Mere smell of the alcohol in the breath Would not lead to a conclusive presumption of contributory negligence, Delhi High court
CASE TITTLE:RELIANCE GENERAL INSURANCE CO LTD V.HAWA SINGH & ANR
CASE NO:MAC.APP. 107/2016
ORDER ON:08 May 2024
QUORUM: J. DHARMESH SHARMA
FACTS OF THE CASE:
The present appeal is prefered by the appellant/insurance company , Under Section 173 of the Motor Vehicles Act, 1988, challenging the judgment-cum-award dated 23.11.2015
The brief facts of the case is that the claimant/ respondent 1 sustained injuries on 07.11.2011, wherein his motorcycle was hit by a Santro car(‘offending vehicle’) driven by respondent No.2/Anil Kumar, who is the driver-cum-owner Of the offending vehicle.While the case came before the Presiding Officer, Motor Accident Claims Tribunal, on 23.11.2015 passed a judgment-cum-award directing, A sum of Rs.7,64,654/- as compensation to The claimant with interest @ 9% per annum from the Date of filing of the petition till realisation.
LEGAL PROVISIONS:
Section 173 of the Motor Vehicles Act, 1988:talks about appeals which states that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent.
CONTENTIONS OF APPELLEANT:
Learned counsel for the appellant/insurance company Vehemently urged that while the factum of the accident is not in Dispute as also the fact that the two vehicles were indeed involved in The accident, however, it was vehemently submitted that the Respondent No.1/claimant-injured was guilty of negligence since when He was examined in Sanjay Gandhi Memorial Hospital and MLC, was recorded by the doctor Attending to him that he smelled of alcohol in his breath. Having consideration to the submissions advanced by The learned counsel for the rival parties and on perusal of the Trial Court Record (TCR), plea raised by the Appellant/insurance company cannot be sustained in law.
COURTS ANALYSIS AND JUDGEMENT:
The court considered that observation made by motor accident claims tribunal wherein the respondents claims that the accident was claimed by the fault of the petitioner under influence of liquor but respondents failed to lead the evidence of the same, herefore court also observed that the procecution witness in cross-examination, denied that he had consumed liquor before the accident. However, it is borne out from the medical records MLC of respondent No.1/claimant injured that the smell of alcohol was present and it was also recorded that The patient was conscious and well-oriented.therefore the court considered that the blood sample of the Respondent No.1/claimant-injured was taken so as to test how much Alcohol was present in his blood. Further, there was no challenge in The cross-examination to his testimony that it was the driver of the Offending vehicle who was responsible for causing the accident. Hence the court opined that Mere smell of the alcohol in the breath Would not lead to a conclusive presumption that the respondent No.1/claimant was guilty of contributory negligence.
Therefore, the court opines that, issue that requires modification is the award of compensation towards the interest rate. The claim Petition was decided within three years of its filing and the Court,in Umpteen number of cases, has taken a consistent view that the interest Rate should ordinarily be 7.5% unless and until exceptional Circumstances are shown.therefore the court refered,
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Accordingly, the court reduced the intrest rate from 9% to 7.5%, which shall be payable to the claimant from the date of filing of the petition till realization. In view of the foregoing discussion, the court hereby dismissed the present appeal. It is pertinent to mention here that the Court vide order dated 02.02.2016, had directed the appellant/insurance company to deposit the entire amount of compensation with accrued interest with the learned Tribunal within four weeks from the day upon which 60% of the amount of compensation was directed to be released to the respondent No.1/claimant. Hence, the balance amount of Compensation be released to the respondent No.1/claimant forthwith With interest. Further, the court held that since the present appeal is failing on merits, the Statutory amount of Rs.25,000/- deposited by the appellant/insurance Company shall stand forfeited to the State. The court disposed of the present appeal accordingly.
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Judgement Reviewed by:Sowmya.R