Civil Revision No.5287 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5287 of 2008
Date of decision: 6.2.2009
New India Insurance Co. Ltd. ...Petitioner
Versus
Smt. Amardeep Kaur and others ...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. R.C.Gupta, Advocate for the petitioner.
Mr. Maharaj Baksh Singh, Advocate for respondents
S.D.ANAND, J.
The petitioner-insurer examined the Surveyor at the trial and,
thereafter, also applied for recording of statement of an official of the
Licensing Authority on commission because that witness is based at
Gwalior and he cannot be compelled to attend the Court. The plea was
declined by the learned Trial Court by observing that the petitioner-insurer
had already examined the Surveyor who had “verified the license and
tendered the report of the licensing authority”. In that context, the Tribunal
also noticed that respondents no.1 and 2 (driver and registered owner
therein) were not contesting the petition and, that being so, “there is
nothing on record to rebut the report of RW1.”
Learned counsel for the petitioner-insurer has shown to this
Court a certified copy of the statement made by the Surveyor (Dr. Joseph
R. Masih son of late Shri Kirpal Masih, resident of House no.49, Shivalik
Vihar, Naya Gaon, District Mohali.). In the course of that statement, the
witness placed on record the original investigation report (Ex. R-1).
However, in the course of the cross-examination, he conceded (as correct)
Civil Revision No.5287 of 2008 -2-
a suggestion that he had not verified the licence from the licensing
authority. He had earlier stated in the examination-in-chief that he had
obtained the copy of driving licence from the (registered) owner.
The procedural law is categorical in indicating that a witness
within a particular distance can be compelled to appear before the Court;
while beyond a particular distance cannot be compelled to appear in the
Court and their statement has to be recorded on commission. Gwalior,
where the licensing authority is based, is concededly in the latter category.
The insurer company perhaps wants to prove that the driving licence
aforementioned was not proper. The plea proposed to be raised thereby
would be for exoneration from liability. Whether the plea comes to be
accepted or negatived is a matter which would be for adjudication by the
Tribunal. It is not appropriate to observe that evidence of the witness being
un-rebutted, there is no need to examine the indicated witness on
commission as it would, even otherwise, amount to duplication of evidence.
How, exactly, the allowance of the plea would amount to duplication of
evidence is beyond comprehension. It is not a case where there has been
any inordinate delay on the part of the Insurer to put in the plea for
examination of Gwalior based witness.
In the light thereof, petition shall stand allowed. The impugned
order shall stand set aside. Learned Tribunal shall proceed to take
necessary steps for examination of (an official of) the licensing authority ,
Gwalior on commission.
The stay order dated 29.9.2008 shall stand vacated. The
vacation of stay order shall be communicated to the Court concerned
forthwith.
February 06, 2009 (S.D.Anand) Pka Judge