Mr. Thomas Cardozo vs United Indian Insurance Co. Ltd.

S.C. Dharmadhikari, J.—Office note says that service is effected in terms of the order passed by this Court. None appears for the respondent/insurance company, although, it was stated in the morning session that an Advocate is engaged on behalf of the respondent. By an order passed by this Court on 22/02/2008, it was directed that the petitioner should pay process fee subject to payment of costs. Thereafter, this Court directed notice to be issued to the respondent. If costs are paid, then notice was to be issued. Costs are paid and notice is thus issued. I am informed by the petitioner that the Civil Suit is yet not disposed off.

It is, in such circumstances that I have taken up this Writ Petition for admission and final disposal.

The only grievance made in this case is that the petitioner had tendered affidavit-in-evidence of Mr. Stevan D''souza who is representing M/s. D''Souza Salvors. They are engaged in the business of salvaging, trawlers, barges and other marine equipments. The witness was examined by the petitioner/plaintiff, as an opinion was given that salvaging the engine was not feasible. His report was submitted to the respondent/company in that behalf.

It is stated that witness was to be cross-examined and matter was placed for that purpose. However, the trial Court has denied the opportunity to the petitioner/plaintiff to examine this witness, although his affidavit in lieu of examination in chief was ready and filed. The witness could not reach the Court on the dates specified, because initially there was a landslide at Porvorim and, subsequently, there was heavy traffic jam. The petitioner states that an application was made to the trial Court specifically requesting it to allow the petitioner to examine this witness. It is for the reasons beyond the control of the petitioner/plaintiff and the said witness, that the evidence could not be led and completed. In unusual and extraordinary circumstances, the request should have been granted, although, the matter was time bound. The time stipulated by this Court''s order had not expired and, therefore, by compensating the parties and putting the petitioner to some terms, the request could have been granted.

This is the sum and substance of the plea which is raised in this petition and reiterated orally before me. I have perused the petition and annexures before me including the impugned orders. There is no denial of the petitioner''s averments nor is anybody present on behalf of the respondent today, when the matter was called out. Without entering into any larger controversy with regard to the maintainability of the Application before the Trial Court, interest of justice would be subserved if the petitioner/plaintiff is granted last opportunity to examine Mr. Stevan D''souza as his witness. The petitioner/plaintiff states that on this occasion, he and his lawyer would not seek unnecessary adjournments and would fully co-operate with the Court in early disposal of the case. He would remain present on the date and time stipulated by the Court or else would suffer the consequences in default. It is in this light and considering that the petitioner/plaintiff agrees to pay further costs quantified at Rs. 1,000/- which be paid to the respondent/Insurance Company in the Trial Court, that the following order is passed:

(i) The petitioner/plaintiff to examine Mr. Stevan D''souza as plaintiff''s witness no. 3 on 4/08/2008 and to complete the recording of that witness as stipulated in the trial Court''s order. Needless to state that if the witness is absent on the said date, the plaintiff''s right to examine Mr. Stevan D''souza shall stand forfeited. In the event Mr. Stevan D''souza attends the Court, the trial Court to examine him and thereafter allow the respondent to cross-examine the witness after ensuring that the petitioner/plaintiff has paid the costs quantified by this Court.

(ii) In default of attendance of the witness and the petitioner''s Advocate, the benefit of this order would not be available to the petitioner/plaintiff.

(iii) The petitioner to pay costs by 30/07/2008.

Petition disposed of in the above terms. No order as to costs.