ORDER : Rangnath Chandrakar, J. (Appeal u/s 173 of the Motor Vehicle Act, 1988) 1. The appellant has preferred this appeal u/s 173 of the Motor Vehicle Act, 1988 (for short, "the Act 1988") challenging the impugned award dated 2-2-2009 passed by Chief Motor Accident Claims Tribunal (for short, "the Tribunal"), Mahasamund in Claim Case No. 77 of 2008, whereby the claim petition of the present appellant was dismissed. 2. Brief facts of the case, in short, are that on 7-1-2008 at about 3.00 p.m., appellant along with one another person was going to his home at Mahasamund from Khairabhatta on his motorcycle and when he reached near Gayatri Mandir (Sitli Nala), one Mini Bus bearing registration No. CG 06 ZA 0156 driven by respondent No. 1 in a rash and negligent manner, dashed the vehicle of the appellant from opposite side as a result of which he sustained grievous injuries and his tibia fibula bone was fractured. The offending vehicle was owned by respondent No. 2 and insured with respondent No. 3. The appellant was taken to District Hospital, Mahasamund where from he was referred to Mekahara Hospital, Raipur and he was admitted there from 7-1-2008 to 30-1-2008. The appellant producing disability certificate (Ex.P/41) issued by medical board Mahasamund claimed compensation of Rs. 1,98,000/- against the respondent. The disability certificate shows 60% temporary disability. 3. Learned Tribunal after taking into consideration the entire evidence, assessed an amount of Rs. 35,883/- as compensation to the appellant but dismissed his claim on the ground that the said motor accident occurred due to negligence on the part of the appellant as he was driving his motor-cycle in a drunken condition. 4. Mr. K.K. Dewangan, learned counsel appearing for the appellant submits that there was no negligence on the part of the appellant at the time of driving his vehicle. The tribunal ought to have considered the claim of the appellant as there was no violation of terms and conditions of the Insurance policy, therefore, the impugned award passed by the Tribunal be set aside and compensation may kindly be granted. 5. Per contra, Shri Sachin Singh Rajput, learned counsel appearing for respondent No. 3 supported the award and contended that the appellant at the time of accident was driving the motorcycle under the influence of liquor; the tribunal has rightly dismissed his claim holding him liable for the accident. 6. 5. Per contra, Shri Sachin Singh Rajput, learned counsel appearing for respondent No. 3 supported the award and contended that the appellant at the time of accident was driving the motorcycle under the influence of liquor; the tribunal has rightly dismissed his claim holding him liable for the accident. 6. I have heard learned counsel for the parties, perused the impugned award and record of the tribunal. 7. So far as the finding recorded by the tribunal while dismissing the claim of the appellant holding him to be liable for the accident is concerned, it was based on the MLC report (Ex.D/1) of the appellant and the evidence of Dr. Vipin Bihari Agrawal (NAW-1). The MLC report clearly demonstrates at point No. 4 that the appellant was with heavy intake of alcohol and it was further corroborated by Dr. Vipin Bihar Agrawal who examined the appellant immediately after the accident. Thus, evidently, the appellant was driving his motor-cycle under the influence of intoxication at the time of alleged accident as discussed by the Tribunal in paras 8 and 9 of the impugned award. 8. I, therefore, do not find any illegality or infirmity in the aforesaid finding recorded by the learned Tribunal but it cannot be said that the appellant was only liable for the accident and taking benefit of the fact that the appellant was under intoxication, the respondent No. 1 cannot escape from his liability. In such condition, the respondent No. 1 has to prove from the circumstances that despite due diligence and care the accident could not be avoided and it happened only due to the negligence on the part of the appellant but the respondent No. 1 failed to do so as there is no such evidence available on record. Further more, the fact that the appellant was under the influence of intoxication, came to the knowledge of the respondent No. 1 only after the appellant was examined by Dr. Vipin Bihari Agrawal and the MLC report (Ex.D/1) was filed in the case. Thus, the fact that a person going on the way under the influence of intoxication does not, in itself, permits a driver of the motor vehicle or anybody to hit him as he was under intoxication. Vipin Bihari Agrawal and the MLC report (Ex.D/1) was filed in the case. Thus, the fact that a person going on the way under the influence of intoxication does not, in itself, permits a driver of the motor vehicle or anybody to hit him as he was under intoxication. In the light of evidence and circumstances of the present case, it is abundantly clear that it was a case of contributory negligence on the part of both the appellant and respondent No. 1. Thus, the learned Tribunal ought to have held that the appellant and respondent No. 1, driver of the offending vehicle equally contributed to the accident and the appellant was entitled to get 50% of the amount of compensation assessed by the Tribunal. 9. In view of the aforesaid and considering all the aspects of the matter, I am of the considered opinion that the learned tribunal erred in exonerating the respondent No. 1 from his liability towards the accident. It is held that the alleged motor accident occurred due to contributory negligence on the part of the appellant as well as the respondent No. 1. Thus, the award of the tribunal deserves to be set aside. 10. For the foregoing reasons, the appeal filed by the appellant succeeds and the award passed by the tribunal is set aside. The appellant is entitled to get 50% of the amount of compensation of Rs. 35,883/- assessed by the tribunal i.e., Rs. 17,942/- alongwith interest at the rate of 6% per annum from the date of filing of the claim petition till its realization. The offending vehicle was insured with respondent No. 3 Reliance General Insurance Company. The insurance company is granted three months' time to deposit the aforesaid amount of compensation before the concerning Claims Tribunal.