M/s Benetton India Private Limited and another vs Mr. Narendra Bali Advocate for the appellant.

Briefly stated, the facts of the case are that on 09.06.2016, the deceased, Jai Kishore Mishra, 1 was riding his bicycle from Kheda, Rudrapur to his office at SIDCUL, Pantnagar. At about 2:00 p.m., when he reached SIDCUL Chowk, in front of Shiv Mandir, an i-20 car bearing registration number HR- 26C.P.-3661, driven rashly and negligently, hit the deceased from behind, causing him grievous injuries. He was immediately rushed to District Hospital, Rudrapur, but succumbed to his injuries before reaching the hospital. The deceased, aged 39 years, was employed with M/s Neel Metal Products Pvt. Ltd., SIDCUL, Pantnagar, drawing a monthly salary of ₹35,365/-. The claimants, namely his widow, children, and parents, filed the claim petition seeking compensation of ₹75,86,405/-.

3. The claimants filed documentary evidence including the FIR, pay slips, ration card, voter ID cards, and death certificate. The opposite parties produced vehicle registration certificate, insurance policy, driving licence of the driver, FIR, charge sheet, postmortem report, and income details of the deceased. Oral evidence was led the claimant no.1 (wife of deceased), eyewitness PW1 Kaushal Kishore Saxena, and Pankaj Pathak (HR of Neel Metal Products Ltd.) were examined for the claimants. The Insurance Company examined its Legal Executive, DW1 Dharam Chaubey.

4. On the basis of the pleadings and evidence, the Tribunal framed the following issues: i) Whether the accident dated 09.06.2016 occurred due to rash and negligent driving of the Car No. HR-26CP-3661, resulting in the death of 2 Jai Kishore Mishra? ii) Whether, on the date of the incident, the driver of the car was not holding a valid and effective driving licence and the vehicle was not covered by a valid insurance policy? If so, its effect? iii) Whether the claimants are entitled compensation? If so, to what extent and from whom?

5. The Tribunal answered issue no.1 in favour of the claimants. On issue no.2, the Tribunal recorded a finding that the offending vehicle was duly registered and insured, and the driver was holding a valid and effective driving licence. On issue no.3, the Tribunal awarded compensation of ₹21,95,886/- in favour of claimant nos.1 to 6. However, on the premise that the driver was under the influence of alcohol at the time of accident, the Tribunal granted the Insurance Company the right to recover the awarded amount from the owner-cum-driver of the offending car.

6. Learned counsel for the appellant would submit that the Tribunal committed a manifest error in granting recovery rights Insurance Company. The Tribunal relied solely on the fact that a charge sheet had been filed against appellant no.2 in F.I.R. No.57 of 2016, under Sections 279, 304-A IPC and Section 185 of the Motor Vehicles Act, 1988. The said charge sheet has already been challenged by the appellant in proceedings under Section 482 Cr.P.C., which are pending adjudication. Mere filing 3 of a charge sheet cannot form the basis to fasten such liability.

7. It is further argued that the Tribunal erred in holding that there was violation of the terms of the policy. The finding was based on Rule 2(c) of the Insurance Policy, which excludes liability if the vehicle is driven under the influence of intoxicating liquor or drugs. However, the driver’s blood alcohol content was neither tested by breath analyser nor by any blood/urine sample, as required under Section 185 of the Act. At best, there was a mere suspicion based on the doctor’s observation that there was a smell of alcohol. Such suspicion is insufficient to establish intoxication within the meaning of Section 185, which mandates proof of blood alcohol exceeding 30 mg per 100 ml, or impairment to the extent of incapacity to control the vehicle.

8. On the other hand, learned counsel for the Insurance Company supported the award, submitting that the Tribunal relied upon the testimony of the Insurance Company’s Investigator and the doctor’s note suggesting that the driver appeared to be under the influence of alcohol. On this basis, recovery rights were rightly granted.

9. Learned counsel for the appellant has further contended that no reliable breath analyser or blood test was conducted to establish alcohol content; that, mere smell of alcohol is insufficient proof of intoxication, that, even if alcohol was consumed, there was no proof that it impaired driving 4 or caused the accident. He would further submit that under Section 185 of the Act, intoxication established only if alcohol content exceeds 30 mg per 100 ml of blood, detected in a duly conducted test. In absence of such test, the finding of violation of policy conditions is unsustainable.

10. Heard learned counsel for the parties and perused the material available on record.

11. A bare perusal of Section 185 of the Act reveals that an offence is made out only where the driver has blood alcohol exceeding 30 mg per 100 ml, detected in a breath analyser test; or the driver is under the influence of drugs to such an extent as to be incapable of exercising proper control over the vehicle.

12. In the present case, it is undisputed that no blood or urine sample was taken from the driver for laboratory examination. The finding of intoxication is based only on the opinion of Insurance Company’s Legal Executive and a general observation by the doctor that the driver “seemed” under influence. Such material, in the absence of scientific testing, cannot be the basis of a finding of intoxication under Section 185 of the Act, and in the absence of reliable proof of intoxication by the driver of the offending vehicle, the finding of the Tribunal granting recovery rights to the Insurance Company is unsustainable in law. Thus, the Tribunal erred in law in holding that the driver had violated the terms of the insurance policy. 5

13. Accordingly, the impugned judgment and award dated 31.01.2019 is modified to the extent that the Insurance Company shall remain liable to pay the entire compensation to the claimants, and it shall have no right to recover the same from the appellants (owner-cum-driver of the offending vehicle).

14. Learned counsel for the appellants further submits that pursuant to the interim order dated

21.11.2019 passed by the Coordinate Bench of this Court, the appellants had furnished a bank guarantee of 50% of the awarded amount before the Registrar General of this Court. In view of the fact that the appeal has been allowed in part as above, the bank guarantee furnished by the appellants stand discharged, and the same shall be released forthwith in their favour.

15. The appeal stands disposed of accordingly.

16. Pending applications, if any, also stand disposed of. Mam t a ( A LOK M A H RA , J.)

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