Uttarakhand High Court
Unknown vs Smt. Soni Devi And Others on 21 August, 2025
2025:UHC:7428
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 107 of 2019
21st August, 2025
M/s Benetton India Private Limited and another
...........Appellants
Versus
Smt. Soni Devi and Others ........Respondents
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Presence:-
Mr. Narendra Bali Advocate for the appellant.
Ms. Sangeeta Adhikari Patni, learned counsel for respondent nos.
1 to 6.
Mr. Pramod Bailwal, learned counsel for respondent no.7.
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Hon'ble Mr. Alok Mahra, J.
This appeal under Section 173 of the Motor
Vehicles Act, 1988, has been preferred by the
appellant against the judgment and award dated
31.01.2019 passed by the learned M.A.C.T./2nd
Additional District Judge, Udham Singh Nagar in
M.A.C.P. No. 302 of 2016 “Smt. Soni Devi and Others
Vs. M/s Benetton India Private Limited and Others”.
By the said judgment, the learned Tribunal partly
allowed the claim petition and awarded a
compensation of ₹21,95,886/- against the appellant-
Insurance Company, but granted the Insurance
Company the right to recover the said amount from
the appellant-owner/driver of the offending vehicle on
the principle of “pay and recover”.
2. Briefly stated, the facts of the case are that
on 09.06.2016, the deceased, Jai Kishore Mishra,
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was riding his bicycle from Kheda, Rudrapur to his
office at SIDCUL, Pantnagar. At about 2:00 p.m.,
when he reached SIDCUL Chowk, in front of Shiv
Mandir, an i-20 car bearing registration number HR-
26C.P.-3661, driven rashly and negligently, hit the
deceased from behind, causing him grievous injuries.
He was immediately rushed to District Hospital,
Rudrapur, but succumbed to his injuries before
reaching the hospital. The deceased, aged 39 years,
was employed with M/s Neel Metal Products Pvt.
Ltd., SIDCUL, Pantnagar, drawing a monthly salary
of ₹35,365/-. The claimants, namely his widow,
children, and parents, filed the claim petition seeking
compensation of ₹75,86,405/-.
3. The claimants filed documentary evidence
including the FIR, pay slips, ration card, voter ID
cards, and death certificate. The opposite parties
produced the vehicle registration certificate,
insurance policy, driving licence of the driver, FIR,
charge sheet, postmortem report, and income details
of the deceased. Oral evidence was led the claimant
no.1 (wife of deceased), eyewitness PW1 Kaushal
Kishore Saxena, and Pankaj Pathak (HR of Neel Metal
Products Ltd.) were examined for the claimants. The
Insurance Company examined its Legal Executive,
DW1 Dharam Chaubey.
4. On the basis of the pleadings and evidence,
the Tribunal framed the following issues:
i) Whether the accident dated 09.06.2016
occurred due to rash and negligent driving of the
Car No. HR-26CP-3661, resulting in the death of2
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Jai Kishore Mishra?
ii) Whether, on the date of the incident, the
driver of the car was not holding a valid and
effective driving licence and the vehicle was not
covered by a valid insurance policy? If so, its
effect?
iii) Whether the claimants are entitled to
compensation? If so, to what extent and from
whom?
5. The Tribunal answered issue no.1 in favour
of the claimants. On issue no.2, the Tribunal
recorded a finding that the offending vehicle was duly
registered and insured, and the driver was holding a
valid and effective driving licence. On issue no.3, the
Tribunal awarded compensation of ₹21,95,886/- in
favour of claimant nos.1 to 6. However, on the
premise that the driver was under the influence of
alcohol at the time of accident, the Tribunal granted
the Insurance Company the right to recover the
awarded amount from the owner-cum-driver of the
offending car.
6. Learned counsel for the appellant would
submit that the Tribunal committed a manifest error
in granting recovery rights to the Insurance
Company. The Tribunal relied solely on the fact that
a charge sheet had been filed against appellant no.2
in F.I.R. No.57 of 2016, under Sections 279, 304-A
IPC and Section 185 of the Motor Vehicles Act, 1988.
The said charge sheet has already been challenged by
the appellant in proceedings under Section 482
Cr.P.C., which are pending adjudication. Mere filing
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of a charge sheet cannot form the basis to fasten
such liability.
7. It is further argued that the Tribunal erred
in holding that there was violation of the terms of the
policy. The finding was based on Rule 2(c) of the
Insurance Policy, which excludes liability if the
vehicle is driven under the influence of intoxicating
liquor or drugs. However, the driver’s blood alcohol
content was neither tested by breath analyser nor by
any blood/urine sample, as required under Section
185 of the Act. At best, there was a mere suspicion
based on the doctor’s observation that there was a
smell of alcohol. Such suspicion is insufficient to
establish intoxication within the meaning of Section
185, which mandates proof of blood alcohol
exceeding 30 mg per 100 ml, or impairment to the
extent of incapacity to control the vehicle.
8. On the other hand, learned counsel for the
Insurance Company supported the award, submitting
that the Tribunal relied upon the testimony of the
Insurance Company’s Investigator and the doctor’s
note suggesting that the driver appeared to be under
the influence of alcohol. On this basis, recovery rights
were rightly granted.
9. Learned counsel for the appellant has
further contended that no reliable breath analyser or
blood test was conducted to establish alcohol
content; that, mere smell of alcohol is insufficient
proof of intoxication, that, even if alcohol was
consumed, there was no proof that it impaired driving
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or caused the accident. He would further submit that
under Section 185 of the Act, intoxication is
established only if alcohol content exceeds 30 mg per
100 ml of blood, detected in a duly conducted test. In
absence of such test, the finding of violation of policy
conditions is unsustainable.
10. Heard learned counsel for the parties and
perused the material available on record.
11. A bare perusal of Section 185 of the Act
reveals that an offence is made out only where the
driver has blood alcohol exceeding 30 mg per 100 ml,
detected in a breath analyser test; or the driver is
under the influence of drugs to such an extent as to
be incapable of exercising proper control over the
vehicle.
12. In the present case, it is undisputed that no
blood or urine sample was taken from the driver for
laboratory examination. The finding of intoxication is
based only on the opinion of the Insurance
Company’s Legal Executive and a general observation
by the doctor that the driver “seemed” under
influence. Such material, in the absence of scientific
testing, cannot be the basis of a finding of
intoxication under Section 185 of the Act, and in the
absence of reliable proof of intoxication by the driver
of the offending vehicle, the finding of the Tribunal
granting recovery rights to the Insurance Company is
unsustainable in law. Thus, the Tribunal erred in law
in holding that the driver had violated the terms of
the insurance policy.
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13. Accordingly, the impugned judgment and
award dated 31.01.2019 is modified to the extent that
the Insurance Company shall remain liable to pay the
entire compensation to the claimants, and it shall
have no right to recover the same from the appellants
(owner-cum-driver of the offending vehicle).
14. Learned counsel for the appellants further
submits that pursuant to the interim order dated
21.11.2019 passed by the Coordinate Bench of this
Court, the appellants had furnished a bank
guarantee of 50% of the awarded amount before the
Registrar General of this Court. In view of the fact
that the appeal has been allowed in part as above,
the bank guarantee furnished by the appellants
stand discharged, and the same shall be released
forthwith in their favour.
15. The appeal stands disposed of accordingly.
16. Pending applications, if any, also stand
disposed of.
(ALOK MAHRA, J.)
21.08.2025.
Mamta
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