IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 02^ND DAY OF DECEMBER 2021

BEFORE

THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

W.P.NO.109754/2016 (GM-AC)

BETWEEN

NATIONAL INSURANCE COMPANYY LTD,

BY ITS DIVISIONAL MANAGER,

KUSUGAL ROAD, KESHWAPUR,

HUBBALLI.

NOW REPRESENTED BY ITS

ADMINISTRATIVE OFFICER,

NATINOAL INSURANCE COMPANY LIMITED,

ARIHANTA PLAZA,

III FLLOR, KUSUGAL ROAD,

KESHWAPUR,HUBBALLI-580023.

...PETITIONER

(BY SRI.S K KAYAKAMATH, ADV.)

AND

1 .

SMT.ZULEKHABI

W/O LATE MUKTAR AHMED BATERI,

AGE: 39 YEARS,OCC: HOUSEHOLD

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

2 .

ALLAUDDIN

S/O MUKTAR AHMED BATERI,

AGE: 20 YEARS,OCC: STUDENT,

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

3 .

ATAUL MUSTAFA RAZAULL

: 2 :

S/O MUKTAR AHMED BATERI,

AGE: 18 YEARS,OCC: STUDENT,

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

4 .

MOHAMMAD RAZAULL MUSTAFA

S/O MUKTAR AHMED BATERI,

AGE: 16 YEARS,OCC: STUDENT,

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

MINOR REPRESENTED BY

MOTHER NATURAL GUARDIAN

SMT.ZULEKHABI

W/O LATE MUKTAR AHMED BATERI.

5 .

GAUSIABANU

D/O MUKTAR AHMED BATERI,

AGE: 13 YEARS,OCC: STUDENT,

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

MINOR REPRESENTED BY

MOTHER NATURAL GUARDIAN

SMT.ZULEKHABI

W/O LATE MUKTAR AHMED BATERI.

6 .

NAEEMUNISA @ KANIZ FATIMA

D/O MUKTAR AHMED BATERI,

AGE: 09 YEARS,OCC: STUDENT,

R/O ARALIKATTI ONI,

MANTUR ROAD,HUBBALLI.

MINOR REPRESENTED BY

MOTHER NATURAL GUARDIAN

SMT.ZULEKHABI

W/O LATE MUKTAR AHMED BATERI.

7 .

ABDULKHADAR

S/O KHWAJA HUSEIN DUKANDAR,

AGE: MAJOR,OCC: BUSINESS,

R/O MALLALI BLOCK,

MANTUR ROAD, HUBBALLI

(OWNER OF MOTOR CYCLE HERO HONDA

PASSION PRO BEARING NO.KA 25/EG 6712).

: 3 :

8 .

MOHAMMED SHABBIR

S/O ABDUL AZIZ MOAZUM,

AGE: MAJOR,OCC: BUSINESS,

R/O H.NO.66,DESAI ONI,

BANKAPUR CHOWK,HUBBALLI.

….RESPONDENTS

(BY SRI.ANJANEYA M, ADV. FOR: R1 & R2;

SRI.CHETAN T LIMBIKAI, ADV. FOR R7 & R8;

R3 SERVED & UNREPRESENTED;

R4, R5 & R6 ARE MINORS R/BY R1)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH

THE IMPUGNED ORDER DATED:19.11.2016 PASSED BY THE

LEARNED

II

ADDITIONAL

SENIOR

CIVIL

JUDGE

AND

ADDITIONAL MACT AT HUBBALLI ON INTERIM APPLICATION

NO.9 FILED UNDER ORDER 16 RULE 1 AND 2 R/W. SECTION

151 CPC FILED BY THE WRIT PETITIONER/RESPONDENT NO.2

IN MVC NO.329/2014 VIDE ANNEXURE-L.

THIS

PETITION

COMING

ON

FOR

PRELIMINARY

HEARING B-GROUP, THIS DAY, THE COURT MADE THE

FOLLOWING:

ORDER

1.

An application to summon 4 witnesses has been

rejected by the Tribunal and that order is impugned in this

petition.

2.

The Insurance Company requested for the summoning

of the witnesses to establish as to who actually was driving

the motorcycle so as to establish its defence that the person

who was driving the motorcycle was subsequently changed to

be the pillion rider.

: 4 :

3.

The Tribunal has refused the said application mainly on

the

ground

that

the

complainant

Shri

Bashirahmad

Abdulsattar Choudhary, in his complaint, had clearly stated

that when he went to the spot of the accident, he saw the

driver and the pillion rider of the vehicle lying on the ground

and that he was therefore not the eyewitness as to who

exactly was driving the motorcycle at the time of the accident.

4.

It is to be stated here that the witnesses in a criminal

proceeding would not be relevant to for the purpose of

adjudication of claim petition. If the defence of the insurance

company is that the accident occurred in a particular manner

or the vehicle in question was being driven by a particular

person, they would have to independently prove this fact. The

insurance company cannot, as a matter of right, insist that

the witnesses who deposed before the Court should be

summoned in the Motor Vehicle proceeding and be subjected

to cross examination. I am therefore of the view that the

reasoning of the Tr