Rajesh Sharma vs Gurucharan Singh and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred against an order dated 13th May 2005 in Claim Case No. 78/2004 passed by the First Additional Member of the Motor Accident Claims Tribunal, Vidisha (M.P.), rejecting the entire claim of the applicant/appellant under Order 17 Rule 3 of C.P.C. for absence of the claimant/petitioner and his failure to produce witnesses for examination despite availing of sufficient opportunities. The contention of the learned counsel for the appellant before this court is that claim case No. 78/2004 filed by the claimant when was posted on 13th May 2005 for evidence, he was prevented from appearing before the learned tribunal as he shifted his relative to the hospital and in such premises, he could not appear with his witnesses for evidence. Consequently, his claim was dismissed for want of prosecution. It is submitted by the counsel that the provisions for award of claim amount for injuries caused in accident is a benevolent law and the claimant could not be deprived of the fruits for such a reason, which is bona fide. Hence, it is prayed that the learned tribunal may be directed to afford only one more opportunity for producing evidence subject to payment of cost, payable to the opponent with such other suitable conditions as the appellate court/tribunal may impose.

On the other hand, learned counsel for respondents vehemently opposed the prayer of the claimant for affording him one more opportunity even on the condition of imposing the cost and on other conditions for leading evidence by the claimant. It is contended by them that the claimant was negligent in not keeping his witnesses present on the last two dates. It is submitted that even on last date when the matter was fixed, neither the claimant nor any of his witnesses were present before the tribunal. No application or any document showing plausible cause for absence of the claimant or his witnesses was filed. In these circumstances, the learned tribunal rightly dismissed the claim petition for want of prosecution. Hence, it is prayed that the appeal filed against the order impugned is liable to be dismissed with heavy cost.

Heard the learned counsel for the parties and also perused the papers filed on record.

It appears that prior to 13th May 2005 fixed for evidence of the claimant, first opportunity was given on 16th April 2005 and second on 28/4/2005. On the last date, i.e., 13th May 2005 when the matter came up neither the claimant nor his witnesses were present before the tribunal for recording evidence. Learned counsel appearing on behalf of the claimant informed the tribunal that the claimant had gone to Bhopal for treatment of his relative. It is also gathered from the record of the case that the claimant neither submitted the list and correct addresses of his witnesses proposed for evidence. No process fee for summoning the witnesses was deposited before the tribunal. As such, the witnesses were not summoned for evidence on the posted date. It is also apparent that no affidavits on behalf of the claimant and his witnesses were produced prior to the date of evidence and on the date of hearing no application under Order 17 Rule 1 and 3 C.P.C. seeking adjournment on the ground mentioned above was filed before the learned tribunal.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), : the Hon. Apex Court dealt with the question relating to the adjournments under Order 17 C.P.C. and was pleased to observe as follows: -

Order 17 of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to the costs of adjournment. The awarding of costs has been made mandatory. Costs that can be awarded are of two types. First, costs occasioned by the adjournment and second such higher costs as the court deems fit.

While examining the scope of the proviso to Order 17 Rule 1(1) that more than three adjournments shall not be granted, it is to be kept in view that the proviso to Order 17 Rule 1(2) incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order 17 Rule 1(1) and Order 17 Rule 1(2) has to be read together. So read, Order 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on the number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained the third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalised on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though the circumstances may be beyond the control of a party, further adjournment cannot be granted because of the restriction of three adjournments as provided in the proviso to Order 17 Rule 1.

In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (take the example of the Bhopal gas tragedy, Gujarat earthquake and riots, and devastation on account of the tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of the practice having been developed to award only nominal costs even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic, and as far as possible actual costs that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable, but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save the proviso to Order 17 Rule 1(1) from the vice of Article 14 of the Constitution, it is necessary to read it down so as not to take away the discretion of the court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the court by resorting to the provision of higher costs which can also include punitive costs in the discretion of the court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment, let alone the first, second or third adjournment, is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict the grant of adjournments.

Costs:

Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 only one opportunity (2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer''s fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.

At this stage, as both the parties agree and they have given their approval for affording one more opportunity to the claimant/appellant for adducing his evidence before the tribunal within three months from the date of the present order, this appeal stands allowed subject to make compliance of the conditions mentioned below:-

(a) The claimant/appellant shall deposit Rs. 5,000/- (Rs. Five thousand only) by way of cost-cum-compensation payable to the appearing defendants within one month from today.

(b) The claimant and appearing defendants shall deposit the list of proposed witnesses with correct addresses alongwith process fee and expenses for appearance of witnesses before the tribunal and thereafter the tribunal shall issue summons to the proposed witnesses for their appearance before the tribunal for recording their evidence or both the parties shall keep their witnesses present on the date of recording evidence at their risk.

(c) The contesting parties shall also file the affidavits of witnesses (under Order 18 rule 4 C.P.C.) within one month from today. The parties shall also follow the provisions contained in Order 18 Rule 2 C.P.C. in strict sense. The tribunal is also directed to disposed of the present case finally within six months from the date of the order of this appeal.

(d) It is also made clear that the claimant and contesting opponents shall not seek any unnecessary adjournments which may cause delay in disposal of the case.

(e) The cost of the appeal shall be borne by the parties.

Accordingly, the appeal stands allowed and the impugned order is set aside. The Registry is directed to dispatch the record of the tribunal as early as possible on priority basis.