Shriram General Insurance Company Limited vs Renuka Haldar And Others

S.K. Mishra, J

This Writ Petition has been preferred by the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) challenging the order dated 29.03.2019 passed in MAC Case No.101 of 2014, vide which its prayer to recall the prosecution witnesses for their cross-examination was rejected based on a memo filed by the learned Counsel for the Claimants (present Opposite Party Nos.1 to 4) to the effect, he is unable to produce the said witnesses for their cross-examination.

The case of the Petitioner-Insurance Company is that, being noticed by the Court below, it could not appear in time and could not be able to file its Written Statement on the date fixed. Hence, it was set ex-parte and the Claimants (present Opposite Party Nos.1 to 4) lead their evidence and documents were marked as Exts.1 to 9. Knowing about the said ex-parte order, the Petitioner-Insurance Company appeared and filed an application for setting aside the ex-parte order under Order-9, Rule 7 of C.P.C. After the said Petition was allowed on 23.4.2018 by the Court below, cost being paid in terms of the said order, its Written Statement was accepted and taken into record. There after it came to its notice that during the said period, the Claimants (present Opposite Party No.1 to 4) have already examined two witnesses. Knowing about the same, the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) filed an application to recall all the prosecution witnesses at its cost.

In reply, learned Counsel for the Claimants (present Opposite Party Nos.1 to 4) opposed the said prayer made in the petition filed by the Insurance Company by filing a memo stating therein that he is unable to produce the witnesses for cross-examination. The Court below, without applying judicious mind, mechanically accepted the said memo, thereby debarred the present Petitioner-Insurance Company to cross-examine the prosecution witnesses, even though with all fairness, it was indicated in the prayer of the said petition that the said witnesses be recalled for their cross-examinations at the cost of the present Petitioner-Insurance Company.

Though notices were duly served on the Opposite Party Nos.1 to 4, they go unrepresented. Heard learned counsel for the petitioner as well as learned counsel for the Opposite Party No-5.

Admittedly, the prosecution witnesses were examined before appearance of the present Petitioner-Insurance Company (Opposite Party No.2 before the Court below) and the documents were marked as Exts.1 to 9. Thereafter the petition of the Petitioner-Insurance Company was allowed recalling the ex-parte order and it was allowed to file its Written Statement subject to payment of cost.

In view of the above admitted facts on record, this Court is of the view that the Court below ought to have allowed the petition of the present Petitioner-Insurance Company giving it opportunity to cross-examine the prosecution witnesses. However without assigning any cogent reason, the Court below has mechanically rejected the said petition for recalling the prosecution witnesses for their cross-examination.

Accordingly, the order dated 29.03.2019 passed by the 3rd M.A.C.T., Dhenkanal in MAC Case No.101 of 2014 is set aside and the Court below is directed to ensure presence of the said prosecution witnesses at the cost of the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) for their cross-examinations and proceed further in accordance with law. It is made clear, if the claimants fail to produce the said witnesses for their cross examination, the evidences of the said PWs shall stand expunged.

A query being made by the Court, Mr. Khan, learned Counsel for the Petitioner-Insurance Company submits, MAC Case No.101 of 2014 stands posted to 4th December, 2023 for hearing.

In view of the above, the Petitioner and Opposite Party No.5 are directed to appear before the Court below on 4th December, 2023 and produce this order enabling the Court below to act in terms of the direction given above and proceed further in accordance with law. Since the claim application is of the year 2014, the court below shall do well to dispose of MAC Case No.101 of 2014 at the earliest, preferably within a period of six months from 4th December, 2023.

With the aforesaid observation and direction, the Writ Petition stands disposed of.

Urgent certified copy of this order be granted on proper application. Apart from the same, to avoid delay, parties are at liberty to act upon the digitally signed copy of this order available in the Website of this Court.

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