Case No. : Crp/17/2022 vs The National Insurance Company ...
2022 Latest Caselaw 2628 Gua

                                                                       Page No.# 1/7

GAHC010029002022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP/17/2022
            AJIT SWARGIARI @ RAMCHIARY
            S/O- LATE LANGAKESHWAR SWARGIARI, CORRESPONDING ADDRESS-
            VILL.- MONPUR, P.O. PALASHBARI, P.S. PALASHBARI, DIST.- KAMRUP(R),
            ASSAM, PERMANENT ADDRESS- VILL.- JOPADONG NO. 2, P.S. BARBARI,
            DIST. BAKSA, ASSAM

            VERSUS

            THE NATIONAL INSURANCE COMPANY LIMITED AND ANR
            REP. BY THE REGIONAL MANAGER OF NATIONAL INSURANCE COMPANY
            LIMITED, 2ND AND 3RD FLOOR, LOHIA MANSION, G.S.ROAD,
            BHANGAGARH, KAMRUP(M), GUWAHATI-05.

            2:SUNIL BRAHMA
             S/O- KAMESWAR BRAHMA
             R/O- VILL.- NAGAPUR
             P.S. TAMULPUR
             DIST.- BAKSA
             BTAD
            ASSA

Advocate for the Petitioner   : MR I HAQUE

Advocate for the Respondent : MRS. S ROY (R-1)


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 01-08-2022

Heard Mr. I Hoque, learned counsel for the petitioner and Ms. S Roy, learned counsel for respondent No.1.

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This is an application under Article 227 of the Constitution challenging the order dated 24.01.2021 passed in MAC Case No.144/2019 whereby the tribunal i.e., the Court of the Member. MACT, Kamrup Amingaon had returned the claim application on the ground of lack of territorial jurisdiction.

The facts of the instant case are that on 04.02.2019 at about 1.30 AM an accident took place at Bangali Basti on Musalpur- Bathouguri road. The petitioner's son Maheswar Swargiary (since deceased) was returning to home from Bathouguri chowk after watching a cultural programme by a Motor Cycle bearing registration No.AS-25 L-4068. On the basis of the said accident late Maheswar Swargiary fell down and sustained grievous injuries along with the bicycle rider. Both of them were brought to Mushalpur Civil Hospital who referred to the GMCH for better treatment. However, the son of the petitioner expired at GMCH. On the basis thereof Musalpur PS Case No.32/2019 was filed under section 297/304(A) IPC.

The petitioner thereafter filed a claim application which was registered as MAC Case No.144/2019 under Section 166 of the Motor Vehicles Act, 1988 against the respondent opposite parties before the Motor Accident Claims Tribunal, Kamrup (Rural) at Amingaon praying for compensation for the death of his son. The respondents therein filed their written statements. Pursuant thereto, after filing of the MAC Case No.144/2019 the petitioner shifted to a rented house of Dipok Kumar Das situated at village Monpur, near Brick factory, P.S. Palasbari, district - Kamrup (R) for his livelihood purpose as he was a casual labour and since then have been residing therein.

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In the said claim proceedings, the respondent No.1 i.e., the Insurance Company filed a petition No.78/2020 raising the question of territorial jurisdiction of the tribunal and prayed for return of the claim petition to be filed before the appropriate tribunal. The petitioner thereafter filed objection against the said petition No.78/2020 stating inter alia that the tribunal had the jurisdiction to try the case as the Insurance Company had been carrying the business in the said district of Kamrup (R) and the petitioner is presently residing at village Monpur under Kamrup (R) district and as a proof of that had produced the electricity bill along with NOC for his present address proof.

The learned tribunal vide an order dated 24.01.2020 came to a finding that the main contesting party i.e., the Respondent No.1 had their Office under the district Kamrup (M) and they have not been carrying any business at Kamrup (R) and returned the said claim petition to be filed before the appropriate tribunal. The petitioner instead of challenging the said order then, taking into account that he has shifted his residence from Kamrup (M) to the present place of residence, filed claim application before the MACT, Kamrup (R) at Amingaon which was registered and numbered as MAC Case No.10/2020.

The tribunal framed preliminary issue in MAC Case No.10/2020 as to whether the tribunal had territorial jurisdiction to decide the said case. By an order dated 12.02.2021, the tribunal came to a finding that as the petitioner had not submitted any supportive document regarding the present place of living and as such the tribunal did not have the jurisdiction to try the case and dispose of the same. A review Page No.# 4/7

application was filed against the order dated 12.02.2021 passed by the tribunal, which was rejected by an order dated 05.10.2021.

Being aggrieved, the petitioner approached this Court by way of a Civil Revision Petition being CRP No.62/2021 before this Court.

The said CRP was dismissed vide an order dated 02.02.2022 by this court on the ground that the order dated 24.01.2020 passed in MAC case No.144/2019 was still alive and as such, filing a fresh petition was not maintainable. It is under such circumstances that the petitioner had challenged before this Court the order dated 24.01.2020 passed in MAC case No.144/2019.

I have heard the learned counsel for the parties and also perused the materials on record.

The statutory provisions in the Motor Vehicles Act, 1988 which relates to the territorial jurisdiction of the tribunal can be seen in Section 166 of the said Act. Being relevant, Sub-Section (2) of Section 166 of the Motor Vehicles Act is quoted herein below:

[(2) 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.

It would be seen from a perusal of the said section that an application under sub-Section (1) of Section 166 is to 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 whose jurisdiction the claimant resides or carrying on business Page No.# 5/7

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. Therefore, the jurisdiction in terms with Section 166 (2) could be at three places as has been mentioned in the said sub- section (2) of Section 166 of the Act.

The Supreme Court in the case of Malati Sardar Vs. National Insurance Company Limited reported in (2016) 3 SCC 43 had the occasion to deal with Section 166 (2) of the Motor Vehicles Act. In doing so, the Supreme Court at paragraph No.16 observed that the provision i.e., Section 166 (2) is a benevolent provision for the victims of the accident of negligent driving. It was also observed that the provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. A hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company which is the main contesting party in such cases has its business. In such case there is no prejudice to any party. Paragraph 16 of the said judgment being relevant is quoted herein below:

16. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in Page No.# 6/7

view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC.

In the facts of the instant case it would be seen that the petitioner initially at the time of filing the MAC Case No.144/2019 was a resident of Kamrup (M), however, during the pendency of the said proceedings, the petitioner changed his place of residence from the district of Kamrup (M) to Kamrup (R) i.e., within the jurisdiction of the Tribunal below.

On a specific query being made to the learned counsel for the respondent as to whether, the Insurance Company have any office within the jurisdiction of Kamrup (R), the learned counsel submits that they have offices but their Regional Office is at Guwahati.

Taking into consideration the said submission and also upon perusal of the judgment of the Supreme Court in the case of Malati Sardar (supra), this Court is of the opinion that ends of justice would be served if the order dated 24.01.2020 is interfered with by this Court and thereby restoring the MAC Case No.144/2019 filed before the Member MACT, Kamrup (R) Amingaon to the file. Accordingly, this Court therefore directs that the impugned order dated 24.01.2020 is set aside and quashed and MAC Case No.144/2019 is restored to the file.

The Member MACT, Kamrup (R) Amingaon Tribunal shall decide the claim application i.e., MAC Case No.144/2019 in accordance with law.

The petitioner is directed to produce the copy of the order Page No.# 7/7

before the Court below on 17.08.2022 and thereupon, the Tribunal below after issuing notice to the respective parties shall proceed with the adjudication of the said claim application.

The instant petition stands disposed of.

JUDGE

Comparing Assistant