IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1260 of 2011 ----------------------- OPMV.983/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: -------------- THE NATIONAL INSURANCE COMPANY LTD, STERLING CINEMA BUILDING,6TH FLOOR,65, MURZBAN STREET,FORT MUMBAI 400 001,REP.BY ITS MANAGER ,REGIONAL OFFICE, M.G.ROAD,ERNAKULAM. BY ADV. SRI.LAL GEORGE SMT.M.J.INDUJA RESPONDENTS: --------------- 1. SAJI.N.M, AGED 38 YEARS, S/O.MADHAVAN,NIKARTHIL PUTHENVEEDU, NEAR ACQUINAS COLLEGE, EDAKOCHI PO,EDAKOCHI VILLAGE, KOCHI-682 006 2. NAWAS.P.M,S/O.MAJEED,HOUSE NO.XX/734-C, KALLAPURACKAL (H),KACHERIPPADY WEST,PALLURUTHY PO, KOCHI-682 005. 3. P.P.SAJI,PALACKAL THOTTIL HOUSE, NELLIKUZHY PO,KOTHAMANGALAM,ERNAKULAM DISTRICT, PIN 682 011. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 1260 OF 2011 ============================ Dated this the 8th day of August 2011 JUDGMENT R.Basant, J. This appeal is preferred by the Insurance company. The short contention is that the Tribunal erred in apportioning the blame for the accident at 75--25 between the driver of the autorikshaw and the injured rider of another motor cycle. There is no dispute on any other grounds. 2. To further explain the contention, the records show that the injured claimant when he was taken to the hospital was strongly smelling alcohol. Of that simple fact, the Tribunal felt it proper to place the blame for the accident at the doors of the injured rider of the motor cycle to the extent of 25%. The appellant herein was directed to pay only 75% of the compensation amount. 3. Driving a motor vehicle after consuming alcohol, it is conceded is not an offence under the Indian law. Only Section 185 of the Motor Vehicles Act deals with the situation. What is M.A.C.A. NO. 1260/2011 2 made objectionable and culpable is not driving a motor vehicle after consuming alcohol. Culpability lies in the amount of alcohol consumed and its effect on the constitution of a person. If alcohol level in the blood exceeds the prescribed limit then alone the act of driving is made punishable under Section 185 of the Motor Vehicles Act. In the instant case there is nothing to indicate that there was violation of Section 185 of the Motor Vehicles Act. 4. The police after investigation had filed charge sheet only against the driver of the autorikshaw. No better evidence was adduced by either side. Notwithstanding the absence of any evidence on the side of the owner, driver and the insurer of the autorikshaw, the Tribunal merely on the proved circumstance that the rider of the motor cycle was smelling alcohol when he was taken to the hospital, came to the conclusion that 25% of the responsibility can safely be placed on the shoulders of the injured rider of the motor cycle. 5. We are not now called upon to consider whether that course adopted by the Tribunal is justifiable from the point of view of the injured rider. In any view of the matter, we are of M.A.C.A. NO. 1260/2011 3 the opinion that in the absence of better evidence, the challenge at the instance of the appellant is not justified. Even without any better data to conclude that there was a violation of Section 185 of the Motor Vehicles Act, the Tribunal had placed the blame for the accident at the doors of the injured rider to the extent of 25%. We find no merit in the contention, with the available evidence that a greater share of the blame must have been left with the injured rider of the motor cycle. 6. The learned counsel for the appellant submits that when such a person injured in a motor accident is brought to the hospital with the injuries, immediate steps must have been taken to assess the alcohol level in the blood of such a person. Ideally we can agree with the learned counsel for the appellant. But the omission on the part of the police or authorities to do the same cannot ipso facto lead the court to the conclusion that such injured person smelling alcohol was entirely responsible for the accident or that he was responsible to a graver extent than 25% fixed by the Tribunal in this case. At any rate, we are satisfied that the challenge at the instance of the appellant is not justified. The appeal must fail for that reason. M.A.C.A. NO. 1260/2011 4 7. In the result, this appeal challenging the impugned award by the insurer is dismissed. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE