Report No. 119

4.4. It is not necessary to multiply such illustrations. The underlying object behind these amendments was to make access to special forum easy. If the exclusive or special forum cannot be reached on account of prohibitive distance, obviously it results in denial of justice. The object underlying the amendment was not to do away with exclusive or special forum but confer a jurisdiction on more than one such forum so that anyone can be within the easy accessibility or reach of the party who feels injustice or aggrieved by injustice and wants or wishes to move the Court for relief and justice.

4.5. In the matter of claims for compensation before the Accidents Claims Tribunal in respect of motor accidents, the situation is unbearable and intolerable. While in the case of a husband and wife even when they part company, though they may not be residing in the same village or town, they may not be far away from each other. Marriages take place within community, clan or caste settled in specified regions. Even inter-caste marriages in big metropolitan cities take place within the area of metropolitan cities. Therefore, one can reach the special forum in the same geographical division. Even then, cases came to light where women, the weaker of the two sexes, felt handicapped in invoking the jurisdiction of the special fora for relief, among others, on the ground of prohibitive distance. This road block to justice was sought to be removed by the aforesaid amendment. Similar relief is overdue in respect of claimants who are victims of motor accidents.

4.6. There is one aspect which must be mentioned here. If the accident occurs in a State and if the State has set up a number of Claims Tribunals district-wise and if accident occurs within the jurisdiction of one Claims Tribunal and the claimants are, though in the same State, may be residing in the jurisdiction of a different Claims Tribunal, it would be open to the High Court, on an appropriate application being made, to transfer these cases from one Claims Tribunal to other Claims Tribunal under the general power of transfer and withdrawal of civil cases conferred on the High Court under section 24 of the Code of Civil Procedure, 1908. Similar power is conferred on the Supreme Court of India for inter-state transfer of civil cases.

It was said by some observers that these provisions are sufficient to rectify the situation dealt with in this Report and, therefore, there is no need to amend the provision. This approach betrays lack of knowledge of expenses incurred in moving petitions for transfer either in the High Court or in the Supreme Court. To illustrate, say in a motor accident, 20 people died and 10 suffered injuries. Legal representatives entitled to recover compensation of each of these dead persons will have to make a separate application to move the High Court or the Supreme Court, as the case may be.

Similarly, each injured person will have to make a separate application for transfer. And a similar procedure will apply if the petition for transfer is to be moved in the Supreme Court of India for inter-state transfer. The cost will be prohibitive. Numerous petitions for such transfer by a compelling necessity come up before the Supreme Court of India. No costs are usually awarded even if the transfer is ordered. Already impoverished people by death of bread winner are further exposed to avoidable expenses.

4.7. Therefore, the Law Commission is of the opinion that it is necessary to amend section 110A(2) to provide for conferring jurisdiction on a Claims Tribunal within whose jurisdiction the claimants reside.

4.8. One other view that was expressed to us was that if in the process of taking justice to the door-step of the people, jurisdiction is conferred on the Claims Tribunal within whose jurisdiction the claimants reside, would it not work hardship on the driver and the owner of the vehicle at fault? As pointed out earlier, in a petition for a claim for compensation arising out of a motor accident, the respondents ordinarily are the driver and the owner of the offending vehicle and the Insurer. After the nationalisation of General Insurance, the Insurer has offices all over the country. It is a large public sector undertaking which cannot feel any inconvenience if the jurisdiction is conferred on a Claims Tribunal other than the one where the petition will have to be filed, as the law stands today.

Therefore, it must be excluded from further consideration. There remain the driver and the owner of the offending vehicle. As against the convenience of these two persons, a large number of claimants coming from the weaker sections of the society who may forego the claim for compensation because of prohibitive cost of transfer and distant litigation and obviously the balance would tilt in favour of such weaker sections of the society. Further, the driver and the owner of the offending vehicle, both are entitled under the Policy of Insurance to ask the Insurer to undertake the defence. One or two witnesses may have to be called to prove rashness and negligence and other factors.

In fact, the surviving passengers may themselves be good witnesses. As against that, claimants-dependants and injured persons-all will have to travel a long distance to give evidence to prove their claims. Factors relevant to proof are age of the deceased, his earning capacity, his possible estimated span of life, etc. Numerous witnesses will have to be taken as against driver and conductor. It is also an experience not to be overlooked that the driver generally does not participate in the proceedings. The expenses and the in convenience of claimants would be prohibitive. Putting the rival considerations in balance, the balance tilts in favour of the victims of the accident.