Shobhabai And Ors vs Shri Narayan Shankarrao Kharat ...
2022 Latest Caselaw 473 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 12TH DAY OF JANUARY 2022

                            PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                               AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA


                 M.F.A. NO.201328/2019 (MV)

BETWEEN:

1.    Shobhabai W/o Sanjay Pardeshi
      Age: 47 years, Occ: Household work
      R/o Solapur and also resident of Yogapur colony
      Vijayapura-586101

2.    Suraj S/o Sanjay Pardeshi
      Age: 27 years, Occ: Business
      R/o Solapur and also resident of Yogapur colony
      Vijayapura-586101

3.    Shwetha D/o Sanjay Pardeshi
      Age: 21 years, Occ: Student
      R/o Solapur and also resident of Yogapur Colony
      Vijayapura-586101

4.    Rina D/o Sanjay Pardeshi
      Age: 25 years, Occ: Household work
      R/o Solapur and also resident of Yogapur Colony
      Vijayapura-586101

                                                        ... Appellants

(By Sri Koujalagai Chandrakant Laxman, Advocate)
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AND:

1.     Shri Narayan Shankarrao Kharat
       Age: Major, Occ: Truck Owner bearing No.
       MH-04/CU/3125, R/o A/p House No.4-6-1-258
       Vishnu Nagar, Aurangabad-431001
       (Maharashtra State)

2.     The Bajaj Alliance General Insurance Company Ltd.
       Aurangabad
       Locally referred by
       The Bajaj Alliance General Insurance Company Ltd.
       Bangalore-560 001

                                                            ... Respondents
(By Sri Sudharshan M., Advocate for R2;
 Notice to R1 is held sufficient vide order dated 12.01.2022)

       This Miscellaneous First Appeal is filed under Section 173(1) of
the Motor Vehicle Act, praying to set aside the judgment and award dated
12.06.2019 passed in MVC No.1300/2014 on the file of the Court of the
IV Additional District and Sessions Judge and Member Motor Accident
Claims Tribunal No.XIII, Vijayapura at Vijayapura and allow this appeal
and to grant the compensation of Rs.3,66,00,000/- only as claimed by the
Appellants before the Tribunal.

        This appeal coming on for orders this day, S.R.Krishna Kumar J.,
delivered the following:

                             JUDGMENT

This appeal is directed against the impugned judgment

and award dated 12.06.2019 passed in MVC No.1300/2014 by

the MACT No.XIII, Vijayapur, (for short the 'Tribunal') whereby

the said claim petition filed by the appellants-claimants was

dismissed on the ground that the Tribunal did not have

territorial jurisdiction to adjudicate upon the claim petition.

2. Heard learned counsel for the appellant and

learned counsel for respondent No.2 - Insurance company

and perused the material on record.

3. The material on record indicates that the

claimants filed the claim petition seeking compensation on the

ground of death of one Sanjay Pardeshi who died in a road

traffic accident that occurred on 21.03.2014. In the said claim

petition filed before the Tribunal, the claimants who were wife

and children of the deceased Sanjay Pardeshi claimed that

they were residents of Solapur as well as at Yogapur Colony,

Vijayapur, within the jurisdiction of the Tribunal. It was also

contended that though respondent No.1 - owner was the

resident of Aurangabad in the State of Maharashtra, the

respondent No.2 - Bajaj Allianz General Insurance Company

Limited, Aurangabad which has its head office at Bengaluru

was carrying on business through its agent Mr. Golsangi at

Vijayapur within the jurisdiction of the Tribunal.

4. The respondents before the Tribunal having

contested the claim petition, the Tribunal came to the

conclusion that it did not have territorial jurisdiction to

adjudicate upon the matter; while arriving at such conclusion,

the Tribunal recorded a finding that the appellants-claimants

have not produced any material to show that they were

residing at Yogapur Colony, Vijayapur within the jurisdiction of

the Tribunal. So also, the Tribunal came to the conclusion

that though the photographs of Mr. Golsangi indicated that he

was an agent of respondent No.2 - Insurance Company and

was carrying on business at Vijayapur, the said agency

business of Mr. Golsangi cannot be construed or treated as

respondent No.2 - Insurance Company carrying on business

at its branch office at Vijayapur and consequently in the

absence of any material to establish that the claimants were

residents of Vijayapur or that the Insurance Company had its

branch office at Vijayapur, the Tribunal did not have territorial

jurisdiction to adjudicate upon the claim petition. Under these

circumstances, the Tribunal proceeded to dismiss the claim

petition on the ground of lack/want of territorial jurisdiction.

5. In addition to reiterating various contentions

urged in the appeal and referring to material on record,

learned counsel for the appellants-claimants submits that the

impugned judgment and award is not only contrary to the

material on record, but also the decision of the Hon'ble Apex

Court in the case of Malati Sardar vs. National Insurance

Company Limited, reported in (2016) 3 SCC 43 wherein the

Apex Court has held that the place where the Insurance

Company is carrying on business has territorial jurisdiction to

adjudicate upon the claim petition. In this context, learned

counsel submits that having regard to the material on record

which clearly establishes that the Insurance Company was

carrying on business through its agent Mr. Golsangi at

Vijayapur, the Tribunal erred in coming to the conclusion that

the Tribunal at Vijayapur did not have territorial jurisdiction to

adjudicate upon the claim petition and consequently the

impugned judgment and award passed by the Tribunal

deserves to be set aside.

6. Per contra, learned counsel for the Insurance

Company would support the impugned judgment and award

and seeks dismissal of the present appeal.

7. We have given our anxious consideration to the

rival contentions urged by the learned counsel for the parties

and perused the records.

8. In Malati Sardar's case supra, the Hon'ble Apex

Court held as under:

"10. The question for consideration thus is whether the Tribunal at Kolkata had the jurisdiction to decide the claim application under Section 166 of the Act when the accident took place outside Kolkata jurisdiction and the claimant also resided outside Kolkata jurisdiction, but the respondent being a juristic person carried on business at Kolkata. Further question is whether in absence of failure of justice, the High Court could set aside the award of the Tribunal on the ground of lack of territorial jurisdiction.

11. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be worthwhile to quote the statutory provision of Section 166(2) of the Act :

"166. Application for compensation.-- (1) * * * (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:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant."

12. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The

High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the later.

13. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan to the following effect :

"With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary

jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act' "

14. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata.

15. Reliance placed on decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat is misplaced. In G.S. Grewal, the subject matter of dispute was not

covered by the definition of "service matters" under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. Thus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a "consumer" under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction.

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 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."

9. As held by the Apex Court in Malati Sardar's

case supra, the place where the Insurance Company carries

on business has territorial jurisdiction to adjudicate upon the

claim petition irrespective of the fact whether or not the

claimants are residing within the jurisdiction of the Tribunal. In

the instant case, a perusal of the material on record including

the impugned judgment and award will indicate that the

Insurance Company was carrying on business through its

agent Mr. Golsangi at Vijayapur within the jurisdiction of the

Tribunal as borne out from the material on record. Under

these circumstances, we are of the considered opinion that

the Tribunal clearly fell in error in coming to the conclusion

that the Tribunal at Vijayapur did not have territorial jurisdiction

to adjudicate upon the claim petition.

10. In our considered opinion, the reasoning of the

Tribunal that the business being carried on by Mr. Golsangi,

an agent of the respondent No.2 - Insurance Company at

Vijayapura cannot be construed or treated as a Branch Office

is erroneous in the light of Section 166 of the Motor Vehicles

Act which merely prescribes that territorial jurisdiction would

be dependent on where the respondent - Insurance Company

is carrying on business and not whether the place where there

is a branch office of the respondent No.2 - Insurance

Company. As can be seen from the decision of the Hon'ble

Apex Court in the case of Malati Sardar's case supra, having

regard to the fact that the Motor Vehicles Act is a beneficial

piece of legislation, the place where the respondent No.2 -

Insurance Company carries on business has to be held to

include the place where the agent of the Insurance Company

carries on business on behalf of the Insurance Company.

Under these circumstances, merely because the Insurance

Company does not have a branch office at Vijayapur, the said

circumstance cannot be made the basis to come to the

conclusion that the MACT at Vijayapur did not have territorial

jurisdiction in the peculiar facts and circumstances of the

instant case, in particular, the agent Mr. Golsangi carrying on

business on behalf of the Insurance Company at Vijayapur

within the territorial jurisdiction of the MACT, Vijayapur. We

are therefore of the view that the impugned judgment and

award passed by the Tribunal is erroneous, perverse and

contrary to the material on record as well as the decision of

the Apex Court in Malati Sardar's case supra and

consequently, the impugned judgment and award deserves to

be set aside and the matter requires to be remitted back to the

Tribunal for reconsideration afresh on merits.

11. In the result, we pass the following:

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned judgment and award is set aside and the matter is remitted back to the Tribunal for reconsideration afresh on all aspects of the matter except the issue regarding territorial jurisdiction, which stands concluded in favour of the appellants - claimants in this order by holding that the tribunal has territorial jurisdiction to adjudicate upon the claim petition.

(iii) Having regard to the fact that the claim is of the year 2014, the Tribunal is directed to dispose of the same as expeditiously as possible.

(iv) Appellants and respondent No.2 undertake to appear before the MACT, Vijayapur on 14.02.2022.

Sd/-

JUDGE

Sd/-

JUDGE

swk