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2017 DIGILAW 963 (KER)

Babu K. v. Union of India

2017-06-30

K.HARILAL, P.SOMARAJAN

body2017
JUDGMENT : P. Somarajan, J. Aggrieved by the judgment dated 20.12.2016 in OA(II-U) 60/2015 of the Railway Claims Tribunal, Ernakulam, the applicants came up with this appeal mainly on the reason that their application for compensation was rejected on the ground of intoxication, which is one of the exceptions attached to Section 124-A of the Railways Act, 1989. 2. First of all, we are constrained to make some comments regarding the impugned judgment. Nowhere it is stated in the judgment, whether any evidence was adduced, either documentary or oral. It is also not discussed anywhere in the judgment, what is the probative value or the legal impact of evidence, if any, adduced by the parties, either oral or documentary, and how far it is relevant to the question to be adjudicated in the application. It is also not mentioned, what actually amounts to the expression "intoxication" as envisaged under the exception to Section 124-A of the Railways Act. It is also not clear, on what basis a finding was rendered by the Tribunal that the alleged accident happened due to intoxication. Going by the judgment, it is clear that the report submitted by DRM (Divisional Railway Manager) was accepted by the Tribunal without examination of the said person or any person under him, who had investigated the cause of incident, as a witness. It is also not clear why no opportunity was given to the applicants to adduce evidence or to establish their case. All these basic principles were overlooked by the Tribunal and dismissed the application in a clandestine manner, which is legally not sustainable. 3. Section 124A of the Railways Act is a beneficial provision resting on the principle of no-fault liability. The exceptions attached to the said section have to be understood under the context in which that section was enacted. In other words, exceptions attached to section 124A have to be understood as exceptions carved out against the application of strict liability viz. no-fault liability incorporated therein. The expression "intoxication" stands for drunkenness, inebriation, insobriety due to influence of consumption of alcohol or by the user of drugs. Mere consumption of alcohol will not bring a person within the exception "intoxication" unless the ingredients which constitute the exception "intoxication" are brought out. no-fault liability incorporated therein. The expression "intoxication" stands for drunkenness, inebriation, insobriety due to influence of consumption of alcohol or by the user of drugs. Mere consumption of alcohol will not bring a person within the exception "intoxication" unless the ingredients which constitute the exception "intoxication" are brought out. "Intoxication" stands for something which would affect the balance of the person considerably so that he could not maintain himself or to safeguard himself due to the influence of alcohol or drugs. Mere consumption of alcohol or liquor is not at all sufficient to bring a person under the exception of "intoxication". The rate of alcohol found in the blood at the time of alleged incident, whether he is a drunkard or a person who is taking liquor frequently, are relevant factors to be taken into account so as to ascertain the extent of influence on account of consumption of alcohol or drugs. 4. At this juncture, it assumes importance to the penal provisions contained in the Motor Vehicles Act, 1988 in driving a vehicle by a drunken person, which is extracted below for reference: "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 (b) is under the 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 which may extend to two thousand rupees, or with both; and for a second of subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both." 5. The expression "drunkenness" or "intoxication" is not incorporated or engrafted under Section 185 of the Motor Vehicles Act. It only deals with the question of driving by a drunken person and the test to be applied is on the basis of clauses (a) and (b) of Section 185, which requires the presence of alcohol exceeding 30 mg. per 100 ml. The expression "drunkenness" or "intoxication" is not incorporated or engrafted under Section 185 of the Motor Vehicles Act. It only deals with the question of driving by a drunken person and the test to be applied is on the basis of clauses (a) and (b) of Section 185, which requires the presence of alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or he should be under the influence of a drug to such an extent he is incapable of exercising proper control over the vehicle. The expression "alcohol" is conspicuously absent in clause (b). In other words, clause (a) deals with drunkenness on account of alcohol and clause (b) deals with the influence of a drug. In so far as the influence of alcohol is concerned, a person is said to be drunken only when he is having alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser. The expression "drunkenness" and "intoxication" are really different. The former one is lesser in gravity and the latter one is greater in gravity as to both the extent of alcohol present in blood and its influence on the person concerned. In order to bring a person under the expression "drunkenness", going by Section 185 of the Motor Vehicles Act, at least there should be presence of exceeding 30 mg. of alcohol per 100 ml. of blood detected in a test by a breath analyser. This would show that a mere consumption of alcohol or alcohol contained drink alone will not bring a person within the sweep of Section 185 of the Motor Vehicles Act or within the expression "drunkenness". Only those persons who had consumed alcohol to the extent of making its presence exceeding 30 mg. per 100 ml. of blood detectable in a test by a breath analyser alone would come under the purview of the expression "drunkenness", going by Section 185 of the Motor Vehicles Act. 6. The expression "intoxication" which is greater in gravity has to be understood under this perspective, rather than a mere "drunkenness". per 100 ml. of blood detectable in a test by a breath analyser alone would come under the purview of the expression "drunkenness", going by Section 185 of the Motor Vehicles Act. 6. The expression "intoxication" which is greater in gravity has to be understood under this perspective, rather than a mere "drunkenness". Further, the expression "intoxication" has to be read along with the purpose of the Section as it is an exception attached to Section 124A which is resting on the principle of no-fault liability in the grant of compensation to the victim who suffered injury or death due to an untoward incident as defined under the Act. So, "intoxication" must have a dominant role in the real cause of untoward incident. In other words, "intoxication" represents the state of the victim at the time of incident, due to consumption of alcohol or drugs which lead to him/her as victim to the incident. The initial burden to prove the role of intoxication in causing the accident is on the Railway/respondent. So we are of the view that the judgment rendered by the Tribunal does not reflect the proper application of the law in force. 7. Hence, we set aside the judgment of the Tribunal and the matter is remanded back to the Tribunal for fresh disposal in accordance with the law in force, after giving ample opportunity to both the parties to adduce evidence, both oral and documentary. Both parties shall appear before the Lower Court on 3.8.2017 or any other day that my be notified by the Tribunal in that regard. 8. The M.F.A. is disposed of accordingly. No order as to costs.