1 2025:CGHC:41433 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1058 of 2025 1 - Smt. Janki Wd/o Tejram Aged About 53 Years 2 - Govinda S/o Tejram Aged About 33 Years 3 - Gauri D/o Tejram W/o Hemlal Koshle Aged About 29 Years All are R/o Village Jevri Thana Tahsil And District- Bemetara At Present R/o Pulgaon Ward No. 03 Thana Pulgaon Tahsil And District Durg (C.G.) --- Appellants versus 1 - Bhupendra Visvakarma S/o Banshilal Vishvakarma Aged About 30 Years R/o Munglani Tahsil Dongargarh District-Rajnandgaon (C.G.) (Driver And Owner ) 2 - Branch Manager I.C.I.C.I. Lombard Insurance Company Limited Branch Office Commercial Building Devendra Nagar Road Near Hdfc Bank Ground Floor Raipur Tahsil And District - Raipur (C.G.) (Insurer) --- Respondents For Appellants : Mr. Sameer Singh, Advocate For Respondents No.1 : Mr. Veer Verma & Mr. Ankush Borkar, Advocates For Respondent No.2 : Mr. Suraj Patel, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 18/08/2025 1. Claimant/appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking enhancement of compensation awarded by the learned Fourth Additional Motor Accident Claims Tribunal, Durg, District – Durg (for short ‘the Claims Tribunal’) vide award dated 21.02.2025 passed in Claim Case No.400/2023 thereby allowing application in part, holding BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.09.17 10:46:47 +0530 2 deceased negligent for causing accident to the extent of 50% and awarding Rs.7,62,000/- as compensation in a death case. 2. This appeal is filed by the claimants seeking enhancement of amount of compensation as awarded by the Claims Tribunal. Motor accident occurred on 01.05.2023, involvement of vehicle Truck bearing number C.G.-08-AW-3408 (hereinafter referred to as "offending vehicle") owned and driven by non-applicant No.1, non-applicant No.2 being insurer and liability to satisfy the amount of compensation fastened up on non-applicant No. 2, is not in dispute. 3. For the foregoing discussion, this Court is not dealing with the facts of accident as pleaded by the parties in their claim application, reply to the claim application and further adverted in the impugned award, but only considering the submissions of learned counsel for the respective parties on enhancement of amount of compensation. 4. Learned counsel for appellants would submit that learned Claims Tribunal erred in holding deceased to be contributory negligent in accident, only considering that in postmortem report, there is mention of alcoholic smell coming out from mouth of deceased and deducted 50% of assessed compensation towards contributory negligence. He contended that mere coming out smell from mouth of deceased will not be sufficient to arrive at a conclusion that deceased was under influence of liquor as there is no breath test or blood test of deceased as provided under Section 185 of the Act, 1988. He however, submits that assessment of income, addition of compensation towards future prospects, deduction of amount towards personal and living expenses and multiplier has been correctly applied by learned Claims Tribunal 3 as per decision of Hon’ble Supreme Court in case National Insurance Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16 SCC 680 and Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121. He also contended that amount of compensation towards other conventional head is also just and proper but submit that learned Claims Tribunal has not awarded compensation under head of loss of consortium to all claimants but for claimant No.1, mother of deceased. 5. Learned counsel for the respective respondents opposes the submission advanced by the learned counsel for the appellants and would submit that learned Claims Tribunal, after considering the conduct of the deceased at the time of accident, specifically, that the deceased was traveling on a TVS Moped after consuming liquor, has rightly concluded that deceased was driving the vehicle under influence of alcohol. Accordingly, the Tribunal held the deceased to be contributory negligent to the extent of 50%, which does not call for any interference. He placed reliance upon decision in case of Ifco Tokio General Insurance Company Ltd. Vs. Pearl Beverages Limited, reported in (2021) 7 SCC 704. 6. I have heard learned counsel for parties and perused record of claim case. 7. Claimant in support of claim application have also filed copy of FIR (Ex.P-2). After accident, body of deceased Noor Singh was sent for postmortem. In postmortem report (Ex.P-6), it is mentioned that his stomach is empty with alcohol smell. Learned Claims Tribunal while deciding Issue No.2 as to whether deceased was negligent in accident 4 or not, after taking note of the contents of postmortem report (Ex.P-6) and relied upon decision in case of Pearl Beverages Limited (supra) and in case of Duraivedhan Vs. Hindu Bharti Education Company Amber & Another, reported in 2006 (3) Accident Claim Cases 112 (Madras) held deceased contributory negligent to the extent of 50% in the accident. 8. Section 185 of the Act, 1988 provides for driving by a drunken person or by a person under the influence of drugs, which reads as under :- 185. Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle, [(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, [or in any other test including a laboratory test,] or ] (b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine [of ten thousand rupees], or with both; and for a second or subsequent offence, [***], with imprisonment for a term which may extend to two years, or with fine [of fifteen thousand rupees], or with both. [Explanation. - For the purposes of this section, the expression "drug" means any intoxicant other than alcohol, natural or synthetic, or any natural material or any salt, or preparation of such substance or material as may be notified by the Central Government under this Act and includes a narcotic drug and psychotropic 5 substance as defined in clause (xiv) and clause (xxiii) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985.] 9. The aforementioned provision provides for punishment to person who is driving motor vehicle after consuming liquor, however under Section 185 (a), the quantity of liquor as mentioned therein should be exceeding 30 mg per 100 ml of of blood in a test by breath analyser of person driving vehicle is under the influence of drug. 10. In the case at hand, there is no evidence to suggest that test of deceased was conducted to arrive at a conclusion that in blood test alcohol exceeds limit of 30 mg per 100 ml of blood. In absence of specific quantity of liquor as mentioned in provisions of Section 185 (a) of the Act of 1988 it cannot be said that deceased while driving vehicle has violated the provisions under Section 185 of the Act, 1988. 11. Hon’ble Supreme Court in case of Pearl Beverages Limited (supra) while dealing with claim of own damages has considered the issue that on the date of accident, driver of vehicle therein has been found driving vehicle after consuming liquor. In the said case, Hon’ble Supreme Court has observed in para 51.4, 51.5 and in para -57, which reads as under :- “51.4. We would find that a person can be said to be under the influence of alcohol, if his faculties are so disturbed that his driving abilities, are impaired. This concept of law is essentially following up on what has been laid down by the Court in Mair [Mair v. Railway Passengers Assurance Co. Ltd., (1877) 37 LT 356 DC] . 6 51.5. Cases can arise where there is a clause of the nature we are dealing with viz. excluding the liability of the insurer, when the driver is under the influence of alcohol, in vastly different circumstances. A 21-year-old, who is otherwise licensed to drive a vehicle, may experiment with drinking in the company of his friends. He may consume a small quantity of liquor. This may not satisfy the requirement of alcohol present in the blood (30 mg/100 ml = 0.03%). However, it is unquestionable that the impact of the drink on the person, may be demonstrated to be that he is unable to drive in the manner in which he would have driven, had he not taken that small drink. In such a case, to insist that he cannot be under the influence of alcohol, unless, he has in his blood, the requisite percentage of alcohol under Section 185 of the MV Act, would be to make a new bargain for the parties and also to rewrite the contract. To be under the influence of alcohol, in other words, must be understood as, a question going to the facts and a matter to be decided with reference to the impact of consumption of alcohol on the particular driver. Yet another example will throw light on a seemingly vexed issue. A person, who drinks on an empty stomach, would necessarily have a faster rate of the alcohol making its presence in the blood, and consequently, in the brain. A person, on the other hand, who has had food along with the alcohol, may manifest the effect of alcohol later. 57. No doubt in the case noted above, the presence of the alcohol content was much more (that is 0.115% than the permissible limit). It is also the case where the accident caused the deaths of six persons. The above view, no doubt, turned on the facts which rendered the taking of the test by breath analyser impossible. It was also found that the first accused had been taken to the 7 All India Institute of Medical Science (AIIMS) at 12.29 p.m. on 10-1-1999 and the blood samples revealed alcohol far in excess of the limit indicated in Section 185. Also, after the judgment, with effect from 1-9-2019, a laboratory test or any other test aids the prosecution to establish a case under Section 185.” 12. Hon’ble Supreme Court in the aforementioned judgment has further discussed the breath analyzer test as provided under Section 185 and observed in para 63, 111.6, 111.7, which reads as under :- “63. We notice that blood alcohol concentration or BAC is, thus, the concentration of alcohol in a person's blood. In India, the permissible BAC level is pegged at 30 mg of alcohol in 100 ml of blood in Section 185 of the MV Act, 1988. This corresponds to 0.03 percentage of alcohol in the blood, beyond which, it is an offence under Section 185 to drive or attempt to drive as declared. As noticed, BAC is correlated to a number of variables. It is affected by gender and body weight. The male has more water content than a female. On same quantity drunk, the latter builds up greater BAC than the former. BAC is also affected clearly on whether the person drank on an empty stomach or not. The liver metabolises ordinarily a standard drink at the rate of a drink in an hour. The frequency, at which the drinks are taken, impacts the BAC level. Even the genes play their part. 111.6. There is no evidence as to the quantity of alcohol consumed. It is also true that there is no evidence other than the smell of alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol. 111.7. The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes 8 driving under the influence of alcohol under the policy of insurance in an own-damage claim. Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties.” 13. In evidence except mentioning of alcohol smell in postmortem report (Ex.P-6), there is no other evidence available in record even to prove the manner in which deceased was driving the vehicle. In-fact claimants have examined Shatrughan Jangade (A.W.-2) as eye- witness to this accident, in his evidence he made specific statement that before accident he was travelling behind moped driven by deceased, who was hit by driver of offending truck by driving its vehicle rashly and negligently. In his evidence, it has not come, the manner in which deceased was driving his moped, to indicate that he was under the influence of liquor. 14. Insurance Company has examined Istiak Hussain as NAW-3-1. In his evidence in para -8 of his cross-examination he made categorical statement that except contents of postmortem report that alcohol smell is coming out from body, there is no other evidence brought on record by him. There is no suggestive evidence available on record to come to conclusion that deceased at the time of accident has consumed liquor of such quantity which made alcohol in his blood exceeding 30 mg per 100 ml of blood, to come to conclusion that at the time of driving of vehicle, deceased was under the influence of liquor. 15. In the facts of the present case and in absence of admissible evidence, establishing that deceased was driving vehicle in a drunken 9 condition, this Court is of the opinion that the finding recorded by the learned Claims Tribunal that deceased contributed to the accident to the extent of 50% based solely on the smell of alcohol emanating from his body, is not sustainable, accordingly, it is set-aside. As a result of setting aside the finding of contributory negligence to the extent of 50%, now it is held that accident occurred due to rash and negligent driving of offending vehicle by non-applicant No.1. 16. Learned Claims Tribunal taking note of date of accident has rightly assessed income of deceased, added 40% of the assessed income towards future prospects, applied deduction 1/2 of assessed income towards personal and living expenses of deceased, multiplier of 16, which in view of the decision in case of Pranay Sethi (supra) is rightly applied. Learned Claims Tribunal has further awarded Rs.15,000/- each towards funeral expenses and for loss of estate and Rs.40,000/- towards loss of consortium to claimant No.1, mother of deceased. Claimant No.2 and 3 are brother and sister-in-law of deceased, therefore, they will not be entitled for loss of consortium, in view of decision of Hon’ble Supreme Court in case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & ors reported in (2018) 18 SCC 130. For the forgoing discussion, submission of learned counsel for appellant that learned Claims Tribunal erred in not awarding any amount towards loss of consortium to appellant No.2 and 3 is repelled. 17. Now the claimants/appellants will be entitled for entire amount of compensation of Rs.15,24,000/- as assessed by learned Claims 10 Tribunal in the impugned award. Rest of the conditions mentioned in the impugned award shall remain intact. 18. In the result, the appeal is allowed in part and the award impugned stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge Balram