Zaishu Xie & Anr. vs The Oriental Insurance Company Ltd & ... on 31 October, 2013

[Cites 6, Cited by 4]

Delhi High Court

Zaishu Xie & Anr. vs The Oriental Insurance Company Ltd & ... on 31 October, 2013

1. The present petition is directed against the impugned order dated 14.08.2013, whereby the learned Trial Court has dismissed the application filed by the petitioners for recording of their evidence either by way of Commission or through video conferencing as the petitioners are senior citizens and Chinese Nationals.

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2. Facts of the case in brief are that on 14.05.2008 at about 11.00 PM, deceased, namely, late Mr.Xie Xiaochao was travelling in Maruti Esteem Car bearing No.DL-1YB-0897 and was coming back to Delhi from Agra. A TATA Truck bearing No.MP-07HB-1587, which was coming on the other side of the road, hit the Maruti Esteem Car by jumping off the divider. The said Truck hit the Car on the right side, wherein the deceased was sitting on the rear seat behind the driver's seat. Consequently, an FIR was lodged at Police Station Sadar, Palwal, Haryana on 14.05.2008. Due to the accident, the deceased named above died at the spot.

3. On 13.05.2008, deceased had come to India from China to attend a Seminar organized by the Company alongwith Mr.Xiang Wang, Vice President of the Company and had checked in Hotel Sheraton. Hence, the deceased was residing in India at the time of his death.

4. Thereafter, the petitioners preferred a claim petition under Sections 166/140 of the Motor Vehicles Act, 1988, which is pending adjudication before the Trial Court. Issues have already been framed by the Trial Court on 06.01.2010 and the case is pending for recording evidence of the petitioners.

5. Accordingly, an application was filed by the petitioners for summoning the witnesses alongwith list of witnesses way back in May, 2010. Thereafter, another application under Order XXVI Rules 1, 4 and 5 read with Section 151 CPC was filed by the petitioners for examining themselves by way of Commission. The learned Presiding Officer of the concerned Trial Court was of the view that the petitioners are old and CM(M) No.845/2013 Page 2 of 10 nationals of China, therefore, directed the respondent No.1/Insurance Company to seek necessary instructions for conducting their examination by way of Commission.

6. Pursuant thereto, on 14.07.2010, respondent No.1/Insurance Company informed the Trial Court that their Company did not have its office in China. Hence, vide order dated 17.01.2011, the Trial Court directed the respondent No.1/Insurance Company to first explore the possibility of compromise and posted the matter for 31.01.2011. On said date, learned counsel for the respondent No.1/Insurance Company moved an application seeking permission to examine the petitioners by way of interrogatories to be sent through Indian High Commission in China.

7. Accordingly, in compliance of the order dated 01.02.2011 passed by the learned Trial Court, evidence by way of affidavit of the petitioner No.1 duly translated and attested from the Competent Authority in China was filed by the petitioners. Same is enclosed as Annexure P-10.

8. Thereafter, respondent No.1/Insurance Company was directed to file the interrogatories/questionnaire to the petitioners and if required, the examination of the petitioners would be conducted through video conferencing.

9. However, due to the change of the Presiding Officer of the concerned Trial Court, the Trial Court insisted on the personal presence of the petitioners, despite the fact that orders have been passed by the Predecessor directing respondent No.1/Insurance Company to provide interrogatories CM(M) No.845/2013 Page 3 of 10 which would be answered by the petitioners either on affidavit or by cross- examining them through video conferencing.

10. Being aggrieved, the petitioners had moved another application before the Trial Court seeking modification of the said order.

11. Thereafter, petitioners made their endeavours to prove the FIR by summoning the Investigating Officer of the present case, but he did not appear for the reasons best known to him. Having no option, vide order dated 13.09.2012, the Trial Court issued the bailable warrants against the Investigating Officer and posted the matter on 04.12.2012.

12. The petitioners, being aggrieved with the delay in conducting proceedings before the Trial Court, preferred a petition bearing CM(M) No.1278/2012 before this Court. While disposing of the same vide order dated 26.07.2013, this Court directed the Trial Court to dispose of the application of the petitioners within a period of two months.

13. Accordingly, the Trial Court dismissed the said application vide impugned order dated 14.08.2013 and recorded as under:-

" In the overall facts and circumstances of this case having gone through the relevant provisions of CPC I do not at all feel it fit to appoint a Commission for examination of the petitioners in China in as much as it is very much desirable that the evidence of the petitioners should be recorded in the court itself with the help of a interpreter to be provided by Embassy of China in India. In view of these observations the pending application of the petitioner U/o26 r/w Sec.151 of CPC is hereby dismissed."

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14. Upon hearing learned counsel for the parties, it is emerged that a similar situation came up before this Court in the case of Milano Impex P. Ltd. Vs. Egle Footwear P. Ltd. & Ors. 188 (2012) DLCT 202, whereby the video conferencing was allowed by this Court on certain conditions.

15. Keeping in view the dictum of this Court in the case of Milano Impex P. Ltd. (supra) and the fact that the petitioners are nationals of China and are senior citizen and in the interest of justice, I am of the considered opinion that this petition deserves to be allowed.

16. Accordingly, I set aside the impugned order dated 14.08.2013 passed by the Trial Court.

17. Consequently, Trial Court is directed to conduct the evidence of the petitioner through video conferencing in the following terms and conditions:-

(i) Evidence of the petitioner No.1 shall be recorded through video conferencing between Delhi, India and Consulate General of India at Guangzhou, China.

(ii) In Delhi, the video conferencing shall be conducted in the facilities available in the Video Conferencing Room at Tis Hazari Courts.

(iii) The Incharge of the Video Conferencing Facilities at Tis Hazari Courts should be appointed as the Coordinator with regard to the technical aspects of video conferencing in the Consulate General of India at Guangzhou, China.

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(iv) The Consulate General of India at Guangzhou, China shall nominate a senior officer of India to facilitate the video conferencing. The officer nominated by the Indian Consulate General shall coordinate the video conferencing arrangements at Guangzhou, China and shall remain present at the time of recording of evidence of the petitioner No.1.

(v) The officer nominated by the Indian High Commissioner in terms of the direction at serial No. (iv) above shall ensure that apart from his own presence, only the Interpreter is present at the time of video conferencing unless required under serial No.(xix) below.

(vi) The officer nominated by the Consulate General of India shall verify the identity of the petitioner No.1 before commencement of his examination.

(vii) The Trial Court may appoint a Local Commissioner, if deems fit or record on his own, for the purposes of recording the evidence of petitioner No. 1.

(viii) As soon as identification part is complete, oath will be administered by the Local Commissioner so appointed by the Trial Court or by the Court itself through the media as per Oaths Act, 1969.

(ix) The petitioner No.1 shall be examined during working hours of Indian Courts. The plea of any inconvenience on account of time difference between India and China shall not be allowed. However, the convenience of the Consulate General of India at Guangzhou, China shall be taken into consideration in fixing the time and schedule.

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(x) The cross-examination, as far as practicable, be proceeded without any interruption and without granting unnecessary adjournments.

However, discretion of the Local Commissioner shall be respected, if so appointed by the Trial Court.

(xi) The Local Commissioner, if appointed, may record any material remarks regarding the demur of the petitioner No.1 while on the screen and shall note the objections raised during recording of evidence.

(xii) The deposition of the petitioner No.1 shall be signed immediately in the presence of the nominated officer of the Consulate General of India at Guangzhou, China. The said officer shall certify/attest the signatures of the witness/petitioner No.1.

(xiii) The audio and visual shall be recorded at both the ends and copies thereof shall be provided to the parties at the expense of the petitioners.

(xiv) The Consulate General of India at Guangzhou, China shall provide an official translator to facilitate the translation of questions from English language to Chinese language and answers from Chinese language to English language for the recording of evidence of petitioner No. 1 in English language.

(xv) The petitioners shall bear the cost/expenses of the video conference.

The expenses for the video conferencing to be undertaking in Beijing shall be informed to the petitioners through counsel by the Consulate CM(M) No.845/2013 Page 7 of 10 General of India at Guangzhou, China. However, in case of any difficulty, the same may be communicated to the Incharge of the Video Conferencing facilities at Tis Hazari Courts by e-mail, who shall communicate the same to the petitioners' lawyer in India.

(xvi) The officer of the Consulate General of India at Guangzhou, China to be nominated by the Consulate, shall be paid a lump sum amount of Rs.50,000/- as honorarium by the petitioners.

(xvii) The petitioners' counsel shall prepare certified copies of the entire court file of the Trial Court, which shall be forwarded to the office of the Consulate General of India at Guangzhou, China with the assistance of the Ministry of External Affairs, New Delhi.

(xviii) This record shall be made available to the officer nominated by the Consulate General of India at Guangzhou, China for the purpose of undertaking the video conferencing as it would be necessary for recording the statement and cross-examination of the petitioner No.1.

(xix) In case, the respondents or their counsels are desirous of being physically present at Guangzhou, China, at the time of recording of the evidence, it shall be open for them to make arrangements on their own cost for appearance and their representation. The respondents shall ensure that prior intimation in this regard is filed in the Registry of this Court giving full particulars and the names of the persons as well as enclosing documents of authority in respect of the persons, who shall be representing them in the proceedings. The intimation in CM(M) No.845/2013 Page 8 of 10 this regard as well as documents shall also be furnished to the Consulate General of India at Guangzhou, China.

(xx) The evidence should be recorded expeditiously and the entire proceedings before the learned Trial Court shall be disposed of in a time bound manner.

18. I here make it clear that the aforesaid directions are passed in the open Court and counsel for the parties, on instructions, have agreed thereto. I further make it clear that the aforesaid directions are subject to feasibility and possibility of the facilities available at the Consulate General of India at Guangzhou, China.

19. It is further clarified that if any difficulty arises at the Consulate General of India, Unit 1-4, 14th Floor Skyfame Tower, 8 Lin He Zhong Road, Tianhe District, Guangzhou, China, Telephone Nos.85501501 to 05 and Fax Nos. 85501510, 85501513, the petitioners are at liberty to approach this Court.

20. I expect from the Trial Court to make all endeavours to dispose of the claim petition expeditiously.

21. The Registry of this Court is directed to send copies of this order to the Secretary, Ministry of External Affairs, the Consulate General of India at Guangzhou, China and the concerned Trial Court for compliance.

22. A copy of this order be given dasti to the learned counsel for the parties under the signature of the Court Master.

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23. TCR be returned to the concerned Trial Court .

SURESH KAIT, J.

OCTOBER 31, 2013 sb CM(M) No.845/2013 Page 10 of 10

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