MS NATIONAL INSURANCE COMPANY LTD v. GUNJA RAI AND ORS

1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (‘the Act’), preferred by the insurer, seeks to assail the award dated 10.11.2022 passed by the learned Motor Accidents Claim Tribunal in MACT No. 299/2021. Vide the impugned award the learned Tribunal, while holding that the death of Shri Chandramohan Raiwas was the result of an accident which took place at Ahirauli Chatti, Ghaziabad due to rash and negligent driving of a truck insured by the appellant, driven by respondent no.6, has awarded a sum of Rs 59,00,000/- as compensation to the claimants.

2. This compensation awarded by the learned Tribunal includes a sum of Rs 56,70,000/- towards loss of dependency, by treating the monthly income of the deceased as Rs 30,000/-. While holding that the monthly income of the deceased was required to be taken as Rs. 30,000/, the learned Tribunal took into account the fact that the deceased was a qualified Homeopath holding a degree of Bachelor in Homeopathic medicine and Surgery with 10 years of practice. To arrive to this conclusion, the learned Tribunal relied on the uncontroverted testimony of PW[1], the widow of the deceased, who, by producing the register of patients maintained by her late husband, stated that he was earning an amount of at least Rs. 50,000/- per month. The relevant findings of the learned Tribunal on this aspect read as under:

3. Being aggrieved, the present appeal has been preferred by the insurer on two grounds. The first and foremost being that the claim petition itself was not maintainable before the tribunal for want of territorial jurisdiction. The second being that the monthly income of the deceased ought to have been taken as the minimum wages of a skilled workman and not Rs. 30,000/-, as presumed by the learned Tribunal.

4. Learned counsel for the appellant submits that the learned Tribunal has erred in presuming that the monthly income of the deceased was Rs.30,000/-, as no reliable evidence was lead to prove the same. The Register produced by PW-1 in support of the monthly income of the deceased did not clearly and specifically mention as to whether the same pertained to the deceased or to his father who was also a Homeopathic Doctor. It is, therefore, contended that in these circumstances, when no reliable evidence was placed on record to prove the income of the deceased, the learned Tribunal ought to have taken into account the minimum wages applicable to a skilled workman for computing the income of the deceased.

5. She further submits that the learned tribunal failed to appreciate that neither the accident took place within the territorial jurisdiction of Delhi nor were the claimants residents of Delhi. Furthermore, even the insurance policy was not issued from Delhi and, therefore, merely because the appellant/insurer has been carrying out business in Delhi, would not cloth the learned tribunal with territorial jurisdiction to adjudicate the claim petition of the claimants. She, therefore, contends that the claim petition ought to have been rejected on the ground of lack of territorial jurisdiction itself.

6. Having considered the submissions of learned counsel for the appellant and perused the record, I find that while the parties are ad idem regarding the cause of the death as also regarding the offending vehicle being insured with the appellant, the only questions which need to be determined are regarding the territorial jurisdiction of the learned Tribunal to entertain the claim as also regarding the monthly income of the deceased.

7. Even though, learned counsel for the appellant has vehemently contended that there was no material on record before the learned Tribunal to conclude that the deceased was earning Rs.30,000/- per month, I find that the said conclusion of the learned Tribunal was based on the testimony of PW-1, the widow of the deceased, who had categorically deposed that her husband was earning more than Rs.50,000/- per month. Moreover, PW-3, who was a regular patient of the deceased, had also deposed that he was paying Rs.1,200/- per visit to the deceased. In these circumstances, I am unable to accept the appellant’s plea that the yardstick of minimum wages ought to have been applied while computing the income of the deceased. This Court, therefore, finds absolutely no infirmity in the finding of the learned Tribunal that the income of the deceased was required to be taken as at least Rs.1,000/- per day, i.e., Rs.30,000/- per month.

8. Now coming to the appellants’ plea that the claim petition was liable to be rejected on the ground of lack of territorial jurisdiction. In my view, even this ground is wholly unmerited. Once it is an admitted case that the appellant/insurer is carrying out business in Delhi, the learned Tribunal was, in the light of the settled legal position, justified in holding that the claim petition was maintainable. In this regard, reference may be made to the decision of the Apex Court in Malati Sardar v. National Insurance Company Limited and ors (2016)3 SCC 43, wherein it was held as under:

12. In Mantoo Sarkar [Mantoo Sarkar v. Oriental Insurance Co. Ltd., (2009) 2 SCC 244: (2009) 1 SCC (Civ) 482: (2009) 1 SCC (Cri) 738], the Insurance Company had a branch at Nainital. The accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the Insurance Company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of the Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in the absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subjectmatter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the latter.