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AFR

RESERVED

Case :- FIRST APPEAL FROM ORDER No. - 545 of 2011

Appellant :- The National Insurance Comp Ltd. Nawal Kishore Road Lko.

Respondents :- Smt. Pushpa Devi & Ors.

Counsel for Appellant :- U.P.S. Kushwaha

Counsel for Respondents :- S.K. Agarwal, Vishal Tahlani

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Hon'ble Dilip B Bhosale, Chief Justice

Hon'ble Aditya Nath Mittal, J

Hon'ble Rajan Roy, J

(Per Hon’ble Dilip B Bhosale, CJ)

A Division Bench of this Court, having noticed the divergent views

expressed by different Division Benches, vide order dated 2 August 2016,

formulated the following question for reference to a larger Bench:

“Whether the Motor Accident Claims Tribunal

constituted in U.P. under the Motor Vehicles Act, 1988 can

permit, while hearing a claim petition, to file affidavits of

the witnesses and treat them as Examination-in-Chief and

may further permit the parties to cross-examine witnesses

on the basis of such affidavits ?”

2.While dealing with the question whether the examination-in-chief of a

witness can be filed on affidavit, the Division Benches in Kripal Singh Vs.

Mst. Kalia, 1982 ACJ 458; New India Assurance Co. Ltd. Vs. Richa

Singh Katiyar & Ors., 2012 ACJ 1626; and Oriental Insurance Co. Ltd.

Vs. Ram Ratan & Ors., 2013 (3) ALJ 600, expressed divergent views.

3.The factual matrix, sans unnecessary details for addressing the

question, is that the respondents had filed a claim petition before the Motor

Accidents Claims Tribunal, Lucknow, with the assertion that on 23.09.2008,

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an accident occurred, in which one Hariram sustained serious injuries and

while he was being taken to hospital, succumbed to injuries. Accordingly, a

claim petition was filed by his dependents. The claim petition was allowed

with a direction to the Insurance Company to pay compensation which was

quantified at Rs. 16,66,716/- with six percent simple interest. Feeling

aggrieved by the said award, the Insurance Company filed the instant appeal.

Claimants also filed an appeal (F.A.F.O. No.536 of 2011) for enhancement

of compensation. When these appeals were being heard by the Division

Bench, at the very outset, learned counsel for the Insurance Company

submitted that the award impugned in the appeal, deserves to be set aside, on

the ground that the parties were allowed to adduce their examination-in-

chief by way of affidavit, which procedure was impermissible in law and on

this count alone, the appeal deserves to be allowed. In support of this

contention, learned counsel for the Insurance Company placed reliance upon

the judgment of this Court in Kripal Singh. On the other hand, learned

counsel for the claimants placed reliance upon the judgments of this Court in

Richa Singh and Ram Ratan, to contend that it was open to the Tribunal to

take affidavits of the witnesses on record in lieu of examination-in-chief. He

submitted that such an objection was not raised before the Tribunal and, as a

matter of fact, learned Advocate for the Insurance Company cross-examined

the witnesses without demur. It is against this backdrop the Division Bench,

vide order dated 02.08.2016, made reference to larger Bench, without

expressing its opinion on the question.

4.We would like to have a close look at the judgments of the Division

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Benches referred to in the reference order. In Kripal Singh (supra), the

Division Bench, while dealing with the question, observed thus:

"3. Learned counsel for the appellants urged that the

Tribunal had no authority in law to record evidence by

means of affidavits and, the award given by the Tribunal is

illegal. We find merit in the contention. Section 110-A of the

Act confers power on the State Government to 'constitute one

or more Motor Accidents Claims Tribunals' for the purpose of

adjudicating upon claims for compensation in respect of

accidents involving the death of or bodily injury to, persons

arising out of motor vehicles or damages to any property of a

third party so arising, or both. Section 110-C of the Act lays

down that the Tribunal may, in holding inquiry, follow such

summary procedure, subject to rule that may be made in this

behalf, as it thinks fit. Sub-section (2) lays down that the

Claims Tribunal shall have all the powers of the civil Court,

for the purpose of taking evidence and enforcing the

attendance of the witnesses, and for discovery and production

of documents and material objects and for other purposes as

may be prescribed. Section 111-A confers power on the State

Government to make rules for purpose of carrying into effect

the provisions of Section 110 to 110-E including the procedure

to be followed by a Claims Tribunal in holding enquiry and

also the powers of the civil Court which may be exercised by

the Claims Tribunal. In pursuance of these provisions State

Government has framed rules known as the U.P. Motor

Accidents Claims Tribunal Rules, 1967. Rule 11 of the said

Rules provides that after framing of the issues, the Claims

Tribunal shall proceed to record evidence thereon which each

party may like to produce. Rule 12 prescribes method for

recording of evidence. It lays down that the Claims Tribunal

shall examine the party or witnesses and maintain substance

of memo of their deposition. Rule 21 makes some provisions

of the Code of Civil Procedure applicable to the proceedings

before the Tribunal. It is pertinent to note that Rule 21 does

not make Order XIX of the Code of Civil Procedure applicable

to proceedings before the Tribunal. A civil Court is empowered

to admit evidence by means of affidavits as it is authorised to

do so by Order XIX of the Code of Civil Procedure. Since that

provision has not been applied to proceedings before the

Tribunal evidence in the shape of affidavits can not be

recorded. The provisions of the Motor Vehicles Act, 1919 and

the Rules framed thereunder make it amply clear that after the

framing of the issues parties are required to produce oral

evidence as prescribed by Rule 12. There is no provision under

the Motor Vehicles Act or the Rules framed thereunder

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conferring jurisdiction on the Tribunal to record evidence by

means of affidavits.

4. The Claims Tribunal is a creature of the Motor

Vehicles Act, 1939, it can exercise only those powers which

are conferred on it by the statute, and cannot derive power

from any other Code or statute. Since the Act and the Rules

vest no such authority in the Tribunal it has no power to

permit evidence by means of an affidavit or to give award on

the basis of evidence contained in the affidavits. The

Tribunal committed error in admitting the evidence by

means of affidavits and delivering the award against the

appellant on the basis of evidence contained in those

affidavits.

5. We, therefore, allow the appeal, set aside the order of

the Tribunal and remand the matter to the Tribunal to decide

the claim petition in accordance with law at a very early date.

During the pendency of the proceedings before the Tribunal,

no proceedings shall be taken for recovery of Rs. 15, 000/-

which has been paid to the claimants under the orders of this

court. The parties shall bear their own costs”

(emphasis supplied)

5.In Richa Singh Katiyar (supra), another Division Bench, after

considering Kripal Singh, held thus:

“12. Reliance has been placed by the learned counsel

appearing for the appellant on a case in Kripal Singh v.

Kalia, 1982 ACJ 458 (Allahabad), whereby the provisions

contained in Motor Vehicles Act, 1939 have been

interpreted. In the case of Kripal Singh (supra), a Division

Bench of this Court has held that there is no provision in the

Act or the Rules framed thereunder conferring jurisdiction

on the Tribunal to record evidence by means of affidavits. It

has been further held that the Claims Tribunal is a creature

of the Motor Vehicle Act, 1939 and it can exercise only those

powers which are conferred on it by the statute. The

judgment in Kripal Singh's case (supra) seems to have lost

its binding nature because of enactment of new Motor

Vehicles Act, 1988 and the Rules framed thereunder, read

with amended Code of Civil Procedure. As observed above,

Rule 221 specifically provides that provisions contained in

the Code of Civil Procedure may be made applicable to the

permissible limit.

13. In view of above, we are of the opinion that in

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case there is no conflict between the provisions contained in

the Code of Civil Procedure to the extent of rule 221 of the

U.P. Motor Vehicles Rules, 1998, then inference may be

drawn and the procedure prescribed in the Code of Civil

Procedure may be made applicable. Since the Rules itself

provide that the provisions contained in the Code of Civil

Procedure to some extent may be made applicable, the

affidavit filed by the claimant while approaching the Tribunal

shall not suffer from inadmissibility of evidence.

16. The purpose of statutory provisions is for due

compliance of the principle of natural justice. The Rules

provide for the examination of applicant in case present (Rule

205) and in case parties contest then witness be examined

orally. However, it is silent whether there should be

examination-in-chief in every case. Rules provide that the

oral evidence may be recorded with regard to facts in dispute.

In case a party had filed an affidavit and liberty is given to

the other side to cross-examine the witness and other side

accepts the proposal and cross-examines such witness, (in the

present case like the claimant), then no objection may be

raised at later stage with regard to violation of principle of

natural justice or statutory provisions, more so when the

statute is silent. As we have observed (supra), in absence of

any repugnancy, inference may be drawn to regulate the

proceedings of the Tribunal by applying the provisions of

Code of Civil Procedure. Order 18, Rule 4 Code of Civil

Procedure, since provides for adducing evidence by filing

affidavit, there appears to be no illegality on the part of the

Claims Tribunal while accepting the affidavit and

permitting the appellant to cross-examine the witness.”

(emphasis supplied)

6.In Ram Ratan (supra), another Division Bench had an occasion to

consider a similar question and, while dealing with the same, the following

observations were made:

“28. Coming to second limb of argument. It is

vehemently argued by the appellant's counsel that the

claimant has filed an affidavit, in response to which he has

been examined orally by the defendant's counsel. In

absence of examination-in-chief, proceeding vitiates.

Specific query was made by the court whether the appellant

or the respondents had raised objections and took a plea that

the tribunal should record examination-in-chief, the response

is negative. Neither in the memo of appeal nor during the

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course of argument, it has been pleaded or stated that the

objection was raised during the proceeding against the filing

of affidavit by the claimant. Once the appellant participated

in the proceeding and raised no objection; rather cross-

examined the prosecution witnesses including the claimant

based on facts brought on record by affidavit, then at first

appellate stage, such argument is not sustainable keeping in

view the letter and spirit of Section 168 of the Act. Learned

counsel for the appellant has invited attention to different

provisions contained in Chapter IXX of the Motor Vehicles

Rules, 1998. It shall be appropriate to consider the

provisions regulating the trial before the tribunal.

32. A plain reading of these provisions reveals that

discretion has been given to the tribunal to proceed with oral

examination of the witnesses. The provisions contained in

Rules 208 to 212 should be real in context to the word,

"enquiry" used in Section 168 of the Act. Being summary

trial, discretion has been given to the Presiding Officer of

the tribunal to record oral testimony under Rule 208 by

using word, if deems fit. However, discretion being

judicious in nature, in case an objection is raised to the

affidavit filed by a person, then it shall be incumbent on the

tribunal to record examination-in-chief with due

permission to cross-examine such witnesses. In any case, if

without raising any objection, an affidavit is relied upon by

the parties and the defendant cross-examines the applicant

during the course of proceeding before the tribunal, then no

objection may be raised at appellate stage and trial shall not

vitiate. During the course of argument, it has been admitted

that no objection was raised by the appellant before the

tribunal when the tribunal has relied upon the affidavit filed

by the claimant and permitted the appellant to cross-examine

a witness. Moreover, it was open for the appellant while

filing written statement to raise objection by due pleading

but the same admittedly has not been done."

(emphasis supplied)

7.We have heard Shri U.P.S. Kushwaha, learned counsel for the

appellant. We have also heard Shri Kiran Kumar Bhatpuri; Shri D. C.

Shukla; Shri C.B. Pandey and Shri Rajiv Mishra, Standing Counsel for

different Insurance Companies, who were present in the Court and Shri

Sandeep Kumar Agarwal, for the respondents. We do not propose to make a

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detailed reference to the submissions made by learned counsel for the

parties, since we are going to deal with the question in depth, in the light of

their submissions and the judgments relied upon by them in support thereof.

7.1It would not be out of place to observe that some of learned counsel

for the other Insurance Companies fairly stated that in view of the

legislative changes since 1982, now an affidavit may be accepted in lieu of

examination-in-chief. Shri U.P.S. Kushwaha and one or two other Standing

Counsel for the Insurance Companies, placed heavy reliance upon the

judgment of this Court in Kripal Singh (supra) and vehemently submitted

that the Tribunal has no authority, in law, to record evidence by means of

affidavit and if such a procedure is adopted, the award would be rendered

illegal. Learned counsel for the claimants, on the other hand, submitted that

Kripal Singh was decided in 1982 when neither the Motor Vehicles Act,

1988 (for short, 'Act, 1988') nor the U.P. Motor Vehicles Rules, 1998 (for

short, 'Rules, 1998') were in existence nor the amended provisions of Order

XXVIII Rule 4 of the Code of Civil Procedure, 1908 (for short, 'CPC') were

available and in this backdrop, the law laid down in Kripal Singh has lost

its binding nature.

8.The Act, 1988 is a beneficent legislation, intended to place the

claimant in the same position that he was before the accident and to

compensate him for the loss and, therefore, should be interpreted liberally so

as to achieve the maximum benefit, as observed by the Supreme Court in

Syed Mehaboob Vs. New India Assurance Co. Ltd., (2011) 11 SCC 625.

The Motor Accidents Claims Tribunal (for short, 'Tribunal') have been

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constituted under Section 165 of the Act, 1988 so as to provide a speedy and

effective remedy to the victims of an accident and the dependents of the

deceased. As observed by the Supreme Court in Raj Kumar Vs. Ajay

Kumar & Anr., (2011) 1 SCC 343, Sections 168 and 169 of the Act, 1988,

make it evident that the Tribunal does not function as a neutral umpire as in

a civil suit, but as an active explorer and seeker of truth, who is required to

'hold an enquiry into the claim' for determining the just compensation. The

Tribunal should, therefore, take an active role to ascertain the true and

correct position so that it can assess just compensation. It is with this object

that a summary procedure is prescribed for such Tribunals while enquiring

into a claim.

9.It is against this backdrop, we now proceed to look at the relevant

provisions of the Act, 1988. Sections 168 and 169 of the Act, 1988 are

relevant for our purpose. Section 168 of the Act, 1988 empowers the

Tribunal to pronounce the award on the application for compensation made

under Section 166, after giving notice to the insurer and after giving the

parties an opportunity of being heard. The submissions of learned counsel

for the parties were centered around Section 169 for quite some time.

Section 169 of the Act, 1988 reads thus:

“169. Procedure and powers of Claims Tribunals.—

(1) In holding any inquiry under section 168, the Claims

Tribunal may, subject to any rules that may be made in this

behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a

Civil Court for the purpose of taking evidence on oath and of

enforcing the attendance of witnesses and of compelling the

discovery and production of documents and material objects

and for such other purposes as may be prescribed; and the

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Claims Tribunal shall be deemed to be a Civil Court for all

the purposes of section 195 and Chapter XXVI of the Code of

Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may be made in this

behalf, the Claims Tribunal may, for the purpose of

adjudicating upon any claim for compensation, choose one

or more persons possessing special knowledge of and matter

relevant to the inquiry to assist it in holding the inquiry.”

9.1Keeping in view the principal object behind the constitution of the

Tribunal, which is expected to deliver speedy justice to the dependents of a

breadwinner, who dies in a motor accident, if the provisions contained in

Section 169 (1) are read carefully, it is clear that this provision directs the

Tribunal to follow such summary procedure as it thinks fit, to complete the

enquiry in respect of accident claims. In other words, it states that, in

holding any enquiry under Section 168 of the Act, 1988, the Tribunal may,

subject to any rules that may be made in this behalf, follow such summary

procedure, as it thinks fit. The object was to free the Tribunals from the

procedural technicalities that dominate the trial of a suit in civil court. The

whole object of a summary procedure is to ensure that a claim application is

heard and decided by the Tribunals expeditiously. The inquiry under Section

168 and the summary procedure that the Tribunal has to follow do not

contemplate the controversy arising out of a claim application being decided

in piecemeal. The Tribunal is required to dispose of all issues one way or the

other in one go while deciding the claim application [see Bimlesh & Ors.

Vs. New India Assurance Co. Ltd., (2010) 8 SCC 591]. Thus, the Tribunal

is free to follow any procedure, which it considers expedient in the interest

of justice. In other words, the Tribunal is at liberty to follow any procedure

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that it may choose to evolve for itself so long as the said procedure is not

arbitrary and is consistent with the rules of natural justice and does not

contravene the positive provisions of law. It is clear that wide powers are

conferred on the Tribunal by the legislature in order to do justice and to

achieve the purposes for which the Tribunal has been constituted. From the

language employed in sub-section (2) of Section 169, it is clear that the

Tribunal has inherent powers to apply all or any of the provisions of the

CPC, on the principles of justice, equity and good conscience.

9.2Sub-section (2) of Section 169 further states that the Tribunal shall be

deemed to be a civil court for all the purposes of Section 195 and Chapter

XXVI of the Code of Criminal Procedure, 1973 (for short, 'CrPC'). This

expression, in our opinion, is only in addition to what has been provided in

the first part of sub-section (2). A specific reference to Section 195 and to

Chapter XXVI has obviously been made to deal with an offence alleged to

have been committed in respect of a document produced in the proceeding

before it, which is filed or caused to be filed by a complainant and not a

party. Merely because a specific reference to Section 195 and Chapter XXVI

of CrPC is made in sub-section (2), does not, by any stretch of imagination,

mean exclusion of application of other provisions of CPC. We have no

hesitation in observing that the Tribunal shall have all the powers of a civil

court for the purpose of taking evidence on oath.

9.3As can be seen from sub-section (1) of Section 169, in holding any

enquiry under Section 168, the Tribunal may, subject to any rules that may

be made in this behalf, follow such summary procedure as it thinks fit. In

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any event, whether rules are made or not, the procedure to be followed has

to be of a summary nature. Sections 168 and 169 envisage a summary

enquiry. A summary enquiry does not entail application of strict rules of

pleadings or an elaborate procedure of adducing evidence involving lengthy

examination of witnesses. Such summary proceedings are prescribed to

facilitate speedy disposal of the claim keeping in view the object of creating

the Tribunal. Thus, the purport of the provisions contained in Section 169 is

that, though the procedure to be followed by the Tribunal is a summary

procedure, but, in a given case, especially one involving complex or

intricate issues, it can exercise all of the powers of a civil court vested in it

under sub-section (2) of Section 169. This does not mean that in every case,

the elaborate procedure prescribed for the civil court has to be followed for

examination of witnesses and recording of evidence. The Tribunal is

conferred with the discretion to utilise these powers as and when it deem fit.

9.4 Sections 168 and 169 of the Act, 1988, thus, make it evident that the

Tribunal is free to adopt such summary procedure, as it thinks fit, and for all

practical purposes, it has all the powers of a civil court for the purpose of

taking evidence on oath, including that of enforcing attendance of witnesses

and of compelling the discovery and production of documents and the

material objects and for such other purposes, as may be prescribed.

10.Before we proceed further, it would be relevant and necessary to have

a glance at the Rules, 1998. These Rules are framed in exercise of the

powers under Sections 28, 38, 65, 95, 96, 107, 111, 138, 176 and 213 of the

Act, 1988, read with Section 21 of the General Clauses Act, 1897 and in

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supersession of all existing rules on the subject. For dealing with the

question referred to for our consideration, Rules 204, 205, 206, 208, 210,

212 and 221 may be relevant. Rule 204 provides the procedure for making

an application for payment of compensation made under Section 166 of the

Act, 1988. Rule 205 provides for the examination of the applicant. Rule 206

empowers the Tribunal, after considering the application and the statement,

if any, recorded under Rule 205, to dismiss the application summarily if,

for reasons to be recorded, it is of the opinion that there are no sufficient

grounds for proceeding therewith. Rule 208 provides for appearance and

oral examination of parties. As per sub-rule (2) of Rule 208, where the claim

is contested, the Tribunal shall, with a view to elucidating matters in

controversy between the parties, examine orally such of the parties to the

claim proceeding as it deems fit and shall reduce the substance of the

examination, if any, to writing. The use of the words 'such of the parties to

the claim proceeding as it deem fit' is indicative of a discretion vested in the

Tribunal in this regard, meaning thereby, it is not mandatory for it to

examine any of the parties orally, but, it is permissible, if it deems fit.

However, when it examines parties orally, it shall reduce the substance of

the examination, if any, to writing. Rule 210 provides for summoning of

witnesses. Rule 212 is important, and reads thus:

"212. Method of recording evidence – (1) The

Claims Tribunal shall, as examination of a party or a

witness proceeds, make a brief memorandum of the

substance of what is deposed and such memorandum shall

be written and signed by the Claims Tribunal and shall form

part of the record:

Provided that the evidence of any medical witness

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shall, as nearly as may be, be taken down word for word:

Provided further that where the Claims Tribunal is

unable to make a memorandum it shall cause the reason of

such inability to be recorded and shall cause the

memorandum to be made in writing from its dictation.

(2) The copies of medico-legal reports, post-mortem

reports, papers relating to reports submitted by

Investigating Police Officer or any other person which the

Claims Tribunal deems appropriate, shall be admissible in

evidence without formal proof thereof. However, the witness

relating to these documents and papers may be examined

on oath if required necessary in the circumstances of the

case.”

10.1This Rule prescribes the method of recording evidence. It requires the

Tribunal to make a brief memorandum of the substance of what is deposed

through examination of a party or witness. It shall be in writing and signed

by it. As against this, the evidence of any medical witness is required, as

nearly as may be, to be taken down word for word. As per the second

proviso to this Rule, where the Tribunal is unable to make a memorandum, it

shall cause the reasons of such inability to be recorded and shall cause the

memorandum to be made in writing from its dictation. Thus, Rule 212 at

first blush requires the examination of a party or a witness to be recorded in

writing before the Tribunal, whether in the form of a brief memorandum of

substance by the Tribunal or on its dictation. There is no provision in the

Rules, 1998 for recording of oral evidence of the parties or witnesses on

affidavit. Rule 221 states that the provisions of the First Schedule to the

CPC shall, so far as may be, apply to proceedings before the Tribunal,

namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX, Rules 3 to 10 of

Order XIII, Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of

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Order XXIII. If Rule 221 is read with Section 169 of the Act, 1988, we do

not find any conflict as such and the Rules do not provide that the provisions

of CPC, other than those referred to in Rule 221, would not apply or cannot

be taken recourse to, by the Tribunal while dealing with a claim petition and

it can exercise all the powers of a civil court for the purpose of taking

evidence on oath. In any case, the provisions of Rule 221 cannot override

the provisions contained in sub-section (2) of Section 169 of the Act, 1988

and restrain the Tribunal from taking recourse to the procedure contemplated

under the other provisions of CPC. Sub-section (2) of Section 169, as

observed earlier, in unequivocal terms confers all the powers of a civil court

on the Tribunal for the purpose of taking evidence on oath.

10.2It would be necessary to notice that the Rules,1998 were brought into

force in 1998 when the provision in CPC for examination-in-chief on

affidavit was not available. Such a provision was inserted in CPC by Act 22

of 2002 with effect from July 2002. Therefore, it was submitted that under

the substantive provision in sub-Section (2) of Section 169, the examination-

in-chief of a witness on affidavit would also be permissible in the discretion

of the Tribunal, as, sub-Rule (2) of 208 cannot supplant this power vested in

it under sub-Section (2) of Section 169 of the Act, 1988. At the cost of

repetition, we observe that the Rules, 1998 would not override the

substantive provision contained in sub-section (2) of Section 169, which

confers on the Tribunal all the powers of a civil court for the purpose of

taking evidence on oath.

11.The Act 22 of 2002 inserted Rule 4 to Order XVIII with effect from

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01.07.2002, thereby providing that in every case, the examination-in-chief of

a witness shall be on affidavit and copies thereof shall be supplied to the

opposite party by the party who calls him for evidence. Under sub-rule (2)

of Rule 4, the evidence (cross-examination and re-examination) of the

witness in attendance, whose evidence (examination-in-chief) by affidavit

has been furnished to the court, shall be taken either by the court or by the

Commissioner appointed by it. Thus, the cross-examination and re-

examination has to take place in the court or by a Commissioner appointed

by it. Under sub-rule (3), the court or the Commissioner, as the case may be,

shall record evidence (cross-examination or re-examination), either in

writing or mechanically in the presence of the Judge or of the

Commissioner, as the case may be, and where such evidence is recorded by

the Commissioner, he shall return such evidence together with his report, in

writing, signed by him, to the court appointing him and the evidence taken

by the Commissioner shall form part of the record itself. Thus, the

examination-in-chief shall be on affidavit, whereas cross-examination and

re-examination shall be in court or by the Commissioner. The validity of the

amendment to Order XVIII Rule 4 was considered and upheld by the

Supreme Court in Salem Advocate Bar Association, T.N. Vs. Union of

India, (2003) 1 SCC 49 as well as in Salem Advocate Bar Association,

T.N. Vs. Union of India, (2005) 6 SCC 344. The Supreme Court in the

latter judgment has observed that by permitting affidavits to be filed as

evidence, the right of cross-examination and re-examination in the open

court has not been disturbed by Order XVIII, Rule 4 inserted by Act 22 of

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2002. The object of the Act 22 of 2002 was to facilitate the speedy disposal

of the case.

11.1The summary procedure contemplated under the provisions of Section

169 of the Act, 1988 is certainly the summary procedure to be borrowed

from the CPC. Order XXXVII CPC deals with the summary procedure.

Rule 7 of Order XXXVII CPC provides as under:

"7. Procedure in suits - Save as provided by this Order,

the procedure in suits hereunder shall be the same as the

procedure in suits instituted in the ordinary manner."

11.2In this regard, the provisions of Order XVIII Rule 13 CPC are also

relevant, which read thus:

"13. Memorandum of evidence in unappealable

cases.- In cases in which an appeal is not allowed, it shall not

be necessary to take down or dictate or record the evidence

of the witnesses at length; but the Judge, as the examination

of each witness proceeds, shall make in writing, or dictate

directly on the typewriter, or cause to be mechanically

recorded, a memorandum of the substance of what the

witness deposes, and such memorandum shall be signed by

the Judge or otherwise authenticated, and shall form part of

the record."

11.3The provisions of Order XVIII Rule 13 CPC and the provisions of

Rule 212 of the Rules, 1998 are in conformity with each other, except the

fact that the provisions of Order XVIII Rule 13 provide for the drawing up

of a memorandum of evidence in unappealable cases while the provisions of

Rule 212 of the Rules, 1998 apply to all cases and the only exception is

regarding the evidence of any medical witness which has to be taken down

word by word. We do not find any conflict as such between the provisions

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contained in CPC and the provisions contained in Act, 1988 and Rules,

1998, and therefore, in our opinion, the procedure prescribed in the CPC can

be made applicable, particularly in view of the language employed in sub-

section (2) of Section 169 of Act, 1988.

12.The matter of recording the evidence on affidavit, had also engaged

attention of the Bombay High Court in Shamrao Vishnu Kunjir Vs Suresh

Vishnu Kunjir & Ors., AIR 2005 Bom 294, wherein the Bombay High

Court considered this aspect in detail and held as under:

"7. Order 18 Rule 4 as it stood before its substitution

by Act of 1999 and 2001, provided that the oral evidence of

the witness had to be recorded in the presence of the Judge.

By the amendment it is now to be recorded on affidavit.

Earlier it had to be recorded in the manner set out in Rule 5,

which was, to take it down, in the language of the Court in

writing or in the presence and under the personal direction

and superintendence of the Judge or from the dictation of the

Judge directly on a typewriter or if the Judge for reasons

recorded, directs to be recorded by a mechanism in the

presence of the Judge. The purpose and object of the

Amendment Acts have been considered by the Apex Court in

Salem Advocates Bar Association v. Union of India, AIR

2003 SC 189. The object of amending Order 18, Rule 4 is to

subserve the larger purpose of cutting down in the disposal

time of recording evidence, thereby reducing the period of

disposal of the cases by dispensing with the lengthy

procedure of the Court recording evidence of every witness

produced before it or summoned to appear before it. The

earlier procedure resulted in the trial being inordinately

delayed and was one of the main reasons for the docket

explosion in the Courts. The amendment seeks to obviate the

same by permitting examination to be on affidavit instead of

the examination-in-chief being recorded by the Court.

8. The objective of speedy disposal of trial of the case

by allowing examination-in-chief to be recorded on affidavit

does not mean that the procedure of recording of evidence of

the witness has to be by-passed or dispensed with, by filing

the affidavit without examining the witnesses as is the

popular notion. All that has happened is that instead of

recording the evidence before the Court, the duty is now

18

placed on the legal profession, thereby meaning Advocates

appearing for the parties to follow the same procedure in

their Chambers meaning thereby that they have to personally

examine the witness and get his statement recorded in his

presence by one of the modes earlier set out under Order 18,

Rule 5 and then transcribe the same on an affidavit which is

to be filed in the Court. Dispensation of oral evidence, by

way of examination-in-chief therefore, is not dispensation of

the procedure for recording evidence. The place of recording

evidence has only changed. The procedure for recording

evidence even at the stage of examination-in-chief remains

substantially the same. Even before the amendment Act of

1999 and 2000 it was open to the Court, under the provisions

of Order 19, R. (1), (2) to permit evidence to be recorded on

affidavit. This was discretionary. It is now made mandatory

under Order 18, Rule 4 of C.P.C."

12.1Further, in Peacock Industries Ltd. Vs. Budhrani Finance Ltd. and

State of Maharashtra & Ors., MANU/MH/0391/2006, decided on

14.07.2006, the Bombay High Court has again dealt with this aspect more

comprehensibly with reference to the provisions of Section 145 of the

Negotiable Instrument Act, 1881 and Section 296 CrPC. The question before

Hon'ble the High Court of Bombay was as under:

“(A) Whether sub-section (2) of Section 145 of the

Negotiable Instruments Act, 1881, (for short, "the Act")

confers an unfettered right on the complainant and the

accused to apply to the Court seeking direction to give oral

examination-in-chief, of a person giving evidence on

affidavit, even in respect of the facts stated therein and that

if such a right is exercised, whether the Court is obliged to

examine such a person in spite of the mandate of Section

145 (1) of the Act?

(B) Whether the provisions of Section 145 of the Act,

as amended by the Negotiable Instruments (Amendment

and Miscellaneous Provisions) Act 2002, (for short "the

amending Act of 2002") are applicable to the complaints

under Section 138 of the Act pending on the date on which

the amendment came into force? In other words, do the

amended provisions of Section 145 (1) and (2) of the Act

operate retrospectively?

19

12.2While dealing with the questions, the Bombay High Court observed

thus:

"23. A plain reading of sub-section (1) of Section 145,

which starts with non obstante clause carving out an

exception to the provisions of the Code, gives complete

freedom and option to the complainant to give his evidence

on affidavit making it further clear that such evidence shall

be read in any enquiry, trial and other proceedings subject

to all just exceptions. In other words, the choice or the

option is left to the complainant either to give his evidence

on affidavit or give oral examination-in-chief. That is the

mandate of sub-section (1) of Section 145 as observed by the

Division Bench in KSL and Industries Ltd case. Sub-section

(2) gives right to the Court, if it thinks fit, to summon and

"examine" any person giving evidence on affidavit as to the

facts contained therein. Similarly, sub-section (2) makes it

mandatory for the Court to summon and "examine" any

person giving evidence on affidavit as to the facts contained

therein on the application of the prosecution or the

accused.

24. Thus, it is clear that sub-sections (1) and (2) of

Section 145 create two distinct and separate rights, former

being in favour of the complainant and the latter being for

the benefit of both, the complainant and the accused,

besides the right of the Court to summon and examine any

person giving evidence on affidavit. The word "examine" in

Section 145 (2), thus, would mean and include

"examination-in-chief", "cross-examination", "re-

examination" and "examination by the Judge". Let me first

consider the right of the Court under sub-section (2) of

Section 145. The right of the Court under sub-section (2), is

to call a witness, who has given his evidence on affidavit as

provided for under sub-section (1), for putting questions as

contemplated under Section 165 of the Indian Evidence Act.

Putting questions to the witness by the Court is also an

examination of a witness. The examination of a witness by

the Court cannot be termed as "examination-in-chief" or

"cross-examination" or "re-examination". It is an

independent right conferred on the Court under Section 165

to put questions to the witness in order to discover or to

obtain proper proof of relevant facts, in any form at any

time. When the court exercise this right, neither party nor

their agents shall be entitled to make any objection to any

such question or order, nor, without the leave of the Court,

to cross-examine any witness upon any answer given in

reply to any such question."

20

13.In Shamrao Vishnu Kunjir (supra), it was held that allowing of

examination-in-chief to be recorded on affidavit, does not mean that the

procedure of recording of evidence has to be bypassed or dispensed with by

filing the affidavit without examining the witness as is the popular notion.

All that has happened is that, instead of recording the evidence before the

court, the duty is now placed on the legal profession, meaning thereby,

Advocates appearing for the parties to follow the same procedure in their

chambers, further meaning thereby, that they have to personally examine the

witness and get his statement recorded in his presence by one of the modes

earlier set out under Order XVIII, Rule 5 of CPC and then transcribe the

same on an affidavit which is to be filed in the court. Dispensation of oral

evidence, by way of examination-in-chief, is not dispensation of the

procedure for recording evidence but only place of recording evidence has

changed. The procedure for recording evidence, even at the stage of

examination-in-chief, remains substantially the same. It was also mentioned

that even prior to the amendment, it was open to the court under the

provisions of Order XIX Rules 1 and 2 CPC to permit evidence to be

recorded on affidavit. This was discretionary. It is now made mandatory

under Order XVIII, Rule 4, CPC. Thus, the object and purport of Rule 4 of

Order XVIII has been explained in the said judgment.

14.As is evident, major legislative changes have been made in Order

XVIII Rule 4 CPC. Prior to the amendment of Order XVIII Rule 4, it

was mandatory to record evidence of the witnesses orally in open court

in the presence and under the personal direction and superintendence of

21

the Judge, but now under the amended CPC, it is mandatory that in

every case, the examination-in-chief of a witness shall be on affidavit.

14.1The prime object of amending Order XVIII Rule 4 CPC is to

minimize the disposal time of recording evidence as well as dispensing with

the lengthy procedure of the court for recording evidence of every witness

produced before it or summoned to appear before it. Certainly, the earlier

procedure of recording evidence resulted in inordinate delay in trial and

caused the problem of docket explosion in the courts. It is experienced that

Claims Tribunal of this State are also having high pendency of claim

petitions, for various reasons. By permitting examination-in-chief by filing

affidavit will certainly curtail such delay. Therefore, in our opinion, the

affidavit filed by a witness while approaching the Tribunal cannot suffer

from the specter of being inadmissible in evidence in view of the amended

provisions of CPC.

14.2The powers of the civil court under Order XVIII stand also vested in

the Tribunal in view of the language employed in sub-Section (2) of Section

169. As noticed earlier, the provisions of Order XVIII CPC did not exist at

the time of framing of Rules, 1998, and therefore, the provisions contained

therein have to be read, understood, interpreted and applied accordingly,

keeping in mind sub-section (2) of Section 169 of the Act, 1988, which

contains the substantive provision as to the powers of the Tribunal regarding

taking evidence on oath.

14.3The object of Rule 4 of Order XVIII being to facilitate speedy

22

disposal of trials, the same is in tune with the object of Sections 168 and 169

of the Act, 1988, therefore, the examination-in-chief on affidavit in the

proceedings before the Tribunal advances the object for which it has been

constituted, by cutting down on the time and energy which would otherwise

have to be spent on an examination-in-chief without, in any manner, taking

away the sanctity attached to it.

14.4As far as Rule 221 of the Rules, 1998, which provides for the

application of certain provisions of the First Schedule to the CPC before the

Claims Tribunal, namely, Rules 9 to 13 of Order V; Order IX, Rules 3 to 10

of Order XIII; Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of

Order XXIII, is concerned, it does not mean that the provisions of Order

XVIII Rule 4 cannot be applied by the Tribunal at its discretion and to hold

as such will be contrary to sub-Section (2) of Section 169 of the Act, 1988.

15.In view of the above discussion, the net result is that, it is not

impermissible for the Tribunal to permit examination-in-chief on affidavit in

terms of Order XVIII Rule 4 CPC subject, of course, to any valid objection

being raised by the defendants. But in a given case, it can very well require

the examination-in-chief in court in terms of Rule 208 read with Rule 212 of

the Rules, 1998. In the event of any objection to the examination-in-chief on

affidavit, the Tribunal would be required to take a decision thereon.

However, if no objection is taken in this regard before the Tribunal, then it is

not open for the defendant to take this plea as a ground to challenge the

award of the Tribunal, in an appeal preferred under Section 173 of the Act,

1988.

23

16.Before we proceed further, we observe that from a perusal of the

provisions contained in Section 110-C of the Motor Vehicles Act, 1939 and

Section 169 of the Act, 1988, it is clear that no legislative changes have

taken place with regard to the conferment of the powers of the civil court to

the Tribunal. Similarly, from a perusal of Rules 12 and 21 of the U.P. Motor

Vehicle Rules, 1969 and Rules 212 and 221 of the Rules, 1998, it is clear

that the method of recording evidence is also the same.

17.The applicability of CPC to the proceedings before the Tribunal under

the Motor Vehicles Act 1939 (old Act) came up for consideration before the

Supreme Court in Rajasthan State Road Transport Corporation Vs.

Poonam Pahwa & Ors., (1997) 6 SCC 100. On a consideration of the

Rules made under the Act, 1988 as applicable to the State of Haryana and

Punjab, the Supreme Court opined that provisions of Order XXI Rule 1 CPC

were applicable to such proceedings. Furthermore, in paragraph 39 of the

report, the Supreme Court held that even if it is assumed that by adopting the

Punjab Motor Accidents Claims Tribunal Rules, 1964, the subsequent

amendments reflected in the said Rules were not adopted or incorporated by

the State of Haryana, and therefore, Order XXI of CPC was not applicable

expressly, yet the appellant would be fastened with the liability to pay

interest by applying the underlying principles of Order XXI Rule 1 of CPC.

It went on to hold that the Motor Accidents Claims Tribunal being a

statutory Judicial Tribunal specifically constituted for adjudicating a claim

arising out of motor accidents has the trappings of a court. In this regard, it

relied upon its earlier decision in Bhagwati Devi & Ors. Vs. M/s. I.S. Goel

24

& Ors., 1983 ACJ 123 (SC), wherein the Tribunals were held to be Court

for the purposes of Section 25 CPC. It also referred to the decision in State

of Haryana Vs. Smt. Darshana Devi & Ors., (1979) 2 SCC 236, where the

provisions of Order XXIII CPC were applied to the proceedings before the

Tribunal, even though the said provision was not expressly applicable under

the Rules. The principles contained in the CPC have been made applicable

before the statutory Judicial Tribunals in a catena of cases which have been

referred in the said judgment.

18.As far as the Division Bench judgment of this Court in Kripal Singh

(supra) is concerned, the same was rendered when Act 22 of 2002 inserting

Rule 4 in Order XVIII CPC was not in existence. At that time, even the civil

courts could not accept or allow the examination-in-chief on affidavit,

therefore, Section 169(2) of the Act, 1988 vesting all the powers of the civil

court upon such Tribunals was not of much help. On account of the

amendment of 2002, the legal position as regards the powers of the civil

court in the matter of examination of witnesses has undergone a change.

Consequently, sub-section (2) of Section 169 has to be understood in the

light of this change.

19. In Richa Singh Katiyar (supra), the Division Bench held that

examination-in-chief on affidavit followed by cross-examination in court to

be valid and legal. The Division Bench considered the provisions of the

Rules, 1998, provisions of Order XVIII Rule 4 CPC as also the judgment in

Kripal Singh (supra). It opined that there was no conflict between the

provisions contained in Order XVIII Rule 4 CPC and the Rules, 1998,

25

specially Rule 221.

20.In Ram Ratan (supra), the other Division Bench came to the same

conclusion that examination-in-chief on affidavit was permissible. However,

none of these decisions lay down any such proposition of law that even

cross-examination or re-examination would be permissible on affidavit. In

fact, we are of the view that this question did not arise in the present case,

yet, it has been referred by the Division Bench.

21.Thus, we are of the opinion that the examination-in-chief on affidavit

is permissible at the discretion of the Tribunal, subject to any objection

being raised by the defendants, which would require a decision thereon by

the Tribunal. As far as cross-examination and re-examination are concerned,

same are not permissible on affidavit and have to take place before the

Tribunal. It is further clarified that in the absence of any objection before the

Tribunal regarding the examination-in-chief on affidavit, no challenge to its

award would be permissible in an appeal filed under Section 173 of the Act,

1988 before the High Court. The reference is answered accordingly.

22.The registry is directed to place the instant appeal before the

appropriate Bench for its consideration on merits in the light of the

observations made in this judgment.

October 27

th

, 2016

AHA

(Dilip B Bhosale, CJ)

(A N Mittal, J)

(Rajan Roy, J)