Sunita vs Malkit Singh

This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short MV Act) is against the impugned award dated 11.01.2017 passed by the 1st Additional Motor Accident Claims Tribunal, Durg, District Durg, CG (for short Tribunal) in claim case No. 294/2015.

Facts of the case in brief is that the appellants / claimants filed a claim application under Section 166 of MV Act, claiming compensation of Rs. 78,35,000/- from the respondents on account of death of Raju Hathimare (herein after referred to as deceased). On 16.07.2015 the deceased was going to his work place on motorcycle bearing registration No. MH-35 W-2533 and while crossing Durg -Dhamdha, the offending vehicle i.e. car bearing registration No. CG04 H- 6165 which was being driven by the respondent No. 1 herein in rash and negligent manner, came from behind and hit his motorcycle, as a result of which he suffered severe injuries and died on the spot.

The deceased was engaged in transport business in the name of Sai Haiker Service and was earning Rs. 30,000/- per month. He was aged about 36 years and the appellants / claimants were dependent upon the income of the deceased.

The respondent Nos. 1 & 2 did not file their written statement and they were proceeded ex-parte.

The respondent No. 3 / insurance company filed its written statement and barring the admitted facts denied the averments of the claim application and also pleaded that the deceased contributed in causing the accident and there is violation of terms and conditions of the insurance policy.

The learned Tribunal having framed issues and decided the same in favour of the appellants / claimants and assessed the compensation to Rs. 31,83,400/-. The learned Tribunal found that the deceased contributed in causing the accident to the tune of 50%, hence, 50% amount of Rs. 15,91,700/- was deducted from the amount as assessed.

Mr. Sharma, learned counsel for the appellants submits that he is not challenging the assessment of income by the learned Tribunal, however, the finding with regard to contributory negligence is liable to be set aside and it is based upon incorrect appreciation of evidence.

Mr. Khetrapal, learned counsel for the insurance company supports the award and submits that finding with regard to contributory negligence is based upon proper appreciation of evidence hence, it does not require any interference by this Court.

I have heard learned counsel for the parties, considered their rival submissions and perused the record.

Appellant No. 1 – Sunita (AW-1) was examined. She has proved the criminal papers from Ex. P-1 to P-11. Since she is not an eye witnesses, does not throw any light on the happening of the accident.

Malkeet Singh (AW-2), who happens to be driver of the offending vehicle was examined on behalf of claimants. He has deposed in his statement that while driving the offending vehicle he was going to his residence towards Dhamdha, after crossing half of the over bride, a motorcycle came ahead from behind and the car in front of him applied brakes, looking to which the motorcycle rider also applied the brake and thereafter, he applied the brake, in this event he has dashed the motorcycle upon which the driver of the motorcycle fell down thereafter, he stayed and saw that the crowd had gathered there. After one month, the police personal came and after inquiry he was arrested and crime was registered against him. He was subjected to cross-examination but nothing incriminating was brought on record. The only fact which emerges from his evidence is that the car which was ahead of the motorcycle suddenly applied the brake which resulted into applying the brake by the motorcycle rider and the offending vehicle dashed the motorcycle. N. Vasanti (AW-3) was proved the income tax written of the deceased.

The learned Tribunal relying upon the MLC report (EX. P-11) in which it was mentioned that the alcohol smell was coming from the mouth and nose of the deceased and that the deceased was driving the motorcycle under inebriated conditions and he suddenly applied the brakes therefore, the accident has occurred and also held that on the way a vehicle applied the brakes suddenly it becomes impossible from the vehicle coming from behind to save the vehicle and held that since the deceased drove the vehicle under inebriated conditions and he applied the brake suddenly therefore, apart from the driver, the deceased has also contributed to the accident.

From perusal of the Ex. P-11 MLC it appears that smell of alcohol from mouth and nose of the deceased is mentioned. In this regard, it would be relevant to quote Section 185 of the MV Act:-

“185. Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle,

[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, [or in any other test including a laboratory test,] or ]

(b)is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle,

shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine [of ten thousand rupees], or with both; and for a second or subsequent offence, [***], with imprisonment for a term which may extend to two years, or with fine [of fifteen thousand rupees], or with both.

[Explanation. - For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”

From the reading of Section 185 of MV Act, it appears that a person would drive the vehicle under drunken conditions having alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, would be convicted under the provision of this Section. The only evidence is appearing in the case in hand, that the doctor in its MLC Ex. P-11 simply stated that alcohol smell was coming from mouth and nose of the deceased. But nothing to establish on record that the deceased consumed the alcohol more than the limit prescribed in Section 185 of the MV Act. Tribunal in the one hand has held that there has to be sufficient distance between the two vehicles to avoid the accident however, held that since the deceased suddenly applied the brakes, the accident has occurred and found that the deceased contributed to the tune of 50% in causing the accident.

The plea of contributory negligence was taken by the insurance company. For the reasons best known to it, no witness was examined on its behalf to substantiate this plea. This Court in conscious of the fact that the it is very unsafe for a person to drive the vehicle under influence of liquor as it is one of the major reasons for causing the accident in the country. However, MV Act has provided the consumption limit. No report is available on record to suggest that deceased consumed the alcohol above the prescribed limit as provided under the MV Act or even the doctor who examined the deceased after the accident has not been called by the insurance company to establish that the deceased was under the influence of liquor. It is not a case that the deceased dashed any vehicle from behind or the accident occurred as a result of head on collision between two vehicles or vehicles of same category. No prudent and cogent evidence available on record to suggest that since deceased being under influence of liquor has contributed to any extent in causing the accident.

The driver of the offending vehicle was examined and he has stated that he dashed the motorcycle of the deceased from behind and went away after the accident.

In light of above discussion, this Court finds itself unable to sustain the finding of contributory negligence arrived at by the learned Tribunal, therefore, this finding of contributing negligence is hereby set aside. The appeal thus allowed. The respondent No. 3 / insurance company is held liable to pay the entire amount of compensation as assessed by the learned Tribunal.