IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.25655 OF 2018(GM-AC) Between:
Bajaj Allianz GIC Ltd., No.31, Ground Floor, TBR Towers, 1st Cross, New Mission Road, Near Bangalore Stock Exchange, Bengaluru – 560 027.
Now residing at Legal Manager, Bajaj Allianz General Insurance Co. Ltd., No.1/2, Golden Heights, 4th Floor, 59th C Cross, 4th M Block, Rajajinagar, Bengaluru – 10.
(By Sri.Pradeep.B, Advocate) And:
1. N.Mallesh Since Dead by L.R.Narasamma, S/o late Lingappa, Now aged about 42 years, R/at No.1, Slum Quarters, 16th Main Road, Bengaluru – 40.
… Petitioner 2. Zahir Shariff S/o Osman Sheriff, Now aged about 38 years, R/at No.19/13, Sabandee Palya, Bengaluru – 09.
…Respondents (By Sri.Krishna Naik, Advocate for R1-absent;
R2 – notice dispensed with v/o dated 18.01.2019) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 02.04.2018 Annexure-D in MVC No.5187/2014 pending file of MACT at Bengaluru (SCH-14) and direct the MACT to permit the petitioner to produce the CD and lead evidence in that regard by allowing the application filed by the petitioner and to decide the case on merits in MVC No.5187/2014 by directing the MACT to afford an opportunity to the petitioner to contest the proceedings in MVC No.5187/2014 on the merits and etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri.Pradeep B, learned counsel for the petitioner.
2. None had appeared on behalf of respondent No.1 on 30.07.2019. On 30.07.2019, this Court had passed an order that in case no appearance is made on behalf of respondent No.1 on the next date of hearing, appropriate orders shall be passed. Even today, when the matter is called, none has appeared on behalf of respondent No.1.
3. Records perused. The petition is admitted for hearing.
4. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 02.04.2018 passed by the MACT, Bengaluru by which an application filed by the petitioner under Section 65 B of the Indian Evidence Act, 1872 has been rejected.
5. The facts giving rise to filing of the petition briefly stated are that respondent No.1 had filed an application under Section 166 of the Motor Vehicles Act, claiming compensation. At the stage of evidence of the petitioner, the petitioner filed an application under Section 65 B of the Indian Evidence Act by which permission to produce and display the CD was sought containing the conversation between the driver of the auto rickshaw and the owner of the vehicle. The aforesaid application has been rejected by the Tribunal on the merits that the application filed by the petitioner is not maintainable in law or on facts.
6. From perusal of the order, it is also evident that the Tribunal while dealing with the application has dealt with the issue on merits of the averments contended in the application. It is well established law that while dealing with the application for amendment, merits of the averments made in the application cannot be gone into. The impugned order, therefore, suffers from the error apparent on the face of the record and jurisdictional infirmity. The impugned order dated 02.04.2018 is hereby quashed and set aside. In the result, the application filed by the petitioner under Section 65 B of the Indian Evidence Act is allowed.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE dn/-