D. K. Mahanta, Member
Heard learned counsel appearing for both the parties.
Aggrieved by the order dated 22-05-2018 passed by the District Consumer Disputes Redressal Forum, Kamrup, Guwahati, in respect of the Complaint Case No. 28 of 2016, the respondent Insurance Company has filed the present Revision Petition.
Facts, in brief, giving rise to the filing of the present Revision Petition are as follows: In the District Forum, the respondent/complainant, instituted the aforementioned complaint case seeking compensation from the petitioner insurer alleging deficiency service by them in respect of repudiation of the claim regarding theft of the complainant’s insured car bearing Registration No. AS-01-AZ-3763.
It is the contention of the petitioner that in the evidence of D.W.-1, one document being the recorded statement of the land lord of the driver of the stolen vehicle Manik Das, was exhibited as Ex-4. Thereafter, a prayer was made before the District Forum to issue summon to the said land lord Ranjit Sutradhar as he allegedly refused to give his evidence through affidavit and verbally informed the insurer that he would give his testimony if and when, he received summons from the District Forum.
The District Forum vide the impugned order has held that as the said witness is not an expert or Government Officer, he cannot be called to give oral evidence and accordingly, rejected the prayer submitted by the insurer directing them to file evidence of that particular witness through affidavit.
We have duly considered the submissions made on behalf of both the parties. In our opinion, the impugned order of the District Forum is devoid of judicious reasoning. The discretion of the Court to decline to summon a witness or refusing to examine the witness is limited on the ground that the evidence is either frivolous or vexatious or the evidence is sought to be led with intention to delay the proceedings. Except this, the Court has no jurisdiction to decline to issue summons to the witness sought to be examined by any party or to examine such witness. This scheme clearly emerges from the various provisions discussed, hereinafter.
Sub-Rule1 of Order XVI Rule 1, Code of Civil Procedure, 1908, casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call and to obtain summonses to such persons for their attendance in court; Sub-Rule2 requires that the party seeking such assistance from the court must make an application stating the purpose for which the witness is proposed to be summoned; and Sub-Rule3 confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted under Rule1, if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
On the other hand, Rule 1A of Order XVI enables a party to bring in any witness without applying for summons under Rule 1 but this enabling provision is ‘subject to Sub-Rule 3 of Rule 1’.
In view of the discussion above, we are of the considered opinion that the impugned order practically tantamount to denial of the opportunity to the insurer to adduce their evidence to counter the contention of the complainant. Screening the facts in its entirely, we are therefore of the opinion that justice will be better served if summons to the concerned witness is directed to be issued by the District Forum, as prayed for by the insurer.
As a result, the instant Revision Petition is allowed leaving the parties to bear their own costs. Consequently, the impugned order dated 22-05-2018 is set aside. The District Forum will now issue summons to the witness Ranjit Sutradhar, sought to be examined by the petitioner Insurance Company.
It is further directed that both the parties will appear before the District Forum on 26-09-2018.
The original records of the Complains Case No. 28 of 2016 along with a copy of this order be transmitted to the concerned District Forum without delay.
