NATIONAL INSURANCE CO LTD Vs. MALATI SARDAR

JUDGEMENT

(1.) This appeal has been preferred by the National Insurance Company against the judgment and order dated 7th February, 2012 passed in MJC Case No. 520 of 2008 by the learned Judge, Motor Accident Claims Tribunal, XIIth Bench, City Civil Court, Kolkata under section 166 of the Motor Vehicles Act, 1988 (for short '1988 Act') not only on the ground that the Tribunal had no jurisdiction to try the case but also on merits.

(2.) Mr. Parimal Pahari, learned advocate for the insurance company at the outset submitted that as the statutory requirements stipulated under section 166(2) 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 Hooghly, the owner and the respondents reside at Hooghly and the policy was issued from the branch office of the insurance company at Hooghly 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 territorial jurisdiciton was taken, on behalf of the insurance company, the Tribunal erred in allowing the claim petition on merits without dealing with the point of maintainability. In support of his submission Mr. Pahari had relied on the following judgments:-

(3.) Mr. Santosh Kumar Das, learned advocate for the respondent claimant submitted that since the insurance company by participating before the Tribunal had tacitly consented to the proceedings and 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:-