- (1.) Scope of appeals 1. Both the appeals arise out of the same award, the former is by the owner of the vehicle denying liability and quantum and the latter is by the claimant seeking for enhancement of compensation. II. Circumstances requiring additional evidence and the court's power under Section 165 Evidence Act
(2.) The claim was for injuries sustained in a motor accident involving an alleged collision of a motorcycle with the bus owned by an educational institution. The accident was said to have taken place on 26.04.1989, but the FIR relating to the same was made only on 09.08.1989. The vehicle itself had been seized by the police only subsequently and released on supardari to the owner of the bus. Before the arguments of the respective counsel got under way, I had asked the counsel for the claimant to sustain how the case could merely depend on oral evidence when there seemed such a long delay which was unusual if the accident had been true. The counsel appearing on behalf of the claimant made a fervent plea for summoning the criminal court records for doing complete justice and contended that the claimant was not after all pursuing remedy against the owner of the bus and the insurer by willfully imagining that the said bus was involved in the accident. I, therefore, passed an order on 09.03.2011, directing the criminal court records in FIR No. 70 dated 09.08.1989 to be sent for. On receiving the criminal court records, the respective counsel sought for time for inspection of record on 25.03.2011 and made formal opening of the arguments when the counsel for the claimant pointed out to a document found in the criminal court records i.e. a letter of authorization given by the Principal of St. Xavier's School, which was the owner of the bus as relevant for the purpose of the case. The letter purported to give authority to the transport-in-charge of the school to get the bus released from the police and "negotiate with the concerning party". I was of the view that the said letter had bearing to the facts involved in the case about the involvement or otherwise of the bus. Since the document itself had not been exhibited before Court as evidence, but it was part of the criminal court records, I passed an elaborate interim order on 05.04.2011, summoning the author of the letter, the transport- in-charge and the driver of the bus by invoking power under Section 165 of the Indian Evidence Act. While referring to the text of Section 165, I had observed, ...Learned senior counsel appearing for the Appellant in FAO No. 405 of 1993 raises very strong objection to the reliance of these documents by the counsel appearing on behalf of the Respondent. It is contended that even in the appeal filed by the Respondent, there is no reference relating to the above documents. The powers of any Court and more particularly the High Court are not fettered by any technical objection, if the primary consideration is to secure the truth and do justice for the purpose. These documents which are sought to be relied upon have substantial bearing to the truth or otherwise of the contention of the non-involvement of the vehicle belonging to the school.... III. Objection by counsel for counsel on the statement recorded by Court
(3.) All the witnesses being summoned and being present in Court, I had directed oath to be administered by my Court Officer and had put to the witness Shri Andrew J. Gosain questions relating to the document, the opening words of the statement reads as follows: Statement of Andrew J. Gosain son of Shri U.S. Gosain, Age 77 years, c/o St. Xavier's Senior Secondary School, Sector 44C, Chandigarh on SA. At the foot of each page, the witness had signed and at the last page, he had signed beneath the letters "RO&AC". After the examination of this witness, I was of the view that his evidence threw substantial light on the relevance of the document which was in the criminal court record's file, which I directed to be exhibited in evidence as CW1/A. The other two witnesses whom I had summoned, I decided not to examine them since in my assessment, that there was no need for them. At the request of the parties, I had directed the case to be posted to 03.06.2011 for arguments. These details of the manner and circumstance of bringing a witness to testify as a Court witness become necessary in view of how the senior counsel for the school opened his arguments on the day when the case was set down for hearing. He remarked that the statement of the witness had not been examined after administering oath, as if to suggest that there could be no reliance on the statement. I pointed out to him that oath had been indeed administered. I reminded him that what was denied on that day to the counsel for the Appellant/school was only that he would not be allowed to examine the witness in chief, but he was a Court witness and he was being examined by the Court and a statement was taken for the reasons enumerated under the Section 165 of the Evidence Act itself. I also explained to him that the letters 'SA' at the opening of the evidence signified 'solemnly affirmed' and the letters 'RO&AC' in the last page meant, 'read over and accepted as correct', the abbreviations being part of the court practice in the Courts of Punjab & Haryana. The senior counsel offered to withdraw from the case taking umbrage to the observations made by me and expressed reluctance to proceed to argue the case. At that time I pointed out to him that if there ever existed any doubt that the witness was not administered 'oath', he should have taken objection on the same day or as a senior counsel, he was duty bound to assist the Court that no statement could be recorded from a witness unless he was administered oath in the manner required under the Indian Oath Act. In my view, the conduct of the learned senior counsel denying the fact that the statement was recorded after administering oath was puerile. If there was a genuine doubt even on that day when the evidence was let, he owed a duty to Court to counsel appropriately before the examination of the witness started or at least remonstrated at the time when the signatures were taken from the witness. As a matter of fact, taking permission from the Court, the senior counsel sought to obtain an answer by way of clarification and I had also granted such permission. It was only here that the court steno made a mistake by recording the last question by the counsel for the school as "cross examination", when it should have been merely "examination by counsel for the Appellant". To turn the table on Court that the evidence recorded in Court contained a fundamental flaw and that too, not on the same date but at the next hearing is, to say the least, most unfortunate. Many a breeze does occur in Court when the counsel in the heat of arguments exchange even unpleasant words amongst the counsel themselves. But there could hardly be a justification for either a counsel or a presiding officer of Court to have any heated exchange. It is in the mutual respect that wheels of justice roll on. The majesty of the institution lies in the respect of the bar for the Court's impartiality and by the Court respecting the resourcefulness of the bar to guide the Court appropriately. An exuberance or juvenile flourish from a veritable tyro among the bar to make even an outlandish proposition could be understood and sometimes even tolerated, but for a senior counsel to err and pander just to impress the litigant would be a dangerous trend. I make these observations in anguish, for, it is not to the benefit of the institution to browbeat and to say the least, suspect that the Court did not do what it actually did and what was more, expressly stated so in the evidence and brought through records. The Supreme Court had also expressed serious concern in a case of contempt proceedings initiated against a senior counsel, when it underscored the role of the bar in R.K. Anand v. Registrar, Delhi High Court, 2009 8 SCC 106, at page 206: "We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people." IV. Fallibilities in testimony of witnesses notwithstanding, proof of involvement of the vehicle well established; Principal of the school was not a witness for truth;