Digitally signed by RUPA V Location: H IGH COURT OF KARNATAKA

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS DTD.18.3.2021 AND 01.10.2021 PASSED BY VII ADDITIONAL JUDGE AND ACMM BENGALURU IN MVC NO.4128/2017 PRODUCED AS PER ANNEXURE-E AND G RESPECTIVELY AND THEREBY PERMIT THE PETITIONERS TO CROSS EXAMINE PW4 IN MCV NO.4128/2017 ON THE FILE OF VII ADDITIONAL JUDGE AND ACMM BENGALURU & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the orders dated 18.03.2021 and 01.10.2021 passed in M.V.C.No.4128/2017 by VII Additional Judge and ACMM and Motor Accident Claims Tribunal, Bengaluru (for short 'the Tribunal').

Sri.P.N.Harish, learned counsel appearing for the petitioners submits that the petitioners have filed a claim petition seeking compensation for the death of their son Supreeth Gowda.V in a road accident. In the said proceedings, the petitioners examined PW-4 Sri.Munesh N. by way of filing an affidavit in lieu of the examination-in-chief. In the examination-in-chief, PW-4 deposed that on the date of accident, one Sri.Darshan was driving the vehicle involved in the accident and stated that he has lodged a complaint with the jurisdictional police. However, in cross-examination, he turned hostile and stated that the deceased Supreeth Gowda.V was driving the car and also stated that he has not given any complaint. Hence, the said witness was re-examined. In the re-examination also, he spoke against the stand of the petitioners. Hence, the petitioners filed an application under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (for short 'the CPC'), to re-call PW-4 for cross-examination. The said application came to be rejected on the ground that the said witness was not treated as hostile and thereafter, the petitioners filed another application under Section 154 of the Indian Evidence Act, 1872 (for short, 'the Act') read with Section 151 of the CPC to treat PW-4 as a hostile witness and permit the petitioners to cross-examine him. The said application also came to be rejected. In support of his contentions, he placed reliance on the decision of this Court in the case of RAJIV VIJAYASARATHY RATHNAM Vs. SUDHA SEETHARAM, W.P.No.14082/19 dt. 16.10.19 and submits that the concept of hostile is not restricted only to the criminal jurisprudence but even in the civil proceedings if the witness speaks against the interest of the person who examines, he would have a right to cross-examine him. Hence, he seeks to allow the petition.

Per contra, Sri.Venkatesh Kamath B.R., learned counsel for the respondent supports the impugned orders of the Tribunal and submits that the respondent filed objections to the claim petition wherein it has been specifically pleaded at paragraph 5 that the deceased Supreeth Gowda was driving the vehicle and not Sri.Darshan. It is submitted that PW-4 was further examined by the petitioners' counsel which is evident from the order sheet. Hence, there is no question of further re- calling PW-4 for cross-examination which is impermissible. It is submitted that to treat the witness as hostile is the discretion of the Court and the Tribunal, by giving cogent reasons, has refused to exercise the said discretion. Hence, he seeks to dismiss the petition.

I have heard the arguments of learned counsel for the petitioners, learned counsel for the respondent and meticulously perused the material available on record.

The petitioners as well as the respondent are not in dispute that the petitioners have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, which is registered as MVC No.4128/2017. In the said proceedings, the respondent has filed objections. The objections clearly indicate that the deceased Supreeth Gowda was driving the vehicle. The claimants examined themselves