Order 6

Order Details: COPY OF ORDER
Pdf Text: M.A.C.T 179/21
KIRAN THAKUR AND ORS. Vs. BABU RAM GOND AND
ORS.
09.08.2023
Present : Sh. Anuj Singh, Ld. Counsel for petitioners.
None for R-1 and R-2.
Ms. Vandana Kahlon, Ld. Counsel for R-3/Insurance
Company.
An application under Order 22 Rule 2 CPC has been
moved seeking substitution of legal heirs on behalf of petitioner
no. 2 namely Late Sh. Rajni Kant Thakur.
Ld. Counsel for R-3 submits that she has no
objection if the aforesaid application is allowed.
In view of the submissions made and considering
the no objection, the present application is allowed. Let amended
memo of parties be filed by the petitioners on or before the next
date of hearing.
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.
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Accordingly, Sh. Sumit Kumar, Advocate,
Chamber No. 701, Patiala House Courts, New Delhi-110001,
having mobile No. 9958266282, 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 Insurance Company. Diet
money/misc. expenses shall also be borne by the Insurance
Company. Recording of evidence before the Local Commissioner
shall commence w.e.f. 11.10.2023 at 02.00 pm onwards. Date
has been given as per convenience of the parties. After the list of
witnesses is provided by the parties, the evidence shall be
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
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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.
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 Judges Library/Court Room 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.
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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.
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/-
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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.
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
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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.
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
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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 Insurance Company directly for the work carried out by way
of cash, cheque or digital mode.
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 -
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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 on 27.03.2024. Proceeding sheet shall be prepared
by the Local Commissioner on every date fixed for evidence and
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copy be supplied to the parties/Ld. counsels on the same day or
the very next day physically or electronically.
All the parties are directed to appear before the
Local Commissioner on the dates fixed, in person or through
counsel. Let notice be issued to R-1 and R-2 to appear before the
Ld. Local Commissioner for recording of evidence.
It is made clear that any adjournment is sought
by either party before the Local Commissioner on date fixed,
shall entail cost of Rs.1,000/- to be paid to the Local
Commissioner, if he/she 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/09.08.2023 (J)
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