Gopala Krishna Murthy Vs. B. Ramachander Rao and ors. - Court Judgment

Excerpt:
civil - summon to witness - order 16 rule 1 of code of civil procedure, 1908 - lower court rejected application made under order 16 rule 1 - party has right to make application under order 16 rule 1 seeking issuance of summons to witness to give evidence or to produce documents - court are under obligation to entertain application even it might cause delay in trial of suit. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - i think the approach made by the court below to the application filed by the petitioner was wholly erroneous and it resulted in its failure to exercise the jurisdiction which vested in the court, namely, issuing summonses under order xvi, rule 1, civil p. perhaps it is vague but that is no reason to dismiss the application, because the court can always call upon ( and in this case should have called upon ) the plaintiff to give better particulars of the documents required to be produced by shankermut. i think the contention of the learned counsel is well founded. a reading of all these authorities clearly supports the proposition submitted by the learned counsel for the petitioner. if a day, whether it be the first or a subsequent day, is fixed for hearing a case, the court is not bound ( and ordinarily ought not ) without very good reason being shown, to adjourn the hearing in order to give a party time to summon or produce his witness .but as long as the hearing of the suit merely stands adjourned, and so long as the party who wishes to summon witnesses has not closed his case, the court is bound to summon them. 4. in the instant case it had been noted that the suit was adjourned to some later date and if the reasoning in the above judgment has to be followed, clearly the court below was an error in not granting the application. in that view of the matter their lordships set aside the order of the trial court as well as that of the first appellate court which confirmed the order of the trial court and remanded the matter for a retrial. the law, therefore, is perfectly clear that as a matter of a general rule the court is bound to issue summonses to the witnesses if an application is made for summoning them at any time after the institution of the suit and before its decision and the court is not entitled to refuse to issue summonses to the witness on the ground that the application was made at a very late stage though the court is not bound in all cases to adjourn the hearing of the case to enable the witnesses to attend on the date of the hearing. a commission should issue as a matter of right, unless the court is satisfied that a party is merely abusing its authority to issue process. the learned judge also observed that it was clearly the duty of the high court to interfere, even in interlocutory proceedings, rather than permit a trial to go on an illegal course, which must entail unnecessary expenses to the parties and useless waste of time. in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the court.1. this revision petition is filed to revise the order of the ii assistant judge, city civil court, hyderabad, made in i. a. no. 163 of 1968 in o. s. no. 32 of 1967 on his file. the petitioner filed the said i. a. to issue summons to the manager, shankermut, hyderabad to produce the documents of title deeds. it is also contained another distinct prayer to direct shankermut to allow the commissioner and the engineer to take measurements of their site also. the second prayer in the petition in so far as it seeks a direction to allow the commissioner and engineer to take measurements of the shankermut is concerned had been rightly deleted by the petitioner. the application was opposed by the respondents on the ground that it was not necessary for the court to look into the documents of the shankermut and that the petition was filed only to delay the trial of the suit. as the manager of the shankermut had already replied to the plaintiff that the documents were not available with the local office at the mut and the documents were kept in the head office, belgam, mysore state, the learned judge considered that the crucial point for determination by him was whether it was necessary that the documents of shankermut should be looked into for the purpose of this trial and to enable the commissioner to take the measurements of the shankermut site also with reference to the title deeds of shankermut. i think the approach made by the court below to the application filed by the petitioner was wholly erroneous and it resulted in its failure to exercise the jurisdiction which vested in the court, namely, issuing summonses under order xvi, rule 1, civil p. c. in considering the question the lower court observed that shankermut, which was sought to be summoned for producing its documents of title, was not a party to the suit. i do not know why the court below thought it fit to mention the facts when it is self evident that the shankermut was not a party and the plaintiff was not seeking any relief against shankermut as such. it is plain that any person other than a party may always be summoned to produce documents in his possession or to give oral evidence on behalf of a party who makes an application in that behalf to the court. the court below in the course of its discussion had observed :--'in my opinion there is no need to look into the documents of the shankermut in order to determine the demarcating lines. ' then again it expressed itself in these terms : 'in these circumstances i feel that no useful purpose would be served by measuring the entire sites of shankermut on the southern side in order to fix up the demarcating line between the sites of plaintiff and the defendant. 'the court below also thought that i. a. no. 163 of 1968 should also be dismissed on a technical ground, having regard to rule 76 (21) of civil rules of practice which lays down that while summoning for a document, the description of the papers required to be produced by the witness should be given. the learned judge opined that in the application before hi the description of the document was not given and that the description of the document given was very vague requiring the manager of shankermut to produce the documents of title deeds. perhaps it is vague but that is no reason to dismiss the application, because the court can always call upon ( and in this case should have called upon ) the plaintiff to give better particulars of the documents required to be produced by shankermut. in my opinion the rejection of the application on this technical ground by the court below is unwarranted and this ground for rejection cannot be permitted to stand.2. the court below has not kept in mind the provisions of order 16, rule 1, civil p. c. in dismissing the present application. order 16, rule 1, civil p. c. provides for summons to be issued to witness who attend to give evidence or produce documents. it reads :'at any time after the suit is installed, the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents. 'counsel for the petitioner urged that the power conferred under order 16, rule 1, civil p. c. has always to be exercised by the court as application by the parties. in most matters of applications filed under o. 16, r. 1, civil p. c. the court has to issue summonses as prayed for by the applicant except in cases where the issuance of such summons in the opinion of the court would amount to an abuse of process of court or the court otherwise considers it vexatious or mala fide. i think the contention of the learned counsel is well founded. counsel on either side cited some authorities before me to which i shall presently refer. a reading of all these authorities clearly supports the proposition submitted by the learned counsel for the petitioner.3. in bhagchand v. musaji, air 1923 nag 58, batten, j. c. and hallifax, a. j. c. had to consider the provisions of order 16, rule 1, civil p. c. their lordships referred to an earlier case of moti v, kanya, ( 1909 ) 4 ind cas 797 of that court. they observed that that decision had held that under o. 16, r. 1, civil p. c. the court had no discretion in the matter of an application for summonses on witnesses if such an application is made before the day of hearing. the hearing may not be concluded on the date fixed and an adjournment may take place in the usual course of the progress of the trial and the court cannot refuse to allow any of the parties to reap the benefit of such an adjournment in the matter of giving evidence. they also referred to indro chunder baboo v. hamilton grant dunlop, ( 1868 ) 9 wr 530 and quoted the following observation therefrom :'there is nothing whatever in the code of civil procedure which earlier expressly or impliedly declares that witnesses must necessarily be summoned before the day fixed for hearing of the suit. if a day, whether it be the first or a subsequent day, is fixed for hearing a case, the court is not bound ( and ordinarily ought not ) without very good reason being shown, to adjourn the hearing in order to give a party time to summon or produce his witness ... ... ... ... ... ... ... ... ... ... ... but as long as the hearing of the suit merely stands adjourned, and so long as the party who wishes to summon witnesses has not closed his case, the court is bound to summon them. 'the division bench has further expressed its opinion that the law was quite clear that as an adjournment of the case was ordered and the plaintiff had not closed his case, the court was bound to grant summonses for witnesses named by the plaintiff.4. in the instant case it had been noted that the suit was adjourned to some later date and if the reasoning in the above judgment has to be followed, clearly the court below was an error in not granting the application.5. reliance was placed upon saibai v balkrishna, air 1925 bom 368 where a division bench ( macleod, c. j. and coyajee, j. ) referred to an earlier case of the bombay high court in bai hali v. alarakh pirbhai, ( 1890 ) 15 bom 86 under the old code of civil procedure which corresponds to o. 16, r. 1, of the code of 1908. in that case before their lordships the plaintiff had applied for summonses to be issued to the person mentioned in the list of witnesses filed in that court. this application was filed on 2-4-1921 while the suit stood adjourned to 13-4-1921. the lower court in that case had dismissed the application observing that the application was made at too late a stage in the suit and it was not possible to get the summonses served in time, as the date fixed for trial was only 13-4-1921. on appeal the order was confirmed. referring to the above order their lordships had observed that the judge was bound to issues summonses to the witnesses according to the plaintiff and that if then an adjournment had been asked for at the hearing on 13-4-1921 and the witnesses summoned did not attend the court, the court should have considered, whether the adjournment requested should be granted. in that view of the matter their lordships set aside the order of the trial court as well as that of the first appellate court which confirmed the order of the trial court and remanded the matter for a retrial.6. i may also refer to abdul bari v. hrishikesh, air 1929 cal 459 where a division bench of the calcutta high court ( b. b. ghouse and bose, jj. ) interpreted order 16, rule 1 too liberally. they pointed out that the function of a civil court was akin to that of a post office and the court had no power to refuse to issue summons at any stage. the only thing that the court can do, according to their lordships, was not to adjourn a case for the production of a witness or production of a document by a witness who is sought to be summoned at a late stage. hence they pointed out that in such a case the parties get the summons issued at their own risk.7. in basant narain v. state of bihar, : air1958 pat458 , v. ramaswami, c. j. and r. k. chowdary, j. observed thus in construing the provisions of order 16, rule 1, civil p. c.'the law, therefore, is perfectly clear that as a matter of a general rule the court is bound to issue summonses to the witnesses if an application is made for summoning them at any time after the institution of the suit and before its decision and the court is not entitled to refuse to issue summonses to the witness on the ground that the application was made at a very late stage though the court is not bound in all cases to adjourn the hearing of the case to enable the witnesses to attend on the date of the hearing. but there is an exception to this general rule and that exception is that where the court thinks that the prayer for the issue of the summonses to witnesses has not been made bona fide or has been made as an abuse to the process of the court or the prayer is vexatious, it has got inherent jurisdiction to refuse the prayer. the power is inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure. '8. in balwant singh v. firm ram singh, a single judge of punjab high court had held that o. 16, r. 1, civil p. c. does not empower the court to refuse the issue of summonses to a witness on the ground of late application. but the learned judge recognised that the court would have inherent power to refuse to summon witnesses only in case it finds that the issue of summons would amount to an abuse of process of the court. a decision of the madras high court in jagannatha v. sarathambal, air 1923 mad 321 may usefully be referred to in this context though it had not arisen actually under order 16, rule 1, civil p. c., wallace, j., was considering a case under order 26, rule 1, civil p. c. relating to the issue of a commission for examining the witnesses residing outside the limits fixed by order 16, rule 9, civil p. c. the learned judge expressed the opinion that ordinarily in the case of a witness not under the control of the party asking for the commission, who resides beyond the limit fixed under order 16, rule 19 (b), civil p. c. a commission should issue as a matter of right, unless the court is satisfied that a party is merely abusing its authority to issue process. it was pointed out by the learned judge that it was not for the court to decide whether the party would be benefited thereby or not as that was a matter entirely for the party. the learned judge also observed that it was clearly the duty of the high court to interfere, even in interlocutory proceedings, rather than permit a trial to go on an illegal course, which must entail unnecessary expenses to the parties and useless waste of time.9. a reading of the above authorities leads me to lay down the following propositions.(1) under order 16, rule 1, civil p. c. it is the right of the party at any stage of the suit to make an application to the court seeking that summons be issued to a witness either to give evidence or to produce documents. (2) the court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit. (3) if the summons is not served by the adjourned date of the suit the party who filed the application to issue the summons would take the risk. (4) if an application for an adjournment is made at the instance of the party who applied under order 16, rule 1, civil p. c. it is for the court to consider whether or not an adjournment should be granted. (5) the court may not refuse to order an application under order 16, rule 1, civil p. c. on the ground that the evidence, if produced, may not be of any help to the applicant. (6) though order 16, rule 1, civil p. c. does not in terms impose any restrictions on the court, the court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under o. 16, r. 1, civil p. c. in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the court. except in these three above contingencies the application must almost always be ordered.10. in the light of the discussion above, it follows that the approach made by the court below in paragraph 6 of its order and the discussion that followed in paragraph 7 is wholly vitiated.11. i, therefore allow the revision petition and set aside the order in i. a. no. 163/68 in o. s. no. 320/67 on the file of the court below. the petitioner will be entitled to his costs both in this court and in the court below. as the suit in the court below appears to be an old one, the lower court may try to dispose of the same as early as possible.12. petition allowed.