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M.R. Krishnappa Vs. Bhagyalakshmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous First Appeal No. 743 of 1979
Judge
Reported inILR1982KAR228; 1981(2)KarLJ425
ActsMotor Vehicles Act, 1939 - Sections 110A; Civil Procedure Court, 1908 - Sections 21; Validating Act, 1936
AppellantM.R. Krishnappa
RespondentBhagyalakshmamma and ors.
Excerpt:
.....that the bombay high court was incompetent to try a suit of that kind. it is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. on the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like s. ' 22. thus, the supreme court has laid down ex cathedra that it is well settled that an objection as to the local jurisdiction of a court does not stand on the same footing as the objection to the competence of a court to try a case. he has very clearly stated regarding the manner of accident thus :as the driver was driving the bus in great speed, i cautioned him once not to go fast .road..........directed against the judgment and award dated march 5, 1979, passed by the member, motor accidents claims tribunal, mandya, in miscellaneous (mvc) case no. 23 of 1975 on his file, awarding compensation of rs. 23,100 in favour of claimant no. 1, the widow of the deceased. 2. it is the case of the claimant that h. b. annegowda, aged about 52 years, husband of claimant no. 1 and father of claimants nos. 2 to 5, was travelling in a bus bearing registration no. mya 2288 from mysore, on his way to chickmagalur, on may 10, 1971. he was seated in the front row behind the seat of the driver. the bus was driven by jayakumar of saligrama, the driver, in a rash and negligent manner. when the bus was going in chikka voddaragudi on mysore-hassan road at about 11-30 p.m., the bus met with an accident......
Judgment:

Sabhahit, J.

1. This appeal by the owner of the bus in question (original respondent No. 1) is directed against the judgment and award dated March 5, 1979, passed by the Member, Motor Accidents Claims Tribunal, Mandya, in Miscellaneous (MVC) Case No. 23 of 1975 on his file, awarding compensation of Rs. 23,100 in favour of claimant No. 1, the widow of the deceased.

2. It is the case of the claimant that H. B. Annegowda, aged about 52 years, husband of claimant No. 1 and father of claimants Nos. 2 to 5, was travelling in a bus bearing Registration No. MYA 2288 from Mysore, on his way to Chickmagalur, on May 10, 1971. He was seated in the front row behind the seat of the driver. The bus was driven by Jayakumar of Saligrama, the driver, in a rash and negligent manner. When the bus was going in Chikka Voddaragudi on Mysore-Hassan Road at about 11-30 p.m., the bus met with an accident. It went and dashed against the protruding branch of a tree going on its off side, as a result of which Annegowda sustained grievous injuries. Annegowda was treated in Krishnarajanagar Hospital that night and was shifted to Krishnarajendra Hospital, Mysore, in the morning of May 11, 1971. Though he was treated in that hospital, he succumbed to the injuries on May 21, 1971, at about 2-30 p.m. Annegowda was serving as Inspector of Central Excise in the Central Excise Dept. at Kalasa in Chickmagalur District. He was 52 years. He was drawing a salary of Rs. 496 per month at the time of his death by accident. He had better prospects. On these averments, the claimants, viz., his widow and children, claimed compensation of Rs. 1,50,000 from the respondents, by submitting a petition to the Claims Tribunal, Mysore, under s. 110A of the Motor Vehicles Act.

3. Respondent No. 1 before the Tribunal, is the owner of the vehicle in question. Respondent No. 2 before the Tribunal is the insurer. The driver was not added as a party as he died in the accident.

4. Original respondent No. 1 resisted the claim of the claimants on the ground that the accident was not the result of rash and negligent driving of the bus in question; that it was a vis major and that, therefore, he was not liable to pay the compensation. Alternatively, he contended that the compensation claimed was exorbitant.

5. The insurance company resisted the claim on similar grounds. According to it, its liability was confined to Rs. 5,000, if at all, as the deceased was a passenger in the bus.

6. During hearing, the claimants examined P.Ws. 1 to 5 and got marked Exs. P-1 to P-4. As against that, the contending respondents examined DW 1, Shivanna, said to be the cleaner of the bus in question and Ramegowda as DW 2. He has merely produced the permit of the bus at Ex. D-2. Ex. D-1 is the insurance policy.

7. The Tribunal, appreciating the evidence on record, held that the accident was the result of the rash and negligent driving of the bus in question by its driver and, in that view, awarded compensation of Rs. 23,100 to the claimant, along with interest and costs. Aggrieved by the said judgment and award, the owner of the bus has come up in appeal before this court.

8. The learned counsel, Shri Bhavani Shankar Rao, appearing for the appellant, strenuously urged before us that the Tribunal was not justified in holding that it had jurisdiction to entertain and try the claim petition. He further submitted that the Tribunal was not justified in coming to the conclusion that the accident was the result of the rash and negligent driving of the bus. He also submitted that the quantum of compensation awarded was excessive.

9. As against that, the learned counsel appearing for the claimants argued supporting the judgment and award of the Tribunal.

10. The points, therefore, that arise for our consideration in the appeal are :

(1) Whether the Tribunal was justified in hearing and deciding the claim petition

(2) Whether the Tribunal was justified in holding that the accident was the result of rash and negligent driving of the in question

(3) Whether the quantum of compensation awarded is just and proper

11. It is seen from the records that the claim petition was first instituted by the claimants before the District Judge and Member, Motor Accidents Claims Tribunal, Mysore, at Miscellaneous (MVC) Case No. 44 of 1971. But the said Member of the Tribunal made a request to the High Court that this petition should be transferred for hearing to the neighbouring Claims Tribunal as he had decided connected claim petitions and had formed a view in the matter. Accordingly, this court transferred the claim petition for hearing to the Claims Tribunal, Mandya, where it was registered as Miscellaneous (MVC) Case No. 23 of 1975 and it came to be heard by the Member, Motor Accidents Claims Tribunal, Mandya.

12. It is further seen that after the evidence was closed, Sri V. Lakshminarayana Bhatta, learned counsel appearing for the insurance company before the Claims Tribunal, Mandya, in his arguments, raised an objection regarding the jurisdiction of the Claims Tribunal, Mandya, to adjudicate upon the claim under s. 110A of the Motor Vehicles Act, 1939, as the accident had taken place within the jurisdiction of the Claims Tribunal, Mysore.

13. The Tribunal rejected the submission made, at the fag end of the argument by the learned counsel for the insurance company, by observing thus :

'I am of the view that it is not open to the learned counsel for the second respondent to advance such a plea at this belated stage inasmuch as he has filed power for the second respondent before this Tribunal as long back as 27-1-1976 and he has not raised any oral or written objection till the conclusion of the trial of the case regarding the jurisdiction of this Tribunal to adjudicate upon the claim application of the petitioners. Second respondent has virtually acquiesced in the proceedings of the case without raising any objection as to the jurisdiction of this Tribunal so far. If the second respondent has any grievance against the transfer order made by the Hon'ble High Court, the proper remedy ought to have been to get that transfer order cancelled by moving the Hon'ble High Court in that behalf. Therefore, it is not open to the learned counsel for the second respondent to question the jurisdiction of this Tribunal to decided the case as per the direction of the Hon'ble High Court in Petition No. 349 of 1975. So, the preliminary objection raised by the learned counsel for the second respondent is rejected.'

14. It is the order of rejection by the Tribunal that is challenged before us.

15. The learned counsel appearing for the appellant advanced a two-fold argument. Firstly, he submitted that the High Court has no power of transferring a case before a Claims Tribunal to another Claims Tribunal. According to him, a Claims Tribunal is not a court subordinate to the High Court, though the High Court has no doubt supervisory power over the Tribunals under art. 227 of the Constitution. Secondly, he submitted that the question of jurisdiction can be raised at any stage in the proceeding, even in a collateral proceeding. Hence, he submitted that the Tribunal was not justified in rejecting the plea raised at the time of arguments regarding its jurisdiction to adjudicate the proceeding.

16. We are of the considered view that on the peculiar facts of this case, it is not necessary for us to go into the first aspect, namely, whether the High Court has jurisdiction to transfer a claim petition from one Claims Tribunal to the other for adjudication, For, the fact remains that no objection was taken to the adjudication of the claim petition by the Claims Tribunal, Mandya, till the entire trial was over. It was only at the fag end of the argument that the objection was raised by the learned counsel for the insurance company that the Claims Tribunal, Mandya, had no jurisdiction to adjudicated upon the claim petition.

17. The sole point, therefore, that arises for our consideration, on the facts of this case, is : 'Whether it was open to the learned counsel to take up the contention regarding territorial jurisdiction at the belated stage, viz., at the fag end of the argument ?'

18. The concept of jurisdiction of a court has mainly three aspects. viz., (i) territorial jurisdiction, (ii) pecuniary jurisdiction, and (iii) jurisdiction regarding subject-matter. A distinction is made regard to the inherent lack of jurisdiction to entertain and hear a case regarding the subject-matter and jurisdiction of a court with regard to the territorial and pecuniary limits.

19. In the CPC, 1908, which embodies is its essence the principles of natural justice, it is laid down in s. 21 thus :

'Objection 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.

(2) No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction 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.'

20. Thus, it is clear that even the CPC makes a distinction between inherent lack of jurisdiction with regard to the subject-matter and mere lack of territorial or pecuniary jurisdiction. The latter are considered as merely technical and they can be waived in the sense that if objection with regard to them is not taken at the earliest opportunity, at any rate, at or before the settlement of issues, the same cannot be allowed to be raised at a later stage unless it is established that there is a consequent failure of justice. This is not merely the result of an enactment. What is enacted a principle of natural justice, which prevails during the hearing even before a Tribunal.

21. The Supreme Court has explained this position by an authoritative pronouncement in the case of Hira Lal Patni v. Sri Kali Nath, : [1962]2SCR747 . Sinha C.J., speaking for the Bench in that decision, has observed in para. 4 of the judgment thus (at p. 200) :

'The only ground on which the decision of the High Court is Challenged is that the suit instituted on the original side of the Bombay High Court was wholly incompetent for want of territorial jurisdiction and that, therefore, the award that followed on the reference between the parties and the decree of court, under execution, were all null and void. Strong reliance was placed upon the decision of the Privy council in the case of Ledgard v. Bull, [1887] ILR 9 All 191; [1887] 13 Ind. App. 134 (PC). In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay High Court where the suit was instituted by the plaintiff-decree-holder. The plaint had been filed after obtaining the necessary leave of the High Court under clause 12 of the Letters Patent. Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage. The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it, But in the instant case there was no such inherent lack of jurisdiction.

The decision of the Privy Council in the case of Ledgard v. Bull [1887] ILR 9 All 191; [1887] 13 Ind. App. 134 (PC) is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the court of the Subordinate Judge, who was incompetent to try it. By consent of the parties, the case was transferred to the court of the District Judge for convenience of trial. It was laid down by the Privy Council that as the court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a court which was incompetent to try the suit. That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under clause 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of the court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like s. 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendant is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. He is equally estopped from challenging the authority of the arbitrator to render the award. In our opinion, this conclusion is sufficient to dispose of the appeal. It is not, therefore, necessary to determine the other points in controversy, including the question whether the Decrees and Orders Validating Act, 1936 (Act V of 1936), had the effect of validating what otherwise may have been invalid.'

22. Thus, the Supreme Court has laid down ex cathedra that it is well settled that an objection as to the local jurisdiction of a court does not stand on the same footing as the objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction and, where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition in s. 21 of the CPC, 1908.

23. This proposition of law is further reiterated by the Supreme Court in the case of Bahrein Petroleum Co. Ltd. v. P. J. Pappu, : (1966)IILLJ144SC . In that case, his Lordship Bachawat J., who delivered the judgment for the Bench, has observed in para. 3 of the judgment thus d(at p. 636) :

'As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. But s. 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the courts under the Code may be waived under this section. The waiver under s. 21 is limited to objections in the appellate and revisional courts, But s. 21 is a statutory recognition of the principle that the defect as to the place of suing under ss. 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it. (see Hira Lal Patni v. Sri Kali Nath, : [1962]2SCR747 .'

24. Applying the principle of law to the facts of the present case, it becomes clear that in the instant case, the appellant, who was respondent-I before the Tribunal, has waived his right to object to the territorial jurisdiction. He has never raised such a plea before the Tribunal It was the learned counsel for the insurance company who raised such a plea. But he also raised, as rightly pointed out by the Tribunal, at the fag end of he argument. He has not raised it at or before the settlement of issues and it is not the plea before us that any injustice is caused to the parties as a consequence of the Claims Tribunal at Mandya adjudicating upon the claim petition. Hence, it is obvious that the present appellant is estopped in this appeal from raising the plea regarding the territorial jurisdiction of the Claims Tribunal, Mandya. It is obvious that the Claims Tribunal, Mandya, did have jurisdiction over the subject-matter. There was no inherent lace of jurisdiction to adjudicate upon the claims petition in the Claims Tribunal, Mandya. What was lacking, if the clams petition in the Claims Tribunal, Mandya. What was lacking, if at all, was merely the territorial jurisdiction, the objection to which, as discussed above, is waived by the present appellant before the Tribunal. Hence, we are constrained to hold that there is no substance in the sub-mission made before us that the Claims Tribunal, Mandya, had no territorial jurisdiction to adjudicate upon the claim petition, and, as such, its award is a nullity. We reject the said contention for the reasons already discussed above.

25. That takes us to the merits of the case. The first contention raised before us is that the accident was not the result of the rash and negligent driving of the bus in question. The Tribunal has rightly pointed out that the facts of the present case involve the doctrine of res ipsa loquitur - the thing speaks for itself.

26. The Tribunal has rightly relied upon the testimony of PW-4, G. S. Pattana Setty. He was a co-passenger in the bus. He also sustained injuries and was treated in the hospital. He has very clearly stated regarding the manner of accident thus :

'... As the driver was driving the bus in great speed, I cautioned him once not to go fast .... Road at the place of accident is wide and it is also in good condition. Driver did not reduce the speed in spite of my caution. The accident occurred at a place near Voddara Gudi situate at a distance of about 8 to 10 miles from K. R. Nagar. Bus hit against a tree situate on the right side of the road from K. R. Nagar to Devanagere side. I had also sustained injuries in that accident. I was admitted to K. R. Nagar Hospital for treatment, on the night of 10/11-5-1971 and I was taken to the K. R. Hospital, Mysore, on 11-5-1971 ...'

27. Nothing is elicited in the cross-examination of this witness to detract from the probative value of his testimony. His evidence clearly establishes that the bus, which was going very fast, went on its off side of the road and hit against the branch of road-side tree which resulted in the accident. This clearly establishes actionable negligence on the part of driver of the bus in question.

28. The driver of the bus in question died in the accident and the contending respondent examined a person by name Shivanna, styled as 'cleaner of the bus' as DW-1. His evidence (sic) given by it. It is elicited in his evidence that he was travelling in bus bearing Registration No. 2228 whereas the bus in question is 'MYA 2288'. His evidence is rightly described as 'tutored' by the Tribunal and not even a suggestion was put to the eye-witness that the witness, Shivanna, was in the bus sitting near the driver, especially so when FWD-4 specifically deposed that he was provided a seat in the driver's cabin. That being so, we have no reason to differ from the Tribunal that the accident was the result of rash and negligent driving of the bus in question by its driver.

29. That takes us to the quantum of compensation. The Tribunal, after considering the scale in which the deceased was serving and having regard to the fact that he had six years of service left, has fixed the quantum of compensation, making allowance for deduction. There is nothing wrong or illegal in the method followed by the Tribunal. Hence, we have no compelling ground to differ from the quantum of compensation so fixed by the Tribunal. Therefore, we are constrained to hold that there is no substance in the submission made by the learned counsel appearing for the appellant that the quantum of compensation fixed is exorbitant.

30. For the foregoing reasons, we are of the considered view that there is no merit in the appeal and the same is liable to be dismissed.

31. No other point was submitted for our consideration.

32. The appeal, therefore, fails and is dismissed.

33. No costs.


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