Order 3

Order Details: COPY OF ORDER
Pdf Text: 49 DAR 348/22
PAWAN BAJAJ Vs. SURENDER SINGH
(Government Vehicle)
04.09.2023
Present: Sh. Sanjeev Malik, Ld. Counsel for claimant
None for respondent No. 1
Sh. Anmol, Ld. Counsel for respondent No. 2
Matter is fixed for PE.
The Hon’ble Supreme Court in recent judgment titled as Gohar
Mohammad Vs. Uttar Pradesh State Road Transport Corporation, Civil
Appeal No. 9322 of 2022 (arising out of Special Leave Petition (C) No.
32448 of 2018) has given specific directions as under :-
“…….61. In our view the said contention is as per Rule 30.
Where the insurance company disputes the liability, the Claims
Tribunal is duty bound to record the evidence through the local
commissioner and the fee/expenses of such local commissioner
shall be borne by the insurance company.”
In view of the aforesaid judgment, the evidence be recorded
through Local Commissioner at the expense of Insurance Company, however,
in the instant matter the vehicle was uninsured, hence, the fee of Local
Commissioner shall be paid by the registered owner of the offending vehicle.
Accordingly, Ms. Rubina, Advocate, Chamber No. 371,
Patiala House Court, District Courts, New Delhi-110001, having Mobile
No. 9873624829/9851660786, who is present in the Court and who has
volunteered to work as Local Commissioner is appointed as Local
Commissioner to record evidence of witnesses. Fee of the Local
Commissioner is fixed at Rs.3,000/- per witness, which shall be paid by the
registered owner of the offending vehicle. Misc. expenses shall also be borne
by the owner of offending vehicle. Diet money of the witnesses shall be paid
by the parties calling them. Recording of evidence before the Local
Commissioner shall commence w.e.f. 10.10.2023 at 02.00 pm onwards.
After the list of witnesses is provided by the parties, the evidence shall be
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recorded in post lunch session only. Further dates for recording of evidence
shall be given by the Local Commissioner himself. The evidence shall be
recorded as per the following Protocol :-
Recording of Evidence by Court Commissioner
1. Preparation for Assignment
i) Copy of order be shared with parties and Court
Commissioner - Copy of the order of framing of issues, appointment of
Court Commissioner and the schedule of recording of evidence shall be
supplied to the parties as well as the Court Commissioner.
ii) Parties to cooperate - It is expected of both the sides that they
will cooperate with Court Commissioner as well as with each other in
recording of evidence and carry out proceedings in a cordial manner.
2. Recording of Evidence
i) Filing of list of witnesses- Both sides shall file list of witnesses
preferably within Three Days, but not later than one week from today while
sharing an advance copy thereof with the opposite Party/Parties.
ii) Order of assignment of Case to the Court Commissioner-
While assigning the case, Tribunal may pass an Order covering following
aspects:
a) Schedule of evidence - The Claimant shall lead the Evidence
First, followed by Respondents chronologically.
Any alteration in schedule for recording of evidence, if needed, shall
be decided by the Court Commissioner as per convenience of all concerned,
to the extent possible.
b) Time Period - Claimant’s evidence shall be concluded
preferably within Four weeks of initiation. Respondent’s Evidence shall be
concluded preferably within Two Weeks after conclusion of Claimant’s
Evidence.
c) Access to Copy of Trial Record - Tribunal shall ensure that the
parties as well as the Court Commissioner are provided access to copy of the
Judicial Record on demand.
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d) Examination-in-Chief – The Examination-in-Chief shall be
filed by way of affidavit. Its Copy shall be supplied to opposite party well in
advance.
e) Production of documents for cross-examination - In case the
opposite side is desirous of production of any document by the witness or any
other entity for the purpose of cross-examination, an application requesting
the same shall be moved well in advance before the Tribunal.
3. Duty of Court Commissioner
i) Place and Time - Court Commissioner shall record evidence in
the Court Room/Judges Library as mutually agreed by both sides. Evidence
shall be recorded between 2.00 PM to 4.00 PM. It can carry on beyond 4.00
PM as well in case both parties agree. However, it shall not carry beyond 4:30
PM.
ii) Chronology of recording - Court Commissioner shall proceed
to record the examination by first recording the deposition of litigating party
before examining additional summoned witnesses.
iii) Oath to witnesses - Court Commissioner shall administer oath
to the witnesses under examination as a delegatee of the Tribunal as per Oaths
Act, 1969.
iv) Recording of evidence - The evidence shall be preferably typed
on a computer.
v) Comfortable sitting space - Witnesses and their Counsel shall
be provided comfortable sitting space by the Court Commissioner.
vi) Exhibition of documents - Court Commissioner shall exhibit
all the documents sought to be proved by a party on record. In case of any
objection to exhibition of the documents by either side, the objection shall be
recorded in some detail and left open with an assurance that mere marking of
such exhibits will not be treated as conclusive proof thereof and that
admissibility of such document shall be decided by the referral Tribunal at
final stage.
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vii) Original documents to be retained by parties - Original
documents shall be retained by parties. Court Commissioner shall sign the
exhibits with an endorsement OS&R (original seen and returned) wherever
necessary.
viii) Language - Recording of evidence shall preferably be carried
out in English.
ix) Adjournments - In case an evidence schedule is fixed and
adjournment is sought by the opposite side, i.e. the side other than who is
leading evidence, without 24-hour advance notice, the cost of that day's
proceedings amounting to Rs.1,000/- shall be borne by the defaulting party.
Explanation: In case a witness scheduled to be examined or under
examination is reported to be unwell or unavailable, the party leading the
evidence shall produce the next witness in line in the list for recording of
evidence.
x) Recording of objections - All the objections raised during
cross-examination/re-examination shall be recorded in the deposition under
title objections and shall be left open for the decision of the Tribunal at the
stage of final arguments. Witness shall not refuse to answer the question
asked.
xi) Questions to be allowed - In case Court Commissioner finds
any question not related to the fact and issue, he shall record his objection but
shall allow the question to be put and witness must answer.
xii) No third person intervention - Court Commissioner shall
ensure that the witness is not assisted by his Counsel or any other person
while under examination in answering the questions.
xiii) Recording of demeanour of witness - Court Commissioner shall
record the demeanour of the witness wherever it is found pertinent and
necessary for sharing with the Tribunal.
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xiv) Copy of evidence - All parties shall be provided uncertified
copy of the evidence recorded, free of cost.
xv) Safe keeping of original deposition - Court Commissioner
shall keep the original depositions in his safe custody till such time they are
filed in the Tribunal in original upon completion of each witness individually.
xvi) Miscellaneous proceedings - Court Commissioner shall
maintain a miscellaneous proceeding sheet for each day of work and shall
submit it in the Court at the time of submission of final report.
xvii) Hostile Witness - In case a witness is sought to be declared
hostile, then Court Commissioner shall refer both the parties to the Tribunal at
the earliest.
4. Miscellaneous
i) Summoning of Witness
a) Summons by Tribunal - In case a litigating party is desirous of
summoning a person for deposition or production of documents, it shall
obtain summons from the Tribunal with an endorsement that such person
shall appear before the address of Court Commissioner on scheduled date,
time and place.
ii) Advisory to Court Commissioner - While recording the
evidence on commission, the Court Commissioner shall ensure the following:
a) Impartial - Court Commissioner shall conduct himself in an
impartial way and behave in an indiscriminate manner while recording of
evidence.
b) Polite - Court Commissioner shall be polite with the witness
and other stakeholders while recording of evidence.
c) Confidentiality - Court Commissioner shall maintain
confidentiality during the whole process.
d) Keeping professional distance – Court Commissioner shall not
solicit professional work from the parties.
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e) Integrity - Court Commissioner shall not accept remuneration
or any favour in cash or kind from the parties over and above the honorarium
fixed by the Tribunal.
f) Non-judgmental - Court Commissioner shall not criticize the
professional conduct of lawyers and litigating parties on their understanding
of law.
g) Punctuality - Court Commissioner shall adhere to time
schedules and shall not make excuses like being engaged in some personal or
Court work etc.
h) Coordination - In case of any unforeseen circumstances
warranting change of dates of hearing, for his own case or the request of other
side, he shall apprise the other side in advance via phone call, email, SMS etc.
i) No third-party sharing - Court Commissioner shall not allow
the deposition to be inspected by any third party and shall not share a copy
thereof with any stranger without permission of the Tribunal.
j) Inspection - Court Commissioner shall not allow any party to
inspect the recorded proceedings in his absence.
k) Recusal - In case either of the parties or Counsel for the parties
are related or closely known to Court Commissioner, he/she shall recuse self
from the case and inform the referral Tribunal.
iii) Remuneration of Court Commissioner –
i. Remuneration - In terms of Clause 30 of ‘Procedure for
Investigation of Motor Vehicle Accidents’ under Rule 150A of Central Motor
Vehicle Rules read with Order 18 Rule 4 of the PC read with Order 26 of the
CPC, Court Commissioner shall be paid remuneration for the work carried
out.
ii. Mode of payment - Such remuneration shall be paid by the owner
of offending vehicle directly for the work carried out by way of cash, cheque
or digital mode.
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iii. Court Commissioner’s Fee - Fee for recording of evidence is
fixed at Rs.3,000/- per witness, all inclusive.
5. Judicial Intervention during recording of Evidence -
i. Dissolution of hindrances - In case of any conflict resulting
into hindrance recording of evidence, it shall be resolved amicably by the
parties at their own level with the active help of the Court Commissioner.
ii. Closure of Evidence – In case a Party fails to Examine any
Witness despite opportunity, the Court Commissioner or the opposite Party
can request the Tribunal to close the right of the defaulting party to lead
Evidence.
iii. Court intervention - However, in case of any unforeseen
situation requiring judicial intervention, Court Commissioner shall fix date
and time for joint appearance of both sides before the Tribunal for removal of
any such impediment.
6. Miscellaneous Applications
i. Moving the application - In case either of the parties is
desirous of moving any miscellaneous application it shall share an advance
copy with the opposite side and reply thereof, if any, shall be filed and shared
within seven days.
ii Date of hearing - Upon receipt of reply, both the sides shall get
the application fixed for disposal before the Tribunal with the help of Reader
of the Court and shall not wait till next date fixed for hearing.
iii. Evidence not to be stalled - It is clarified that, unless Court
Commissioner is of the view that the interim application moved by either of
the parties is such that evidence cannot be recorded before its disposal, the
recording of PE/RE shall continue unabatedly.
Re-notify for filing of report by the Local Commissioner,
recording of financial statement and final arguments on 03.04.2024.
Local Commissioner shall record the proceedings of the day
on the same day and provide the copy of proceedings to all the parties
concerned.
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Issue notice to respondent No. 1 as well as his counsel
apprising them the date fixed before the Local Commissioner for the
purpose of recording of evidence.
All the parties are directed to appear before the Local
Commissioner on the dates fixed, in person or through counsel.
It is made clear that if any adjournment is sought by either
party before the Local Commissioner on date fixed, shall entail cost of
proceedings of Rs.1,000/- to be paid to Local Commissioner, if Local
Commissioner has come to the Tribunal/Judge’s Library for recording
evidence at the specified time.
Copy of the order be given dasti to Local Commissioner as well
as Ld. counsel for the parties.
Short date is not possible as there is pendency of more than
3000 cases out of which approx. 400 cases are old matters, which shall be
taken up on priority.
(Shefali Barnala Tandon)
Judge / PO, MACT,
New Delhi/04.09.2023/gr
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