IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.2469/2016 & WRIT PETITION NOS.4472-4473/2016 (GM-AC) BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD TP HUB, MAHALAKSHMI CHAMBERS I FLOOR, M.G.ROAD BANGALORE – 560 001 BY ITS MANAGER …PETITIONER (BY SRI.RAJAGOPALAN R., ADV.) AND:
1. MAHESH @ MAHADESHA S/O RAMEGOWDA AGED ABOUT 30 YEARS R/A NO.370/18 SOMESHWARA TEMPLE STREET OPP. MUTHAPPA BUILDING HULIMAVU POST BANGALORE – 76 2. M/S. ESS INFRA PROJECT PVT. LTD NO.1, 65, MALAD GANGA CHS LTD OPP HSBC ATM, MITH CHOWKI MALAD (W) MUMBAI MAHARASHTRA – 400 064 …RESPONDENTS (BY SRI. K.T.GURUDEVA PRASAD, ADV., FOR R1; R2 SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 02.12.2015 AND THE ORDER DATED 23.12.2015 ON THE IAS FILED BY THE PETITIONER PASSED BY THE HON’BLE V ADDL SCJ AND XXIV ACMM COURT, BANGALORE (SCCH 20) IN MVC NO.1077/2014, IN ANNEXURE – F AND ALLOW THE IA AND PERMIT CROSS EXAMINATION OF PW3 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-Insurance Company is before this Court in these petitions assailing the orders dated 02.12.2015 and 23.12.2015 passed on the interlocutory applications filed by the petitioner in M.V.C.No1077/2014 as at Annexure-F to the petitions. In that light, the petitioner is seeking that the application filed by the petitioner be allowed and leave be granted to cross-examine PW-3.
2. The respondent No.1 herein has filed the claim petition in M.V.C.No.1077/2014 seeking compensation for the injuries suffered by the claimant in the accident. In support of the claim as made by the claimant, in addition to examining himself, the claimant has also examined a Doctor as PW-3. The petitioner herein had not cross-examined the said Doctor, who was examined as PW-3. The Tribunal in that light had discharged the said witness. The petitioner herein had therefore filed the application seeking that the order discharging the said witness be recalled and leave be granted to the petitioner to cross-examine PW-3.
3. At the first instance, the request as made was rejected through the order dated 02.12.2015. Immediately thereafter on 03.12.2015, the matter was referred to the Mega Lok-Adalath to consider settlement. However, the matter not being settled, the petition was referred back to the Court on 12.12.2015. Subsequent thereto, since the matter was to proceed on merits, the petitioner once again made an application seeking recall of PW-3 for cross-examination. The Tribunal has rejected such request through the order dated 23.12.2015. It is in that light, the petitioner is before this Court 4. At the outset, it is necessary to be noticed that in a matter of the present nature where the claimant is seeking compensation and in that light has examined the Doctor as PW-3, consideration ultimately to be made by the Tribunal would be based on the evidence to determine the just compensation. If that be the position, even if non-examination of PW-3 at the first instance is considered as a default on the part of the petitioner herein, taking note of the fact that immediately thereafter, the matter was referred to Mega Lok-Adalath and subsequent thereto, since the mater is to be considered on merits, an opportunity is required to be granted to the petitioner to cross-examine PW-3. However, keeping in view the fact that the said PW-3 is a Doctor, who would have to come to the Court once over again and there would be some hardship to him, the same could be addressed by imposing some cost on the petitioner and granting opportunity to cross-examine within the time frame to be fixed. In that regard, liberty to impose appropriate cost and also the time frame within which the cross-examination is to be completed is left to the discretion of the Tribunal.
5. In that view, the orders dated 02.12.2015 and 23.12.2015 passed in M.V.C.No.1077/2014 are set aside. The application filed by the petitioner seeking leave to cross-examine PW-3 stands allowed. The Tribunal is directed to recall PW-3 and permit the petitioner to cross-examine him, subject to the condition that has been indicated above, by fixing an appropriate cost and the time frame be set to complete such cross-examination. It is made clear that, if the petitioner does not avail the opportunity within the time frame to be fixed by the Tribunal, the indulgence granted herein would stand forfeited.
The petitions are accordingly disposed of.
Sd/- JUDGE ST