APPLICABILITY OF CONTRIBUTORY NEGLIGENCE IN CASE OF INJURED/CLAIMANT IN DRUNKEN STATE IN MOTOR ACCIDENT CLAIMS TRIBUNAL

APPLICABILITY OF CONTRIBUTORY NEGLIGENCE IN CASE OF INJURED/CLAIMANT IN DRUNKEN STATE IN MOTOR ACCIDENT CLAIMS TRIBUNAL

When the injured / claimant is found in drunken state, the court has held thIn 2029(2) TNMAC 679  K.Shanmugam  V. V.Krishnamoorthy, this aspect has been dealt with.

 It has been discussed as under:

According to the claimant, on 21.4.2003,when he was riding his M-80 motorcycle, near DC road, meenambakkam, in GST road, the Ambassador car belonging to the 1^st respondent, which was driven by it’s driver, came at a high speed and hit the claimant and the pillion rider. Due to the said impact, the claimant fell down and sustained fracture on the left ankle, besides receiving multiple injuries all over the body. Stating so, he has filed a claim petition before the tribunal claiming a sum of Rs.2,00,000/ as total compensation.

The tribunal after elloborate enquiry, has held that the accident had not occurred due to the rash and negligent act on the part of the driver of the ambassador car belonging to the 1^st respondent herein, insured with the 2^nd respondent/insurance company as well as the claimant and fixed the contributory negligence at 60% and 40% on them and ultimately arrived at the total compensation at Rs.65,880/ Accordingly the tribunal after deducting 40% from the said quantum towards contributory negligence on the part of the claimant, has directed the insurer to pay a sum of Rs.39,500/ along with interest and costs. Branding the quantum so awarded as disproportionate to the nature of the injuries sustained and lesser, the claimants / appellant has preferred the appeal, seeking enhancement of the compensation awarded by the tribunal.

The learned counsel for the appellant / claimant submitted that the tribunal erred in fixing 40% contributory negligence on the claimant, since there is no concrete evidence or document to speak about the involvement of the claimant in the accident due to the fact that he was in drunken state; considering the fact that the claimant has suffered Bi malleolous left ankle injuries and other serious injuries in all over the body, the tribunal ought to have awarded compensation towards loss of income, loss of amenities and attendant charges; further the amount awarded towards transportation expenses and extra nourishment is too low;  in any event, the total amount of compensation arrived at by the tribunal needs substantial enhancement.

Per contra, the learned counsel for the second respondent/insurance company submitted that Ex.P10 – wound certificate, coupled with the evidence of PW2 -  Dr.N. saichandran would establish the fact that, at the time of accident, the claimant was in a drunken state and hence, the tribunal erred in fastening 60% liability on the insurer based on the evidence and document adduced by the claimant; in any event, the quantum arrived at by the tribunal is against the settled principles of law, excessive and exorbitant and also perverse and hence, the same has to be set aside. The learned counsel for the second respondent submitted that the claimant was in an inebriated condition, which was proved by Ex p 10 wound certificate, no claim can be sustained by him.

The court has paid its anxious consideration to the learned counsel for the claimant/appellant and insurance company/2^nd respondent and perused the materials available on record.

A perusal of the award of the tribunal would go to show that the tribunal, considering Ex P1 FIR and EX P 10 wound certificate and taking note of the fact that the rider of the two wheeler(claimant) was in inebriated condition at the time of the accident, has fastened 40% contributory negligence on the claimant himself and 60% on the insurance company. Thus, the tribunal has appropriated the contributory negligence between the claimant and the insurer of the ambassador car at 40% and 60% respectively.

While considering the claim of enhancement, the point to be answered inthis appeal is whether 30 ml outer limit of alcohol consumption as fixed under section 185 of MV act, 1988 for a person driving the vehicle is correct.

At the outset, it is necessary to look into some of the materials available globally with statistics on this issue.

96% of countries are having either national or sub – national laws on drunken driving. However only 88 countries (49%) have a drunken driving law that uses a blood alcohol concentration (BAC) limit of less than or equal to 0.05 g/dl as recommended in the old report. While most countries (86%) in the European region, have BAG laws in line with the recommendation and in other regions of the world, they either do not have BAG limits or have limits that are above 0.05 g/dl.

Drinking and driving increases both the risk of crash and likelihood that death or serious injury will result. The risk of involvement of crash increases significantly above blood alcohol concentration (BAC) of 0.04 g/dl.

Reports say, india has less maintained roads, more than 1,30,000 people were killed on its roads during 2015. In 206 india overtook china as single largest contributor to the global number of road deaths.

Regards must necessarily be had to the conditions in our country and in our cities; the overcrowded roads, pedestrian movement on the roads, the absence of sufficient sidewalks or pavements, a general indiscipline and indifference to traffic regulations, an dthe fact, too, that our roads and such few sidewalks as exist are used by hawkers during the day and by the poorest of the poor at night. This makes drunken driving all the more dangerous, and this court do not think that it is possible to ignore these conditions, especially given our experience with fatalities caused to third parties by reported incidents of drunken driving. It is not possible to countenance an argument that any person has a fundamental right to drink, let alone to drink any amount and then get behind the wheel of a motor car or into a two wheeler. Even the most minute impairment caused by alcohol intke might have the most disastrous consequences.

Hence the court, by the above reasonings, has come to the conclusion to adopt stringent views on drunken driving, the findings rendered by the tribunal, on contributory negligence as well as quantum, have no legs to stand. The court finds that the claimant himself was a tort – feasor and was responsible for the accident. As such, the question of fastening liability either on the owner or insurance company does not arise.

In the view of the above reasonings, this court holds as under;

1.     The judgment and decree passed by the tribunal is set aside, in so far as fastening liability on R2 / insurer at 60%

2.     No relief is granted to the appellant / claimant in this appeal

3.     The second respondent /insurer is permitted to withdraw the amount if any already deposited by it before the tribunal on making proper application.