Gautam Karande vs Tilok Tholasi and Others

F.M. Reis, J.—Heard Shri Shivan Desai, learned counsel appearing for the petitioner, Shri J.J. Mulgaonkar, learned counsel appearing for Respondent No. 1 and Shri E. Afonso, learned counsel appearing for Respondent No. 3. Rule. Heard forthwith with the consent of the learned counsel. Learned counsel appearing for the respondents waive service. The Respondent No. 2 is not present, but however the notice issued to him clearly stated that the matter would be disposed of finally at the stage of admission.

The above petition challenges an order dated 18/10/2011 passed by the learned Motor Accident Claims Tribunal at Panjim in Claim Petition No. 6/2008 whereby an application filed by the petitioner for adjournment to examine second witness of the petitioner came to be rejected.

Shri Shivan Desai, learned counsel appearing for the petitioner has assailed the impugned order on the ground that the petitioner was seeking for the first time an adjournment to examine the second witness which the learned Judge has erroneously rejected. The learned counsel further points out that the learned Judge has relied upon the past conduct whereby adjournments were granted in favour of the petitioner to reject the application for adjournment on the relevant date. The learned counsel further points out that as the concerned witness was not available on the said date the petitioner was forced to seek an adjournment on the relevant date which the learned Judge has not granted. The learned counsel further points out that the records do not reveal that the opposite party has raised any objection to such adjournment. The learned counsel further submits that the learned Judge has erroneously relied upon the amendment to the CPC in the year 2002 in refusing adjournment under the provisions of CPC though they are not applicable to proceedings before the Claims Tribunal. The learned counsel, as such, submits that the impugned order deserves to be quashed and set aside. The learned counsel in support of his submissions has relied upon the judgment of this Court reported in Mr. Agostinho Godinho Vs. Mrs. Maria Eufrezita Paulina Lydia Fernandes e Rodrigues, . to advance the submission that the previous conduct of the petitioner would not by itself be a ground to refuse an adjournment on the relevant date.

On the other hand, Shri E. Afonso, learned counsel appearing for Respondent No. 3 has pointed out that he has no objection in case the petitioner is allowed to examine the witness in support of their case.

Shri J.J. Mulgaonkar, learned counsel appearing for Respondent No. 1 has joined issue with the contention of the learned counsel appearing for Respondent No. 3 and pointed out that the petitioner is unnecessarily delaying the matter by raising frivolous contentions to seek adjournment. The learned counsel has pointed out that the learned Judge has rightly exercised jurisdiction in refusing adjournment which does not call for any interference in the present petition.

I have considered the submissions of the learned counsel and I have also gone through the records. This Court in the case of Mr. Agostinho Godinho Vs. Mrs. Maria Eufrezita Paulina Lydia Fernandes e Rodrigues, has relied upon the judgment of the Apex Court and observed at para 8 thus: 8. The Apex Court in the Judgment reported in State Bank of India Vs. Km. Chandra Govindji, , has held at paragraph 7 thus:--

In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that in the past adjournments had been sought for would not be of any materiality. If the adjournment had been sought for on flimsy grounds the same would have been rejected. Therefore, in our view, the High Court as well as the learned District Judge and the Rent Controller have all missed the essence of the matter.

Considering the said judgment of the Apex Court, this Court finds that the past conduct of the petitioner would not be material to find out whether the petitioner was entitled for an adjournment on a particular day. In the present case, it is not in dispute that prior to 14/06/2012, the matter was fixed before the Commissioner for recording of evidence of the petitioner. Considering that the petitioner was infirm and was unable to proceed with the recording of the evidence the Commissioner felt it fit to return to the matter.

Taking note of the ratio laid down by this Court in the said judgment, I find that the grounds on which the application is refused considering the past conduct of the petitioner whilst recording his evidence are not justified to refuse the adjournment on the relevant date. The petitioner had raised a ground that the witness was not available on the relevant date to be examined in support of his case. This fact has not been disputed by the respondents. In such circumstances, I find that the learned Judge has acted with material irregularity in refusing the application for adjournment. Apart from that an adjournment in proceedings before the Claims Tribunal and the recording of evidence in such proceedings are governed by Rule 289 and Rule 292 of the Goa Motor Vehicles Rules, 1991. Taking note of the overall facts and circumstances of the case, I find that the learned Judge ought to have granted the application and permitted the petitioner to record the evidence of the witness in support of the claim petition. In the peculiar facts and circumstances of the case, taking note of the fact that the claim petition has been filed to claim compensation in view of the death of the victim in a motor accident, I find that the impugned order passed by the learned Judge deserves to be quashed and set aside and the petitioner be permitted to examine the witness in support of their case in accordance with law.

In view of the above, rule is made absolute in terms of prayer (a). The petition stands disposed of. Mr. Desai upon instructions states that he will file the list of witnesses he desires to examine on the next date of hearing before the Tribunal.