IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.583 of 2008 SMT.JASO DEVI widow of Late Ram Chandra Sah, permanent resident of village-Sakri Purani Bazar, P.S.Sakri, District-Madhubani, at present Residing at Mohalla + P.S.-Brahampura, District- Muzaffarpur. ……. ……. Appellant Versus 1.NIHAL BEG son of Sri Nisar Beg, resident of village-Ruidhasha, P.O., P.S. and Dist-Kishanganj 2.The New India Assurance Company Ltd. Puraniya Branch, through Divisional Manager, The New India Assurance Co. Ltd. Club Road, Poddar Complex, Muzaffarpur. ……. …….Respondents ----------- 13. 25.4.2011. Heard Mr. Ajay Kumar, learned counsel for the appellant, Mr. Sunil Kumar Karn, learned counsel for respondent no.1 and Mr. Sanjay Singh, learned counsel for respondent no.2. The present appeal under Order 43(I) (a) of the Code of Civil Procedure has been preferred against the order passed by District Judge-cum-Motor Vehicle Accident Claim Tribunal, Muzaffarpur, (hereinafter to be referred as „Tribunal‟) in Claim Case No.82 of 2005 dated 26.8.2008, whereby the learned Tribunal has rejected the claim case on the ground of lack of territorial jurisdiction. Short fact of the case is that on 25.4.2005 while husband of the appellant was at road side, he met with an accident by a pick-up van bearing registration no.BR-37-6738. Accordingly, a first information report vide Musri Gharari P.S. Case No.50 of 2005 was registered. In the said accident husband of the appellant died. After the occurrence, a claim petition was filed by the appellant both under sections 140 of the Motor Vehicles Act, 1988 2 as well as under section 166 of the Motor Vehicles Act (hereinafter to be referred to as „the Act) in the court of District Judge- cum- Motor Vehicles Accident Claim Tribunal, Muzaffarpur. It is not in dispute that the accident had taken place outside the territorial jurisdiction of the Muzaffarpur court and the owner of the vehicle in question was also a resident of the district of Madhubani. In the claim petition temporary address of the claimant is mentioned as Muzaffarpur. In the claim petition issues were framed and finally the learned Tribunal by its order dated 26.8.2008 on the oral objection raised on behalf of the defendants has rejected the claim petition on the ground of lack of territorial jurisdiction. Mr. Ajay Kumar, learned counsel for the petitioner, while challenging the impugned order, has given details of the case. It was submitted that immediately after the occurrence the claim petition was filed on 3.5.2005 and subsequently on 16.7.2005 claim case was admitted for hearing. On 17.8.2005 the Insurance Company i.e. New India Assurance Co.Ltd. (respondent no.2 herein) appeared before the court below and on 29.11.2005 a detailed written statement was filed. In the written statement no objection on the point of territorial jurisdiction was raised. In the case owner of the vehicle i.e. respondent no.1 also appeared but he too did not raise objection on the point of territorial jurisdiction. The petition which was filed under section 140 of the Act was allowed by the learned Tribunal. The respondent no.2 made payment of interim compensation of Rs.50,000/- to the claimant on 10.11.2006. Mr. Ajay Kumar further submits that after appearance of the parties on 3 4.11.2006 five issues were framed by the learned Tribunal. Even, at the time of framing of issues it was never pointed out by either of the parties questioning the territorial jurisdiction of the learned Tribunal. In the case witnesses were examined on behalf of the claimant and opportunity was given to the defendants to lead evidence. However, defendants did not produce any witness. On 16.2.2008 evidence was closed. It was submitted on behalf of the appellant that right from the very inception no objection on the point of territorial jurisdiction was raised. However, at the time of argument an oral objection was raised on the point of territorial jurisdiction and the learned Tribunal without any cogent material on record has rejected the claim petition on the ground of lack of territorial jurisdiction. On behalf of the appellant, it was strenuously argued that had there been any objection on the point of territorial jurisdiction, the defendants were at liberty to raise the same at the very initial stage of the claim case. It was further submitted that even in view of section 166(2) of the Act, since the claimant had made a categorical statement in the claim petition that her temporary address was Muzaffarpur, there was no point to further proceed on the question of territorial jurisdiction. In view of section 166(2) of the Act, the learned Tribunal was having full jurisdiction to entertain the claim petition and decide the issue. Learned counsel for the appellant has submitted that the defendants have not brought on record any point showing prejudice due to lack of territorial jurisdiction. It was submitted that before raising question of lack of jurisdiction, it was must on the part of the defendant/respondent to 4 show how they were going to be prejudiced. In support of his contention, he has relied upon a judgment of the Apex Court reported in (2009) 2 S.C.C.244 (Mantoo Sarkar Vs. Oriental Insurance Company Limited and Others). He specifically referred to paragraphs 16, and 23 of the judgment. It would be appropriate to quote the same, which are as follows: “16. We say so because ordinarily an appellate Court shall not, having regard to the provisions contained in sub-section (1) of Section 21 of the Code of Civil Procedure, entertain an appeal on the ground of lack of territorial jurisdiction on the part of the Court below unless he has been prejudiced thereby. Other respondents did not raise any question of jurisdiction. Although one witness each had been examined on behalf of the truck owner and owner of the bus, neither a question of lack of territorial jurisdiction was raised nor the question of any prejudice had been argued. It is only the first respondent who raised the question of territorial jurisdiction. However, no prejudice was caused to the appellant by the claim petition being tried by MACT at Nainital.” “23. We cannot also lose sight of the fact that the appellant herein was a labourer. The justness or otherwise of the amount of compensation has not been disputed before us. If the High Court‟s judgment is to be complied with, the 5 appellant would again have to initiate another proceeding either at Bareilly or Gurgaon or at Delhi or at Jabalpur. The same evidence would have to be rendered once again.” Learned counsel for the appellant has further argued that it is a settled question of law that question of territorial jurisdiction is to be raised at the very initial stage of the proceeding and not at a belated stage. In support of his submission he has relied upon a judgment report in (2005) 7 S.C.C. 791 (Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Another). In support of his argument he specifically referred to paragraph 30 of the judgment which is as follows: “30. We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the 6 cause or matter. An order passed by a Court having no jurisdiction is a nullity.” On the aforesaid ground coupled with the provisions mentioned under section 166(2) of the Act it is evident that the „Act‟ empowers a Motor Vehicles Accident Claim Tribunal to entertain an application of claim case, if claimant resides whether permanently or temporarily within the territorial jurisdiction of the learned Tribunal. The learned Tribunal is bound to entertain such claim and on the plea of lack of territorial jurisdiction, such claim petition cannot be rejected. Accordingly, the order impugned is liable to be set aside and the matter may be remitted back to the court below for proceeding with the case from the stage of argument. Mr. Sanjay Singh, learned counsel for respondent no.2 i.e.New India Assurance Company Ltd. has strongly opposed the prayer of the appellant. He has relied upon an unreported Division Bench judgment of this court dated 28.4.2010 passed in L.P.A. No.581 of 2010 (Divisional Manager, The Oriental Insurance Company Ltd., Muzaffarupr Vs. The State of Bihar & Ors.). He has referred to paragraphs 6, 7 and 12 of the judgment and submits that while rejecting the claim petition due to lack of territorial jurisdiction, the learned Tribunal has committed no error and the present appeal is fit to be rejected. I have also heard Mr. Sunil Kumar Karn, learned counsel appearing on behalf of respondent no.1 i.e. the owner of the vehicle. He has not objected to the argument advanced by learned counsel for the appellant. 7 Besides hearing learned counsel for the parties, I have also perused the materials on record including lower court records, which were earlier summoned and are lying with the record of the present case. On perusal of the claim petition, which was filed under section 140 and 166(2) of the Act, it is evident that there is no ambiguity that the claimant had made assertion that she was residing within the territorial jurisdiction of the Tribunal at Muzaffarpur. On the assertion made in the claim petition, this court is satisfied that the learned Tribunal had committed serious error in rejecting the claim petition on the ground of lack of territorial jurisdiction. Section 166(2) of the Act is very specific, which is as follows: “166.Application for compensation:– (1) … … … (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 Claims 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: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.” On perusal of the aforesaid provision, it is evident 8 that a claim petition can either be filed within the territorial jurisdiction of the court where the accident had taken place or where the claimant resides. It is immaterial whether address of the claimant is permanent or temporary. Once there was specific assertion in the claim petition, the court failed to understand as to how on the ground of lack of territorial jurisdiction the learned Tribunal has rejected the claim petition. Besides this, the defendants/respondent had not brought on record as to how they were going to be prejudiced had it been decided by the learned Tribunal at Muzaffarur. In absence of such assertion the Tribunal has incorrectly rejected the claim. In the present case, no such pleading was raised by the respondent. Only at a belated stage i.e. at the stage of argument such objection was raised which was required to be rejected by the learned Tribunal but the learned Tribunal entertained and proceeded for rejection of the claim petition. Similarly, Harshad Chiman Lal Modi‟s case (supra) is clear on the point that such objection was required to be taken at the initial stage. In the present case, a chronological event has been placed. The claim petition was filed on 3.5.2005. Thereafter, both the defendants had appeared. The defendant no.2 filed a specific written statement but no objection on the point of territorial jurisdiction was raised. Even at the time of framing of issues no such plea was taken. It was not pleaded as to whether learned Tribunal at Muzaffarpur was having jurisdiction or not. In such a situation, the learned Tribunal was not required to answer the oral question raised by the defendant on the point of territorial jurisdiction that too at the time of argument. 9 So far as judgment of Division Bench of the court in L.P.A. No.581 of 2010, which was relied upon by learned counsel for respondent no.2 is concerned, the court is of the opinion that same has got no relevance in the facts and circumstances of the present case. In view of the facts and circumstances as discussed above, the court is of the opinion that the learned claim Tribunal has committed serious error and order impugned is liable to be set aside and is hereby set aside. The matter is remitted back to the court below with a direction to proceed from the stage of argument and decide the issues within a period of four months from the date of receipt/production of a copy of this order. The appeal stands allowed. Md.S. ( Rakesh Kumar, J.)