Tr.P.(C).No. 257 of 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939** **Tr.P(C).No. 257 of 2017** ## **-----------------** **TO TRANSFER OP(MV) 253/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ATTINGAL TO MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** **----------** ## **PETITIONER** **------------** **UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE, “SARANYA,” HOSPITAL ROAD, ERNAKULAM, COCHIN. 682011, REP. BY THE ASST. MANAGER.** **BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** ## **RESPONDENTS:** - **--------------** **1. PRASHANTH.,** **S/O SADASIVAN NAIR, PRAVEEN NIVAS, PIRAPPANCODU PO, KOLIYACODU VILLAGE, THIRUVANANTHAPURAM. (PETITIONER IN O.P.(MV) 253/2011 OF MACT ATTINGAL & 1ST RESPONDENT IN O.P N(MV) 891/2011 OF MACT THIRUVANANTHAPURAM.** ## **2. SHIYAS FAZIL,** **S/O FAZILUDEEN, FS BUILDING, CHEMMARUTHI, PALACHIRA PO,VARKALA, THIRUVANANTHAPURAM. (PETITIONER IN OP(MV) 891/2011 OF MACT, THIRUVANANTHAPURAM. & 2ND RESPONDENT IN OP (MV) 253/2011 OF MACT ATTINGAL)** ## **3. SHIHABUDEEN,** **S/O SHAHUL HAMEED, JASIM MANZIL, ARAVARAM P.O.** **4. NEW INDIA ASSURANCE COMPANY LTD, NEAR MUNICIPAL BUS STAND, MAIN ROAD, ATTINGAL.** **R4 BY SRI.A.A.ZIYAD RAHMAN** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** **11.04.18** **Tr.P(C).No. 257 of 2017** ## **----------------------------** ## **APPENDIX** **----------** ## **PETITIONERS ANNEXURES** **----------------------** **ANNEXURE 1 TRUE COPY OF THE APPLICATION IN O.P. (MV) NO. 891/2011 OF MACT, THIRUVANANTHAPURAM ANNEXURE 2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT IN O.P.(MV) NO. 891/2011 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL ANNEXURE 3 TRUE COPY OF THE ORIGINAL PETITION IN O.P. (MV) NO. 253/2011** ## **RESPONDENTS ANNEXURES NIL ------------------------** **/TRUE COPY/ PA TO JUDGE** **sdr/11.04.18** ## **(C.R)** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- ## Tr.P.(C) No. 257 of 2017 ------------------------------------------------- ## Dated this the 6[th] day of March, 2018 **O R D E R** The main prayer in this Transfer Petition (Civil) filed under Section 24 of the Code of Civil Procedure is as follows : _“Transfer OP(MV) No.253/2011 pending before Motor Accidents Claims Tribunal, Attingal to Motor Accident Claims Tribunal, Thiruvananthapuram and try the same by a joint trial with OP(MV) No.891/2011, pending before the Motor Accident Claims Tribunal, Thiruvananthapuram.”_ 2. Notice has been duly served on respondent Nos.1, 2 and 4. Registry has reported that notice to 3[rd] respondent has been returned with endorsement ' _not known_ '. Now it has been appraised by the MACT, Attingal to the Registry of this Court that the 3[rd] respondent in O.P.(M.V) No.891/2011 has been arrayed as the 1[st] respondent in Annexure 3 O.P. (M.V.)No.253/2011 on the file of the MACT, Attingal and has been duly served in that O.P.(MV), but, since there was no representation for the 3[rd] respondent herein/1[st] respondent therein, he has already been set _ex parte_ by that Tribunal, hence notice to that party is dispensed with. 3. Heard Sri.John Joseph Vettikkad learned counsel appearing for the petitioner and Sri.Ziyad Rahman, learned counsel appearing for the 4[th] respondent. There is no appearance for the other respondents. 4. The petitioner herein is the 2[nd] respondent in Annexure 1 O.P. (M.V) 891/2011 on the file of the Motor Accidents Claims Tribunal (for Tr.P(C)257/17 - : 2 :- short 'MACT'), Thiruvananthapuram. The petitioner company is also the 2[nd] respondent in Annexure 3 O.P.(M.V) No.253/2011 on the file of the MACT, Attingal. It is the case of the petitioner that the accident in respect of these two Original Petitions before two Tribunals have occurred consequent to the collusion between two motor vehicles. The riders of both vehicles have filed Annexure 1 O.P.(M.V.) No.891/2011 before the MACT, Thiruvananthapuram and Annexure 3 O.P.(M.V) No. 253/2011 before the MACT, Attingal. The respective claimants have claimed negligence on the part of each other. Since the two Original Petitions have arisen from the same accident and the issue regarding negligence on both the parties has been decided by taking into account the documents adduced by both the parties, it is only just and necessary that both cases are tried by a single Tribunal in joint trial. Therefore, it is urged that it is necessary in the interest of justice that Annexure 3 O.P. (MV) No.253/2011 which is pending before MACT, Attingal be transferred to the MACT, Thiruvananthapuram, where O.P.(MV) No.891/2011 is pending. It is in the light of these aspects the petitioner has filed the instant Transfer Petition with the aforesaid prayers. 5. Sec.24 of the C.P.C. provides as follows: _**"Sec. 24: General power of transfer and withdrawal.** (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-_ - _(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or_ - : 3 :- Tr.P(C)257/17 - _(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and_ - _(i) try or dispose of the same; or_ - _(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or_ - _(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn._ _(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn._ _(3) For the purposes of this section,-_ - _(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;_ - _(b) "proceeding" includes a proceeding for the execution of a decree or order._ _(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes._ _(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”_ ## Sec. 25 of the C.P.C. provides as follows: _**"Sec. 25: Power of Supreme Court to transfer suits, etc.-** (1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State._ _(2) Every application under this section shall be made by a motion which shall be supported by an affidavit._ _(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it._ _(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case._ Tr.P(C)257/17 - : 4 :- _(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.”_ 6. Earlier there was divergence of opinion between various High Courts on the question as to whether a Motor Accidents Claims Tribunal (M.A.C. Tribunal) constituted under the provisions of the Motor Vehicles Act, could be treated as a ' _court_ ' or ' _civil court_ ' within the meaning of Sec. 24 of the C.P.C. for considering the transfer of cases, from bench one such Tribunal to another. 7. A mere reading of sub-section (1) of Section 24 of the CPC would make it clear that the said provision empowers the High Court or the District Court concerned at any stage, a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same or b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and (i) try to dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn. 8. Therefore, unless the court from which the case is sought to be transferred is held to be a court which is subordinate to the High Court or the District Court of the District concerned, as the case may be, the power under Section 24 of the CPC cannot be invoked. In other words, the Tr.P(C)257/17 - : 5 :- expression “ _Court_ ” appearing in Section 24 (1) could be broadly understood as Civil Court, as contemplated in Kerala Civil Court's Act, 1957 and the Code of Civil Procedure, 1908. However, it is also pertinent to note that there was divergence of opinion between the various High Courts on the issue as to whether the Motor Accidents Claims Tribunal (M.A.C.T) constituted under the provisions of the Mother Vehicles Act, could be treated as a ' _court_ ' within the meaning of Sec. 24 of the C.P.C. for effecting transfer of cases from one such Tribunal to another. 9. A 2-Judge Bench of the Apex Court in the judgment in _**State of Haryana v. Smt.Darshana Devi & Ors.**_ reported in (1979) 2 SCC 236 = AIR 1979 SC 855, has held that the provisions in Order XXXIII C.P.C. (suits filed by indigent persons) will apply to Motor Accidents Claims Tribunals constituted as per the provisions of Motor Vehicles Act, since such Tribunals have the trappings of the civil court, etc. Based on the said reasoning of the Apex Court in _**Smt.Darshana Devi's case**_ supra, the Apex Court had later held in the judgment dt.13.12.1982 in _**Bhagwati Devi & Ors. v. M/s. I.S.Goel & Ors.**_ reported in 1983 A.C.J. 123, that in view of the said observations of the Apex Court in _**Darshana Devi's case**_ supra, their Lordships of the Supreme Court were of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, is a civil court for the purpose of Sec.25 of the C.P.C. and that the cases considered therein could be transferred from the file of the one Tr.P(C)257/17 - : 6 :- M.A.C.T to the file of another such Tribunal by virtue of the enabling powers conferred on the Apex Court under Sec. 25 of the C.P.C. for transfer of cases. The judgment dated 13.12.1982 of the Apex Court in the case _**Bhagwati Devi & Ors. v. M/s. I.S.Goel & Ors.**_ reported in 1983 A.C.J. 123, reads as follows: _"In view of the observations of this Court in State of Haryana v. Darshana Devi, we are of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act is a civil Court for the purposes of section 25 of the Code of Civil Procedure. We are satisfied that the cases before us are fit cases for being transferred from the file of the Motor Accidents Claims Tribunal, Moradabad, to the file of the Motor Accidents Claims Tribunal, Delhi. The transfer petitions are accordingly allowed and Compensation Application Nos.3 to 15 of 1982 pending before the Motor Accidents Claims Tribunal, Moradabad are transferred to the file of the Motor Accidents Claims Tribunal, Delhi."_ Placing reliance on the abovesaid reasonings of the Apex Court in _**Bhagwati Devi's case**_ supra (1983 ACJ 123), the Madras High Court in _**Kanniammal v. P.Narayanan,**_ reported in AIR 1989 Madras 350, Gauhati High Court in _**Raju Das. v. Sushil Kumar Das**_ , reported in AIR 1991 Gauhati 71, Jammu & Kashmir High Court in _**Amar Kaur & Anr. v. Kulbir Singh & Ors**_ . reported in AIR 1989 J&K 7, Karnataka High Court in _**Noreen R.Srikantaiah v. Dasarath Ramaiah**_ , reported in AIR 1985 Karnataka 208, etc. have held the Motor Accidents Claims Tribunal constituted under the provisions of the Motor Vehicles Act could be treated as a ' _court_ ' within the meaning of Sec. 24 of the C.P.C. so as to effect transfer of cases from one bench of the Tribunal to another. Incidentally, it is pertinent to note that a Division Bench of this Court in the judgment dated 21.12.1979 (C.R.P.No. 1292/1979) in the case _**Beeran**_ Tr.P(C)257/17 - : 7 :- _**v. Rajappan**_ , reported in 1980 KLT 210, has held that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, cannot be treated as a civil court within the meaning of Sec. 24 of the C.P.C. and later placing reliance on the said Division Bench judgment of this Court in _**Beeran's case**_ supra, (1980 KLT 210), a learned Single Judge of this Court in the judgment dt.31.3.1986 in the case in _**United India Insurance Co. Ltd. v. Padmini Amma**_ , reported in 1986 KLT 581, has held that in view of the said view taken by the Division Bench in _**Beeran's case supra**_ , [1980 KLT 210 (D.B)], the Motor Accidents Claims Tribunal constituted under the provisions of the Motor Vehicles Act is not a court subordinate to the High Court, etc. But it appears from a reading of the judgment dated 31.3.1986 of the learned Single Judge of this Court in _**Padmini Amma's case**_ supra [1986 KLT 581] that the judgment dated 13.12.1982 of the Apex Court in _**Bhagwati Devi v. M/s. I.S.Goel & Ors**_ . reported in 1983 A.C.J. 123 has not been brought to the notice of of this Court. True that the Tribunal like the M.A.C.T. cannot be construed as a civil court _stricto sensu_ , but it has to be treated as a court for the limited purpose of the applicability of Secs.24 and 25 of the C.P.C. as can be seen from the aforecited judgments. That apart, as per Rule 5A of the Kerala Motor Accidents Tribunal Rules, 1977, framed under the provisions contained in the Motor Vehicles Act, 1939, the power has been explicitly conferred on the High Court to transfer cases from one bench of the Motor Tr.P(C)257/17 - : 8 :- Accidents Claims Tribunal to another. After the coming into force of Motor Vehicles Act, 1988, Rule 374 of the Kerala Motor Vehicles Rules, 1989 has been framed, which confers power on the High Court to transfer claim petition from the file of one M.A.C. Tribunal to another subject to the parameters in that rules. Therefore, the question as to whether an M.A.C. Tribunal constituted under the provisions of the Motor Vehicles Act is a court within the meaning of Sec. 24 of the C.P.C. is not very relevant now, in view of the explicit provisions framed in the Kerala rules conferring power on the High Court for transferring cases from one bench of the M.A.C. Tribunal to another. It has also been held by a learned Single Judge (M.Sreenivasan, J. as His Lordship then was) of the Madras High Court in the aforecited judgment in _**Kanniammal v. P.Narayanan**_ , reported in AIR 1989 Madras 350, that even if the powers under Sec. 24 of the C.P.C. are not available, still the High Court could effect transfer of cases one of M.A.C. Tribunal to another by virtue of the Constitutional powers conferred under Art.227 of the Constitution of India, more particularly in the light of the dictum laid down by the Apex Court in _**State of Gujarat v. Vakhatsinghji**_ reported in AIR 1968 SC 1481. 10. It is pertinent to note that, in exercise of powers conferred under Sec.3A of the Motor Vehicles Act, 1939 (Central Act IV of 1939), the Government of Kerala has notified the Kerala Motor Accidents Claims Tribunal Rules 1977. Rule 5A of the Kerala Motor Accidents Claims Tr.P(C)257/17 - : 9 :- ## Tribunal Rules, 1977, provides as follows: _**“Rule 5A: Power of High Court to transfer applications.-** (1) The High Court may transfer an application from the file of one Tribunal before whom the application is pending to that of any other Tribunal,-_ - _(a) if, (the Tribunal before whom the application is pending is personally interested in the application and reports the matter to the High Court; or_ - _(b) if on an application for transfer by any party in the application, High Court are satisfied that there are sufficient grounds for such transfer._ _(2) A Tribunal to whom an application is so transferred under subrule (1) may, subject to special directions in the order of transfer, proceed either denovo or from the stage at which it is so transferred._ Rule 5B of the Kerala Motor Accidents Claims Tribunal Rules, 1977, provides as follows: _**“Rule 5B: Power of Tribunals to transfer applications.** A Tribunal shall transfer an application filed before it to another Tribunal if such application is one which comes within the jurisdiction of the latter._ It is also relevant to note that, after the amendment of Sec.166(2) of the Motor Vehicles Act, 1988, with effect from 14.11.1994 by the Central Amendment Act No.54 1994, every application for claim can be filed by 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. In exercise of the powers conferred under the enabling provisions contained in the Motor Vehicles Act, 1988, (Central Act No.59 of 1988), the Government of Kerala has framed the Kerala Vehicles Rules, 1989. Rule 374 of the Kerala Motor Vehicles Rules, 1989, provides as follows: - : 10 :- Tr.P(C)257/17 _**“Rule 374: Power of High Court to transfer applications.-** (1) The High Court may transfer an application from the file of one Claims Tribunal before whom the application is pending to that of any other Claims Tribunal,--_ - _(a) if, the Claims Tribunal before whom the application is pending is personally interested in the application and reports the matter to the High Court; or_ - _(b) if an application for transfer by any party to the application, the High Court is satisfied that there are sufficient grounds for such transfer._ _(2) A Claims Tribunal to whom an application is so transferred under subrule (1) may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it is so transferred.”_ Rule 375 of the abovesaid Kerala Motor Vehicles Rules, 1989, provides as follows: _**“Rule 375: Power of Claims Tribunals to transfer applications.-** A Claims Tribunal shall transfer an application filed before it to another Tribunal if such application is one which comes within the jurisdiction of the latter.”_ Therefore, as mentioned herein above, in view of the explicit provisions contained in the Kerala Rules, which confer power on the High Court to transfer cases from the one bench of the M.A.C. Tribunal to another, the question as to whether or not an M.A.C. Tribunal constituted under the provisions contained in the Motor Vehicles Act, is a “court” within the meaning of Sec. 24 of the C.P.C. does not have much significance or relevance inasmuch as the explicit provisions in that regard to transfer cases is conferred on the High Court, as per the statutory rules framed under the Motor Vehicles Act. 11. Clause (a) of Sec. 7 (1) of the Family Court Courts Act, 1984 mandates that subject to the other provisions of the said Act, the Family Tr.P(C)257/17 - : 11 :- Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force, in respect of suits and proceedings of the nature referred to in the Explanation thereto and clause (b) thereof, explicitly mandates that the Family Court shall be deemed, for the purpose exercising such jurisdiction under such law, to be a District Court, or as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Sec.8 of the Family Courts Act, 1984 further mandates that, where a Family Court has been established for any area, then no District Court or any subordinate civil court referred to in sub section (1) of Sec.7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to Sec.7(1). Therefore, going by the reasonings of the Apex Court decision in _**Bhagwati Devi v. I.S.Goel**_ reported in 1983 A.C.J. 123, as well as the explicit provisions in Sec.7(1) and Sec.8 of the Family Courts Act, 1984, a Family Court which has been established as substitution of the civil court, could be treated as a civil court or court within the meaning of Sec. 24 of the C.P.C. for the purpose effecting of transfer of cases from one Family Court to another. Hence ordinarily, the broad contours of Secs. 24 & 25 of the C.P.C. may apply only in cases where the court concerned is a civil court or court within the meaning of Secs. 24 & 25 of the C.P.C. It need not necessarily be a civil court stricto sensu and it depends on the context of Tr.P(C)257/17 - : 12 :- the law, which regulates creation of such court or Tribunal like the Family Court or M.A.C. Tribunal, etc. 12. From a perusal of the pleadings and materials on records, more particularly Annexure 1 and 3, it can be seen that the riders of the respective motor vehicles involved in this case have filed these two O.P. (MV)s and the accident occurred in respect of these two cases are consequent to the alleged collision between the two motor vehicles. The claimants in both the Original Petitions have alleged negligence against each other. Therefore, in the light of these aspects, the prayer for transfer can be considered, in exercise of the powers conferred on this Court under Rule 374 of the Kerala Motor Vehicles Rules, 1989 framed under the Motor Vehicles Act, 1988. Accordingly, it is ordered in the interest of justice that Annexure 3 O.P. (MV) No.253/2011 which is pending before MACT, Attingal will stand transferred to the MACT, Thiruvananthapuram, where Annexure 1 O.P.(MV) No.891/2011 is pending. The petitioner will produce a certified copy of this Order before MACT, Attingal and upon such receipt, that Court shall transmit the case papers and records in relation to O.P. (MV) No.253/2011 to the MACT, Thiruvananthapuram. On receipt of the case papers, the MACT, Thiruvananthapuram shall issue notices to the parties concerned and thereafter proceed with the matter in accordance with law. 13. As regards the prayer made by the petitioner for joint trial, this Tr.P(C)257/17 - : 13 :- Court is of the considered view that the said prayer should be made first before the Tribunal, before this Court could consider the such prayer. Accordingly, it is ordered that the petitioner will be at liberty to file appropriate application before MACT, Thiruvananthapuram praying for joint trial of both cases, in which case the said Tribunal will pass appropriate orders thereon after hearing both sides and taking into account the legal principles which regulate the aspect regarding joint trial of cases. With these observations and directions, this Transfer Petition (Civil) stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge ttb sdk+ Tr.P(C)257/17 - : 14 :-