- (1.) THIS appeal has been preferred by the National Insurance Company against the judgment and order dated 25th September, 2013 passed in MACC No. 206 of 2008 by the learned Judge, Motor Accident Claims Tribunal, IInd Bench, City Civil Court, Kolkata not only on the ground that the Tribunal had no jurisdiction to try the case but also on merits.
(2.) MR . Rajesh Singh, learned advocate for the insurance company at the outset submitted that as the statutory requirements stipulated under section 166(2) of the Motor Vehicles Act, 1988 (for short the '1988 Act') for filing a claim petition before the Tribunal at Kolkata were not fulfilled, the Tribunal lacked jurisdiction to decide the claim petition. Referring to facts, submission was as the accident took place at Howrah, the owner and the respondents reside at Howrah and the policy was issued from the branch office of the insurance company at Howrah and as 1988 Act is a special statute, the Tribunal at Kolkata had no jurisdiction to entertain the petition. Since, as evident from the judgment under challenge, the point of maintainability was taken and accordingly the Tribunal had framed an issue, the Tribunal erred in allowing the claim petition on merits without dealing with the point of maintainability. In support of his submission Mr. Singh had relied on the following judgments: - i) Union of India v. Col. G.S. Grewal, 2014 AIR(SCW) 4656 ii) Dr. Jagmittar Sain Bhagat v. Dir. Health Services, Haryana, 2013 AIR(SCW) 4387 iii) Nirmala Debi Agarwal v. ICICI Lombard General Insurance Co. Ltd., 2013 3 CLJ (Cal); iv) New India Assurance Company Limited v. Kutiswar Pramanik, 2010 1 TAC 405(Cal); and on an unreported judgment delivered on 18th July, 2012 in FMA 724 of 2008 with COT 22 of 2008 (The New India Assurance Company Limited versus Smt Silpi Dutta and others).
(3.) MR . Santosh Kumar Das, learned advocate for the respondents claimants submitted that since the insurance company by participating before the Tribunal had tacitly consented to the proceedings and the objection raised before the said forum was general in nature, as the judgment was passed on merits and no prejudice is caused to the company and keeping the provisions in Order VII Rule 10 of the Code of Civil Procedure, 1908 in mind and as the judgments cited on behalf of the appellant are distinguishable on facts, the appeal may be dismissed. In support of his submission the following judgments were cited: - i) Mantoo Sarkar v. Oriental Insurance Co. Ltd., 2009 AIR(SC) 1022 ii) Oriental Insurance Co. Ltd. v. Raj Kumari, 2008 ACJ 295; iii) Harshad Chiman Lal Modi v. DLF Universal Ltd., 2005 7 SCC 791; iv) Hira Lal Patni v. Sri Kali Nath, 1962 AIR(SC) 199 Reliance was also placed on an unreported judgment delivered on 21st April, 2014 in FMA 1454 of 2013 with CAN 1858 of 2014 (National Insurance Company Ltd. v. Alpana Jana and Ors.) We find from the judgment and order impugned, that though before the Tribunal the maintainability of the claim petition was issue no.2, however, without dealing with the point of jurisdiction the Tribunal had allowed the claim petition on merits.;