Delhi District Court
Shila vs Sushil Kumar (Deleted) on 27 January, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.261/14
Date of Institution: 16.07.2012
IN THE MATTER OF:
1. Shila
W/o Shri Raj Kishore Giri
2. Raj Kishore Giri
S/o Shri Ram Naresh Giri
Both residents of :
H.No.3, BlockH, Sector 5
Dr. Ambedkar Nagar
Delhi110062
Also at:
H.No 336, Gopal Bagh
P.S Kosi Kalan
Tehsil Chotta
Distt Mathura (UP) ...Petitioners
Versus
1. Sushil Kumar (Deleted)
S/o Randhir Singh
Suit No.261/14
Shila v Sushil Kumar & Ors. Page No. 1 of 25
R/o H.No 290, Jatiara
Distt. Ghaziabad (UP)
2. Jitender
S/o Rajveer
R/o H.No 271, Village Mayacha
Dadri, Noida, G.B. Nagar
UP
3. The New India Assurance Co. Ltd.
5th Floor, 124, Jeevan Bharti Building
Connaught Circus
New Delhi110001 ...Respondents
Final Arguments Heard : 12.01.2015 Award reserved for : 23.01.2015 Date of Award : 27.01.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 19.4.2012 at about 2 a.m the deceased Vikas Giri along with Vijay Singh was going in tempo and when they reached Chauraha Sector60 and 61, PS Sector 58 Noida (UP) a bus bearing No.UP16AT6199 came from the side of Shoprix Mall at a very high Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 2 of 25 speed driven most rashly and negligently and hit the tempo of the deceased which overturned as a result of which the deceased died at the spot due to the injuries received in the accident. It is stated that post mortem was conducted in District Hospital, Noida, UP. It is stated that in respect of the accident FIR No.270/12 under Sections 279/304A/427 IPC was registered at PS Sector - 58, Noida. It is averred that the deceased was aged about 20 years at the time of the accident and he was working as a labourer and earning Rs.10,000/ per month and he used to contribute his entire income to the petitioners. It is averred that the deceased was expected to live up till the age of 80 years if he had not died in the accident. It is averred that the petitioners have suffered great pain, agony, mental torture and shock due to the death of the deceased. They have lost the love, affection and company of the deceased and the loss cannot be compensated in terms of money. It is prayed that an amount of Rs. 50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
3. Written statement was filed on behalf of the respondent No.2 denying the averments made in the claim petition. It is denied that the alleged accident took place because of the rash and negligent driving of the respondent No.1. It is averred that the petitioners are not entitled for any compensation amount as the accident took place because of the rash and negligent driving of the TATA Vehicle No.UP14CT8439 in which they were traveling without observing the M.V. Act rules and regulations. It is averred that the respondents and the Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 3 of 25 alleged bus have been falsely involved in the case. It is averred that the amount claimed by the petitioners is exaggerated. It may be mentioned that the affidavit that was annexed with the written statement was of Satender s/o Shri Rajveer.
4. Written statement was filed on behalf of the respondent No.3, New India Assurance Co. Ltd. taking the preliminary objections that no cause of action had arisen within the jurisdiction of the Tribunal nor the claimants resided within the jurisdiction of the Tribunal. It is averred that in case it is proved that the vehicle in question was involved in the alleged accident even then the respondent No.3 could not be held to be liable until it was proved that the alleged driver was holding a valid and effective driving license at the time of the alleged accident and that he was not disqualified to hold or obtain the same. It is averred that in the event of the violation of the permit and fitness of the offending vehicle, if any, the respondent No.3 would not be liable to pay any compensation. It is averred that the alleged accident, if any, had taken place owing to the negligence of the driver of vehicle No.UP14CT 8439 TATA 1109 and the deceased and, therefore, there was contributory negligence on the part of the driver of the vehicle No.UP14CT8439 TATA 1109 and the deceased. It is averred that the petitioners have nowhere in the petition mentioned that they were dependent on the deceased. The averments made in the claim petition were denied. It is averred that the petitioners had not filed the post mortem report which was essential for determining the cause of Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 4 of 25 death. It is averred that the deceased was not working nor doing any kind of job and he was sitting in the vehicle as a gratuitous passenger. It is averred that the name of the insured in the records of the respondent No.3 is Shri Satendra and the respondent No.3 did not know as to who was the owner of the bus bearing No.UP16AT6199 allegedly being driven by the respondent No.1 at the time of the alleged accident. It is stated that the vehicle bus bearing No.UP16AT6199 was insured with the respondent No.3 at the relevant time vide policy No.32160431110100000605 valid from 20.4.2011 to 19.4.2012. It is averred that the claim of the petitioners is malafide, false and the amount of compensation claimed in the petition is totally vague, illusory and highly excessive and bears no nexus to the pecuniary loss or the damages, if any, suffered by the petitioners. It is denied that the deceased was rendering any services to his family and it is averred that due to the small age the petitioner needed the help of family members.
5. On 13.3.2013 it was submitted by the learned counsel for the respondents No.1 and 2 that the respondent No.1 had expired. Thereafter an application under order 1 rule 10 CPC was filed on behalf of the petitioners for deleting the name of the respondent No.1 from the array of parties and it was stated that the details of the LR s of the respondent No.1 were not traceable. The said application was allowed vide order dated 10.5.2014. From the pleadings of the parties, the following issues were framed vide order dated 10.5.2014:
Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 5 of 25
1. Whether the deceased sustained fatal injuries in the accident which occurred on 19.04.2012 at about 2.00 am at Chauraha Sector 60 &61 PS Sector 58, NOIDA, UP caused by rash and negligent driving of vehicle no.UP16AT6199 driven by respondent no.1 and owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3.Relief.
An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was allowed vide order dated 5.6.2014. An application under order 1 rule 10 CPC was filed on behalf of the respondent No.3 for impleading the driver, owner and insurance company of the vehicle bearing No.UP 14CT 8439 which was dismissed vide order dated 28.8.2014.
6. On behalf of the petitioners the petitioner No.2 Shri Raj Kishore Giri appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He deposed that the deceased was his son and he was aged 20 years at the time of accident. He stated that his son met with an accident on 19.4.2012 with bus bearing No.UP16AT6199 and died. He stated that his son left behind PW1 and wife of PW1 Shila as the only legal heirs. He stated that his son was unmarried. He stated that at the time of the accident his son was a labourer Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 6 of 25 and earning Rs 10,000/ per month and they both were completely dependent upon his earnings. He stated that his son was contributing his entire income for household expenses. He stated that his son was having very good health at the time of the accident. He stated that they had suffered great pain, agony, mental torture and shock due to the death of his son and they had lost love, affection and company of his son. Copy of election I card of PW1 is Ex.PW1/1, copy of election I card of his wife is Ex.PW1/2 and certified copies of criminal case record are Ex.PW1/3 (colly).
7. Shri Vijay appeared in the witness box as PW2 and led his evidence by way of affidavit which is Ex PW2/A. He deposed that on 19.4.2012 at about 2.00 a.m he along with Vikas Kumar and another labourer were coming in truck from Haridwar. The truck was being driven by him. He stated that when they reached Chauraha Sector 60 & 61 PS Sector - 58 Noida, a bus bearing No.UP16AT6199 came from the side of Shopex Mall at a very high speed driven most rashly and negligently and hit their truck which overturned as a result of which Vikas Kumar died at the spot due to the injuries received in the accident whereas other persons were grievously injured. He stated that the accident was caused due to the negligence of the driver of the bus No.UP16AT6199. He stated that his statement was recorded by the police. PE was closed on 5.6.2014. It was stated by the learned counsel for the insurance company that no RE was to be led and RE was closed on 28.8.2014.
Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 7 of 25
8. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. Written submissions were also filed on behalf of the petitioners on the point of jurisdiction which I have perused. The petitioners were also examined on 24.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
9. At the outset an objection was taken on behalf of the respondent No.3 regarding the territorial jurisdiction of this Tribunal to entertain the present matter. It was stated that no cause of action had arisen within the jurisdiction of the Tribunal, nor the claimants resided within the jurisdiction of the Tribunal. Per contra the learned counsel for the petitioners had argued that the petitioners were residing at Delhi at the time of the filing of the claim petition and he had placed reliance upon a copy of the rent agreement to show that the petitioners were residing at Delhi at the time of the accident. Written submissions were filed on behalf of the petitioners on the point of jurisdiction. It was argued that the petitioners are poor people and they are permanent residents of Mathura, UP. It was argued that the petitioners are migrant labourers and accept jobs wherever they get and they do not get work in Mathura and even if they get work they are paid a very meagre sum due to shortage of work in their hometown and as such they had migrated to Delhi for employment and were living in Delhi for the last many years. It was argued Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 8 of 25 that the deceased along with his parents was at the time of the accident residing at Ambedkar Nagar as tenants and as such they did not have any permanent proof of their residence. It was argued that the accident took place on 19.12.2012 and the petitioners had been contesting the case since then and the question of lack of jurisdiction was not raised at the time of framing of issues. It was argued that the evidence of the petitioners was closed on 5.6.2014 and the matter was fixed for respondents' evidence and the matter was taken up on several dates but the respondents did not lead any evidence either on the point of negligence or jurisdiction and in case the respondents were serious on the point of jurisdiction they should have got the issues famed and the matter would have been decided at the preliminary stage. It is argued that as the matter is fixed for orders great hardship would be caused to the petitioners in case the petition is dismissed on the point of jurisdiction. Reliance is placed on the judgment of the Hon'ble Supreme Court in Mantoo Sarkar v. Oriental Insurance Company Ltd. in Civil Appeal No.7318 of 2007 decided on 16.12.2008 and also on the judgment of the Hon'ble High Court of Calcutta in Sarif Md. Mullick v. National Insurance Co. Ltd. IV 2011 ACC 216 (DB); National Insurance Co. Ltd. v. K.B. Shivakumar Swamy decided by Hon'ble High Court of Karnataka on 19.3.2013 in MFA No.1337/2009 and on Sita Devi v. Munne MAC 424/2012 decided on 15.4.2013 by the Hon'ble High Court of Delhi.
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10. A perusal of the written statement filed on behalf of the respondent No. 3 shows that a preliminary objection was taken in the written statement itself on behalf of the respondent No.3 that the claim petition is liable to be dismissed as per the provision of Section 166 (2) of the MV Act as no cause of action had arisen within the jurisdiction of this Tribunal nor the claimants resided within the jurisdiction of this Tribunal. 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:
"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 any stage. The learned counsel for the petitioners has then relied upon the judgment in National Insurance Co. Ltd. v. K.B. Shivakumar Swamy decided by Hon'ble High Court of Karnataka on 19.3.2013 in MFA No.1337/2009 to contend that as no issues were framed on the point of jurisdiction the said issue cannot be looked into. In that case it was observed that neither the insurer nor the other respondents had raised any objection on the ground that the issues were erroneously framed by the Tribunal, no applicaion was filed seeking recasting Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 10 of 25 of issues nor the witness was examined on behalf of the respondents nor any plea in the evidence tendered before the tribunal regarding the point of jurisdiction and there was no crossexamination by any of the respondents on the point of jurisdiction so at the stage of arguments there was no point to dismiss the claim petition on the point of jurisdiction. However in the present case an objection regarding the jurisdiction was taken by the respondent No.3
- insurance company in the written statement itself and thereafter PW1 was also crossexamined in this regard.
11. A perusal of the record shows that the address of the petitioners has been shown to be of Dr. Ambedkar Nagar, Delhi which is not within the jurisdiction of this Tribunal. The permanent address of the petitioners is of Mathura. The address of the respondent No.1 who had subsequently expired and whose name was deleted from the memo of parties was shown to be of Ghaziabad and the respondent No.2 is in Noida and as such the respondents No.1 and 2 were not within the jurisdiction of this Tribunal. The address of the respondent No.3 i.e. the insurance company had been shown to be of Connaught Circus, however the copy of the policy which has been placed on record by the petitioners themselves shows that the policy was issued from Sahibabad. Further the registered and Head Office of the insurance company was at Mumbai. As such neither the address of the petitioners nor of any of the respondents was within the jurisdiction of this Tribunal. Even the accident had taken place in NOIDA and FIR in that respect was registered at PS Sector Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 11 of 25 58, Noida, U.P.
12. 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. The learned counsel for the petitioners has placed reliance on the judgment of the Hon'ble High Court of Delhi in MAC. APP. 424/2012 in Sita Devi & Anr. v. Munne & Ors. Dated 15.4.2013 where it was observed: Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 12 of 25
"The Motor Vehicles Act is a welfare legislation. The jurisdiction of the Tribunal having regard to the terminologies used therein must be held to be wider than the civil court. Claimants have a wide option. Residence of the claimants also determines jurisdiction of the Tribunal. What would be the residence of the person would, however, depend upon the fact situation obtaining in each case."
The law in this regard is well settled that the residence of the claimants also determines jurisdiction of the Tribunal. 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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 13 of 25 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 will not clothe the Motor Accident Claims Tribunals with jurisdiction to entertain a petition. It was sought to be contended by the learned counsel for the petitioners that the petitioners were residing within the jurisdiction of this Tribunal. However it is seen that along with the claim petition no document was filed showing that the petitioners were residing at the address in Delhi. In fact copy of the voter identity card of Rajkishore i.e. petitioner No.2 was filed which shows the address of Mathura and of the petitioner No.1 which also shows the address of Mathura. In the FIR the address of the deceased was mentioned of Mathura and even in the post mortem report the address of the deceased was given of Mathura.
13. The learned counsel for the petitioners has submitted that in view of the judgment in Sita Devi & Anr. v. Munne & Ors. (supra) an enquiry should be conducted, if there was any doubt about the address of the claimants. However in the instant case opportunity was duly given to the petitioners and Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 14 of 25 they have produced a copy of the rent agreement purportedly dated 16.7.2012.. Though the stamp paper is dated 16.7.2012 but it is seen that the said rent agreement was not even got notarized and only bears the signatures of the parties to it and the witnesses. Moreover the same mentions that the tenant i.e. Raj Kishore Giri had been living in the tenanted premises since 2 years and the rent agreement was made for the period 18.7.2012 to 27.6.2013. Apart from the fact that there are alterations in the dates mentioned in the agreement, it is pertinent that it was stated that the tenant i.e. the petitioner No.2 had been residing in the premises since 2 years which would be since 2010 whereas the voter identity cards of the petitioners which have been placed on record are dated 24.12.2011 which could not be if the petitioners were residing in Delhi since 2010. Further during crossexamination by the learned counsel for the respondent No.3 i.e insurance company PW1 stated that he was presently residing in Delhi. He stated that he did not have any documentary proof of his residence in Delhi. He denied the suggestion that the address mentioned in his affidavit pertains to his daughter and he lives in Mathura as mentioned in his voter ID card Ex.PW1/1. Thus PW1 had stated that he was presently residing in Delhi but he had also stated that he did not have any documentary proof of his residence in Delhi though subsequently the aforesaid rent agreement was produced which cannot be relied upon in view of the above discussion. The learned counsel for the petitioners had also tried to contend that the petitioners were migrant workers and they took up work wherever they got it but that would not help the case of the petitioners in the Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 15 of 25 absence of anything to show that the petitioners were indeed residing at Delhi at the time of filing of the claim petition. Thus the petitioners have not been able to show anything on record to substantiate that they were residing in Delhi on the date of the accident or on the date of filing the claim petition.
14. It was then contended on behalf of the petitioners that as the branch office of the insurance company was situated at Connaught Circus, this Tribunal would have the jurisdiction to entertain the matter and the learned counsel for the petitioners has placed reliance on the judgment of the Hon'ble High Court of Calcutta in Sarif Md. Mullick v. National Insurance Co. Ltd. & Anr. IV (2011) ACC 216 (DB) where it was held that as the office of the insurance company was situated in Kolkata no prejudice would be caused to the insurance company and as such the trial court would have sufficient jurisdiction to entertain the claim application. The learned counsel for the petitioners 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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 16 of 25 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 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."
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15. The Hon'ble Karnataka High Court in its judgment dated 7.8.2012 in Subhadra v Pankaj (ILR 2013 Kar 102) 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 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".
16. 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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 18 of 25 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: "(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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 19 of 25 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 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.Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 20 of 25
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 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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 21 of 25 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 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 it would be argued by the learned counsel for the petitioners that no prejudice would be 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 Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 22 of 25 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 the branch office which issued the insurance policy.
17. 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.3 was at Sahibabad. Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 23 of 25
18. 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 Noida, the petitioners have not been able to show that they were residing at the address of Delhi mentioned in the claim petition and even that address is not within the jurisdiction of this Tribunal and the address of Mathura is not within the jurisdiction of this Tribunal, the address of respondent No.1 (since deleted) is of Ghaziabad and the respondent No.2 is of Noida, UP and the policy in question was issued from Sahibabad. When the petition was filed the office of the respondent No.3 was shown as of Connaught Circus 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 and as such the MACT at New Delhi would not have 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 petitioners for presenting before the appropriate court having jurisdiction to decide the matter. Necessary endorsements be made on the petition before returning it. Suit No.261/14 Shila v Sushil Kumar & Ors. Page No. 24 of 25 File be consigned to record room.
Announced in open court
on this 27th day of January, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.261/14
Shila v Sushil Kumar & Ors. Page No. 25 of 25