove their present address. 21. The learned counsel for the respondent submitted that in case the appeals are allowed and the matters are remanded to the Tribunal, it would become a precedent. The said submission cannot be accepted. The appellantsclaimants have made out that the Tribunal had the jurisdiction over the subject matter and that the respondent is not at all put to any prejudice and therefore, the Tribunal ought to have decided the claim petitions on merits. 22. On the other hand, the Tribunal recorded the finding that the claimants have not proved their permanent place of residence within the jurisdiction of that Tribunal and therefore, ordered to return the claim petitions that too after recording the evidence of the claimants and after hearing both the matters on merits. Under these circumstances, this Court holds that the impugned judgment is illegal and perverse and is liable to be set aside. The matter needs be remanded to the Tribunal with a direction to hear both the parties and dispose of the claim petitions on merits. Accordingly, point for consideration is answered in the affirmative. In the result, this Court proceed to pass the following:- ORDER MFA No.1018161/2016 and MFA No.101862/2016 are allowed. The common judgment dated 18/2/2016 passed in MVC Nos.1955/2013 and 1956/2013 by the VIII Addl. District and Sessions Judge, Belagavi is hereby set aside. Both the matters are remanded to the Tribunal with a direction to reregister the claim petitions and hear both the parties and decide the main petition on merits, in accordance with law preferably within a period of four months from the date of receipt of this order.