Alcohol smell in post-mortem report no ground to deny compensation to victim’s family, says Calcutta High Court

Case

The accident occurred on December 27, 2020, when Ganesh Das was hit by a truck being driven “rashly and negligently” while he was riding a motorbike and died on the spot.

A court on May 22, 2024 in Tamluk awarded compensation of Rs 11.41 lakh with 6% interest to the mother and other kin of Das.

The insurance company- The New India Assurance Company Limited challenged the order stating that the deceased was allegedly driving in a drunken condition, as the post-mortem noted an alcoholic smell in the stomach.

The company also said that the motorcycle driven by Das was not insured and the compensation awarded was excessive.

The claimants, on the other hand, filed cross-objections seeking enhancement of compensation, contending that the deceased earned Rs 15,000 per month, whereas the Tribunal assessed his income at Rs 5,000 per month.

Ruling

The bench said when a person drives the vehicle in drunken condition in violation of a condition under Section 185(A) of the Motor Vehicles Act, he may be prosecuted under law and when he meets with an accident that may be a ground of contributory negligence.

However, when the person who met with an accident is dead and alleged to be drunk, the heirs of the said victim cannot be deprived of compensation because the said person is not alive to defend himself.

The court observed that under Section 185 of the Motor Vehicles Act, intoxication must be established by proving that the blood alcohol content exceeded the prescribed limit.

The court further noted that in the absence of any breath analyser or blood alcohol test, the mere smell of alcohol could not conclusively establish drunken driving.

The claim was against the insurer of the offending vehicle, and not against the insurer of the victim’s vehicle and since there was no contractual relationship between the appellant insurer and the owner of the motorcycle, this defence was held to be irrelevant, the court said on the company’s plea that the motorbike of Das was not insured.

Upholding the tribunal’s assessment of income at Rs 5,000 per month, the high court noted that the claimants failed to prove higher income by examining the employer or producing documentary evidences

The court also said that insurance companies should inform transport authorities when vehicles continue to ply on roads without renewal of expired insurance policies, despite reminders.