Madras High Court
M/S.United India Insurance Co. Ltd vs Ravishankar on 10 December, 2020
Author: G.Jayachandran
Bench: G.Jayachandran
1 CMA No.1427 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2020
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.1427 of 2015
and
M.P.No.1 of 2015
M/s.United India Insurance Co. Ltd.,
Motor Third Party Claim Office,
South India Co-op. Building,
III Floor, 38, Anna Salai,
Chennai. ....Appellant
Vs
1.Ravishankar
2.Babu
3.The Director General of Police,
Mylapore, Chennai-4.
4.The Commissioner of Police,
General Chennai, Vepary,
Chennai-8.
5.The Director of Medical and Rural Health Services,
DMS Campus, Anna Salai, Teynampet,
Chennai-6.
(RR3 to 5 Suo Motu impleaded vide order of
Court dated 06.03.2020 made in CMA No.1427/2015 (SMSJ))
...Respondents
http://www.judis.nic.in
2 CMA No.1427 of 2015
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 05.08.2010
made in M.A.C.T.O.P.No.1424 of 2004 on the file of the Motor Accidents
Claims Tribunal, V Small Causes Court, Chennai.
For Appellant : M/s.R.Rathna Thara
For Respondents : No Appearance for R1 and R2
Mr.Hari Arumugam for R3, R4
Government Advocate
Mr.Y.T.Aravind Gosh for R5
Government Advocate (CS)
JUDGMENT
(This case has been heard through Video Conferencing) Heard the learned counsel for the appellant and the respondents 3 to 5.
2. It is a case, where the Tribunal has awarded compensation to the accident victim, who met with an accident. The accident caused by the driver of the Auto bearing Registration No.TN05-D-8995. The Insurance Company denied their liability on the ground that the Driver of the offending Auto was in drunken stage at the time of the accident and therefore, the Insurance Company is not liable to indemnify the owner cum http://www.judis.nic.in 3 CMA No.1427 of 2015 driver, who has violated Section 185 of the Motor Vehicles Act.
3. The Tribunal has held that in the absence of evidence, for the fact that the accident has occurred due to the consumption of alcohol by the driver of the offending vehicle, the insurer cannot be exonerated from indemnifying the injured.
4.On the point of liability, the appeal is filed by the Insurance Company, wherein it is stated that the violation of Section 185 by the Driver of the Auto has been proved by the Insurance Company through Ex.R1, the Investigation Report, to which A.R. issued by K.M.C. Hospital annexed.
5. When the matter came up for final disposal, Justice Mr.S.M.Subramaniam, on going through the records found that the Investigation Report Ex.R1 is enclosed with Certificate of drunkenness bearing No.346117 dated 17.01.2004 issued by K.M.C. Hospital to prove the driver of the offending Auto consumed alcohol. However, in the F.I.R, the police has not charged him for the offence for drunk and driving. The Tribunal has taken note of that omission and held in favour of the insured to http://www.judis.nic.in 4 CMA No.1427 of 2015 get indemnified. Since the learned Judge thought fit that the right of the citizen is to be protected by the Law Enforcing Authority and the police should be vigilant and charge the motor vehicle offenders for drunk and driving, in order to find out the effectiveness of implementing the provisions of Motor Vehicles Act vis-a-vis drunk and driving, suo-moto impleaded the Director General of Police, the Commissioner of Police, Greater Chennai and Director of Medical and Rural Health Services as respondents and raised the following queries vide its order dated 06.03.2020:
“(i) What are all the procedures being followed for registering cases under Section 185 of the Motor Vehicles Act regarding drunk and driving cases?
(ii) How many cases are registered under Section 185 of the Motor Vehicles Act for the last five years?
(iii)How many cases are pending as of now and how many cases are disposed of?
(iv) How many cases ended with an order of conviction and how many cases ended with an order of acquittal for the last five years in the cases of drunk and driving?
http://www.judis.nic.in 5 CMA No.1427 of 2015
(v) Whether the Government Hospitals are maintaining Register regarding drunk and driving cases as informed by the Police Officials?
(vi) Whether the Registers are maintained regarding the Laboratory Tests conducted by the Hospitals in the cases of drunk and driving?
(vii) Whether the details and particulars provided by the Police Officials are available in the Hospitals for verification and for the purpose of effective prosecution before the Court of law?
(viii) All other connected and relevant informations and particulars in connection with the cases of drunk and driving with reference to the provisions of the Motor Vehicles Act and Motor Vehicles Rules.”
6.Pursuant to the direction, the fourth respondent/the Director General of Police as well as the sixth respondent/the Director of Medical and Rural Health Services, have provided the data to show how effective the Motor Vehicles Act viz., Section 185 of the Motor Vehicles Act is http://www.judis.nic.in 6 CMA No.1427 of 2015 implemented. The statistics of drunken driven cases year wise provided in the status report filed by the Director General of Police, Tamilnadu, reflects the following state of affair:
DETAILS OF DRUNKEN DRIVEN CASES YEAR WISE Convicted PT UI AD No. of Drunken Imprisonment Fined Acquitta Year driven l cases filed 2015 219182 0 203290 974 3634 15 11269 2016 227939 0 208783 116 6997 10 12033 2017 301664 0 277299 689 8171 48 15457 2018 228754 16 207716 745 8529 27 11721 2019 227257 19 186342 188 36456 598 3654 2020 (upto 41293 7 19409 36 20960 812 69 29.02.2
020) TOTAL 1246089 42 1102839 2748 84747 1510 54203
7.The response of D.M.R.H.S indicates that whenever the drunken driven cases are brought for treatment to the hospital, blood samples and urine test for the presence of alcohol is taken only on the consent of the individual.
8. Now reverting back to the merits of the appeal, this Court finds that http://www.judis.nic.in 7 CMA No.1427 of 2015 despite the clear evidence that the Auto Driver, who had caused the accident was in drunken state, the Tribunal has fixed the liability on the Insurance Company, for the simple reason that the police charged him only for rash and negligence and not for drunk and driving.
9. The Tribunal cannot be oblivious of the fact that negligence is cause for the accident and drunkenness has aggravated the degree of negligence. When fixing the tortious liability, the material collected by the police during the course of investigation can be one of the factor and not the only factor to decide negligence. When there is material to prove that the offending vehicle driver or the victim was negligent due to his drunken state that factor should always be taken note of for fixing the negligence and quantum of compensation. If the Motor Accident Tribunal fails to take notice of the drunkenness of the claimant or the offender, it will only be giving premium for rash and negligent behaviour of a drunkard who recklessly move on the motorable road. Because of the failure of the police who did not charge the offender for drunk and driving, it is not a presumption that he was not drunk, while driving the vehicle and causing the accident. The doctor has examined him immediately after the accident http://www.judis.nic.in 8 CMA No.1427 of 2015 and had certified that the driver was drunken. This fact is not to ignored.
10. It is also brought to the notice of this Court that if only the presence of 0.03ml of alcohol per 100ml blood is found in the sample, the individual is held to be in the drunken state and if the presence of alcohol is below 0.03 ml, according to the Indian Standard, he is not a drunken person. So it appears that inspite of evidence that the second respondent in this case/the owner cum driver of Auto was in drunken state and caused the accident, the Insurance Company is now fastened with liability to pay the entire compensation to the first respondent/ injured claimant.
11.From the statistic and report furnished by the respondents 4 to 6, certain corrective measures in the approach of the Law Enforcing Authority as well as the Tribunal is required. This Court suggest that the traffic police wing whenever they come across drunk and driving, the law shall be strictly enforced and before releasing the offender or the vehicle, the party should be put to alcohol test, whether they consent or not and the same shall be furnished to the Court along with the F.I.R or atleast at the time before filing the final report/charge sheet. In case, if the matter ends without http://www.judis.nic.in 9 CMA No.1427 of 2015 investigation, the alcohol analyst test shall be made available to the Insurance Company or any party concerned, who agitate their right before the Motor Accidents Tribunal. Similarly, the Motor Accident Tribunal, which deals with the motor accident claim petitions, whenever evidence is produced to substantiate that the injured or the tortfeasor had committed the accident due to his drunkenness, the same has to be taken note, while deciding the liability and quantum.
12. As far as the merits of this case is concerned, this Court finds that for the fracture of left metacarpal bone, dislocation of type III acro clavicle and injury over right eyebrow, the Tribunal has awarded Rs.84,500/- payable by the Insurance company.
13.Having found that the vehicle has been insured under the second respondent, who is the appellant herein, direction has been given to the second respondent to pay the compensation amount of Rs.84,500/- with 7.5% interest from the date of numbering the application till the date of deposit. Since the insured vehicle owner cum driver, is the tortfeasor of the accident and he had caused the accident in a drunken state, he is liable to http://www.judis.nic.in 10 CMA No.1427 of 2015 pay 50% of compensation fixed. The Insurance Company therefore is directed to pay the compensation awarded by the Tribunal and permitted to recover 50% of it from the vehicle owner.
14. This Court is of the view that to deter violations, the Tribunal should take serious note of accidents caused by the motor road users while driving their vehicle in drunken state and substantially reduce the compensation by fixing contribution on tortfeasor. Unless such deterrent measure apart from prosecution is followed, roads will not be safe for the general public.
15. With the above observations and directions, the Civil Miscellaneous Appeal is disposed of. No costs. The connected miscellaneous petition is closed.
10.12.2020 Speaking/Non Speaking Index :Yes/No vri http://www.judis.nic.in 11 CMA No.1427 of 2015 To Motor Accidents Claims Tribunal, V Small Causes Court, Chennai.
DR.G.JAYACHANDRAN,J.
http://www.judis.nic.in 12 CMA No.1427 of 2015 Vri CMA No.1427 of 2015 10.12.2020 http://www.judis.nic.in