1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay F.M.A. 344 of 2020 With CAN 1 of 2019 (Old No. CAN 3665 of 2019) Munmun Kar & Ors. -Vs- The National Insurance Co. ltd. & Anr. For the Appellants/Claimants : Mr. Saidur Rahaman For the Respondents/ Insurance Company : Mr. Parimal Pahari Heard & Judgment on : 07.05.2025 Ananya Bandyopadhyay, J.:- 1. Both the Learned Advocates representing the appellants/claimants and the respondents/Insurance Company are present. 2. The instant appeal had been filed against the judgment and award dated 16.08.2018 passed by the Learned Additional District Judge, Motor Accident Claims Tribunal, 1st Court, Islampur, Uttar Dinajpur in M.A.C. Case No. 49 of 2016. 3. Four claimants had filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, Additional District and Sessions Judge, 1st Court being MAC Case No.49/2016, claiming an award 2 of Rs. 20,50,000/- with interest whereby the aforesaid deceased expired due to a road traffic accident on 22/02/2016. 4. The offending vehicle, a truck bearing Registration No. WB-15-A/8695 hit the victim rashly and negligently while the victim was driving a taxi. 5. The victim expired on the spot and the post mortem of the dead body was held at Burdwan Medical College and Hospital. 6. Subsequently, based on a complaint, Jamalpur P.S. Case No. 44/16 dated 22/02/2016 under Sections 279/338/304 (A)/427 of the Indian Penal Code and Jamalpur P.S. Case No. 05/16 dated 22/02/2016 was instituted against the driver of the offending truck as aforesaid. 7. The owner of the offending vehicle despite receiving summons failed to appear and the case proceeded ex parte against him. 8. The respondent, the National Insurance Co. Ltd. contested the aforesaid MAC case. 9. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and dismissed the claim. 10. The Learned Advocate for the appellant submitted as follows :- a. The claim case under the beneficial legislation could not be dismissed in any technical ground and that the same should have been dealt with sympathetically. b. The claim case should not have been dismissed on the point of jurisdiction without considering that the claimants at the time of filling of the claim case shifted their residential to 3 Islampur being the paternal place of the claimant no. 1 as they had the capacity to live at Howrah due to financial stringencies having lost the sole bread earner of the family c. The claimants had filed the claim case at their present address within the jurisdiction of the Learned Tribunal at Islampur. d. The dismissal of a claim case for default was not conclusive as the same had not been determined on merit and as such filing of another case was not barred. e. The claim case should not have been dismissed on the point of jurisdiction or on the technical ground more so the claimants were residing in the place having jurisdiction of the Learned Tribunal at Islampur, Uttar Dinajpur. f. The Learned Tribunal Judge ought to have decide the claim case on merit instead of dismissing the same on the point of jurisdiction g. the claim case is liable to be allowed to it's entirety along with interest @ 10% p.a. from the date of filing of the claim and to be borne by the Insurer of the offending vehicle being the respondent no. 1 herein. 11. The learned Advocate representing the respondents/Insurance Company submitted that the MAC Case No. 49/2016 was dismissed on the ground of maintainability. 4 12. Considered the rival contentions of the learned Advocates representing the respective parties. 13. The impugned Judgment and order passed by the learned Tribunal, inter alia, observed as follows:- “According to the case of the claimants the accident was occurred within the jurisdiction of the Jamalpur Police Station, Burdwan. P.W. 1, i.e., one of the claimants at the time of her cross-examination has said that at the relevant time of incident they used to reside at Howrah under Police Station Jagacha as she was married there at Howrah and they have filed on MAC Case No. 93/2016 before the Court at Howrah claiming for the compensation in regard to the said accident. From Exbt. 9, i.e., the information slip issued Fast Track, 2nd Court, Howrah, it appears that the said MAC Case No. 93/2016 filed by the present claimants before the said Tribunal has been dismissed vide order dated 25.01.2017. As it appears that the claimants have filed their application for claim before the Tribunal at Howrah having its jurisdiction and the said case has been dismissed for default. The present claimants instead of taking necessary legal steps as available according to the provision of law before the said Tribunal at Howrah have came before this Tribunal which has no jurisdiction, as according to the claimant they used to reside within the jurisdiction of Howrah at the relevant time and there is no case of the claimants that either of the opposite parties have their residence or office within the jurisdiction of this Tribunal”. 5 14. The learned Advocate representing the appellants/claimants relied on a decision which, inter alia, stated as follows:- “The primary ground on which transfer has been sought is that the accident had taken place at Siliguri in the district of Darjeeling, West Bengal and, therefore, it would be expedient for the MACT at Darjeeling to decide the claim petition. The provisions of the Act do not make it mandatory for the claimants to lodge an application for compensation under Section 166 thereof before the MACT having jurisdiction over the area where the accident occurred. On the contrary, sub-section (2) of Section 166 provides an option for the claimants to approach the MACT within the local limits of whose jurisdiction they (claimants) reside or carry on business or the defendant resides. The claimants having chosen the option to approach the MACT, Farrrukhabad at Fatehgarh, U.P., a forum that law permits them to choose, no grievance can be raised by the petitioner. The contention is misconceived and, hence, stands overruled. It is next urged that since all the witnesses of the petitioner are from Siliguri, language could be a barrier. The contention has been urged only to be rejected. In a country as diverse as India, it is no doubt true that people speak different languages. There are at least 22 (twenty two) official languages. However, Hindi being the national language, it is expected of the witnesses who would be produced by the petitioner before the MACT, Fatehgarh, U.P. to communicate and convey their version in Hindi. If the contention of the petitioner is to be accepted, it is the 6 claimants who would be seriously prejudiced not being in a position to communicate and convey their version in Bengali.” 15. The judgment relied upon by the learned Advocate representing the appellants/claimants pertained to a transferred petition. The appellants/claimants after the dismissal of the MAC Case No. 93/2016 by the Fast Track, 2nd Court, Howrah vide order dated 25.01.2017 filed the MAC Case No. 49/2016 within the jurisdiction of Islampur Court. Such filing by a subsequent claim case upon dismissal of the earlier case on default on the selfsame accident between the common parties cannot be similarly adjudicated in terms of the referred decision as aforesaid. In view of the beneficial legislation the appellants/claimants are given the liberty to approach the learned Tribunal at Howrah for restoration of The MAC Case No. 49/2016 which had been dismissed for default and pursue the same in accordance with law. 16. The instant appeal is disposed of accordingly. 17. The pending applications, if any, stands disposed of. 18. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. (Ananya Bandyopadhyay, J.) Srimanta, A.R.(Ct.)