# Smt. Seema Pandey v. Manoj Kumar & Ors

- **Citation:** (2016) 5 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-seema-pandey-v-manoj-kumar-ors-43821
- **Pages:** 7

## Text

284 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Bihar, reported in (2002) 10 SCC 688 and Anil Kumar and others vs. M.K. Aiyappa and another,
reported in (2013) 10 SCC 705.

12. It was pointed out that no counter affidavit has been filed by opposite party No. 2 till date in the
present case. Though, he is represented by his counsel who has also not appeared to contest the matter.
Moreover, he was given time by this Court on 26.04.2016 to apprise this Court whether opposite party No. 2
has applied for and obtained sanction from the competent authority for prosecution of the applicant.

13. Shri Imran Ullah, learned Additional Advocate General has not disputed the proposition of law, as
has been enunciated by Hon'ble the Apex Court in the case Manoranjan Prasad Choudhary vs. State of
Bihar and Anil Kumar and others vs. M.K. Aiyappa (supra). He submitted that as the opposite party No. 2 is
a private person, hence he was under an obligation to apply and obtain a valid sanction from the competent
authority for prosecuting the applicant for the offence in question which he has not done. He also has not
disputed the fact that the court, which allowed the protest petition was not the competent court dealing the
Prevention of Corruption cases. Therefore, the order, which was passed by it, was also without jurisdiction.

14. Considering the submissions advanced by learned counsel for the parties, it appears from the record
that the opposite party No. 2 is a private person and he without obtaining a prior sanction from the competent
authority for the prosecution of the applicant, who is a public servant, has lodged the FIR against him.
Moreover, the court, which has entertained the protest petition i.e. court of Additional District and Sessions
Judge, court No. 6, Bulandshahr was not having jurisdiction to try the cases under the Prevention of
Corruption Act and it has allowed the protest petition filed by opposite party 2 and rejected the final report
and further he took cognizance of the offence and summoned the applicant for trial. Hence, the order taking
cognizance and summoning the applicant by it itself is not sustainable in the eyes of law as there was no valid
sanction for prosecution of the applicant from the competent authority. Thus, in view of the above and the
law laid down by the Apex Court in the cases referred to above, the impugned order passed by the trial court
is hereby set aside. Hence, the impugned summoning order as well as proceedings of the aforesaid case are
hereby quashed.

15. Accordingly, the application stands allowed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2016

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal From Order No.- 3936 Of 2008

Smt. Seema Pandey ...Appellant
Versus
Manoj Kumar & Ors. ...Respondents
5 All. Smt. Seema Pandey Vs Manoj Kumar & Ors.

285
Counsel for Appellant:
Arvind Kumar Tewari, Pradeep Kumar

Counsel for Respondents:
R.A. Pandey, R.S. Pandey, Sukesh Kumar

In the present case learned tribunal by the impugned order dated 2.9.2008 had returned the claim petition
stating that to present it before the competent tribunal. It was clear from the records that the accident had
taken place at district Agra, therefore, claim petition could have been filed at Agra but it was filed in Etawah.

The issue has been decided by the Apex Court in the case of Mantoo Sarkar Vs. Oriental Insurance
Company Limited and others, 2009 (2) SCC 244 it stated that "to the effect that such claim petition
could have been filed at a place, in case, any of the claimant is living and mere technicality of territorial
jurisdiction should not come in way particularly when no prejudice to the rights of the opposite parties has
been caused."

Court held that in the light of the judgment rendered by Hon'ble Apex Court no prejudice would have been
caused to the opposite parties when they have already submitted their documentary as well as oral evidence
before the learned Tribunal at Etawah. Therefore, returning the claim petition at such final stage for technical
reasons was not justified. As such the impugned order dated 2.9.2008 passed by learned Tribunal, Etawah is
set aside. The matter is remanded back to the learned Tribunal, Etawah for deciding the claim petition on its
own merits.

The appeal stands allowed.

List of Cases Cited:

1. Mantoo Sarkar Vs. Oriental Insurance Company Limited and others, 2009 (2) SCC 244

2. Malti Sardar Vs. National Insurance Company Limited, 2016 (3) SCC 43.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. No one is present on behalf of the respondents even in the revised call.

2. The case is of the year 2008 and the matter is listed for final hearing/disposal.

3. I have heard Sri Pradeep Kumar, learned counsel appearing for the appellant.

4. Appellant herein Smt. Seema Pandey w/o of late Satish Chand Pandey is claimant no. 1
in the claim petition being M.A.C.P. No. 645 of 2006 (Smt. Seema Pandey and others Vs. Manoj
Kumar and another). Smt. Seema Pandey and others have filed the claim petition before the Motor
Accident Claims Tribunal, Etawah under Section 166 of the Motor Vehicles Act, 1988 claiming
compensation for accidental death of her husband; father of claimant no. 2-Kumari Rakhi, Claimant
No. 3-Kumari Raksha and claimant no. 4-Kunal; and son of claimant no. 5-Sri Kripashankar and
claimant no.6-Smt. Sarojani.
286 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Facts of the present case are that the claim petition was returned by the learned Tribunal
by the impugned order dated 2.9.2008 for being presented before the competent tribunal. It was
alleged in the claim petition that Satish Chand Pandey met with an accident on 30.8.2006 at about
10 p.m. when he was coming from Ramleela ground side to Bijlighar, Police Station Rakabganj,
district Agra on his motorcycle, he was dashed by one three wheeler No. UP 80 AS 9909, which
was allegedly coming from the opposite direction and crossed the divider without giving horn and
caused the accident. The accident had taken place in district Agra. It was stated that the deceased
was having his wholesale medicine shop in Delhi and after the death of Satish Chand Pandey,
claimant nos. 1 to 6 had to leave Delhi and claimant nos. 2, 3 and 4 started living with grand
parents, namely claimant nos. 5 and 6 at resident Diviapur Road, Govindnagar, district Auraiya.
The appellant-claimant no. 1 somehow could not adjust at district Auraiya and therefore, she came
back to Etawah and started living with her parents at Village Bhulpura, Post Dabora, P.S. Ekdil,
district Etawah.

6. The claim petition was filed in district Etawah. Documentary as well as oral evidence
was led before the learned Tribunal at Etawah and issues were framed on 9.3.2007. While deciding
issue no. 1, which was regarding factum of accident, learned Tribunal held that the claim petition
could have been filed before tribunal either at district Agra or at Delhi or at Gurgaon (Haryana) or
at district Auraiya and that the tribunal at Etawah has no jurisdiction to entertain the petition.

7. From the record it is quite clear that the accident had taken place at district Agra,
therefore, claim petition could have been filed at Agra; the deceased was having wholesale
medicine shop in Delhi and at the time of accident admittedly the claimants were residing in Delhi,
therefore, they could have filed the claim petition before the tribunal concerned in the district of
Delhi; since the Insurance Company, who has insured the three wheeler that has caused the
accident, has registered office at Gurgaon, it could have been filed at Gurgaon; claimant nos. 2 to 6
are resident of district Auraiya as after the accident claimant nos. 2 to 4 had to leave Delhi and
started living with their grand parents at Auraiya, therefore, they could have also maintained the
claim petition at Auraiya. In view of the provision of Section 166(2) of the Motor Vehicle Act,
1988, the conclusion drawn by the learned Tribunal is correct.

8. In so far as jurisdiction of motor accident claims tribunal at district Etawah is concerned,
there is no dispute that at the time of accident claimant no. 1 was residing in Delhi but after death
of her husband she had to leave Delhi and as per claim petition started residing with her parents at
Etawah. In paragraph 23 (d) of the claim petition it was specifically asserted by the claimant no. 1
that because of untimely demise of her husband, she had to leave her children with the grand
parents and she came to reside with her father and entire family is facing dislocation and financial
crisis.

9. Submission of learned counsel for the appellant is that she could have maintained the
claim petition at Etawah. Learned counsel for the appellant has submitted that the learned Tribunal
has noticed and admitted that claim petition could have been filed in district Auraiya as claimant
nos. 2 to 4 are residing there. He further submitted that there was no justification in returning the
5 All. Smt. Seema Pandey Vs Manoj Kumar & Ors.

287
claim petition for filing before tribunal at other place whereas it was not in dispute and that there
was no evidence to the contrary that the claimant no. 1 is residing at Etawah and therefore, she
could have maintained claim petition at Etawah and there was no legal impediment in filing the
claim petition in Etawah. He further submitted that no prejudice is caused to the opposite parties in
case the claim petition is maintained at Etawah.

10. I have considered the submission of learned counsel and have perused the record of the
appeal. The issue involved is purely legal in nature.

11. To resolve the issued involved a reference may be made to a judgment rendered by
Hon'ble Apex Court in the case of Mantoo Sarkar Vs. Oriental Insurance Company Limited
and others, 2009 (2) SCC 244 to the effect that such claim petition could have been filed at a
place, in case, any of the claimant is living and mere technicality of territorial jurisdiction should
not come in way particularly when no prejudice to the rights of the opposite parties has been
caused. In the aforesaid case the Insurance Company had a branch at Nainital; the accident had
taken place outside the jurisdiction of the Nainital Tribunal; the claimant was admitted in the
hospital at Bareilly and thereafter he had shifted to Pilibhit; and at the time of filing of claim
petition the claimant was working as a labourer in Nainital. Relevant paragraph nos. 11, 12, 15, 16,
20 and 23 of the aforesaid judgment are quoted as under:-

11. Section 166 (2) of the Act reads as under :-

"166 - Application for compensation

(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."

The said Act is a special statute. The jurisdiction of the Tribunal having regard to the
terminologies used therein must be held to be wider than the civil court.

12. A claimant has a wide option. Residence of the claimant also determines
jurisdiction of the Tribunal. What would be a residence of a person would, however, depend upon
the fact situation obtaining in each case.

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
288 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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 the MACT at Nainital.

20. A distinction, however, must be made between a jurisdiction with regard to
subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case
falling within the former category the judgment would be a nullity, in the latter it would not be. It is
not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a
matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the
jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court
should not have, in absence of any finding of sufferance of any prejudice on the part of the first
respondent, entertained the appeal.

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 judgment is to be complied with, 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." (emphasis supplied)

12. It may also be noticed that the view in Mantoo Sarkar (supra) has been re-affirmed in
the case Malti Sardar Vs. National Insurance Company Limited, 2016 (3) SCC 43. Relevant
paragraph nos. 12, 14 and 16 of the aforesaid judgment are also quoted as under:-

"12. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital.
Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the
hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However,
at the time of filing of the claim petition he was working as a labourer in Nainital District. The
High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by
the Tribunal to the effect that since the office of the insurance company was at Nainital, the
Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the
jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions
of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial
5 All. Smt. Seema Pandey Vs Manoj Kumar & Ors.

289
jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be
drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial
and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not
in the latter.

14. We are thus of the view that in the face of judgment of this Court in Mantoo
Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in
absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction.
Moreover, the fact remained that the insurance company which was the main contesting respondent
had its business at Kolkata.

16. The provision in question, in the present case, is 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 accidents. 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 parties in such
cases, has its business. In such cases, there is no prejudice to any party. There is no failure of
justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary
view taken by the High Court cannot be sustained. The High Court failed to notice the provision of
Section 21 CPC."

 (emphasis supplied)

13. A perusal of impugned order indicates that the learned Tribunal on one hand, has held
that the tribunal at district Auraiya would have the jurisdiction in view of the residence of claimant
nos. 2 to 4 in particular, (who are children of the deceased and claimant no. 1) and claimant nos. 5
and 6 also, who are parents of the deceased, but no cogent reason has been given as to why claim
petition has been returned for filing before some other tribunal whereas there was no evidence to
the contrary and there was no serious objection by any of the opposite parties, when claimant no. 1Seema Pandey the appellant herein, was resident of district Auraiya. Further impugned order
nowhere indicates that any prejudice is caused to any of the opposite parties, who infact, has not
even raised any objection, particularly, claiming any prejudice on this account. On the contrary,
documentary as well as oral evidence was led before the learned Tribunal.

14. In any view of the matter, in the light of the judgment rendered by Hon'ble Apex Court
as referred to above, no prejudice would have been caused to the opposite parties when they have
already submitted their documentary as well as oral evidence before the learned Tribunal at
Etawah. Therefore, returning the claim petition at such final stage for technical reasons was not
justified. As such the impugned order dated 2.9.2008 passed by learned Tribunal, Etawah is set
aside. The matter is remanded back to the learned Tribunal, Etawah for deciding the claim petition
on its own merits.

15. Since the claim petition is of the year 2006, therefore, it is expected that the Tribunal
shall make all efforts to dispose of the claim petition as expeditiously as possible.
290 INDIAN LAW REPORTS ALLAHABAD SERIES
16. With the aforesaid observations the appeal stands allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 4846 Of 2014

Ajay Patel @ Sarvan ...Appellant
Versus
The State Of U.P. ...Respondent

Counsel for Appellant:
J.B. Singh

Counsel for Respondent:
Govt. Advocate

This appeal is arising from the judgement and order dated 23.09.2014 passed by the learned Additional
Sessions Judge in Sessions Trial No. 21 of 2012 (State vs Ajay Patel alias Sarvan) arising out of Case Crime
No. 210 of 2011, under sections 363, 366-A, 376(2) IPC, whereby the accused appellant Ajay Patel alias
Sarvan has been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 10,000/-
under section 363 IPC; seven years' rigorous imprisonment and a fine of Rs. 10,000/- under section 366-A IPC
and ten years' rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC with default
stipulation.

It has been contended on behalf of the appellant that there is inordinate delay in lodging the FIR, which is
fatal to the prosecution case. The inordinate delay and the conduct of the informant makes the whole
prosecution story doubtful and cast a shadow of doubt on the prosecution case.

The informant has very innocently tried to plead that he was a helpless person and every time driven away by
the police, but perusal of the first informant report shows that the first information report bears the seal of
the District General Secretary of a political party with the directions that instant action may be taken in the
matter.

Apex Court in Dilawar Singh vs State of Delhi held "In criminal trial one of the cardinal principles for the
Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords
opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even
make fabrications."

Court held that that the prosecution case is bundle of false allegations and improbable facts, due to which the
learned trial court misled itself and has incorrectly convicted the accused, such conviction cannot be sustained
in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.

The appeal is allowed.