Rupeshbhai Arvindbhai Vekariya vs Ranchhodbhai Bhurabhai Rojiya
2023 Latest Caselaw 2860 Guj

     C/SCA/6161/2023                                 ORDER DATED: 11/04/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 6161 of 2023

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              RUPESHBHAI ARVINDBHAI VEKARIYA
                             Versus
              RANCHHODBHAI BHURABHAI ROJIYA
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 11/04/2023

                               ORAL ORDER

1. Challenge in this petition is given to an order dated

28.02.2023 passed below application Exh. 88 in Motor Accident

Claim Petition No. 285 of 2009 by the learned Accident Claim

Tribunal (Special), Rajkot (the Tribunal), whereby, the learned

Tribunal has rejected the said application of the petitioner -

original claimant seeking permission to cross-examine the

summons witness.

2. Heard, learned advocate Mr. Nishit Bhalodi for the

petitioner. It is submitted that summons was sent to the driver of

the vehicle involved in the accident at the instance of the

C/SCA/6161/2023 ORDER DATED: 11/04/2023

insurance company, which was served to his family member,

however, at the relevant time, the said driver failed to appear

before the Tribunal and therefore, the insurance company, vide

Exh. 83, file Closing Pursis on 12.10.2021. The learned advocate

for the petitioner submitted that application for witness summons

was moved on 11.01.2019, which came to be granted and

Summons, Exh. 61 was issued on witness, who was informed to

remain present on 29.01.2019. When bailiff had visited the

house of the witness, he was not present and hence, the

summons was handed over to the daughter of the witness. The

summons was also sent to the witness by RPAD. It is submitted

that on 13.01.2023, the witness - driver remained present before

the Tribunal and filed an affidavit, Exh. 87.

2.1 It is further contended by the learned advocate for the

petitioner that the insurance company did not examine the

witness and when a prayer was made by the petitioner - claimant

to avail the right to cross-examine the said witness, the same

came to be rejected by the learned Tribunal by way of impugned

order on the observations that, after the lapse of four years from

service of summons, the witness has suddenly appeared and filed

an affidavit which itself creates suspicion about his credibility. It

was further observed that the witness not being a party to the

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claim petition, cannot give evidence. It is observed that the

insurance company was also not interested in examining the said

witness and had filed Closing Pursis, Exh. 89 on 12.10.2021. The

Tribunal was of the view that no permission can be granted to the

claimant to cross-examine the witness.

2.2 The learned advocate for the petitioner - claimant

submitted that the driver, who had appeared before the Tribunal,

was a summons witness and such witness was called at the

instance of the insurance company and when his affidavit of

evidence has been taken on record at Exh. 87, the learned

Tribunal ought not to have denied right of cross-examining the

witness, even if, in case the insurance company was not

interested in examining their own witness. It is submitted that

there was no reason for the Tribunal to doubt the credibility of

the witness since being a driver of commercial vehicle, he would

not be available at his residential place and he would be

consistently plying the commercial vehicle.

2.3 It is further submitted by the learned advocate for the

petitioner that approach of the witness was not found bona fide

and in the circumstance, the Tribunal ought not to have accepted

the affidavit of evidence or could have inquired from the very

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witness about delay in approaching the Tribunal more particularly

when he was a summons witness. The learned advocate has

placed reliance on a decision in Sunita and Others v.

Rajasthan State Road Transport Corporation and Another,

2019 ACJ 801, where the Apex Court was of the view that, the

Motor Vehicles Act, 1988 (MV Act) does not preclude citing of the

witness in claim proceedings who is not named in the list of

witnesses in criminal case.

3. The driver, who has filed his affidavit of evidence at Exh.

87, was a witness to whom, summons was served at the instance

of the insurance company. This very fact itself, prima facie,

clears that the insurance company wanted to examine the said

person as their witness. Though summons was served at the

relevant time, his presence could not be procured before the

Tribunal and hence, the insurance company filed Closing Pursis,

Exh. 83 on 12.10.2021. On the day when the witness i.e. the

driver of the vehicle insured with the opponent No. 2 - insurance

company i.e. 13.01.2023 filed his affidavit, Exh. 87, the matter

was still open for both the parties as the matter gets concluded

only on judgment and award. During the trial process, either of

the parties could make prayer before the Tribunal for examining

the witnesses who are necessary for arriving at just conclusion of

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the matter. The Tribunal, rather, entertained the witness who

had remained present and accepted the affidavit of evidence

recorded at Exh. 87, the learned Tribunal was not right in

rejecting the application Exh. 88. In the decision in Sunita and

Others (supra), it has been observed in paragraphs 28 and 29

as under:

"28. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari v. Amir Chand, 2011 ACJ 1613 (SC) and reiterated in Mangla Ram, 2018 ACJ 1300 (SC), that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the

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Tribunal.

29. The importance of cross-examining a witness has been elucidated by this Court on several occasions, notably in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, where a Five-Judge Bench of this Court elaborated:

"278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross- examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

(2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;

and the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.

279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party."

(emphasis supplied)

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The High Court has not held that the respondents were successful in challenging the witnesses' version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondent's case, without any proper reasoning."

3.1 It has been observed in the said decision that strict

principles of proof in a criminal case will not be applicable in a

claim for compensation under the Act. There is nothing in the Act

to preclude citing of a witness in motor accident claim who has

not been named in the list of witnesses in the criminal case. What

becomes essential is that the opposite party should get a fair

opportunity to cross examine the concerned witness so that no

prejudice is caused to any of the litigating parties. If there was

any doubt to be cast on the veracity of the witness, the same

should have come out in cross examination, for which opportunity

was to be granted to the parties by the Tribunal. If at all there is

any suspicion on conduct of the witness, the same could have

been brought on record by the Tribunal and at the same time,

should have permitted the claimant to cross-examine the said

witness so that he could be accorded fair opportunity and no

prejudice is caused to him.

C/SCA/6161/2023 ORDER DATED: 11/04/2023

3.2 In the absence of allowing cross-examination, the very

evidence on record by Exh. 87 would remain unchallenged and

ultimately, the unchallenged version of the witness would be read

during the final conclusion while deciding the matter by way of

judgment and award and that would certainly cause prejudice to

the claimant. As observed in Sunita and Others (supra), the

approach in examining the evidence in accident claim cases is

not to find fault with non examination of some "best" eye witness

in the case but to analyse the evidence already on record to

ascertain whether that is sufficient to answer the matters in issue

on the touchstone of preponderance of probability. Whether, the

said witness is relevant or material or doubtful could be found

only when the said witness is put to cross-examination. Though

the insurance company has denied examining their own

summons witness, this opportunity could not have been denied to

the claimant as rejecting the application would certainly cause

prejudice and the learned Tribunal has, thus, committed error in

rejecting the application, since the statement of the witness is

always required to be put to the test of cross-examination so that

best evidence comes on record for just decision of the case.

4. For the forgoing observations and discussion, the petition

succeeds and is allowed accordingly. Impugned order dated

C/SCA/6161/2023 ORDER DATED: 11/04/2023

28.02.2023 passed below application Exh. 88 in Motor Accident

Claim Petition No. 285 of 2009 by the learned Accident Claim

Tribunal (Special), Rajkot is hereby set aside. Consequently, the

application Exh. 88 is allowed. The learned Tribunal concerned is

directed to call the summons witness for cross-examination by

the petitioner - claimant.

4.1 With aforesaid, the petition is disposed of.

[ Gita Gopi, J. ] hiren /22