MOONMOON DHAR & ORS. vs KARUNA TANDON & ANR.
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd January, 2024
+ CM(M) 1648/2023 & CM APPL. 52281/2023
MOONMOON DHAR & ORS. ….. Petitioners
Through: Mr. Pratap Singh, Advocate.
versus
KARUNA TANDON & ANR. ….. Respondents
Through: Mr. L.N. Rao & Mr. Aryan
Rajpal, Advocates for R-1.
Mr. Ankit Kalra, Advocate for
R-2.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
1. The petitioners, who are claimants seeking compensation, assail
the impugned order dated 12.07.2023 passed by the learned Presiding
Officer, Motor Accident Claims Tribunal (South-East), Saket Court,
New Delhi1 in the present writ jurisdiction under Article 227 of the
Constitution of India.
2. Evidently, the matter is at the stage of leading evidence by the
parties and the evidence of PW-1 i.e., the claimant-wife as also eye
witness, namely Ms. Sitali Mandal and another witness as PW-3 has
since been concluded. It appears that PW-4, namely Anurag Kumar,
Director of United Biscuits Private Limited, was summoned as a
witness, who produced as many as 17 documents on the record with
regard to previous employment and details as to income salary being
1 Tribunal
earned by the deceased, which documents are Ex.PW-4/A to PW-4/Q.
The said witness has also been cross-examined lastly on 13.04.2023.
It was at this stage that an application under Order XVIII Rule 17 of
the Code of Civil Procedure, 19082 had been moved on behalf of the
Insurance Company seeking to recall PW-1 and PW-2 for their further
cross-examination.
3. The said application came to be decided by the learned Tribunal
vide impugned order dated 12.07.2023, which reads as under:-
2 CPC
1. Reply already filed by claimant side and arguments already
heard in detail on the application dated 02.06.2023 filed by
insurance company/respondent/applicant to recall the witness PW-
l & PW-2 for their further cross examination. Thereafter, case is
fixed for order today.
2. Both the sides relied upon case laws including on order l8 Rule
17 CPC. This Tribunal have heard both the side and gone through
the record.
3. It is settled law as also mentioned by parties that ordinarily
power u/o 18 Rule 17 CPC cannot be use. In any case, it cannot be
use to fill the lacuna in the case of a party. In the present case also
cross examination of PW-1 & PW-2 already conducted by the
insurance side.
4. But having noted so, it may further be noted that after
examination of PW-1 & PW-2, another witness PW-4 and it is the
stand of insurance company that thereafter only for the first time,
they came to know about certain new facts which are material
including relating to income of the deceased. Further, it may be
noted that case laws relied by the parties are rerating to civil suit
which relates to trial of a suit. Whereas, proceedings in the present
case are in the nature of inquiry. Thus, such strict rule of suit
including order 18 Rule 17 CPC and its interpretation by Hon’ble
higher courts is not strictly applicable to the present proceedings.
The whole purpose of present inquiry/proceedings is to arrive at a
just compensation. Further, no material prejudice is likely to be
caused by claimant side as matter is pending at PE stage. As such,
subject to cost of Rs. 2,000/- to be paid by insurance company to
the claimant side, prayer made in the present application dated
07.07.2023 is allowed and consequently, it is ordered that PW-1 &
PW-2 are recalled for the purpose of further cross examination of
PW-1 and PW-2 by insurance company before LC in terms of
previous order. But under these circumstances, it is further ordered
that insurance company will pay a further cost of Rs. 1,000/- each
to the Ld. LC for each of such witness further cross examination.
5. With these observations, findings and directions, present
application of insurance company stand disposed off.
6. A copy of this order be sent to Ld, LC for his information and
compliance.
7. Put up for final arguments on 09.02.2024
4. There is no gainsaying that provisions of Order XVIII Rule 17
of the CPC, for re-calling of any witness already examined by the
Court, is a discretionary power, which can only be exercised by the
Court in order to arrive at a just and fair decision on the matters in
issue. However, this power has to be used sparingly and it cannot be
allowed be exercised where a party moving the application wishes to
fill up the lacuna in the previous examination or cross-examination, or
seeks to introduce altogether new facts.
5. On a careful perusal of the impugned order merely because PW-
4 has brought some new evidence on the record with regard to
employment and salary income of the deceased, it does not strike to
reason as to why PW-2 has been ordered to be re-called, who is an
alleged eye witness of the motor accident in question. She has
nothing to do with the previous employment of the deceased and/or
salary income that was being earned by the deceased. It has been
sought to be urged by the learned counsel for the Insurance Company
that further inquiries have revealed that PW-2 was employed as a maid
servant with PW-1. I am afraid that merely on that ground alone, PW-
2 cannot be allowed to be re-called. The Insurance Company has a
huge field staff at its disposal and such facts could have been easily
ascertained by exercising due diligence.
6. However, insofar as PW-1 is concerned, there are shown some
justifiable grounds to re-call her for her cross-examination qua the
issue of salary income or earnings of the deceased.
7. In view of the foregoing discussion, the present Civil Misc.
(Main) is partly allowed thereby setting aside the directions of the
learned Tribunal to re-call PW-2 Ms. Shitali Mandal. However, the
impugned order insofar as it directs recalling of PW-1 i.e., the
claimant No.1, who is wife of the deceased is hereby sustained.
8. Accordingly, the remaining testimony of PW-1 qua earnings of
the deceased may be recorded before the learned Local Commissioner
appointed by the learned Tribunal, for which purpose, fresh dates may
be given by the learned Tribunal.
9. The pending application stands disposed of.
10. A copy of this order be sent to the learned Tribunal for
information and necessary compliance.
DHARMESH SHARMA, J.
JANUARY 22, 2024
Sadique