National Insurance Co Ltd vs Mandira Borpatra Gohain And 5 Ors

Heard Mr. B. K. Purkayastha, leaned counsel for the appellant and Mr. D. Saikia, learned Sr. Counsel assisted by Mr. K.K. Dutta, learned counsel

for the Respondents.

This statutory appeal under Section 173 of the MV Act is filed by the Insurance Company against the judgment and award dated 18.03.2014 passed

by the learned Additional Sessions Judge-cum-MACT, Kamrup, Guwahati in MAC Case No. 460/2010.

One Bikash Borpatra Gohain, since deceased, died in a motor vehicle accident involving the vehicle bearing registration No. AS-06-F-0408, owned

by the respondent No. 4 and insured with the appellant National Insurance Company Limited. The legal heirs of the deceased filed an application

before the MACT, Kamrup seeking compensation and the learned Tribunal by the impugned judgment, awarded a compensation of Rs. 32,25,810/-

with 6% interest per annum from the date of filing the claim petition.

Aggrieved by the said award, the appellant has preferred the instant appeal.

Learned counsel for the appellant Mr. B.K. Purkayastha, submits that the learned Tribunal did not have the territorial jurisdiction to adjudicate the

matter and therefore, the award deserves to be set aside. It is also contended that the quantum of the award on account of conventional heads,

namely loss of consortium, funeral expenses etc. graned by the Tribunal were exorbitant and unreasonable and deserves to be reduced in view of the

decision of the Apex Court in National Insurance Co. Vs. Pranay Sethi reported in (2017) ACJ 2700.

Refuting the submission of the learned counsel for the appellant, Mr. D. Saikia, learned Sr. Counsel for the claimant, placing reliance on the

decisions of the Apex Court in Malati Sardar Vs. National Insurance Co. Ltd. reported in (2016) 3 SCC 43 submits that National Insurance Company

being one of the main defendant in the instant case having its registered office at Guwahati, the Tribunal was quite within its jurisdiction to entertain

the claim in view of Sub-Section (2) of Section 166 of the MV Act. Sub-Section 2 of Section 166 MV Act reads as under:

“166. Application for compensation…………..

(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 Claim 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.â€​

As provided by Sub-Section (2) of Section 166 MV Act, the Tribunal within which jurisdiction the accident occurred or Tribunal within whose

jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the Defendant resides, shall have territorial

jurisdiction to entertain a claim under the Motor Vehicle Act. In the instant case, the appellant, who was arrayed as respondent No 1 being a body

corporate having its business and offices throughout India, the claim petition was filed at Guwahati, where the regional office of the appellant company

is situated. Rule 2 of Order XXIX CPC lays down that where suit is against a corporation, the summon may be served â€" (a) on the secretary, or on

any director or other principal office of the corporation or (b)by leaving it or sending it by post addressed to the corporation at the registered office, or

if there is no registered office then at the place where the corporation carries on business. The Insurance Company being an artificial person, the

places where it carries on business and has its office can be construed as its place of residence as contemplated in sub-section (2) of Section 166 MV

Act, and therefore, it cannot be said that the Tribunal at Guwahati where the regional office of the appellant is situated did not have jurisdiction to

entertain the claim.

In the case of Malati Sardar (supra), the deceased being a resident of Hoogly died in a motor vehicle accident that took place at Hoogly and the

claim petition was filed before the Tribunal at Kolkata. In the said case also, a plea was taken that the claimant was resident of Hoogly, accident took

place within the district of Hoogly, office of the respondent Insurance Company being Kolkata did not attract the jurisdiction of Kolkata Tribunal. On

the above facts, the Apex Court held as under:

“14. 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, C.P.C."".

In the present case, the claimant was a resident of Dibrugarh and the accident also took place at Dibrugarh. The vehicle was insured with the

National Insurance Company and it has its regional office at Guwahati. The Insurance Company having its regional office at Guwahati, and carrying

on business there, Tribunal at Guwahati cannot be without territorial jurisdiction in the instant case in view of ratio laid down by the Apex Court in

Malati Sardar (supra), as the Insurance Company, appellant was the prime defendant before the Tribunal. Therefore, the objection raised by the

Insurance Company with regard to territorial jurisdiction of the Tribunal appears to be without merit and deserves to be rejected.

The next question raised by the Insurance Company is that the award made on conventional heads were exorbitant and required to be reduced to

make the award just and fair. The Tribunal granted an amount of Rs. 25,000/- for funeral expenses, Rs. 1,00,000/-towards loss of consortium, Rs.

1,00,000/- for loss of care and guidance of the children. The contention of the learned counsel for the Insurance Company that those amounts, which

were on higher side should be reduced in terms of the decisions of the Apex Court in Pranay Sethi (supra). In fact, learned counsel for the

claimant/respondent has also conceded to such prayer of the appellant. Accordingly, the amount of Rs. 2,25,000/- in aggregate awarded by the learned

Tribunal on account of conventional heads, namely, funeral expenses, loss of consortium etc. is reduced to Rs. 70,000/- (40,000/- towards consortium

and Rs. 15,000/-each towards loss of estate and funeral expenses) as per the decision of the Apex Court in Pranay Sethi (supra) and therefore, the

award granted by the learned Tribunal is reduced by Rs. 1,55,000/- as indicated above.

Learned counsel for the respondent relying on the decisions of the Apex Court in (2013) 12 SCC 603 (S. Manickam Vs. Metropolitan Transport

Corporation Ltd.) and (2014) 5 SCC 330 (Sanjay Kumar Vs. Ashok Kumar) prays for enhancement of the rate of interest. The learned Tribunal in the

instant case granted 6% interest from the date of filing the claim petition. Apparently, the claimant has neither filed any appeal nor took cross objection

for enhancement of the rate of interest. The instant appeal filed by the Insurance Company for setting aside and/or reduction of award, the prayer for

enhancement of rate of interest may not be possible in absence of any appeal or cross objection filed by the claimant.

The appeal is partly allowed by reducing the quantum of award by Rs. 1,55,000/-.

The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned.

The Tribunal shall ensure that 40% of the awarded amount for two years, 20% for one year and 10% for 6 months, be fixed deposited in the name

of the claimant in a nationalized bank. Rest of the amount shall be released to the claimant by A/C payee cheque.

The appeal accordingly stands disposed of.

Send back the LCR.