Md. Fakar Uddin vs Md. Fakar Uddin And Anr
2022 Latest Caselaw 224 Gua

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GAHC010207922016




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

                                  Case No. : CRP/396/2016

            MD. FAKAR UDDIN
            S/O LT. ALAM MIA, PERMANENT R/O VILL. KALIGANJ BAZAR, P.O.
            KALIGANJ, P.S. and DIST- KARIMGANJ, ASSAM, PRESENTLY R/O
            RONGPUR, SILCHAR, P.S. SILCHAR, DIST- CACHAR, ASSAM

            VERSUS

            MD. FAKAR UDDIN and ANR.
            S/O YAKUB ALI, VILL. SARON VENG, AIZWAL, MIZORAM

Advocate for the Petitioner   : MS.N MODI

Advocate for the Respondent : MR.B KAKATIR-2

                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 24-01-2022

Heard Mr. S. Dutta, learned counsel for the petitioner.

This is an application under Article 227 of the Constitution of India challenging the order dated 28.06.2016 passed by the MACT, Silchar in MAC Case No. 1537/2011 returning the claim application under Order 7 Rule 10 of the CPC.

After five years of filing of the claim petition, the MACT, Silchar returned the claim application on the ground that the MACT, Silchar does not have the territorial jurisdiction. There is no doubt that none of the opposite parties raised Page No.# 2/3

this issue. Therefore, the Tribunal suo-moto held the aforesaid views.

Mr. Dutta relied upon a decision of the Supreme Court rendered in Mantoo Sarkar Vs. Oriental Insurance Company Limited & Ors . reported in (2009) 2 SCC 244.

In a similarly situated situation, this court in CRP 186/2017 held as under:

"Mr. Dutta relies the case law of Mantoo Sarkar -Vs- Oriental Insurance Company Limited and Others reported in (2009) 2 SCC 244 and submits that the jurisdiction of the Tribunal is wider than the civil court. Any objection in respect of territorial jurisdiction under Section 21 of the CPC could not be entertained by a Tribunal in absence of any prejudice caused to any of the parties to the proceeding. Further Mr. Dutta relies another case law of Malati Sardar -Vs- National Insurance Company Limited and Others reported in (2016) 3 SCC 43 and submits that the proceeding under the M.V. Act held under a benevolent provision for the victims of accidents of negligent driving. Accordingly, the provision for territorial jurisdiction is to be interpreted consistent with the object of facilitating remedies for the victims of accidents. With the said submission of Mr. Dutta, refers to the impugned order and submits that the learned Member failed to consider that there was no objection citing any prejudice caused to anyone if the proceeding is continued in the Tribunal at Silchar. For the said reason, the impugned order is liable to be set aside.

I have given due consideration to the submission made by the learned counsel. There is no dispute that the provisions of the Code of Civil Procedure is not applied with its full rigour in a proceeding under the M.V. Act. Section 169 of the Motor Vehicles Act stipulates the specific applicability of the provisions of the Code of Civil Procedure only in respect of evidence, the attendance of the witnesses and discoveries. In Mantoo Sarkar -VsOriental Insurance Company Limited and Others (supra) it was held that the jurisdiction of the Tribunal was wider than the Civil Court. Even if the Tribunal follow the provision of the Code of Civil Procedure objection of lack of territorial jurisdiction could not be entertained by a Tribunal in absence of any prejudice. Further it was held that there is a vast difference in between the subject matter of a proceeding and that of territorial and pecuniary jurisdiction on the other. A judgment could not be a nullity due to wrong territorial and pecuniary jurisdiction by a court but the same is a nullity if the subject matter in a proceeding is beyond the territorial jurisdiction of a court. In Malati Sardar -Vs- National Insurance Company Limited and Others (Supra) it was held as follows:-

"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 Page No.# 3/3

of facilitating remedies for the victims of accidents. Hypertechnical 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 cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar-, contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC."

If we consider the aforesaid ratio, in my considered opinion, the learned court below passed the impugned order dated 24.08.2016 on wrong application of its jurisdiction inasmuch as none of the parties to the proceeding raised the issue of any prejudice caused to them due to the proceeding being initiated in the said Tribunal at Silchar. Further admittedly, there is an office of the Insurance Company i.e. Bajaj Allianz General Insurance Company Ltd. situated at Silchar having its business there. Upon the considerations, that the claimant petitioner is a permanent resident of district-Hailakandi, the accident took place in the district of Hailakandi and the owner and driver are also residents of district - Hailakandi, the learned Tribunal refused to entertain the said MACT application which is in clear contradiction to the ratio laid down in Malati Sardar

-Vs- National Insurance Company Limited and Others reported in (2016) 3 SCC 43 inasmuch as admittedly the office of the Bajaj Allianz General Insurance Company Ltd. is situated at Silchar and having its business."

I have given my anxious consideration to the submission made by Mr. Dutta.

Since the jurisdiction of the Tribunal does not prejudice anybody, the Tribunal at Silchar has the territorial jurisdiction to entertain the aforesaid claim application. For this reasons only, the impugned order dated 28.06.2016 passed by the MACT, Silchar in MAC Case No. 1537/2011 is set aside. The MACT, Silchar is directed to dispose of the claim application in accordance with the procedure laid down by law.

With the aforesaid observation and direction, the revision petition is disposed of.

JUDGE

Comparing Assistant