Allowed

Oriental Insurance Company Ltd. v. Anarwa Devi and Ors.

Patna HC5 Oct 2012MA/782/2009

Case brief

AI extract

What is this about?

The Patna High Court allowed a miscellaneous appeal holding that an Indian court lacked jurisdiction to entertain a motor vehicle claim arising from an accident in Nepal. The court set aside the lower Tribunal's award and remitted the record, refunding the security deposit.

What did the court decide?

The Miscellaneous Appeal was allowed; the award and judgment dated 29.06.2009 were set aside; the refunded sum of Rs.50,000/- was ordered to be returned to the appellant.

Oriental Insurance Company Ltd. Vs Anarwa Devi and Ors. — Banking and Recovery | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Miscellaneous Appeal No.782 of 2009

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Against the judgment and award dated 29.06.2009 passed by Sri Harendra Nath Tiwary, 1^st Additional District Judge-cum-Motor Vehicles Claims Tribunal, Sitamarhi in Claim Case No. 31 of 2004/89 of 2007.

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=========================================================== 1. Oriental Insurance Company Ltd. Divisional Office Motijeel Muzaffarpur Through Sri Anil Kumar Biswas And Duly Constituted Attorney The Oriental Insurance Company Ltd., Regional Office - Pirmohani, Kadam Kuan, Patna (Opp. Party No.3)

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.... .... Appellant/s Versus

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Anarwa Devi & Ors.Anarwa Devi W/O Late Dip Lal Thakur R/O Vill.- Bathnaha East Tola, P.O. And P.S.- Bathnaha, Distt.- Sitamarhi

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Mukesh Kumar (Minor) S/O Late Dip Lal Thakur R/O Vill.- Bathnaha East Tola, P.O. And P.S.- Bathnaha, Distt.- Sitamarhi

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Rekha Kumari (Minor) D/O Late Dip Lal Thakur R/O Vill.- Bathnaha East Tola, P.O. And P.S.- Bathnaha, Distt.- Sitamarhi

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Ranjit Pathak S/O Jaideo Pathak R/O Vill.- Bathnaha, P.O. And P.S.- Bathnaha, Distt.- Sitamarhi

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Kaushal Jha @ Kausal Kishore Jha S/O Shahdeo Jha R/O Vill.- Kodarkat, P.O.Singhhariya, P.S. Singhgara, Distt.- Sitamarhi

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.... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. ASHOK PRIYADARSHI For the Respondent/s : Mr. Surendra Kishore Thakur Mr. Alok Kumar Jha.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL JUDGMENT

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Date: 05-10-2012

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Ajay Kumar Tripathi, J., Appellant Oriental Insurance Company Limited

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has brought the present appeal against the judgment dated 29.06.2009 and Award dated 16.11.2009 passed by the Motor Vehicles Claims Tribunal-cum-1^st Additional District Judge, Sitamarhi in Claim case No. 31 of 2004/89 of 2007.

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The short facts are that on 16.07.1999 Bus No. BR-06P/ 0095 met with an accident at about 8.00 P.M. in the

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Patna High Court MA No.782 of 2009 dt.05-10-2012

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district of Sarlahi located in Nepal. In the above accident one Deep Lal Thakur was initially injured and he succumbed to his injuries which led to institution of a claim case before the court of the Motor Vehicles Accident Claims Tribunal (hereinafter referred to as the Tribunal) at Sitamarhi. The Bus was carrying Baratis and on the way back to Sitamarhi, the accident happened. It is not in dispute that the accident did occur in the territorial jurisdiction of Nepal and not in India.

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The Primary objection which has been raised against the Award is that the Indian court had no business to entertain a claim against the accident in question because the cause of action arose in Nepal. The liability of the insurance created due to issuance of cover note in India, will not extend the applicability of Indian law to the accident/incident which happened in Nepal. They also submit that the Insurance Company was hauled up by the Nepal authorities in Nepal and a sum of Nepali Rs.17,500/- was fixed as their liability. This payment was made by the Insurance Company. However, since the amount did not satisfy the claimants, a claim case was lodged at Sitamarhi.

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Submission of the learned counsel with regard to maintainability of such a claim merits consideration for the reason that even though cover note was issued by the Insurance Company which covered the territorial area of Nepal also but that does not mean that the cause of action was issuance of the cover note or that a claim could be lodged in India for an accident which happened in Nepal. Insurance Company had a liability but that liability would

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Patna High Court MA No.782 of 2009 dt.05-10-2012

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be dealt with in accordance with the Municipal law of that country or any special law which may be in place but it cannot be stretched to mean that the Indian Motor Vehicles Act will also apply to an accident/incident which happened in Nepal or a second claim arising from the same cause of action in Nepal would be maintainable in India.

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Contention of the learned counsel for the respondents is that no issue on this question was raised or framed or that no evidence of any payment etc. was brought on record by the Insurance Company before the Tribunal. Therefore, the issue cannot be entertained or gone into. There may not by an occasion for interfering with the award in the facts and circumstances indicated in the award itself.

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Submission on behalf of the respondents is not required to be answered by this Court for the reason that they have no relevance to the reasoning or in the manner in which the award has been given. The basic question which has been raised by the Insurance Company is whether such a claim was entertainable in the very first place by an Indian Court at Sitamarhi for an accident which happened in Nepal.

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The Court is of the opinion that filing of claim case or non taking of objection in the first place by the Insurance Company before the Tribunal does not take away the basic legal question which stares the parties to the dispute. The cause of action in the present case arose within the territorial jurisdiction of Nepal and if that be so, any claim against the appellant Insurance

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Patna High Court MA No.782 of 2009 dt.05-10-2012

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Company could be brought only in Nepal and not in any court in India merely because the person so dead belongs to India or that the Bus was registered in India.

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The Court, therefore, is, prima facie, satisfied that the award in question is required to be interfered with and the same is set aside. This Misc. appeal is allowed. However, it is open to the respondents to lodge a claim in a forum or a court in Nepal if it is still maintainable.

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Let a sum of Rs.50,000/- which has been deposited by the appellant Insurance Company under the provision of the Motor Vehicles Act shall now be refunded to the appellant by process of law, preferable within a period of eight weeks from the date of communication or production of a copy of this order.

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The original lower court record which has been received in the present appeal will be remitted back to the Tribunal concerned by the office forthwith.

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(Ajay Kumar Tripathi, J)

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Patna High Court The 5^th October, 2012 AMIN/ (NAFR)

Oriental Insurance Company Ltd. v. Anarwa Devi and Ors.

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Oriental Insurance Company Ltd. v. Anarwa Devi and Ors.

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