Moonmoon Dhar & Ors. v. Karuna Tandon & Anr.

1. The petitioners, who are claimants seeking compensation, assail the impugned order dated 12.07.2023 passed by the learned Presiding Officer, Motor Accident Claims Tribunal (South-East), Saket Court, New Delhi[1] in the present writ jurisdiction under Article 227 of the Constitution of India.

2. Evidently, the matter is at the stage of leading evidence by the parties and the evidence of PW-1 i.e., the claimant-wife as also eye witness, namely Ms. Sitali Mandal and another witness as PW-3 has since been concluded. It appears that PW-4, namely Anurag Kumar, Director of United Biscuits Private Limited, was summoned as a witness, who produced as many as 17 documents on the record with regard to previous employment and details as to income salary being

1 Tribunal earned by the deceased, which documents are Ex.PW-4/A to PW-4/Q. The said witness has also been cross-examined lastly on 13.04.2023. It was at this stage that an application under Order XVIII Rule 17 of the Code of Civil Procedure, 1908[2] had been moved on behalf of the Insurance Company seeking to recall PW-1 and PW-2 for their further cross-examination.

3. The said application came to be decided by the learned Tribunal vide impugned order dated 12.07.2023, which reads as under:-

4. There is no gainsaying that provisions of Order XVIII Rule 17 of the CPC, for re-calling of any witness already examined by the Court, is a discretionary power, which can only be exercised by the Court in order to arrive at a just and fair decision on the matters in issue. However, this power has to be used sparingly and it cannot be allowed be exercised where a party moving the application wishes to fill up the lacuna in the previous examination or cross-examination, or seeks to introduce altogether new facts.

5. On a careful perusal of the impugned order merely because PW- 4 has brought some new evidence on the record with regard to employment and salary income of the deceased, it does not strike to reason as to why PW-2 has been ordered to be re-called, who is an alleged eye witness of the motor accident in question. She has nothing to do with the previous employment of the deceased and/or salary income that was being earned by the deceased. It has been sought to be urged by the learned counsel for the Insurance Company that further inquiries have revealed that PW-2 was employed as a maid servant with PW-1. I am afraid that merely on that ground alone, PW- 2 cannot be allowed to be re-called. The Insurance Company has a huge field staff at its disposal and such facts could have been easily ascertained by exercising due diligence.

6. However, insofar as PW-1 is concerned, there are shown some justifiable grounds to re-call her for her cross-examination qua the issue of salary income or earnings of the deceased.

7. In view of the foregoing discussion, the present Civil Misc. (Main) is partly allowed thereby setting aside the directions of the learned Tribunal to re-call PW-2 Ms. Shitali Mandal. However, the impugned order insofar as it directs recalling of PW-1 i.e., the claimant No.1, who is wife of the deceased is hereby sustained.

8. Accordingly, the remaining testimony of PW-1 qua earnings of the deceased may be recorded before the learned Local Commissioner appointed by the learned Tribunal, for which purpose, fresh dates may be given by the learned Tribunal.

9. The pending application stands disposed of.