Rakesh vs Sanju
2022 Latest Caselaw 3249 MP

Citation : 2022 Latest Caselaw 3249 MP
Judgement Date : 8 March, 2022

Madhya Pradesh High Court

Rakesh vs Sanju on 8 March, 2022

Author: Anil Verma

       HIGH COURT OF MADHYA PRADESH
1                                                             MP No.3185/2019

                             BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA

                   ON THE 8th OF MARCH, 2022

                MISC. PETITION No. 3185 of 2019

    Between:-
   RAKESH S/O LATE SHRI RAMSEVAK JI GUPTA , AGED
1. ABOUT   50   YEARS,   OCCUPATION:   BUSINESS 21,
   LAKKADGANJ MALIPURA, UJJAIN (MADHYA PRADESH)
   SMT. AALKA W/O SHRI RAKESH GUPTA , AGED ABOUT 45
2. YEARS, OCCUPATION: HOUSEHOLD 21 LAKKDANGAJ
   MALIPURA, UJJAIN (MADHYA PRADESH)
                                                     .....PETITIONER
    (BY SHRI Sourabh Neema Adv.)

    AND

   SANJU S/O BHANGARAM , AGED ABOUT 26 YEARS,
1. OCCUPATION: DRIVER MIRJAPUR KUBAHERI S.A.S. NAGAR
   (MOHALI) (PUNJAB)
   ARVIND KUMAR S/O BANARSIDAS , AGED ABOUT 27 YEARS,
   OCCUPATION:      TRANSPORTENSION     DHELA    POST
2.
   GURUMAJRA TEH. BASTI DIST. SOLAN( HIMALCHAL
   PRADESH) (HIMACHAL PRADESH)
   ORIENTAL INSURANCE COMPANY LIMITED THROUGH
   DIVSIONAL OFFICE ORIENTAL INSURANCE COMPANY
3.
   LIMITED MR 2 / I MIG , RISHINAGAR YATAYAT THANE KE
   SAMNE (MADHYA PRADESH)
                                                .....RESPONDENTS
    (SHRI Akshansh Mehra Adv. for respondent No.3)
This miscellaneous petition coming on for orders this day, the

court passed the following:

        Both the parties are heard finally at motion stage.




                            ORDER

1/ Petitioners have filed this petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 30.4.2019 passed by the Member, Motor Accident Claims Tribunal, Ujjain in Claim Case No.24/2018, whereby the HIGH COURT OF MADHYA PRADESH

petitioner's right to adduce evidence and examine witness - Police Constable D.T. Baviskar has been closed.

2/ Facts in brief are that petitioners/claimants have filed a claim petition before the below Tribunal. After completing the evidence of petitioner, case was fixed for evidence of respondent No.3 on 25.4.2019. On the same day petitioners have filed an application under Order 16 Rule 1 read with Section 151 of CPC stating that investigation of crime under Section 300-A of IPC was conducted by the Head Constable D.T. Baviskar (No.746) of P.S. Sirpur, but the same was rejected by the below Tribunal by the impugned order. Hence this petition has been filed.

3/ Learned counsel for the petitioner submits that the learned trial Court has erred in holding that examination of the said witness is not necessary for the proper adjudication of the matter. The impugned order passed by the trial Court is illegal and bad in law and will lead to miscarriage of justice. The petitioner is ready and willing to examine the said witness before the trial Court. The case is fixed for final arguments. Hence, he prays that impugned order dated 30.4.2019 be set aside and petitioners be permitted to lead evidence in support of their case.

4/ Per contra, learned counsel for the respondent No.3/insurance company opposes the same and prays for its rejection by supporting the impugned order passed by the below Tribunal.

5/ Learned counsel for both the parties heard at length and perused all the relevant documents filed by the parties.

6/ On perusal of the impugned order passed by the below Tribunal, it reveals that petitioner's prayer was declined by the below Tribunal only on the basis of the fact that sufficient HIGH COURT OF MADHYA PRADESH

opportunities have been given to the petitioner to adduce evidence and at the stage of final argument it would not be appropriate to reopen the case and examine the said witness Head Constable D.T. Baviskar, who was investigating officer in Crime No.6/2017 registered at P.S. Sirpur. To prove the fact of the accident, petitioners can file certified copy of Crime No.6/17 registered at P.S. Sirpur. The petitioners have not mentioned the name of the Head Constable D.T. Baviskar in the witness list. Petitioners have been given sufficient opportunity to adduce the evidence on 15.7.18, 27.8.18, 2.11.18 and 4.12.18. Petitioner himself has closed his evidence on his own accord at the earlier stage but at the stage of final argument he has filed an application to examine D.T. Baviskar in the case. Claim case pending before the Tribunal is more than 5 years old.

7/ Counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of K.K. Velusamy Vs. N. Palanisamy passed in Civil Appeal No.2795-2796 of 2011 vide judgment dated 30.3.2011, in which it has been held that:-

"Neither the trial Court nor the High Court considered the question whether it was a fit case for exercise of discretion under Section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings."

8/ In view of the above, it cannot be said that no opportunity of adducing the evidence was given to the petitioner by the trial Court. Therefore, this Court sees no reason to HIGH COURT OF MADHYA PRADESH

interfere in the impugned order. Learned court below has not committed any error in passing the impugned order.

9/ This miscellaneous petition sans merit and is hereby dismissed.

C.C. as per rules.

(Anil Verma) Judge trilok/-