NEW INDIA ASSURANCE CO LTD Vs. KARAM CHAND

JUDGEMENT

(1.) This appeal is directed against the order dated 14.6.2004, passed by the District Forum, Mandi, in Complaint No. 1077/2002. By means of impugned order, appellant has been held liable for paymer of Rs. 1,25,000 with 9% interest from the date of repudiation of the claim i.e. dated 3.12.2003 till realization of the entire amount besides cost of Rs. 5,000.

(2.) Vehicle being insured on I.D.V. (Insured's Declared Value) at Rs. 1,25,000 and having met with accident is not in dispute, therefore, we are not referring to detailed facts of this case.

(3.) At the time of hearing of this appeal, Mr. Ratish Sharma, learned Counsel for the appellant forcefully urged that the impugned order is the result of complete mis-reading of material on record produced by his client before the District Forum below. Per him, respondent who is owner of the vehicle was driving the same when it met an accident. A police case vide F.I.R. No. 127/2003 was registered on 13.5.2003 at Police Station, Sundernagar under Sections 279, 337, I.P.C. and 185 of Motor Vehicles Act, 1988. In this behalf, great emphasis was laid by him on the Medico Legal Certificate (M.L.C.) issued by the doctor all registration of the case. As per this certificate, from the breath of the respondent, there was alcoholic smell. Therefore, according to Mr. Sharma learned Counsel, the respondent being in a drunken state, complaint ought to have been dismissed. If this is correct factual position, there is substance in the submission of Mr. Sharma. However, when a reference is made to Section 185 of the Motor Vehicles Act, in order to succeed it was incumbent upon the appellant to have shown by cogent and reliable evidence that the alcohol exceeded 30 mg. of per 100 ml. of blood detected in a test by a breath analyser. There is nothing on the record to that effect. Therefore, to say that the respondent was in drunken state while driving the vehicle is a plea raised simply to be rejected. Another reason to hold so is that doctor has only opined alcoholic smell from breath it is not mere the smell or consumption of alcohol which is relevant, but the quantity of alcohol in the blood is relevant and is determinative factor whether the person should or should not have driven the vehicle. Therefore, this plea is without any substance and is hereby rejected.