IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.2882-883 OF 2019 (GM-AC) BETWEEN:
SRI DEEKSHIT S/O SRI SHANKARA, AGED ABOUT 22 YEARS NO.3-157, VAISHALINIVAS, NEAR SRI GURUVAIDHYANATHA TEMPLE, KAVOOR, KUNJATHBAIL, MANGALURU-575 015 (BY MR.H GIRIDHAR, ADV.) AND:
1. SRI PRAVEEN ANCHAN AGE: MAJOR S/O RUDRA POOJARY, NO.1-126, SHANTHOTA HOUSE, KIDIYOOR, UDUPI-576 101.
2. THE ORIENTAL INSURANCE COMPANY LTD PUTTUR BRANCH OFFICE, KRISHNA PRASAD BUILDING, MAIN ROAD, PUTTUR-564 201 (BY MR.C R RAVISHANKAR, ADV. FOR R2 MR.PRAVEEN ANCHAN ADV. R-1 (ABSENT) … PETITIONER … RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE COMMON ORDER DTD 01.01.2019 MADE BY THE LEARNED VI ADDL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU ON I.A.NOS.III AND IV IN M.V.C.NO.1872/2017 AND DIRECT TO ALLOW IN ENTIRETY IN I.A.NOS. III AND IV IN M.V.C.NO.1872/2017 ON FILE OF THE LEARNED VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU VIDE ANNX-E; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.H.Giridhar, Learned counsel for the petitioner.
Mr.C.R.Ravishankar, learned counsel for respondent No.2.
Record perused.
2. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 11.01.2019, by which application filed by the petitioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 for examination of the Doctor on commission has been rejected.
3. Learned counsel for the petitioner submitted that the claims Tribunal ought to have appreciated that the evidence of the of the Orthopedic Surgeon who had treated the petitioner for his injuries was necessary and therefore, the petitioner had filed an application for recording his statement on commission. It is further submitted that the aforesaid application was filed as the witness was not in a position to appear before the claims Tribunal. However, the aforesaid aspect of the matter has not been appreciated.
4. I have considered the submissions made by learned counsel for the parties. Despite notice being issued, none has appeared on behalf of the respondents to oppose the prayer made in the writ petition.
5. In the facts and circumstances of the case and taking into account the fact that the evidence of the orthopedic surgeon who treated the petitioner for his injuries is necessary for a fair and complete adjudication for the controversy involved in these petitions, the impugned order 01.01.2019 is hereby quashed and set aside and the claims tribunal is directed to issue commission for examination of the aforesaid witness.
Accordingly, the petitions are disposed of.
Sd/- JUDGE SS