Kailash Chandra Sharma Vs E. Gurunath and Others

@JUDGMENTTAG-ORDER

S. Samvatsar, J.

Heard counsel.

This petition is filed by the claimant under Article 227 of the Constitution of India challenging the order dated 10-11-2006 passed by Ninth Additional Member Judge, Motor Accident Claims Tribunal, Gwalior in claim Case No. 29/05 whereby the Claims Tribunal has allowed the application filed by the claimant under Order 26 Rule 10 C. P.C. appointing a commission for examination of a doctor posted at Pathankot. The Tribunal while allowing this application has directed the present petitioner -claimant to bear the expenses of the lawyers of the opposite parties. Hence, this petition is filed under Article 227 of the Constitution of India.

Counsel for the petitioner submits that the person who is seeking commission is liable to pay commission''s expenses but the commission''s expenses do not include the expenses of opposite parties. For this purpose, he has relied on a judgment of Division Bench of this Court in the case of Cantonment Board, Mhow v. Chhajumal and sons 1969 MPLJ 304.

After perusal of the said judgment, I find that in para 32 of the said judgment, this Court has considered this aspect and held that the words "expenses of the commission" denote only the fees paid to the Commissioner and other expenses directly incidental to the issue and execution of a commission and do not include costs of opponent''s pleader or expenses which the opponent himself may have to incur to go to the place where the commission is to examine a witness.

Another judgment, referred to by the counsel for the petitioner is in the case of Jankidas v. Ramkumar Bani 1970 MPLJ 71 wherein the single Bench of this Court has relied on the Division Bench''s decision of this Court in the case of Cantonment Board, Mhow (supra) and has laid down that the expenses of commission means only commissioner''s fees and other expenses directly incidental to the issue and execution thereof; opponent''s expenses are not the expenses of commission and such expenditure is recoverable in the event of success.

In reply to this argument, Shri B.N. Malhotra, the learned Counsel for the respondent Insurance Company has relied upon the provisions of Section 169 of the Motor Vehicles Act, 1988 and submits that u/s 169 the Court has wide powers in the matter of procedure.

After perusal of the provisions of Section 169 of the Motor Vehicles Act, 1988 I find that the Court has, undoubtedly, wide powers while deciding the procedure for deciding claim cases and as per Sub-section (2) of Section 169, 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. From reading of this section, it appears that for recording evidence, the Tribunal has wide powers, but such powers are to be exercised by the Tribunal for doing justice to the party.

Counsel for the respondent Insurance Company also relied on single Bench decision of this Court in the case of Mankura Devi and Others Vs. Rakesh and Others, wherein this Court has issued guidelines for issuance of a commission. In that case, commission was appointed for examination of RTA and in that case, the Court had directed the Insurance Company to bear the expenses of the claimant for going to the place of commission. However, while deciding the said case, single Bench has not considered the Division Bench''s judgment in the case of Cantonment Board, Mhow (supra).

In view of this, I allow this petition. Direction issued by the Claims Tribunal to the claimant to bear the expenses of the opponents including the Insurance Company is set aside. Opponents shall bear their own expenses for going to the place of commission and in case of success, they will be free to recover the same from the claimant.

With the aforesaid direction, this petition stands allowed. Certified copy as per rules.