JUDGMENT

Challenge made in this appeal is to the award, dated

02.09.2014 made in MCOP No.458 of 2010 on the file of Motor Accident Claims Tribunal (III Additional Sub Court), Trichy.

2.The brief facts of the case are that on 25.08.2009 at about

6.30 hours, when the claimant was riding his two wheeler TN-45- AZ-7923 on Trichy-Chennai Bypass Road, at the time, the Lorry TN-04-C-2829 came in a rash and negligent manner and dashed against the motor cycle. In that impact, the claimant has sustained fracture on the right side back and fracture in his thigh bone and also sustained grievous injuries all over the body. Immediately, he was taken to the Government Hospital, Trichy and thereafter, he was rushed to Vijaya Raghavan Hospital, Trichy, where he was taking treatment between 25.08.2009 and 10.09.2009. The injured claimant filed a claim petition seeking compensation of Rs. 7,00,000/- on the ground that the offending vehicle caused the accident.

3.The claim was opposed by the 2nd Insurance Company disputing the manner of accident and their liability to pay compensation.

4.The Tribunal, upon consideration of oral and documentary evidence, came to the conclusion that the claimant was responsible for the accident and dismissed the claim petition filed by the claimant. Aggrieved by the said order, the claimant as Appellant is before this court.

5.Heard the learned counsel appearing for either side and perused the materials available on record.

6.The learned counsel appearing for the appellant/claimant argued that RW1 stated that the injured was under the influence of alcohol, but there is no whisper about the testifying about as to whether any alcohol is found in the blood beyond the specified percentage found in the body and section 185 of the Motor Vehicles Act says that whoever while driving or attempting to drive a motor vehicle, has, in his blood, alcohol exceed 30 mg per 100 ml of blood detected in a test by a breath analyzer even there is no such test report filed before the court and mere making of endorsement in AR register will not amounts to hold that the person is under the influence of alcohol, unless there is a Lab report from the concerned authority and on contrary to that, merely Ex.P4 shows as “Patient was drowsy with alcoholic smell of breath” is against law and RW1 has not obtained any report from the Lab to the effect that the blood or urine of the injured contain alcohol and treatment was given to the injured since he was in a fit condition and the appellant/claimant is suffering with 56% of disability and due to it, it was not possible for him to do his work and prays that the Civil Miscellaneous Appeal has to be allowed. For that, the learned counsel appearing for the appellant/claimant relied up the decision of this court reported in 2013(1)TN MAC 854 (Muniyasamy Vs. Managing Director, Tamil Nadu State Transport Corporation Ltd.,), wherein this court has held as follows:-

“14.Alcohol/Arrack will emit smell. A drunkard loosing control of his mind and body, depends on various factors. By mere taking of alcohol and smell of alcohol, we cannot come to a conclusion that a person, had lost control of his mind body and he would have dashed against moving bus.”

7.The main contention raised on the side of the appellant/claimant is that he was not under the influence of alcohol and to prove the influence of alcohol, no blood or urine test was taken and there is no document filed on the side of the respondents to prove that the claimant was under the influence of alcohol by way of blood or urine test and hence, he is entitled to compensation as claimed for.

8.On perusal of the decision reported in 2013(1)TN MAC

854 (Muniyasamy Vs. Managing Director, Tamil Nadu State Transport Corporation Ltd.), it is held in para 14 that mere taking of alcohol and smell of alcohol, the court cannot come to the conclusion that the person had lost control of his mind and body and he would have dashed against the moving bus. In this case also, to prov