NATIONAL INSURANCE CO LTD Vs. KUSUM DEVI

JUDGEMENT

(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: -

(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: -