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2022 Supreme(Ker) 427
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
E.P.Velayudhan – Appellant
Versus
P.P.Poulose – Respondent
MACA No. 583 of 2009
Decided on : 13-07-2022
Advocate Appeared:
For the Appellant : SRI.P.V.BABY, SRI.A.N.SANTHOSH
For the Respondent: SRI.LAL GEORGE
Point of Law - Court held that drunkenness by itself constitutes rashness.
Headnote:
Motor Vehicles Act, 1988 - Section 163A – Appeal - Contributory negligence – Rash and negligent driving - Claiming compensation - Influence of alcohol - Appellant, who sustained injuries pursuant to a motor accident occurred when he was hit down by a tipper lorry driven by respondent in a rash and negligent manner, approached Tribunal and lodged petition under Section 166 of MV Act - Whether in claims under Section 160 of MV Act, schedule given under Section 163A of MV Act is final word to seal loss of earnings for a period of six months alone - It is unsustainable in law and mere entry in wound certificate regarding smell of alcohol itself is not sufficient to find contributory negligence. (Para 6)
Findings of Court :
It is argued by learned counsel for appellant that post retirement disability based on notional income fixed at 50% of monthly income requires to be calculated. Though this argument is refuted by learned counsel for insurer, Court do justify this argument. Therefore, Court is inclined to grant post retirement disability income, fixing monthly income at Rs.3,406/- and applying multiplier 7' applicable to age group between 61 to 65 years - Tribunal assessed total compensation entitled by appellant at Rs.1,48,000/- and granted Rs.1,03,600/- after finding contributory negligence on part of appellant. Since contributory negligence stands set aside, appellant is entitled to get total compensation amounting to Rs.1,92,572/- along with 8% interest from date of petition till date deposit or realisation, inclusive of Rs.1,48,172/- assessed by Tribunal as enhanced compensation.
Result – Appeal allowed.
JUDGMENT :
This appeal is at the instance of the Original Petitioner in O P (MV) No.3016/2000 on the files the Motor Accidents Claims Tribunal, Ernakulam. He impugns award dated 30.01.2008. The respondents herein are the respondents before the Tribunal.
2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company.
3. Short facts:-
The appellant, who sustained injuries pursuant to a motor accident occurred on 16.08.2000 at about 6.45 p.m. when he was hit down by a tipper lorry bearing registration No.KR-F 9734 driven by the second respondent in a rash and negligent manner, approached the Tribunal and lodged petition under Section 166 of the MV Act. According to the appellant, the accident occurred while he was riding on his scooter bearing registration No.KRB 1986. Since the appellant sustained very serious injuries, he claimed Rs.3,50,000/-as compensation.
4. The third respondent-insurer of the tipper lorry filed written statement specifically disputing the accident as well as negligence alleged against the second respondent and it is specifically alleged that the accident is the contribution of negligence on the part of the appellant himself, who had ridden a scooter at the time of accident under the influence of alcohol. The claim under various heads were also disputed.
5. The Tribunal adjudicated the matter, relying on Exts.A1 to A21 marked on the side of the appellant and Ext.B1 marked on the side of the Insurance Company.
6. It is argued by the learned counsel for the appellant that the Tribunal after giving emphasis to the entry in Ext.A6 wound certificate endorsing 'smell of alcohol present in breath' and after giving emphasis to the scene mahasar, found negligence in the proportion 70:30 and granted only 70% of the assessed amount in favour of the appellant. According to the learned counsel for the appellant, the finding of the Tribunal in so far as contributory negligence on the part of the appellant is concerned, is unsustainable in law and mere entry in the wound certificate regarding smell of alcohol itself is not sufficient to find contributory negligence. He also argued further that the recitals in the scene mahasar also could not be the foundation in so far as contributory negligence is concerned.
7. The learned counsel for the insurance company refuted this contention. The learned counsel placed the decision reported in Abraham Varghese v. State of Kerala (1987 (2) KLT 840), wherein this Court held that the drunkenness by itself constitutes rashness. In the said case, this Court considered prosecution of the driver under Section 304A of IPC. In paragraph No.4 of the judgment, it was observed by this Court that the 'medical evidence as also the evidence of witnesses, show that the petitioner was heavily drunk.
8. A vital question emerges for consideration is, whether mere entry in a medical certificate that ‘smell of alcohol present’ by itself is sufficient to hold that the said person is ‘under the influence of alcohol’?. In fact, a distinction to be drawn while considering the stature of the driver or rider of a vehicle in this regard. If there is medical document to show that ‘smell of alcohol present in breath’, the same is not sufficient to hold that the said person is ‘under the influence of alcohol’. So convincing evidence to find that the driver or rider at the time of accident is ‘under the influence of alcohol’, so that he could not control the vehicle properly and the said infirmity also contributed the accident, is necessary to hold so. The said evidence can be a medical certificate with endorsement that the person is ‘under the influence of alcohol’ or the evidence of a competent doctor, who had examined the person when the person was intoxicated. No such evidence available in the case in hand. Since Ext.A2 shows only 'smell of alcohol in breath', the same is insufficient to hold that the appellant ridden his scooter ‘under the influence of alcohol’ at the
