Contributory negligence must be established through evidence of an overt act; mere alcohol consumption does not suffice to prove negligence in the context of a motor vehicle accident.

JUDGMENT

1. Being aggrieved by the judgment and award passed in MVC No.5/2015 dtd. 17/1/2018 by learned Senior Civil Judge & MACT, T.NARASIPURA, the insurance company has approached this Court in appeal in MFA No.2863/2018 and the petitioners have approached this Court in appeal in MFA No.5421/2018.

2. The parties would be referred to as per their ranking before the Tribunal.

3. The brief facts are as below:

That on 23/12/2013 at 12.00 p.m. near Lakshmi theater, Mysuru city the deceased Shivakumar and Raju were boarding the Ravindra bus bearing Reg.No.KA-19-A2499 to reach Metagalli. At that time the driver of the bus drove the same at high speed and in a rash or negligent manner, as a result deceased Shivakumar had fallen down from the bus and sustained grievous injuries and succumbed to the injuries at the spot itself.

4. The deceased was hale and healthy prior to the accident and he was a plumber and doing agriculture and earning Rs.15, 000.00 per month. Petitioner No.1 is the wife and petitioner No.2 & 3 are children and petitioner No.4 is mother of the deceased. It is alleged that the accident in question had taken place due to rash or negligent driving of respondent No.1/ driver. Respondent No.2 is the owner and respondent No.3 is insurer of the offending vehicle.

5. Respondent No.2 has filed written statement denying all the averments made in the petition and called upon the petitioners to prove the same. He has admitted that the he is the owner of the offending vehicle. According to him as per the medical report, the deceased succumbed to the death due to consumption of alcohol and poison and in view of that, the petition is not maintainable. However he has contended that the offending vehicle has been insured with 3rd respondent which was in force as on the date of accident. As such he is not liable to pay the compensation. Accordingly he prays to dismiss the petition with cost.

6. The respondent No.3 has filed written statement denying all the material averments found in the petition and has called upon the petitioners to prove the same. It is admitted that 2nd respondent is the owner of the offending vehicle but it was not insured with 3rd respondent. It is stated that the accident is caused due to rash or negligent act of the deceased Shivakumar himself as he fell down to the ground while boarding the moving bus and succumbed to the injuries. He had consumed alcohol at the time of alleged accident. The 1st respondent was not holding a valid and effective driving license to drive the offending vehicle as such the owner has violated the terms and conditions of the policy by entrusting the offending vehicle to the 1st respondent. Therefore, the 3rd respondent is not liable to indemnify the insured. Accordingly, the respondent No.3 prayed for dismissing the petition.

7. The Tribunal framed the appropriate issues and the petitioner No.1 was examined as PW1 and one witness was examined as PW2, Ex.P1 to Ex.P14 were marked and received in evidence. The official of the respondent No.3 insurance was examined as RW1 and Ex.R1 to Ex.R3 were marked during evidence.

8. After the hearing the arguments by both the sides, the Tribunal held that there is sufficient material to show that there was actionable negligence on the part of the driver of the bus and the contentions raised by the respondent No.3 were not proved and as such awarded the compensation of Rs.14, 53, 000.00 to the petitioners under the following heads.

9. Being aggrieved by the said judgment and award the respondent No.3 insurance company has come up in appeal in MFA No.2863/2018. The insurance company has contended that the PM report of the deceased show that the percentage of alcohol in the body of the deceased was 36.73 Mg per 100 ml of the blood and the permitted level is 30 mg per 100 ml blood and therefore he was under high influence of the alcohol much beyond the permitted limits and he was solely responsible for the accident. Secondly the insurance company co