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.
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.
FMAT 1038 of 2012
Nirmala debi agarwal v ICICI Lombard
Re : CAN 562 of 2013.
Citation; 2015(1) ALLMR(JOURNAL)19
The claimants are the appellants before this court. The
claimants filed a claim petition under section 166 of the Motor
Vehicles Act. The owner of the offending vehicle did not appear
in the said proceedings in spite of service of summons, upon
him. The insurance company appears in the said proceeding
and filed written statement therein, challenging the jurisdiction
of the Tribunal to entertain the said claim petition for want of
territorial jurisdiction.
Though, several issues were framed by the Learned Tribunal in the said proceeding
but the issue regarding the lack of territorial jurisdiction of the Tribunal to entertain the said
claim petition was ultimately taken up by the Learned Tribunal as a preliminary issue and the
said issue was decided by the Learned Tribunal in favour of the insurance company. The
Learned Tribunal held that the said Tribunal lacks territorial jurisdiction to entertain the said
claim petition and such claim petition was rejected, but at the same time, the Learned Tribunal
observed that the claim petition was to be returned to the petitioners on filing of the necessary
application under Order 7 Rule 10 A of the Code of Civil Procedure.
The legality and/or propriety of the said impugned order of the Learned Tribunal
passed on July 09, 2012 in MJC Case No. 897 of 2008 is under challenge in this appeal at the
instance of the claimants.
Let us now consider as to how far, the Learned Tribunal was justified in passing the
impugned order in the facts of the instant case.
2
For proper appreciation of the legality of the impugned order, certain basic facts
which are required to be taken note of, are set out hereunder:-
i) The claimants reside at Premises No. 20, Salkia School Road,
Swapanalok Building, Flat No. 408. Howrah-711106 of Block –B which
is within the territorial jurisdiction of the Tribunal at Howrah.
ii) The accident took place on Karman Boder at Hodal in the State of
Harayana.
iii) The address of the owner of the offending vehicle as disclosed in the
claim petition is at House No.-105, Sector –29, Housing Board Colony,
Faridabad, which is also within the state of Harayana.
iv) The insurance policy was issued by the branch office of the concerned
insurance company, which is also situated at Faridabad within the state
of Harayana. The regional office of the insurance company situates at
J.K. Millenium tower, 3rd Floor, 46/D, Chowringhee Road, Kolkata –
700071. This address of the regional office of the insurance company
was disclosed in the claim petition. However, in the memorandum of
appeal the present address of the insurance company was mentioned as
15, Park Street, (Appejay House), 7th Floor, Kolkatta – 700016.
These basic facts are necessary for the present
purpose. The instant claim petition was filed in City Civil
Court at Calcutta where neither the claimants reside, nor
they carry on business, nor the accident occurred, nor the
policy issuing office of the insurance company situates
within the jurisdiction of city civil court at Calcutta, nor the
owner of the offending vehicle resides within the jurisdiction
of the City Civil Court at Calcutta.
However, the regional office of the insurance company situates within the territorial
jurisdiction of City Civil Court at Calcutta. Now we will have to examine in the facts of the
instant case as to whether the City Civil Court has territorial jurisdiction to entertain the said
claim petition or not.
The jurisdiction of the claim Tribunal to entertain any claim petition under the Motor
Vehicles Act, is dealt with in section 166(2) of the Motor Vehicles Act, 1988. The said
Provision runs as follows: -
3
Section 166 (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 other 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.
Plain reading of the said 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.
If the facts of the present case as recorded above are scrutinized in the light of the
provision contained in section 166(2) of the said Act, then it goes without saying that the City
Civil Court at Calcutta has no territorial jurisdiction to entertain the said claim petition as
neither the accident occurred within the jurisdiction of the said Tribunal, nor any of the
claimants resides and/or carries on business within the territorial jurisdiction of the said
Tribunal, nor the defendant resides within the territorial jurisdiction of the said Tribunal.
Mr. Chatterjee, learned Advocate, appearing for the claimants submits that since
the insurance company appeared in the instant case and filed written statement on all points,
on merit of the claim petition, without taking any effective objection with regard to the lack of
territorial jurisdiction of the Tribunal to entertain the said petition, the learned Tribunal ought
not to have decided the said issue as a preliminary issue by extracting the same from the other
issues in the said proceeding. By referring to the provision contained in section 21 of the Civil
Procedure Code he submits that since no specific objection with regard to the competence of
4
the Court to entertain the said case due to lack of territorial jurisdiction was taken by the
insurance company at the earliest opportunity before settlement of the issues in the said
proceeding, it should have been presumed that the insurance company by filing written
statement in the proceeding, submitted itself to jurisdiction of the Tribunal by waiving its
objection as to the competence of the Tribunal to entertain the claim petition due to lack of its
territorial jurisdiction. He further submits that when the said Tribunal does not lack
jurisdiction to entertain the claim petition inherently, the said Tribunal ought not to have
refused to entertain the said claim petition, when the parties submitted to its jurisdiction
without raising any objection as to its competence to entertain the said claim petition at the
right time.
Mr. Chatterjee, further, submits that since the insurance company has its regional
office within the territorial jurisdiction of the Tribunal, no prejudice will be caused if the said
claim petition is tried by the said Tribunal. In support of his said submission, Mr. Chatterjee
has relied upon a decision of the Hon’ble Supreme Court in the case of Mantoo Sarkar – vs –
Oriental Insurance Company Limited, reported in 2009(1) TAC 434 (S.C.).
Mr. Chatterjee, thus, invites this Court to set aside the impugned judgment and/or
order and for sending the same back to the learned Tribunal for trial of the claim petition on
merit.
Mr. Pahari, learned Advocate, appearing for the insurance company refuted such
submission of Mr. Chatterjee by drawing our attention to the Division Bench decision of this
Court in the case of New India Assurance Company Limited – vs- K. Pramanick & Anr.,
reported in 2010(1) TAC 405 Cal, wherein it was held as follows :
“In our view, the functional interpretation of the
provisions of sub-section (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.”
5
Mr. Pahari, thus, submits that dispute which is involved in this
proceeding is no longer a res-integra in view of the said Division Bench decision of this Court.
He, thus, invites this Court not to interfere with the impugned order.
Let us examine the respective submission of the learned counsel of the
parties in the present case.
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. Of-course, 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 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.
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.
6
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. Of-course 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 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.
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
7
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.
We, thus, hold that the learned Tribunal did not commit any illegality
by deciding the jurisdictional issue against the claimants. But at the at the same time we hold
that when the learned Tribunal found that it was lacking territorial jurisdiction to entertain the
said claim petition, the learned Tribunal, in our view, instead of rejecting the claim petition,
ought to have returned the claim petition to the claimants by accepting the mode as prescribed
under Order 7 Rule 10A of the Civil Procedure Code, as the contesting defendant has already
entered appearance in the said proceeding.
Thus, we feel that some modifications of the impugned order is
necessary.
The part of the order by which the claim petition was rejected by the
learned Tribunal is, thus, set aside. However, the later part of the impugned order by which
the liberty was given to the petitioners to file an application praying for necessary order in
terms of the provision contained in Order 7 Rule 10A of the said Civil Procedure Code,
remains undisturbed.
The learned Advocate appearing for the claimant submits that his
clients want to present the claim petition before the claims Tribunal at Howrah as the
claimants reside within the territorial jurisdiction of the said Tribunal.
Considering such submission of the learned Advocate for the claimants,
we direct the learned Tribunal to return the claim petition to the claimants which may be
presented by them to the claims Tribunal at Howrah, after specifying in the order the next date
of appearance of the parties before the claim Tribunal at Howrah, as per the provision
contained in Order 7 Rule 10A of the Code of Civil Procedure.
The next date of appearance of the defendant in the proceeding before
the learned Tribunal at Howrah should be notified to the defendant by the learned Tribunal in
the order of returning the claim petition itself.
8
Since the insurance company has already entered appearance in the said
proceeding, service of fresh summon upon the insurance company is dispensed with.
However, we cannot dispense with the requirement of service of notice of summon upon the
owner of the offending vehicle as the owner of the offending vehicle is not before us.
The appeal and the application both are disposed of.
The impugned order is, thus, modified accordingly.
Urgent photostat certified copy of this order, if applied for, be given to
the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.)
(Mrinal Kanti Sinha, J.)
ac
Print Page
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.
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.
FMAT 1038 of 2012
Nirmala debi agarwal v ICICI Lombard
Re : CAN 562 of 2013.
Citation; 2015(1) ALLMR(JOURNAL)19
The claimants are the appellants before this court. The
claimants filed a claim petition under section 166 of the Motor
Vehicles Act. The owner of the offending vehicle did not appear
in the said proceedings in spite of service of summons, upon
him. The insurance company appears in the said proceeding
and filed written statement therein, challenging the jurisdiction
of the Tribunal to entertain the said claim petition for want of
territorial jurisdiction.
Though, several issues were framed by the Learned Tribunal in the said proceeding
but the issue regarding the lack of territorial jurisdiction of the Tribunal to entertain the said
claim petition was ultimately taken up by the Learned Tribunal as a preliminary issue and the
said issue was decided by the Learned Tribunal in favour of the insurance company. The
Learned Tribunal held that the said Tribunal lacks territorial jurisdiction to entertain the said
claim petition and such claim petition was rejected, but at the same time, the Learned Tribunal
observed that the claim petition was to be returned to the petitioners on filing of the necessary
application under Order 7 Rule 10 A of the Code of Civil Procedure.
The legality and/or propriety of the said impugned order of the Learned Tribunal
passed on July 09, 2012 in MJC Case No. 897 of 2008 is under challenge in this appeal at the
instance of the claimants.
Let us now consider as to how far, the Learned Tribunal was justified in passing the
impugned order in the facts of the instant case.
2
For proper appreciation of the legality of the impugned order, certain basic facts
which are required to be taken note of, are set out hereunder:-
i) The claimants reside at Premises No. 20, Salkia School Road,
Swapanalok Building, Flat No. 408. Howrah-711106 of Block –B which
is within the territorial jurisdiction of the Tribunal at Howrah.
ii) The accident took place on Karman Boder at Hodal in the State of
Harayana.
iii) The address of the owner of the offending vehicle as disclosed in the
claim petition is at House No.-105, Sector –29, Housing Board Colony,
Faridabad, which is also within the state of Harayana.
iv) The insurance policy was issued by the branch office of the concerned
insurance company, which is also situated at Faridabad within the state
of Harayana. The regional office of the insurance company situates at
J.K. Millenium tower, 3rd Floor, 46/D, Chowringhee Road, Kolkata –
700071. This address of the regional office of the insurance company
was disclosed in the claim petition. However, in the memorandum of
appeal the present address of the insurance company was mentioned as
15, Park Street, (Appejay House), 7th Floor, Kolkatta – 700016.
These basic facts are necessary for the present
purpose. The instant claim petition was filed in City Civil
Court at Calcutta where neither the claimants reside, nor
they carry on business, nor the accident occurred, nor the
policy issuing office of the insurance company situates
within the jurisdiction of city civil court at Calcutta, nor the
owner of the offending vehicle resides within the jurisdiction
of the City Civil Court at Calcutta.
However, the regional office of the insurance company situates within the territorial
jurisdiction of City Civil Court at Calcutta. Now we will have to examine in the facts of the
instant case as to whether the City Civil Court has territorial jurisdiction to entertain the said
claim petition or not.
The jurisdiction of the claim Tribunal to entertain any claim petition under the Motor
Vehicles Act, is dealt with in section 166(2) of the Motor Vehicles Act, 1988. The said
Provision runs as follows: -
3
Section 166 (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 other 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.
Plain reading of the said 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.
If the facts of the present case as recorded above are scrutinized in the light of the
provision contained in section 166(2) of the said Act, then it goes without saying that the City
Civil Court at Calcutta has no territorial jurisdiction to entertain the said claim petition as
neither the accident occurred within the jurisdiction of the said Tribunal, nor any of the
claimants resides and/or carries on business within the territorial jurisdiction of the said
Tribunal, nor the defendant resides within the territorial jurisdiction of the said Tribunal.
Mr. Chatterjee, learned Advocate, appearing for the claimants submits that since
the insurance company appeared in the instant case and filed written statement on all points,
on merit of the claim petition, without taking any effective objection with regard to the lack of
territorial jurisdiction of the Tribunal to entertain the said petition, the learned Tribunal ought
not to have decided the said issue as a preliminary issue by extracting the same from the other
issues in the said proceeding. By referring to the provision contained in section 21 of the Civil
Procedure Code he submits that since no specific objection with regard to the competence of
4
the Court to entertain the said case due to lack of territorial jurisdiction was taken by the
insurance company at the earliest opportunity before settlement of the issues in the said
proceeding, it should have been presumed that the insurance company by filing written
statement in the proceeding, submitted itself to jurisdiction of the Tribunal by waiving its
objection as to the competence of the Tribunal to entertain the claim petition due to lack of its
territorial jurisdiction. He further submits that when the said Tribunal does not lack
jurisdiction to entertain the claim petition inherently, the said Tribunal ought not to have
refused to entertain the said claim petition, when the parties submitted to its jurisdiction
without raising any objection as to its competence to entertain the said claim petition at the
right time.
Mr. Chatterjee, further, submits that since the insurance company has its regional
office within the territorial jurisdiction of the Tribunal, no prejudice will be caused if the said
claim petition is tried by the said Tribunal. In support of his said submission, Mr. Chatterjee
has relied upon a decision of the Hon’ble Supreme Court in the case of Mantoo Sarkar – vs –
Oriental Insurance Company Limited, reported in 2009(1) TAC 434 (S.C.).
Mr. Chatterjee, thus, invites this Court to set aside the impugned judgment and/or
order and for sending the same back to the learned Tribunal for trial of the claim petition on
merit.
Mr. Pahari, learned Advocate, appearing for the insurance company refuted such
submission of Mr. Chatterjee by drawing our attention to the Division Bench decision of this
Court in the case of New India Assurance Company Limited – vs- K. Pramanick & Anr.,
reported in 2010(1) TAC 405 Cal, wherein it was held as follows :
“In our view, the functional interpretation of the
provisions of sub-section (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.”
5
Mr. Pahari, thus, submits that dispute which is involved in this
proceeding is no longer a res-integra in view of the said Division Bench decision of this Court.
He, thus, invites this Court not to interfere with the impugned order.
Let us examine the respective submission of the learned counsel of the
parties in the present case.
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. Of-course, 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 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.
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.
6
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. Of-course 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 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.
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
7
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.
We, thus, hold that the learned Tribunal did not commit any illegality
by deciding the jurisdictional issue against the claimants. But at the at the same time we hold
that when the learned Tribunal found that it was lacking territorial jurisdiction to entertain the
said claim petition, the learned Tribunal, in our view, instead of rejecting the claim petition,
ought to have returned the claim petition to the claimants by accepting the mode as prescribed
under Order 7 Rule 10A of the Civil Procedure Code, as the contesting defendant has already
entered appearance in the said proceeding.
Thus, we feel that some modifications of the impugned order is
necessary.
The part of the order by which the claim petition was rejected by the
learned Tribunal is, thus, set aside. However, the later part of the impugned order by which
the liberty was given to the petitioners to file an application praying for necessary order in
terms of the provision contained in Order 7 Rule 10A of the said Civil Procedure Code,
remains undisturbed.
The learned Advocate appearing for the claimant submits that his
clients want to present the claim petition before the claims Tribunal at Howrah as the
claimants reside within the territorial jurisdiction of the said Tribunal.
Considering such submission of the learned Advocate for the claimants,
we direct the learned Tribunal to return the claim petition to the claimants which may be
presented by them to the claims Tribunal at Howrah, after specifying in the order the next date
of appearance of the parties before the claim Tribunal at Howrah, as per the provision
contained in Order 7 Rule 10A of the Code of Civil Procedure.
The next date of appearance of the defendant in the proceeding before
the learned Tribunal at Howrah should be notified to the defendant by the learned Tribunal in
the order of returning the claim petition itself.
8
Since the insurance company has already entered appearance in the said
proceeding, service of fresh summon upon the insurance company is dispensed with.
However, we cannot dispense with the requirement of service of notice of summon upon the
owner of the offending vehicle as the owner of the offending vehicle is not before us.
The appeal and the application both are disposed of.
The impugned order is, thus, modified accordingly.
Urgent photostat certified copy of this order, if applied for, be given to
the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.)
(Mrinal Kanti Sinha, J.)
ac
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