JUDGMENT (Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and judgement of the Tribunal dated 17.10.2016 regarding the liability of appellant/2nd respondent in MCOP.No.1089 of 2013 on the file of the Motor Accident Claims Tribunal (Special Sub-Court for MCOP Cases), Tirunelveli.) 1. The above appeal has been filed by the Insurance Company challenging the findings regarding negligence and liability in the award passed in MCOP.No.1089 of 2013 on the file of Motor Accident Claims Tribunal, Tirunelveli. 2. The claim petition has been filed by the injured claimant under Section 163(A) of the Motor Vehicles Act. 3. As per the claim petition, the claimant was travelling in a motor bike on 09.10.2013 at about 21.45 hours which was insured with the third respondent. While he was travelling slowly, a Maruthi Omni Van belonging to the first respondent and insured with the second respondent was driven in a rash and negligent and came to a grinding halt without proper signal. It resulted in an accident in which the claimant sustained fracture of skull, fracture of left forearm, fracture of left femur, fracture of left tibia, apart from grievous injuries in both hands, legs and all parts of the body. According to the claimant, he was treated as an inpatient for a period of 28 days and referred to Tirunelveli Medical College Hospital. A criminal case was registered as against the claimant in Crime No.685 of 2013 on the file of Sathyamangalam Police Station and the said case is pending. 4. According to the claimant, he was earning a sum of Rs.3,300/- per month as fitter in Thread Mill. He is unable to use both hands and legs and therefore, he is 100% disabled and he has also underwent a major surgery implanting steel plate with interlocking mailings and the left leg has been shortened to an extent of 2 inch. Therefore, the claimant sought for a sum of Rs.8,40,800/-. 5. The owner of the alleged offending vehicle had remained exparte and the Insurer Company of the said offending vehicle had filed a counter contending that the injured claimant was under influence of alcohol and due to his rash and negligent driving, he had dashed against the Maruthi Omni Van on its rear side. Moreover, at the relevant point of time, three persons were travelling in the motor bike. Moreover, at the relevant point of time, three persons were travelling in the motor bike. On the basis of the complaint lodged by the pillion rider of the two wheeler, Sathyamangalam Police Station had registered a case against the petitioner. Since it is solely due to the carelessness and negligence of the claimant, the claimant cannot seek any compensation from the Insurance Company of the Maruthi Van. The Insurance Company has also disputed the quantum of compensation that was prayed for in the claim petition. 6. The Tribunal after considering the oral and documentary evidence, arrived at a finding that the first respondent who is the owner of the Maruthi Van alone is responsible for the said accident. Though the claim petition was filed under Section 163-A of the Motor Vehicles Act, considered the said application under Section 166 of the Motor Vehicles Act and proceeded to pass an award for a sum of Rs.4,65,000/- The said award is under challenge in the present appeal. 7. According to the learned counsel for the appellant/Insurance Company, at the time of driving the vehicle, the injured claimant was under influence of alcohol and three persons were riding on the motor bike in violation of the statutory provisions. He had further contended that the motor bike had hit on the rear side of the Maruthi Omni Van. Therefore, it is for the claimant to establish that there was a negligence on the part of the driver of the Maruthi Omni Van. 8. The learned counsel for the appellant had relied upon Exhibit P3 - discharge summary issued by Kuppusamy Hospital which discloses that the accident has happened due to drunken driving. The learned counsel had further relied upon Exhibit A7-Accident Register wherein the duty Doctor had recorded that there is smell of alcohol in the breath. Relying upon these two documents, the learned counsel for the appellant had contended that the vehicle was driven by the injured victim under the influence of alcohol and therefore, he cannot seek any compensation from the owner of the Maruthi Van. 9.The learned counsel for the appellant had relied upon a judgement of the Hon''ble Supreme Court reported in (2021) 7 SCC 704 ( Iffco Tokio General Insurance Company Limited Vs. 9.The learned counsel for the appellant had relied upon a judgement of the Hon''ble Supreme Court reported in (2021) 7 SCC 704 ( Iffco Tokio General Insurance Company Limited Vs. Pearl Beverages Limited) to contend that the smell of alcohol which is recorded by a medical practitioner is enough to invoke the exclusion clause in the insurance policy. It is not necessary that the insurer should be subjected to breath test or blood test, especially in cases where the knowledge about drunken driving is brought to the notice of the Insurance Company very belatedly. 10. The learned counsel for the appellant had further contended that the claim petition has been filed by the claimant under Section 163(A) of the Motor Vehicles Act clearly knowing the fact that they will not be able to establish the negligence on the part of the first respondent. Therefore, the Tribunal was not right in converting the said application into claim petition under Section 166 of the Motor Vehicles Act. Where an application is filed under Section 163(A) of the Motor Vehicles Act, though it is not necessary to establish the negligence on the part of the offending vehicle, if the claimant is under influence of alcohol, the defence would be raised by the Insurance Company. Therefore, he prayed for allowing the appeal. 11. Per contra, the learned counsel appearing for the claimant relied upon a Division Bench judgement of our High Court reported in 2020 (1) TN MAC 449 (DB) Manikandan Vs. P.Palani & others) contended that unless the breath analysis test or blood test is conducted, the plea of drunken driving cannot be sustained by the Insurance Company. 12. The learned counsel had further relied upon the judgement of the Hon''ble Supreme Court reported in (2020) 1 TN MAC 161 (SC) Mohammed Siddique & another Vs. National Insurance Co.,Ltd., & others) to contend that just because three persons were riding in a motor bike, the same cannot be considered to have contributed to the accident, unless it is established that the accident had happened only because of the triples driving. Therefore, he prayed for sustaining the award passed by the Tribunal. 13. I have considered the submissions made on either side and perused the judgements. 14. The injured claimant is the owner/driver of the motor bike which had met with an accident. Therefore, he prayed for sustaining the award passed by the Tribunal. 13. I have considered the submissions made on either side and perused the judgements. 14. The injured claimant is the owner/driver of the motor bike which had met with an accident. Even as per the claim petition, the Maruthi Omni Van was moving ahead of the motor bike and the said van stopped suddenly without any signal thereby resulting in collusion of the bike on the rear side of the Maruthi Van. 15. As per Exhibit P3, the discharge summary issued by a private hospital, the accident has happened due to drunken driving. In Exhibit P7, the Accident Register it has been recorded by the duty Doctor that there is a smell of alcohol in the breath of the claimant. As rightly pointed out by the learned counsel for the Insurance Company, the breath analysis test or blood test could be taken only immediately after the accident. Any test that is conducted after a few days would not yield any result. Only when a claim petition is filed, it is brought to the notice of the Insurance Company about the accident.Therefore, mere non-conducting of these tests would not bar the Insurance Company from raising a plea that the accident has happened due to the drunken driving. 16. The Hon''ble Surpeme Court in a judgement reported in (2021) 7 SCC 704 ( Iffco Tokio General Insurance Company Limited Vs. Pearl Beverages Limited) in Paragraph No.84 has held as follows: “84...At the hospital, in the medico-legal report, there is reference to breath of alcohol (+). It is, however, true that the insurer or his agent may not have been given notice at that stage. We also agree that it would not be proper or legal to hold that in such circumstances, the insurer would still be in a position to prove through a breath test or blood test that the driver was under the influence of alcohol. If the driver having regard to the fact did not suffer any fresh injury is discharged from the hospital and goes away, we find it inconceivable as to how the insurer could be at fault for not having a breath or blood test conducted....” 17. If the driver having regard to the fact did not suffer any fresh injury is discharged from the hospital and goes away, we find it inconceivable as to how the insurer could be at fault for not having a breath or blood test conducted....” 17. In view of the judgement of the Hon''ble Supreme Court, this Court is not in a position to rely upon the Judgement of the Division Bench of our High Court reported in 2020 (1) TN MAC 449 (DB) Manikandan Vs. P.Palani & others). 18. As far as the injured claimant is concerned, he is a third party to the contract of the Insurance between the first respondent and the second respondent. Therefore, without establishing any negligence on the part of the Maruthi Van driver, the claimant would be entitled to receive compensation under Section 163(A) of the Motor Vehicles Act. The monthly income is claimed to be Rs.3,300/- per month which may not exceed Rs.40,000/- per annum. The Tribunal has only taken Rs.3,300/- is the monthly income and arrived at a total compensation of Rs.4,65,000/-. If the injured claimant had maintained safe/reasonable distance behind the Maruthi Van, this accident could have been avoided. However, it could be seen that the injured victim was closely following the Maruthi Van to such an extent, that application of sudden brake on the side of the Maruthi Van would result in an accident. That apart, on the basis of Exhibits P3 and P7, it is evident that the claimant was under the influence of alcohol. The motor bike which was driven by the claimant was having two other pillion riders. Therefore, it is clear that the claimant has also contributed to the accident. However, the Tribunal has not considered the said fact based upon the records. 19. This Court is of the considered opinion that 30% of the compensation should be deducted towards contributory negligence on the part of the injured claimant. When 30% is deducted from 4,65,000/-, the total compensation would get reduced at Rs.3,25,500/-. The Tribunal has awarded 9% interest per annum and the same is on the higher side. Therefore, the interest shall be paid at the rate of 7.5% per annum. 20. The above said award amount of Rs.3,25,500/- shall be paid by the appellant/Insurance Company with 7.5% interest from 25.11.2013 till the date of realisation. The Tribunal has awarded 9% interest per annum and the same is on the higher side. Therefore, the interest shall be paid at the rate of 7.5% per annum. 20. The above said award amount of Rs.3,25,500/- shall be paid by the appellant/Insurance Company with 7.5% interest from 25.11.2013 till the date of realisation. In case, if any excess amount has been deposited by the Insurance Company, the same shall be refunded to the Insurance Company with accrued interest. In all other respects, the award passed by the Tribunal is confirmed. 21. Accordingly, this Civil Miscellaneous Appeal is partly allowed to the extent as stated above. No costs. Consequently, connected miscellaneous petitions are closed.