Bombay High Court
Smt. Sanjiwani W/O Vishal Dhale vs Shri. Raj S/O Shyamraoji Kapse And ... on 7 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6683 OF 2015
PETITIONER : Smt. Sanjiwani W/o Vishal Dhale,
Aged about 39 years, Occu. Nil,
R/o A- 402, Sheth Heights,
Behind Ashish Cinema, Chembur,
Mumbai - 400 074.
- VERSUS -
RESPONDENTS
: 1] Shri Raj S/o Shyamraoji Kapse,
Aged Major, Occupation : Business,
Resident of Plot No. 661, Sanjay Maidan,
Opposite Jaswant Cinema, Nagpur.
2] National Insurance Company Ltd.
Division No. 10, Plot No. 101-106,
N-1, BMC House, Connaught Place,
New Delhi, through its Divisional Office,
Firdos Chambers, Dhantoli, Nagpur.
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Mr. A. K. Choube, Advocate for the petitioner.
Mr. S. D. Sirpurkar, Advocate for the respondent no.2.
None for the respondent no.1
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CORAM : PRASANNA B. VARALE, J.
DATE : SEPTEMBER 07, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is heard finally at the
stage of admission itself.
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2] The petition challenges the order passed by the learned
Member, Motor Accident Claims Tribunal - 4, Nagpur, dated
18.11.2015 in Claim Petition No. 892 of 2005, thereby rejecting the
application (Exh.62) filed by the petitioner seeking opportunity to lead
evidence by setting aside order of closing the case for argument.
3] A very short controversy is involved in the present petition.
The petitioner is the victim of a motor accident and is a Homeopathy
practitioner. On 11.04.2005 at about 6.40 in the morning, when the
petitioner was proceeding for morning walk along with one of her
friends, a car vehicle bearing No. MH-31/AL-9938 came in high speed
and gave dash to the petitioner, causing serious injuries to her. The
petitioner was admitted in a private hospital and was subjected to a
surgery removing her spleen.
4] It is the case of the petitioner that due to the accident, the
petitioner is subjected to permanent disability and a claim for
compensation of Rs.7,17,887/- was filed initially and subsequently the
same was amended by claiming compensation to the tune of
Rs.16,52,732/-. The petitioner in support of her case/claim, has
examined witness no.4 Dr. Satyajeet Jagtap, one of the Orthopaedic
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Surgeon. The said witness was subjected to cross-examination at the
instance of respondent no.2 - Insurance Company. During cross-
examination, the counsel for Insurance Company put a question to the
witness and the reply of the witness to that question reads thus -
"I am not aware guidelines issued by the Maharashtra
Orthopedic Association."
Then, the learned counsel for the respondent-Insurance Company made
a request to defer the cross-examination on the ground that the witness
want to refer guidelines issued by the Maharashtra Orthopedic
Association and accordingly, the cross-examination was deferred by
order dated 24.09.2013 and the matter was adjourned by recording this
fact.
5] It is the submission of Mr. Choube, the learned counsel for
the petitioner that abruptly, the Claims Tribunal then passed the order
of closing the case for final arguments. The petitioner immediately
submitted an application for grant of an opportunity to lead evidence by
setting aside the order of closing case for argument. The application
was opposed by filing say at the instance of respondent-Insurance
Company submitting that the matter is very old and adjourned from
time to time. It is further submitted in the say that the application is
strongly opposed and needs no consideration. Accordingly, the Claims
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Tribunal passed the order, which reads thus :
"Perused the application and say. Heard learned
Advocate for the petitioner. Counsel for respondent
Insurance Company absent when called. The matter is
of the year 2005. Sufficient opportunity has been
given to petitioner to adduce evidence. Issues are
framed on 29.06.2006 and side of petitioner is closed
on 10.09.2015. Considering aforesaid time span,
there was sufficient time at the disposal of petitioner
to adduce further evidence. In the facts of the matter I
do not find it just to allow instant application.
Therefore, application stands rejected."
6] The learned counsel for the petitioner submitted that the
Claims Tribunal failed to consider that the petitioner was prosecuting
her claim in a lawful manner and oral evidence was tendered by her by
examining witness no.4 Dr. Jagtap. The learned counsel further
submitted that cross-examination of the said witness was deferred at the
request made by the learned counsel for respondent-Insurance
Company. The learned counsel submitted that the petitioner was
willing to lead further evidence in support of her case and an
opportunity ought to have been given to the petitioner, but the Claims
Tribunal, without considering all these aspects, passed the order of
closing the case for argument and when the petitioner submitted
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application (Exh.62) for grant of opportunity to lead evidence, on
erroneous consideration rejected the application.
7] Mr. Sirpurkar, the learned counsel for the respondent no.2
- Insurance Company supports the order impugned in the petition.
8] As the facts giving rise to the petition are referred to above,
it is not necessary to repeat these facts. On a perusal of the material, I
find considerable merit in the submission of the learned counsel for the
petitioner. It reveals from the perusal of the material that the petitioner
in support of her claim, examined Orthopedic Surgeon Dr. Jagtap
(PW4). The witness was subjected to cross-examination and the
counsel for the respondent-Insurance Company made a request to defer
the cross-examination on the ground that the witness want to refer
guidelines issued by the Maharashtra Orthopedic Association. Thus,
these facts clearly show that the petitioner/claimant was not at fault for
postponing the claim petition on the ground of cross-examination being
deferred. It was for the respondent no.2 to approach the Claims
Tribunal for further cross-examination as the learned counsel for
respondent Insurance Company wanted to refer the guidelines issued by
Maharashtra Orthopedic Association. Either the learned counsel for the
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respondent-Insurance Company could have approached with the
guidelines for further cross-examination of the witness or he could have
requested the Court to permit to cross-examine the witness further, if
the guidelines were not available with him. Without resorting to any of
such exercise, the respondent-Insurance Company in the claim petition,
opposed the application submitting that the application needs no
consideration as the matter is old and adjourned from time to time and
really speaking, it does not lie in the mouth of a party, on whose request
the cross-examination was deferred.
9] Be that as it may. The Claims Tribunal ought to have
considered the fact that the cross-examination was deferred at the
instance of the respondent -Insurance Company. The Claims Tribunal
observed that when the application was heard, the counsel appearing
for the Insurance Company was not present in spite of he being called
before the Court. The Claims Tribunal ought to have considered that
rejection of the application, that too when the claimant/petitioner was
not at fault, resulting in prohibiting the claimant/petitioner to avail
opportunity to lead evidence, was certainly causing a serious prejudice
to the petitioner/claimant. Thus, the order passed by the Claims
Tribunal impugned in this petition is clearly unsustainable and the
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petition deserves to be allowed.
10] In the result, the writ petition is allowed.
The impugned order dated 18.11.2015 passed by the
learned Member, Motor Accident Claims Tribunal, Nagpur in Claim
Petition No. 892/2005 on application Exh.62 is quashed and set aside.
The application (Exh.62) is allowed. The petitioner/claimant is
permitted to lead evidence.
Needless to state that in view of these facts, the order
passed by the Claims Tribunal of closing the case for argument is also
quashed and set aside.
Considering the facts namely, the claim petition is filed in
the year 2005, issues are framed in the year 2006 and some witnesses
are examined till 2013, the Claims Tribunal shall endeavour to decide
the claim petition as early as possible or before 31st of March, 2017.
Rule is made absolute accordingly. No order as to costs.
JUDGE
Diwale
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C E R T I F I C A T E
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correct copy of original signed Judgment/Order."
Uploaded By : Parag P. Diwale, P.A. Uploaded on: 14.09.2016
