New Howrah Transport Company vs National Insurance Company Ltd. ...
1987 Latest Caselaw 151 Del

JUDGMENT

S.B. Wad, J.

1. Respondent No. 1, National Insurance Company Limited, has filed a suit against the petitioner, New Howrah Transport Co. The plaintiff had insured the goods of respondent No. 2 which were to be transported by the defendant. The case is about the damage caused to the goods by the alleged negligence of the defendant. The insurance company appointed a company surveyor to assess the damage. I had called for the original record and had gone through it myself.

2. On November 25, 1986, the ADJ has recorded that, before the plaintiff was examined, two witnesses of the plaintiff were examined as no objection was raised by counsel for the defendant. Counsel for respondent No. 1 points out that there is a mistake in the order. In fact, only one witness was examined and that was formal witness, the surveyor appointed by the insurance company. The petitioner challenges the impugned order on the ground that it is contrary to Order 18, rule 3. According to him, before allowing any other witness to be examined before the plaintiff, the court ought to have recorded its reasons for this course to be followed.

3. The surveyor was a formal witness. He has to go to different places for performance of his duties. Therefore, for the sake of convenience, he was examined on that date. The defendant did not raise any objection and the court permitted the other witness to be examined before the plaintiff. In the interest of justice, it is treated to be substantial compliance with Order 18, rule 3.

4. In fact, the Division Bench (Maguni Dei v. Gouranga Sahu, AIR 1978 Orissa 228) has followed the same course.