2024 INSC 361

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.1842 of 2024

(Arising out of SLP(C) No. 396 of 2019)

Balveer Batra …Appellant (s)

Versus

The New India Assurance

Company & Anr. …Respondent(s)

J U D G M E N T

C.T. RAVIKUMAR, J.

Leave granted.

1. This appeal by Special Leave is directed against

the judgment and order dated 28.11.2016 passed by the

High Court of Uttarakhand at Nainital in Appeal from

Order No. 414 of 2010.

2. The appellant is the father of the victim of a motor

vehicle accident. His son, the victim, met with the

unfortunate accident causing his death while underway

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on his motorcycle from Dineshpur to Gadarpur and

stopped it in the midway to urinate. A tractor bearing

number UP-02A-2213 being driven recklessly and

negligently by the first respondent hit him and his

motorcycle and he died instantaneously. The incident

occurred on 07.03.2006 at about 07.30 pm. T he

appellant filed an application under Section 166 of the

Motor Vehicles Act, 1988 (for short ‘MV Act’ only) for

compensation before the Motor Accident Claims

Tribunal at Nainital as MACP No.137/2006. The

Tribunal dismissed the application for lack of territorial

jurisdiction. Aggrieved by the same, the appellant

herein preferred an appeal before the High Court and

the same also met with the same fate. Hence, this

appeal.

3. Heard learned counsel appearing for the

appellant and the counsel appearing for the

respondent-insurance company.

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4. A brief reference to the facts which led to the

concurrent, adverse decisions, as mentioned above, is

required for an appropriate disposal of this appeal. As

a matter of fact, respondent Nos. 2 and 3 herein /

opposite parties 1 and 2 in the claim petition, filed a

joint written statement, inter alia, raising the question of

maintainability on the ground of lack of territorial

jurisdiction. The averments therein, taken note of the

Claims Tribunal in its award, would reveal that even

while raising such objection they would admit the death

of the appellant’s son in the accident involving the

aforementioned tractor though they disputed the nature

of its occurrence. In paragraph 3 of the award of the

Tribunal such averments are noted down thus:-

“that on the day of alleged accident, the driver of

Tractor was being driven the tractor in its side, but

deceased himself hit by driving motorcycle rash and

negligently, consequently he received injuries; that on

the day of accident, they opposite party No.1 was

driving the tractor with valid driving licence; that the

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Tractor in question is insured with O.P. No.3, the New

India Insurance Company.”

5. The first-respondent viz., the opposite party No.3

too, raised the objection of lack of territorial jurisdiction

to adjudicate the claim petition and over and above in

the written statement respondent No.1 herein stated

thus, as can be seen from paragraph 4 of the award of

the Tribunal:-

“that the sole cause of accident is rash and negligent

driving of the motor vehicle bearing registration No.

UA06(A)-9229, which was also involved in the

accident, that in case of involvement of two motor

vehicles in the alleged accident, the tribunal has to

determine the composite/contributory negligence of

each driver thereof and its effects; that the answering

party has not been given any information as provided

under Section 158 (6) of the Motor Vehicle Act and the

petition is bad for non-joinder of the party.”

6. It is based on such pleadings that the Tribunal had

framed seven issues as hereunder:-

“1. Whether on 07.03.2006 at around 7.30 when

deceased Rohit Batra on his Motorcycle No.UA06A9229

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was going from Dineshpur to Gadarpur then near

Village Varkheda, PS Gadarpur, District Udham Singh

Nagar, Tractor No. UP2A-2213, being driven recklessly

and negligently by the driver hit his motorcycle from

behind, due to which the deceased suffered serious

injuries and his death was caused due to such injuries,

as has been stated in the claim petition?

2. Whether the said accident was caused by the

deceased himself driving his motorcycle No.UA6A

9229 recklessly and negligently, as has been stated by

the Defendant No.1, 2 & 3 in their Written Statements?

3. Whether the said accident was caused due to

contributory negligence of both the drivers as has

been stated by Defendant No.3 in his written

statement?

4. Whether the claim is effective due to not making

insurance company of the motorcycle No.UA06A-9229,

which is a necessary party, a party in the case?

5. Whether this Tribunal does not have the territorial

jurisdiction to entertain the claim as has been stated by

the Defendant No.1,2 & 3 in their written statement?

6. Whether the tractor in question at the time of

accident was insured with the defendant No.3,

insurance company and whether it was being run in

accordance with the terms and condition of the

insurance policy?

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7. Whether the claimants are entitled to any

compensation and if yes, then how much and who is

liable to be paid?”

7. After framing issues as above, the Tribunal firstly

considered issue No.5, pertaining to the territorial

jurisdiction, assigning the reason that the rest of the

issues are dependent on the decision on issue No.5.

Nonetheless, the indisputable position is that by that

time four years, since filing of the claim petition, had

lapsed and in the meanwhile both sides had also

examined witnesses. While being examined as PW-1,

the appellant deposed that at the time of accident in

question he was a resident of Haldwani, District

Nainital, and the accident had occurred within the limits

of the adjoining district of Udham Singh Nagar. True

that at the time of filing the claim petition he was not

residing in Haldwani. The Tribunal, based on the said

factual position of evidence, came to the conclusion that

the claimant is not residing within its territorial

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jurisdiction. It also took note of the fact that the

opposite party Nos. 1 and 2 are also not residing within

its jurisdiction and proceeded to consider its territorial

jurisdiction. In that regard, the Tribunal has also held

that the mere fact that the insurance company got an

office within the jurisdictional limits of the Tribunal

could not confer jurisdiction on it. Based on such

conclusions and findings, answered issue No.5 to the

effect that it lacks territorial jurisdiction. Thereupon, as

relates the other issues it was held thus:-

“21. ISSUES NO.1, 2, 3, 4, 6 & 7:

At the main issue (issue no.5) for territorial jurisdiction

of this tribunal has been decided against the claimants,

hence there is no occasion to examine the other issues

on merits. In view of above issue No.1, 2, 3, 4, 6 and 7

are also decided against the claimants and in favour of

the opposite parties.”

(Underline supplied)

8. After answering the issues as above, the claim

petition was dismissed. As noted above, the High Court

confirmed the judgment/award solely considering the

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question of territorial jurisdiction of the Tribunal.

9. The core contention of the appellant revolves

around the decision of this Court in Malati Sardar v.

National Insurance Company Ltd.

1

Though the same

was relied on by the Appellant before the High Court, it

distinguished the decision on facts and held it

inapplicable. A bare perusal of the said decision would

reveal the very question formulated and answered by

this Court in Malati Sardar’s case (supra). The same

assumes relevance in the context of the rival

contentions and it reads as follows:-

“The question raised in this appeal is whether the High

Court was justified in setting aside the award of the

Motor Accident Claims Tribunal, Kolkata only on the

ground that the Tribunal did not have the territorial

jurisdiction”.

10. Paragraph 10 of the decision in Malati Sardar’s

case is also relevant for the purpose of knowing the

factual position under which such a question was

1

(2016) 3 SCC 43

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formulated and answered. It reads thus-

“The question for consideration thus is whether the

Tribunal at Kolkata had the jurisdiction to decide the

claim application under Section 166 of the Act when

the accident took place outside Kolkata jurisdiction

and the claimant also resided outside Kolkata

jurisdiction, but the respondent being a juristic person

carried on business at Kolkata. Further the question is

whether in absence of failure of justice, the High Court

could set aside the award of the Tribunal on the

ground of lack of territorial jurisdiction.”

(underline supplied)

11. Noticeably, in that case the Tribunal entertained

the claim petition and awarded compensation and the

High Court, at the instance of the insurance company,

considered and reversed the decision on the question

of territorial jurisdiction. Consequently, the appeal of

the insurance company was allowed and the party was

directed to refund of the amount deposited / paid, if

any, to the appellant insurance company. After framing

the said question in the above factual backdrop, it was

answered in Malati Sardar’s case by placing reliance

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on the earlier decision of this Court in Kiran Singh v.

Chaman Paswan

2. This Court held that the provision in

question is a benevolent provision for the victims of

accidents of negligent driving and in such

circumstances, it has to be interpreted with the object

of facilitating remedies for the victims of accidents.

Furthermore, it was held in paragraph 16 thereof, thus:-

“……Hyper technical approach in such matters

can hardly be appreciated. There is no bar to a

claim petition being filed at a place where the

insurance company, which is the main contesting

party in such cases, has its business. In such

cases, there is no prejudice to any party. There is

no failure of justice”.

(underline supplied)

12. Malati Sardar’s case was decided after referring

to the decisions in Mantoo Sarkar v. Oriental

Insurance Company Ltd.

3

and in Kiran Singh’s case

(supra), as mentioned above. A bare perusal of the

2

AIR 1954 SC 340

3

(2009) 2 SCC 244

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decisions in Mantoo Sarkar’s case (supra), Kiran

Singh’s case (supra) and Malati Sardar’s case (supra)

would reveal that in all those decisions the objection

regarding territorial jurisdiction was overruled by the

Tribunal concerned and thereafter compensation was

awarded. It is only at the appellate stage that the

respondents’ objection as to the territorial jurisdiction

was upheld and the award was upturned. Evidently, in

all those cases this Court referred to Section 21 of the

Code of Civil Procedure (for short the ‘CPC’ only) and it

reads thus:-

“21. Objections to jurisdiction.— [(1)] No objection as

to the place of suing shall be allowed by any Appellate

or Revisional Court unless such objection was taken in

the Court of first instance at the earliest possible

opportunity and in all cases where issues are settled at

or before such settlement, and unless there has been a

consequent failure of justice.”

13. A bare perusal of Section 21, CPC would reveal

that objection as to the place of suing is not to be

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entertained by any Appellate or Revisional Court if it

was not taken in the Court of first instance at the earliest

possible opportunity and unless there has been a

consequent failure of justice. While looking into the

object and reasons for the aforesaid provision it is very

clear as to why lack of territorial jurisdiction by itself

was not recognized under it as a reason to make a

judgment/decree a nullity. It is to be noted that it is

quite different and distinct from inherent lack of

jurisdiction which would strike at the very authority of

the Court to try a case and pass a judgment/decree and

would make it a nullity. On a careful consideration of

the provisions under Section 21, CPC, we are of the

considered view that the provisions would undoubtedly

make it clear though taking of an objection as to the

lack of territorial jurisdiction before the Court of first

instance at the earliest opportunity is a condition

required to raise that objection before an appellate or

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revisional Court satisfaction of such condition by itself

would not make an award granting compensation a

nullity inasmuch as in such cases there would not be

inherent lack of jurisdiction in Court in regard to the

subject matter. Therefore, in such cases, correction by

a Court is open, only if it occasions in failure of justice.

The provision thus, reflects the legislative intention that

all possible care should be taken to ensure that the

time, energy and labour spent by a Court did not go in

vain unless there has been a consequent failure of

justice.

14. In the above view of the matter the decision in

Mantoo Sarkar’s case (supra) and Malati Sardar’s case

(supra) that objection of lack of territorial jurisdiction in

an appeal against an award granting compensation

could not be entertained in the absence of consequent

failure of justice, according to us, should be followed

with alacrity and promptitude.

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15. The question in the instant case is, however,

slightly different inasmuch as, here the Tribunal’s

decision itself is to the effect that it lacks territorial

jurisdiction and it was that finding which obtained

conformance under the impugned judgment of the High

Court. A glance at the factual matrix is profitable for

considering the moot point involved in the case on

hand. Firstly, it is to be noted that the claim petition

under Section 166 of the M.V. Act filed in the year 2006

was dismissed on the ground of lack of territorial

jurisdiction only on 06.10.2010. Thus, it is evident that

the Tribunal which was obliged to decide the question

of jurisdiction at the threshold, finding it difficult to

decide the same without letting the parties to adduce

evidence permitted parties to adduce their evidence.

The materials on record would reveal that before the

Tribunal, on behalf of the claimants PW1 to PW3 were

examined and on behalf of opposite party Nos. 1 and 2

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viz., respondents 2 and 3 herein, opposite Party No. 1

Mr. Tula Singh was examined as DW1. Paragraph 7 of

the Tribunal’s judgment would further reveal that the

first respondent herein viz., the insurance company

which was opposite party No. 3 therein, did not

examine any witness in support of its pleadings, but

cross-examined prosecution witnesses. Add to it, it is a

fact that the first respondent-Insurance Company got its

branch within the limits of the Tribunal where the

subject claim petition was filed.

16. In the context of the question emerging for

consideration it is apposite to refer to the relevant

provisions prescribing the forum for adjudication of

compensation arising out of an accident of the nature

specified in sub-section (1) of Section 165 of the M.V.

Act and also the provision prescribing the options

available to a claimant in regard to place(s) for suing for

such compensation viz., sub-section (1) of Section 165

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and sub-section (2) of Section 166 of the M.V. Act. They

read thus:-

“165. Claims Tribunals.—(1) A State Government may,

by notification in the Official Gazette, constitute one or

more Motor Accidents Claims Tribunals (hereafter in

this Chapter referred to as Claims Tribunal) for such

area as may be specified in the notification for the

purpose of adjudicating upon claims for compensation

in respect of accidents involving the death of, or bodily

injury to, persons arising out of the use of motor

vehicles, or damages to any property of a third party

so arising, or both.

*** *** *** ***

166. (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

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application shall contain a separate statement to that

effect immediately before the signature of the

applicant.”

17. The words ‘at the option of the claimant’

employed in Section 166(2) and the options available to

a claimant in regard to places for suing for such

compensation under Section 166 (2), assume relevance

for consideration of the moot question. Indubitably, the

statute indicates that option lies with the claimant to

make application for compensation 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. There can be no

doubt with respect to the position that if more than one

Court has jurisdiction to adjudicate a dispute it will be

open to the party concerned to choose one of the

competent Courts to decide his dispute. Thus, it is

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obvious that merely because the claimant made the

application for compensation not to the Claims Tribunal

having jurisdiction over the area in which the accident

occurred or not to the Claims Tribunal within the local

limits of whose jurisdiction he resides or carries on

business, is no reason to dismiss the application

provided it is filed before a Claims Tribunal where it is

otherwise maintainable. This aspect calls for

consideration not solely confining to strict construction

of the rest of the provision under Section 166 (2) of the

M.V. Act, but by looking into various other authorities,

as well.

18. In the aforementioned context, it is not

inappropriate to refer to the decision of this Court in

United India Insurance Co. Ltd. v. Shila Datta

4,

wherein it was held that an award by Tribunal could not

be seen as adversarial adjudication between litigating

parties to a dispute and in troth, it is a statutory

4

(2011) 10 SCC 509

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determination of compensation on the occurrence of an

accident, after due enquiry.

19. In the decision in Mantoo Sarkar’s case (supra)

after extracting sub-section (2) of Section 166, M.V. Act,

in paragraph 11 thereof, this Court held that M.V. Act is

a special statute and the jurisdiction of the Claims

Tribunal having regard to the terminologies used

therein must be held to be wider than the civil Court.

20. In the contextual situation it is relevant to note that

in Mantoo Sarkar’s case (supra) while considering

predominantly the scope of appellate interference in

view of Section 21, CPC, even after referring to Section

166 (2) of the M.V. Act, this Court made certain

observations which could be, rather, should be attuned

to the situation obtained in the case on hand. This

Court held that a distinction must be made between the

jurisdiction with regard to the subject matter of the suit

and that of territorial and pecuniary jurisdiction and

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further that in the case falling within the former

category the judgement would be in nullity and in the

latter category it would not be. In paragraph 18 thereof,

this Court held thus:-

“18. The Tribunal is a court subordinate to the High

Court. An appeal against the Tribunal lies before the

High Court. The High Court, while exercising its

appellate power, would follow the provisions

contained in the Code of Civil Procedure or akin

thereto. In view of sub-section (1) of Section 21 of the

Code of Civil Procedure, it was, therefore, obligatory

on the part of the appellate court to pose unto itself the

right question viz. whether the first respondent has

been able to show sufferance of any prejudice. If it has

not suffered any prejudice or otherwise no failure of

justice had occurred, the High Court should not have

entertained the appeal on that ground alone.”

21. Section 173 of the M.V. Act provides for filing

appeal by any person aggrieved by an award by a

Claims Tribunal. In the decision in Sharanamma and

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Others v. M.D., Divisional Contr. Nekrtc

5, this Court

held that a bare reading of Section 173 shows that there

is no curtailment or limitations on the powers of the

appellate court to consider the entire case on facts and

law. When that be the position, indubitably, it could be

said that consideration of the question of sufferance or

prejudice in regard to a finding o n territorial

jurisdiction besides its correctness is required in

appeals against awards declining compensation

upholding the objection on territorial jurisdiction of the

opposite parties. Since the provisions for grant of

compensation under Section 166 is one of benevolence

if an illegality resulting in failure of justice is

discernable from the materials on record, even if in

respect of which no specific pleading is taken, the

Court is bound to take it into consideration.

22. The further support of the above view can be

taken from paragraph 16 of the decision in Malati

5

(2013) 11 SCC 517

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Sardar’s case (supra), extracted hereinbefore, wherein

this Court held that provision under Section 166 for

grant of compensation in respect of an accident of the

nature specified in Sub-section (1) of Section 165 being

a benevolent provision for the victims of accidents of

negligent driving, the provision for territorial

jurisdiction has to be interpreted consistent with the

object of facilitating remedies for the victims of

accident. Furthermore, it was held in the said decision

that hyper technical approach in such matters could

hardly be appreciated and there would be no bar to a

claim petition being filed at a place where the

insurance company, which is the main contesting party

in such cases, has its business.

23. In the aforementioned context, it is worthwhile to

note the prejudice rather, failure of justice caused to the

applicant in the case on hand, is evident from the very

award of the Claims Tribunal though it escaped the

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attention of the High Court. The claim petition filed in

the year 2006 was dismissed on the ground of lack of

territorial jurisdiction not at the threshold, but only on

06.10.2010. Dismissal, simpliciter of a claim petition on

the ground of lack of territorial jurisdiction would not

and could not disable the claimant concerned to initiate

another proceeding before the Claims Tribunal of

competence. However, a bare perusal of the award

passed by the Tribunal, to be precise paragraph 21

would reveal that after returning an adverse finding on

the question of territorial jurisdiction against the

claimant, the Tribunal proceeded further and decided

all other issues framed for the consideration viz., issues

No.1 to 4, 6 and 7 (extracted hereinbefore) against the

claimant and in favour of the opposite parties, that too,

after making it clear that it had no occasion to examine

such issues on merits. Paragraph 21 of the award reads

thus:-

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“21. ISSUES NO.1, 2, 3, 4, 6 & 7:

At the main issue (issue no.5) for territorial

jurisdiction of this tribunal has been decided against

the claimants, hence there is no occasion to examine

the other issues on merits. In view of above issue

No.1, 2, 3, 4, 6 and 7 are also decided against the

claimants and in favour of the opposite parties.”

24. There cannot be any dispute with respect to the

fact that when such a finding is entered in respect of

those issues framed, may be after making an

observation that the Tribunal got no occasion to

examine such issues on merits, the claimant would not

be in a position to initiate another proceeding before

another Claims Tribunal having territorial jurisdiction.

In this regard it is to be noted that lacking territorial

jurisdiction cannot be a reason, in view of Section 165

(1), M.V. Act, to say that Claims Tribunal was not having

competence to adjudicate the subject-matter of the

claim petition. Since issues were framed and decided

against the claimant and in favour of the opposite

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parties, whether or not such findings were returned

after examining such issues on merits it would cause

legal trammel in view of the principle of res judicata.

We have already found that a decree dismissing a suit

on the ground of lack of territorial jurisdiction is not a

nullity. Though Section 168, M.V. Act, carrying the

caption ‘Award of the Claims Tribunal’ on perusal, at

the first blush may appear to mean only a decision of

the Claims Tribunal granting compensation to the

claimant concerned. However, that certainly is not the

correct construction of the said provision. Section

169(2), M.V. Act, clothes a Claims Tribunal with all the

powers of a Civil Court. In the decision in Morgan

Securities & Credit (P) Ltd. v. Modi Rubber Ltd.

6 this

Court observed and held that the expression ‘award’

has a distinct connotation and it envisages a binding

decision of a judicial or a quasi-judicial authority. That

apart, Section 173, M.V. Act, provides an appeal against

6

(2006) 12 SCC 642

Page 26 of 38

an award of a Claims Tribunal to the High Court subject

to sub-Section (2) thereof, and it entitles any person

aggrieved by an award of a Claims Tribunal to prefer it

to the High Court.

25. We have already referred to the error, rather an

illegality committed by the Claims Tribunal in deciding

issues 1 to 4, 6 and 7 against the claimant and in favour

of the opposite parties viz., the respondents herein

even after making it clear it had no occasion to examine

them on merits and solely because it returned a

negative finding on the question of its territorial

jurisdiction to maintain the subject claim petition. This

error or mistake that resulted in great prejudice

escaped the attention of the H igh Court while

exercising the power under Section 173, M.V. Act, in

the appeal filed by an appellant herein against the

award of the Tribunal.

26. In this context, it is to be noted that the materials

Page 27 of 38

on record and the discussions of the evidence by the

Claims Tribunal would reveal that there was no serious

dispute regarding the occurrence of accident in

question in which the appellant’s son lost his life and

also of the fact that in the said accident involving the

vehicle insured with the first respondent-the insurance

company. It is true that respondent Nos. 1 and 2 have

disputed the nature of its occurrence. There seems to

be no dispute regarding the fact that the deceased

sustained injuries and succumbed to it instantaneously.

We have already noted that it was after keeping the

claim petition filed in 2006 for about 4 years i.e. only on

06.10.2010 that it was dismissed on the ground of

lacking territorial jurisdiction and that the appeal filed

against the same in the year 2010 was dismissed,

confirming the award passed by the Tribunal, after

about 6 years viz. on 28.11.2016. We have no hesitation

to hold that in the totality of the circumstances, revealed

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from the indisputable factual position there was

absolutely no justification for the High Court to confine

its consideration only on the question of correctness of

the finding on territorial jurisdiction and at the same

time, to hold all the other issues against the claimant(s)

and in favour of the opposite parties.

27. In the above context, it is to be noted that for the

purpose of deciding the issue of territorial jurisdiction,

the Tribunal permitted the parties to adduce evidence

before it. The position obtained in the case would

reveal that the Tribunal had actually proceeded with the

claim petition despite holding the view that it got no

territorial jurisdiction. In such indisputable position, it

is only apposite to refer to Order XIV, Rule 2 of CPC

which mandates a Court to pronounce a judgment on all

the issues. The said provision reads thus:-

“2. Court to pronounce judgment on all issues.—(1)

Notwithstanding that a case may be disposed of on a

preliminary issue, the Court shall, subject to the

Page 29 of 38

provisions of sub-rule (2), pronounce judgment on all

issues.

(2) Where issues both of law and of fact arise in the

same suit, and the Court is of opinion that the case or

any part thereof may be disposed of on an issue of law

only, it may try that issue first if the issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time

being in force, and for that purpose may, if it thinks fit,

postpone the settlement of the other issues until after

that issue has been determined, and may deal with the

suit in accordance with the decision on that issue.”

28. True that in terms of the said provision, the issues

regarding territorial jurisdiction ought to be tried as

primary issues but when it is evident that the issue

could not be decided solely based on the pleadings in

the plaint (here claim petition) and when parties are

permitted to adduce evidence upon finding that it is a

mixed question of law and facts there was absolutely no

justification for not pronouncing an award on all the

issues framed besides the one pertaining to its

Page 30 of 38

territorial jurisdiction. There cannot be any doubt with

respect to the fact that when evidence was permitted to

be let in, may be for such issues the possibility of re-

appreciation and consequent reversal of finding(s) of

the Tribunal cannot be ruled out. But then, if the award

was pronounced not at threshold, but after a very long

lapse of time and confining consideration only on the

issue of territorial jurisdiction and then, answering the

other issues as well against the claimant without

examining them on their own merits, but solely because

of the negative finding on the issue of territorial

jurisdiction, as occurred in the case on hand, it would

defeat the very purpose of the benevolent legislation

providing for grant of compensation under Section 166

of the M.V. Act. As noticed hereinbefore in this case,

the question of territorial jurisdiction was decided by

the Tribunal after about 4 years since the filing of the

claim petition and the appeal filed in 2010 was

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dismissed, confirming the dismissal of the claim petition

after about 6 years. We have also already noted that in

the case on hand a great illegality or error has been

committed by the Tribunal even after observing that it

got no occasion to examine the other six issues but then

deciding those six issues against the claimant and in

favour of the opposite parties. Since a Claims Tribunal

constituted under Section 165, M.V. Act even when

lacking territorial jurisdiction cannot be said to be

lacking jurisdiction on the subject matter in a claim

petition and the award would not be a nullity and

therefore, the findings on other issues would be

binding on the parties. Hence, in the first instance,

failure of justice occurred as the award of the Tribunal

virtually rendered the claimant remediless. In cases of

this nature, sometimes a remand may also be a futility

as passage of such long period may make witnesses

unavailable for examination or re-examination for

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various reasons. Such reasons may also include death

of the witness(s). Since the present imbroglio is

created because of a mistake or error on the part of the

Tribunal, either in proceeding further after returning a

negative finding on the question of territorial

jurisdiction or in not pronouncing award on all issues,

we are of the considered view that the said mistake not

entering on merits and into a findings on issues No.1 to

4, 6 and 7 at paragraph 21 against the claimant and in

favour of the opposite parties without examining them

on merits and hence, they are liable to be set aside in

the light of the salutary maxim ‘Actus Curiae neminem

gravabit’, as no party shall be put to suffer for the

mistake of a Court.

29. We have already referred to the provision under

Order XIV, Rule 2, CPC, observed and held while in

certain circumstances it would be inevitable to

pronounce judgment/award on all issues as mandated

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thereunder. We are not oblivious of the provision

under Section 169 of the M.V. Act. In this regard, it is

apt to refer to paragraph 15 of the decision in Mantoo

Sarkar’s case (supra) where this Court held as under:-

“15. No doubt the Tribunal must exercise jurisdiction

having regard to the ingredients laid down under sub-

section (2) of Section 166 of the Act. We are not

unmindful of the fact that in terms of Section 169 of the

Act, the Tribunal, subject to any rules, may follow a

summary procedure and the provisions of the Code of

Civil Procedure under the Act have a limited

application but in terms of the rules “save and except”

any specific provision made in that behalf, the

provisions of the Code of Civil Procedure would apply.

Even otherwise the principles laid down in the Code of

Civil Procedure may be held to be applicable in a case

of this nature.”

30. Since, there is no specific provision to deal with a

situation akin to the situation in the case on hand, the

said observation in Mantoo Sarkar’s case (supra)

would apply to the case on hand with all its force.

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31. In view of the nature of this case, as observed in

Mantoo Sarkar’s case (supra), we would have even

exercised our extraordinary jurisdiction under Article

142 of the Constitution of India to do complete justice

between the parties by determining the question of

compensation as the accident in question occurred on

07.03.2006. Despite the death of the son of the

appellant in the said accident the fact is that the

claimant did not get compensation despite the passage

of more than 18 years. We have already noted that all

relevant issues were framed by the Tribunal for the

purpose of determination of compensation. However,

even after deciding to permit the parties to adduce

evidence the Tribunal in the instant case, appears to

have confined it for the purpose of deciding the only

question of territorial jurisdiction and therefore, in the

absence of evidence on necessary ingredients for

determination of compensation payable, we are not in a

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position to determine the compensation as in view of

the factual position obtained in the instant case

sufficient to apply the decisions in Mantoo Sarkar’s

case (supra) as also Malati Sardar’s case (supra) to

reverse the finding on territorial jurisdiction. The High

Court has fallen in error in not picking up the illegalities

resulting in failure of justice and to resolve them

appropriately. For the purpose of determining the

compensation in respect of a case of this nature the

relevant factors and dates necessary for computing

ultimately the quantum of compensation, are not

available on record, before us. Though, we are pained

and peeved, we have no option, but to remand the

matter after a long period of 18 years, which could have

been avoided had the Tribunal followed Order XIV,

Rule 2, CPC. Taking note of such circumstances and the

prejudice already caused to the claimant(s) and further

that directing the Motor Accident Claims Tribunal at

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Nainital to restore MACP No.137/2006 and fix a date for

the appearance of the parties and then proceed to

consider the question of grant of compensation,

ignoring its finding on territorial jurisdiction would

have no prejudice to the parties as they had already

examined witnesses before the Claims Tribunal, we are

inclined to remand the matter to the Motor Accident

Claims Tribunal at Nainital. We hold that it would not

cause any prejudice to the opposite parties as they

have already filed the written statements before the

Tribunal despite objecting to the territorial jurisdiction

and even thereafter have chosen to adduce oral

evidence before the Tribunal, to some extent. It is also

a fact that the first respondent-insurance company got

its office in Nainital or in other words it is conducting its

business within the limits of Motor Accident Claims

Tribunal at Nainital and the fact is that cross-

examination of witnesses were done on its behalf as

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well. There cannot be any doubt with respect to the fact

that the subject matter of claim is within jurisdiction of

the Claims Tribunal, at Nainital.

32. For all these reasons, we set aside the impugned

judgment and order dated 28.11.2016 passed by the

High Court of Uttarakhand at Nainital in appeal from

order No.414 of 2010 arising from the Award in MACP

No.137/2006 and also the award dated 06.10.2010

passed by the Motor Accident Claims Tribunal at

Nainital. To enable the Tribunal to proceed further and

to decide the claim petition on merits, MACP

No.137/2006 is restored into its file and in view of the

long lapse of time there will be a further direction that

the Tribunal shall conclude the entire exercise after

permitting parties to adduce further evidence, if any,

within a period of six months from the date of receipt of

a copy of this judgment.

33. The parties shall appear before the Tribunal either

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in person or through counsel on 20.05.2024 and

thereupon, the Tribunal shall conclude the proceedings

within the above stipulated time. In the peculiar

circumstances to comply with the direction, the Registry

shall forward copies of this judgment to all the parties.

The appeal is disposed of as above.

...............................J.

(C.T. RAVIKUMAR)

.............................J.

(RAJESH BINDAL)

New Delhi;

February 08, 2024