Mere 'Smell Of Alcohol' From Injured Does Not Disentitle His Claim In Motor Accident: Karnataka High Court

A single judge bench of Justice Dr H B Prabhakara Sastry allowed the petition filed by claimant Murugan T and set aside the order rejecting the claim petition filed by the petition and remanded the matter back to the Tribunal for consideration of the issue regarding entitlement of compensation to the claimant and quantum and from whom.

The bench said “The claimant who claims to be the injured in the road traffic accident in question, was intoxicated or smelling with alcohol, but the same cannot be an excuse for the driver of the offending Bus for causing the road traffic accident, causing injuries to the injured person.”

The tribunal had vide its order dated 05-07-2019, dismissed the claim petition on the grounds that the claimant was intoxicated with alcohol and at the time of the accident was standing near the footpath, but leaving the footpath on the edge of the road,held that there is no negligence on the part of the driver of the Bus.

The petitioner contended that mere smelling of alcohol cannot be a ground to hold that the accident in question has taken place solely due to the negligence of the claimant himself. Further, it was said “The said driver has pleaded guilty in the criminal case registered by the police and the matter came to be closed. Thus, when the driver himself has pleaded guilty for the alleged offences punishable under Sections 279 and 338 of the IPC and was penalised accordingly and also PW-1 has led the evidence to the effect of establishing the rash and negligent driving on the part of the driver of the offending Bus, the Tribunal was at an error.”

The bench went through the records and noted only respondent (insurer) before the Tribunal in the matter had filed its Written Statement, it had not taken the contention of the alleged intoxication of the complainant(claimant) at the time of the alleged road traffic accident.

It said “As such, what was not pleaded by the parties, the Tribunal has attempted to notice on its own and base its entire reasoning for rejecting the claim petition of the claimant.”

Rejecting the grounds of the tribunal in refusing the claim the bench said, “No doubt, a perusal of the Wound Certificate mentions the presence of 'smell of alcohol'. A mentioning to the same effect is also there in the case sheet of the Wenlock Hospital. The said observation, in the Wound Certificate, except stating that there was smell of alcohol, nowhere mentions as to whether the claimant who was a patient before the examining Doctor was intoxicated with alcohol.”

It then held “It is not even shown as to whether the alleged smell of the alcohol was coming from the mouth of the alleged injured person. As such, the source of the smell of alcohol, whether it was from the body of the injured or from the dress worn by him, has not been mentioned by the Doctor. However, the Tribunal assumed itself that mere mentioning of the 'smell of alcohol' as the conclusive proof of the claimant/patient consuming alcohol at the time of the alleged road traffic accident.”

Further it said “Even according to the Tribunal, it is not its finding that, by consuming alcohol, the claimant had fallen unconscious on the road and that he had inadvertently moved his feet and put his left foot beneath the back wheel of the offending Bus. On the contrary, the Tribunal itself has observed that he was standing on the side of the road just next to the footpath.”

Thus it said “The claimant might have consumed liquor, still, he was in such a position of controlling himself and was able to stand properly on his legs. As such, any contribution on the part of the claimant in the road traffic accident also cannot be imagined or arrived at.”

Noting that it is the primary duty of the driver of any Motor Vehicle to drive the vehicle with utmost care and caution, that too, particularly, in a public place like a Bus Stand.

The court observed “Any driver of a Motor Vehicle, including a passenger vehicle like the Bus in the instant case, is required to be more cautious and careful while driving a Bus. As such, even for the sake of argument, if it is taken that the claimant was intoxicated with alcohol, it does not give any permission for the driver to run the Bus on the foot of that person.”

Refusing to accept the reason assigned by the Tribunal that as it is the back wheel of the Bus that is said to have run over the foot of the claimant, no negligence can be attributed on the part of the driver of the Bus.

The bench said “A driver, while driving the vehicle, would not consider the vehicle into two parts, as the front part with front wheel and the back part with the back wheel, which are under his control. When he drives the vehicle, the whole vehicle is required to be under his control and that he should drive the entire vehicle in such care and caution that it shall not lead to any untoward incident like the road traffic accident as in the instant case.”

It added “It is such care and caution that is expected of a driver of any Motor vehicle. Therefore, no exception can be given that the driver cannot be held as negligent when the back wheel of a heavy passenger vehicle is said to have passed on the leg of a pedestrian.”

It was also opined that “A standing person was taken to be seen by the driver who was driving a passenger Bus in the premises of a Bus Stand, as such, he should have been more vigilant and cautious in driving the said Bus. Therefore, the reasoning given by the Tribunal that there was no negligence on the part of the driver of the alleged offending Bus is not acceptable.”

Further, taking into account that the accused driver pleaded guilty for the alleged offences and was sentenced. The bench said “This fact also was not taken into consideration by the Tribunal. As such, the road traffic accident, as alleged in the claim petition by the claimant, is not only proved but also proved that the said road traffic accident has occurred solely due to the rash and negligent driving by the driver.”

Following which it remanded the matter back to the tribunal for considering the issue regarding whether the petitioner is entitled for compensation? If so, what quantum and from whom?

Case Title: Murugan T And P. Jayagovinda Bhat & ANR

Case No: MISCELLANEOUS FIRST APPEAL NO. 554 OF 2020

Citation: 2023 LiveLaw (Kar) 101

Date of Order: 28-02-2023

Appearance: Advocate G. Ravishankar Shastry for petitioner.

Advocate K. Poornabodha Rao for R2.