IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.52655 OF 2014 & WRIT PETITION NO.52737 OF 2014 (GM-AC) BETWEEN:
CHIDANANDA H.
S/O. A.D. HANUMANTHAPPA AGED 43 YEARS OWNER CUM DRIVER OF CAR BEARING REG. NO.KA-17/M9873 R/O. NO.639/17, 1ST MAIN, 1ST CROSS LENIN NAGAR DAVANAGERE-577 001. ... PETITIONER (BY SRI. V. MAHESH, ADV. FOR SRI. A. HANUMANTHAPPA, ADV.) AND:
1. NAGARAJA S/O. SHANKARANNA AGED 45 YEARS DRIVER OF BUS ANNAPOORNESHWARI MOTORS BEARING REG. NO.KA-17/A5209 R/O. UMBLEVAILU VILLAGE SHIVAMOGA TALUK AND DISTRICT-577 201.
2. K.K. BALAKRISHNA S/O. S.G.K. BHAT OWNER OF BUS ANNAPOORNESHWARI MOTORS BEARING REG. NO.KA-17/A5209 R/O. KALASA MOODEGERE TALUK-577 132 CHICKAMAGALUR DISTRICT.
3. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE CHICKAMAGALUR REP. BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE NATIONAL INSURANCE COMPANY MELEGERI PLAZA M.C.C. BLOCK DENTAL COLLEGE ROAD DAVANGERE-577 001.
4. DIVISIONAL MANAGER DIVISIONAL OFFICE NATIONAL INSURANCE COMPANY MELEGERI PLAZA M.C.C. BANK DENTAL COLLEGE ROAD DAVANAGERE-577 001. … RESPONDENTS (BY SRI. A.K. BHAT, ADV. FOR R3 AND R4 VIDE ORDER DATED 14.11.214, NO NEED TO TAKE NOTICE TO R1 AND R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE PRL. SR. CIVIL JUDGE AND MACT, IV DAVANAGERE PASSED IN MVC.NO.1238/2011 DATED 27.10.2014 AT ANNEXURE-G AND DIRECT THE MACT GO ON WITH THE CASE AFTER ALLOWING THE I.A.NO.4 AND 5 BY PERMITTING FURTHER EVIDENCE OF PETITIONER.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
respondent Nos.3 and 4.
2. The writ petitions are admitted for hearing.
With the consent of learned counsel for the parties, the petitions are heard finally.
3. In these petitions under Articles 226 and 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 27.10.2014 passed by the Motor Accident Claims Tribunal, Davanagere (hereinafter referred to as ‘the Tribunal’ for short) by which the application filed by the petitioner under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (herein after referred to as ‘the code’ for short has been rejected.
4. The petitioner is a claimant, who has filed a petition under Section 163(A) of the Motor Vehicles Act, 1988. In the aforesaid proceeding, after respondent No.4 filed the additional written statement, the petitioner filed an application under Order XVIII, Rule 17 of the Code seeking to recall Plaintiff Witness No.1 for further examination. The respondent No.4 namely, the insurance company stated that it has no objection to the prayer made by the petitioner. However, the Tribunal by order dated 27.10.2014 has rejected the aforesaid application without assigning any reasons.
5. I have heard the learned counsel for the parties at length and perused the records.
6. The impugned order is a non-speaking order and suffers from vice of non-application of mind and the Tribunal ought to have appreciated the fact that the application under Order XVIII Rule 17 r/w. Section 151 of Code of Civil Procedure was required to be filed, in view of the fact that the respondent No.4 had filed additional written statement. The fact that the parties to the proceeding have a right to a fair trial ought to have been appreciated by the Tribunal and therefore, it was necessary to permit the petitioner to examine Plaintiff Witness No.1. The impugned order suffers from the error apparent on the face of the record and jurisdictional infirmity. Accordingly, the impugned order dated 27.10.2014 is quashed. The application preferred by the petitioner under Order XVIII, Rule 17 of Civil Procedure Code is allowed. The Tribunal is directed to fix a date for appearance of Plaintiff Witness No.1. Plaintiff Witness No.1 shall remain present before the Tribunal on such date and he shall be examined and cross-examined by the respondents, if so advised. The Tribunal is directed to proceed with the matter expeditiously in accordance with law.
Accordingly, the writ petitions are disposed of.
Sd/- JUDGE ST