Delhi District Court
Ms. Maria Claudia vs Mr. Suresh Kumar on 3 September, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.123/14
Date of Institution: 11.08.2009
ID No.02403C01078
IN THE MATTER OF:
Ms. Maria Claudia
D/o Mr. Severo Severi
Permanent Resident: XXX,
C/o Mr. Vikas Gupta Advocate
A17, Hauz Khas
New Delhi16. ...Petitioner
Versus
1. Mr. Suresh Kumar
S/o Shri Goru Ram
R/o Dhani Rawta
Papurana, Khetri
District Jhunjanu
Rajasthan.
2. Smt. Krishna Devi
W/o Shri Rajkumar Yadav
r/o Adharsh Nagar Ward No.10
Buchahada Colony, Kotputli
Jaipur, Rajasthan. (Truck Owner)
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3. The Oriental Insurance Company Ltd.
having office at Oriental House, A25/27
Asaf Ali Road
New Delhi02.
Regional Office at:
1 Jeevan Bharti Building
9th Floor, K Tower1, CP
New Delhi.
4. Mr. Mohd. Kamar
S/o Mohd. Umar
R/o Near Deput SP Temple
Muradabad, UP. (Car Driver)
5. Mr. Jaideep Singh
R/o Shop No.3, CSC Market
Pocket J Sarita Vihar
Delhi. (Innova Car owner)
6. United India Insurance Co. Ltd.
Having office at 2/27, Sarai Jullena
Opposite Hotel Surya
Okhla Road
New Delhi.
7. Bajaj Allianz General Insurance Co. Ltd.
Having office at C31/32, Ist & 2nd Floor
Connaught Place
New Delhi110001. ...Respondents
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ORDER
1. By way of this order, I shall dispose off the objections taken on behalf of the respondent No.7 regarding the jurisdiction of this Tribunal to entertain the matter. It was submitted by the learned counsel for the respondent No.7 that the cause title of the petition shows that the claimant was resident of Italy and the petition had been filed C/o Shri Vikas Gupta Advocate, A17, Hauz Khas, New Delhi16 which implied that he was only an intermediary and if any letter etc. was sent, he would forward the same to the addressee. It was argued that the accident had taken place in Rajasthan, the policy was issued from Pune for the vehicle, the respondents No.1 and 2 were from Rajasthan, respondent No.3 i.e. Oriental Insurance Company Ltd. has its office at Asaf Ali Road which is not within the jurisdiction of this Tribunal, respondent No.4 was from U.P., respondent No.5 had the address of Sarita Vihar which also did not lie within the jurisdiction of the Tribunal at New Delhi, Patiala House Courts, as also the respondent No. 6 whose address was of Okhla Road and as regards the respondent No.7 though the address of Connaught Place had been mentioned but the policy in question was issued from Pune. It was argued that it had been stated in the evidence by way of affidavit which had been filed by Maria Claudia Severi, as PW1 in para No.17 thereof that she is a permanent resident of Italy. It was argued that ordinarily CPC would not apply but in view of Rule 32 of the Delhi MACT Rules, Section 9 of CPC can be looked at.
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2. Per contra, the learned counsel for the petitioner had argued that the present was a case of an Italian taking Innova Car from Delhi to Rajasthan and getting seriously injured in the accident. It was argued that even if the petition has been filed before this Tribunal, no prejudice would be caused to the Insurance Company. It is submitted that the law being a beneficial legislation it has to be read in favour of the LR of the victim who died/ the injured, and in fact in the present case, the insurance company had acted dishonestly all throughout and the insurance company had tried to negotiate for a compromise but now it was trying to get out of the same. It was argued that some of the respondents are of Delhi and even the registered office of the insurance company i.e. the respondent No.7 was of Delhi and being the capital where the Embassy was located, the present petition would lie at Delhi.
3. The present petition was filed as far back as 11.08.2009 under Sections 166 and 140 of the Motor Vehicles Act, 1988 as amended upto date (hereinafter referred to as the Act) seeking compensation in respect of the injuries suffered by the petitioner in a road accident. It is stated that the petitioner had come with her sister Cristina Severi to visit India as a tourist and as per their schedule they were traveling across India for sightseeing. On 2nd August 2008, they hired a car i.e. Toyota Innova bearing No.DL 1YA 8440 on rent to travel across India. The name of their driver was Mohd. Kamar, who had to take them for the tour. They left for Rajasthan on 4th August 2008 and visited many places. It is stated that on the fateful day of 10th August 2008 Maria Claudia v Suresh Kumar & Ors. Page No. 4 of 19 Suit No. 123/14 while they were on their way to Jaipur and had come about five kilometers far from the place from which they had started, they saw a truck approaching their car from the opposite side at a very high speed. The truck was coming on the wrong side of the road. The driver of their car was also driving at a high speed; before the driver of their car could do something the truck hit their car from the front with great force due to which the safe of the car got crushed and banged Cristina's head who received major head injury and it broke her skull. The petitioner got injuries on her head, eyes, hands and legs. The driver also got injured. With the help of people passing by they were taken to the nearby hospital. Cristina died on the way to the hospital. It is stated that in respect of the accident FIR No.261/08 PS Raipur, District Palli, Rajasthan was registered.
4. At the outset, an objection was taken by the learned counsel for the petitioner that the objection regarding jurisdiction could not be entertained at this stage as no such objection was taken in the written statement and the matter is now at the stage of PE. However, a perusal of the written statement filed on behalf of respondent No.7 shows that an objection was taken in the written statement itself on behalf of the respondent No.7 averring that this court has no jurisdiction to try and entertain the claim petition of the petitioner. Moreover, the question of jurisdiction can be looked into by the court at any stage. In National Insurance Company Ltd. v. Parveen Kumar and others 2013 ACJ 1787 the Hon'ble High Court of Himachal Pradesh observed:
Maria Claudia v Suresh Kumar & Ors. Page No. 5 of 19 Suit No. 123/14 "5. Therefore, I am of the considered view that the Motor Accidents Claims Tribunal did not apply its mind before entertaining the petition or even while the evidence was going on. .... but these factors must be taken into consideration by all the Motor Accidents Claims Tribunals in future."
Thus it has been held that the issue of jurisdiction can be looked at even while the evidence is going on and there is no merit in this contention of the learned counsel for the petitioner.
5. In the present case it is not in dispute that the petitioner is a permanent resident of Italy and she had come to India for sightseeing and the accident had taken place in Rajasthan in respect of which FIR No.261/08 PS Raipur, District Palli, Rajasthan was registered. It is further not in dispute that the respondents No.1 and 2 who are the driver and owner of the truck belong to Rajasthan, respondent No.3 has its office at Asaf Ali Road, though Regional Office has been shown at Connaught Place, the respondent No.4 who is the driver of the car is of Moradabad. The respondent No.5 who is the owner of the Innova car is at Sarita Vihar which does not come within the jurisdiction of the Tribunal at New Delhi and the address of the respondent No.6 is that of Okhla Road which also does not come within the jurisdiction of the Tribunal at New Delhi, as regards the respondent No.7, the address of Connaught Place is mentioned but it was submitted that the Policy was issued from Pune which has not been disputed.
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6. Section 166 (2) of the Act which deals with the jurisdiction of the Tribunal reads as under:
"166 (2) Every application under subsection (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 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."
Thus a perusal of subsection (2) of Section 166 of the Act would show that the claimant can file the claim petition either before the Claims Tribunal having jurisdiction over the area in which the accident occurred, or before 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 but subsection (2) does not confer jurisdiction on the Tribunal within the local limits of whose jurisdiction the defendant carries on business.
7. The learned counsel for the respondent No.7 had argued that the claim petition had been filed giving the address of the learned counsel for the claimant and that the same could not have been filed through the counsel. The learned counsel for the claimant had argued that the claimant was within her Maria Claudia v Suresh Kumar & Ors. Page No. 7 of 19 Suit No. 123/14 right to file the petition through her counsel and this court has the territorial jurisdiction to entertain the petition. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble High Court of Delhi in Mohd. Israil Malik and Anr. v. Nirmal Singh and Ors. MAC APP 147/2010 decided on 9.2.2011 where it was held that the residence of the claimant could also determine the jurisdiction of the Tribunal. However the Section itself provides that but the present is not a case where the petitioner/ claimant could be said to be residing at Delhi at any point of time. In National Insurance Company Ltd. v. Parveen Kumar and others (supra) it was observed:
"A petition can be filed at the option of the claimant in terms of section 166 (2) of the Motor Vehicles Act either before the Claims Tribunal having jurisdiction over the area in which the accident occurred or the Claims Tribunal having jurisdiction over the area where the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. It is thus obvious that there are three different venues available. However, when the claimant files a petition at the place where he resides or carries on business there must be some material to show that he is residing and has the animus to reside there for some length of time. Merely visiting a place for purpose of treatment will not clothe the Motor Accident Claims Tribunals with jurisdiction to entertain a petition.
Xxxx
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4.As per Black's Law Dictionary, the word 'reside' means to settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for time, to have one's residence or domicile."
Thus it has been held that when the claimant files a petition at the place where he resides or carries on business there must be some material to show that he is residing and has the animus to reside there for some length of time and merely visiting a place for purpose of treatment or for the purpose of sight seeing as in the instant case will not clothe the Motor Accident Claims Tribunals with jurisdiction to entertain a petition. Even otherwise it is seen that the address mentioned in the claim petition is of Hauz Khas which does not lie within the jurisdiction of this Tribunal. It was sought to be contended by the learned counsel for the petitioner that the petitioner was a resident of Italy and had come to India and as such being a foreigner she should be entitled to file a petition before this Tribunal as the Embassy is located within the jurisdiction of this Tribunal. However, it is not the case that the petition has been filed through the Embassy or by giving the address of Embassy and had been filed by the petitioner in her own capacity through her counsel. Moreover, there is no merit in the contention that Delhi being the capital, all cases of foreigners should be entertained here.
8. There is also no merit in the contention that as the offices of the insurance companies are located within the jurisdiction of this Tribunal this Maria Claudia v Suresh Kumar & Ors. Page No. 9 of 19 Suit No. 123/14 Tribunal would have the jurisdiction to entertain the matters. The address of the respondent No.6 United India Insurance Co. Ltd. is of Okhla Road as observed above. As regards the respondent No.3 it had taken an objection in its written statement that the offending truck was not insured with it at the time of the accident and subsequently the respondent No.7 was impleaded as the insurer of the truck vide order dated 7.5.2010 and it is the contention of the respondent No.7 that the policy in question was issued from Pune so this Tribunal does not have the jurisdiction. The learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in Mantoo Sarkar v Oriental Insurance Company Ltd. and Ors (2009 Kant MAC 125 (SC) : 2009(1) TAC 434 (S.C.)) but in that case the question of lack of territorial jurisdiction was not raised before the Tribunal and the Hon'ble Supreme Court observed that it was well settled that in a situation of the nature as in that case the Hon'ble Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof could issue directions for doing complete justice to the parties and as such that judgment would be of no avail. In a recent case of Oriental Insurance Company CAN 562 of 2013 decided on 25.3.2013 it was observed by the Division Bench of the Hon'ble High Court of Kolkatta in this regard as under:
"Before concluding we feel it necessary to indicate here that principle which was laid down by the Hon'ble Supreme Court in the case of Mantoo Sarkar (Supra) has no application in the facts of the instant Maria Claudia v Suresh Kumar & Ors. Page No. 10 of 19 Suit No. 123/14 case as that was a case where we find that undisputedly the victim had been working in the Nainital District and was residing there during the period of accident. Thus, the jurisdiction of the Tribunal at Nainital was rightly invoked in the said case, in exercise of the second option available to the claimants under section 166(2) of the said Act. That apart, no objection relating to the jurisdiction of the said Tribunal to entertain the claim petition was raised by any of the defendants of the said case before the Tribunal. Such objection was raised for the first time before the High Court. In this context it was held therein that such an objection cannot be raised before the High Court for the first time, in view of section 21(1) of the Civil Procedure Code, but in the present case, the facts are completely different. Here the insurance company appeared in the said proceeding before the Tribunal and raised an objection with regard to the jurisdiction of the said Tribunal to entertain the said claim petition in the written statement itself. Thus, before settlement of the claim, such an objection was raised by the defendant in the said proceeding before the Tribunal. As such, the principles which were laid down by the Hon'ble Supreme Court in the facts of the said case, cannot be applied in the instant case."
9. The Hon'ble Karnataka High Court in its judgment dated 7.8.2012 in Subhadra v Pankaj wherein the question of jurisdiction of the Tribunal was discussed at length observed that SubSection (2) of Section 166 of the Act, clearly demonstrates that a claim petition cannot be instituted before the Tribunal, within whose local limits, the defendantInsurance Company carries Maria Claudia v Suresh Kumar & Ors. Page No. 11 of 19 Suit No. 123/14 on business. It was observed that u/s 166 (2) of the Act the jurisdiction is conferred on the Tribunal within local limits of whose jurisdiction the defendant resides and not carries on business. It was further observed that:
"If the jurisdiction is conferred on or recognized of the claims Tribunal, within whose local limits, the Insurance Company carries on business, perhaps that will create a chaotic situation. The Insurance Companies have their offices/ branch offices all over the country. That seems to be the reason why the legislature, in subsection(2) of Section 166 of the Act, did not confer jurisdiction on the claims Tribunal within whose local limits the defendant i.e. the Insurance Company "carries on business".
10. In Oriental Insurance Company CAN 562 of 2013 decided on 25.3.2013 the insurance company challenged the jurisdiction of the Tribunal to entertain the claim petition. In that case the claim petition was filed in City Civil Court at Calcutta where neither the claimants resided, nor they carried on business, nor the accident occurred, nor the policy issuing office of the insurance company was situated within the jurisdiction of city civil court at Calcutta, nor the owner of the offending vehicle resided within the jurisdiction of the City Civil Court at Calcutta. However, the regional office of the insurance company was situated within the territorial jurisdiction of City Civil Court at Calcutta. It was observed that a plain reading of the provision makes it clear that three options are given to the claimants for choosing the Tribunal where such application can be filed. These options are as follows: Maria Claudia v Suresh Kumar & Ors. Page No. 12 of 19 Suit No. 123/14 "(i) The claimants can file the claim petition in the claims Tribunal having jurisdiction over an area in which the accident occurred, i.e. with reference to the place of occurrence of the accident, or
(ii) The claim petition can be filed in the claims Tribunal within the local limits of whose jurisdiction the claimants reside or carries on business, or
(iii) The claim petition can be filed in the claims Tribunal within the local limits of whose jurisdiction the defendant resides."
It was further held:
"The provision under section 166(2) of the said Act is the only provision which deals with the jurisdiction of the Tribunal where the claim petition can be filed by the claimants. Ofcourse, three options are given to the claimants for choosing a particular Tribunal for filing such claim petition before it.
We have examined the said provision minutely. So far as the first option is concerned, we have no hesitation to hold that the City Civil Court jurisdiction cannot be invoked as the accident did not occur within the territorial jurisdiction of the City Civil Court. So far as the second option is concerned, we have no hesitation to hold that the City Civil Court has no territorial jurisdiction to entertain the said claim petition as none of the claimants resides, and/or carries on business within the territorial jurisdiction of the City Civil Court. Now, we have to examine as to whether the claimants can maintain this application in City Civil Court by exercising the last option which is provided in the said provision. The last option gives a right to the claimant to file an application Maria Claudia v Suresh Kumar & Ors. Page No. 13 of 19 Suit No. 123/14 to the claim Tribunal within the local limits of whose jurisdiction the defendant resides without making any reference as to the address where the defendant carries on business.
The language used in the last option is conspicuously different from the language used in the second option, so far as the business address of the parties are concerned. Though a comprehensive and/or inclusive provision was made in the second option by referring to both the residential and/or business address of the claimants yet no reference was made in the third option, as to the business address of defendants.
We all know that while interpreting any provision of any statute, the Court can neither add, nor can subtract anything from the provisions made in the statute. The Court has to interpret the provision of a statute, by reading the provision itself without any modification. If by applying the said principle, the provision contained in the third option is considered, then the business address of the defendant cannot be a relevant criteria for selection of the Tribunal for filing such a claim petition before it. Thus, we hold that while selecting the Tribunal for filing such claim petition in exercise of the third option, a tribunal can be selected with reference to the residential address of the defendant. We, further hold that the business address of the defendant cannot be a decisive factor for selection of the Tribunal for filing a claim petition before it.
Mr. Chatterjee, learned Advocate, however, submits that the expression 'resides' which is used in the last option is an inclusive provision which includes 'carries on business' as the insurance company being the juristic person cannot reside but can carry on business at its business place. We have considered his submission in the present context. So far as the claim petition is concerned, the owner of the offending vehicle is required to be added as the principal defendant. Ofcourse in view of the Maria Claudia v Suresh Kumar & Ors. Page No. 14 of 19 Suit No. 123/14 provision contained in section 147 of the Motor Vehicles Act, the insurance companies can also be added as parties in such proceeding because of the liability it undertakes in the policy under section 147 of the Motor Vehicles Act. At the same time, we cannot be unmindful of the fact that a claim petition can also be maintained against the owner of the offending vehicle, without joining the insurance company. Joining the insurance company in the claim petition is optional. As such, the business address of the insurance company does not find any place in the third option given to the claimants for choosing the forum.
Thus, we hold that if the owner of the offending vehicle resides within the territorial jurisdiction of the Tribunal, the jurisdiction of the said Tribunal can be invoked in view of the last option available under section 166 (2) of the said Act.
We, thus, conclude that since the reference of the business address of the defendant is not given in the last option of the said provision, we cannot hold that the claimants can file an application in a Tribunal where the insurance company carries on business.
Even assuming that the City Civil Court's jurisdiction can be invoked with reference to the business address of the insurance company, as suggested by Mr. Chatterjee, still then we hold that City Civil Court lacks territorial jurisdiction to entertain the said claim petition as the policy issuing office of the insurance company situates beyond the territorial jurisdiction of the City Civil Court at Calcutta. If we have to accept the submission of Mr. Chatterjee that since the insurance office has its regional office within the territorial jurisdiction of the City Civil Court, the City Civil Court has jurisdiction to entertain the said petition then we will have to hold that whenever any accident occurs in any part of India, the claimants can file a claim petition by accepting the jurisdiction of any Tribunal of his own choice where the Maria Claudia v Suresh Kumar & Ors. Page No. 15 of 19 Suit No. 123/14 insurance company maintains either its regional office or a branch office, even though the policy issuing office is not situated within the territorial jurisdiction of the Tribunal. If we agree with such submission of Mr. Chatterjee, then it will necessarily follow that if an accident occurs at Delhi, a claimant residing at Delhi can file a claim petition at Calcutta by taking the jurisdiction of the Calcutta Tribunal as the insurance company which issued the insurance policy at Delhi also maintains a branch office at Calcutta within the territorial jurisdiction of the concerned Tribunal at Calcutta. This is, in our view, impossible.
Certainly prejudice would be caused to the defendants, including the insurance company, inasmuch as if, in such a case an application is allowed to be filed in Calcutta, the policy issuing office of the insurance company will not feel it convenient to contest the said proceeding in Calcutta as the relevant papers relating to the insurance company are not maintained in its branch office at Calcutta. All papers relating to the insurance company are maintained in the branch office which issued the insurance policy."
In the instant case as well the learned counsel for the petitioner had argued that no prejudice is caused to the insurance company on the ground of territorial jurisdiction. However it was observed in the above case that certainly prejudice would be caused to the defendants, including the insurance company, inasmuch as if, in such a case an application is allowed to be filed in Calcutta, the policy issuing office of the insurance company will not feel it convenient to contest the said proceeding in Calcutta as the relevant papers relating to the insurance company are not maintained in its branch office at Calcutta and all papers relating to the insurance company are maintained in Maria Claudia v Suresh Kumar & Ors. Page No. 16 of 19 Suit No. 123/14 the branch office which issued the insurance policy.
11. In New India Assurance Co. Ltd. v Kutiswar Pramanik & Another, 2010 ACJ 1749 it was held as under:
"31. In our view, the functional interpretation of the provisions of subsection (2 ) of section 166 would be that the claim application could be filed, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business and within the local limits of whose jurisdiction the defendant resides or to the Claims Tribunal within the local limits of whose jurisdiction the policy issuing office of the insurance company situates."
Thus, it was categorically held that jurisdiction could lie with the Claims Tribunal within the local limits of whose jurisdiction the policy issuing office of the insurance company is situated but that is not so in the instant case and the policy issuing office as regards the respondent No.7 was at Pune. The learned counsel for the petitioner had relied upon the judgment of the Hon'ble High Court of Karnataka in K.B. Shivakumar Swamy v. M/s National Insurance Company Limited and C. Shivakumar in MFA 1337/2009 where also reference was made to the judgment of the Hon'ble Supreme Court in Mantoo Sarkar's case (supra) and to the judgment of the Division Bench of the Maria Claudia v Suresh Kumar & Ors. Page No. 17 of 19 Suit No. 123/14 Hon'ble High Court of Karnataka in Subhadra and others v. Pankaj and Anr. ILR 2013 Kar 102 (supra) and it was observed that there cannot be any dispute with regard to the proposition of law laid down by Division Bench in the said case. In that case however the address given by the claimant in the claim petition was not disputed specifically and it was held that the Tribunal was justified in entertaining the claim petition. However in the present case it is clear that the claimant was a resident of Italy and even the address of the learned counsel given does not lie within the jurisdiction of this Tribunal.
12. It is thus seen that in the instant case none of the respondents can be said to be within the jurisdiction of this Tribunal at New Delhi. As observed above, the accident had taken place in Rajasthan, the address of the petitioner is not within the jurisdiction of this Tribunal, the respondents No.1 and 2 are of Rajasthan, respondent No.4 is of UP, respondent No.5 has the address of Sarita Vihar which does not lie within the jurisdiction of this Tribunal and similar is the position in respect of the respondent No.6 whose address is of Okhla Road. When the petition was filed the regional office of the respondent No.3 was shown as of Connaught Place and perhaps on that basis the matter was filed before the MACT, New Delhi, however as per the settled law, the existence of the regional office of the insurance company would not confer jurisdiction on the Tribunal and only the location of the policy issuing office can confer jurisdiction on the Tribunal (which was issued from Sarai Julena though subsequently the owner of the vehicle had moved an application for change of Maria Claudia v Suresh Kumar & Ors. Page No. 18 of 19 Suit No. 123/14 the policy on the ground that the policy issued by the respondent No.3 stood lapsed and that the vehicle stood insured with Bajaj Allianz General Insurance Co. and the latter was impleaded as the respondent No.7) and as such the MACT at New Delhi would not have jurisdiction in the present matter. Similar is the position in respect of the respondent No.7 which was impleaded subsequently and its office was shown at Connaught Place but the policy issuing office was at Pune (copy of the insurance policy filed in suit No.128/14 shows the address of the policy issuing office of Pune) so the MACT at New Delhi would have no territorial jurisdiction in respect of the present matter.
Since this court has no territorial jurisdiction to entertain the present petition, the claim petition be returned to the petitioner for presenting before the appropriate court having jurisdiction to decide the matter. Necessary endorsements be made on the petition before returning it. However as the respondents have filed appearance the petitioner would have the liberty to move an appropriate application under Order 7 rule 10A CPC.
File be consigned to record room.
Announced in open court
on this 3rd day of September, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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