RUPESHBHAI ARVINDBHAI VEKARIYA Vs. RANCHHODBHAI BHURABHAI ROJIYA

JUDGEMENT

(1.) Challenge in this petition is given to an order dtd. 28/2/2023 passed below application Exh. 88 in Motor Accident Claim Petition No. 285 of 2009 by the learned Accident Claim Tribunal (Special), Rajkot (the Tribunal), whereby, the learned Tribunal has rejected the said application of the petitioner - original claimant seeking permission to cross-examine the summons witness.

(2.) Heard, learned advocate Mr. Nishit Bhalodi for the petitioner. It is submitted that summons was sent to the driver of the vehicle involved in the accident at the instance of the insurance company, which was served to his family member, however, at the relevant time, the said driver failed to appear before the Tribunal and therefore, the insurance company, vide Exh. 83, file Closing Pursis on 12/10/2021. The learned advocate for the petitioner submitted that application for witness summons was moved on 11/1/2019, which came to be granted and Summons, Exh. 61 was issued on witness, who was informed to remain present on 29/1/2019. When bailiff had visited the house of the witness, he was not present and hence, the summons was handed over to the daughter of the witness. The summons was also sent to the witness by RPAD. It is submitted that on 13/1/2023, the witness - driver remained present before the Tribunal and filed an affidavit, Exh. 87.

(3.) The driver, who has filed his affidavit of evidence at Exh. 87, was a witness to whom, summons was served at the instance of the insurance company. This very fact itself, prima facie, clears that the insurance company wanted to examine the said person as their witness. Though summons was served at the relevant time, his presence could not be procured before the Tribunal and hence, the insurance company filed Closing Pursis, Exh. 83 on 12/10/2021. On the day when the witness i.e. the driver of the vehicle insured with the opponent No. 2 - insurance company i.e. 13/1/2023 filed his affidavit, Exh. 87, the matter was still open for both the parties as the matter gets concluded only on judgment and award. During the trial process, either of the parties could make prayer before the Tribunal for examining the witnesses who are necessary for arriving at just conclusion of the matter. The Tribunal, rather, entertained the witness who had remained present and accepted the affidavit of evidence recorded at Exh. 87, the learned Tribunal was not right in rejecting the application Exh. 88. In the decision in Sunita and Others (supra), it has been observed in paragraphs 28 and 29 as under: