Order 4

Order Details: COPY OF ORDER
Pdf Text: 3 MACT 241/23 MAHENDRA KUMAR Vs. SANJEET SARKAR
4 MACT 242/23 VEENA SHARMA Vs. SANJEET SARKAR
30.07.2024
Present:- Mr. Varun Sarin, Ld. Counsel for the Petitioner.
Mr. Raghav Tiwari, Ld. Counsel for R-1 Sanjeet Sarkar. ( Th
VC).
Mr. Awanish Kumar & Mr. Sanket Ambali, Ld. Counsels for
R-2/Insurance company.
WS filed on behalf of the insurance company. Copy
supplied.
WS already filed on behalf of R-1 Sanjeet Sarkar. Copy
supplied.
It is submitted by the Ld. Counsel for the Petitioner that the
respondent No.1 -Sanjeet Sarkar is the driver cum owner in the matter as
per the chargesheet filed by the IO. Amended memo of parties also filed.
From the pleadings of the parties, following issues are
framed :-
1. Whether Mahendra Kumar received injuries and
Shivam Sharma received fatal injuries in the road accident on 11.12.2022
at about 08.30 PM ahead of Rajput Resort, Poliganj due to rash and
negligent driving of motorcycle bearing no. UP-26AE-8360 being driven
& owned by respondent no.1 and insured with respondent no.2 (National
Insurance Co. Ltd.)?.... (OPP.)
2. To what amount of compensation the LRs of the
deceased are entitled and from whom? OPP
3. Relief.
No other issue arises or pressed.
Parties have agreed to lead the evidence before the Local
Commissioner.
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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 asunder :-
“.......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.
Accordingly, Mr. Sarthak Sharma, Advocate having Mobile
No.91-8941894019 is appointed as Local Commissioner to record
evidence of witnesses. Mr. Varun Sarin, Ld. Counsel for the Petitioner
having Mobile No. 9910160045 & 7906677699, Mr. Raghvendra
Tiwari, Ld. Counsel for Respondent no.1 ( Driver cum owner) having
Mobile No.9582499135 & Mr. Awanish Kumar Ld. Counsel for
National Insurance Company.
Fee of the Local Commissioner is fixed at Rs. 3000/- per witness,
which shall be paid by both the Insurance Company. The insurance
company shall bear the cost of leading petitioner/claimant's side
evidence as well as its own evidence. But in case of respondnet driver/
owner wants to lead evidence, he / they, himself/themselves shall bear
the cost of his/their own evidence. Diet money/misc. expenses shall also
be borne by the Insurance Company. The evidence shall be recorded in
post lunch session only. Further dates for recording of evidence shall be
given by the Local Commissioner himself after the list of witnesses is
provided by the parties. The evidence shall be recorded as per the
following Protocol :-
Recording of Evidence by Court Commissioner
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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 of identification of issues before the Tribunal 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 - Recording of evidence shallstart within
Ten days of identification of issues. Claimant shall leadthe
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.
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(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.
(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 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 5:00 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.
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(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 Commissionershall
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 fixedand
adjournment is sought by the opposite side, i.e. the side other
thanwho is leading evidence, without 24-hour advance notice, the
cost ofthat day's proceedings 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
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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 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.
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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 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.
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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 -
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
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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 and
final arguments on 29.10.2024.
Parties are at liberty to file written arguments, if any. All the
parties are directed to appear before the Local Commissioner on
the dates fixed, in person or through counsel. Ahlmad is directed to
inform the Ld. Local Commissioner. Copy of the order be given
dasti to Local Commissioner as well as Ld. counsel for Insurance
Company.
A copy of this order be placed in each of the case file.
(Sudesh Kumar)
Presiding Officer, MACT, SD,
New Delhi/30.07.2024 rd
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