Iffco Tokio General Insurance Company Ltd. vs Pearl Beverages Ltd.

IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. … APPELLANT(S)

VERSUS

PEARL BEVERAGES LTD. … RESPONDENT (S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. An accident, which took place on 22.11.2007

involving a car (a Porsche) belonging to the

respondent-Company, which was insured with the

appellant, has resulted in this appeal against

the Order by the National Consumer Disputes Signature Not Verified Digitally signed by Dr.

Redressal Commission (‘NCDRC’ for short). The Mukesh Nasa Date: 2021.04.12 15:46:55 IST Reason:

car was completely damaged. The appellant 1 repudiated the claim by the respondent. The

question which arises in this Appeal is, whether

the NCDRC is correct in holding that the

appellant is not entitled to invoke the shield

of Clause (2c) of the Contract of Insurance,

under which, it was not liable, if the person

driving the vehicle, was under the influence of

intoxicating liquor, or drugs. The State

Commission rejected the complaint of the

respondent finding that there was evidence to

show that the person who drove the vehicle, had

consumed liquor and was under the influence of

liquor. The NCDRC, by the impugned Order, on the

other hand, found that there was no material to

establish that the driver of the vehicle was

under the influence of intoxicating liquor

within the meaning of the Exclusion Clause, as

aforesaid.

2

3. The Clause in controversy reads as follows:

“(2)The Company shall not be liable to make any payment in respect of:

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

4. The vehicle was driven by one Shri Aman

Bangia. Following the accident, a First

Information Report came to be lodged. The

accident took place in the early morning at about

02.25 a.m. on 22.12.2007. The contents of the

FIR, inter alia, read as follows:

“Statement of Ct. Anand Kumar No.1226/ND, P.S. Tilak, New Delhi, stated that I am posted at Police Station Tilak Marg as constable and today on 21/22.12.07 I and constable Brijesh No.1163/DHG, Duty M/Cy. DL-1SN-8288, P.S. Tilak Marg

3 were on patrolling. At about 2.25 when I, on my above M/cy., was reached near C-Hexagan Dr. Zakir Hussain Marg while patrolling, then I see that the driver of Car No.DL-1CJ-3577 came from Nizamuddin side towards Zakir Hussain Marg, India Gate in a very rash, negligent and at a very high speed and due to very high speed, his car was got out of control and hit at a massive force with the footpath of C- Hexagan Dr. Zakir Hussain Marg Children park India Gate, Electric Pole and wall of children Park and got overturned and the car was get fired. I alongwith my associate Home Guard brought the driver whose name and address Aman Bangia S/o Sh. S.K. Bangia R/o 42-A, Pkt. C Siddarth Extn. New Delhi-14 and his associates Richi Ram Jaipuria S/o Sh. C.K. Jaipuria R/o H.No.08, Prithvi Raj Road, Delhi out of the said car after great efforts and reported about the incident to Wireless Opp. D-56 of Police Station through wireless. After that the vehicles of Fire Brigade, PCR Van and Add/SHO van you were came on the spot. The accident has been occurred due to rash and negligent driving by the driver for which the government property has been damaged. Legal action be taken against the driver. You have recorded my statement on the spot, read over and heard which is true and correct. Sd/- English Anand Kumar Const. No.1226/ND Dt. 22/12.07 Attested SI Kukhitar Singh P.S. Tilak

4 Mark, New Delhi Dt. 22.12.07. Sir Duty Officer Police Station Tilak Marg, New Delhi it is submitted that I SI after receipt of DD No.36A alongwith Ct. Vinod No.2098/ND reached at the place of accident i.e. C- Hexagan Dr. Zakir Hussain Marg where the Car No.DL-1CJ-3577 was got burnt. Where the Add./SHO and vehicles of Fire Brigade were also present for controlling the fire. Then we came to know that the PCR Van has taken away the accused at RML Hospital. I SI and Ct. Vinod Kumar No.2093/ ND left the spot and departed for the Hospital to know the facts, where I received MLC NO.62213/07 of Ruchi Ram Jai Puria S/o C.K. Jai Puria R/o H.N0.08, Prithvi Rai Road, Delhi age 27½ yrs. upon which the doctors have reported/opined "no evidence of any fresh injury for medical examination and smell of Breath Alcohal (+)" and MLC No.62214/07 of Aman Bangia S/o Sh. S.K. Bangia R/o 42-A, Pkt.-C Siddarth Extn., New Delhi- 14 age 27 years. upon which the doctors have reported/ mentioned/opined "no evidence of any fresh injury for medical examination and smell of Breath Alcohal (+). I SI reached at the spot of accident where Ct. Anand Parkash No.1226/ND, P.S. Tilak Mark, New Delhi had come and got recorded his statement and from the MLC and place of occurrence a case U/s 279/427 of IPC and U/s 185 of M.V. Act have been committed to be found, therefore the Tehrir has been handed

5 over to Ct. Vinod Kumar No.2098/ND.

The number of case would be informed after registering the case.” [page 39 to 42 of paper book]

5. As far as the case under Section 279 of the

IPC, it culminated in an Order dated 27.8.2011

passed on plea bargaining by the driver of the

car and it reads as follows:

“Accused Aman Bangia with counsel Sh. Rahul Arora.

Heard on the point of notice. Record Perused. A prima facie case U/sec 279 IPC is disclosed against the accused. So accordingly notice for the offence U/sec. 279 IPC is separately framed against the accused to which accused has voluntary pleaded guilty, but he still insists to plead guilty. Since the accused has voluntarily pleaded guilty, so he is convicted for the offence U/sec. 279 IPC.

Heard on the point of sentence. The accused prayed for taking lenient view by pleading that this is his first offence. He has undertaken to drive cautiously in future. So, in view of the facts and circumstances of the case, the accused is sentenced to pay fine of Rs.1,000/- in default of S.I. 6 of 10 days. Fine deposited vide receipt No. 866834. File be consigned to Record Room.”

6. The respondent after exchange of notices,

filed the complaint under Section 17 of the

Consumer Protection Act, 1986 in 2009.

Affidavit evidence of the Company Secretary of

the respondent (PW1), the driver of the car (PW2)

and the person who travelled with the driver in

the car (PW3), was tendered. The FIR dated

22.12.2007, which was under Section 279/427 of

the IPC and Section 185 of the Motor Vehicles

Act, 1988, the medico-legal case sheet of

Dr. Ram Manohar Lohia Hospital, were among the

documents produced by the respondent. The Order,

which we have referred to under Section 279 of

the IPC, was also later produced. The

appellant’s Vice President gave affidavit

evidence. The Investigator also gave his

affidavit evidence affirming his reports. 7 PLEADINGS

7. In the complaint filed under Section 17 of

the Consumer Protection Act, 1986, we may notice

the allegations, which are relevant:

The Exclusion Clause is not applicable

as the person driving the vehicle had not

consumed any alcohol. Further assuming that

he had consumed alcohol, the case would not

fall under the Exclusion Clause as he was,

in any case, not intoxicated. Although the

Police had lodged FIR under Section 185 of

the MV Act besides Sections 279/427 of the

IPC, no charge-sheet has been filed against

the driver till date, meaning thereby, that

the Police after investigating the case,

could not find any evidence to prosecute the

driver for any of the offences. It is the

further case of the respondent, inter alia,

that the respondent had informed the

8 appellant that the MLC only says ‘smell of

alcohol’ and this does not imply or mean that

the driver was under the influence of

intoxicating liquor. It is also pleaded that

in the Legal Notice, it was specifically

noted that the driver had not consumed

liquor. Section 185 of the MV Act was invoked

to plead that unless a certain percentage of

alcohol is found a person cannot be

prosecuted for the offence of drunken

driving. The law does not prohibit driving

after consuming liquor. No test was

performed in regard to the person driving to

establish that he was under the influence of

drugs or intoxicating liquor, as provided

under Section 185 of the MV Act or the

Exclusion Clause.

It is also pleaded that Intoxication

means ‘elate or excite to the degree of

9 frenzy’ which means in simple meaning that

the person has no control over his senses.

8. In the reply, filed by the appellant, it is

contended, inter alia, as follows. There is

official record of the person driving having

been found to have consumed alcohol and driving

the vehicle in that condition. The respondent

got the matter investigated through experienced

Investigators and they have collected relevant

information and records with their finding that

the driver was under the influence of alcohol.

The seriousness of the accident itself showed

that the driver was reckless in driving due to

the consumption of the alcohol.

9. Respondent filed a Rejoinder Affidavit

reiterating the allegations in the complaint.

10 THE EVIDENCE

10. In the Affidavit of Evidence given by the

Company Secretary (PW1,) on behalf of the

respondent, the case set up about the law not

prohibiting driving after consuming liquor and

that what is prohibited is that the percentage

of liquor should not exceed 30 mg per 100 ml of

blood, is reiterated. The driver of the vehicle

(PW2), in his Affidavit has deposed that he was

neither under the influence of intoxicating

liquor or drugs at the time of the accident.

That he was in his full senses and capable of

exercising full control over the car, at the

time of the accident. His co-passenger was also

not under such influence. No test was performed.

He has further deposed that the FIR 453 of 2007

against him under Section 185 of the MV Act and

Sections 279/427 of the IPC was falsely

registered. The case was still pending. He was

11 certain to be acquitted in the said case. The

Affidavit Evidence of the co-passenger (PW3) is

to the effect that he was not under the influence

of intoxicating liquor or drugs. He has also

supported PW2 that PW2 was able to exercise

proper control over the vehicle and he was not

under the influence of liquor or drugs at the

time of the accident. The Police Officer and

Hospital Doctor did not find them under the

influence of intoxicating liquor and no test was

performed. Apart from the appellant’s Vice

President, the Investigator of the appellant

gave affidavit evidence when he vouchsafed for

the correctness of his reports.

THE ORDER OF THE STATE COMMISSION

11. The State Commission finds, inter alia, as

follows:

The date and time of the occurrence was

22.12.2007 at 02.25 A.M.. The official

12 record of the driver goes to show that he

was driving the vehicle after consuming

alcohol. Whether he was completely or

partially under the influence of alcohol was

a different matter. There is not a slightest

doubt that the driver drove the vehicle after

consuming alcohol. The manner and intensity

with which the accident had occurred and its

overall impact goes to prove the said facts.

[The finding is to be appreciated in the

light of the statements in the FIR about the

car being driven rashly and negligently and

at a very high speed. It collided with an

electric pole and the wall of the Children

Park as a result of which the car turned

upside down/overturned and also caught

fire.] Adverting to the Judgment of this

Court in Bachubhai Hassanalli Karyani v.

13 State of Maharashtra1, it was found as

follows:

The degree of proof required in a

criminal case is much higher than the

evidence required in civil proceedings,

which are decided on the principle of

Preponderance of the Evidence. The driver

has confessed to his guilt under Section 279.

The result of the other two offences

(Sections 427 of the IPC and 185 of the MV

Act was not made available). The State

Commission also found it fit to apply the

principle of res ipsa loquitur, having

regard to the circumstances surrounding the

accident. The proceedings under the Consumer

Protection Act, being summary in nature, the

Commission was not required to go into the

technicalities of Criminal or Civil

1 (1971) 3 SCC 930 14 Jurisprudence. The impact of the accident

was such that the vehicle turned upside down

and caught fire. The vehicle of the Fire

Brigade had to be pressed into service. The

vehicle turned into a total wreck. The State

Commission also found that there appeared to

be a breach of Condition 4 of the Policy of

Insurance (“The insured shall take all

reasonable steps, to safeguard the loss of

damage”). It is found that at the time of

the accident, the vehicle was being driven

rashly and negligently and the driver had

consumed liquor, which by itself was in

violation of the Policy conditions.

THE IMPUGNED ORDER OF THE NCDRC

12. The NCDRC, finds as follows:

“4. The only question which arises for consideration in this case is as to whether the driver of the vehicle was under influence of intoxicating liquor or drugs at the time the vehicle

15 met with an accident and got extensively damaged. Though it has come on record that the driver of the vehicle had taken some liquor before he drove the vehicle, the said record being available in the form of statement of a policeman who stated that the smell of the liquor was coming from the mouth of the driver, there is absolutely no evidence to prove the quantity of liquor which he had consumed before driving the vehicle. Admittedly, no medical examination of the driver was got conducted in order to ascertain the quantity of the alcohol in his blood at the time the vehicle met with an accident. In terms of Section 185 of the Motor Vehicles Act, a person is liable to punishment if he is found while driving, alcohol exceeding 30 mg per hundred ml of blood and the level of alcohol is required to be verified by way of test done by use of a breath synthesiser. Admittedly, no such test was conducted and, therefore, no evidence was available before the State Commission or even to the insurer to prove that the driver had alcohol exceeding 30 mg per hundred ml of the blood, at the time the vehicle met with an accident. Therefore, the insurer has failed to prove that the insured had committed a breach of the terms of the policy, the driver being under influence of liquor.”

16

13. Thereafter, it referred to its Order in Royal

Sundaram General Insurance Company Limited v.

Davubhai Babubhai Ravalia in Revision Petition

No. 1296 of 2018 dated 04.09.2018, which reads

as follows:

“6. The next question which arises for consideration is as to whether on account of the above referred quantity of alcohol having found in the blood of the driver, he can be said to be under influence of intoxicating liquor or not. This issue came up for consideration of this Commission in Lakshmi Rohit Ahuja Vs. SBI Life Insurance Co. Ltd., RP No.3249 of 2015, decided on 28.04.2016 and the following view was taken:

6. As per the FIR, the vehicle was being driven by the deceased at the time it met with an accident. As per the chemical analysis report in respect of the viscera of the stomach and intestine of the deceased, there was 120 ml of Ethyl alcohol per 100 gm in the blood of the deceased. Hence the question which arises for consideration is as to whether a person having 120 mg of alcohol per 100 ml of his blood can be said to be under

17 influence of intoxicating liquor. This question came up for consideration of this Commission in Consumer Complaint No. 401 of 2014 Baby Apoorva Rai Vs. New India Assurance Co. Ltd. & Anr. Decided on 03.9.2015 and the following view was taken:

3. There is no direct evidence of the deceased being under influence of intoxicating liquor at the time he got drowned in the swimming pool. The only evidence relied upon the insurance company to substantiate the plea that he was under the influence of intoxicating liquor at the time he died, is the report of the laboratory reporting presence of 103.14 mg of ethyl alcohol per 100 ml of the blood of the deceased.

4. Relying upon Modi’s Medical Jurisprudence and Toxicology, 24th Edition, the learned counsel for the complainants submitted that the presence of 103.14 mg/100 ml of the blood does not lead to the conclusion that the deceased was under the influence of intoxicating liquor. He relied upon the

18 following extract from the above-referred text book:

“It is generally believed that a person with a concentration of 0.1 per cent alcohol in the blood appears to be gay and vivacious, and those with a concentration of 0.15 per cent alcohol in the blood are regarded as fit to drive a motor vehicle. This concentration of alcohol in the blood is regarded as a presumptive limit of safety, and may result from the rapid consumption of 8 ounces of whisky of 4 to 5 pints of beer.

Alcohol acts differently on different individuals and also on the same individual at different times. The action depends mostly on the environment and temperature of the individuals and upon the degree of dilution of the alcohol consumed. The habitual drinker usually shows fewer effects from the same dose of alcohol. Barbiturates, benzodiazepines, antihistamines, tranquillizers, chlorpromazine and insulin, potentiate the action of alcohol, while epileptics or persons who have

19 suffered from a head injury may show an increased effect to a small quantity of alcohol”.

It would thus be seen that in the opinion of the Author, the percentage of alcohol in the blood would be 0.2% in case, the quantity of alcohol per 100 ml of blood is 200 mg. Thus, a person who has 200 mg alcohol per 100 ml. of his blood can be said to be moderate intoxicated, if we go by the above referred opinion. A person with a concentration of 0.15% alcohol in the blood is regarded to be fit to drive a motor vehicle. 0.15% of alcohol in the blood comes only if he has 150 mg of alcohol per 100 ml.

of his blood.

5. The learned counsel for the insurance company, however, relied upon an Article titled “While Under the Influence of Intoxicating Liquor” written by W.W. Thornton and published on 11.01.1928 in Indiana Law Journal. The question considered in the above referred Article was as to what condition must a driver of a motor vehicle be in to be “under the influence of

20 intoxicating liquor or narcotic drugs”? The Author extracted the following observations from the judicial pronouncements considered by him:

“A person is drunk in legal sense when he is so far under the influence of intoxicating liquors that his nerves are visibly excited or his judgment impaired by the liquor”.

“Intoxicated condition” means that if the person “were in such a state that he was incapable of giving the attention to what he was doing, which a man of prudent and reasonable intelligence would give”.

“When it appears that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inhibited condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when they or similar symptoms result from the use of liquors and are manifest, then the person is ‘intoxicated’. It 21 is not necessary that the person would be so-called ‘dead-drunk’ or hopelessly intoxicated. It is enough that his sense are obviously destroyed or distracted by the use of intoxicating liquors within the meaning of the statute authorizing recovery of damages against a saloon keeper who sells liquors to an intoxicated person”.

“Under the law a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts, or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect. A man to that extent under the influence of liquor that parties coming in contact with him, or seeing him, would readily know that he was under the influence of liquor, by his conduct or his words or his movements, would be sufficient to show that such party was intoxicated”.

Whenever a man is under the influence of liquor so as not to be entirely at himself, he

22 is intoxicated; although he can walk straight’ although he may attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk, yet if he is under the influence of liquor so as not to be at himself, so as to be excited from it, and not to possess that clearness of intellect and that control of himself that he otherwise would have, he is intoxicated”.

It would thus be seen that the Article relied upon by the learned counsel for the opposite party is not based on the quantity of the alcohol found in the blood of a person. This Article does not go into the question as to how much quantity of the ethyl alcohol in the blood of a person can lead to the inference that he was under

influence of intoxicating liquor.

6. The learned counsel for the opposite party has also relied upon the following information in Lyon’s Medical Jurisprudence and Toxicology:

“The American Medical Association and the National Safety Council of USA have 23 adopted the following policy statement with regard to intoxication – “Blood alcohol of 0.10% can be accepted as prima facie evidence of alcoholic intoxication, recognizing that many individuals are under the influence in the 0.05 to 0.10% range.” The Uniform Vehicle Code of USA 1962 has as its standards: “Blood alcohol of 0.05% or less raises a presumption that the subject was not under the influence of alcoholic beverage; blood alcohol in excess of 0.05% but less than 0.10% raises no presumption of intoxication or soberness; blood alcohol of 0.10% or more raises the presumption that the subject was under the influence of alcoholic beverage”.

In different countries the prescribed limit for permissible blood alcohol is as follows:

India - 30 mg%

USA - 100 mg%

Australia - 40 mg%

24 Terminologies used in medico-legal context: The following terminologies are employed in medico-legal cases. Their exact meaning should be understood.

• Sober – blood alcohol

concentration of less than 10 mg% • Drinking – Blood alcohol concentration of 20-70 mg% • Under the influence of alcohol – blood alcohol concentration of 80-100 mg% • Drunk or intoxicated – blood alcohol concentration of 150-300 mg% • Coma and death – blood alcohol concentration in excess of 400 mg%”.

As per the above referred text book, a person is under the influence of alcohol when the blood alcohol concentration is 80-100mg/100 ml of the blood. The above referred text book also shows that the USA, which is most liberal, as far as the quantity of alcohol which a person can consume at the time of driving also allows only upto 100 mg alcohol/100 ml of the blood. It further shows that if the alcohol content is .1%, it would be the prima facie evidence of alcoholic

25 intoxication. Blood alcohol percentage of .1% comes when the quantity of ethyl alcohol in the blood is 100 mg/100 ml of the blood. Thus, if we go by the text book of Modi, a person, who has consumed less than 150 mg of alcohol per 100 ml. of his blood, cannot be said to be under influence of intoxication, whereas as per the text book of Lyon’s, a person having 100 mg or more per 100 ml of blood will be said to be under influence of alcohol.

7. In a Manual for Physicians in National Drug Dependence Treatment Centre, All India Institute of Medical Sciences, New Delhi the effects of alcohol has been stated as under:

BAC Effects mg/dl Euphoria, feeling of relaxation and talking freely, clumsy movement <80 of hands and legs, reduced alertness but believes himself to be alert.

26 Noisy, moody, impaired judgement, impaired driving ability <80 Electroencephalographic changes begin to appear, Blurred vision, unsteady gait, gross motor in- 100-200 coordination, slurred speech, aggressive, quarrelsome, talking loudly. Amnesia for the 200-300 experience – blackout. 300-350 Coma May cause or contribute 355-600 to death

It would thus be seen that

in terms of the above referred compilation issued by the AIIMS, if the quantity of alcohol in the blood is 100 or more mg. /dl (100 ml), it leads to vision getting blurred, the gait become unsteady and the coordination gets affected. These changes, in our opinion, can occur only when someone is already under the influence of alcohol by that time. The judgment of the drinker as well as his driving ability gets affected even where the quantity of alcohol in the blood is 80 mg or more per 100 ml of the blood.

8. The learned counsel for the complainant has relied upon the decision of this Commission in LIC

27 of India & Anr. Vs. Ranjit Kaur III (2011) CPJ 232 (NC), where the quantity of alcohol in the blood was found to be 86.2 mg./100 ml of blood. Ruling in favour of the complainant, this Commission inter-alia observed as under:

“It has also come in evidence that this by itself is not adequate proof that the deceased was intoxicated at the time of his death. As rightly observed by the learned Fora below, the specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at that level and, therefore, mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication. Apart from this, there is also no evidence that there was a nexus between the death caused by electric shock and consumption of liquor”.

9. The learned counsel for the opposite party, on the other hand has relied upon the decision of this Commission in LIC of India & Anr. Vs. Priyanka Singh First Appeal No.368 of 2014 decided on 14.10.2005. In the above referred case, 109.92 mg of ethyl alcohol per 100 ml of blood was found in

28 the body of the insured. Dismissing the complaint, this Commission, inter-

alia observed and held as under:

“As per the medical literature, “HWV COX ‘Medical Jurisprudence and Toxicology’, Seventh Edition PC Dikshit” brought on record, there are three stages of alcoholic intoxication, which reads as follows:

“Stage of Excitement (50 to 150 mg percent)

Feeling of well-being slight excitement, increased confidence, lack of self-control are usually seen. There is a heightened sexual desire, but performance is reduced. The visual acuity is reduced. It also alters time and space orientation. There is poor judgment and mental concentration is retarded”.

The learned counsel for the complainant/respondent in the above referred case relied upon the text book of ‘Biochemistry’ as per which quantity of 50-150 mg was described as Pre-intoxication in which there are signs of instability, decreased neuromuscular coordination and the judgment and control required for

29 quick responses such as car driving are impaired. Whereas in intoxicating stage (150-300 mg/dl) speech is impaired and motor skills are incoordinated. However, relying upon the Medical Literature produced by the appellant Corporation, this Commission held that the deceased was under intoxication as a result of consumption of alcohol found in his blood sample, making him ineligible to the benefits of double accident policy. It would be pertinent to note that in the above referred case, no amount was payable in case the insured was under influence of intoxicating liquor drug or narcotics.

10. Considering the opinion expressed in the Manual issued by All India Institute of Medical Sciences, which is the premier most medical Institution in this Country, we are not inclined to accept the opinion expressed in Modi’s Medical Jurisprudence and Toxicology, particularly when the opinion of AIIMS also find corroboration from the opinion expressed in Lyon’s Medical Jurisprudence and Toxicology. Though, this is not a case of the death while driving after consuming alcohol, the maximum quantity of alcohol

30 permitted by various countries for a person to drive a motor vehicle cannot be said to be an altogether irrelevant since the purpose of prohibiting driving after consuming liquor beyond the prescribed quantity is to ensure that the driver does not commit an accident on account of the effect of liquor on him. The purpose of the insurer behind excluding the cases of accident when the insured is under influence of intoxicating liquor is to ensure that the consumption of the liquor does not lead or contribute to happening of the accident in which the insured dies or injured. Therefore, consumption of liquor beyond a safe limit must necessarily disqualify the insured from getting the benefits of the insurance policy taken by him. The quantity of alcohol allowed to the driver of a motor vehicle is not more than 100 mg/100 ml of the blood in any country, including USA though, in our country it is only 30 mg/100 ml of blood. Therefore, in our opinion, if a person is found to have consumed more than 103.14 mg of alcohol/100 ml of his blood, which is position in the case before us, it would be reasonable to say that he was under the influence of the intoxicating liquor at the time he died or got injured. We are

31 fortified in taking this view from the decision of this Commission in Priyanka Singh (supra). As far as the decision of this Commission in Ranjit Kaur (supra) is concerned, we find that the quantity of alcohol in the blood of the insured in that case was of 86.2 mg, which was much less than quantity of the alcohol found in the blood of the deceased Surya Kiran.

Though in Ranjit Kaur (supra), this Commission, inter-

alia observed that there was no nexus between the death caused by electric shock in consumption of liquor, the aforesaid observation is only an obiter and does not constitute the ratio decidendi of the case. In fact, the aforesaid obiter is contrary to the express terms of the insurance policy which absolves the insurer of its obligation under the policy, in case the insured was under the influence of the intoxicating liquor at the time of the accident and the policy does not require any nexus to be shown between the case of accident and the consumption of liquor.”

14. It was further found that in the case of

Ranjit Kaur (supra), which is referred to, the 32 quantity of liquor in the blood sample was found

to be 86.2 mg and it was still found that the

driver was not intoxicated. In the present case,

it is found that there is no evidence regarding

the quantity of liquor in the blood of the

driver. The onus was upon the appellant-Insurer

to prove that the quantity of alcohol was at

least 30 mg and, therefore, exceeded the limit

prescribed under Section 185 of the MV Act. The

NCDRC allowed the appeal and set aside the order

of the State Commission and directed the

appellant to assess the loss of the respondent

and to pay the amount at the rate of 9 per cent

per annum from the date of complaint within six

weeks of the date of assessment to the

respondent.

SUBMISSIONS OF PARTIES

15. We heard Shri Shivam Singh, learned Counsel

for the appellant and Shri Gopal

33 Sankarnarayanan, learned Senior Counsel for

respondent.

16. Shri Shivam Singh, learned Counsel,

contended that this is a clear case where

unimpeachable material in the form of official

records established that the car was being

driven by a person who was under the influence

of intoxicating liquor. The high speed and the

manner in which the accident occurred, viz., the

vehicle hitting against the pole, turning turtle

and further catching fire, along with the fact

that the FIR and the MLC indicating that the

driver smelt of the alcohol sufficed to attract

the Exclusion Clause and protect the appellant.

The impact of the accident, resulting in the car

becoming a complete wreck, is emphasised, to

point out that the circumstances existed which

entitled the appellant to extricate itself from

the huge financial burden in tune with a

34 specifically provided Exclusion Clause. He drew

our attention to the following decision in V.

Kishan Rao v. Nikhil Super Speciality Hospital

and another2. Therein, this Court held as

follows:

“13. Before the District Forum, on behalf of Respondent 1, it was argued that the complainant sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of the Evidence Act, 1872. The Forum overruled the objection, and in our view rightly, that complaints before the Consumer Fora are tried summarily and the Evidence Act in terms does not apply.

This Court held in Malay Kumar Ganguly v. Dr. Sukumar

Mukherjee [(2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299] that provisions of the Evidence Act are not applicable and the Fora under the Act are to follow the principles of natural justice (see para 43, p. 252 of the report).

17. The said decision was rendered in regard to

a complaint regarding medical negligence and the

2 (2010) 5 SCC 513 35 question which arose was, whether Expert

evidence was necessary to prove such medical

negligence. This Court also held as follows:

“50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

18. He further pointed out that the Court may

appreciate the nature of the case set up by the

driver of the vehicle. It is pointed out that it

was contended by the respondent that the vehicle

was not driven rashly and negligently. Yet, in

the criminal case, the driver pleaded guilty and

the sentence, as already noticed, came to be

pronounced by the Criminal Court. This, beyond

doubt, established that the case of the

respondent that car was not being driven in a

36 rash and negligent manner, was false. It clearly

probablised the case of the appellant that the

car was being driven rashly and negligently and

this is attributable only to the fact that the

driver was under the influence of intoxicating

liquor. The evidence in this regard is furnished

by the Report of a Police Officer (the FIR) and

further strengthened by the MLC. He further

complained that the NCDRC has completely erred

in holding that the burden was on the Insurer to

prove the quantity of alcohol in the blood of

the driver. He would point out the sheer

impossibly to fulfil such an obligation on the

Insurer. He would question the correctness of

the declaration.

19. Per contra, Shri Gopal Sankarnarayanan,

learned Senior Counsel for the respondent would,

in the first place, draw our attention to the

Report of the Investigator engaged by the

37 appellant. He would point out that the Report

would reveal that upon being informed, the

Investigator was very much at the scene in the

early morning and, still, no steps were taken to

ascertain the level of the alcohol in the blood

of the driver. This adequately counters the

apprehension about the impossibility for the

insurer to prove the level of alcohol. In this

regard, he drew our attention to the questions

put in the interrogatories and the answers which

have been received. As far as the conviction

under Section 279 of the IPC is concerned, he

would submit that it was only a case of plea

bargaining and, more importantly, it related to

rash and negligent driving under Section 279 of

the IPC. The offence, which is pertinent to the

controversial Clause, is the one contemplated

under Section 185 of the MV Act and it has not

been invoked/proved against the driver. In other

38 words, the attempt appears to be to contend that

at worst a case of rash or negligent driving may

be established, which is not the same as driving

under the influence of alcohol. He also sought

to draw support from the Judgment of this Court

in Bachubhai Hassanalli Karyani (supra). The

other case law appears to be mostly Orders passed

by the NCDRC itself and it appears to be on the

lines, indicated in the impugned Order itself,

as noticed by us. He further pointed out that

the car caught fire as the fuel tank of the car

is located in the front.

20. In Bachubhai Hassanalli Karyani (supra), the

Court was dealing with a case inter alia under

Section 117 of the Motor Vehicles Act, 1939.

This Court held as follows:

“4. The learned counsel contends that the heavy sentence has been imposed on the appellant because he was found to have been drunk on that 39 night. He says that Dr Kulkarni, who examined the appellant, based his conclusion merely on the facts that the appellant's breath was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. The doctor had admitted that a person, placed in the circumstances in which the appellant was put as a result of the accident, would be under a nervous strain and his gait might be unsteady. The doctor had also admitted that a person could smell of alcohol without being under the influence of drinking. No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis was produced by the prosecution.

5. It seems to us that on this evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred.”

FINDINGS

21. The expression “under the influence of

intoxicating liquor” does not appear to be of

recent origin in a Contract of Insurance. It has

been around for quite a while. In this regard,

40 we may notice the judgments of the English

Courts. In Mair (Administratrix) v. Railway

Passengers Assurance Co. (Limited)3, Lord

Coleridge, the Chief Justice made the following

observations, while dealing with the very same

words “under the influence of intoxicating

liquor”, and held as follows:

“… I should think, speaking only for myself, that the words “under the influence of intoxicating liquor” would be sufficiently satisfied by construing them to mean under such influence of intoxicating liquor as disturbs the balance of a man’s mind. There is a point up to which any stimulating liquor, with most people at least, possibly benefits, at any rate for the time, the exercise of the intellect. There is a point beyond which it certainly impedes – disturbs it. I concede that it is very difficult even in language – certainly in the English language – to ascertain

3 1877 37 L.T. 356 DC 41 with precision where that point is;

but it is enough to say that there is a point, and it seems to me these words would be satisfied when the influence of intoxicating liquor is found in point of fact to be such as to disturb the quiet and equable exercise of the intellectual faculties of the man who has taken the liquor. Of course, if I think there is evidence to satisfy me that the intoxication in this case was enough to have gone to the point of contributing to the accident, it follows a fortiori that it had arrived at the disturbing point which I think, speaking for myself, would be enough to satisfy the words of the proviso.…”

22. This, in fact, was not a case where a vehicle

was being driven and it was alleged that the

driver was under the influence of alcohol. On

the other hand, it was a case where the deceased

had been drinking for a while. In this

condition he rudely accosted a woman and tried

to put his arms around her. He was knocked down

42 by a man who was in the company of the woman.

He died as a result of the injury. The insurer

sought protection under a clause which excluded

liability if the assured was under the influence

of intoxication of liquor.

23. Nearly a century later, in Louden v. British

Merchants Insurance Company Limited4, the

plaintiff, claimed under a policy, in regard to

a bodily injury suffered by her husband. The

Insurer invoked the Exclusion Clause, which

again protected it in a case where the person

was under the influence of drugs or intoxicating

liquor. It was a case of a motor vehicle

accident, which proved fatal for the

plaintiff’s husband. One of the contentions

raised by the plaintiff was that the words

“sustained whilst under the influence of drugs

or intoxicating liquor, were so uncertain as to

4 [1961] WLR 798 QB 43 their meaning that no effect should be given to

them”. Lawton,J., while dealing with this

contention drew support from Mair

(Administratrix) (supra), and what is more,

reiterated the principles laid down therein. We

may advert to the following:

“… The words used in the exemption clause of the policy before me have probably been used for many years in policies giving assurance against injury. Counsel for the defendants referred to Mair v. Railway Passengers Assurance Co. Ltd. The policy in that case provided that the assurance should not extend to any death or injury happening while the assured was under the influence of intoxicating liquor. The case came before Lord Coleridge C.J. and Denman J. by way of an application for a new trial on the ground that the verdict had been against the weight of evidence. Both judges construed the words, “whilst the assured is under the influence of intoxicating liquor,” although it may not have been necessary for the purposes of their judgment to do so. Neither seems to have thought 44 that the words were so uncertain as to be incapable of construction. Both were of the opinion that these words connoted a disturbance of the faculties, Lord Coleridge using the words “as disturbs the balance of a man's mind,” and Denman J. the words “disturbing the quiet, calm, intelligent exercise of the faculties.” Mr. Everett, whose experience in matters of personal injury insurance is extensive, was unable to refer me to any case in which a different construction had been put upon these words. In those circumstances, I find that the words are not so uncertain as to be incapable of construction, and I adopt the constructions in Mair v. Railway Passengers Assurance Co. Ltd., albeit they have been expressed in mid-nineteenth century idiom. I add no gloss, as to do so might add confusion where none may have existed amongst insurers and policy holders during the past 84 years.”

24. This was the case of alleged driving under

the influence of alcohol. The deceased was

travelling in a car with a friend after having

drinks (beer). They appeared to be sober. 45 While so, the motor car attempted to negotiate

a bend and it knocked off the Warning post and

an accident ensued, the vehicle having fallen

to a ditch. The court went on to find that the

blood alcohol was 260 mg in 100 ml and in favour

of the insurer.

A CASE FROM SCOTLAND

25. In Kennedy v. Smith5, decided on 20th June,

1975 by the Inner Court of Session of Scotland

from which appeal lies to the U.K. Supreme Court

now, the defendant (described as the defender)

drove a car after having consumed a pint or at

the most one and a half pints of lager (a kind

of beer) and an accident occurred in which two

of the passengers died. In an action by the

widows, the insurer (referred to as a third

party) relied upon an exception in the policy

5 1975 S.C. 266; (1975) 6 WLUK 97

46 which inter alia excluded its liability if the

driver was under the influence of intoxicating

liquor. Lord President of the Court with whom

the other two Judges agreed, observed as

follows:

“They mean, as the Lord Ordinary accepted, "under such influence of intoxicating liquor as disturbs the balance of a man's mind." This was the meaning given to them by Lord Coleridge C.J. in Mair v. Railway Passengers Assurance Co., 1877 37 L.T. 356 in which Denman J. referred to the condition as "disturbing the quiet calm intelligent exercise of the faculties," and was the meaning adopted by Lawton J. in the later case of Louden v. British Merchants Insurance Co. Ltd., 1961 1 W.L.R.

798. The only proved facts are (i) the admitted consumption by the defender of one pint of lager and

(ii) the happening of the accident.

The Lord Ordinary was not entitled to rely as he did upon the facts that the defender drank lager upon an empty stomach and was unaccustomed to alcohol since there was no evidence whatever that either of these facts made it more probable that the amount of alcohol consumed would adversely affect the faculties of the defender. In so far as the 47 Lord Ordinary refers to the erratic and unexplained behaviour of the defender's car this is only to be understood as a reference to the movement of the car at the time of the accident as the result, according to the defender, of the back wheels striking either the kerb or an object on the road surface. The happening of the accident is explicable as the result of momentary inattention or loss of concentration and it is sheer speculation to say that the defender's consumption of one or even one and a half pints of lager had placed him under such influence of alcohol as had disturbed the balance of his mind. They also argued that it was relevant to consider that this was a case of wholly unexplained and extraordinary movement of the motor car which the defender had driven accident free for some years. It was further, they said, relevant in this connection to have regard to the plea tendered by the defender to the charge of contravening section 1 (1) of the Road Traffic Act 1960.

In my opinion, the defender's submission in this matter is well founded. The Lord Ordinary was not, in my view, entitled to have regard to the fact that the lager drunk by the defender was consumed upon an empty stomach and that he was

48 unaccustomed to alcohol. Whether or not a particular combination of circumstances is likely to exacerbate the effects of a particular consumption of alcohol is a matter of evidence (as was the case in Louden). In this case there was no evidence to show that the circumstances in question were other than neutral. In my opinion, also, no weight can be given to the defender's plea of guilty. The Lord Ordinary gave no weight to this. Such a plea is explicable as soon as it is remembered that even a slight degree of carelessness may justify a conviction for driving in a manner dangerous to the public. In these circumstances the "inference" drawn by the Lord Ordinary rests only upon

(i) proved consumption of one pint of lager and possibly—only possibly— another half pint, and (ii) the happening of the accident as it emerged in evidence. There was not one scintilla of evidence of any behaviour on the part of the defender, or of his car before the accident, which pointed to the alcohol he had consumed having to any material extent affected the balance of the defender's mind. For the exception to apply it is not enough to show that the defender had consumed a particular quantity of alcohol shortly before a claim arose. In my opinion mere proof that the defender had consumed at most a

49 pint and a half of lager and that he had later been driving the car when it left the westbound dual carriageway in the manner described, does not justify an inference that he was at the time of the accident under the influence of intoxicating liquor within the meaning of exception 5 (a). The accident is consistent with momentary inattention and to say that he was under the influence of alcohol at the time can only, on the facts proved in this case, be speculation.”

26. Lord Avonside in his concurring opinion

inter alia held as follows:

“The explanation of the respondent that his rear wheels had hit something, a brick or possibly the kerb, was either rejected by the Lord Ordinary or, at least, also pointed to negligence influenced by drink. Plainly also the Lord Ordinary did not believe the assertion of the appellant that the drink he had taken did not affect his judgment. It is regrettable, in my view, that more evidence was not led in regard to the accident. It would, I imagine, be available and perhaps its omission was considered tactical. Be it so, the onus was on the respondent. In my opinion, the 50 Lord Ordinary has gone too far. There is no evidence of the likely effect of the consumption of a not immoderate amount of low content alcohol on a person unused to drink whose stomach may be empty. The Lord Ordinary as a judge is not, in my view, entitled to draw a positive conclusion from such facts, without some evidence before him and there was none. The smell of alcohol after the accident was, it is I think accepted, simply evidence of the fact of prior consumption of alcohol. The circumstances of the accident were remarkable enough, but could be explained by what the appellant said. That the appellant pleaded guilty to a charge under section 1 (1) of the Road Traffic Act 1960, and the Lord Ordinary seems to make significance of this, is neither here nor there, looking to the comparatively minor degree of negligence which the Courts have held sufficient to invoke the sub- section. But looking at the facts found at best for the respondent I see no more than that the appellant had taken some drink for the first time in his life on an empty stomach and had very shortly thereafter been involved in a bad accident which his previous safe record would not suggest as being likely to happen.”

51

27. Obviously, there are certain parallels as

there are distinctions between facts of the case

before us. The similarity lies in the fact that

the driver in the case before us also smelt of

alcohol. The other similarity lies in the

nature of an accident. The differences,

however, lie in the fact that in the case

referred to, there was evidence of the actual

quantity and nature of the alcohol which was

consumed by the driver. In the case before us,

there is no evidence either recording the exact

nature of alcoholic drink which was consumed by

the driver and there is also no material as to

the quantity consumed by him. There is no

evidence, in fact, as to the exact point of time

when the alcohol was consumed by the driver in

the case before us. Whereas on the evidence

adduced in the case before the Court in the

decision referred to, there was evidence as to

52 the time when the alcohol was consumed. Further

the driver offered an explanation as to how the

accident unfolded when there is none in the case

before us.

28. As far as the conviction under the Road

Traffic Act, 1960, which was based on the plea

of the defendant-driver in the said case is

concerned, Section 1(1) of the Road Traffic Act,

1960, may be noticed:

“1. Causing death by reckless or dangerous driving: (1)A person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be liable on conviction on indictment to imprisonment for a term not exceeding five years.”

53

29. It may be noticed that both the trial Judge

as well as the Appellate Court did not lay any

store by the blood test and also the conviction

and therefore what is significant is that a

finding could be rendered in an action that the

insurer was not liable if the driver, in

contravention of the policy was under the

influence of intoxicating liquor and the matter

goes to the evidence which would support such a

finding.

30. As far as the view taken by the President of

the Court that the Trial Judge was not entitled

to rely upon the fact that the defendant drank

a lager upon an empty stomach, we are unable to

endorse the same. This is for the reason that

there is enough material available to show that

when one drinks on an empty stomach, there is

greater and faster infusion of the alcohol into

54 the system leading to increased Blood Alcohol

Concentration (BAC) level. This is for the

reason that when liquor is consumed on an empty

stomach, the liquor moves on from the stomach

unobstructed into the small intestine from where

80% of the absorption of alcohol takes place.

Therefore, this does indeed play a role in the

Court assessing and finding, that given the

other circumstances to support the finding of

consumption of alcohol as to whether the alcohol

has contributed to the occurrence of the

accident. It is also not irrelevant to bear in

mind that a person who is alcohol tolerant which

means that having become accustomed to consume

liquor, the brain in particular is able to hold

up to the alcoholic consumption and deal with

its effect whereas when a novice or a beginner

consumes alcohol, its consequences would be

different.

55 THE POSITION IN THE UNITED STATES OF AMERICA

31. Interestingly, the terms in the Contract of

Insurance may exclude the liability of the

Insurer in regard to liquor based on the mere

consumption of the liquor and its presence in

the body. In 2016 NC (10) 1939, in a claim upon

a life and accidental insurance, one of the

questions was whether there was an error in the

charge of the court relating to intoxicating

liquor. The policy in question did not cover

any injury or death which the insured may suffer

while the insured has in his or her body,

physically present intoxicating liquor or

narcotics. The Supreme Court of North Carolina

in Webb v. Imperial Life Ins. Co., [Inc. 216

N.C. 10 (1939)] had to consider the legality of

the charge which the trial court had given to

the jury. The Court noticed the charge as

follows:

56

“The court further instructs you that an intoxicated person is a drunken person, a drunken person is an intoxicated person and that means- intoxicated means in law that the subject must have drunk of alcohol to such an extent as to appreciably affect and impair his mental or bodily faculties or both. The court instructs you further that to be under the influence or affected by the liquor means that the subject must have drunk a sufficient quantity to influence or affect, however slightly, his body and his mind, his mental and physical faculties, in other words, it all comes to this, that he has drunk, that he has intoxicating liquor in his body to the effect that it influences his conduct detrimentally. It means the question for you is whether the deceased at the time of his impact and death had in his body intoxicating liquor of sufficient quantity to be intoxicated or to affect his conduct and influence his conduct and action.”

“The court further instructed the jury: “The question for you is whether the deceased at the time of the impact and death had in his body intoxicating liquor of sufficient quantity to be

57 intoxicated or to affect and influence his conduct and action.”

32. The Court held as follows:

“The court further instructed the jury to answer the issue in favor of defendant if they found by the greater weight of the evidence that the deceased had present in his body at the time of the injury “intoxicating liquor as the court has just defined and explained intoxicating liquor;” and again, if they found the deceased “was under the influence of alcohol or intoxicating liquor.” While the court followed this by charging the jury to answer the issue in favor of defendant if they found deceased “had present in his body intoxicating liquor,” this did not cure the previous instruction.

Thus the learned judge inadvertently placed upon the

defendant the burden not only to show the physical presence of intoxicating liquor in the body of the insured at the time of the injury, but also to show that he was intoxicated or under the influence of intoxicating liquor.

58 The defendant by the language of the policy excluded from its coverage injury suffered by the insured while he had present in his body intoxicating liquor. This was the contract between the parties, and the defendant was entitled to avoid liability upon proof that the insured had in his body, physically present, any quantity of intoxicating liquor, regardless of whether he thereby became intoxicated or not. The defendant was entitled to have the instruction to the jury confined to the language of the policy. Payne v. Stanton, 211 N.C. 43, 188 S.E.

629.

The defendant's exceptions to the charge in the respects noted must be sustained, necessitating a new trial.

New trial.” (Emphasis supplied)

33. In Heltsley v. Life & Casualty Ins. Co.

[299 Ky. 396 t(1945)], the Court of Appeal

observed as follows in regard to the similar

clause in a Contract of Insurance:

59

“The exact language of the policy provision under consideration is:’***nor does it cover loss or injury sustained by the insured while he was physically present in his body alcoholic or intoxicating liquors in any degree. ***That this provision is not contrary to public policy; that it is not susceptible of double construction or of an interpretation that the extent or degree of intoxication is material; that it is not unreasonable, and that it does not constitute a limitation unavailable to appellee, is amply affirmed by the authorities both local and foreign. In Robinson & Son v. Jone, 254Ky.637, 72 S.W.2d 16, 19, it is said: ‘It is known of all men that the drinking of intoxicating liquor, though it be not done to the extent of actual intoxication, begets a spirit of recklessness, and is responsible for numerous accidents.’ And in Equitable Life Assurance Society of United States v. Adams, 259 Ky. 726, 83 S.W.2d 461, 464, ‘It is the duty of the courts to take the words of an insurance policy as they are found in it, and as persons with usual and ordinary understanding would construe them when used to express the purpose for which they were employed,***.

60 34. The Supreme Court of Alabama in Standard Life

& Acc. Ins. Co. v. Jones 94 Ala. 434, decided

in November, 1891, had occasion to consider the

question as to whether the phrase “under the

influence of intoxicating drinks” had a

different connotation in law from that it

carried in common parlance. No doubt, it was a

case whether a workman was covered by an

insurance policy and he met with an accidental

death while he was discharging his duty as a

Swtichman. We find the following discussion:

“…To be under the influence of whiskey, is not necessarily to be intoxicated. One may well be said to be under the influence of strong drink when he is to any extent affected by it--when he feels it; and this condition may result from potations so small as not to impair any mental or physical faculty, and when the passions are not visibly excited, nor the judgment or any physical function impaired. This is very far short of intoxication, which is the synonym of inebriety, drunkenness, implying or evidenced by undue and abnormal excitation of the passions or 61 feelings, or the impairment of the capacity to think and act correctly and efficiently….

But the phrase "under the influence of intoxicating drinks," as used in policies of this character and in this connection, has a legal significance, differing from the popular one, and implying such influence as in reality amounts to intoxication. In a well considered case, it was said by the Supreme Court of New York, that "to be under the influence of intoxicating liquors, within the meaning of this policy, the insured must have drunk enough to disturb the action of the physical or mental faculties, so that they are no longer in their natural or normal condition. When, therefore, the defendant imposed upon persons insured by it the condition that it would not be liable when death or injury should happen while the insured was under the influence of liquor, the intention manifestly was to require the insured to limit its use in such a degree as that he retained full control over his faculties of mind and body….”

35. Therefore, an analysis of the principles as

laid down both by the English Courts/Scottish

62 Court and decisions from the United States would

persuade us to hold as follows:

The exclusion from the liability of the

Insurer would depend upon the exact terms of

the Insurance. We are in this case not

dealing with a third-party claim. Under the

aegis of the Motor Vehicles Act, we are not

oblivious of the provisions of Section

149(2) in the unamended provisions of the

Motor Vehicles Act,1988 which are captured

in Section 150 of the present avtaar after

the amendment as regards the defences

available to the Insurer regarding such

claims. We are dealing with a case of own

damage and the clause which extricates the

Insurer on the basis of the driver being

under the influence of alcohol, inter alia.

We would find that the there are two

variants. One of the models is represented 63 by American cases where all that required is

that the person has in his body alcohol in

any degree. Under the said model, it need

not influence his conduct. Under the said

model, it is not necessary for the Insurer

to show that person concerned was

intoxicated or under the influence of

intoxicated liquor.

36. This brings us to the other model which model

is applicable in the facts of the case, viz.,

the insurer must show that the person driving

the vehicle was under the influence of liquor.

The contrast between the models is stark and

perceptible. As far as the exclusion of the

nature we are concerned with, which requires

driving of the vehicle by a person under the

influence of intoxicating liquor, it would

appear to be clear that mere presence of alcohol

in any small degree would not be sufficient.

64 This is for the reason that the court cannot re-

write the contract and hold that the mere

presence of the alcohol, in the slightest

degree, is sufficient to exclude the liability

of the insurer. It requires something more,

namely, that the driver of the vehicle was at

the time of the accident acting under the

influence of intoxicating liquor. Now it is

clear that the decisions of the English Courts

are closer home and of assistance in the laying

down of the law. It must be shown that in the

facts and circumstances of each case that the

consumption of liquor had, if not caused the

accident, which undoubtedly would bring the

accident within the mischief of the clause but

at least contributed in a perceptible way to the

causing of the accident.

SECTION 185 OF THE MOTOR VEHICLES ACT, 1988

65

37. It is at this juncture that it becomes

necessary to notice and deal with the argument

of the respondent under Section 185 of the Motor

Vehicles Act. Section 185 of the Motor Vehicles

Act, 1988 reads as follows:

“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 or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for term which may extend to two years, or with fine which may extend to 66 three thousand rupees, or with both.

Explanation.—For the purposes of this section, the expression “drug” or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”

38. Our attention was also drawn by Mr. Gopal

Sankaranarayan, learned Senior Counsel for the

respondent to the provisions under Sections 203

and 204 of the Motor Vehicles Act. Section 203

as was extant as on the date of the accident

read as follows:

“203. Breath tests.—(1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of

67 having committed an offence under section 185:

Provided that requirement for breath test shall be made (unless, it is made) as soon as reasonably practicable after the commission of such offence.

(2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident, had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test:—

(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,

(b) in the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:

Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge

68 of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.

(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under sub-section (1) or sub-section (2), that the device by means of which the test has been carried out indicates the presence of alcohol in the person’s blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.

(4) If a person, required by a police officer under sub-section (1) or sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.

(5) A person arrested under this section shall while at a police station, be given an opportunity to

69 provide a specimen of breath for a breath test there.

(6) The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence. Explanation.—For the purposes of this section, “breath test”, means a test for the purpose of obtaining an indication of the presence of alcohol in a person’s blood carried out, on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government, by notification in the Official Gazette, for the purpose of such a test. “

39. Section 204 again as was in existence on the

date of the accident (12.12.2007) read as

follows:

“204. Laboratory test.—(1) A person, who has been arrested under section 203 may, while at a police station, be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a Laboratory test, if—

(a) it appears to the police officer that the device, by means 70 of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person,

(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:

Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.

(2) A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test:—

(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or

(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police

71 officer has reasonable cause to suspect him of having alcohol in his blood:

Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.

(3) The results of a laboratory test made in pursuance of this section shall be admissible in evidence.

Explanation.—For the purposes of this section, “laboratory test” means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.”

40. We may also incidentally notice Section

205 of the MV Act. It reads as follows:

“205. Presumption of unfitness to drive.—In any proceeding for an offence punishable under section 72 185 if it is proved that the accused, when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time.”

41. The Motor Vehicles Act, 1988 repealed the

Motor Vehicles Act 1939. It is important to

notice certain provisions of the said Act also.

Section 117 can be referred to as the provision

corresponding to Section 185 of the present Act

with significant differences. Section 117 as

it originally stood read as follows:

“117.Driving while under the influence of drink or drugs.- Whoever while driving or attempting to drive a motor vehicle is under the influence of drink or a drug to 73 such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for a first offence with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both, and for a subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

42. This provision came to be substituted by Act

27 of 1977. After its substitution as aforesaid

Section 117 the lawgiver ushered in a stricter

restriction in regard to drunken driving. It

read as follows:

“117. Driving by a drunken person or by a person under the influence of drugs .

Whoever, while driving or attempting to drive, a motor vehicle or riding or attempting to ride, a motor cycle, -

(a) Has, in his blood, alcohol in any quantity, howsoever small the quantity may be, or

(b) Is under the influence of a drug to such an extent as to be 74 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 or 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.

In fact, prior to present Section185 of the

Motor Vehicles Act being substituted by Act 54

of 1994, Section 185 was similarly worded as

Section 117 of the Motor Vehicles act 1939, as

substituted in 1977.

43. It will be noticed immediately that the

decision of this Court rendered in Bachubhai

Hassanalli Karyani v. State of Maharashtra6

relied upon by the respondent arose under

Section 117 of Motor Vehicles Act, 1939 which

6 (1971) 3 SCC 930 75 required not merely that the person was under

the influence of drink but it was to be to such

an extent as to render him incapable of

exercising proper control over the vehicle.

Section 117 after its substitution in 1977, on

the other hand, carved out a criminal offence

insofar as alcohol is concerned, on the basis

that the driver had in his blood, alcohol in any

quantity, however small the quantity was. This

was similar in fact to the clauses in the

contracts of insurance obtaining in the United

States which we have referred to (supra). No

doubt, this became associated with the presence

of the smallest quantity of alcohol in the

blood. As far as Section 185 of the Motor

Vehicles Act, 1988 is concerned, the offence is

committed if there is a specified amount of

alcohol found namely, 30 mg in 100 ml. of blood.

In this regard, we may profitably refer to the

76 law in the United Kingdom corresponding to the

Motor Vehicles Act and also an early decision

of the Bombay High Court interpreting a statute

dealing with the issue.

THE U.K. ROAD TRANSPORT TRAFFIC ACT, 1930 AND LATER ENACTMENTS

44. In the U.K. Road Transport Traffic Act,

1930, Section 15(1) made it an offence to drive

or attempt to drive or to be in charge of a

motor vehicle while under the influence of drink

or drug ‘to such an extent as to be incapable

of having proper control of the vehicle’.

Section 11 provided for punishment for dangerous

driving. In (1931) 22 Cr. App 172, the appellant

was convicted under Section 15 and acquitted

under Section 11. The Court held as follows:

“… We have considered that finding with great care, but, upon the whole, and not without hesitation, we have come to the conclusion that. notwithstanding

77 the summing up, it is ambiguous.

The jury ought to have been asked whether they meant-by their last answer that the appellant was under

the influence of drink to such an extent as to be incapable of having proper control of the vehicle, and we cannot reject the view that, if that question had been pointedly put, they might have answered in the negative or said that they were not agreed on that point. …”

45. This view appears to hold good even now. In

other words, being under the influence of

alcohol is different from being under the

influence of alcohol to the extent as declared

in such a provision. However statutory changes

that occurred make it irrelevant.

46. In this regard, it is pertinent to note the

decision of the High Court of Bombay reported

in Emperor vs. Rama Deoji7. Rule 27-A of the

Motor Vehicles Rules provided that “no person

shall, when intoxicated, drive a motor vehicle

7 AIR 1928 BOM 231 78 in a public place.” The contention raised by the

accused was that his conviction was improper as

the charge actually was merely one of being

under the influence of liquor. There is a

distinction between being under the influence

of liquor and being intoxicated, it was

contended. The Court held, inter alia, as

follows:

“4. In our opinion the word “intoxicated” cannot be read in this very extreme sense. It in fact corresponds with the word “drunk” that is generally used in similar English enactments. No doubt, there has been a good deal of controversy in England as to when a person can properly be said to be drunk, and a distinction has been made between his being drunk and his being merely under the influence of liquor. I do not, however, think it is necessary for us in this particular case to go into any controversy of that kind. The fact remains that the words “under the influence of liquor” do sufficiently represent the meaning of the word “intoxicated,” except that it may be said that the latter word expresses a degree of

79 influence which is not sufficiently expressed in the words “under the influence of liquor.” But this question of degree is one that is at any rate involved in the words; and if the accused intended to assert that he was not under the influence of liquor to a degree that really mattered in regard to his exercising due care and judgment in driving the car, then that should have been stated by the accused clearly, so as to raise an issue on the point. On the contrary he pleaded guilty; and in view of the fact that his act in suddenly swerving was one of extreme rashness, as admitted by Mr. Bhandarkar himself, the circumstances clearly point to the accused's understanding that he was pleading guilty to a degree of intoxication which would bring the case under this rale. There has, in our opinion, been no misapprehension of the accused, so as to justify our holding that he did not plead guilty to a breach of this particular rule.”

(Emphasis supplied)

47. The Road Traffic Act, 1960 repealed the Act

in 1930. Section 6(1) of the 1960 Act penalised

80 driving by a person who was unfit to drive

through drink or drugs. Section 6(6) reads as

follows:

“6(6) In this section “unfit to drive through drink or drugs” means under the influence of drink or a drug to such an extent as to be incapable of having proper control of a motor vehicle.”

By the Road Traffic Act, 1962, however

unfitness was linked with being “impaired”.

48. For the first time, objective scientific

testing became the basis for the offence of

driving while having drunk alcohol in 1967 under

the Road Safety Act, 1967. Section 1 penalised

driving on a road or other public place having

consumed alcohol in such quantity that its

proportion in the blood, as ascertained through

the blood test, exceeded the prescribed limit,

which was provided as 80 mg. of alcohol in 100

81 ml. of blood (0.08 %). Thereafter, the Road

Safety Act, 1988 came into force.

49. The provisions of relevance in the latest

enactment, that is the Act of 1988 are Sections

3A, 4 and 5. Section 3A, inserted with effect

from 01.07.1992, reads as follows:

“3A. Causing death by careless driving when under influence of drink or drugs.

(1) If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and—

a) he is, at the time when he is driving, unfit to drive through drink or drugs, or

b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or

ba) he has in his body a specified controlled drug and the

82 proportion of it in his blood or urine at that time exceeds the specified limit for that drug, or

c) he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it, or

d) he is required by a constable to give his permission for a laboratory test of a specimen of blood taken from him under section 7A of this Act, but without reasonable excuse fails to do so,

he is guilty of an offence.

(2) For the purposes of this section a person shall be taken to be unfit to drive at any time when his ability to drive properly is impaired.

(3) Subsection (1)(b),(ba),(c)and

(d)above shall not apply in relation to a person driving a mechanically propelled vehicle other than a motor vehicle.” (Emphasis supplied)

Sections 4(1) and 4(5) read as follows:

83 “4. Driving, or being in charge, when under influence of drink or drugs.

(1) A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.

xxx xxx xxx

(5) For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.” (Emphasis supplied)

Section 5 reads as follows:

“5. Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.

(1) If a person –

(a) Drives or attempts to drive a motor vehicle on a road or other public place, or

84

(b) Is in charge of a motor vehicle on a road or other public place,

After consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.

(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

(3) The court may, in determining whether there was such a likelihood as is mentioned in subsection (2) above, disregard any injury to him and any damage to the vehicle.”

(Emphasis supplied)

85

50. Section 3A was inserted w.e.f. 01.07.1992.

A perusal of Sections 3A, 4 and 5 of the Road

Traffic Act, 1988, and comparing it with Section

185 of the MV Act, 1988, yields the following

results:

The provision, in the British Act, which

is comparable to Section 185 of the Indian

Act, is Section 5. This is for the reason

that Section 5 also penalises driving or

attempting to driving a motor vehicle on a

road or other public place, after consuming

alcohol and when the proportion in his breath

is in excess of the prescribed limit. There

is no provision in the Motor Vehicles Act,

1988 corresponding to Section 4 of the Road

Traffic Act. In other words, in the U.K.,

apart from driving or attempting to drive a

vehicle, having consumed alcohol, with a

86 blood alcohol level in excess of the

prescribed percentage, being an offence, it

is also an offence to drive or attempt to

drive a vehicle on a road or a public place,

if the person is unfit to drive due to drink

or drugs. Section 4(5) of the Road Traffic

Act, 1988, makes it clear that a person shall

be taken as unfit, if his ability to drive

is for the time being, impaired. Section 6B,

in fact, provides for a preliminary

impairment test, which primarily consists of

tasks to be performed by the person driving.

What we are pointing out is, a person under

the law in England, could, if by consumption

of alcoholic drink, be impaired, in his

ability to drive properly, then,

irrespective of whether he has a blood

alcohol level in excess of or below the

prescribed level, he would commit an

87 offence. The same principle animates Section

3A, which speaks about an offence upon death

following an accident, when he was driving

the vehicle, while being unfit to drive

through consumption of alcoholic drink. Here

again, Section 3A(2) makes it clear that

unfitness to drive, on account of

consumption of liquor, is predicated on the

driver’s ability to drive properly, being

impaired. This is also to be determined by

the impairment test, apparently held under

Section 6B. We would find that a person can

be said to be under the influence of alcohol,

if his faculties are so disturbed that his

driving abilities, is impaired. This concept

of law is essentially following up on what

has been laid down by the court in in Mair

(Administratrix) supra. Cases can arise

where there is a clause of the nature we are

88 dealing with, viz., excluding the liability

of the insurer, when the driver is under the

influence of alcohol, in vastly different

circumstances. A 21-year-old, who is

otherwise licenced to drive a vehicle, may

experiment with drinking in the company of

his friends. He may consume a small quantity

of liquor. This may not satisfy the

requirement of alcohol present in the blood

(30 mg./100 ml. = 0.03%). However, it is

unquestionable that the impact of the drink

on the person, may be demonstrated to be that

he is unable to drive in the manner in which

he would have driven, had he not taken that

small drink. In such a case, to insist that

he cannot be under the influence of alcohol,

unless, he has in his blood, the requisite

percentage of alcohol under Section 185 of

the MV Act, would be to make a new bargain

89 for the parties and also to rewrite the

contract. To be under the influence of

alcohol, in other words, must be understood

as, a question going to the facts and a

matter to be decided with reference to the

impact of consumption of alcohol on the

particular driver. Yet another example will

throw light on a seemingly vexed issue. A

person, who drinks on an empty stomach, would

necessarily have a faster rate of the alcohol

making its presence in the blood, and

consequently, in the brain. A person, on the

other hand, who has had food along with the

alcohol, may manifest the effect of alcohol

later. The effects of drinking alcohol, in

terms of external signs, have been described

by Modi in his work - Modi’s Medical

Jurisprudence and Toxicology. They are as

follows:

90 “In order to ascertain whether a particular individual is drunk or not, a medical practitioner should bear the following points in mind:

1. The quantity taken is no guide.

2. An aggressive odour of alcohol in the breath, loss of clearness of intellect and control of himself, an unsteady gait, a vacant look, dry and sticky lips, congested eyes, sluggish and dilated pupils, increased pulse rate, an unsteady and thick voice, talking at random and want of perception of the passage of time, are the usual signs of drunkenness.

However, the smell of an alcoholic drink can persist in the breath for many hours after the alcohol has been excreted from the body, as it is due to non-alcoholic constituents (congeners) in the drink.”

51. If in a case, without there being any blood

test, circumstances, associated with effects of

consumption of alcohol, are proved, it may

certainly go to show that the person who drove

the vehicle, had come under the influence of

alcohol. The manner, in which the vehicle was

91 driven, may again, if it unerringly points to

the person having been under the influence of

alcohol, be reckoned. Evidence, if forthcoming,

of an unsteady gait, smell of alcohol, the eyes

being congested, apart from, of course, actual

consumption of alcohol, either before the

commencement of the driving or even during the

process of driving, along with the manner in

which the accident took place, may point to the

driver being under the influence of alcohol.

It would be a finding based on the effect of the

pleadings and the evidence.

52. A conspectus of the aforesaid provisions

would lead us to the following conclusions:

Section 185 of the Motor Vehicles Act

creates a criminal offence. The short

title of Section 185 undoubtedly

proclaims that it purports to deal with

92 driving by a drunken person or by a person

under the influence of drugs. The offence

as far as driving by a drunken person is

concerned, was built around breach of an

objective standard, viz., the presence of

alcohol in the driver in excess of 30 mg

per 100 ml. of blood detected in a test

of breath analyser. The Section mandates

the proving of the objective criteria of

presence of alcohol exceeding 30 mg per

100 ml. of blood in a test by a breath

analyser. It is here that Section 203 of

the Motor Vehicles Act becomes apposite.

It empowers the police officer to require

any person driving or attempting to drive

motor vehicle in a public place to provide

one or more specimen of breath for breath

test, if Police Officer or Officer of

Motor Vehicle Department has reasonable

93 cause to suspect the driver has committed

an offence u/s 185. Section 203(2) deals

with the situation where the vehicle is

involved in an accident in a public place.

In such circumstances, on a Police Officer

in uniform entertaining any reasonable

cause to suspect that the person driving

the vehicle, at the time of the accident,

had alcohol in his blood, inter alia, he

may require the person to provide specimen

of his breath in the breath test in the

manner provided. Section 203(6) declares

that the result of the breath test made

under Section 203 shall be admissible in

evidence. Section 203 contemplates arrest

without warrant being effected, if the

test indicated the presence of alcohol in

the breath test. Section 204 follows up

on a person who is arrested under Section

94

203. It, inter alia, provides that a

person who has been arrested under Section

203 is to provide to such medical

practitioner as may be produced by such

police officer, a specimen of his blood

for a laboratory test, if either it

appears to the police officer that the

breath test reveals the presence of

alcohol in the blood of such person or

such person when given the opportunity to

submit to a breath test, has refused,

omitted or failed to do so. The result

of the laboratory test is also made

admissible.

53. It is clear that Section 185 deals

with driving or attempting driving of a motor

vehicle a person with alcohol in excess of 30

mg per 100 ml in blood which is detected in a

test of breath analyser. Being a criminal

95 offence, it is indisputable that the

ingredients of the offence must be

established as contemplated by law which

means that the case must be proved beyond

reasonable doubt and evidence must clearly

indicate the level of alcohol in excess of 30

mg in 100 ml blood and what is more such

presence must be borne out by a test by a

breath analyser. We may also notice that with

effect from 01.09.2019, the following words

have been added to Section 185, that is “or

in any other test including laboratory test”.

54. It is to be noticed that this Court had

occasion to deal with the question whether

the prosecution under section 185 can succeed

in the absence of a test by a breath analyser.

In the decision reported in State through PS

Lodhi Colony v. Sanjeev Nanda8, the accused

8 2012 (8) SCC 450

96 escaped from the scene of occurrence. He could

not, therefore, be subjected to breath test

analyser instantaneously or to provide a

specimen of his breath for a breath test or a

specimen for his blood for a laboratory test.

Dealing with these provisions, K.S.

Radhakrishnan, J., in his concurring judgment

has held as follows:

“82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to breath analyser test instantaneously, or to take or provide specimen of his breath for a breath test or a specimen of his blood for a laboratory test. The cumulative effect of the provisions, referred to above, would indicate that the breath analyser test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions “while driving” and “attempting to drive” in the above sections have a meaning “in praesenti”. In such situations, the presence of

97 alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A breath analyser test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyser test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyser test instantaneously. All the same, the first accused was taken to AIIMS Hospital at 12.29 p.m. on 10-1-1999 when his blood sample was taken by Dr Madhulika Sharma, Senior Scientific Officer (PW 16). While testing the alcohol content in the blood, she noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW-16/A was duly proved by the doctor. Over and above, in her cross-examination she had explained that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving.

83. Further, the accused was also examined in the morning of 10-1-

98

1999 by Dr T. Milo, PW 10, Senior Resident, Department of Forensic Medicine, AIIMS, New Delhi who reported as follows:

“On examination, he was conscious, oriented, alert and cooperative. Eyes were congested, pupils were bilaterally dilated. The speech was coherent and gait unsteady. Smell of alcohol was present.”

84. Evidence of the experts clearly indicates the presence of alcohol in blood of the accused beyond the permissible limit, that was the finding recorded by the courts below. The judgments referred to by the counsel that if a particular procedure has been prescribed under Sections 185 and 203, then that procedure has to be followed, has no application to the facts of this case. The judgments rendered by the House of Lords were related to the provision of the Road Safety Act, 1967, the Road Traffic Act, 1972, etc. in UK and are not applicable to the facts of this case.”

55. No doubt in the case noted above, the

presence of the alcohol content was much more

(that is 0.115% than the permissible limit).

99 It is also the case where the accident caused

the deaths of six persons. The above view,

no doubt, turned on the facts which rendered

the taking of the test by breath analyser

impossible. It was also found that the first

accused had been taken to the All India

Institute of Medical Science (AIIMS) at

12.29 p.m. on 10.01.1999 and the blood samples

revealed alcohol far in excess of the limit

indicated in Section 185. Also, after the

judgment, with effect from 01.09.2019, a

laboratory test or any other test aids the

prosecution to establish a case under section

185.

56. We have set out the provisions of Sections

of 185, 203 and 204 to deal with the argument

of the parties based on the impact of these

provisions, upon the operation of exclusion

clause of the Contract of Insurance in a case,

100 which does not involve any third party. The

Contract of Insurance, in the present case,

is a comprehensive Contract of Insurance

dealing with own damage and, no doubt, also

third party. What is, however, involved in

this case, is the liability alleged with the

Insurer under Clause (A), which deals with

‘own damage’.

57. In regard to a claim involved in this case

as aforesaid, we are of the view that there

is nothing in law which would otherwise

disentitle the appellant from setting up the

case that the exclusion clause would

disentitle the respondent from succeeding.

As to whether it is a case of driving of the

vehicle under the influence of the alcohol is

different matter, altogether. The requirement

of Section 185 is in the context of a criminal

offence. While it may be true that if there

101 is a conviction under Section 185, it would,

undoubtedly, fortify the Insurer in

successfully invoking Exclusion Clause 2(c),

is the reverse also true? We expatiate. If

prosecution has not filed a case under Section

185, that would not mean that a competent

Forum in an action alleging deficiency of

service, under the Consumer Protection Act,

is disabled from finding that the vehicle was

being driven by the person under the influence

of the alcohol. The presence of alcohol in

excess of 30 mg per 100 ml. of blood is not

an indispensable requirement to enable an

Insurer to successfully invoke the clause.

What is required to be proved is driving by a

person under the influence of the alcohol.

Drunken driving, a criminal offence, under

Section 185 along with its objective criteria

of the alcohol-blood level, is not the only

102 way to prove that the person was under the

influence of alcohol. If the Breath Analyser

or any other test is not performed for any

reason, the Insurer cannot be barred from

proving his case otherwise.

58. What we are dealing in this case is,

construction of words in a contract between

the parties. There is no case for the

respondent that the terms of the contract to

exclude the liability of the appellant, are

in any way illegal. We can without difficulty

imagine a circumstance in which the

proposition that should the Insurer fail to

establish a case in terms of Section 185 BAL

(Blood Analyser Test), it would fail, may not

be the proper approach to the issue. It is

not difficult to contemplate that the

accident may take place with the driver being

under the influence of alcohol and neither

103 the Breath Test nor the laboratory test is

done. A driver after the accident, may run

away. A test may never be performed. However,

there may be evidence available which may

indicate that the vehicle in question was

being driven at the time of the accident by a

person under the influence of alcohol. It

cannot then be said that merely because there

is no test performed, the Insurer would be

deprived of its right to establish a case

which is well within its rights under the

contract.

A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL

59. In Modi’s Medical Jurisprudence and

Toxicology, 26th Edition, it is, inter alia,

stated:

“Pure ethyl alcohol is a transparent, colourless, mobile and volatile liquid, having a characteristic spirituous odour and a burning taste.

104 Ethyl alcohol exists in alcoholic beverages in varying proportions. Absolute alcohol (alcohol dehydratum) contains 99.95 percent of alcohol.

Alcohol acts differently on different individuals and also on the same individual at different times. The action depends mostly on the environment and temperature of the individuals and upon the degree of dilution of the alcohol consumed. The habitual drinker usually shows fewer effects from the same dose of alcohol.

Alcohol acts differently on different individuals and also on the same individual at different times. The action depends mostly on the environment and temperature of the individuals and upon the degree of dilution of the alcohol consumed. The habitual drinker usually shows fewer effects from the same dose of alcohol.

Widmark’s Formula.—The basis for calculating the approximate quantity of alcohol in the body, after equilibrium between the blood and tissues has been reached, is by Wid- mark’s formula:

a = cpr

(i) a represents the amount of alcohol expressed in grams.

105 (ii) c, the amount of alcohol in grams per kg estimated in the blood.

(iii) p is the weight of the person in kg, and

(iv) r is the value obtained by dividing the average concentration of alcohol in the body by the concentration of alcohol in the blood. This is constant and the average is + 0.085 for men and + 0.055 for women.

For a male with a body weight of 69.85 kg and assuming average alcohol content, having 45 mg in the blood or 60 mg/100 mL of alcohol in urine, the minimum amount consumed must be 2 fluid oz of whisky (70 per cent proof = 9.98 g/fluid oz) and with 55 mg in blood or 73 mg/100 mL in urine, the minimum amount of beer consumed must be 1½ pints (ordinary beer = 14.7 g/pint).”

“For a male with a body weight of 69.85 kg and assuming average alcohol content, having 45 mg in the blood or 60 mg/100 mL of alcohol in urine, the minimum amount consumed must be 2 fluid oz of whisky (70 per cent proof = 9.98 g/fluid oz) and with 55 mg in blood or 73 mg/100 mL in urine, the minimum amount of beer consumed must be 1½ pints (ordinary beer = 14.7 g/pint).”

106 [We may profitably remind

ourselves in Kennedy v. Smith (See

paragraph 25 of the judgment), it was

a case of one and a half pints of lager

(a kind of beer) and it would have

meant today 55 mg/100 ml well over the

30 mg/100 ml limit in India.]

“… Taken orally, alcohol is quickly absorbed as it is, by simple diffusion mostly from the small intestine, less than 20 per cent from the stomach and circulates in the blood. The absorption of alcohol is facilitated if it is swallowed rapidly in a concentrated solution on an empty stomach, and it is delayed if a weaker solution is slowly drunk while the stomach is full of food; particularly, if it is fatty or contains much proteins. Seventeen to twenty per cent of ingested alcohol may not be absorbed in the blood stream if there is food in the stomach. The rate of absorption of 6 per cent alcohol is 4.7mL/minute. Even drinks mixed with carbonated soda increase absorption. Milk is a potent factor in delaying the absorption of alcohol. Alcohol reaches its maximum concentration in the blood within approximately 30

107 minutes to about 2 hours after it is taken and thus concentration is ordinarily proportional to the amount consumed. While the concentration of alcohol that is excreted in the urine reaches its maximum level in about 20- 25 minutes later than in the blood, the range of the fall is parallel to the fall in the level of alcohol in the blood. The concentration of alcohol in the urine is usually 20-30 per cent higher than that in the blood and is fairly constant. The distribution of alcohol after absorption is throughout the fluids and tissues of the body in proportion to their water content and is the least in fat and bones.

The peculiar feature of metabolism of alcohol is that a fix quantity of alcohol is metabolised in unit time. This is called the zero order kinetic of metabolism (most of the drugs are metabolised by first order kinetics where a certain proportion of the drug is metabolised and the absolute quantity metabolised quantity will go on decreasing as the blood level decreases). About 90 per cent of the consumed alcohol is metabolised in the body, chiefly by oxidation in the liver, which contains the enzyme alcohol dehydrogenase @ about 9-15 mL/hour which is equal to about half a peg of whisky. The result is lowering of alcohol in blood by about 12-15 mg/hour.

108

xxx xxx xxx

Alcohol from the blood passes into the alveolar air through the lungs and during the active absorption stage, a breath analysis will give reliable information. …”

(Emphasis supplied)

60. The learned Author discusses about ‘acute

alcohol intoxication’. He also talks about

chronic poisoning of habitual drinker. We may,

at once, observe that under the Exclusion

Clause, the Court need not be detained by either

condition. In other words, it is not necessary

for the Insurer to establish that there was acute

alcohol intoxication and equally, it need not be

shown that the vehicle was driven by a person

who was a chronic alcoholic. All that is required

is to show that at the time of driving the

vehicle, resulting in the accident, the driver

was under the influence of alcohol. In this

109 regard, we may notice the following observations

of Modi:

“In order to ascertain whether a particular individual is drunk of not, a medical practitioner should bear the following points in mind:

1. The quantity taken is no guide.

2. An aggressive odour of alcohol in the breath, loss of clearness of intellect and control of himself, an unsteady gait, a vacant look, dry and sticky lips, congested eyes, sluggish and dilated pupils, increased pulse rate, an unsteady and thick voice, talking at random and want of perception of the passage of time, are the usual signs of drunkenness. However, the smell of an alcohol drink can persist in the breath for many hours after the alcohol has been excreted from the body, as it is due to non-alcoholic constituents (congeners) in the drink.” (Emphasis supplied)

61. We notice that Blood Alcohol Concentration

or BAC is, thus, the concentration of alcohol in

a person’s blood. In India, the permissible BAC

level is pegged at 30 mg of alcohol in 100 ml.

of blood in Section 185 of the MV Act, 1988.

110 This corresponds to 0.03 percentage of alcohol

in the blood, beyond which, it is an offence

under Section 185 to drive or attempt to drive

as declared. As noticed, BAC is correlated to a

number of variables. It is affected by gender

and body weight. The male has more water content

than a female. On same quantity drunk, the latter

builds up greater BAC than the former. BAC is

also affected clearly on whether the person

drank on an empty stomach or not. The liver

metabolises ordinarily a standard drink at the

rate of a drink in an hour. The frequency, at

which the drinks are taken, impacts the BAC

level. Even the genes play their part.

THREE REPORTS

62. In the United States of America, in fact, a

Report to the Congress on ‘Driving under the

influence and relating to alcohol limits’ given

111 by the Department of Transportation, National

Highway Safety Administration, in October, 1992,

states as follows, inter alia:

“EXECUTIVE SUMMARY Current law defines the danger of driving under the influence of alcohol in two ways. First, it is illegal in all states to drive while impaired by alcohol at any BAC level. For example, any person who is observed driving in an unsafe manner and found to have been drinking, can be charged for driving under the influence of alcohol regardless of actual BAC.

In addition, there are basically two types of laws for the driving public that specify BAC limits.

"Presumptive"2 laws state that if an individual is driving at or above a given BAC, it is presumed that the driver is impaired or intoxicated, but the presumption is open to rebuttal in court. "Per se" laws make it illegal by (or in) the act itself to drive if one's BAC is at or over 'a specified BAC. The per se BAC level is 0.10 in 41 states and the District of Columbia and is 0.08 in 5 states. Four states have only a presumptive limit of 0.10. The laws in some states presume that a person is not impaired if their BAC is 0.05 or below.

112 CHAPTER II. ALCOHOL. EFFECTS

The first report to Congress reviewed the scientific literature on the influence of BAC on driver performance and the relationship between BAC level and crashes. The evidence from these two areas was integrated to draw a number of conclusions about alcohol effects and BAC levels, especially those below 0.10. Among the major conclusions were:

• There is no threshold for alcohol impairment, i.e, there is no lower level at which impairment starts, or below which no impairment is found.

• The greater the amount of alcohol, the greater the degree of impairment on a given task, the more functions (or different kinds of tasks) that are impaired, and the greater the risk of a crash.” (Emphasis supplied)

63. Therefore, the presumptive laws provide for

presumptive limits for alcohol consumption,

contravening which, would result in the

presumption subject to it being rebuttable, that 113 a person was driving under the influence of

alcohol. As of now, in the United States of

America, the presumptive limit, which was

initially reduced from 0.15 to 0.10, has been

further reduced in almost all the States to

0.08. In fact, there are lower BAC (Blood

Alcohol Concentration) levels or zero tolerance

levels, for under aged drivers.

64. In another paper brought out by the U.S.

Department of Transportation in July, 1998,

dealing with ‘the effects of low doses of

alcohol on driving related skills, a review of

the evidence’, the study used 177 citations.

Driving is a multitask skill. Driving involves

performance of various tasks. It includes

psycho-motor skills, perception, visual

function, information processing, concentrated

attention, divided attention, reaction and

tracking. The Report finds as follows: “it seems

114 there is no lower threshold level, below which

impairment does not exist for alcohol”: The

conclusion and Recommendations read as follows:

“CONCLUSIONS AND RECOMMENDATIONS

The aim of the present review was to consider alcohol effects on aspects of skilled performance related to driving, with a view to assessing the extent of impairment caused by low doses of alcohol. The evidence reviewed here indicates that alcohol does not uniformly impair all aspects of performance. Areas such as oculomotor function and divided attention performance demonstrate that impairment can occur at BACs as low as 0.02%. It is clear, moreover, that BACs of 0.05% or more impair nearly all of the important components of driver performance. In assessing the minimum BACs required to produce performance decrements relevant to driving, it can be noted that for most of the performance areas discussed here impairment has been reported at BACs between 0.01 and 0.02%. Unfortunately, relatively few studies have investigated the effects of BACs below 0.04%, so that information about the behavioral impairment at BACs below 0.04% is less available than at 0.05% and above. There is sufficient evidence, however, to demonstrate that 115 BACs of 0.05% and more produce impairment of the major components of driver performance: reaction time, tracking, divided attention performance, information processing, oculomotor functions, perception, and other aspects of psychomotor performance. The few studies on alcohol-aggression effects are consistent with frequent reports by police officers of hostile behaviors exhibited by offenders. The present review has worked from the model provided by Moskowitz (1973a,b), which suggested that driving is a time sharing task, the principal components of which are tracking and visual search and recognition. It is clear that BACs of 0.05% or more impair both of these individual skill components and, at lower levels, also impair the combination of these skills in a divided attention situation. Higher BAC levels (for example, those over 0.10%) also show consistent impairment effects. Evidence from studies of alcohol on actual driving tasks demonstrates that driver performance is similarly affected. Thus, the weight of existing empirical evidence is considered sufficient to scientifically justify the setting of legal BAC limits at 0.05% or lower. Research on BACs below 0.05% should be encouraged. As noted, there is extensive evidence of performance impairments at these lower BACs, but further studies would permit better

116 definition of the BAC levels at which impairment first appears for different behavioral areas. …”

(Emphasis supplied)

65. We deem it appropriate also to refer to

“Report of the Review of Drink and Drug Driving

Law” which was submitted in the year 2010 in the

U.K. The Road Safety Act, 1967, makes it an

offence in the U.K. to drive inter alia a vehicle

with a blood-alcohol concentration in excess of

80 mg. of alcohol per 100 ml. of blood. The

Government appointed Sir Peter North, CBE, Q.C.

to enquire and submit a Report as to whether

there was need to reduce the limit. The Report,

inter alia, states as follows:

“Research findings

3.26. The Centre for Public Health Excellence of the National Institute of Health and Clinical Excellence (NICE) has recently conducted an extensive independent review of the literature which was commissioned by 117 the Department for Transport.34 The review aimed to assess how effective the blood alcohol concentration (BAC) laws are at reducing road traffic injuries and deaths. It also assessed the potential impact of lowering the BAC limit from 80 mg/100 ml to 50 mg/100 ml.

Drink driving and the risk of a road traffic accident 3.29. NICE concluded that there is strong evidence that someone’s ability to drive is affected if they have any alcohol in their blood. Studies consistently demonstrate that the risk of having an accident increases exponentially as more alcohol is consumed. Drivers with a BAC of between 20 mg/100 ml and 50 mg/100 ml have at least a three times greater risk of dying in a vehicle crash than those drivers who have no alcohol in their blood. This risk increases to at least six times with a BAC between 50 mg/100 ml and 80 mg/100 ml, and to 11 times with a BAC between 80 mg/100 ml and 100 mg/100 ml.

3.30. Younger drivers are particularly at risk of crashing whenever they have consumed alcohol – whatever their BAC level – because they are less experienced drivers, are immature and have a lower tolerance to the effects of alcohol than older

118 people. Younger drivers may also be predisposed to risk-taking – regardless of whether or not they have drunk alcohol.

Breath testing devices – Non-

evidential, fixed evidential and portable evidential 3.69. The first practical device for the analysis of alcohol in human breath was developed in the USA in the mid-1950s. The Breathalyzer® instrument gained wide acceptance and was used in traffic law enforcement by police officers in the USA, Canada and Australia over many years.93 The Breathalyzer® provided a non-

intrusive way to determine the driver’s BAC although European nations showed no interest in this method for forensic purposes and instead determined alcohol in blood as evidence for prosecution of drunken drivers. Interest in Europe in evidential breath-alcohol testing arose in the 1980s when more compact, automated and reliable instruments became available.

In Chapter 4: Drink driving – Conclusions and recommendations, following conclusions have been noted:

Lowering the current blood alcohol limit from 80 mg/100 ml to 20 mg/100 ml

119

4.6. As paragraph 1.23 sets out, a blood alcohol concentration (BAC) limit of 20 mg/100 ml is effectively a zero tolerance level. The NICE Report provides clear evidence that a person’s ability to drive is affected after consuming any amount of alcohol. A driver who has a BAC of between 20 mg/100 ml and 50 mg/100 ml is at least 3 times more likely to die in a road traffic accident than a person who has no alcohol in their body.

4.7. In consideration of this evidence, there is clearly merit and sense in a general BAC limit, applicable to all, of 20 mg/100 ml. It is also recognised that a limit of 20 mg/100 ml is consistent with the absolutely correct and necessary ‘do not drink and drive message’. Indeed, a number of European countries including Sweden, Poland and Belgium have adopted a 20 mg/100 ml, or close to 20 mg/100 ml, BAC limit. The Review also noted with interest the vote in support of a ‘zero tolerance’ drink drive limit at the Royal College of Nursing’s annual conference in April 2010.”

66. We may observe here, no doubt that, the age

bracket for younger driver appears to be 17-24

years going by para 3.10 of the report. The 120 committee recommended for a reduction of the BAC

level to 50 mg of alcohol in 100ml of blood.

TWO ARTICLES

EFFECT OF ALCOHOL ON BRAIN DEVELOPMENT BY FARHIN PATEL AND PALASH MANDAL

67. “When people consume alcohol, about 20% is

absorbed in the stomach and almost 80% is

absorbed in the small intestine. Alcohol

absorption is related to the two main factors:

a. Concentration of alcohol and

b. Heavy meal consumption before drinking.

An empty stomach will fasten the alcohol

absorption.”

68. “Absorbed alcohol enters the blood stream

and is carried all through the body. Upon

reaching the body, simultaneously the body works

to eliminate it. The 10% of alcohol is removed

by the kidneys (urine) and lungs (breath). Left- 121 out alcohol is oxidized by the liver, converting

alcohol into acetaldehyde first and then further

converted to acetic acid.”

HOW DOES ALCOHOL ACT AT THE NEUROLOGICAL LEVEL?

69. “Brain chemistry is affected by alcohol

through alteration of neurotransmitters.

Neurotransmitters are chemical messengers that

send out the signals all through the body and

control thought processes, behaviour and

sensation processes. Neurotransmitters are

either excitatory (excite brain electrical

motion) or inhibitory (decrease brain electrical

motion). Alcohol increases the effects of the

inhibitory neurotransmitter GABA in the brain.

GABA causes the lethargic movements and garbled

speech that often occur in alcoholics. At the

same time, alcohol inhibits the excitatory

neurotransmitter glutamate, which results in a

122 suppression of a similar type of physiological

slowdown. In addition, alcohol also increases

the amount of chemical dopamine in the brain

centre, which creates the feeling of pleasure

after drinking alcohol. Just after a few drinks,

the physical effects of alcohol become

perceptible. The level of BAC rises when the

body takes up alcohol faster than it can release

it.”

70. In an Article titled “Police officers’

detection of breath odors from alcohol

ingestion” by Herbert Moskowitz, Marcelline

Burns and Susan Ferguson, we note the following:

“Usually the strength of the odor is categorized as either slight, moderate or strong. Despite the frequent reliance on this clue in officers’ investigation of drivers, little objective evidence is available on the probability of successfully detecting, identifying or measuring alcohol odors.

A computer literature search supplemented by examining references 123 in various publications elicited only two studies examining the detectability of breath alcohol odor. The first study was found in a monograph published by Widmark (1932) (German Edition 1932, English Transaltion, 1981). Widmark was a professor at the University of Lund, Sweden and presented data obtained from behavioral testing of 562 drivers arrested for possible driving under the influence of alcohol. The behavioral testing occurred in police stations throughout Sweden, and were performed by more than 150 physicians. The seven behavioral tests included the odor of alcohol on the breath, the Romberg Test of body sway, walking a straight line and turning, finger to finger test, picking up small objects and slurred speech. Each of these items in the behavioural battery was administered to all subjects. Widmark noted that the examination occurred sometime after arrest at the police station and therefore the breath odor would have been during the post absorption stage. No subject whose blood alcohol concentration (BAC) was 0.06% of below had an alcohol breath odor detected by physicians. Between 0.061 and 0.08% BAC, 33% of the drivers were detected as having an odor; between 0.081 and 0.10% BAC, 63% of the drivers were detected; from 0.101 to 0.181% BAC, detections averaged 81%; between 0.181% and 0.260% BAC, detections averaged 92%; and it was

124 only above 0.261% BAC that an alcoholic odor was 100% detected on the breath.

The other reference dealing with the issue was a National Highway Transportation Safety Administration, Department of Traffic (NHTSA/ DOT) pilot study examining cues utilized by officers in detecting drivers under the influence of alcohol (DUI) (Compton, 1985). This was an experimental study where 75 male volunteer drivers were administered ethanol beverages sufficient to produce BACs of either zero or between 0.05 and 0.15%. Consumption was spaced over a 1.5-2h period. After an additional half hour wait, subjects drove a car over a closed course to a check point, where an officer/ observer conversed with the driver and noted among other symptoms whether an alcohol odor was presented. Other symptoms examined were face flushing, slurred speech, eye dilation, demeanor, disheveled hair, poor dexterity and clothes disheveled. The officers then made a determination whether the driver should be detained for further investigation. Drivers with a zero BAC were correctly identified 93% of the time. There were 7% false-positives, i.e. identification of a zero BAC driver as having alcohol odor. Since officers were aware that they were participating in an alcohol study, a

125 7% false-positive rate is undoubtedly higher than would occur in actual traffic stops. An alcohol odor was detected in drivers with BACs between 0.05 and 0.09% only 39% of the time producing a false negative error rate of 61%. Conversely, 61% of drivers with BACs between 0.10 and 0.15% were detected as emitting an alcohol odor with 39% false negatives, i.e. drivers above 0.10%, not detected. Variability between officers in detecting odor was quite large.” (Emphasis supplied) It is not clear whether the odor in the

breath was sought to be discerned without any

devise.

THE ARGUMENT BASED ON INVESTIGATOR’S REPORT AND THE QUESTION RELATING TO BURDEN OF PROOF

71. Shri Gopal Sankarnarayanan, learned Senior

Counsel for respondent contended that the

argument of the appellant that the Insurer was

saddled with the liability to prove violation of

the condition, which is impossible of

achievement, is without basis, in the facts of

126 this case. In this regard, he pointed out the

contents of the Investigator Report. He pointed

out that the Investigation Report would show

that the Investigator was very much present in

the early morning, and therefore, he had the

opportunity to interact with the driver of the

car, the Police Officers and the Doctors. The

Investigator could have also insisted on getting

the test done on the driver. However, despite

this opportunity being presented, he has not

availed of the same. Thus, it shows that there

is no merit in the appellant’s contention that

the person driving the vehicle was under the

influence of alcohol.

72. The relevant portion of the Investigation

Report reads as follows:

“Description of Investigation with regard to accident of above said vehicle:

With regard to above said Accident Claim, I have been deputed by you to 127 investigate the above said claim. In this regard, I went to accident spot at India Gate on 22.12.07 and inspected the car and thereafter went to P.S. Tilak Marg and enquired about said accident from S.I. Mukhtiyar Singh, I.O. of this case. Information Received from S.I. Mukhtiar Singh:

S.I. Mukhitar Singh posted as P.S. Tilak Marg informed me that he received an accident call which was entered in DDR register vide D.D. entry no. 39 A on 22/12/07 in the morning at 5:05 a.m. and thereafter he alongwith the constable Vinod no. 2098/ND left from P.S. Tilak Marg for the accident spot at India Gate and while they reached at the spot they saw a car no. DL1CJ-3577 has been burning and the Addl SHO and fire brigade were present at the spot. He was being informed that the injured were taken to RML Hospital, where is received copy of MLC No. 62213/07 in the name Ruchi Ram Jaipuria S/o C.K. Jaipuria R/o 11.No. 8, Prithvi Raj Road, New Delhi wherein the doctor has mentioned "No Evidence of Fresh injuries" for medical examination and smell of Breath Alcohol (+) and MLC No. 62214/C7 in the name of Aman Bangia S/o Sh. S.K. Bangia r/o 42A, Pkt C, Siddharth Extn. New Delhi — 14 was made by the doctor wherein doctor has mentioned 'No Evidence of Fresh Injuries "for medical examination 128 and smell of Breath Alcohol (+).

Thereafter he again reached at the spot, where constable Anand Prakash No. 1226 /ND posted at P.S. Tilak marg gave his statement with regard to said accident and on the basis of the record of MLC's of injured Mr. Ruchi Ram Jaipuria and Mr. Aman Bangia they have lodged FIR No. 453/07 on 22/12/07 u/s 279/427 IPC as well as u/s 185 of M.V. Act 1988. Copy of said FIR is enclosed herewith and same is annexed as Annexure "A". My observations are as under:

1. As per the information received from SI Mukhtiar Singh, and after persuing the FIR No. 453/07 dated 22/12/07 of P.s. Tilak Marg and MLC nos. 62213/07 of Mr. Aman Bangia it has been confirmed that the driver, Mr. Aman Bangal was under influence of alcohol due to which he lost the control and as a result of which the said accident has taken place.”

73. An addendum report dated 06.02.2008, is

found as follows:

“This is further to my investigation report dated 27/01/08 relating and pertaining to the investigation of the motor claim of

129 vehicle no. DL1CJ-3577 of M/S Pearl Beverages under covemote no.

37669622.

As per FIR no. 453/07 dated 22/12/07 of P.S.Tilak Marg filed in the instant case,.Section 185 of M.V.Act 1988 has also been imposed. As per section 185 of M.V.Act 1988, driving of a vehicle by a drunken driver is an offence under such section and which is punishable with imprisonment. Thus the said vehicle was being driven by it's driver Mr. Aman Bangia, under the influence of alcohol at the time of said accident.. As such' Prima Facie drunkep driving by the driver Mr. Aman Bangia, has been proved.

The insurer may treat the claim as per the policy terms conditions.”

74. It must be noted that the Report, thus,

indicates that the Investigator was deputed by

the appellant. It also suggests that he went to

the accident spot on 22.12.2007. The reference

to the time being 5.05 A.M. relied upon by the

learned Counsel for the respondent as the time

130 at which the Investigator, inter alia, is

alleged to have reached the spot, is actually

part of the information which the Investigator

received from the Sub-Inspector. The Sub-

Inspector has informed the Investigator that he

received information at 5.05 am and, thereafter,

he, along with a Constable, had reached the spot

and that he saw the car, which was burning. The

only part which makes up the Report, as such,

of the Investigator, is his observations. Thus,

the Investigator’s Report does not appear to

suggest that the Investigator had been to the

accident site at 05.00 A.M. in the morning and,

therefore, had the opportunity to interact with

the driver of the vehicle or ensure that the

test was conducted to show that the driver was

driving under the influence of alcohol. Thus,

we repel the contentions of the respondent.

131

75. On facts, having rejected the argument of

the respondent that the surveyor appointed by

the appellant was present at the time of the

accident or immediately after the accident, we

must look at the some of the terms of the

insurance policy. The contract provides that

the notice shall be given in writing to the

insurer immediately after the occurrence of any

accidental loss or damage in the event of any

claim. The insured has to give all information

and assistance as required by the company. It

is obviously true that the appellant was

intimated on 22.12.2007 which is evident from

the fact that investigator did go to the

accident spot on 22.12.2007 and inspected the

car. The exact time given is however not

mentioned in the report. The time at which he

went was also not got articulated through the

interrogatory issued by the respondent. It

132 would appear to be a case where the driver of

the car not having suffered any fresh injury

would not have been available in the hospital.

The police authorities obviously did not carry

out the blood test or the breath test. As to

what transpired in this regard the matter

remains a mystery. From the F.I.R. it appears

that the informant officer’s priority was to

take the men out and to take them to the

hospital. However, we cannot resist recording

our disquiet at the conduct of the police

officer in not pursuing the matter in the form

of conducting a breath test or other tests and

pursuing the matter under Section 185 of the

Motor Vehicles Act or by filing of final report.

However we desist from saying anything more

having regard to the fact that 14 years have

gone by.

133

76. Coming to the question again on burden of

proof, insofar as the appellant–insured seeks

to establish exclusion of liability is

concerned, the burden of proof is upon it,

subject to what we hold.

77. In the context of question relating to

burden of proof, in the case of this nature, we

cannot but notice Section 106 of the Evidence

Act. Section 106 of the Evidence Act speaks of

the burden of proving facts which are in the

special knowledge of the person. Section 106

of the Evidence Act reads as follows:

“106 Burden of proving facts specially within knowledge - when any fact is specially is within knowledge of any person the burden of proving that fact is upon him.”

78. This Section enshrines the principle which

conduces to establishing facts when those facts

are especially within the knowledge of a party. 134 There can be no doubt this is a salutary

provision which applies to both civil and

criminal matters also. We do notice V. Kishan

Rao (supra), where this Court held as follows:

“13. Before the District Forum, on behalf of Respondent 1, it was argued that the complainant sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of the Evidence Act, 1872. The Forum overruled the objection, and in our view rightly, that complaints before the Consumer Fora are tried summarily and the Evidence Act in terms does not apply.

This Court held in Malay Kumar Ganguly v. Dr. Sukumar

Mukherjee [(2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299] that provisions of the Evidence Act are not applicable and the Fora under the Act are to follow the principles of natural justice (see para 43, p. 252 of the report).”

79. Even if, the Section as such is not

applicable to the Consumer Protection Act, there

can be no reason why the principle cannot apply

to proceedings under the Consumer Protection 135 Act. We may notice a decision of this Court in

Shambu Nath Mehra v. State of Ajmer9. Paragraph

11 of the said judgment reads as under:

“11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that.

It means facts that are pre- eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person

9 AIR 1956 SC 404 136 to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49].” (Emphasis supplied)

80. The same view has been taken in Murlidhar

and others v. State of Rajasthan10 .

81. If we apply the principle of Section 106 of

the Evidence Act, would it not produce the

following result?

The respondent set up the case that the

driver had not consumed any alcohol. In the

very next sentence, it is pleaded that

further assuming that he had consumed

alcohol, as he was not intoxicated the

exclusion clause is not attracted. When it

came to affidavit evidence, however, the

driver has not deposed that he had not

10 AIR 2005 SC 2345

137 consumed intoxicating liquor. He has only

stated that he was neither under the

influence of intoxicating liquor or drugs at

the time of the accident. In view of the

evidence that pointed to the driver smelling

of alcohol and the absence of any evidence

by even the driver that he has not consumed

alcohol and as even found by the National

Commission, it would appear to be clear that

the car was driven by the driver after having

consumed alcohol. In such a case as to what

was the nature of the alcohol and what was

the quantity of alcohol consumed, and where

he had consumed, it would certainly be facts

within the special knowledge of the person

who has consumed the alcohol. The driver has

not, for instance also, once we proceed on

the basis that he has consumed alcohol,

indicated when he has consumed the alcohol.

138 It would be “disproportionately difficult”

as laid down by this Court for the insurer

in the facts to have been proved as to

whether the driver has consumed liquor on an

empty stomach or he had food and then

consumed alcohol or what was the quantity

and quality of the drink (alcohol content)

which would have been circumstances relevant

to consider as to whether he drove the

vehicle under the influence of alcohol. The

driver has merely stated that he was not

under the influence of intoxicating liquor

and he was in his full senses.

82. It is true, no doubt, there are no

interrogatories served on the driver by the

appellant. It must be noted here that this Court

has laid down that having regard to the nature

of the proceeding under the Consumer Protection

Act, the proceeding being summary, cross 139 examination be conducted ordinarily through the

modality of interrogatories. In Dr. J.J.

Merchant (Dr) v. Shrinath Chaturvedi11

“19. It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be

11 (2002) 6 SCC 635 140 examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-

examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross- examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.” (Emphasis supplied)

83. Thus, unlike in proceeding in a court,

ordinarily the insurers may not be in a position 141 to cross examine. It is no doubt true that since

the principle of Section 106 of the Evidence Act

only cast the burden on the person who has

special knowledge of the facts, apart from the

facts, which we have referred to above, viz.,

where it was consumed, the quality and quantity

of alcohol consumed, the time at which it was

consumed, whether it was accompanied by food

which can clearly be said to be within the

knowledge of the person who drove the vehicle,

the effects of the drinking by way of signs

discernible, after the accident took place, in

the facts, cannot be said to be within the

knowledge of the driver only. We say this for

the reason that according to FIR, the police

constable on patrol has purported to describe

the happening of the accident and was present

at that time. According to his version, he has

with the aid of his companion officer helped the

142 driver and the co-passenger out of the vehicle

and they were taken to the hospital. At the

hospital, in the medical 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. It may be true

that the insurer could have obtained material

in the form of affidavit evidence from the

police officer or the medical practitioner

143 concerned regarding any other facts regarding

consumption of alcohol by the driver.

RES IPSA LOQUITUR

84. The State Commission has applied the

principle of res ipsa loquitur. The question

to be answered is not whether the driver of the

vehicle was negligent. Res ipsa loquitur has

been discussed in the decision of this Court in

Syad Akbar v. State of Karnataka12 and this is

what is held:

“19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the 12 (1980) 1 SCC 30 144 defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which “tell their own story” of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle;

one car ramming another from behind, or even a head-on collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. [(1950) 1 All ER 392, 399]; Cream v. Smith [(1961) 8 AER 349]; Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109] )

20. Thus, for the application of the maxim res ipsa loquitur “no less

145 important a requirement is that the res must not only bespeak negligence, but pin it on the defendant”.

85. Thus, it is used in cases of tort and where

the facts without anything more clearly and

unerringly points to negligence. The principle

of res ipsa loquitur, as such, appears to be

inapposite, when, what is in question, is

whether driver was under the influence of

alcohol. It may be another matter that though

the principle as such is inapplicable, the

manner in which the accident occurred may along

with other circumstances point to the driver

being under the influence of alcohol.

THE FLAWS IN THE IMPUGNED ORDER

86. In the order of the National Commission

which is relied upon, the Commission has

referred to Modi’s Medical Jurisprudence and

Toxicology, 24th edition. The Commission finds

146 that in the opinion of the author, the

percentage of alcohol in the blood would be 0.2%

in case the quantity of alcohol per 100 ml of

blood is 200 mg. The finding that a person can

be said to be moderately intoxicated if he has

200 mg per 100 ml is an incorrect inference.

The person who has such a level of alcohol would

have 0.2% of alcohol. Such a person would

clearly be heavily intoxicated. This is clear

from a perusal of the table showing the effects

in the Manual for Physicians referred to in

paragraph 7 of the relied upon order.

87. The further finding that a person with a

concentration of 0.15% of alcohol in the blood

is regarded as fit to drive a motor vehicle and

such percentage happens when he has 150 mg of

alcohol per 100ml blood is an observation made

based on Modi’s Medical Jurisprudence and

Toxicology. Modi in his work has in this regard

147 drawn upon the presumptive limit which

prevailed in the United States. In the United

States, at one point of time, 0.15% of alcohol

concentration was the maximum presumptive

limit. If the alcohol concentration was found

to be in excess of 0.15% unless rebutted by the

accused, it was presumed that the driver was

under the influence of alcohol. In fact, there

was a lower presumptive limit of 0.05% and if

the concentration was below this limit it was

presumed that the driver was not in the wrong.

What is relevant is that following various

studies the presumptive limit on the one hand

stood lowered in all the states and the maximum

presumptive limit was initially reduced to

0.10% and thereafter it was reduced to 0.08%.

In India the percentage is 0.03 which is the

same as 30 mg in 100 ml of blood. In China and

in Sweden, the percentage is still lower. It is

148 0.02%. In paragraph 6 of the relied upon order

reference is made to Lyon’s Medical

Jurisprudence and Toxicology. Reference is made

therein to the policy statement of the American

Medical Association and National Safety Council

of the USA that 0.10% can be taken as prima

facie evidence of alcoholic intoxication and

recognising that many individuals are under the

influence of 0.05% to 0.10% range. This is at

loggerheads with the earlier reference to 0.15%

alcohol not rendering a person unfit to drive

the motor vehicle unless it is understood as

the law at an earlier point of time. The further

reference to 0.05% blood alcohol level raising

a presumption that a subject was not under the

influence of alcoholic beverage is again based

on the set of laws in the United States which

provided for such a presumption. The National

Commission has not considered the fact that

149 along with such presumptive limit, the laws in

the United States also further provide that

irrespective of the alcohol percentage or BAC

level, if the vehicle is not driven safely and

a person has consumed alcohol, he is liable to

be booked under another set of laws. The

observation made in Lyon’s Medical

Jurisprudence that blood alcohol level of less

than 0.10% does not raise a presumption of

intoxication is also contrary to the

developments under which even the presumptive

limit has been reduced to 0.08%. In fact, there

is a zero-percentage alcohol level or 0.02%

alcohol in most states for the underaged drivers

in the United States. Coming to paragraph 7 of

the relied upon order, the Commission has

referred to the Manual for Physicians in

National Drug Dependence Treatment Centre, All

India Institute of Medical Sciences, New Delhi.

150 There is in the first-place error in the second

classification. Actually, it is intended for a

BAC level of ‘above 80’. Even in the said

classification the actual effects of alcohol

consumption are shown as follows – “Noisy,

moody, impaired judgement, impaired driving

ability” as against the third classification

100 to 200 BAC, the effects of which are –

“Electroencephalographic changes begin to

appear, Blurred vision, unsteady gait, gross

motor in-coordination, slurred speech,

aggressive, quarrelsome, talking loudly.”

The Commission has not referred to the effects

of BAC below 80 brought out in the Manual. In

the same, the effects are shown as – “euphoria,

feeling of relaxation and talking freely,

clumsy movement of hands and legs, reduced

alertness but believes himself to be alert.”

The relied upon order also shows disinclination

151 to accept views expressed in Modi’s Medical

Jurisprudence and Toxicology on the basis of

the opinion of All India Institute of Medical

Sciences which is allegedly collaborated by the

opinion expressed in Lyon’s Medical

Jurisprudence and Toxicology. The Commission in

the said case, which did not deal with a case

of driving after consuming liquor, found the

limits relevant as fixed in various countries.

The quantity of alcohol allowed in the USA is

stated to be not above 100 mg in 100 ml of

blood. In fact, in the USA where it also used

to be 100mg in 100 ml, it has now further been

reduced to 0.08% corresponding to 80 mg in 100

ml.

88. We also find that the NCDRC was in error in

conflating the requirement under Section 185 of

the Motor Vehicles Act, with that under the

152 exclusion clause in the contract of insurance

in question.

THE FIR

89. The Report is based on a statement given by

a Police Constable Anand Kumar. His statement

would show that as the Constable posted at the

Police Station, Tilak Marg, New Delhi, on

21/22.12.2007, he and another Constable were on

patrolling. At about 02.25, he on his motorcycle

reached c-hexagon, Zakir Hussain Marg. He saw

the driver of the car No. DL-1CJ-3577 (the car

in question), came from the Nizamuddin side

towards the Zakir Hussain Marg, India Gate, in

a very rash, negligent way and at a very high

speed. Due to very high speed, this car got out

of control and hit at a massive force with a

footpath of c-hexagon, Dr. Zakir Hussain Marg,

Children Park, India Gate, electric pole and

153 the wall of the Children park and got

overturned. The car caught fire. He along with

his associate, a Home Guard, brought the driver

Shri Aman Bangia and his associate out of the

said car, after great efforts and reported about

the incident to wireless opp. (must be operator)

D-56 of Police Station, through wireless.

Vehicles of the fire brigade, PCR Van and

Additional SHO Van, came to the spot. He reports

that the accident occurred due to the rash and

negligent driving. FIR shows that the Sub-

Inspector, on the basis of the said information,

which he recorded, goes to the site of the

accident. It is recorded in the FIR further that

the Add/SHO and the vehicles of the fire brigade

were all so present for controlling the fire.

The PCR van, it is stated, had taken away the

accused to the Ram Manohar Lohia Hospital. The

Sub-Inspector goes to the Hospital. He received

154 the MLC of the driver of the car and the co-

passenger. In the same, the Doctors have

reported that there is no evidence of fresh

injury and smell of alcohol (+). Virtually, the

same report is made about both the driver and

the co-passenger. The age of the driver is shown

as 27 years. It was further recorded that a case

under Section 279/427 of the IPC and Section

185 of the MV Act had been committed. The date

and time of the occurrence is again shown as

22.12.2007 at about 02.25.

90. This FIR is FIR No. 453 of 2007. The

proceedings of the Metropolitan Magistrate dated

27.08.2011 would show that for the offence under

Section 279 of the IPC the charge was separately

framed against the driver of the car and he

voluntarily pleaded guilty. He was convicted

under Section 279 of IPC and sentenced to pay a

155 fine of Rs.1,000/- with, no doubt, a default

clause.

91. A perusal of the Order of the State

Commission would show that the FIR and the

Medico Legal Case sheet has been produced by the

respondent itself.

92. There can be no doubt that the respondent

itself sought to rely on the FIR and the Medico

Legal Case (MLC). We have noticed its contents.

The FIR has been prepared on the basis of the

Report of the Police Officer. The use of the FIR

in criminal case is to be distinguished from its

employment in a consumer case. This is so, in

particular, when the FIR is relied upon by the

complainant himself. It is noteworthy further

that though in the complaint, it was contended

that the Police had lodged the FIR under Section

185 of the Motor Vehicles Act besides Section

279/427 of IPC but no charge-sheet had been

156 filed till the date of the complaint, meaning

thereby that the Police, after investigating the

case, could not find any evidence to prosecute

the driver for any of the offences, it must be

noticed that the complaint is of the year 2009

and it seen dated 04.03.2009, the case of the

respondent that there was no evidence to

prosecute the driver for any of the offences,

is falsified by the driver pleading guilty in

regard to at least one of the offences, viz.,

the offence under Section 279 of IPC, which took

place, apparently, during the pendency of the

complaint before the State Commission and the

State Commission has taken notice of this

development.

93. As far as MLC is concerned, in the complaint

filed by the respondent, there is no dispute

that the MLC contained reference to the driver

and the co-passenger smelling of alcohol.

157

94. At this juncture, it is necessary to notice

the case set up by the respondent. It expressly

sets up the case that the person driving the

vehicle had not consumed any alcohol. The very

next sentence, no doubt, sets up the alternate

case, which is that further assuming that he had

consumed alcohol, the case would not fall under

the Exclusion Clause, as he was, in any case,

not intoxicated.

95. It is further noteworthy that PW1, the

Company Secretary of the respondent, has, in is

his Affidavit evidence, stated that under

Section 185 of the MV Act, a certain percentage

of alcohol is to be found before a person is to

be prosecuted for the offence of drunken

driving. The law does not prohibit driving after

consuming liquor and all that is prohibited is,

that the percentage of liquor should not exceed

30 mg. per 100 ml. of blood. Therefore, the

158 understanding appears to be that only in

circumstances, where the act of driving, having

consumed liquor, attracts the wrath of Section

185 and an offence is committed thereunder, that

the opprobrium of the Exclusion Clause in the

Contract of Insurance, for own damage, is

attracted.

96. The Affidavit of PW2, the driver himself,

would show that he does not depose that he had

not consumed liquor as was the case in the

complaint. Instead, he deposes only that he was

neither under the influence of intoxicating

liquor or drugs at the time of the accident. He

further deposed that he was in his full senses

and capable of exercising proper control over

the said vehicle. Even, at the stage of the

deposition through affidavit, which appears to

have been filed in 2010, he reiterates that the

case in FIR No. 453 of 2007, was falsely

159 registered. The case pending against him in the

Court of the Metropolitan Magistrate, New Delhi,

is stated to be malafide and he is sure to be

acquitted in the said case. Nearly, within a

year, as already noticed by us, however, the

allegedly false case is accepted by the driver

as true. The Affidavit of PW2, would not show

that the driver had not consumed liquor, which

case is set up. On the contrary, driver having

drunk, is fortified by the MLC, which clearly

indicates that the driver was smelling of

alcohol.

97. Therefore, it can be safely concluded that

the case set up of the respondent that the

person driving the car had not consumed

liquor, is clearly false.

160 THE INTERROGATORIES

98. The following interrogatories dated

18.10.2010, were apparently served by the

respondent on the appellant:

“INTERROGATORIES ON BEHALF OF COMPLAINANT

1. Name the surveyor who was appointed in this case.

2. Is the said surveyor still associated with your company?

3. Why have you not filed the affidavit of the said surveyor In the present proceedings?

4. Is M/s Bhola & Associates a Lawyer's Firm?

5. What are the educational qualifications of Mr. Sonu Bhola Advocate?

6. Does Mr. Sonu Bhola have licence to practise as an Advocate. If yes, please give his Bar Council Registration Number?

7. Has Mr. Bhola personally met Mr. Aman Bangia, the Driver of the vehicle. If yes when and where?

8. Whether observation made by Mr. Bhola in his investigation report is only an inference drawn from FIR, MLC or is it based upon some cogent and reliable evidence?

Please furnish details of all those cogent and reliable evidence 161 and show the same from the record of present proceedings.

9. Whether M/s Bhola and Associates are qualified to investigate such case. If yes, how.

10. Did Mr. Sonu Bhola meet any doctor or during his investigation? If yes, please give the time, place and the name of the doctor.

11. Did Mr. Bhola obtain any medical test report from the Doctor or the Investigating officer during his Investigation?

12. Whether any urine test was carried out upon the driver Mr. Aman Bangia to determine consumption of alcohol?

13. Whether the blood sample of the driver Mr. Aman Bangia was taken by the Doctor. If yes, whether the said sample was sent for chemical analysis to determine consumption of alcohol?

14. Do you have any report of urine or blood test of the driver Mr. Aman Bangia?

15. Have you flied affidavit of the Doctor in these proceedings who had stated "smell of alcohol" in his report?

16. Do you have any medical test report which could show the level of alcohol in the blood of the driver?

162

17. Do you know that a criminal case against Mr Aman Bangia is still pending in the court?

99. The reply given to the interrogatories

by the appellant, read as follows:

“REPLY BY RESPONDENTS TO INTERROGATORIES FILED ON BEHALF OF COMPLAINANT

1. Name the surveyor who was appointed in this case.

Ans. Mr. Vikas Puri (Spot Survey), Mr. Jawaharlal (Final Survey).

2. Is the said surveyor still associated with your company?

Ans. Yes.

3. Why have you not filed the affidavit of the said surveyor in the present proceedings?

Ans. Not necessary.

4. Is M/s Bhola & Associates a Lawyer's Firm?

Ans. Yes.

5. What are the educational qualifications of Mr. Sonu Bhola Advocate?

Ans. B.Com LLB.

163

6. Does Mr. Sonu Bhola have licence to practise as an Advocate. If yes, please give his Bar Council Registration Number?

Ans. It is not relevant with the investigation, hence we did not enquire.

7. Has Mr. Bhola personally met Mr. Aman Bangia, the Driver of the vehicle. If yes when and where?

Ans. No.

8. Whether observation made by Mr. Bhola in his investigation report is only an inference drawn from FIR, MLC or is it based upon some cogent and reliable evidence? Please furnish details of all those cogent and reliable evidence and show the same from the record of present proceedings.

Ans. Based on MLC, FIR.

9. Whether M/s Bhola and Associates are qualified to investigate such case. If yes, how.

Ans. Yes. No specific qualifications are prescribed by law.

10. Did Mr. Sonu Bhola meet any doctor or during his investigation? If yes, please give the time, place and the name of the doctor.

Ans. We are not aware of it.

11. Did Mr. Bhola obtain any medical test report from the Doctor or the

164 Investigating officer during his Investigation?

Ans. No.

12. Whether any urine test was carried out upon the driver Mr. Aman Bangia to determine consumption of alcohol? Ans. Don’t know.

13. Whether the blood sample of the driver Mr. Aman Bangia was taken by the Doctor. If yes, whether the said sample was sent for chemical analysis to determine consumption of alcohol? Ans. Don’t know.

14. Do you have any report of urine or blood test of the driver Mr. Aman Bangia?

Ans. No.

15. Have you flied affidavit of the Doctor in these proceedings who had stated "smell of alcohol" in his report?

Ans. No.

16. Do you have any medical test report which could show the level of alcohol in the blood of the driver?

Ans. No.

17. Do you know that a criminal case against Mr Aman Bangia is still pending in the court?

Ans. No.”

165

100. The interrogatories, along with the

answers, reveal the following:

a. The Surveyor of the appellant is a Lawyers

Firm.

b. The Surveyor has not personally met the

driver of the car.

c. The observations made by the Surveyor is

based on the MLC and FIR.

d. The appellant is not aware as to whether

the Surveyor had met any Doctor, during

his investigation.

e. The Surveyor has not obtained any medical

test report from the Doctor or the

Investigating Officer, during his

investigation.

f. The appellant pleads ignorance as to

whether any urine test was conducted on

the driver to determine the consumption of

the alcohol.

166 g. The same is the answer also in regard to

as to whether any blood sample was taken

to determine the consumption of alcohol.

h. The appellant, in its answer, has stated

that it has not filed affidavit of the

Doctor, who has stated ‘smell of alcohol’

in his Report.

i. The appellant has also stated that he does

not have any Medical Report to show the

level of alcohol in the blood.

101. We would think that it would not be

appropriate to conflate the two situations,

viz., the requirement under Section 185 of the

MV Act and an Exclusion Clause in the Contract

of Insurance in question. The requirements of

drunken driving under Section 185 of the MV Act,

can be proved only with reference to the presence

of the alcohol concentration which is 30 mg per

167 100 ml of blood. This corresponds to 0.03 per

cent BAC. In fact, it is noteworthy that in

Sweden and in China, it is 0.02.

102. As far as establishing the contention by the

insurer in a Clause of the nature, we are dealing

with, viz., a case where the insurer alleges

that the driver was driving the vehicle under

the insurance of alcohol, it is all very well,

if there is a criminal case and evidence is

obtained therein, which shows that the driver

had 30 mg/100 ml or more. Or in other words, if

the BAC level was 0.03 or more. We would think

that in a case where, there is a blood test of

breath test, which indicates that there is no

consumption at all, undoubtedly, it would not be

open to the insurer to set up the case of

exclusion. The decision of this Court in

Bachubhai Hassanalli Karyani (supra) was

rendered under Section 117 of the Motor Vehicles

168 Act, 1939, prior to its substitution in 1977,

and what is more it turned on the evidence also.

103. However, in cases, where there is no

scientific material, in the form of test results

available, as in the case before us, it may not

disable the insurer from establishing a case for

exclusion. The totality of the circumstances

obtaining in a case, must be considered. The

scope of the enquiry, in a case under the

Consumer Protection Act, which is a summary

proceeding, cannot be lost sight of. A consumer,

under the Act, can succeed, only on the basis of

proved deficiency of service. The deficiency of

service would arise only with reference to the

terms of the contract and, no doubt, the law

which surrounds it. If the deficiency is not

established, having regard to the explicit terms

of the contract, the consumer must fail.

169

104. It is, in this regard, we would think that

an exclusion of the nature involved in this case,

must be viewed. We can safely proceed in this

case, on the basis that the person driving the

vehicle had consumed alcohol. We can proceed on

the basis that he drove the car after having

consumed alcohol. It is true that the exact

quantity, which he had consumed, is not

forthcoming. The fact that he smelt of alcohol,

is indisputable, having regard to the contents

of the FIR and also the MLC. He was accompanied

by PW3. PW3 also smelt of alcohol. The incident

took place in the early hours of 22.12.2007. It

happened at New Delhi. It is further clear that

it happened in the close vicinity of India Gate.

The driver and the passenger were in their

twenties. At that time of the day, viz., the

early hours, the version of the parties must be

appreciated without reference to any possibility

170 of the accident happening as a result of any

sudden incident happening, as for instance,

attempted crossing of a person or an animal,

which necessitated the vehicle, being involved

in the accident, in the manner, which is borne

out by the FIR. There is simply no such case for

the respondent. It is clear that we can safely

proceed on the basis that the vehicle was driven

in a rash and negligent manner, having regard to

the conviction entered under Section 279 of the

IPC. This is also to be viewed in the context of

the respondent putting up the case that the

driver had not consumed alcohol and that the

case, even under Section 279 of the IPC was a

false case. Still further, if we examine the

exact nature of the accident, it speaks

eloquently for the influence, which the

consumption of alcohol had produced on the

driver of the vehicle. The car, which is

171 undoubtedly a Porsche, which we presume, has a

very powerful engine and capable of achieving

enormous speed, is reported to have gone out of

control and hit at a massive force with the

footpath of the road. It overturned. It caught

fire. In fact, it is the case of the respondent

that the car was a complete wreck. It was

described as a total loss. The vehicles of the

fire brigade came to douse the fire. We are

conscious that speed and its impact can be

relative to the road, the traffic and the speed

limits. The FIR refers to the car being driven

‘very fast’. A person can be rash and negligent

without having been under the influence of

alcohol. At the same time, being under the

influence of alcohol can also lead to rash and

negligent driving. They are not incompatible.

105. This Court would not be remiss, if it takes

into account the improbability of any traffic

172 worth the name at the time of the accident. While

we may be in agreement with the respondent that

it would be for the insurer to make out a case,

for pressing the Exclusion Clause, we cannot be

oblivious to the fact that there is no material

in the pleadings of the respondent or in the

evidence tendered for explaining the accident.

We can take judicial notice of the fact that the

roads in the Capital City, particularly in the

area, where the accident occurred, are

sufficiently wide and the vehicle dashing

against the footpath and turning turtle and

catching fire, by itself, does point to, along

with the fact that the alcohol which was consumed

manifests contemporaneously in the breath of the

driver, to conclude that alcohol did play the

role, which, unfortunately, it is capable of

producing.

173

106. Applying the principles, which have been

referred to, to the facts of the present case,

we summarize the following conclusions:

A. Firstly, in the MLC, in regard to the

driver, the Report, inter alia, indicates

that smell of alcohol (+);

B. Pertinently, the very same Report is there

in regard to the co-passenger. Both the

driver and the passenger were in the late

twenties;

C. The smell of alcohol has been discerned by

a Medical Practitioner;

D. Though the case was set up by the

respondent that the driver had not

consumed alcohol, the driver, in his

evidence (Affidavit evidence), has not

even stated that he has not consumed

alcohol, as was the specific case set up

in the complaint. On the other hand, the

174 alternate case, which was set up that he

was not under the influence of alcohol,

alone was deposed to. This is even though

the respondent had reiterated in the

Rejoinder Affidavit that the driver of the

vehicle had not consumed alcohol or any

other intoxicating drink/drug;

E. Even the NCDRC has proceeded on the basis

that the driver had consumed some alcohol.

Therefore, the conclusion is inevitable

that the appellant has established that

the driver had consumed alcohol and was

driving the vehicle, when the accident

took place;

F. There is no evidence as to the quantity of

alcohol consumed. It is also true that

there is no evidence other than the smell

of alcohol being detected on both the

175 driver and the co-passenger, of any other

effects of consumption of alcohol;

G. The requirement under Section 185 of the

Motor Vehicles Act is not to be conflated

to what constitutes driving under the

influence of alcohol under the policy of

insurance in an Own Damage Claim. Such a

claim must be considered on the basis of

the nature of the accident, evidence as to

drinking before or during the travel, the

impact on the driver and the very case set

up by the parties.

H. The other aspect, which is pressed is, as

regards the manner in which the accident

itself occurred. In this regard, it is

clear that in any such case, this is an

important circumstance, which may

establish that the driver was under the

influence of alcohol. Driving, while under

176 the influence of alcohol, is to be

understood as driving when, on account of

consumption of alcohol, either before

commencement of driving or during the

driving and before the accident, when

consumption of alcohol by the driver would

affect (influence) his faculties and his

driving skills. We would expatiate and

hold that it means that the alcohol

consumed earlier was the cause or it

contributed to the occurrence of the

accident.

I. The respondent has no case that the

accident occurred as a result of a sudden

event which took place, which necessitated

the car being driven into the footpath.

For instance, if there was sudden

attempted human or animal crossing, and

the driver to obviate any such accident,

177 may drive in the manner, which culminated

in the accident. It would be a case where

the driver would still be in control of

his faculties even while having caused the

accident. There is material (particularly,

in the nature of the Summary Proceedings)

under the Consumer Protection Act, in the

form of the FIR. The Police Officer, who

has lodged the information has

specifically stated that the car was being

driven in a very fast manner;

J. The driver, in his chief examination, has

not given any explanation, whatsoever, for

the happening of the accident. He does not

have a case that there was any breakdown

in the car or of the brakes.

K. The driver has pleaded guilty and stands

convicted under Section 279 of the IPC,

which penalises rash or negligent driving.

178 A person, who is not under the influence

of alcohol, can be rash and negligent. But

a person, who is under the influence of

alcohol, can also be rash and negligent.

In other words, they are not wholly

incompatible. On the other hand, being

under the influence of alcohol, aggravates

the possibility of rash and negligent

driving as it can be the proximate cause.

The car was driven by the driver aged about

27. Both, he and his companion had, indeed,

consumed alcohol. The accident took place

when the road would have been wholly free

from any traffic (There is no case

whatsoever that the accident was caused by

another vehicle being driven in any manner

or any person or animal attempting to cross

the road or otherwise deflecting the

attention of the driver). The accident has

179 no apparent cause, even according to the

respondent and the driver and his

companion (PW3), yet we are asked to

believe that the driver was in full control

of his senses. If the State Commission, in

the circumstances, believed the version of

the respondent, in a summary proceeding,

we would believe that NCDRC erred in

interfering, on the reasoning, which we

find as erroneous.

107. What is in a summary proceeding noteworthy,

is in the setting of the width of the road (a

road near India Gate, New Delhi) and the thinnest

possible traffic, and without the slightest

excuse, hitting at the footpath with massive

force, not being able to maintain control,

hitting the electric pole, the wall of the

children park. The impact is so much that it led

180 to the overturning of the car and what is more,

catching fire of the vehicle. This accident is

inexplicable, if the driver is to be believed as

PW2, when he deposed “I was in my full senses

and capable of exercising full control over the

car, at the time of the accident”. It is more

probable that his drink, really led to it. On

the facts, the view of the State Commission is

a plausible view.

108. The upshot of the discussion is that the

impugned Order is liable to be set aside. We

order accordingly. The Appeal stands allowed.

There will be no order as to costs.

…....................J. [UDAY UMESH LALIT]

…....................J. [INDIRA BANERJEE]

…....................J. [K.M. JOSEPH]

NEW DELHI;

APRIL 12, 2021.

181