Karnataka High Court
Nafis vs Santosh & Anr on 29 January, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.201950/2017 (MV)
BETWEEN:
Nafis S/o Nayyum Tamboli
Age: 17 years, Occ: Student
Since minor R/by his father
Nayyum S/o Gafoor Tamboli
Age: 49 years, Occ: Business
R/o Kakanagar, Osmanabad
Now @ Sakaf Roza, Behind
KSRTC bus stand, Vijayapur
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Santosh S/o Digambar Ghatule
Age: 41 years, Occ: Business
R/o ST Colony, Bharat Nagar
Kallam, Dist.Osmanabad
(Maharashtra)
2. The Divisional Manager
United India Insurance Co. Ltd.,
S.S.Front Road, Sangam Bldg.
Vijayapur
... Respondents
(By Sri Sudarshan M., Advocate for R2)
2
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to modify the impugned
judgment and award dated 23.06.2017 passed by the
MACT No.III, Vijayapur in MVC No.1135/2016.
This appeal coming on for orders this day, the Court
delivered the following:
JUDGMENT
Appeal by the injured claimant seeking enhancement as against the judgment and award dated 23.06.2017 passed in MVC No.1135/2016 by the MACT-III, Vijayapur. The Tribunal has awarded compensation of Rs.4,06,171/- with interest at the rate of 9% p.a.
2. The brief facts of the case are that, on 20.02.2016, the minor was proceeding on bicycle in Osmanabad City. Though he was on the extreme left side of road, an Indica car bearing No.MH-25/U-4411 came from Yarmala and dashed against the cycle. By which, the injured fell down and sustained injury. He suffered head injury also facial injuries. He was taken to Neuroscience Institute at Solapur. He was earlier 3 taken to multi-specialty hospital at Osmanabad. Huge amount has been spent for minor's treatment which is to the tune of Rs.5,00,000/-. At the time of accident petitioner was 16 years old. Due to the accident, he could not attend the examination. The accident has occurred due to negligence on the part of driver of car.
3. Learned counsel for the appellant contends that the compensation awarded by the Tribunal is on the lower side. He further contends that as per the evidence of the doctor-PW.2, in his affidavit evidence deposed that the injured was treated for road traffic accident on 21.02.2016. He found that injured had CLW to left parietal region(head) and small abrasion over the left knee joint. He was given injection 'xone' gram twice daily, injunction 'fosphen' 1.50 mg 3 times, injunction 'rantex' 50 mgs twice, injunction 'mannitol' 50 cc 4 times daily. He has further stated that the injured had left heamipharisis with spasticity power on 4 left side. His left arm is 3/5 and leg is 4/5. The injured had permanent disability upto 25 to 50% to the left side of the body. It is submitted that on the basis of the evidence of the doctor, though the injured has suffered 25 to 50% disability, the Tribunal disbelieved the same and had taken it on the lower side and awarded meager compensation. Injured has dropped out from the school and now he require an attendant throughout his life. Hence, he submits disability is to be assessed at 100% and suitable compensation is to be awarded.
4. Learned counsel for the respondent-
insurance company supports the judgment and award of the Tribunal and prays to dismiss the appeal.
5. Though for modifying the judgment and award of the Tribunal for enhancement of compensation, the parties are present before the Court, initially the father came forward and on enquiry, he answered that he was residing at Osmanabad for the 5 last four years and recently he came to Bijapur where his father is residing. The said answer has been taken into consideration for examining the place of residence for the purpose of jurisdiction under Section 166(2) of Motor Vehicles Act, 1988 (for short 'the Act'). Thereafter, the injured with an attender came forward and he was put on question through learned counsel for the respondent - Insurance Company, since both the injured and also his father never knew Kannada language and they only knew Hindi, Urdu and Marathi, the injured also stated that they are residing at Osmanabad. These two submissions have been examined and thereafter I have gone through the affidavit filed on behalf of PW.1. PW.1 claiming to be the father of the injured, in his affidavit evidence he has deposed that he is aged about 48 years, doing business, and is the resident of Kaka Nagar, Osmanabad and now residing at Sakaf Roza, behind KSRTC bus stand, Vijayapur. Further, in para-2 it is stated the accident 6 has taken place at Osmanabad. From these submissions of the injured as also his father, it is clear that they are not residents of Vijayapur. When the claimants are residing in different State, how they could have filed claim petition in different MACT having no jurisdiction. With regard to jurisdiction, Section 166(2) is very clear which reads thus:
"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."
6. I have gone through the materials placed on record, from which it is clear that the claimant is residing at Osmanabad and Tribunal of Maharashtra 7 State has jurisdiction. Respondent No.1 is also resident of Osmanabad of Maharashtra State. Naturally, insurance company of Maharashtra State branch must have issued policy. Secondly, the father of the claimant states in his affidavit evidence that he is carrying on business in Osmanabad city within the limits of Maharashtra. When that is examined it shows that he is the resident of Osmanabad. Then the question would be whether the claim petition is maintainable before the Tribunal in Karnataka State which does not get any jurisdiction to entertain. In this regard, it is pertinent to refer to the judgments of the Hon'ble Apex Court in the case of Malati Sardar v. National Insurance Company Limited And Others - (2016) 3 Supreme Court Cases 43 and also in the case of Mantoo Sarkar v. Oriental Insurance Company Limited And Others
- (2009) 2 Supreme Court Cases 244, wherein it has been observed that while deciding the jurisdiction for the purpose of filing a claim petition under Section 166 8 of M.V. Act, hyper technicality need not be entertained. It is true that the Act is for the benefit of the claimants and as far as possible where interpretation is required, it should be in favour of the claimants only. The Hon'ble Supreme Court in the case of Syed Mehaboob v. New India Assurance Company Limited - (2011) 11 Supreme Court Cases 625 has held that the Motor Vehicles Act is a beneficial legislation intended to place the claimant in the same position as to that he was before the accident and to compensate him for his loss. Thus it should be interpreted liberally so as to help the claimants. Keeping the judgments referred above in mind, for the purpose of deciding jurisdiction, hyper technicality needs to be considered in this appeal. However, the term 'hyper technicality' is to be understood with regard to the jurisdiction as stated under Section 166(2) of M.V. Act. When the accident has taken place in different State, in order to invoke the jurisdiction and other interpretation regarding State or 9 the District the burden is on the party who files the claim petition to prove his residence. He has to produce documents and to satisfy the Court with regard to residence by producing Adhar Card, Driving Licence, Ration Card or any Registered RPAD in case, there are school / college going children, the school / college identity card or the educational fee receipt etc. Then only the Court can invoke the jurisdiction. Invoking jurisdiction of another State hiding the facts and suppressing the truth is nothing but misguiding the Court only for the purpose of taking illegal benefit. Further, it is to be observed that to ascertain the genuineness and in order to examine the Investigating Officer and summoning him, inter-state communication needs to be done and it will unnecessarily be burden on the claims Tribunals. Moreover, the documents will be in regional language which requires translation. In order to avoid all these difficulties, Sub Section (2) of 10 Section 166 of M.V. Act is to be adhered to for the purpose of entertaining the claim petition.
7. In the instant case the Tribunal, without giving any thought to it, has proceeded to pass the impugned judgment and award, which cannot be justified. Hence, the judgement and award of the Tribunal suffers for want of jurisdiction.
8. For the purpose his residence or carrying on business in a place for the purpose of jurisdiction at least evidence has to be placed before the Court. The claimant may produce Adhar card, voter ID card, etc. The submission made to the extent is he is carrying on business at Osmanabad. Under these circumstances, I find that the judgment and award of the Tribunal wherein the Tribunal should have been taken hyper technical note is applicable. In the cases of this nature, initially in respect of having jurisdiction, unless it is satisfied, the Tribunal shall not entertain the claim 11 petition. For all these reasons the judgment and award of the Tribunal is set aside reserving liberty to the claimant to file claim petition before the appropriate Tribunal having jurisdiction.
The appeal stands disposed of.
Sd/-
JUDGE sdu