In Re: Y. Balaram - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - reliance on the smell of liquor in the breath is lull of pitfalls, due to the fact that cheap wine and beer generally produce a much more offensive breath than liquor of much higher alcoholic content. in regard to consumption of liquor the only practicable method in this country now open to the prosecuting agency is to find out whether a subject's breath smells of alcohol and taking into consideration that the smell of alcohol might be simulated by consumption of other articles like old sugar, the doctor should not be content with noting that the accused smells of liquor but also note whether the unmistakable characteristic odour is that of arrack or toddy or other distinctive grain alcohol. it will only be fair to the accused, if the doctor considers that his breath is smelling of alcohol, to give him an opportunity to explain whether it was due to his having taken any medicated permissible preparation containing alcohol like arishta or asava. 2 has deposed is correct and it is not safe to base conviction on mere suspicion.ordermanohar pershad, j.1. this is a revision on behalf of the accused against the judgment of the sub-divisional magistrate, gudivada, dismissing his appeal and confirming the order of the stationary sub-magistrate, gudivada, dated 4-8-1955, holding the accused guilty under section 4(1) (j) of the madras prohibition act x of 1937 and sentencing him under section 245, criminal procedure code, to pay a fine of rs. 50 and in default to undergo rigorous imprisonment for a period of six weeks.2. the brief facts are that the station officer, gudivada, filed a charge-sheet against the petitioner for an offence under section 4(1) (j) of the madras prohibition act x of 1937, alleging that on 13-5-1955 at about 10-30 p.m., he was found on a public high road near gowri shankar cinema hall in a state of drunkenness. he was sent to the government medical officer who issued a certificate of drunkenness. the accused denied the offence and stated that the circle inspector and the sub-inspector of police bore grudge against him and have filed a false case against him due to the influence of shri anugrah, formerly circle inspector (now under suspension) against whom he deposed in. an enquiry before the tribunal and also due to the fact that he sent up a petition to the district superintendent of police against them. the prosecution examined 2 witnesses. in defence the accused produced two witnesses. the learned sub-magistrate on the evidence held that the accused is guilty and sentenced him to the punishment as aforesaid. on appeal the judgment of the sub-magistrate was confirmed. hence this revision.3. shri bhima raju, learned counsel for the petitioner, argued first that the charge-sheet and the examination of the accused would reveal an offence under section 4-a of the madras prohibition act x of 1937 whereas the accused has been convicted under section 4(1) (j) of the act which was illegal and improper. the second contention advanced is that there is absolutely no evidence in the case to establish the guilt of the accused.4. on behalf of the respondent it is contended that even though the charge-sheet and the examination of the accused was under section 4-a of the act, and the accused has been convicted under section 4(l)(.i) that would not be improper and would not help the accused unless prejudice is shown. it is next contended that there is sufficient evidence on record to establish the guilt of the accused, and both the courts have held the accused guilty and there is no reason why this court should come to a different conclusion. in so far as the first point is concerned it is no doubt true that the charge-sheet and the examination of the accused do reveal an offence under section 4-a and the accused has been convicted under section 4(1) (j) of the madras prohibition act (x of 1937). but this in my opinion would not vitiate the trial. further, it has not been shown how the accused has been prejudiced. section 4(1) (j) reads whoever consumes or buys liquor or any intoxicating drug' and section 4-a reads 'whoever is found in a state of intoxication in any public place.5. whether the accused is charged under section 4-a or under section 4(1) (j) it does not make any difference. section 4-a is in a sense a graver offence, viz., that of being in a state of intoxication whereas section 4(1) (j) is a lesser offence, viz., the buying of liquor or any intoxicating, drug. this contention therefore fails. the other argument relates to the question of evidence. usually in revision i am reluctant to go into the question of evidence but as the learned counsel insisted that there was no evidence at all i allowed him to take me through the evidence. after going through it i find sufficient force in the contention of the learned counsel for the petitioner. the case of the prosecution is that the accused was found in a drunken state and later on found to have consumed arrack according to the certificate issued by the lady doctor, p.w. 2. arrack admittedly is a liquor and is a prohibited drug. it has to be seen whether the prosecution has succeeded in proving that the accused consumed arrack. only two witnesses have been examined on behalf of. the prosecution. p.w. 1 is the sub-inspector of police, gudivada, who first found the accused in a drunken state. he deposed that the breath of the accused was smelling of arrack. in cross-examination he says he does not know the difference between the smell of arrack and the smell of medicine containing alcohol. he states further that he did not write in the first entry that the accused smelt of arrack and he does not know where the accused drank or what he drank. on further cross-examination he says he did not ask the accused as to where he drank, and that he did not record any statement of the accused. the second witness examined is the lady doctor, p.w. 2, who states that the breath of the accused was smelling of arrack. in cross-examination she says it b. g. phos is taken there is possibility for the smell to come if that tonic contains sufficient percentage of alcohol. she further states that she did not examine the stomach contents of the accused, or his blood or urine because she was convinced that the smell was of arrack.6. it would follow from the above that it is only from the smell that it was assumed that the accused had consumed arrack. there is no other evidence. the question that arises is whether in the absence of any direct evidence such an inference could possibly be drawn from the smell. the burden is on the prosecution to prove that alcohol of which the accused was smelling is such that it came within the category of prohibited drugs. when the accused is not normal it has to be proved that what he consumed must have been consumed without a permit. in glaister's 'medical jurisprudence and toxicology', 9th edn,, at p. 626, we find7 the followingthe breath in most cases will smell of alcohol and it should be noted whether the odour is that of fresh or stale alcohol. generally speaking it is not possible to state with certainty the nature of the alcohol taken as judged by odour of the breath.snyder in his 'homicide investigation', at p. 272 states;reliance on the smell of liquor in the breath is lull of pitfalls, due to the fact that cheap wine and beer generally produce a much more offensive breath than liquor of much higher alcoholic content.similar question had arisen in the case of angamuthu, in re, 1955-1 mad lj 473 (a). it was also a case under section 4(1) (j) of the madras prohibition act. in that case ramaswamy, j., observed:in regard to consumption of liquor the only practicable method in this country now open to the prosecuting agency is to find out whether a subject's breath smells of alcohol and taking into consideration that the smell of alcohol might be simulated by consumption of other articles like old sugar, the doctor should not be content with noting that the accused smells of liquor but also note whether the unmistakable characteristic odour is that of arrack or toddy or other distinctive grain alcohol. it will only be fair to the accused, if the doctor considers that his breath is smelling of alcohol, to give him an opportunity to explain whether it was due to his having taken any medicated permissible preparation containing alcohol like arishta or asava. the chemical examination of the blood and the urine of the subject and the methods of such chemical examination are described in the following standard text-books (indian) lyon's 'medical jurisprudence for india', 10th edn., (1953), thacker spink and co., calcutta by lt. col. greval, pp. 714-715 and mody's 'medical jurisprudence and toxicology', 10th edn., (1952).in the light of these if i were to read the statement of the doctor i find that she has herself admitted that she did not examine the stomach contents or the blood or the urine. in the absence of such a test and the fact that b. g. phos contains alcohol as deposed to by d.w. 2 and admitted by p.w. 2 sufficient doubt is created as to what p.w. 2 has deposed is correct and it is not safe to base conviction on mere suspicion.7. the revision is therefore allowed. the conviction and sentence passed on the petitioner are set aside and the fine if paid should be returned to the petitioner, g.m.j. revision allowed.

Judgment:
ORDER

Manohar Pershad, J.

1. This is a revision on behalf of the accused against the judgment of the Sub-Divisional Magistrate, Gudivada, dismissing his appeal and confirming the order of the Stationary Sub-Magistrate, Gudivada, dated 4-8-1955, holding the accused guilty under Section 4(1) (j) of the Madras Prohibition Act X of 1937 and sentencing him under Section 245, Criminal Procedure Code, to pay a fine of Rs. 50 and in default to undergo rigorous imprisonment for a period of six weeks.

2. The brief facts are that the Station Officer, Gudivada, filed a charge-sheet against the petitioner for an offence under Section 4(1) (j) of the Madras Prohibition Act X of 1937, alleging that on 13-5-1955 at about 10-30 p.m., he was found on a public high road near Gowri Shankar Cinema Hall in a state of drunkenness. He was sent to the Government Medical Officer who issued a certificate of drunkenness. The accused denied the offence and stated that the Circle Inspector and the Sub-Inspector of Police bore grudge against him and have filed a false case against him due to the influence of Shri Anugrah, formerly Circle Inspector (now under suspension) against whom he deposed in. an enquiry before the Tribunal and also due to the fact that he sent up a petition to the District Superintendent of Police against them. The prosecution examined 2 witnesses. In defence the accused produced two witnesses. The learned Sub-Magistrate on the evidence held that the accused is guilty and sentenced him to the punishment as aforesaid. On appeal the judgment of the Sub-Magistrate was confirmed. Hence this revision.

3. Shri Bhima Raju, learned Counsel for the petitioner, argued first that the charge-sheet and the examination of the accused would reveal an offence under Section 4-A of the Madras Prohibition Act X of 1937 whereas the accused has been convicted under Section 4(1) (j) of the Act which was illegal and improper. The second contention advanced is that there is absolutely no evidence in the case to establish the guilt of the accused.

4. On behalf of the respondent it is contended that even though the charge-sheet and the examination of the accused was under Section 4-A of the Act, and the accused has been convicted under Section 4(l)(.i) that would not be improper and would not help the accused unless prejudice is shown. It is next contended that there is sufficient evidence on record to establish the guilt of the accused, and both the Courts have held the accused guilty and there Is no reason why this Court should come to a different conclusion. In so far as the first point is concerned it is no doubt true that the charge-sheet and the examination of the accused do reveal an offence under Section 4-A and the accused has been convicted under Section 4(1) (j) of the Madras Prohibition Act (X of 1937). But this in my opinion would not vitiate the trial. Further, it has not been shown how the accused has been prejudiced. Section 4(1) (j) reads whoever consumes or buys liquor or any intoxicating drug' and Section 4-A reads 'whoever is found in a state of intoxication in any public place.

5. Whether the accused is charged under Section 4-A or under Section 4(1) (j) it does not make any difference. Section 4-A is in a sense a graver offence, viz., that of being in a state of intoxication whereas Section 4(1) (j) is a lesser offence, viz., the buying of liquor or any intoxicating, drug. This contention therefore fails. The other argument relates to the question of evidence. Usually in revision I am reluctant to go into the question of evidence but as the learned Counsel insisted that there was no evidence at all I allowed him to take me through the evidence. After going through it I find sufficient force in the contention of the learned Counsel for the petitioner. The case of the prosecution is that the accused was found in a drunken state and later on found to have consumed arrack according to the certificate issued by the lady doctor, P.W. 2. Arrack admittedly is a liquor and is a prohibited drug. It has to be seen whether the prosecution has succeeded in proving that the accused consumed arrack. Only two witnesses have been examined on behalf of. the prosecution. P.W. 1 is the Sub-Inspector of Police, Gudivada, who first found the accused in a drunken state. He deposed that the breath of the accused was smelling of arrack. In cross-examination he says he does not know the difference between the smell of arrack and the smell of medicine containing alcohol. He states further that he did not write in the first entry that the accused smelt of arrack and he does not know where the accused drank or what he drank. On further cross-examination he says he did not ask the accused as to where he drank, and that he did not record any statement of the accused. The second witness examined is the lady doctor, P.W. 2, who states that the breath of the accused was smelling of arrack. In cross-examination she says it B. G. Phos is taken there is possibility for the smell to come if that tonic contains sufficient percentage of alcohol. She further states that she did not examine the stomach contents of the accused, or his blood or urine because she was convinced that the smell was of arrack.

6. It would follow from the above that it is only from the smell that it was assumed that the accused had consumed arrack. There is no other evidence. The question that arises is whether in the absence of any direct evidence such an inference could possibly be drawn from the smell. The burden is on the prosecution to prove that alcohol of which the accused was smelling is such that it came within the category of prohibited drugs. When the accused is not normal it has to be proved that what he consumed must have been consumed without a permit. In Glaister's 'Medical Jurisprudence and Toxicology', 9th Edn,, at p. 626, we find7 the following

The breath in most cases will smell of alcohol and it should be noted whether the odour is that of fresh or stale alcohol. Generally speaking it is not possible to state with certainty the nature of the alcohol taken as judged by odour of the breath.

Snyder in his 'Homicide Investigation', at p. 272 states;

Reliance on the smell of liquor in the breath is lull of pitfalls, due to the fact that cheap wine and beer generally produce a much more offensive breath than liquor of much higher alcoholic content.

Similar question had arisen in the case of Angamuthu, In re, 1955-1 Mad LJ 473 (A). It was also a case under Section 4(1) (j) of the Madras Prohibition Act. In that case Ramaswamy, J., observed:

In regard to consumption of liquor the only practicable method in this country now open to the prosecuting agency is to find out whether a subject's breath smells of alcohol and taking into consideration that the smell of alcohol might be simulated by consumption of other articles like old sugar, the doctor should not be content with noting that the accused smells of liquor but also note whether the unmistakable characteristic odour is that of arrack or toddy or other distinctive grain alcohol. It will only be fair to the accused, if the doctor considers that his breath is smelling of alcohol, to give him an opportunity to explain whether it was due to his having taken any medicated permissible preparation containing alcohol like arishta or asava. The chemical examination of the blood and the urine of the subject and the methods of such chemical examination are described in the following standard text-books (Indian) Lyon's 'Medical Jurisprudence for India', 10th Edn., (1953), Thacker Spink and Co., Calcutta by Lt. Col. Greval, pp. 714-715 and Mody's 'Medical Jurisprudence and Toxicology', 10th Edn., (1952).

In the light of these if I were to read the statement of the doctor I find that she has herself admitted that she did not examine the stomach contents or the blood or the urine. In the absence of such a test and the fact that B. G. Phos contains alcohol as deposed to by D.W. 2 and admitted by P.W. 2 sufficient doubt is created as to what P.W. 2 has deposed is correct and it is not safe to base conviction on mere suspicion.

7. The revision is therefore allowed. The conviction and sentence passed on the petitioner are set aside and the fine if paid should be returned to the petitioner, G.M.J. Revision allowed.