IN COURTS, ARBITRATION AND ADR
Witnesses are allowed to give evidence about facts they had observed and they are not permitted to give their opinions. The opinions or beliefs of third persons are irrelevant and therefore inadmissible, and witnesses are to state facts only, i.e. what they themselves saw or heard or perceived by any other sense and not to draw inferences from what they see.[i] Section 60 of the Evidence Act, 1872 provides -
“60. Oral evidence must be direct – Oral evidence must, in all cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -
Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.’
It is function of the judge to form his own conclusion or opinion on the facts stated. The opinion or the impression of a witness that it appeared to him from the conduct of a mob that they had collected for an unlawful purpose is not admissible to prove the object of the assembly.[ii]
A witness can give testimony only of which he has had personal knowledge. The witness should not be examined-in-chief as to his belief or persuasion, but only as to his knowledge of the facts. Opinions, in so far as they may be founded on no evidence or illegal evidence, are worthless and, in so far as they may be founded on legal evidence, tend to usurp the functions of the tribunal whose province alone it is to draw conclusions of law of fact[iii].
But the specialized knowledge of a subject entitles a person to testify about his opinion on the meaning of facts. Expertise in a particular field enables a person to testify on the meaning of facts and technicalities. Opinion of many persons is respected for having specialized knowledge of a particular subject beyond that of the average person because they may have education, profession, publication or experience in a particular field. Particular knowledge, education, experience, skill, and training make their opinion about interpretation or meaning of a particular fact or event useful for resolution of a dispute. The question is whether such opinion or testimony of a witness can be relied in the courts because he did not witness the occurrence relating to subject of the litigation?
Section 45 of the Evidence Act reads as under:
“45. Opinions of experts – When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.
Illustrations
(a) the question is, whether the death of A was caused by poison? The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law?
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.”
An engineer is by reason of special training, education, and experience qualified to design and direct the construction of engineering work in one or more of the divisions of Engineering – Aeronautical, Chemical, Civil, Electrical, Mechanical, Metallurgical, Mining, Naval Architectural etc. Expertise in engineering is helpful to resolve disputes relating to building and engineering contracts. Many times an expert witness is permitted to state his opinion concerning technical matters or facts although he was not present at the event. For example, a civil engineer could testify about the possible causes of collapse of a bridge. He may be called upon as an expert witness by the government after the collapse of the bridge to analyse and confirm the reasons of the collapse.
The opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such, that inexperienced persons are not likely to prove capable of forming a correct judgment upon it, without such assistance; in other words, when it so far partakes of the nature of science, as to require a course of previous habit or study in order to the attainment of a knowledge of it, and that the opinions of witnesses cannot be received when the inquiry is into a subject-matter, the nature of which is not such as to require any particular habits of study in order to qualify a man to understand it. If the relations of facts and their probable results can be determined without especial skill or study, the facts themselves must be given in evidence, and the conclusion or inferences must be drawn by the jury.[iv]
Section 26 of the Arbitration and Conciliation Act, 1996 has specifically provided for this aspect and authorized the arbitral tribunal to appoint one or more experts to report to it on specific issues to be determined by the tribunal.
Section 26 of the Arbitration and Conciliation Act, 1996 gives the arbitral tribunal discretion to appoint an expert or expert(s) to report to it on any issue(s) it may determine. Sub-section (1) grants the arbitral tribunal an implied power, i.e., without special authorization by the parties, to appoint one or more experts to report to it on specific issues and to order a party to co-operate in a certain way with the expert.
Section 26 empowers the arbitral tribunal. It also empowers the arbitral tribunal require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection. However this provision is subject to a contrary agreement if any between parties.
It authorises the arbitral tribunal to seek the assistance of experts. Sub-section (1) (a) confers the power on the arbitral tribunal to appoint an expert on specific matters. Sub-section (1) (b) requires a party to give to the expert, any information or to provide access to any relevant documents, goods or property for his inspection.
Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.
Where arbitrators are appointed on account of their skill and knowledge of the subject-matter referred to them, and are not required to decided by the hearing of evidence, they may consult other persons when it is necessary that they should do so in order to decide the matter submitted, and may adopt the views of the persons consulted as their own[v].
Surveyors, for example, who have to decide as arbitrators as to the value of land must of necessity base their decision to some extent upon the information of others,
There is no objection even to such arbitrators taking the opinion of others as to the value of the specific matters which they have to decide.
Where values appointed to value an estate took the opinion of two builders as to the value of the mansion-house (with the knowledge of the parties) and adopted it as their own, it was held that the award (so-called) could not be objected to on that ground.
Where the arbitrator has to decide upon the evidence put before him, rather than relying upon his own knowledge of the subject matter for the reference, the position is possibly less clear. Even so, there would seem to be little doubt that he may receive in evidence expert opinion and reports as to questions he has to decide, and may found his decision upon them. He is not, however, entitled to exclude other evidence offered to him upon such question. [vi]
Arbitrations may properly delegate their duties if so authorized by the terms of the submission or by agreement of the parties. e.g., to accountants, surveyors, lawyers, etc. “His (the third party’s) decision then comes before the arbitrator in the shape of an admission, which is nothing more than a matter of evidence agreed upon.
Where the submission authorizes the delegation of the arbitrator’s duties, the terms of the authority must be complied with.
If an arbitrator is at liberty under the reference to appoint an accountant “not objected to by any of the parties” and he appoints one without communicating with the parties then the award can be set aside.
Section 26 (3) provides that unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.
Where the parties have agreed on the procedure or modalities for resolving the dispute, then that procedure or modality shall be given effect. But where the parties fail to agree so there, they will have a right to ask the expert to make available for examination all documents, goods or other property available with him and such documents, goods or other property must be those which formed the basis of compilation of his report. However, there is no provision for supply of copy of expert’s report even on the request of the parties.
There are cases in which the court is not in a position to form a correct judgment without the help of persons who have acquired special skill or experience on a particular subject, e.g. when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience therein is necessary. In such cases the help of experts is required, in these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision. Under this head comes, matters of science, art, trade, handwriting, finger-impressions and foreign law. The rule admitting expert evidence is founded on Necessity.