Friday, 5 June 2020

Whether a person is intoxicated can be determined without a report of the chemical analyser?

Whenever the case is about the intoxication, then the blood sample is to be taken. It is to be sent to the Chemical Analyzer, after the report, the Court may come to the conclusion as to whether the said person was under the influence of liquor or not. Therefore, the medical report which is on record, cannot be considered as a Chemical Analyzer Report or the Scientific Examination Report to show that appellant was under the influence of liquor. Hence, it is not helpful to the respondent. The Hon'ble Apex Court in the case of Chandu v. Multi Speciality Lab Services Pvt. Ltd. in C.M.A No. 1348/2018 decided on 04/03/2019 has held as under:—
“Mere smelling of alcohol from the mouth, dilation of pupils and incoherence in speech are not enough and cannot said to be conclusively prove drunkenness. Unless Urine or Blood Test is carried, it cannot be conclusively established that the Driver of the vehicle was under the influence of alcohol. Mere smell of alcohol or consumption of alcohol should not be taken as Contributory Negligence on the part of a Claimant. Respondent should prove the drunken state of the Claimant, which leads to nexus with accident.”
16. In the present case, there was no any Urine or Blood Test by the Medical Officer. But blood sample and urine were not sent to Chemical Analyzer and therefore, without any scientific report, it cannot be said that appellant was under the influence of liquor. 
17. In para 10 of the Judgment of National Consumer Disputes Redressal Commission, New Delhi delivered in the case of Sujata v. Bajaj Allianz General Insurance decided on 09/03/2015 held that-
“Mere consuming of alcohol is not a ground to repudiate insurance claim. Both the post-mortem reports and the investigator's report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed. Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed”
18. It cannot be presumed that a person who consumed alcohol cannot control himself. Therefore, percentage of alcohol in the blood is very material and that is to be determined by the Chemical Analyzer. The scientific investigation is necessary. Generally, the person who consumed alcohol in less quantity, may control himself. But who consumed alcohol in large quantity, may not control himself and therefore, scientific reason is to be there to come to a proper conclusion as to whether the person consumed certain quantity of alcohol. In the present case, there is nothing on record to show that any scientific investigation is made to determine that the appellant was under the influence of alcohol.

In the High Court of Bombay Nagpur Bench
(Before M.G. Giratkar, J.)

Ankush Vs  Union of India 
First Appeal No. 140 of 2019
Decided on February 17, 2020
Citation: 2020 SCC OnLine Bom 321

The Judgment of the Court was delivered by
M.G. Giratkar, J.:— The present appeal is against the Judgment of Railway Claims Tribunal in Claim Application No. OA(IIu)/NGP/2015/0152. On 17/05/2014, the appellant was travelling from Warora to Wardha by Balharshah Passenger to come to Wardha. There was heavy crowd in the boggy. He was sitting in a door when the said train reached Bhugaon Railway Station, driver of the railway applied immediate break and therefore, due to jerk, he fell down, he came under the running train. His both legs were cut off. One leg above the knee and one leg below knee were amputed.
2. The appellant filed claim petition stating that he was a bonafide passenger and untoward incident took place as defined under Section 123(c) of the Railways Act, 1989. Therefore, he is entitled for compensation. Railway Claims Tribunal recorded its finding that the appellant was not a bonafide passenger because be was not having any journey ticket. The Railway Claims Tribunal recorded its finding that the appellant was under the influence of liquor, accident took place due to his own fault and therefore, Railway is not liable to pay any compensation as it is covered by the Exception 124-A(d) of the Railways Act. Hence, this appeal.
3. Heard Ms. Hemlata Dhande, learned counsel for the appellant. She has pointed out spot panchnama and submitted that the appellant was travelling by Balharshah Passenger. He was having ticket to travel the said train but during the accident, the ticket might have been lost and therefore, ticket was not found with the appellant.
4. The learned counsel has submitted that this cannot be a ground to reject the claim of the appellant. In support of her submission, she has pointed out the decision of the Hon'ble Apex Court in the case of Union of India v. Rina Devi, reported in II (2018) ACC 591 (SC).
5. Ms. Dhande, learned counsel has submitted that there is no any evidence to prove that the appellant was in heavy intoxication and therefore, he could not control himself. There was no any blood test report by the Chemical Analyzer. In support of her submission, she pointed out decision in the case of Chandru v. Multi Speciality Lab Services Pvt. Ltd. (Madras High Court), in C.M.A. No. 1348/2018 decided on 04/03/2019.
6. She has also pointed out the Judgment of National Consumer Disputes Redressal Commission, New Delhi in the case of Sujata v. Bajaj Allianz General Insurance, decided on 09/03/2015.
7. Shri Lambat, learned counsel has pointed out Exception to Section 124-A(d) of the Railways Act. He has pointed out the evidence of Doctor examined before the Railway Claims Tribunal. The learned counsel has submitted that as per the evidence of Doctor, appellant was under the influence of liquor. Railway has proved defence as carved out under Section 124-A proviso (d) of the Railways Act.
8. Shri Lambat, learned counsel has submitted that the appellant was not a bonafide passenger. He himself fell down from running train and sustained injury due to heavy intoxication and therefore, claim of the appellant is rightly rejected by the Railway Claims Tribunal.
9. The Railway Claims Tribunal rejected the claim of the appellant on two grounds.
I) The appellant was not a bonafide passenger.
II) The appellant sustained injury as he was under the influence of liquor.
10. In respect of bonafide passenger, there is no dispute that railway ticket was not found with the appellant but that cannot be a ground to reject the claim of the appellant. The Hon'ble Apex Court in the case of Union of India v. Rina Devi in para 17.4 has held as under:—
“The mere presence of a body on the railway premises will not be a conclusive to hold that injured or deceased was a bonafide passenger for which the claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bonafide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts as under:—
The burden will then shift on the railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.”
11. As per the Judgment of the Hon'ble Apex Court, the claim cannot be rejected only on the ground that ticket was not found. In the present appeal, the appellant lost his both legs, one leg above knee and one leg below knee, in such situation, he might have lost the ticket. He was unconscious after the incident. He was shifted in the hospital. Therefore, the claim of the appellant cannot be rejected on the ground that he was not having any journey ticket. Appellant has filed his affidavit to support the claim. Railway not discharged the burden to disprove the claim.
12. In respect of untoward incident as defined in Section 123(c) of the Railways Act, the Railway Claims Tribunal has recorded its finding that incident took place, due to negligence of claimant. He was under the influence of liquor, he could not control himself and fell down from the train.
13. Shri Lambat, learned counsel has pointed out evidence of doctor. The doctor stated in his evidence that when patient brought to the hospital between 8.00 to 9.00 p.m., the patient was severely injured. He was unable to tell his full name therefore, his name was not mentioned in the report. His name Ankush was written. He was admitted in the ICU. He was discharged on 17/05/2014 on his own request.
14. The evidence of doctor shows that he did not take any sample of blood for chemical analyzer report. There is nothing on record to show that any expert report in respect of examination of blood was filed on record. The procedure is now well established about the test of alcohol in the blood. Whenever any person/accused is charged for the offence under the intoxication of alcohol, the blood sample is to be taken by the Medical Officer, that blood sample is to be sent to the Chemical Analyzer and after the receipt of report, Court may come to a conclusion that whether he was under influence of liquor or not. The evidence of doctor does not show that any blood sample was taken for the chemical examination.
15. It is pertinent to note that evidence to show that injured was under the influence of alcohol is without any medical or scientific evidence on record. Evidence of Doctor show that patient was not in a position to tell his name. Therefore, only first name Ankush was written. It is pertinent to note that appellant has lost one leg above knee and one leg below knee. He was in severe pain. In such situation, common man cannot expect from said injured to tell the details. The statement of the appellant was recorded by the railway police, filed on record shows that the appellant was unconscious when the appellant was in hospital. Therefore, in such situation, not telling full name, details, etc. by the appellant, cannot be a ground to reject the claim of the appellant. The learned counsel for respondent has pointed out documents and submitted that patient was discharged on his request. That cannot be a ground to reject the claim. There is no dispute that the appellant has lost his both legs. There is no any document placed on record to show that the appellant was under the influence of liquor. The learned counsel has pointed out medical report on record. That report is not of blood sample by the Chemical Analyzer and therefore, that report cannot be taken as a gospel truth about the intoxication of the appellant. Whenever the case is about the intoxication, then the blood sample is to be taken. It is to be sent to the Chemical Analyzer, after the report, the Court may come to the conclusion as to whether the said person was under the influence of liquor or not. Therefore, the medical report which is on record, cannot be considered as a Chemical Analyzer Report or the Scientific Examination Report to show that appellant was under the influence of liquor. Hence, it is not helpful to the respondent. The Hon'ble Apex Court in the case of Chandu v. Multi Speciality Lab Services Pvt. Ltd. in C.M.A No. 1348/2018 decided on 04/03/2019 has held as under:—
“Mere smelling of alcohol from the mouth, dilation of pupils and incoherence in speech are not enough and cannot said to be conclusively prove drunkenness. Unless Urine or Blood Test is carried, it cannot be conclusively established that the Driver of the vehicle was under the influence of alcohol. Mere smell of alcohol or consumption of alcohol should not be taken as Contributory Negligence on the part of a Claimant. Respondent should prove the drunken state of the Claimant, which leads to nexus with accident.”
16. In the present case, there was no any Urine or Blood Test by the Medical Officer. But blood sample and urine were not sent to Chemical Analyzer and therefore, without any scientific report, it cannot be said that appellant was under the influence of liquor. In the case of Sujata v. Bajaj Allianz General Insurance decided on 09/03/2015 in para 4 has observed that:—
“We have heard the learned counsel for the parties. The counsel for the complainant vehemently argued that there is no proper evidence regarding consumption of alcohol. The FSL report is inconclusive, while the Medical Superintendent of District Hospital, Nizamabad issued certificate for cause of death as “Head injury and intracranial bleed under Ethyl Alcohol intoxication”.
17. In para 10 of the Judgment of National Consumer Disputes Redressal Commission, New Delhi delivered in the case of Sujata v. Bajaj Allianz General Insurance decided on 09/03/2015 held that-
“Mere consuming of alcohol is not a ground to repudiate insurance claim. Both the post-mortem reports and the investigator's report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed. Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed”
18. It cannot be presumed that a person who consumed alcohol cannot control himself. Therefore, percentage of alcohol in the blood is very material and that is to be determined by the Chemical Analyzer. The scientific investigation is necessary. Generally, the person who consumed alcohol in less quantity, may control himself. But who consumed alcohol in large quantity, may not control himself and therefore, scientific reason is to be there to come to a proper conclusion as to whether the person consumed certain quantity of alcohol. In the present case, there is nothing on record to show that any scientific investigation is made to determine that the appellant was under the influence of alcohol.
19. The Railway Claims Tribunal wrongly recorded its finding that accident took place as the appellant was under the influence of alcohol.
20. In that view of the matter, appeal is allowed. The impugned Judgment of Railway Claims Tribunal, Nagpur is hereby quashed and set aside. The claim of the appellant is allowed as prayed.
21. The appellant is entitled for compensation as provided in Part-II Sub-Clause (3) of the Schedule. Hence, the following order.
ORDER
22. Respondent is directed to pay compensation of Rs. 8,00,000/- within a period of 12 weeks.
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