Savithri and Others vs Afsarhusen and Others

B. Veerappa, J—The above writ petitions are filed by the claimants against the order dated 2.5.2015 on I.A. Nos. 7 and 8 made in MVC. Nos. 203/10 rejecting their applications.

It is the case of the petitioners, that they have filed claim petition claiming compensation of Rs. 15,25,000/- for the death of the husband of petitioner No. 1 and father of petitioners 2 and 3 in the road accident which took place on 10.10.2008, contending that the accident took place due to rash and negligent driving on the part of the driver of the Truck bearing No. AP.29 T.6604, etc.

After issuance of notice, respondent-1 was placed ex-parte and respondent-2 insurance company filed objections and denied the averments made in the claim petition and sought for dismissal of claim petition.

After completion of evidence of PW.1, the petitioners filed I.A.7 under Order 26 Rule 4 of Code of Civil Procedure, to appoint the Court Commissioner to examine a witness Dr. Prashant Kadakol, a Nero Surgeon, who treated the deceased, on the ground that the deceased has taken treatment as indoor patient for more than 35 days and they have spent Rs. 3 lakhs for medical expenses and also filed another application I.A.8 under Order 13 Rule 10 of Code of Civil Procedure for production of documents, such as, admission and discharge card, x-rays, scan reports and medical bills and other documents issued by the said Dr. Prashant Kadakol. The said application was resisted by the 2nd respondent-Insurance Company by filing objections. After hearing both the learned Counsel for the parties, the Tribunal by its impugned order dated 02.05.2015 rejected the said applications.

Against the said orders the present writ petitions are filed.

I have heard the learned Counsel for the parties to the lis.

Sri. H.S. Maigur, learned Counsel for the petitioners has contended that the impugned orders passed by the court below is contrary to law, facts and probabilities of the case. The applications filed by the claimants is to appoint Court Commissioner to examine the witness Dr. Prashant Kadakol, Neuro Surgeon who treated the deceased and also to direct the doctor to produce documents such as admission and discharge card, X-Rays, scans with report and medical bills and any other documents pertaining to deceased Hanamant Gombaragi. The trial court ought to have allowed the said applications and also contended that the rejection of the applications by the court below is contrary to law and requires to be set aside. Accordingly, he sought for allowing the writ petitions.

Per contra, Sri. N.R. Kuppelur, learned Counsel appearing for respondent-2/Insurance Company sought to justify the impugned order.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record.

It is not in dispute that due to rash and negligent driving on the part of the driver of the truck the accident took place on 10.10.2008 and due to the said accident the husband of the petitioner No. 1 and father of petitioners-2 and 3 died. A criminal case is also registered against the driver of the truck which is pending for adjudication between the parties. It is also not in dispute that the deceased was treated by Dr. Prashant Kadakol, Neuro Surgeon, Vijayapura, as an inpatient from 10.10.2008 to 14.11.2008 for a period of 35 days. According to the petitioners they have spent about Rs. 3 lakhs for medical expenses. But unfortunately, they could not save the deceased and sole bread earner of the family passed away. Therefore, they have filed the present applications, to appoint Court Commissioner to examine the doctor who treated the deceased and also for production of documents, to prove their claim before the Tribunal. The Tribunal considering the applications and objections filed by the respondent-2, has rejected the applications only on the ground that the petitioners have not made out any ground as to what is the necessity to appoint the Commissioner to examine the witness who is residing at Bijapur, which is nearby place to this Court, i.e., 60 Kms. from Jamakhandi and anybody can easily come and give evidence and it is also not mentioned as to what are the efforts made by the petitioner to get the documents sought to be produced from the doctor, whether they have failed to get the said documents from his custody or whether he has refused to give the said documents and also refused to give evidence by coming over to court. The petitioners have failed to put forth their case properly. On these grounds the application is rejected.

The Tribunal failed to take notice that the very petition filed by the claimants is for claiming compensation and they want to produce certain documents to prove their case and they want to examine the doctor who treated the deceased, contending that they have spent Rs. 3 lakhs for treatment and medical expenses and it is also contended by the petitioners that the doctor is very busy at Vijayapura. Unless the court summons is issued he will not be available and he cannot come to court to give evidence. Therefore, by way of abundant caution, they have filed the present applications. The provisions of Order 26 Rule 4(a) clearly indicates that any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any Suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence. The said provision makes it clear that in the interest of justice courts at any time can examine witnesses for expeditious disposal. In the present case, the petitioner wants to examine the doctor by appointing Court Commissioner and to produce documents issued by him at his instance and it will in no way prejudice the case of the Insurance Company and ultimately, the parties have to prove their respective cases only after giving proper evidence and producing proper documents. Therefore, in the interest of justice as contemplated under Order 26 Rule 4 of Code of Civil Procedure, the applications filed by the claimants has to be allowed and the impugned order cannot be sustained.

In view of the aforesaid reasons, the application filed by the petitioners under Order 26 Rule 4 read with Section 151 of Code of Civil Procedure is allowed and the trial court is directed to appoint the Court Commissioner as suggested by both the parties to the lis to examine the witness Dr. Prashant Kadakol, Neuro Surgeon, Vijayapura, who treated the deceased subject to payment of necessary costs to be incurred by the claimants/petitioners. Consequently I.A. No. 8 filed under order 13 rule 10 read with Section 151 of Code of Civil Procedure is also allowed with a direction to the witness to produce the documents in his custody or in the alternative it is always open for the petitioners to obtain certified copies of the said documents and produce the same before the Tribunal to prove their case.

Accordingly, the writ petitions allowed in-part in the terms stated above.