IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTYNINETH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2082 of 2011 Between: Bajaj Allianz General Insurance Co. Ltd, Represented by its Deputy Manager, Hyderabad .. Petitioner AND M. Jagannath Reddy and another .. Respondents ORDER: Sri T. Mahender Rao, learned counsel for the revision petitioner has brought to notice that the 2nd respondent/owner of the motor vehicle involved in the claim under the Motor Vehicles Act remained ex parte before the Motor Accidents Claims Tribunal and the subject matter of the Civil Revision Petition has no impact on his rights and interests. Therefore, no fresh notice to the 2nd respondent is necessary. Though the 1st respondent-claimant is served with the notice of the revision, none entered appearance on his behalf. The Civil Revision Petition is directed against the order in I.A.No.155 of 2011 in O.P.No.11 of 2010 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge (Fast Track Court), Mahabubnagar at Gadwal dated 3-5-2011, dismissing the petition by the insurer to recall PW.2 for further cross-examination, contending that the failure to cross-examine PW.2, the doctor earlier was due to lack of information. The claimant contested the request mainly stating the petition to be an attempt to drag on the proceedings and avoid payment of compensation. The trial Court passed the impugned order noting that PW.2 was already cross-examined at length by the insurer and Ex.A.4 wound certificate issued by PW.2 did not mention that the claimant sustained injuries by falling on his own. The driver of the crime vehicle was also noted to have admitted his guilt in the Criminal Case as seen from the judgment of the Criminal Court and therefore, the trial Court felt that there was no justification for recalling PW.2 for further cross-examination on the aspect that the claimant sustained injuries by a fall on his own. The recall of PW.2-doctor, who was examined by an advocate commissioner at Raichur, Karnataka State, was hence considered unnecessary by the Tribunal and the petition was accordingly dismissed. The said order is challenged by the insurer in this revision contending that a collusion between the claimant, the owner and the driver of the insured auto will not justify the rejection of the request of the insurer. The revision petitioner contended that when the medical record of the hospital clearly showed that the claimant fell down from his bike on his own as per the statement given by the person who accompanied him on the motorcycle, the same is a very relevant circumstance, which has to be put to PW.2 to substantiate the defence. Therefore, the insurer desired the impugned order to be reversed so as to absolve its very liability to pay any compensation on the false claim. The point for consideration is whether the request of the insurer needs to be considered? Sri T. Mahender Rao, learned counsel for the revision petitioner-insurer, has mainly relied on the plea taken by the insurer even in the additional counter filed by it before the Tribunal long before the request was made for recalling PW.2. It was specifically stated in the additional counter that the medical record/case sheet of the hospital specifically mentioned that the claimant fell down from bike on his own. The learned counsel also relied on the specific denials made even in the original written statement and contended that the mere omission in cross- examination of PW.2 on this aspect earlier for want of availability of medical record could not deprive the insurer of the right to cross-examine PW.2 again. While the claims of the insurer about the possible collusion between the claimant, the owner and the driver of the insured vehicle will be gone into and determined on merits by the Motor Accidents Claims Tribunal in the enquiry into the main claim, the alleged specification in the medical record about the claimant sustaining injuries by falling down from the bike on his own is not stated to be false. If such a medical record existed with the hospital, the request of the insurer to summon the same through the doctor cannot be considered irrelevant. The acceptability of such a mention in the medical record in the face of the admission of the driver of the vehicle in the criminal case, the silence about such mention in Ex.A.4 etc., will have to be again appreciated during the trial and not herein. The lack of diligence on the part of the insurer in not cross-examining PW.2 on this aspect earlier can be compensated by directing the petitioner to bear the costs of the re-entrustment of the warrant of commission to the Advocate Commissioner for further cross- examination of PW.2 and also the costs of the claimant’s counsel in attending at the time of cross-examination, irrespective of the result of the main claim petition. Such a course will safeguard the interest of the insurer in placing all the material before the trial Court, while at the same time not overlooking any lack of diligence. Accordingly, the order dated 03-05-2011 in I.A.No.155 of 2011 in O.P.No.11 of 2010 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge (Fast Track Court), Mahabubnagar is set aside and the said I.A.No.155 of 2011 in O.P.No.11 of 2010 is allowed subject to the condition of the petitioner-insurer bearing the expenses of recalling PW.2 for cross-examination by it through the Advocate Commissioner and also the costs of the learned counsel for the claimant in attending at the time of such cross-examination at the place of PW.2, irrespective of the result of the main claim petition. The Civil Revision Petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-07-2011 Ksn