Smt. Sheel Kaur vs Union of India and another

Bakhshi Ishwar Singh, J.—This is an application for transfer of claims proceedings under the Fatal Accidents Act, pending before the

Accidents Claims Tribunal, Jammu.

In this case a claim for the recovery of Rs. 10,000/- as damages was filed in the Court of District Judge, Jammu, on 8-8-1967. This suit was

filed in forma pauperis and was heard by that Court. The claim was with regard to the death of one, Charan Singh who was knocked down by an

Air Force vehicle on 21st of October, 1966. The said charan Singh died on spot and his heirs filed the present suit. The suit was tried by the

District Judge and it was transferred to the Court of the Additional District Judge, Jammu, on 20-1-1972. The Additional District Judge heard the

arguments on 11-2-1972 and reserved judgment for 24-2-1972. Although no order is on the file transferring these proceedings to the Accidents

Claims Tribunal but from the order of the Tribunal dated 13-3-1972 it appears that the case was transferred to the said Tribunal sometime before

the judgment could be delivered by the Additional District Judge.

The present application for transfer has been made by the petitioner on the ground that the Claims Tribunal has no jurisdiction to try the suits

which had already been filed in the Civil Courts and the accident had taken place before the constitution of the Tribunal. As the Claims Tribunal

had no jurisdiction to try the said suit so the petitioners wanted it to be transferred back to the Court of the Additional District Judge, Jammu.

The first point which falls for consideration in this case is whether the Claims Tribunal after its constitution can try the claims with regard to the

accident which had taken place before its constitution.

Secondly, whether a suit, filed with regard to an accident having taken place before the constitution of the Tribunal, could be transferred to the

Claims Tribunal.

In order to appreciate these points it is necessary to refer to the provisions of the Motor Vehicles Act. Motor Accidents Claims Tribunals are

constituted by a Notification of the State Government for such areas as may be specified therein and these Tribunals are constituted for the

purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injuries to persons arising out of the

use of Motor Vehicles or damages to any property of a third party so arising. Section 110A provides for making of the application. It deals with

the persons who can make the application to the Tribunal where it can be made and the limitation for the same. Section 110-C gives the procedure

and powers of the Claims Tribunals According to Clause 2 of this section the Claims Tribunal has been given the power of a Civil Court for certain

specified purposes. Then the most relevant provisions for the purpose of this case is Section 110-F which reads as under:-

Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim

for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be

taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.

According to this Section whenever a Claims Tribunal is constituted for any area the Civil Court ceases to have jurisdiction to entertain any

question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. This clearly shows that the

jurisdiction of the Civil Courts gets barred to entertain the claims which could be filed before the Claims Tribunal. This section is not retrospective

in its operation. As such civil actions which are already pending before a Civil Court can be continued to be tried by a Civil Court. The Civil Court

does not cease to function with regard to those cases. On this point the following authorities can be cited with benefit:-

1970 ACJ 50 (Raj); 1968 ACJ 239 = (AIR 1968 Goa 70); 1966 Acc CJ 19 (Mad) and Manibai and Another Vs. Raj Kumar Harpal Deo and

Another, .

In 1966 ACJ 19 (Mad) (Supra) S. Ramchandra Iyer, Chief Justice while delivering the judgment of the Madras High Court observed:-

A plain reading of the sections referred to above makes two thinks clear (1) that Section 110-F which takes away the jurisdiction of the Civil

Court was not intended to be retrospective so as to affect the jurisdiction of the Civil Court in respect of suits or actions which it had entertained

before the constitution of the Tribunal under S. 110 (1); and (ii) sub-clause (3) of S. 110-A which provides for a time limit for the filing of

application for compensation as well as the condoning of the delay in the presentation of such an application, postulates the previous existence of

the Tribunal.

Therefore, the intention of the Legislature must have been that the bar of the jurisdiction of the Civil Court enacted in Section 110-F must only be

in regard to matters in respect of which claims had not been entertained by the Civil Court before the constitution of the Tribunal. The terms of that

section which provide that no Civil Court shall entertain any question therefore mean that it cannot, after the constitution of the Tribunal under the

Act take cognizance of a suit or other proceeding in respect of such claims. If before the constitution of the Tribunal the Civil Court had entertained

a suit or proceeding respecting such claim, there is nothing in the Motor Vehicles Act to take away its jurisdiction. As Jagadisan, J., has pointed

out, there is no provision in the Motor Vehicles Act for transfer of pending actions to the Claims Tribunal.

A similar view was expressed by Patel, J. who wrote the judgment for the Division Bench of the Bombay High Court in Manibai and Another

Vs. Raj Kumar Harpal Deo and Another, and held as under:-

It is true that once a Claims Tribunal is constituted u/s 110 of the Motor Vehicles Act, 1939, the Civil Courts' jurisdiction is excluded, irrespective

of whether the accident took place before the constitution of the Tribunal or after it, but the provisions of Section 110-F do not affect the

continuance of proceedings commenced in the Civil Court prior to the constitution of the Tribunal. The said provisions are not retrospective.

To the same effect is 1968 ACJ 239 = (AIR 1968 Goa 70) (supra) which is the judgment of R. S. Bindra Judicial Commissioner Goa, Daman

and Diu.

The Rajasthan High Court in 1970 ACJ 50 (Raj) has also expressed the similar view.

The Division Bench of the Madhya Pradesh High Court in AIR 1964 Madh Pra 133 has also taken the similar view and has held as under:-

Section 110-F of the Act which was introduced by the Amendment of 1956 does not affect the right to file a suit in respect of a cause of action

which had accrued before the constitution of the Accidents Claims Tribunal. A Civil Court has jurisdiction to entertain a claim for compensation

instituted after the constitution of the tribunal in respect of an accident occurring before its constitution. The tribunal has no concurrent jurisdiction

to entertain claims for compensation in respect of injuries caused before the constitution of the tribural.

From the above discussion it is clear that the Civil Court of Additional District Judge did not cease to have jurisdiction to continue the hearing

of this suit and in turn there is no provision in the Motor Vehicles Act to transfer the pending actions before the Civil Court to the Claims Tribunal.

As such the initial transfer of this case to the Claims Tribunal was wrong. Therefore this case cannot be tried by the Claims Tribunal and should be

tried by the Additional District Judge. Jammu.

The next point which requires consideration is whether this Court has powers to withdraw this case from the Claims Tribunal.

In order to find out whether such a power exists in the Court we will have to consider the powers given to the High Court under the Motor

Vehicles Act. The High Court has been made the Court of Appeal according to Section 110-B of the Motor Vehicles Act and all appeals from the

awards of the Claims Tribunal which are above Rs. 2,000/- lie to the High Courts. When the High Court has the appellate powers and acts as

such ipso facto it does not get the revisionary jurisdiction under Sec. 115. It will further be clear that according to Section 110-A (3) the Civil P.

C. has been made applicable to a restricted extent which does not give the revisionary power to the High Court. This is also the view taken by the

Allahabad High Court in 1971 ALJ 180 (All). But that is not. the end of the matter. The High Court has the powers of superintendence under Art.

227 of the Constitution of India corresponding to Sec. 104 of our State Constitution. These supervisory powers were used by the Allahabad High

Court in the above quoted decision Satish Chandra and Others Vs. State of Utter Pradesh, . Although it held that no revision lay but the revision

petition was allowed to be converted into a petition under Arts. 226 and 227 and the impugned order was set aside. Similarly in 1966 ACJ 19

(Mad) (supra) the revisional powers under Art. 227 of the Constitution of India were used and the petitions were allowed. So the action can be

taken under the said Article or the corresponding Sec. 104 of our Constitution.

Apart from this aspect, this case has been transferred to the Claims Tribunal by order of this Court as I am told by the counsel for the parties,

so the order transferring this case to the Claims Tribunal which was not correct can be recalled by the Court and the case can be withdrawn to

restore status quo ante.

For the foregoing reasons I hold that the suit was wrongly transferred to the Claims Tribunal which is withdrawn back from it. The case will go

back to the Additional District Judge. Jammu, for disposal of the same. He will proceed with the suit from the stage it was transferred to the Claims

Tribunal.

Under the special circumstances of this case I leave the parties to bear their own costs.