IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. versus PEARL BEVERAGES LTD. on 12 April 2021

SUPREME COURT REPORTS

[2021] 14 S.C.R.

AIFFCO TOKIO GENERAL INSURANCE COMPANY LTD.

v.

PEARL BEVERAGES LTD.

(CIVIL APPEAL NO. 1526 OF 2021)

BAPRIL 12, 2021

[UDAY UMESH LALIT, INDIRA BANERJEE ANDK.M. JOSEPH, JJ.]

Motor Vehicles Act, 1988 –s.185 – Contract of Insurance –Drunken driving – Liability of insurer – Exclusion Clause –CConsumer Protection Act, 1986 – s.185 – Respondent-Company’scar (Porsche) insured with the appellant, met with an accident andwas completely damaged – Appellant repudiated the claim by therespondent – State Commission rejected the complaint of therespondent – Order set aside by NCDRC – On appeal, held:DPresence of alcohol in excess of 30 mg per 100 ml. of blood is notan indispensable requirement to enable an Insurer to successfullyinvoke the clause – What is required to be proved is driving by aperson under the influence of the alcohol – Drunken driving, acriminal offence, u/s.185 along with its objective criteria of thealcohol-blood level, is not the only way to prove that the personEwas under the influence of alcohol – If the Breath Analyser or anyother test is not performed, the Insurer cannot be barred fromproving his case otherwise – Where there is no scientific material,in the form of test results available, as in the present case, the insureris not disabled from establishing a case for exclusion – NCDRCFwas in error in conflating the requirement u/s.185 with that underthe exclusion clause in the contract of insurance –Further, theappellant has established that the driver had consumed alcoholand was driving the vehicle when the accident took place –Factthat he smelt of alcohol, is indisputable, having regard to the FIRand the MLC– View of the State Commission is a plausible view –GOrder of NCDRC set aside – Penal Code, 1860 – ss.279, 427 –Insurance.

Consumer Protection – Insurance – Contract of Insurance –‘Own damage’ - Clause extricating the Insurer on the basis of thedriver being under the influence of alcohol – Contrasting ModelsH

– Held: One of the models is represented by American cases whereall that required is that the person has in his body alcohol in anydegree – Under this model, it need not influence his conduct – Underthe other model the insurer must show that the person driving thevehicle was under the influence of liquor.

Insurance – Contract of Insurance – Drunken driving –Liability of insurer excluded – Exclusion Clause – “under theinfluence of intoxicating liquor” – Interpretation of – Held: Merepresence of alcohol in any small degree would not be sufficient –Court cannot re-write the contract and hold that the mere presenceof the alcohol, in the slightest degree, is sufficient to exclude theliability of the insurer – It requires something more, namely, that thedriver of the vehicle was at the time of the accident acting underthe influence of intoxicating liquor.

Motor Vehicles Act, 1988 – s.185 – Blood AlcoholConcentration (BAC) – Permissible level; variables correlated to –Discussed.

Evidence Act, 1872 – s.106 – Facts specially within theknowledge of person – Burden of proof – Drunken driving – Carcompletely damaged in accident –As per the respondent-insuredthe driver had not consumed any alcohol – In the very next sentence,it was pleaded that assuming that he had consumed alcohol, as hewas not intoxicated the exclusion clause is not attracted – Held:Driver did not depose that he had not consumed intoxicating liquor– He only stated that he was neither under the influence ofintoxicating liquor or drugs at the time of the accident – Car wasdriven by the driver after having consumed alcohol – In such acase as to what was the nature of the alcohol and what was thequantity of alcohol consumed, and where he had consumed, wouldcertainly be facts within the special knowledge of the person whohas consumed the alcohol – Thus, it would be “disproportionatelydifficult” for the insurer in the facts to prove as to whether thedriver has consumed liquor on an empty stomach or he had foodand then consumed alcohol or what was the quantity and quality ofthe drink (alcohol content), circumstances relevant to consider asto whether he drove the vehicle under the influence of alcohol –Even if, the Section as such is not applicable to the ConsumerProtection Act, the principle can apply to proceedings under theConsumer Protection Act.

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AMotor Vehicles Act, 1988 – s.185 – Road Traffic Act, 1988 –ss.3A, 4, 5, 6B – Comparison between – Discussed.

Doctrines/Principles – res ipsa loquitur – Applicability of –Drunken driving – State Commission applied the principle of resipsa loquitur– Held: res ipsa loquitur is used in cases of tort and whereBthe facts without anything more clearly and unerringly point tonegligence – Principle of res ipsa loquitur, as such, appears to beinapposite, when, what is in question, is whether driver was underthe influence of alcohol – Though the principle as such is inapplicable,the manner in which the accident occurred may along with othercircumstances point to the driver being under the influence of alcohol.CMotor Vehicles Act, 1988 – s.185 – Motor Vehicles Act, 1939– s.117 – Differences between – Discussed.

Consumer Protection Act, 1986 – Enquiry – Scope of – Held:Scope of the enquiry, in a case under the Consumer Protection Act,which is a summary proceeding, cannot be lost sight of – A consumer,Dunder the Act, can succeed, only on the basis of proved deficiencyof service which would arise only with reference to the terms of thecontract and the law which surrounds it – If the deficiency is notestablished, having regard to the explicit terms of the contract, theconsumer must fail.

Motor Vehicles Act, 1988 – ss.185, 203, 204 – ConsumerEProtection Act, 1986 – Held: Requirement of s.185 is in the contextof a criminal offence – If there is a conviction u/s.185, it wouldfortify the Insurer in successfully invoking Exclusion Clause –However, if prosecution has not filed a case u/s.185, that would notmean that a competent Forum in an action alleging deficiency ofFservice, under the Consumer Protection Act, is disabled from findingthat the vehicle was being driven by the person under the influenceof the alcohol.

Road Traffic Act, 1988 – ss.3A, 4, 5, 6B – Impairment Test –Discussed – Motor Vehicles Act, 1988 – s.185.GInsurance – Drunken driving –Exclusion Clause –Liability ofinsurer excluded –Held: It is not necessary for the Insurer to establishthat there was acute alcohol intoxication or that the vehicle was drivenby a person who was a chronic alcoholic – All that is required is toshow that at the time of driving the vehicle, resulting in the accident,the driver was under the influence of alcohol –Scientific aspects aboutHalcohol discussed–Motor Vehicles Act, 1988 – ss. 185, 203, 204.

Words & Phrases– “under the influence of alcohol”–Contract of Insurance– Interpretation of– English Courts/ScottishCourt and decisions from the United States – Discussed.

Allowing the appeal, the Court

HELD: 1. A CASE FROM SCOTLAND

In the present case, there is no evidence either recordingthe exact nature of alcoholic drink which was consumed by thedriver and there is also no material as to the quantity consumedby him. There is no evidence, in fact, as to the exact point of timewhen the alcohol was consumed by the driver. Whereas on theevidence adduced in the case before the Court in the decisionreferred to, there was evidence as to the time when the alcoholwas consumed. Further the driver offered an explanation as tohow the accident unfolded when there is none in the case beforethis Court. As far as the view taken by the President of the Courtthat the Trial Judge was not entitled to rely upon the fact that thedefendant drank a lager upon an empty stomach, this Court isunable to endorse the same. This is for the reason that there isenough material available to show that when one drinks on anempty stomach, there is greater and faster infusion of the alcoholinto the system leading to increased Blood Alcohol Concentration(BAC) level. This is for the reason that when liquor is consumedon an empty stomach, the liquor moves on from the stomachunobstructed into the small intestine from where 80% of theabsorption of alcohol takes place. Therefore, this does indeedplay a role in the Court assessing and finding, that given the othercircumstances to support the finding of consumption of alcoholas to whether the alcohol has contributed to the occurrence ofthe accident. It is also not irrelevant to bear in mind that a personwho is alcohol tolerant which means that having becomeaccustomed to consume liquor, the brain in particular is able tohold up to the alcoholic consumption and deal with its effectwhereas when a novice or a beginner consumes alcohol, itsconsequences would be different. [Paras 27, 30][150-D-F;151-B-E]

Kennedy v. Smith 1975 S.C. 266; (1975) 6 WLUK 97 –referred to.

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108SUPREME COURT REPORTS

A2. THE POSITION IN THE UNITED STATES OF AMERICA

Therefore, an analysis of the principles as laid down bothby the English Courts/Scottish Court and decisions from theUnited States would persuade the Court to hold as follows:

The exclusion from the liability of the Insurer would dependBupon the exact terms of the Insurance.The present case doesnot deal with a third-party claim. Under the aegis of the MotorVehicles Act, the Court is not oblivious of the provisions of Section149(2) in the unamended provisions of the Motor VehiclesAct,1988 which are captured in Section 150 of the present avtaarCafter the amendment as regards the defences available to theInsurer regarding such claims. The Court is dealing with a caseof own damage and the clause which extricates the Insurer onthe basis of the driver being under the influence of alcohol, interalia. There are two variants. One of the models is representedby American cases where all that required is that the person hasDin his body alcohol in any degree. Under the said model, it neednot influence his conduct. Under the said model, it is not necessaryfor the Insurer to show that person concerned was intoxicated orunder the influence of intoxicated liquor. The other model whichis applicable in the facts of the case, viz., the insurer must showEthat the person driving the vehicle was under the influence ofliquor. The contrast between the models is stark and perceptible.As far as the exclusion of the nature the Court is concerned with,which requires driving of the vehicle by a person under theinfluence of intoxicating liquor, it would appear to be clear thatmere presence of alcohol in any small degree would not beFsufficient. This is for the reason that the court cannot re-writethe contract and hold that the mere presence of the alcohol, inthe slightest degree, is sufficient to exclude the liability of theinsurer. It requires something more, namely, that the driver ofthe vehicle was at the time of the accident acting under theGinfluence of intoxicating liquor. The decisions of the EnglishCourts are closer home and of assistance in the laying down ofthe law. It must be shown that in the facts and circumstances ofeach case that the consumption of liquor had, if not caused theaccident, which undoubtedly would bring the accident within the H

mischief of the clause but at least contributed in a perceptibleway to the causing of the accident. [Paras 35, 36][154-E-H;155-A-E]

Webb v. Imperial Life Ins. Co. [Inc. 216 N.C. 10 (1939)];Heltsley v. Life & Casualty Ins. Co. [299 Ky. 396(1945)]; Standard Life & Acc. Ins. Co. v. Jones 94 Ala.434 – referred to.

3. SECTION 185 OF THE MOTOR VEHICLES ACT, 1988

The Motor Vehicles Act, 1988 repealed the Motor VehiclesAct 1939. It is important to notice certain provisions of the saidAct also. Section 117 can be referred to as the provisioncorresponding to Section 185 of the present Act with significantdifferences. This provision came to be substituted by Act 27 of1977. After its substitution as aforesaid Section 117 the lawgiverushered in a stricter restriction in regard to drunken driving. Infact, prior to present Section 185 of the Motor Vehicles Act beingsubstituted by Act 54 of 1994, Section 185 was similarly wordedas Section 117 of the Motor Vehicles act 1939, as substituted in1977. It will be noticed immediately that the decision of this Courtrendered in Bachubhai Hassanalli Karyani v. State of Maharashtrarelied upon by the respondent arose under Section 117 of MotorVehicles Act, 1939 which required not merely that the personwas under the influence of drink but it was to be to such an extentas to render him incapable of exercising proper control over thevehicle. Section 117 after its substitution in 1977, on the otherhand, carved out a criminal offence insofar as alcohol is concerned,on the basis that the driver had in his blood, alcohol in anyquantity, however small the quantity was. This was similar in factto the clauses in the contracts of insurance obtaining in the UnitedStates. This became associated with the presence of the smallestquantity of alcohol in the blood. As far as Section 185 of the MotorVehicles Act, 1988 is concerned, the offence is committed if thereis a specified amount of alcohol found namely, 30 mg in 100 ml. ofblood. In this regard, the law in the United Kingdomcorresponding to the Motor Vehicles Act and also an early decisionof the Bombay High Court interpreting a statute dealing with theissue may profitably be referred to. [Paras 41-43][159-D-E, G-H;160-D-H]

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110SUPREME COURT REPORTS

[2021] 14 S.C.R.

ABachubhai Hassanalli Karyani v. State of Maharashtra(1971) 3 SCC 930 – referred to.

4.1 To be under the influence of alcohol, must be understoodas, a question going to the facts and a matter to be decided withreference to the impact of consumption of alcohol on the particularBdriver. Yet another example will throw light on a seemingly vexedissue. A person, who drinks on an empty stomach, wouldnecessarily have a faster rate of the alcohol making its presencein the blood, and consequently, in the brain. A person, on theother hand, who has had food along with the alcohol, may manifestthe effect of alcohol later. If in a case, without there being anyCblood test, circumstances, associated with effects of consumptionof alcohol, are proved, it may certainly go to show that the personwho drove the vehicle, had come under the influence of alcohol.The manner, in which the vehicle was driven, may again, if itunerringly points to the person having been under the influenceDof alcohol, be reckoned. Evidence, if forthcoming, of an unsteadygait, smell of alcohol, the eyes being congested, apart from, ofcourse, actual consumption of alcohol, either before thecommencement of the driving or even during the process ofdriving, along with the manner in which the accident took place,may point to the driver being under the influence of alcohol. ItEwould be a finding based on the effect of the pleadings and theevidence. [Paras 50, 51][166-C-D; 167-A-C]

Mair (Administratrix) v. Railway Passengers AssuranceCo. Limited. 1877 37 L.T. 356 DC – referred to.

FModi’s Medical Jurisprudence and Toxicology –referred to.

4.2 Section 185 of the Motor Vehicles Act creates a criminaloffence. The short title of Section 185 undoubtedly proclaims thatit purports to deal with driving by a drunken person or by a personGunder the influence of drugs. The offence as far as driving by adrunken person is concerned, was built around breach of anobjective standard, viz., the presence of alcohol in the driver inexcess of 30 mg per 100 ml. of blood detected in a test of breathanalyser. The Section mandates the proving of the objective H

criteria of presence of alcohol exceeding 30 mg per 100 ml. ofblood in a test by a breath analyser. It is here that Section 203 ofthe Motor Vehicles Act becomes apposite. It empowers the policeofficer to require any person driving or attempting to drive motorvehicle in a public place to provide one or more specimen ofbreath for breath test, if Police Officer or Officer of Motor VehicleDepartment has reasonable cause to suspect the driver hascommitted an offence u/s 185. Section 203(2) deals with thesituation where the vehicle is involved in an accident in a publicplace. In such circumstances, on a Police Officer in uniformentertaining any reasonable cause to suspect that the persondriving the vehicle, at the time of the accident, had alcohol in hisblood, inter alia, he may require the person to provide specimenof his breath in the breath test in the manner provided. Section203(6) declares that the result of the breath test made underSection 203 shall be admissible in evidence. Section 203contemplates arrest without warrant being effected, if the testindicated the presence of alcohol in the breath test. Section 204follows up on a person who is arrested under Section 203. It,inter alia, provides that a person who has been arrested underSection 203 is to provide to such medical practitioner as may beproduced by such police officer, a specimen of his blood for alaboratory test, if either it appears to the police officer that thebreath test reveals the presence of alcohol in the blood of suchperson or such person when given the opportunity to submit to abreath test, has refused, omitted or failed to do so. The result ofthe laboratory test is also made admissible. Section 185 dealswith driving or attempting driving of a motor vehicle a personwith alcohol in excess of 30 mg per 100 ml in blood which isdetected in a test of breath analyser. Being a criminal offence, itis indisputable that the ingredients of the offence must beestablished as contemplated by law which means that the casemust be proved beyond reasonable doubt and evidence mustclearly indicate the level of alcohol in excess of 30 mg in 100 mlblood and what is more such presence must be borne out by atest by a breath analyser. With effect from 01.09.2019,the following words have been added to Section 185, that is “orin any other test including laboratory test”. [Paras 52, 53][167-C-H; 168-A-E]

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A4.3 The Contract of Insurance, in the present case, is acomprehensive Contract of Insurance dealing with own damageand, no doubt, also third party. What is, however, involved in thiscase, is the liability alleged with the Insurer under Clause (A),which deals with ‘own damage’. In regard to a claim involved inthis case, there is nothing in law which would otherwise disentitleBthe appellant from setting up the case that the exclusion clausewould disentitle the respondent from succeeding. As to whetherit is a case of driving of the vehicle under the influence of thealcohol is different matter, altogether. The requirement of Section185 is in the context of a criminal offence. While it may be trueCthat if there is a conviction under Section 185, it would,undoubtedly, fortify the Insurer in successfully invoking ExclusionClause 2(c), is the reverse also true? If prosecution has not fileda case under Section 185, that would not mean that a competentForum in an action alleging deficiency of service, under theConsumer Protection Act, is disabled from finding that the vehicleDwas being driven by the person under the influence of the alcohol.The presence of alcohol in excess of 30 mg per 100 ml. of bloodis not an indispensable requirement to enable an Insurer tosuccessfully invoke the clause. What is required to be proved isdriving by a person under the influence of the alcohol. DrunkenEdriving, a criminal offence, under Section 185 along with itsobjective criteria of the alcohol-blood level, is not the only wayto prove that the person was under the influence of alcohol. Ifthe Breath Analyser or any other test is not performed for anyreason, the Insurer cannot be barred from proving his caseotherwise. What the Court is dealing in this case is, constructionFof words in a contract between the parties. There is no case forthe respondent that the terms of the contract to exclude theliability of the appellant, are in any way illegal. Without difficulty acircumstancecan be imagined in which the proposition that shouldthe Insurer fail to establish a case in terms of Section 185 BALG(Blood Analyser Test), it would fail, may not be the properapproach to the issue. It is not difficult to contemplate that theaccident may take place with the driver being under the influenceof alcohol and neither the Breath Test nor the laboratory test isdone. A driver after the accident, may run away. A test may never H

be performed. However, there may be evidence available whichmay indicate that the vehicle in question was being driven at thetime of the accident by a person under the influence of alcohol. Itcannot then be said that merely because there is no testperformed, the Insurer would be deprived of its right to establisha case which is well within its rights under the contract.[Paras 56-58][170-D-H; 171-A-D]

5. A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL

It is not necessary for the Insurer to establish that therewas acute alcohol intoxication and equally, it need not be shownthat the vehicle was driven by a person who was a chronicalcoholic. All that is required is to show that at the time of drivingthe vehicle, resulting in the accident, the driver was under theinfluence of alcohol.Blood Alcohol Concentration or BAC is, thus,the concentration of alcohol in a person’s blood. In India, thepermissible BAC level is pegged at 30 mg of alcohol in 100 ml.of blood in Section 185 of the MV Act, 1988.This corresponds to0.03 percentage of alcohol in the blood, beyond which, it is anoffence under Section 185 to drive or attempt to drive asdeclared.BAC is correlated to a number of variables. It is affectedby gender and body weight. The male has more water contentthan a female. On same quantity drunk, the latter builds up greaterBAC than the former. BAC is also affected clearly on whetherthe person drank on an empty stomach or not. The livermetabolises ordinarily a standard drink at the rate of a drink inan hour. The frequency, at which the drinks are taken, impactsthe BAC level. Even the genes play their part. [Paras 60, 61][173-H; 174-A-B, E-G]

Modi’s Medical Jurisprudence and Toxicology, 26[th]Edition – referred to.

6.1 INVESTIGATOR’S REPORT AND THE QUESTIONRELATING TO BURDEN OF PROOF

The Report indicates that the Investigator was deputed bythe appellant. It also suggests that he went to the accident spoton 22.12.2007. The reference to the time being 5.05 A.M. reliedupon by the learned Counsel for the respondent as the time at AB

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Awhich the Investigator, inter alia, is alleged to have reached thespot, is actually part of the information which the Investigatorreceived from the Sub-Inspector. The Sub- Inspector has informedthe Investigator that he received information at 5.05 am and,thereafter, he, along with a Constable, had reached the spot andthat he saw the car, which was burning. The only part which makesBup the Report, as such, of the Investigator, is his observations.Thus, the Investigator’s Report does not appear to suggest thatthe Investigator had been to the accident site at 05.00 A.M. inthe morning and, therefore, had the opportunity to interact withthe driver of the vehicle or ensure that the test was conducted toCshow that the driver was driving under the influence of alcohol.Thus, the contentions of the respondentis repelled. The contractprovides that the notice shall be given in writing to the insurerimmediately after the occurrence of any accidental loss or damagein the event of any claim. The insured has to give all informationand assistance as required by the company. It is obviously trueDthat the appellant was intimated on 22.12.2007 which is evidentfrom the fact that investigator did go to the accident spot on22.12.2007 and inspected the car. The exact time given is howevernot mentioned in the report. The time at which he went was alsonot got articulated through the interrogatory issued by theErespondent. It would appear to be a case where the driver of thecar not having suffered any fresh injury would not have beenavailable in the hospital. The police authorities obviously did notcarry out the blood test or the breath test. As to what transpiredin this regard the matter remains a mystery. From the F.I.R. itappears that the informant officer’s priority was to take the menFout and to take them to the hospital. However, the Court cannotresist recording disquiet at the conduct of the police officer innot pursuing the matter in the form of conducting a breath test orother tests and pursuing the matter under Section 185 of theMotor Vehicles Act or by filing of final report. Coming to theGquestion again on burden of proof, insofar as the appellant–insured seeks to establish exclusion of liability is concerned, theburden of proof is upon it, subject to what this Court holds.[Paras 74-76][184-A-D, E-H; 185-A-C]

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6.2 Section 106 of the Evidence Act speaks of the burdenof proving facts which are in the special knowledge of the person.This Section enshrines the principle which conduces toestablishing facts when those facts are especially within theknowledge of a party. Even if, the Section as such is not applicableto the Consumer Protection Act, there can be no reason why theprinciple cannot apply to proceedings under the ConsumerProtection Act. [Paras 77-79][185-B, C-G]

Shambu Nath Mehra v. State of Ajmer AIR 1956 SC404 : [1956] SCR 199 – relied on.

6.3 The respondent set up the case that the driver had notconsumed any alcohol. In the very next sentence, it is pleadedthat further assuming that he had consumed alcohol, as he wasnot intoxicated the exclusion clause is not attracted. When it cameto affidavit evidence, however, the driver has not deposed thathe had not consumed intoxicating liquor. He has only stated thathe was neither under the influence of intoxicating liquor or drugsat the time of the accident. In view of the evidence that pointedto the driver smelling of alcohol and the absence of any evidenceby even the driver that he has not consumed alcohol and as evenfound by the National Commission, it would appear to be clearthat the car was driven by the driver after having consumedalcohol. In such a case as to what was the nature of the alcoholand what was the quantity of alcohol consumed, and where hehad consumed, it would certainly be facts within the specialknowledge of the person who has consumed the alcohol. Thedriver has not, for instance also, once this Court proceeds on thebasis that he has consumed alcohol, indicated when he hasconsumed the alcohol. It would be “disproportionately difficult”as laid down by this Court for the insurer in the facts to havebeen proved as to whether the driver has consumed liquor on anempty stomach or he had food and then consumed alcohol orwhat was the quantity and quality of the drink (alcohol content)which would have been circumstances relevant to consider as towhether he drove the vehicle under the influence of alcohol. Thedriver has merely stated that he was not under the influence ofintoxicating liquor and he was in his full senses. It is true, no A

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Adoubt, there are no interrogatories served on the driver by theappellant. This Court has laid down that having regard to thenature of the proceeding under the Consumer Protection Act,the proceeding being summary, cross examination be conductedordinarily through the modality of interrogatories. Thus, unlikein proceeding in a court, ordinarily the insurers may not be in aBposition to cross examine. Since the principle of Section 106 ofthe Evidence Act only cast the burden on the person who hasspecial knowledge of the facts, apart from the facts, referred to,viz., where it was consumed, the quality and quantity of alcoholconsumed, the time at which it was consumed, whether it wasCaccompanied by food which can clearly be said to be within theknowledge of the person who drove the vehicle, the effects ofthe drinking by way of signs discernible, after the accident tookplace, in the facts, cannot be said to be within the knowledge ofthe driver only. This is for the reason that according to FIR, thepolice constable on patrol has purported to describe theDhappening of the accident and was present at that time. Accordingto his version, he has with the aid of his companion officer helpedthe driver and the co-passenger out of the vehicle and they weretaken to the hospital. At the hospital, in the medical legal report,there is reference to breath of alcohol(+). It is, however, trueEthat the insurer or his agent may not have been given notice atthat stage. It would not be proper or legal to hold that in suchcircumstances, the insurer would still be in a position to provethrough a breath test or blood test that the driver was under theinfluence of alcohol. If the driver having regard to the fact did notsuffer any fresh injury is discharged from the hospital and goesFaway, it is inconceivable as to how the insurer could be at fault fornot having a breath or blood test conducted. It may be true thatthe insurer could have obtained material in the form of affidavitevidence from the police officer or the medical practitionerconcerned regarding any other facts regarding consumption ofGalcohol by the driver. [Paras 81-83][186-F-H; 187-A-D;188-D-H; 189-A]

V. Kishan Rao v. Nikhil Super Speciality Hospital andanother (2010) 5 SCC 513 : [2010] 5 SCR 1; Murlidharand others v. State of Rajasthan AIR 2005 SC 2345 :

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[2005] 1 Suppl. SCR 175; Dr. J.J. Merchant (Dr) v.Shrinath Chaturvedi (2002) 6 SCC 635 : [2002] 1 Suppl.SCR 469 – relied on.

7. RES IPSA LOQUITUR

The State Commission has applied the principle of res ipsaloquitur. The question to be answered is not whether the driverof the vehicle was negligent. Thus, it is used in cases of tort andwhere the facts without anything more clearly and unerringlypoints to negligence. The principle of res ipsa loquitur, as such,appears to be inapposite, when, what is in question, is whetherdriver was under the influence of alcohol. It may be another matterthat though the principle as such is inapplicable, the manner inwhich the accident occurred may along with other circumstancespoint to the driver being under the influence of alcohol.[Paras 84, 85][189-B; 190-B-C]

Syad Akbar v. State of Karnataka (1980) 1 SCC 30 :[1980] 1 SCR 95 – relied on.

8. THE FLAWS IN THE IMPUGNED ORDER

In the order of the National Commission which is reliedupon, the Commission has referred to Modi’s MedicalJurisprudence and Toxicology, 24th edition. The Commissionfinds that in the opinion of the author, the percentage of alcoholin the blood would be 0.2% in case the quantity of alcohol per100 ml of blood is 200 mg. The finding that a person can be saidto be moderately intoxicated if he has 200 mg per 100 ml is anincorrect inference. The person who has such a level of alcoholwould have 0.2% of alcohol. Such a person would clearly beheavily intoxicated. This is clear from a perusal of the tableshowing the effects in the Manual for Physicians referred to inparagraph 7 of the relied upon order. The further finding that aperson with a concentration of 0.15% of alcohol in the blood isregarded as fit to drive a motor vehicle and such percentagehappens when he has 150 mg of alcohol per 100ml blood is anobservation made based on Modi’s Medical Jurisprudence andToxicology. Modi in his work has in this regard drawn upon thepresumptive limit which prevailed in the United States. In the A

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AUnited States, at one point of time, 0.15% of alcohol concentrationwas the maximum presumptive limit. If the alcohol concentrationwas 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 theconcentration was below this limit it was presumed that the driverBwas not in the wrong. What is relevant is that following variousstudies the presumptive limit on the one hand stood lowered inall the states and the maximum presumptive limit was initiallyreduced to 0.10% and thereafter it was reduced to 0.08%. InIndia the percentage is 0.03 which is the same as 30 mg in 100Cml of blood. In China and in Sweden, the percentage is still lower.It is 0.02%. In paragraph 6 of the relied upon order reference ismade to Lyon’s Medical Jurisprudence and Toxicology.Reference is made therein to the policy statement of theAmerican Medical Association and National Safety Council of theUSA that 0.10% can be taken as prima facie evidence of alcoholicDintoxication and recognising that many individuals are under theinfluence of 0.05% to 0.10% range. This is at loggerheads withthe earlier reference to 0.15% alcohol not rendering a personunfit to drive the motor vehicle unless it is understood as the lawat an earlier point of time. The further reference to 0.05% bloodEalcohol level raising a presumption that a subject was not underthe influence of alcoholic beverage is again based on the set oflaws in the United States which provided for such a presumption.The National Commission has not considered the fact that alongwith such presumptive limit, the laws in the United States alsofurther provide that irrespective of the alcohol percentage orFBAC level, if the vehicle is not driven safely and a person hasconsumed alcohol, he is liable to be booked under another set oflaws. The observation made in Lyon’s Medical Jurisprudencethat blood alcohol level of less than 0.10% does not raise apresumption of intoxication is also contrary to the developmentsGunder which even the presumptive limit has been reduced to0.08%. In fact, there is a zero-percentage alcohol level or 0.02%alcohol in most states for the underaged drivers in the UnitedStates. Coming to paragraph 7 of the relied upon order, theCommission has referred to the Manual for Physicians in National H

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Drug Dependence Treatment Centre, All India Institute ofMedical Sciences, New Delhi. There is in the first-place error inthe second classification. Actually, it is intended for a BAC levelof ‘above 80’. Even in the said classification the actual effects ofalcohol consumption are shown as follows – “Noisy, moody,impaired judgement, impaired driving ability” as against the thirdclassification 100 to 200 BAC, the effects of which are –“Electroencephalographic changes begin to appear, Blurredvision, unsteady gait, gross motor in-coordination, slurred speech,aggressive, quarrelsome, talking loudly.” The Commission hasnot referred to the effects of BAC below 80 brought out in theManual. In the same, the effects are shown as – “euphoria, feelingof relaxation and talking freely, clumsy movement of hands andlegs, reduced alertness but believes himself to be alert.”Therelied upon order also shows disinclination to accept viewsexpressed in Modi’s Medical Jurisprudence and Toxicology onthe basis of the opinion of All India Institute of Medical Scienceswhich is allegedly collaborated by the opinion expressed in Lyon’sMedical Jurisprudence and Toxicology. The Commission in thesaid case, which did not deal with a case of driving after consumingliquor, found the limits relevant as fixed in various countries.The quantity of alcohol allowed in the USA is stated to be notabove 100 mg in 100 ml of blood. In fact, in the USA where it alsoused to be 100mg in 100 ml, it has now further been reduced to0.08% corresponding to 80 mg in 100 ml. The NCDRC was inerror in conflating the requirement under Section 185 of the MotorVehicles Act, with that under the exclusion clause in the contractof insurance in question. [Paras 86-88][190-C-H; 191-A-H;192-A-C]

9.1 THE FIR

The respondent itself sought to rely on the FIR and theMedico Legal Case (MLC). The FIR has been prepared on thebasis of the Report of the Police Officer. The use of the FIR incriminal case is to be distinguished from its employment in aconsumer case. This is so, in particular, when the FIR is reliedupon by the complainant himself. Though in the complaint, it wascontended that the Police had lodged the FIR under Section 185of the Motor Vehicles Act besides Section 279/427 of IPC but no AB

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Acharge-sheet had been filed till the date of the complaint, meaningthereby that the Police, after investigating the case, could notfind any evidence to prosecute the driver for any of the offences,it must be noticed that the complaint is of the year 2009 and itseen dated 04.03.2009, the case of the respondent that therewas no evidence to prosecute the driver for any of the offences,Bis falsified by the driver pleading guilty in regard to at least oneof the offences, viz., the offence under Section 279 of IPC, whichtook place, apparently, during the pendency of the complaintbefore the State Commission and the State Commission has takennotice of this development. As far as MLC is concerned, in theCcomplaint filed by the respondent, there is no dispute that theMLC contained reference to the driver and the co-passengersmelling of alcohol. [Paras 92,93][193-D-H]

9.2 The respondentexpressly sets up the case that theperson driving the vehicle had not consumed any alcohol. TheDvery next sentence, sets up the alternate case, which is thatfurther assuming that he had consumed alcohol, the case wouldnot fall under the Exclusion Clause, as he was, in any case, notintoxicated. PW1, the Company Secretary of the respondent, has,in his Affidavit evidence, stated that under Section 185 of theMV Act, a certain percentage of alcohol is to be found before aEperson is to be prosecuted for the offence of drunken driving.The law does not prohibit driving after consuming liquor and allthat is prohibited is, that the percentage of liquor should notexceed 30 mg. per 100 ml. of blood. Therefore, the understandingappears to be that only in circumstances, where the act of driving,Fhaving consumed liquor, attracts the wrath of Section 185 and anoffence is committed thereunder, that the opprobrium of theExclusion Clause in the Contract of Insurance, for own damage,is attracted. The Affidavit of PW2, the driver himself, would showthat he does not depose that he had not consumed liquor as was the case in the complaint. Instead, he deposes only that he wasGneither under the influence of intoxicating liquor or drugs at thetime of the accident. He further deposed that he was in his fullsenses and capable of exercising proper control over the saidvehicle. Even, at the stage of the deposition through affidavit,which appears to have been filed in 2010, he reiterates that theH

case in FIR No. 453 of 2007, was falsely registered. The casepending against him in the Court of the Metropolitan Magistrate,New Delhi, is stated to be malafide and he is sure to be acquittedin the said case. Nearly, within a year, however, the allegedlyfalse case is accepted by the driver as true. The Affidavit of PW2,would not show that the driver had not consumed liquor, whichcase is set up. On the contrary, driver having drunk, is fortifiedby the MLC, which clearly indicates that the driver was smellingof alcohol. Therefore, the case set up of the respondent that theperson driving the car had not consumed liquor, is clearly false.[Paras 94-97][193-H; 194-A-G]

10.1 INTERROGATORIES

The interrogatories, along with the answers, reveal thefollowing: a. The Surveyor of the appellant is a Lawyers Firm.b.The Surveyor has not personally met the driver of the car. c. Theobservations made by the Surveyor is based on the MLC andFIR. d. The appellant is not aware as to whether the Surveyorhad met any Doctor, during his investigation. e. The Surveyorhas not obtained any medical test report from the Doctor or theInvestigating Officer, during his investigation. f. The appellantpleads ignorance as to whether any urine test was conducted onthe driver to determine the consumption of the alcohol. g. Thesame is the answer also in regard to as to whether any bloodsample was taken to determine the consumption of alcohol. h.The appellant, in its answer, has stated that it has not filed affidavitof the Doctor, who has stated ‘smell of alcohol’ in his Report. i.The appellant has also stated that he does not have any MedicalReport to show the level of alcohol in the blood. [Para 100][198-B-F]

10.2 It would not be appropriate to conflate the twosituations, viz., the requirement under Section 185 of the MVAct and an Exclusion Clause in the Contract of Insurance inquestion. The requirements of drunken driving under Section185 of the MV Act, can be proved only with reference to thepresence of the alcohol concentration which is 30 mg per 100 mlof blood. This corresponds to 0.03 per cent BAC. In fact, inSweden and in China, it is 0.02. As far as establishing the AB

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Acontention by the insurer in a Clause of the nature, this Court isdealing with, viz., a case where the insurer alleges that the driverwas driving the vehicle under the insurance of alcohol, it is allvery well, if there is a criminal case and evidence is obtainedtherein, 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. In a caseBwhere, there is a blood test of breath test, which indicates thatthere is no consumption at all, undoubtedly, it would not be opento the insurer to set up the case of exclusion. The decision ofthis Court in Bachubhai Hassanalli Karyani was rendered underSection 117 of the Motor Vehicles Act, 1939, prior to itsCsubstitution in 1977, and what is more it turned on the evidencealso. However, in cases, where there is no scientific material, inthe form of test results available, as in the case before this Court,it may not disable the insurer from establishing a case forexclusion. The totality of the circumstances obtaining in a case,must be considered. The scope of the enquiry, in a case underDthe 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 deficiencyof service would arise only with reference to the terms of thecontract and the law which surrounds it. If the deficiency is notEestablished, having regard to the explicit terms of the contract,the consumer must fail. [Paras 101-103][198-G-H; 199-A-E]

10.3 It is, in this regard, an exclusion of the nature involvedin this case, must be viewed. The person driving the vehicle hadconsumed alcohol. He drove the car after having consumedFalcohol. It is true that the exact quantity, which he had consumed,is not forthcoming. The fact that he smelt of alcohol, isindisputable, having regard to the contents of the FIR and alsothe MLC. He was accompanied by PW3. PW3 also smelt ofalcohol. The incident took place in the early hours of 22.12.2007.It happened at New Delhi, in the close vicinity of India Gate. TheGdriver and the passenger were in their twenties. At that time ofthe day, viz., the early hours, the version of the parties must beappreciated without reference to any possibility of the accidenthappening as a result of any sudden incident happening, as for H

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instance, attempted crossing of a person or an animal, whichnecessitated the vehicle, being involved in the accident, in themanner, which is borne out by the FIR. There is simply no suchcase for the respondent. The vehicle was driven in a rash andnegligent manner, having regard to the conviction entered underSection 279 of the IPC. This is also to be viewed in the context ofthe respondent putting up the case that the driver had notconsumed alcohol and that the case, even under Section 279 ofthe IPC was a false case. Still further, the examination of the exactnature of the accident, speaks eloquently for the influence, whichthe consumption of alcohol had produced on the driver of thevehicle. The car, which is undoubtedly a Porsche, whichpresumably, has a very powerful engine and capable of achievingenormous speed, is reported to have gone out of control and hitat a massive force with the footpath of the road. It overturned. Itcaught fire. In fact, it is the case of the respondent that the carwas a complete wreck. It was described as a total loss. The vehiclesof the fire brigade came to douse the fire. Speed and its impactcan be relative to the road, the traffic and the speed limits. TheFIR refers to the car being driven ‘very fast’. A person can berash and negligent without having been under the influence ofalcohol. At the same time, being under the influence of alcoholcan also lead to rash and negligent driving. They are notincompatible. This Court would not be remiss, if it takes intoaccount the improbability of any traffic worth the name at thetime of the accident. While it would be for the insurer to makeout a case, for pressing the Exclusion Clause, there is no materialin the pleadings of the respondent or in the evidence tenderedfor explaining the accident. Judicial notice is taken of the factthat the roads in the Capital City, particularly in the area, wherethe accident occurred, are sufficiently wide and the vehicledashing against the footpath and turning turtle and catching fire,by itself, does point to, along with the fact that the alcohol whichwas consumed manifests contemporaneously in the breath of thedriver, to conclude that alcohol did play the role, which,unfortunately, it is capable of producing. Applying the principles,which have been referred to, to the facts of the present case, thefollowing conclusions are summarized:

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AA. 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 tothe co-passenger. Both the driver and the passenger were in thelate twenties;B

C. The smell of alcohol has been discerned by a MedicalPractitioner;

D. Though the case was set up by the respondent that thedriver had not consumed alcohol, the driver, in his evidence(Affidavit evidence), has not even stated that he has not consumedCalcohol, as was the specific case set up in the complaint. On theother hand, the alternate case, which was set up that he was notunder the influence of alcohol, alone was deposed to. This is eventhough the respondent had reiterated in the Rejoinder Affidavitthat the driver of the vehicle had not consumed alcohol or anyDother intoxicating drink/drug;

E. Even the NCDRC has proceeded on the basis that thedriver had consumed some alcohol. The appellant has establishedthat the driver had consumed alcohol and was driving the vehicle,when the accident took place; EF. There is no evidence as to the quantity of alcoholconsumed. It is also true that there is no evidence other than thesmell of alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol;

G. The requirement under Section 185 of the MotorFVehicles Act is not to be conflated to what constitutes drivingunder the influence of alcohol under the policy of insurance in anOwn Damage Claim. Such a claim must be considered on thebasis of the nature of the accident, evidence as to drinking beforeor during the travel, the impact on the driver and the very caseset up by the parties;G

H. The other aspect, which is pressed is, as regards themanner in which the accident itself occurred. In this regard, it isclear that in any such case, this is an important circumstance, H

which may establish that the driver was under the influence ofalcohol. Driving, whileunder the influence of alcohol, is to beunderstood as driving when, on account of consumption of alcohol,either before commencement of driving or during the drivingand before the accident, when consumption of alcohol by the driverwould affect (influence) his faculties and his driving skills. It meansthat the alcohol consumed earlier was the cause or it contributedto the occurrence of the accident;

I. The respondent has no case that the accident occurredas a result of a sudden event which took place, which necessitatedthe car being driven into the footpath. For instance, if there wassudden attempted human or animal crossing, and the driver toobviate any such accident, may drive in the manner, whichculminated in the accident. It would be a case where the driverwould still be in control of his faculties even while having causedthe accident. There is material (particularly, in the nature of theSummary Proceedings) under the Consumer Protection Act, inthe form of the FIR. The Police Officer, who has lodged theinformation has specifically stated that the car was being drivenin a very fast manner;

J. The driver, in his chief examination, has not given anyexplanation, whatsoever, for the happening of the accident. Hedoes not have a case that there was any breakdown in the car orof the brakes;

K. The driver has pleaded guilty and stands convicted underSection 279 of the IPC, which penalises rash or negligentdriving.A person, who is not under the influence of alcohol, canbe rash and negligent. But a person, who is under the influenceof alcohol, can also be rash and negligent. In other words, theyare not wholly incompatible. On the other hand, being under theinfluence of alcohol, aggravates the possibility of rash andnegligent driving as it can be the proximate cause. The car wasdriven by the driver aged about 27. Both, he and his companionhad, indeed, consumed alcohol. The accident took place whenthe road would have been wholly free from any traffic (There isno case whatsoever that the accident was caused by another AB

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Avehicle being driven in any manner or any person or animalattempting to cross the road or otherwise deflecting the attentionof the driver). The accident has no apparent cause, even accordingto the respondent and the driver and his companion (PW3), yetthe Court is asked to believe that the driver was in full control ofhis senses. If the State Commission, in the circumstances, believedBthe version of the respondent, in a summary proceeding, NCDRCerred in interfering, on the reasoning, which are found aserroneous. [Paras 104-106][199-E-H; 200-A-H; 201-A-H;202-A-H; 203-A-B]

10.4 What is in a summary proceeding noteworthy, is in theCsetting of the width of the road (a road near India Gate, NewDelhi) and the thinnest possible traffic, and without the slightestexcuse, hitting at the footpath with massive force, not being ableto maintain control, hitting the electric pole, the wall of thechildren park. The impact is so much that it led to the overturningDof the car and what is more, catching fire of the vehicle. Thisaccident is inexplicable, if the driver is to be believed as PW2,when he deposed “I was in my full senses and capable ofexercising 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. TheEimpugned Order is set aside. [Paras 107, 108][203-C-E]

State through PS Lodhi Colony v. Sanjeev Nanda 2012(8) SCC 450 : [2012] 12 SCR 881; Royal SundaramGeneral Insurance Company Limited v. DavubhaiBabubhai Ravalia Order of NCDRC dated 04.09.2018Fin Revision Petition No. 1296 of 2018; Emperor vs.Rama Deoji AIR 1928 BOM 231– referred to.

Louden v. British Merchants Insurance CompanyLimited [1961] WLR 798 QB – referred to.

Case Law ReferenceG

(1971) 3 SCC 930[2010] 5 SCR 1[2012] 12 SCR 881

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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARLBEVERAGES LTD.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1526of 2021.

From the Judgment and Order dated 21.08.2020 of the NationalConsumer Disputes Redressal Commission, New Delhi in First AppealNo. 753 of 2013.

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Shivam Singh, Harpreet Singh Gupta, Vidur Dwivedi, Gopal Singh,Advs. for the Appellant.

Gopal Sankarnarayanan, Sr. Adv., Ravi Kumar Agarwal, JayantMohan, Advs. for the Respondent.

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The Judgment of the Court was delivered by

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 insuredwith the appellant, has resulted in this appeal against the Order by theNational Consumer Disputes Redressal Commission (‘NCDRC’ forshort). The car was completely damaged. The appellant repudiatedthe claim by the respondent. The question which arises in this Appealis, whether the NCDRC is correct in holding that the appellant is notentitled to invoke the shield of Clause (2c) of the Contract of Insurance,under which, it was not liable, if the person driving the vehicle, wasunder the influence of intoxicating liquor, or drugs. The StateCommission rejected the complaint of the respondent finding that therewas evidence to show that the person who drove the vehicle, hadconsumed liquor and was under the influence of liquor. The NCDRC,by the impugned Order, on the other hand, found that there was nomaterial to establish that the driver of the vehicle was under theinfluence of intoxicating liquor within the meaning of the ExclusionClause, as aforesaid.

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A3. The Clause in controversy reads as follows:

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

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(c) any accidental loss or damage suffered whilst the insuredor any person driving the vehicle with the knowledge andconsent of the insured is under the influence of intoxicatingliquor or drugs.”

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4. The vehicle was driven by one Shri Aman Bangia. Followingthe accident, a First Information Report came to be lodged. The accidenttook place in the early morning at about 02.25 a.m. on 22.12.2007. Thecontents of the FIR, inter alia, read as follows:

“Statement of Ct. Anand Kumar No.1226/ND, P.S. Tilak, NewDDelhi, stated that I am posted at Police Station Tilak Marg asconstable and today on 21/22.12.07 I and constable BrijeshNo.1163/DHG, Duty M/Cy. DL-1SN-8288, P.S. Tilak Marg wereon patrolling. At about 2.25 when I, on my above M/cy., wasreached near C-Hexagan Dr. Zakir Hussain Marg while patrolling,then I see that the driver of Car No.DL-1CJ-3577 came fromENizamuddin side towards Zakir Hussain Marg, India Gate in avery rash, negligent and at a very high speed and due to very highspeed, his car was got out of control and hit at a massive forcewith the footpath of C-Hexagan Dr. Zakir Hussain Marg Childrenpark India Gate, Electric Pole and wall of children Park and gotFoverturned and the car was get fired. I alongwith my associateHome Guard brought the driver whose name and address AmanBangia S/o Sh. S.K. Bangia R/o 42-A, Pkt. C Siddarth Extn. NewDelhi-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 carafter great efforts and reported about the incident to WirelessGOpp. D-56 of Police Station through wireless. After that thevehicles of Fire Brigade, PCR Van and Add/SHO van you werecame on the spot. The accident has been occurred due to rashand negligent driving by the driver for which the governmentproperty has been damaged. Legal action be taken against theHdriver. You have recorded my statement on the spot, read over and heard which is true and correct. Sd/- English Anand KumarConst. No.1226/ND Dt. 22/12.07 Attested SI Kukhitar Singh P.S.Tilak Mark, New Delhi Dt. 22.12.07. Sir Duty Officer PoliceStation Tilak Marg, New Delhi it is submitted that I SI after receiptof DD No.36A alongwith Ct. Vinod No.2098/ND reached at theplace of accident i.e. C-Hexagan Dr. Zakir Hussain Marg wherethe Car No.DL-1CJ-3577 was got burnt. Where the Add./SHOand vehicles of Fire Brigade were also present for controlling thefire. Then we came to know that the PCR Van has taken awaythe 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 27½yrs. upon which the doctors have reported/opined “no evidenceof any fresh injury for medical examination and smell of BreathAlcohal (+)” 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 age27 years. upon which the doctors have reported/ mentioned/opined“no evidence of any fresh injury for medical examination and smellof Breath Alcohal (+). I SI reached at the spot of accident whereCt. Anand Parkash No.1226/ND, P.S. Tilak Mark, New Delhihad come and got recorded his statement and from the MLC andplace of occurrence a case U/s 279/427 of IPC and U/s 185 ofM.V. Act have been committed to be found, therefore the Tehrirhas been handed over to Ct. Vinod Kumar No.2098/ND. Thenumber 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 culminatedin an Order dated 27.8.2011 passed on plea bargaining by the driver ofthe 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 caseU/sec 279 IPC is disclosed against the accused. So accordinglynotice for the offence U/sec. 279 IPC is separately framed againstthe accused to which accused has voluntary pleaded guilty, but hestill insists to plead guilty. Since the accused has voluntarily pleadedguilty, so he is convicted for the offence U/sec. 279 IPC.

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130SUPREME COURT REPORTS

AHeard on the point of sentence. The accused prayed for takinglenient view by pleading that this is his first offence. He hasundertaken to drive cautiously in future. So, in view of the factsand circumstances of the case, the accused is sentenced to payfine of Rs.1,000/- in default of S.I. of 10 days. Fine deposited videreceipt No. 866834. File be consigned to Record Room.”

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6. The respondent after exchange of notices, filed the complaintunder Section 17 of the Consumer Protection Act, 1986 in 2009. Affidavitevidence of the Company Secretary of the respondent (PW1), thedriver of the car (PW2) and the person who travelled with the driverin the car (PW3), was tendered. The FIR dated 22.12.2007, whichCwas under Section 279/427 of the IPC and Section 185 of the MotorVehicles Act, 1988, the medico-legal case sheet of Dr. Ram ManoharLohia 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 affidavitDevidence. The Investigator also gave his affidavit evidence affirminghis reports.

PLEADINGS

7. In the complaint filed under Section 17 of the ConsumerProtection Act, 1986, we may notice the allegations, which are relevant:E

The Exclusion Clause is not applicable as the person drivingthe vehicle had not consumed any alcohol. Further assuming thathe had consumed alcohol, the case would not fall under theExclusion Clause as he was, in any case, not intoxicated. AlthoughFthe Police had lodged FIR under Section 185 of the MV Act besidesSections 279/427 of the IPC, no charge-sheet has been filed againstthe driver till date, meaning thereby, that the Police afterinvestigating the case, could not find any evidence to prosecutethe driver for any of the offences. It is the further case of therespondent, inter alia, that the respondent had informed theGappellant that the MLC only says ‘smell of alcohol’ and this doesnot imply or mean that the driver was under the influence ofintoxicating liquor. It is also pleaded that in the Legal Notice, itwas specifically noted that the driver had not consumed liquor.Section 185 of the MV Act was invoked to plead that unless acertain percentage of alcohol is found a person cannot be H

prosecuted for the offence of drunken driving. The law does notprohibit driving after consuming liquor. No test was performed inregard to the person driving to establish that he was under theinfluence of drugs or intoxicating liquor, as provided under Section185 of the MV Act or the Exclusion Clause.

It is also pleaded that Intoxication means ‘elate or excite tothe degree of frenzy’ which means in simple meaning that theperson has no control over his senses.

8. In the reply, filed by the appellant, it is contended, inter alia, asfollows. There is official record of the person driving having been foundto have consumed alcohol and driving the vehicle in that condition. Therespondent got the matter investigated through experienced Investigatorsand they have collected relevant information and records with their findingthat the driver was under the influence of alcohol. The seriousness ofthe accident itself showed that the driver was reckless in driving due tothe consumption of the alcohol.

9. Respondent filed a Rejoinder Affidavit reiterating the allegationsin the complaint.

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 notprohibiting driving after consuming liquor and that what is prohibited isthat the percentage of liquor should not exceed 30 mg per 100 ml ofblood, is reiterated. The driver of the vehicle (PW2), in his Affidavit hasdeposed that he was neither under the influence of intoxicating liquor ordrugs at the time of the accident. That he was in his full senses andcapable of exercising full control over the car, at the time of the accident.His co-passenger was also not under such influence. No test wasperformed. He has further deposed that the FIR 453 of 2007 againsthim under Section 185 of the MV Act and Sections 279/427 of the IPCwas falsely registered. The case was still pending. He was certain to beacquitted in the said case. The Affidavit Evidence of the co-passenger(PW3) is to the effect that he was not under the influence of intoxicatingliquor or drugs. He has also supported PW2 that PW2 was able to exerciseproper control over the vehicle and he was not under the influence ofliquor or drugs at the time of the accident. The Police Officer and HospitalDoctor did not find them under the influence of intoxicating liquor and no A

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Atest was performed. Apart from the appellant’s Vice President, theInvestigator of the appellant gave affidavit evidence when he vouchsafedfor the correctness of his reports.

THE ORDER OF THE STATE COMMISSION

11. The State Commission finds, inter alia, as follows:

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The date and time of the occurrence was 22.12.2007 at02.25 A.M.. The official record of the driver goes to show thathe was driving the vehicle after consuming alcohol. Whether hewas completely or partially under the influence of alcohol was adifferent matter. There is not a slightest doubt that the driverdrove the vehicle after consuming alcohol. The manner andintensity with which the accident had occurred and its overallimpact goes to prove the said facts. [The finding is to beappreciated in the light of the statements in the FIR about thecar being driven rashly and negligently and at a very high speed.It collided with an electric pole and the wall of the ChildrenPark as a result of which the car turned upside down/overturnedand also caught fire.] Adverting to the Judgment of this Court inBachubhai Hassanalli Karyani v. State of Maharashtra1, itwas found as follows:

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The degree of proof required in a criminal case is muchhigher than the evidence required in civil proceedings, whichare decided on the principle of Preponderance of the Evidence.The driver has confessed to his guilt under Section 279. Theresult of the other two offences (Sections 427 of the IPC and185 of the MV Act was not made available). The StateCommission also found it fit to apply the principle of res ipsaloquitur, having regard to the circumstances surrounding theaccident. The proceedings under the Consumer Protection Act,being summary in nature, the Commission was not required togo into the technicalities of Criminal or Civil Jurisprudence.The impact of the accident was such that the vehicle turnedupside down and caught fire. The vehicle of the Fire Brigadehad to be pressed into service. The vehicle turned into a totalwreck. The State Commission also found that there appearedto be a breach of Condition 4 of the Policy of Insurance (“The E

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insured shall take all reasonable steps, to safeguard the loss ofdamage”). It is found that at the time of the accident, the vehiclewas being driven rashly and negligently and the driver hadconsumed liquor, which by itself was in violation of the Policyconditions.

THE IMPUGNED ORDER OF THE NCDRC

12. The NCDRC, finds as follows:

“4. The only question which arises for consideration in this caseis as to whether the driver of the vehicle was under influence ofintoxicating liquor or drugs at the time the vehicle met with anaccident and got extensively damaged. Though it has come onrecord that the driver of the vehicle had taken some liquor beforehe drove the vehicle, the said record being available in the formof statement of a policeman who stated that the smell of the liquorwas coming from the mouth of the driver, there is absolutely noevidence to prove the quantity of liquor which he had consumedbefore driving the vehicle. Admittedly, no medical examination ofthe driver was got conducted in order to ascertain the quantity ofthe 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 isliable to punishment if he is found while driving, alcohol exceeding30 mg per hundred ml of blood and the level of alcohol is requiredto be verified by way of test done by use of a breath synthesiser.Admittedly, no such test was conducted and, therefore, no evidencewas available before the State Commission or even to the insurerto prove that the driver had alcohol exceeding 30 mg per hundredml of the blood, at the time the vehicle met with an accident.Therefore, the insurer has failed to prove that the insured hadcommitted a breach of the terms of the policy, the driver beingunder influence of liquor.”

13. Thereafter, it referred to its Order in Royal Sundaram GeneralInsurance Company Limited v. Davubhai Babubhai RavaliainRevision Petition No. 1296 of 2018 dated 04.09.2018,which reads asfollows:

“6. The next question which arises for consideration is as towhether on account of the above referred quantity of alcoholhaving found in the blood of the driver, he can be said to be A

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under influence of intoxicating liquor or not. This issue cameup for consideration of this Commission in Lakshmi RohitAhuja Vs. SBI Life Insurance Co. Ltd., RP No.3249 of2015, decided on 28.04.2016 and the following view wastaken:

6. As per the FIR, the vehicle was being driven by thedeceased at the time it met with an accident. As per thechemical analysis report in respect of the viscera of thestomach and intestine of the deceased, there was 120 mlof Ethyl alcohol per 100 gm in the blood of the deceased.Hence the question which arises for consideration is asto whether a person having 120 mg of alcohol per 100ml of his blood can be said to be under influence ofintoxicating liquor. This question came up forconsideration of this Commission in Consumer ComplaintNo. 401 of 2014 Baby Apoorva Rai Vs. New IndiaAssurance Co. Ltd. & Anr. Decided on 03.9.2015 andthe following view was taken:

3. There is no direct evidence of the deceased beingunder influence of intoxicating liquor at the time hegot drowned in the swimming pool. The only evidencerelied upon the insurance company to substantiate theplea that he was under the influence of intoxicatingliquor at the time he died, is the report of the laboratoryreporting presence of 103.14 mg of ethyl alcohol per100 ml of the blood of the deceased.

4. Relying upon Modi’s Medical Jurisprudence andToxicology, 24[th] Edition, the learned counsel for thecomplainants submitted that the presence of 103.14 mg/100 ml of the blood does not lead to the conclusion thatthe deceased was under the influence of intoxicatingliquor. He relied upon the following extract from theabove-referred text book:

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

Alcohol acts differently on different individuals andalso on the same individual at different times. Theaction depends mostly on the environment andtemperature of the individuals and upon the degreeof dilution of the alcohol consumed. The habitualdrinker usually shows fewer effects from the samedose of alcohol. Barbiturates, benzodiazepines,antihistamines, tranquillizers, chlorpromazine andinsulin, potentiate the action of alcohol, whileepileptics or persons who have suffered from a headinjury may show an increased effect to a smallquantity 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 bloodis 200 mg. Thus, a person who has 200 mg alcoholper 100 ml. of his blood can be said to be moderateintoxicated, if we go by the above referred opinion.A person with a concentration of 0.15% alcohol inthe blood is regarded to be fit to drive a motorvehicle. 0.15% of alcohol in the blood comes only ifhe 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 theInfluence of Intoxicating Liquor” written by W.W.Thornton and published on 11.01.1928 in Indiana LawJournal. The question considered in the above referredArticle was as to what condition must a driver of amotor vehicle be in to be “under the influence ofintoxicating liquor or narcotic drugs”? The Authorextracted the following observations from the judicialpronouncements considered by him:

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“A person is drunk in legal sense when he is so farunder the influence of intoxicating liquors that hisnerves are visibly excited or his judgment impairedby the liquor”.

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

“When it appears that a person is under the influenceof liquor, or when his manner is unusual or abnormal,and his inhibited condition is reflected in his walkor conversation, when his ordinary judgment andcommon sense are disturbed, or his usual will poweris temporarily suspended, when they or similarsymptoms result from the use of liquors and aremanifest, then the person is ‘intoxicated’. It is notnecessary that the person would be so-called ‘dead-drunk’ or hopelessly intoxicated. It is enough thathis sense are obviously destroyed or distracted bythe use of intoxicating liquors within the meaning ofthe statute authorizing recovery of damages againsta saloon keeper who sells liquors to an intoxicatedperson”.

“Under the law a man is intoxicated whenever he isso much under the influence of spirituous orintoxicating liquors that it so operates upon him, thatit so affects his acts, or conduct or movement, thatthe public or parties coming in contact with him couldreadily see and know that it was affecting him inthat respect. A man to that extent under the influenceof liquor that parties coming in contact with him, orseeing him, would readily know that he was underthe influence of liquor, by his conduct or his wordsor his movements, would be sufficient to show thatsuch party was intoxicated”.

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

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It would thus be seen that the Article relied upon bythe learned counsel for the opposite party is notbased on the quantity of the alcohol found in theblood of a person. This Article does not go into thequestion as to how much quantity of the ethyl alcoholin the blood of a person can lead to the inferencethat he was under influence of intoxicating liquor.

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6. The learned counsel for the opposite party has alsorelied upon the following information in Lyon’s MedicalJurisprudence and Toxicology:

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“The American Medical Association and the NationalSafety Council of USA have adopted the followingpolicy statement with regard to intoxication – “Bloodalcohol of 0.10% can be accepted as prima facieevidence of alcoholic intoxication, recognizing thatmany individuals are under the influence in the 0.05to 0.10% range.” The Uniform Vehicle Code of USA1962 has as its standards: “Blood alcohol of 0.05%or less raises a presumption that the subject was notunder the influence of alcoholic beverage; bloodalcohol 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 thepresumption that the subject was under the influenceof alcoholic beverage”.

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

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Terminologies used in medico-legal context: Thefollowing terminologies are employed in medico-legalcases. Their exact meaning should be understood.

•Sober – blood alcohol concentration of lessthan 10 mg%

•Drinking – Blood alcohol concentration of 20-70 mg%

•Under the influence of alcohol – blood alcoholconcentration of 80-100 mg%

•Drunk or intoxicated – blood alcoholconcentration of 150-300 mg%

•Coma and death – blood alcoholconcentration in excess of 400 mg%”.

As per the above referred text book, a person is underthe influence of alcohol when the blood alcoholconcentration is 80-100mg/100 ml of the blood. Theabove referred text book also shows that the USA,which is most liberal, as far as the quantity of alcoholwhich a person can consume at the time of drivingalso allows only upto 100 mg alcohol/100 ml of theblood. It further shows that if the alcohol content is.1%, it would be the prima facie evidence of alcoholicintoxication. Blood alcohol percentage of .1% comeswhen the quantity of ethyl alcohol in the blood is100 mg/100 ml of the blood. Thus, if we go by thetext book of Modi, a person, who has consumed lessthan 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 personhaving 100 mg or more per 100 ml of blood will besaid to be under influence of alcohol.

7. In a Manual for Physicians in National DrugDependence Treatment Centre, All India Institute ofMedical Sciences, New Delhi the effects of alcohol hasbeen stated as under:

It would thus be seen that in terms of the abovereferred compilation issued by the AIIMS, if the quantityof alcohol in the blood is 100 or more mg. /dl (100 ml),it leads to vision getting blurred, the gait becomeunsteady and the coordination gets affected. Thesechanges, in our opinion, can occur only when someoneis already under the influence of alcohol by that time.The judgment of the drinker as well as his driving abilitygets affected even where the quantity of alcohol in theblood is 80 mg or more per 100 ml of the blood.

8. The learned counsel for the complainant has reliedupon the decision of this Commission in LIC of India &Anr. Vs. Ranjit Kaur III (2011) CPJ 232 (NC), wherethe quantity of alcohol in the blood was found to be86.2 mg./100 ml of blood. Ruling in favour of thecomplainant, this Commission inter-alia observed asunder:

“It has also come in evidence that this by itself isnot adequate proof that the deceased was intoxicatedat the time of his death. As rightly observed by thelearned Fora below, the specific clinical picture ofalcohol intoxication also depends on the quantityand frequency of consumption and duration ofdrinking at that level and, therefore, mere presenceof alcohol even above the usually prescribed limitsis not a conclusive proof of intoxication. Apart from A

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this, there is also no evidence that there was a nexusbetween the death caused by electric shock andconsumption of liquor”.

9. The learned counsel for the opposite party, on theother hand has relied upon the decision of thisCommission in LIC of India & Anr. Vs. Priyanka SinghFirst Appeal No.368 of 2014 decided on 14.10.2005.In the above referred case, 109.92 mg of ethyl alcoholper 100 ml of blood was found in the body of the insured.Dismissing the complaint, this Commission, inter-aliaobserved and held as under:

“As per the medical literature, “HWV COX ‘MedicalJurisprudence and Toxicology’, Seventh Edition PCDikshit” brought on record, there are three stagesof alcoholic intoxication, which reads as follows:

“Stage of Excitement (50 to 150 mg percent)

Feeling of well-being slight excitement, increasedconfidence, lack of self-control are usually seen.There is a heightened sexual desire, but performanceis reduced. The visual acuity is reduced. It also alterstime and space orientation. There is poor judgmentand mental concentration is retarded”.

The learned counsel for the complainant/respondentin the above referred case relied upon the text bookof ‘Biochemistry’ as per which quantity of 50-150mg was described as Pre-intoxication in which thereare signs of instability, decreased neuromuscularcoordination and the judgment and control requiredfor quick responses such as car driving are impaired.Whereas in intoxicating stage (150-300 mg/dl) speechis impaired and motor skills are incoordinated.However, relying upon the Medical Literatureproduced by the appellant Corporation, thisCommission held that the deceased was underintoxication as a result of consumption of alcoholfound in his blood sample, making him ineligible tothe benefits of double accident policy. It would be pertinent to note that in the above referred case, noamount was payable in case the insured was underinfluence of intoxicating liquor drug or narcotics.

10. Considering the opinion expressed in the Manualissued by All India Institute of Medical Sciences, whichis the premier most medical Institution in this Country,we are not inclined to accept the opinion expressed inModi’s Medical Jurisprudence and Toxicology,particularly when the opinion of AIIMS also findcorroboration from the opinion expressed in Lyon’sMedical Jurisprudence and Toxicology. Though, this isnot a case of the death while driving after consumingalcohol, the maximum quantity of alcohol permitted byvarious countries for a person to drive a motor vehiclecannot be said to be an altogether irrelevant since thepurpose of prohibiting driving after consuming liquorbeyond the prescribed quantity is to ensure that thedriver does not commit an accident on account of theeffect of liquor on him. The purpose of the insurer behindexcluding the cases of accident when the insured isunder influence of intoxicating liquor is to ensure thatthe consumption of the liquor does not lead or contributeto happening of the accident in which the insured diesor injured. Therefore, consumption of liquor beyond asafe limit must necessarily disqualify the insured fromgetting the benefits of the insurance policy taken byhim. The quantity of alcohol allowed to the driver of amotor vehicle is not more than 100 mg/100 ml of theblood in any country, including USA though, in ourcountry it is only 30 mg/100 ml of blood. Therefore, inour opinion, if a person is found to have consumedmore than 103.14 mg of alcohol/100 ml of his blood,which is position in the case before us, it would bereasonable to say that he was under the influence ofthe intoxicating liquor at the time he died or got injured.We are fortified in taking this view from the decision ofthis Commission in Priyanka Singh (supra). As far asthe decision of this Commission in Ranjit Kaur (supra)is concerned, we find that the quantity of alcohol in the AB

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blood of the insured in that case was of 86.2 mg, whichwas much less than quantity of the alcohol found in theblood of the deceased Surya Kiran.

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Though in Ranjit Kaur (supra), this Commission, inter-alia observed that there was no nexus between the deathBcaused by electric shock in consumption of liquor, theaforesaid observation is only an obiter and does notconstitute the ratio decidendi of the case. In fact, theaforesaid obiter is contrary to the express terms of theinsurance policy which absolves the insurer of itsobligation under the policy, in case the insured wasCunder the influence of the intoxicating liquor at the timeof the accident and the policy does not require anynexus to be shown between the case of accident andthe consumption of liquor.”

14. It was further found that in the case of Ranjit Kaur (supra),Dwhich is referred to, the quantity of liquor in the blood sample was foundto be 86.2 mg and it was still found that the driver was not intoxicated. Inthe present case, it is found that there is no evidence regarding the quantityof 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,Etherefore, exceeded the limit prescribed under Section 185 of the MVAct. The NCDRC allowed the appeal and set aside the order of theState Commission and directed the appellant to assess the loss of therespondent and to pay the amount at the rate of 9 per cent per annumfrom the date of complaint within six weeks of the date of assessment tothe respondent.F

SUBMISSIONS OF PARTIES

15. We heard Shri Shivam Singh, learned Counsel for the appellantand Shri Gopal Sankarnarayanan, learned Senior Counsel for respondent.

16. Shri Shivam Singh, learned Counsel, contended that this is aGclear case where unimpeachable material in the form of official recordsestablished that the car was being driven by a person who was underthe influence of intoxicating liquor. The high speed and the manner inwhich the accident occurred, viz., the vehicle hitting against the pole,turning turtle and further catching fire, along with the fact that the FIRand the MLC indicating that the driver smelt of the alcohol sufficed toH

attract the Exclusion Clause and protect the appellant. The impact ofthe accident, resulting in the car becoming a complete wreck, isemphasised, to point out that the circumstances existed which entitledthe appellant to extricate itself from the huge financial burden in tunewith a specifically provided Exclusion Clause. He drew our attention tothe following decision in V. Kishan Rao v. Nikhil Super Speciality2Hospital and another. Therein, this Court held as follows:

“13. Before the District Forum, on behalf of Respondent 1, it wasargued that the complainant sought to prove Yashoda Hospitalrecord without following the provisions of Sections 61, 64, 74 and75 of the Evidence Act, 1872. The Forum overruled the objection,and in our view rightly, that complaints before the Consumer Foraare tried summarily and the Evidence Act in terms does not apply.This Court held in Malay Kumar Ganguly v. Dr. SukumarMukherjee [(2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299] thatprovisions of the Evidence Act are not applicable and the Foraunder 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 complaintregarding medical negligence and the question which arose was, whetherExpert evidence was necessary to prove such medical negligence. ThisCourt also held as follows:

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

18. He further pointed out that the Court may appreciate the natureof the case set up by the driver of the vehicle. It is pointed out that it wascontended by the respondent that the vehicle was not driven rashly andnegligently. Yet, in the criminal case, the driver pleaded guilty and thesentence, as already noticed, came to be pronounced by the CriminalCourt. This, beyond doubt, established that the case of the respondentthat car was not being driven in a rash and negligent manner, was false.It clearly probablised the case of the appellant that the car was beingdriven rashly and negligently and this is attributable only to the fact that 2 (2010) 5 SCC 513

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Athe driver was under the influence of intoxicating liquor. The evidence inthis regard is furnished by the Report of a Police Officer (the FIR) andfurther strengthened by the MLC. He further complained that theNCDRC has completely erred in holding that the burden was on theInsurer to prove the quantity of alcohol in the blood of the driver. Hewould point out the sheer impossibly to fulfil such an obligation on theBInsurer. He would question the correctness of the declaration.

19. Per contra, Shri Gopal Sankarnarayanan, learned SeniorCounsel for the respondent would, in the first place, draw our attentionto the Report of the Investigator engaged by the appellant. He wouldpoint out that the Report would reveal that upon being informed, theCInvestigator 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 ofthe driver. This adequately counters the apprehension about theimpossibility for the insurer to prove the level of alcohol. In this regard,he drew our attention to the questions put in the interrogatories and theDanswers which have been received. As far as the conviction under Section279 of the IPC is concerned, he would submit that it was only a case ofplea bargaining and, more importantly, it related to rash and negligentdriving under Section 279 of the IPC. The offence, which is pertinentto the controversial Clause, is the one contemplated under Section 185of the MV Act and it has not been invoked/proved against the driver.EIn other words, the attempt appears to be to contend that at worst acase of rash or negligent driving may be established, which is not thesame as driving under the influence of alcohol. He also sought to drawsupport from the Judgment of this Court in Bachubhai HassanalliKaryani(supra). The other case law appears to be mostly OrdersFpassed by the NCDRC itself and it appears to be on the lines, indicatedin the impugned Order itself, as noticed by us. He further pointed outthat the car caught fire as the fuel tank of the car is located in thefront.

20. In Bachubhai Hassanalli Karyani(supra), the Court wasGdealing with a case inter alia under Section 117 of the Motor VehiclesAct, 1939. This Court held as follows:

“4. The learned counsel contends that the heavy sentence hasbeen imposed on the appellant because he was found to havebeen drunk on that night. He says that Dr Kulkarni, who examinedHthe appellant, based his conclusion merely on the facts that the appellant’s breath was smelling of alcohol, that his gait wasunsteady, that his speech was incoherent and that his pupils weredilated. The doctor had admitted that a person, placed in thecircumstances in which the appellant was put as a result of theaccident, would be under a nervous strain and his gait might beunsteady. The doctor had also admitted that a person could smellof alcohol without being under the influence of drinking. No urinetest of the appellant was carried out and although the blood of theappellant was sent for chemical analysis, no report of the analysiswas produced by the prosecution.

5. It seems to us that on this evidence it cannot be definitely heldthat 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 hasbeen around for quite a while. In this regard, we may notice the judgmentsof the English Courts. InMair (Administratrix) v. Railway Passengers3Assurance Co. (Limited), Lord Coleridge, the Chief Justice made thefollowing observations, while dealing with the very same words “underthe influence of intoxicating liquor”, and held as follows:

“… I should think, speaking only for myself, that the words “underthe influence of intoxicating liquor” would be sufficiently satisfiedby construing them to mean under such influence of intoxicatingliquor as disturbs the balance of a man’s mind. There is a point upto which any stimulating liquor, with most people at least, possiblybenefits, 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 inthe English language – to ascertain with precision where thatpoint is; but it is enough to say that there is a point, and it seemsto me these words would be satisfied when the influence ofintoxicating liquor is found in point of fact to be such as to disturbthe quiet and equable exercise of the intellectual faculties of theman who has taken the liquor. Of course, if I think there isevidence to satisfy me that the intoxication in this case wasenough to have gone to the point of contributing to the accident, it A

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Afollows a fortiori that it had arrived at the disturbing point which Ithink, speaking for myself, would be enough to satisfy the wordsof the proviso.…”

22. This, in fact, was not a case where a vehicle was being drivenand it was alleged that the driver was under the influence of alcohol. OnBthe other hand, it was a case where the deceased had been drinking fora while. In this condition he rudely accosted a woman and tried to put hisarms around her. He was knocked down by a man who was in thecompany of the woman. He died as a result of the injury. The insurersought protection under a clause which excluded liability if the assuredwas under the influence of intoxication of liquor.C

23. Nearly a century later, in Louden v. British Merchants4Insurance Company Limited, the plaintiff, claimed under a policy, inregard to a bodily injury suffered by her husband. The Insurer invokedthe Exclusion Clause, which again protected it in a case where the personwas under the influence of drugs or intoxicating liquor. It was a case ofDa 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 their meaning that no effect should be givento them”. Lawton,J., while dealing with this contention drew supportEfrom Mair (Administratrix)(supra), and what is more, reiterated theprinciples laid down therein. We may advert to the following:

“… The words used in the exemption clause of the policy beforeme have probably been used for many years in policies givingassurance against injury. Counsel for the defendants referred toFMair v. Railway Passengers Assurance Co. Ltd. The policy inthat case provided that the assurance should not extend to anydeath or injury happening while the assured was under the influenceof intoxicating liquor. The case came before Lord Coleridge C.J.and Denman J. by way of an application for a new trial on theground that the verdict had been against the weight of evidence.GBoth judges construed the words, “whilst the assured is under theinfluence of intoxicating liquor,” although it may not have beennecessary for the purposes of their judgment to do so. Neitherseems to have thought that the words were so uncertain as to be

incapable of construction. Both were of the opinion that thesewords connoted a disturbance of the faculties, Lord Coleridgeusing the words ”as disturbs the balance of a man’s mind,” andDenman J. the words ”disturbing the quiet, calm, intelligent exerciseof the faculties.” Mr. Everett, whose experience in matters ofpersonal injury insurance is extensive, was unable to refer me toany case in which a different construction had been put uponthese words. In those circumstances, I find that the words are notso uncertain as to be incapable of construction, and I adopt theconstructions in Mair v. Railway Passengers Assurance Co.Ltd., albeit they have been expressed in mid-nineteenth centuryidiom. I add no gloss, as to do so might add confusion where nonemay have existed amongst insurers and policy holders during thepast 84 years.”

24. This was the case of alleged driving under the influence ofalcohol. The deceased was travelling in a car with a friend after havingdrinks (beer). They appeared to be sober. While so, the motor carattempted to negotiate a bend and it knocked off the Warning post andan accident ensued, the vehicle having fallen to a ditch. The court wenton to find that the blood alcohol was 260 mg in 100 ml and in favour ofthe insurer.

A CASE FROM SCOTLAND

25. In Kennedy v. Smith5, decided on 20[th] June, 1975 by theInner Court of Session of Scotland from which appeal lies to the U.K.Supreme Court now, the defendant (described as the defender) drove acar after having consumed a pint or at the most one and a half pints oflager (a kind of beer) and an accident occurred in which two of thepassengers died. In an action by the widows, the insurer (referred to asa third party) relied upon an exception in the policy which inter aliaexcluded its liability if the driver was under the influence of intoxicatingliquor. Lord President of the Court with whom the other two Judgesagreed, observed as follows:

“They mean, as the Lord Ordinary accepted, “under such influenceof intoxicating liquor as disturbs the balance of a man’s mind.”This was the meaning given to them by Lord Coleridge C.J. inMair v. Railway Passengers Assurance Co., 1877 37 L.T. 356

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Ain which Denman J. referred to the condition as “disturbing thequiet calm intelligent exercise of the faculties,” and was themeaning adopted by Lawton J. in the later case of Louden v.British Merchants Insurance Co. Ltd., 1961 1 W.L.R. 798. Theonly proved facts are (i) the admitted consumption by the defenderof one pint of lager and (ii) the happening of the accident. TheBLord Ordinary was not entitled to rely as he did upon the factsthat the defender drank lager upon an empty stomach and wasunaccustomed to alcohol since there was no evidence whateverthat either of these facts made it more probable that the amountof alcohol consumed would adversely affect the faculties of theCdefender. In so far as the Lord Ordinary refers to the erratic andunexplained behaviour of the defender’s car this is only to beunderstood as a reference to the movement of the car at the timeof the accident as the result, according to the defender, of theback wheels striking either the kerb or an object on the roadsurface. The happening of the accident is explicable as the resultDof momentary inattention or loss of concentration and it is sheerspeculation to say that the defender’s consumption of one or evenone and a half pints of lager had placed him under such influenceof alcohol as had disturbed the balance of his mind.They alsoargued that it was relevant to consider that this was a case ofEwholly unexplained and extraordinary movement of the motor carwhich the defender had driven accident free for some years. Itwas further, they said, relevant in this connection to have regardto the plea tendered by the defender to the charge of contraveningsection 1 (1) of the Road Traffic Act 1960.

FIn my opinion, the defender’s submission in this matter is wellfounded. The Lord Ordinary was not, in my view, entitled to haveregard to the fact that the lager drunk by the defender wasconsumed upon an empty stomach and that he was unaccustomedto alcohol. Whether or not a particular combination ofcircumstances is likely to exacerbate the effects of a particularGconsumption of alcohol is a matter of evidence (as was the casein Louden).In this case there was no evidence to show that thecircumstances in question were other than neutral. In my opinion,also, no weight can be given to the defender’s plea of guilty. TheLord Ordinary gave no weight to this. Such a plea is explicable asHsoon as it is remembered that even a slight degree of carelessness H

may justify a conviction for driving in a manner dangerous to thepublic. In these circumstances the “inference” drawn by the LordOrdinary rests only upon (i) proved consumption of one pint oflager and possibly—only possibly—another half pint, and (ii) thehappening of the accident as it emerged in evidence. There wasnot one scintilla of evidence of any behaviour on the part of thedefender, or of his car before the accident, which pointed to thealcohol he had consumed having to any material extent affectedthe balance of the defender’s mind. For the exception to apply itis not enough to show that the defender had consumed a particularquantity of alcohol shortly before a claim arose.In my opinionmere proof that the defender had consumed at most a pint and ahalf of lager and that he had later been driving the car when it leftthe westbound dual carriageway in the manner described, doesnot justify an inference that he was at the time of the accidentunder the influence of intoxicating liquor within the meaning ofexception 5 (a). The accident is consistent with momentaryinattention and to say that he was under the influence of alcoholat the time can only, on the facts proved in this case, bespeculation.”

26. Lord Avonside in his concurring opinion inter alia held asfollows:

“The explanation of the respondent that his rear wheels had hitsomething, a brick or possibly the kerb, was either rejected by theLord Ordinary or, at least, also pointed to negligence influencedby drink. Plainly also the Lord Ordinary did not believe the assertionof the appellant that the drink he had taken did not affect hisjudgment. It is regrettable, in my view, that more evidence wasnot led in regard to the accident. It would, I imagine, be availableand perhaps its omission was considered tactical. Be it so, theonus was on the respondent. In my opinion, the Lord Ordinaryhas gone too far. There is no evidence of the likely effect of theconsumption of a not immoderate amount of low content alcoholon a person unused to drink whose stomach may be empty. TheLord Ordinary as a judge is not, in my view, entitled to draw apositive conclusion from such facts, without some evidence beforehim and there was none. The smell of alcohol after the accidentwas, it is I think accepted, simply evidence of the fact of prior ABC

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Aconsumption of alcohol. The circumstances of the accident wereremarkable enough, but could be explained by what the appellantsaid. That the appellant pleaded guilty to a charge under section 1(1) of the Road Traffic Act 1960, and the Lord Ordinary seems tomake significance of this, is neither here nor there, looking to thecomparatively minor degree of negligence which the Courts haveBheld sufficient to invoke the sub-section. But looking at the factsfound at best for the respondent I see no more than that theappellant had taken some drink for the first time in his life on anempty stomach and had very shortly thereafter been involved in abad accident which his previous safe record would not suggest asCbeing likely to happen.”

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27. Obviously, there are certain parallels as there are distinctionsbetween facts of the case before us. The similarity lies in the fact thatthe driver in the case before us also smelt of alcohol. The other similaritylies in the nature of an accident. The differences, however, lie in the factDthat in the case referred to, there was evidence of the actual quantityand nature of the alcohol which was consumed by the driver. In the casebefore us, there is no evidence either recording the exact nature ofalcoholic drink which was consumed by the driver and there is also nomaterial as to the quantity consumed by him. There is no evidence, infact, as to the exact point of time when the alcohol was consumed byEthe driver in the case before us. Whereas on the evidence adduced inthe case before the Court in the decision referred to, there was evidenceas to the time when the alcohol was consumed. Further the driver offeredan explanation as to how the accident unfolded when there is none in thecase before us.F28. 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 isconcerned, Section 1(1) of the Road Traffic Act, 1960, may be noticed:

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

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29. It may be noticed that both the trial Judge as well as theAppellate Court did not lay any store by the blood test and also theconviction and therefore what is significant is that a finding could berendered in an action that the insurer was not liable if the driver, incontravention of the policy was under the influence of intoxicating liquorand 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 theTrial Judge was not entitled to rely upon the fact that the defendantdrank a lager upon an empty stomach, we are unable to endorse thesame. This is for the reason that there is enough material available toshow that when one drinks on an empty stomach, there is greater andfaster infusion of the alcohol into the system leading to increased BloodAlcohol Concentration (BAC) level. This is for the reason that whenliquor is consumed on an empty stomach, the liquor moves on from thestomach unobstructed into the small intestine from where 80% of theabsorption of alcohol takes place. Therefore, this does indeed play a rolein the Court assessing and finding, that given the other circumstances tosupport the finding of consumption of alcohol as to whether the alcoholhas contributed to the occurrence of the accident. It is also not irrelevantto bear in mind that a person who is alcohol tolerant which means thathaving become accustomed to consume liquor, the brain in particular isable to hold up to the alcoholic consumption and deal with its effectwhereas when a novice or a beginner consumes alcohol, its consequenceswould be different.

THE POSITION IN THE UNITED STATES OF AMERICA

THE POSITION IN THE UNITED STATES OF AMERICA

31. Interestingly, the terms in the Contract of Insurance mayexclude the liability of the Insurer in regard to liquor based on the mereconsumption 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 questionswas whether there was an error in the charge of the court relating tointoxicating liquor. The policy in question did not cover any injury ordeath which the insured may suffer while the insured has in his or herbody, physically present intoxicating liquor or narcotics. The SupremeCourt of North Carolina in Webb v. Imperial Life Ins. Co., [Inc. 216N.C. 10 (1939)] had to consider the legality of the charge which the trialcourt had given to the jury. The Court noticed the charge as follows:

“The court further instructs you that an intoxicated person is adrunken person, a drunken person is an intoxicated person and AB

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that means- intoxicated means in law that the subject must havedrunk of alcohol to such an extent as to appreciably affect andimpair his mental or bodily faculties or both. The court instructsyou further that to be under the influence or affected by the liquormeans that the subject must have drunk a sufficient quantity toinfluence or affect, however slightly, his body and his mind, hismental and physical faculties, in other words, it all comes to this,that he has drunk, that he has intoxicating liquor in his body to theeffect that it influences his conduct detrimentally. It means thequestion for you is whether the deceased at the time of his impactand death had in his body intoxicating liquor of sufficient quantityto be intoxicated or to affect his conduct and influence his conductand action.”

“The court further instructed the jury: “The question for you iswhether the deceased at the time of the impact and death had inhis body intoxicating liquor of sufficient quantity to be intoxicatedor 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 favorof defendant if they found by the greater weight of the evidencethat the deceased had present in his body at the time of the injury“intoxicating liquor as the court has just defined and explainedintoxicating liquor;” and again, if they found the deceased “wasunder the influence of alcohol or intoxicating liquor.” While thecourt followed this by charging the jury to answer the issue infavor of defendant if they found deceased “had present in hisbody intoxicating liquor,” this did not cure the previous instruction.Thus the learned judge inadvertently placed upon the defendantthe burden not only to show the physical presence of intoxicatingliquor in the body of the insured at the time of the injury, but alsoto show that he was intoxicated or under the influence ofintoxicating liquor. The defendant by the language of the policyexcluded from its coverage injury suffered by the insured whilehe had present in his body intoxicating liquor. This was the contractbetween the parties, and the defendant was entitled to avoid liabilityupon proof that the insured had in his body, physically present,any quantity of intoxicating liquor, regardless of whether he therebybecame 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 notedmust be sustained, necessitating a new trial.

New trial.”

33. InHeltsley v. Life & Casualty Ins. Co.[299 Ky. 396 t(1945)],the Court of Appeal observed as follows in regard to the similar clausein a Contract of Insurance:

“The exact language of the policy provision under considerationis:’***nor does it cover loss or injury sustained by the insuredwhile he was physically present in his body alcoholic or intoxicatingliquors in any degree. ***That this provision is not contrary topublic policy; that it is not susceptible of double construction or ofan interpretation that the extent or degree of intoxication ismaterial; that it is not unreasonable, and that it does not constitutea limitation unavailable to appellee, is amply affirmed by theauthorities 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 menthat the drinking of intoxicating liquor, though it be not done to theextent of actual intoxication, begets a spirit of recklessness, and isresponsible for numerous accidents.’ And in Equitable LifeAssurance Society of United States v. Adams, 259 Ky. 726, 83S.W.2d 461, 464, ‘It is the duty of the courts to take the words ofan insurance policy as they are found in it, and as persons withusual and ordinary understanding would construe them when usedto express the purpose for which they were employed,***.

34. The Supreme Court of Alabama in Standard Life & Acc.Ins. Co. v. Jones 94 Ala. 434, decided in November, 1891, had occasionto consider the question as to whether the phrase “under the influenceof intoxicating drinks” had a different connotation in law from that itcarried in common parlance. No doubt, it was a case whether a workmanwas covered by an insurance policy and he met with an accidental deathwhile he was discharging his duty as a Swtichman. We find the followingdiscussion:

“…To be under the influence of whiskey, is not necessarily to beintoxicated. One may well be said to be under the influence of A

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Astrong drink when he is to any extent affected by it—when hefeels it; and this condition may result from potations so small asnot to impair any mental or physical faculty, and when the passionsare not visibly excited, nor the judgment or any physical functionimpaired. This is very far short of intoxication, which is thesynonym of inebriety, drunkenness, implying or evidenced by undueBand abnormal excitation of the passions or feelings, or theimpairment of the capacity to think and act correctly andefficiently….

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But the phrase “under the influence of intoxicating drinks,” asused in policies of this character and in this connection, has aClegal significance, differing from the popular one, and implyingsuch influence as in reality amounts to intoxication. In a wellconsidered case, it was said by the Supreme Court of New York,that “to be under the influence of intoxicating liquors, within themeaning of this policy, the insured must have drunk enough toDdisturb 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 conditionthat it would not be liable when death or injury should happenwhile the insured was under the influence of liquor, the intentionmanifestly was to require the insured to limit its use in such aEdegree as that he retained full control over his faculties of mindand body….”

35. Therefore, an analysis of the principles as laid down both bythe English Courts/Scottish Court and decisions from the United Stateswould persuade us to hold as follows:F

The exclusion from the liability of the Insurer would depend uponthe exact terms of the Insurance. We are in this case not dealing with athird-party claim. Under the aegis of the Motor Vehicles Act, we are notoblivious of the provisions of Section 149(2) in the unamended provisionsof the Motor Vehicles Act,1988 which are captured in Section 150 of theGpresent avtaar after the amendment as regards the defences availableto the Insurer regarding such claims. We are dealing with a case of owndamage and the clause which extricates the Insurer on the basis of thedriver being under the influence of alcohol, inter alia. We would findthat the there are two variants. One of the models is represented byHAmerican 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 hisconduct. Under the said model, it is not necessary for the Insurer toshow that person concerned was intoxicated or under the influence ofintoxicated liquor.

36. This brings us to the other model which model is applicable inthe facts of the case, viz., the insurer must show that the person drivingthe vehicle was under the influence of liquor. The contrast between themodels is stark and perceptible. As far as the exclusion of the nature weare concerned with, which requires driving of the vehicle by a personunder the influence of intoxicating liquor, it would appear to be clear thatmere presence of alcohol in any small degree would not be sufficient.This is for the reason that the court cannot re-write the contract andhold that the mere presence of the alcohol, in the slightest degree, issufficient to exclude the liability of the insurer. It requires somethingmore, namely, that the driver of the vehicle was at the time of the accidentacting under the influence of intoxicating liquor. Now it is clear that thedecisions of the English Courts are closer home and of assistance in thelaying down of the law. It must be shown that in the facts andcircumstances of each case that the consumption of liquor had, if notcaused the accident, which undoubtedly would bring the accident withinthe mischief of the clause but at least contributed in a perceptible way tothe causing of the accident.

SECTION 185 OF THE MOTOR VEHICLES ACT, 1988

37. It is at this juncture that it becomes necessary to notice anddeal with the argument of the respondent under Section 185 of the MotorVehicles Act. Section 185 of the Motor Vehicles Act, 1988 reads asfollows:

“185. Driving by a drunken person or by a person under the influenceof drugs.—Whoever, while driving, or attempting to drive, a motorvehicle,—

(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 tobe incapable of exercising proper control over thevehicle, shall be punishable for the first offence with imprisonment for aterm which may extend to six months, or with fine which may A

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Aextend to two thousand rupees, or with both; and for a second orsubsequent offence, if committed within three years of thecommission of the previous similar offence, with imprisonmentfor term which may extend to two years, or with fine which mayextend to three thousand rupees, or with both.

BExplanation.—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 aperson incapable of exercising proper control over a motorvehicle.”

C38. Our attention was also drawn by Mr. Gopal Sankaranarayan,learned Senior Counsel for the respondent to the provisions under Sections203 and 204 of the Motor Vehicles Act. Section 203 as was extant as onthe date of the accident read as follows:

“203. Breath tests.—(1) A police officer in uniform or an officerDof the Motor Vehicles Department, as may be authorised in thisbehalf by that Department, may require any person driving orattempting to drive a motor vehicle in a public place to provideone or more specimens of breath for breath test there or nearby,if such police officer or officer has any reasonable cause to suspecthim of having committed an offence under section 185:E

Provided that requirement for breath test shall be made (unless, itis made) as soon as reasonably practicable after the commissionof such offence.

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

G(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 placewhere the requirement is made, or, if the police officer thinks fit,at a police station specified by the police officer:H

Provided that a person shall not be required to provide such aspecimen while at a hospital as an indoor patient if the registeredmedical practitioner in immediate charge of his case is not firstnotified of the proposal to make the requirement or objects to theprovision of a specimen on the ground that its provision or therequirement to provide it would be prejudicial to the proper careor treatment of the patient.

(3) If it appears to a police officer in uniform, in consequence ofa 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 testhas been carried out indicates the presence of alcohol in theperson’s blood, the police officer may arrest that person withoutwarrant except while that person is at a hospital as an indoorpatient.

(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 breathtest, refuses or fails to do so and the police officer has reasonablecause to suspect him of having alcohol in his blood, the policeofficer may arrest him without warrant except while he is at ahospital as an indoor patient.

(5) A person arrested under this section shall while at a policestation, be given an opportunity to provide a specimen of breathfor a breath test there.

(6) The results of a breath test made in pursuance of the provisionsof this section shall be admissible in evidence. Explanation.—Forthe purposes of this section, “breath test”, means a test for thepurpose of obtaining an indication of the presence of alcohol in aperson’s blood carried out, on one or more specimens of breathprovided by that person, by means of a device of a type approvedby 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 undersection 203 may, while at a police station, be required by a policeofficer to provide to such registered medical practitioner as may A

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Abe produced by such police officer, a specimen of his blood for aLaboratory test, if—

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

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

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

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

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

(b) if the person having been required, whether at the hospitalor elsewhere, to provide a specimen of breath for a breathtest, has refused, omitted or failed to do so and a policeofficer has reasonable cause to suspect him of havingalcohol in his blood:

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

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

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

40. We may also incidentally notice Section 205 of the MV Act. Itreads as follows:

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

41. The Motor Vehicles Act, 1988 repealed the Motor VehiclesAct 1939. It is important to notice certain provisions of the said Act also.Section 117 can be referred to as the provision corresponding to Section185 of the present Act with significant differences. Section 117 as itoriginally stood read as follows:

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

42. This provision came to be substituted by Act 27 of 1977. Afterits substitution as aforesaid Section 117 the lawgiver ushered in a stricterrestriction in regard to drunken driving. It read as follows:

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

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AWhoever, while driving or attempting to drive, a motor vehicle orriding or attempting to ride, a motor cycle, - (a)Has, in his blood, alcohol in any quantity, howsoever smallthe quantity may be, or B(b)Is under the influence of a drug to such an extent as to beincapable of exercising proper control over the vehicle, Shall be punishable for the first offence with imprisonment for aterm which may extend to six months, or with fine which mayextend to two thousand rupees or with both; and for a second orCsubsequent offence, if committed within three years of thecommission of the previous similar offence, with imprisonmentfor a term which may extend to two years, or with fine whichmay extend to three thousand rupees, or with both.

In fact, prior to present Section185 of the Motor Vehicles ActDbeing substituted by Act 54 of 1994, Section 185 was similarly wordedas Section 117 of the Motor Vehicles act 1939, as substituted in 1977.

43. It will be noticed immediately that the decision of this Courtrendered in Bachubhai Hassanalli Karyani v. State of Maharashtra6relied upon by the respondent arose under Section 117 of Motor VehiclesEAct, 1939 which required not merely that the person was under theinfluence of drink but it was to be to such an extent as to render himincapable of exercising proper control over the vehicle. Section 117 afterits substitution in 1977, on the other hand, carved out a criminal offenceinsofar as alcohol is concerned, on the basis that the driver had in hisFblood, alcohol in any quantity, however small the quantity was. This wassimilar in fact to the clauses in the contracts of insurance obtaining in theUnited States which we have referred to (supra). No doubt, this becameassociated with the presence of the smallest quantity of alcohol in theblood. 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 foundGnamely, 30 mg in 100 ml. of blood. In this regard, we may profitablyrefer to the law in the United Kingdom corresponding to the MotorVehicles Act and also an early decision of the Bombay High Courtinterpreting a statute dealing with the issue.

THE U.K. ROAD TRANSPORT TRAFFIC ACT, 1930 ANDLATER 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 amotor vehicle while under the influence of drink or drug ‘to such anextent as to be incapable of having proper control of the vehicle’. Section11 provided for punishment for dangerous driving. In (1931) 22 Cr. App172, the appellant was convicted under Section 15 and acquitted underSection 11. The Court held as follows:

“… We have considered that finding with great care, but, uponthe whole, and not without hesitation, we have come to theconclusion that. notwithstanding the summing up, it is ambiguous.The jury ought to have been asked whether they meant-by theirlast answer that the appellant was under the influence of drink tosuch an extent as to be incapable of having proper control of thevehicle, and we cannot reject the view that, if that question hadbeen pointedly put, they might have answered in the negative orsaid 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 theinfluence 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 HighCourt of Bombay reported in Emperor vs. Rama Deoji7. Rule 27-A ofthe Motor Vehicles Rules provided that “no person shall, when intoxicated,drive a motor vehicle in a public place.” The contention raised by theaccused was that his conviction was improper as the charge actuallywas merely one of being under the influence of liquor. There is a distinctionbetween being under the influence of liquor and being intoxicated, it wascontended. The Court held, inter alia, as follows:

“4. In our opinion the word “intoxicated” cannot be read in thisvery 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 A

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Abeen made between his being drunk and his being merely underthe influence of liquor. I do not, however, think it is necessary forus 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 degreeBof influence which is not sufficiently expressed in the words “underthe influence of liquor.”But this question of degree is one that isat any rate involved in the words; and if the accused intended toassert that he was not under the influence of liquor to a degreethat really mattered in regard to his exercising due care andCjudgment in driving the car, then that should have been stated bythe accused clearly, so as to raise an issue on the point. On thecontrary he pleaded guilty; and in view of the fact that his act insuddenly swerving was one of extreme rashness, as admitted byMr. Bhandarkar himself, the circumstances clearly point to theaccused’s understanding that he was pleading guilty to a degreeDof intoxication which would bring the case under this rale. Therehas, in our opinion, been no misapprehension of the accused, soas to justify our holding that he did not plead guilty to a breach ofthis particular rule.”

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47. The Road Traffic Act, 1960 repealed the Act in 1930. Section6(1) of the 1960 Act penalised driving by a person who was unfit todrive through drink or drugs. Section 6(6) reads as follows:

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

By the Road Traffic Act, 1962, however unfitness was linkedwith being “impaired”.

48. For the first time, objective scientific testing became the basisGfor the offence of driving while having drunk alcohol in 1967 under theRoad Safety Act, 1967. Section 1 penalised driving on a road or otherpublic place having consumed alcohol in such quantity that its proportionin the blood, as ascertained through the blood test, exceeded the prescribedlimit, which was provided as 80 mg. of alcohol in 100 ml. of blood (0.08%). Thereafter, the Road Safety Act, 1988 came into force.H

49. The provisions of relevance in the latest enactment, that is theAct of 1988 are Sections 3A, 4 and 5. Section 3A, inserted with effectfrom 01.07.1992, reads as follows:

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

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

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b)he has consumed so much alcohol that the proportion of itin his breath, blood or urine at that time exceeds theprescribed limit, or D

ba)he has in his body a specified controlled drug and theproportion of it in his blood or urine at that time exceeds thespecified limit for that drug, or

c)he is, within 18 hours after that time, required to provide aspecimen in pursuance of section 7 of this Act, but withoutEreasonable excuse fails to provide it, or d)he is required by a constable to give his permission for alaboratory test of a specimen of blood taken from him undersection 7A of this Act, but without reasonable excuse failsto do so, F

he is guilty of an offence.

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

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(3) Subsection (1)(b),(ba),(c)and (d)above shall not apply in relationto a person driving a mechanically propelled vehicle other than amotor vehicle.”

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ASections 4(1) and 4(5) read as follows:“4. Driving, or being in charge, when under influence of drink ordrugs.

(1) A person who, when driving or attempting to drive amechanically propelled vehicle on a road or other publicBplace, is unfit to drive through drink or drugs is guilty of anoffence.

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

Section 5 reads as follows:

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

(1) If a person –

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

(b) Is in charge of a motor vehicle on a road or otherpublic place, After consuming so much alcohol that the proportion of itin his breath, blood or urine exceeds the prescribed limit heis guilty of an offence.

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(2) It is a defence for a person charged with an offence undersubsection (1)(b) above to prove that at the time he is allegedto have committed the offence the circumstances weresuch that there was no likelihood of his driving the vehiclewhilst the proportion of alcohol in his breath, blood or urineGremained likely to exceed the prescribed limit.

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

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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARLBEVERAGES LTD. [K. M. JOSEPH, J.]

50. Section 3A was inserted w.e.f. 01.07.1992. A perusal ofSections 3A, 4 and 5 of the Road Traffic Act, 1988, and comparing itwith Section 185 of the MV Act, 1988, yields the following results:

The provision, in the British Act, which is comparable to Section185 of the Indian Act, is Section 5. This is for the reason thatSection 5 also penalises driving or attempting to driving a motorvehicle on a road or other public place, after consuming alcoholand when the proportion in his breath is in excess of the prescribedlimit. There is no provision in the Motor Vehicles Act, 1988corresponding 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 blood alcohol level in excess ofthe prescribed percentage, being an offence, it is also an offenceto drive or attempt to drive a vehicle on a road or a public place, ifthe person is unfit to drive due to drink or drugs. Section 4(5) ofthe Road Traffic Act, 1988, makes it clear that a person shall betaken 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 persondriving. What we are pointing out is, a person under the law inEngland, could, if by consumption of alcoholic drink, be impaired,in his ability to drive properly, then, irrespective of whether he hasa blood alcohol level in excess of or below the prescribed level, hewould commit an offence. The same principle animates Section3A, which speaks about an offence upon death following anaccident, when he was driving the vehicle, while being unfit todrive through consumption of alcoholic drink. Here again, Section3A(2) makes it clear that unfitness to drive, on account ofconsumption of liquor, is predicated on the driver’s ability to driveproperly, being impaired. This is also to be determined by theimpairment test, apparently held under Section 6B. We would findthat a person can be said to be under the influence of alcohol, ifhis faculties are so disturbed that his driving abilities, is impaired.This concept of law is essentially following up on what has beenlaid down by the court in in Mair (Administratrix)supra. Casescan arise where there is a clause of the nature we are dealingwith, viz., excluding the liability of the insurer, when the driver isunder the influence of alcohol, in vastly different circumstances.A 21-year-old, who is otherwise licenced to drive a vehicle, may A

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Aexperiment with drinking in the company of his friends. He mayconsume a small quantity of liquor. This may not satisfy therequirement of alcohol present in the blood (30 mg./100 ml. =0.03%). However, it is unquestionable that the impact of the drinkon the person, may be demonstrated to be that he is unable todrive in the manner in which he would have driven, had he notBtaken that small drink. In such a case, to insist that he cannot beunder the influence of alcohol, unless, he has in his blood, therequisite percentage of alcohol under Section 185 of the MV Act,would be to make a new bargain for the parties and also to rewritethe contract. To be under the influence of alcohol, in other words,Cmust be understood as, a question going to the facts and a matterto be decided with reference to the impact of consumption ofalcohol on the particular driver. Yet another example will throwlight on a seemingly vexed issue. A person, who drinks on anempty stomach, would necessarily have a faster rate of the alcoholmaking its presence in the blood, and consequently, in the brain. ADperson, on the other hand, who has had food along with the alcohol,may manifest the effect of alcohol later. The effects of drinkingalcohol, in terms of external signs, have been described by Modiin his work - Modi’s Medical Jurisprudence and Toxicology. Theyare as follows:

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“In order to ascertain whether a particular individual is drunkor not, a medical practitioner should bear the following pointsin mind:

1. The quantity taken is no guide.

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2. An aggressive odour of alcohol in the breath, loss ofclearness of intellect and control of himself, anunsteady gait, a vacant look, dry and sticky lips,congested eyes, sluggish and dilated pupils, increasedpulse rate, an unsteady and thick voice, talking atrandom and want of perception of the passage oftime, are the usual signs of drunkenness. However,the smell of an alcoholic drink can persist in the breathfor many hours after the alcohol has been excretedfrom the body, as it is due to non-alcoholic constituents(congeners) in the drink.”

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51. If in a case, without there being any blood test, circumstances,associated with effects of consumption of alcohol, are proved, it maycertainly go to show that the person who drove the vehicle, had comeunder the influence of alcohol. The manner, in which the vehicle wasdriven, may again, if it unerringly points to the person having been underthe influence of alcohol, be reckoned. Evidence, if forthcoming, of anunsteady gait, smell of alcohol, the eyes being congested, apart from, ofcourse, actual consumption of alcohol, either before the commencementof the driving or even during the process of driving, along with the mannerin which the accident took place, may point to the driver being under theinfluence of alcohol. It would be a finding based on the effect of thepleadings and the evidence.

52. A conspectus of the aforesaid provisions would lead us to thefollowing conclusions:

Section 185 of the Motor Vehicles Act creates a criminal offence.The short title of Section 185 undoubtedly proclaims that it purportsto deal with driving by a drunken person or by a person under theinfluence of drugs. The offence as far as driving by a drunkenperson is concerned, was built around breach of an objectivestandard, viz., the presence of alcohol in the driver in excess of 30mg per 100 ml. of blood detected in a test of breath analyser. TheSection mandates the proving of the objective criteria of presenceof alcohol exceeding 30 mg per 100 ml. of blood in a test by abreath analyser. It is here that Section 203 of the Motor VehiclesAct becomes apposite. It empowers the police officer to requireany person driving or attempting to drive motor vehicle in a publicplace to provide one or more specimen of breath for breath test, ifPolice Officer or Officer of Motor Vehicle Department hasreasonable cause to suspect the driver has committed an offenceu/s 185. Section 203(2) deals with the situation where the vehicleis involved in an accident in a public place. In such circumstances,on a Police Officer in uniform entertaining any reasonable causeto suspect that the person driving the vehicle, at the time of theaccident, had alcohol in his blood, inter alia, he may require theperson to provide specimen of his breath in the breath test in themanner provided. Section 203(6) declares that the result of thebreath test made under Section 203 shall be admissible in evidence.Section 203 contemplates arrest without warrant being effected, A

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Aif the test indicated the presence of alcohol in the breath test.Section 204 follows up on a person who is arrested under Section203. It, inter alia, provides that a person who has been arrestedunder Section 203 is to provide to such medical practitioner asmay be produced by such police officer, a specimen of his bloodfor a laboratory test, if either it appears to the police officer thatBthe breath test reveals the presence of alcohol in the blood ofsuch person or such person when given the opportunity to submitto a breath test, has refused, omitted or failed to do so. The resultof the laboratory test is also made admissible.

53. It is clear that Section 185 deals with driving or attemptingCdriving of a motor vehicle a person with alcohol in excess of 30 mg per100 ml in blood which is detected in a test of breath analyser. Being acriminal offence, it is indisputable that the ingredients of the offencemust be established as contemplated by law which means that the casemust be proved beyond reasonable doubt and evidence must clearlyDindicate the level of alcohol in excess of 30 mg in 100 ml blood and whatis 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 wordshave been added to Section 185, that is “or in any other test includinglaboratory test”.

E54. It is to be noticed that this Court had occasion to deal with thequestion whether the prosecution under section 185 can succeed in theabsence of a test by a breath analyser. In the decision reported in State8through PS Lodhi Colony v. Sanjeev Nanda, the accused escapedfrom the scene of occurrence. He could not, therefore, be subjected tobreath test analyser instantaneously or to provide a specimen of his breathFfor a breath test or a specimen for his blood for a laboratory test. Dealingwith these provisions, K.S. Radhakrishnan, J., in his concurring judgmenthas held as follows:

“82. The accused, in this case, escaped from the scene ofoccurrence, therefore, he could not be subjected to breath analyserGtest instantaneously, or to take or provide specimen of his breathfor a breath test or a specimen of his blood for a laboratory test.The cumulative effect of the provisions, referred to above, wouldindicate that the breath analyser test has a different purpose and H8 2012 (8) SCC 450

object. The language of the above sections would indicate thatthe said test is required to be carried out only when the person isdriving or attempting to drive the vehicle. The expressions “whiledriving” and “attempting to drive” in the above sections have ameaning “in praesenti”. In such situations, the presence of alcoholin the blood has to be determined instantly so that the offendermay be prosecuted for drunken driving. A breath analyser test isapplied in such situations so that the alcohol content in the bloodcan be detected. The breath analyser test could not have beenapplied in the case on hand since the accused had escaped fromthe scene of the accident and there was no question of subjectinghim to a breath analyser test instantaneously. All the same, thefirst 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 contentin the blood, she noticed the presence of 0.115% weight/volumeethyl alcohol. The report exhibited as PW-16/A was duly provedby the doctor. Over and above, in her cross-examination she hadexplained that 0.115% would be equivalent to 115 mg per 100 mlof blood and deposed that as per traffic rules, if the person isunder the influence of liquor and alcohol content in blood exceeds30 mg per 100 ml of blood, the person is said to have committedthe offence of drunken driving.

83. Further, the accused was also examined in the morning of 10-1-1999 by Dr T. Milo, PW 10, Senior Resident, Department ofForensic 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 speechwas coherent and gait unsteady. Smell of alcohol was present.”

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

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A55. No doubt in the case noted above, the presence of the alcoholcontent was much more (that is 0.115% than the permissible limit). It isalso the case where the accident caused the deaths of six persons.The above view, no doubt, turned on the facts which rendered thetaking of the test by breath analyser impossible. It was also found thatthe first accused had been taken to the All India Institute of MedicalBScience (AIIMS) at 12.29 p.m. on 10.01.1999 and the blood samplesrevealed alcohol far in excess of the limit indicated in Section 185.Also, after the judgment, with effect from 01.09.2019, a laboratorytest or any other test aids the prosecution to establish a case undersection 185.C

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56. We have set out the provisions of Sections of 185, 203 and204 to deal with the argument of the parties based on the impact ofthese provisions, upon the operation of exclusion clause of the Contractof Insurance in a case, which does not involve any third party. TheContract of Insurance, in the present case, is a comprehensive ContractDof Insurance dealing with own damage and, no doubt, also third party.What is, however, involved in this case, is the liability alleged with theInsurer under Clause (A), which deals with ‘own damage’.

57. In regard to a claim involved in this case as aforesaid, weare of the view that there is nothing in law which would otherwiseEdisentitle the appellant from setting up the case that the exclusion clausewould disentitle the respondent from succeeding. As to whether it is acase of driving of the vehicle under the influence of the alcohol isdifferent matter, altogether. The requirement of Section 185 is in thecontext of a criminal offence. While it may be true that if there is aconviction under Section 185, it would, undoubtedly, fortify the InsurerFin 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 allegingdeficiency of service, under the Consumer Protection Act, is disabledfrom finding that the vehicle was being driven by the person under theGinfluence of the alcohol. The presence of alcohol in excess of 30 mgper 100 ml. of blood is not an indispensable requirement to enable anInsurer to successfully invoke the clause. What is required to be provedis driving by a person under the influence of the alcohol. Drunkendriving, a criminal offence, under Section 185 along with its objectivecriteria of the alcohol-blood level, is not the only way to prove that theH

person was under the influence of alcohol. If the Breath Analyser orany other test is not performed for any reason, the Insurer cannot bebarred from proving his case otherwise.

58. What we are dealing in this case is, construction of words in acontract between the parties. There is no case for the respondent thatthe terms of the contract to exclude the liability of the appellant, are inany way illegal. We can without difficulty imagine a circumstance inwhich the proposition that should the Insurer fail to establish a case interms of Section 185 BAL (Blood Analyser Test), it would fail, may notbe the proper approach to the issue. It is not difficult to contemplate thatthe accident may take place with the driver being under the influence ofalcohol and neither the Breath Test nor the laboratory test is done. Adriver after the accident, may run away. A test may never be performed.However, there may be evidence available which may indicate that thevehicle in question was being driven at the time of the accident by aperson under the influence of alcohol. It cannot then be said that merelybecause there is no test performed, the Insurer would be deprived of itsright 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, 26[th] Edition,it is, inter alia, stated:

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

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

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

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

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

a = cpr

(i) a represents the amount of alcohol expressed ingrams.

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

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

(iv) r is the value obtained by dividing the averageconcentration of alcohol in the body by theconcentration of alcohol in the blood. This is constantand the average is + 0.085 for men and + 0.055 forwomen.

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

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

[We may profitably remind ourselves in Kennedy v. Smith(See paragraph 25 of the judgment), it was a case of one and ahalf pints of lager (a kind of beer) and it would have meant today55 mg/100 ml well over the 30 mg/100 ml limit in India.]

“… Taken orally, alcohol is quickly absorbed as it is, bysimple diffusion mostly from the small intestine, less than 20 percent from the stomach and circulates in the blood. The absorptionof alcohol is facilitated if it is swallowed rapidly in a concentratedsolution on an empty stomach, and it is delayed if a weaker solution is slowly drunk while the stomach is full of food; particularly, if itis fatty or contains much proteins. Seventeen to twenty per centof ingested alcohol may not be absorbed in the blood stream ifthere is food in the stomach. The rate of absorption of 6 per centalcohol is 4.7mL/minute. Even drinks mixed with carbonated sodaincrease absorption. Milk is a potent factor in delaying theabsorption of alcohol. Alcohol reaches its maximum concentrationin the blood within approximately 30 minutes to about 2 hoursafter it is taken and thus concentration is ordinarily proportional tothe amount consumed.While the concentration of alcohol that isexcreted in the urine reaches its maximum level in about 20-25minutes later than in the blood, the range of the fall is parallel tothe fall in the level of alcohol in the blood. The concentration ofalcohol in the urine is usually 20-30 per cent higher than that in theblood and is fairly constant. The distribution of alcohol afterabsorption is throughout the fluids and tissues of the body inproportion to their water content and is the least in fat and bones.

The peculiar feature of metabolism of alcohol is that a fixquantity of alcohol is metabolised in unit time. This is called thezero order kinetic of metabolism (most of the drugs are metabolisedby first order kinetics where a certain proportion of the drug ismetabolised and the absolute quantity metabolised quantity willgo on decreasing as the blood level decreases). About 90 per centof the consumed alcohol is metabolised in the body, chiefly byoxidation in the liver, which contains the enzyme alcoholdehydrogenase @ about 9-15 mL/hour which is equal to abouthalf a peg of whisky. The result is lowering of alcohol in blood byabout 12-15 mg/hour.

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

60. The learned Author discusses about ‘acute alcohol intoxication’.He also talks about chronic poisoning of habitual drinker. We may, atonce, observe that under the Exclusion Clause, the Court need not bedetained by either condition. In other words, it is not necessary for the A

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AInsurer 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 achronic alcoholic. All that is required is to show that at the time of drivingthe vehicle, resulting in the accident, the driver was under the influenceof alcohol. In this regard, we may notice the following observations ofModi:B

“In order to ascertain whether a particular individual is drunk ofnot, 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 ofCclearness of intellect and control of himself, an unsteadygait, a vacant look, dry and sticky lips, congested eyes,sluggish and dilated pupils, increased pulse rate, an unsteadyand thick voice, talking at random and want of perceptionof the passage of time, are the usual signs of drunkenness.DHowever, the smell of an alcohol drink can persist in thebreath for many hours after the alcohol has been excretedfrom the body, as it is due to non-alcoholic constituents(congeners) in the drink.”

E61. We notice that Blood Alcohol Concentration or BAC is, thus,the concentration of alcohol in a person’s blood. In India, the permissibleBAC level is pegged at 30 mg of alcohol in 100 ml. of blood in Section185 of the MV Act, 1988. This corresponds to 0.03 percentage of alcoholin the blood, beyond which, it is an offence under Section 185 to drive orFattempt to drive as declared. As noticed, BAC is correlated to a numberof variables. It is affected by gender and body weight. The male hasmore water content than a female. On same quantity drunk, the latterbuilds up greater BAC than the former. BAC is also affected clearly onwhether the person drank on an empty stomach or not. The livermetabolises ordinarily a standard drink at the rate of a drink in an hour.GThe 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 theCongress on ‘Driving under the influence and relating to alcohol limits’H

given by the Department of Transportation, National Highway SafetyAdministration, in October, 1992, states as follows, inter alia:

“EXECUTIVE SUMMARY

Current law defines the danger of driving under the influenceof alcohol in two ways. First, it is illegal in all states to drive whileimpaired by alcohol at any BAC level. For example, any personwho is observed driving in an unsafe manner and found to havebeen drinking, can be charged for driving under the influence ofalcohol regardless of actual BAC.

In addition, there are basically two types of laws for thedriving public that specify BAC limits. “Presumptive”2 laws statethat if an individual is driving at or above a given BAC, it ispresumed that the driver is impaired or intoxicated, but thepresumption is open to rebuttal in court. “Per se” laws make itillegal by (or in) the act itself to drive if one’s BAC is at or over ‘aspecified BAC. The per se BAC level is 0.10 in 41 states and theDistrict of Columbia and is 0.08 in 5 states. Four states have onlya presumptive limit of 0.10. The laws in some states presume thata person is not impaired if their BAC is 0.05 or below.

CHAPTER II. ALCOHOL. EFFECTS

The first report to Congress reviewed the scientific literatureon the influence of BAC on driver performance and the relationshipbetween BAC level and crashes. The evidence from these twoareas was integrated to draw a number of conclusions about alcoholeffects and BAC levels, especially those below 0.10. Among themajor conclusions were:

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

•The greater the amount of alcohol, the greater thedegree of impairment on a given task, the morefunctions (or different kinds of tasks) that areimpaired, and the greater the risk of a crash.”

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A63. Therefore, the presumptive laws provide for presumptive limitsfor alcohol consumption, contravening which, would result in thepresumption subject to it being rebuttable, that a person was drivingunder 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, hasbeen further reduced in almost all the States to 0.08. In fact, there areBlower BAC (Blood Alcohol Concentration) levels or zero tolerance levels,for under aged drivers.

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64. In another paper brought out by the U.S. Department ofTransportation in July, 1998, dealing with ‘the effects of low doses ofCalcohol on driving related skills, a review of the evidence’, the studyused 177 citations. Driving is a multitask skill. Driving involvesperformance of various tasks. It includes psycho-motor skills, perception,visual function, information processing, concentrated attention, dividedattention, reaction and tracking. The Report finds as follows: “it seemsthere is no lower threshold level, below which impairment does notDexist for alcohol”: The conclusion and Recommendations read asfollows:

“CONCLUSIONS AND RECOMMENDATIONS

The aim of the present review was to consider alcohol effects onEaspects of skilled performance related to driving, with a view toassessing the extent of impairment caused by low doses of alcohol.The evidence reviewed here indicates that alcohol does notuniformly impair all aspects of performance. Areas such asoculomotor function and divided attention performance demonstratethat impairment can occur at BACs as low as 0.02%. It is clear,Fmoreover, that BACs of 0.05% or more impair nearly all of theimportant components of driver performance. In assessing theminimum BACs required to produce performance decrementsrelevant to driving, it can be noted that for most of the performanceareas discussed here impairment has been reported at BACsGbetween 0.01 and 0.02%.Unfortunately, relatively few studieshave investigated the effects of BACs below 0.04%, so thatinformation about the behavioral impairment at BACs below0.04% is less available than at 0.05% and above. There is sufficientevidence, however, to demonstrate that BACs of 0.05% and moreproduce impairment of the major components of driver H

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performance: reaction time, tracking, divided attentionperformance, information processing, oculomotor functions,perception, and other aspects of psychomotor performance. Thefew studies on alcohol-aggression effects are consistent withfrequent reports by police officers of hostile behaviors exhibitedby offenders. The present review has worked from the modelprovided by Moskowitz (1973a,b), which suggested that driving isa time sharing task, the principal components of which are trackingand visual search and recognition. It is clear that BACs of 0.05%or more impair both of these individual skill components and, atlower levels, also impair the combination of these skills in a dividedattention situation. Higher BAC levels (for example, those over0.10%) also show consistent impairment effects. Evidence fromstudies of alcohol on actual driving tasks demonstrates that driverperformance is similarly affected. Thus, the weight of existingempirical evidence is considered sufficient to scientifically justifythe setting of legal BAC limits at 0.05% or lower. Research onBACs below 0.05% should be encouraged. As noted, there isextensive evidence of performance impairments at these lowerBACs, but further studies would permit better definition of theBAC levels at which impairment first appears for differentbehavioral areas. …”

65. We deem it appropriate also to refer to “Report of the Reviewof Drink and Drug Driving Law” which was submitted in the year 2010in 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 excessof 80 mg. of alcohol per 100 ml. of blood. The Government appointed SirPeter North, CBE, Q.C. to enquire and submit a Report as to whetherthere was need to reduce the limit. The Report, inter alia, states asfollows:

“Research findings

3.26. The Centre for Public Health Excellence of the NationalInstitute of Health and Clinical Excellence (NICE) has recentlyconducted an extensive independent review of the literature whichwas commissioned by the Department for Transport.34 The reviewaimed to assess how effective the blood alcohol concentration AB

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Drink driving and the risk of a road traffic accident 3.29. NICE concluded that there is strong evidence that someone’sBability to drive is affected if they have any alcohol in their blood.Studies consistently demonstrate that the risk of having an accidentincreases exponentially as more alcohol is consumed. Drivers witha BAC of between 20 mg/100 ml and 50 mg/100 ml have at leasta three times greater risk of dying in a vehicle crash than thosedrivers who have no alcohol in their blood. This risk increases toCat 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 and100 mg/100 ml.

3.30. Younger drivers are particularly at risk of crashing wheneverthey have consumed alcohol – whatever their BAC level – becauseDthey are less experienced drivers, are immature and have a lowertolerance to the effects of alcohol than older people. Youngerdrivers may also be predisposed to risk-taking – regardless ofwhether or not they have drunk alcohol.

Breath testing devices – Non-evidential, fixed evidential andEportable evidential

3.69. The first practical device for the analysis of alcohol in humanbreath was developed in the USA in the mid-1950s. TheBreathalyzer® instrument gained wide acceptance and was usedin traffic law enforcement by police officers in the USA, CanadaFand Australia over many years.93 The Breathalyzer® provided anon-intrusive way to determine the driver’s BAC althoughEuropean nations showed no interest in this method for forensicpurposes and instead determined alcohol in blood as evidence forprosecution of drunken drivers. Interest in Europe in evidentialbreath-alcohol testing arose in the 1980s when more compact,Gautomated 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 20mg/100 ml H

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 abilityto drive is affected after consuming any amount of alcohol. Adriver who has a BAC of between 20 mg/100 ml and 50 mg/100ml is at least 3 times more likely to die in a road traffic accidentthan a person who has no alcohol in their body.

4.7. In consideration of this evidence, there is clearly merit andsense 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 consistentwith the absolutely correct and necessary ‘do not drink and drivemessage’. Indeed, a number of European countries includingSweden, Poland and Belgium have adopted a 20 mg/100 ml, orclose to 20 mg/100 ml, BAC limit. The Review also noted withinterest the vote in support of a ‘zero tolerance’ drink drive limitat the Royal College of Nursing’s annual conference in April2010.”

66. We may observe here, no doubt that, the age bracket foryounger driver appears to be 17-24 years going by para 3.10 of thereport. The committee recommended for a reduction of the BAC levelto 50 mg of alcohol in 100ml of blood.

TWO ARTICLES

EFFECT OF ALCOHOL ON BRAIN DEVELOPMENTBY FARHIN PATEL AND PALASH MANDAL

67. “When people consume alcohol, about 20% is absorbed in thestomach and almost 80% is absorbed in the small intestine. Alcoholabsorption is related to the two main factors:

a.Concentration of alcohol and

b.Heavy meal consumption before drinking. An emptystomach will fasten the alcohol absorption.”

68. “Absorbed alcohol enters the blood stream and is carried allthrough the body. Upon reaching the body, simultaneously the body worksto eliminate it. The 10% of alcohol is removed by the kidneys (urine)and lungs (breath). Left-out alcohol is oxidized by the liver, convertingalcohol into acetaldehyde first and then further converted to acetic acid.”

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AHOW DOES ALCOHOL ACT AT THE NEUROLOGICALLEVEL?

69. “Brain chemistry is affected by alcohol through alteration ofneurotransmitters. Neurotransmitters are chemical messengers that sendout the signals all through the body and control thought processes,Bbehaviour and sensation processes. Neurotransmitters are eitherexcitatory (excite brain electrical motion) or inhibitory (decrease brainelectrical motion). Alcohol increases the effects of the inhibitoryneurotransmitter GABA in the brain. GABA causes the lethargicmovements and garbled speech that often occur in alcoholics. At thesame time, alcohol inhibits the excitatory neurotransmitter glutamate,Cwhich results in a suppression of a similar type of physiological slowdown.In addition, alcohol also increases the amount of chemical dopamine inthe brain centre, which creates the feeling of pleasure after drinkingalcohol. Just after a few drinks, the physical effects of alcohol becomeperceptible. The level of BAC rises when the body takes up alcoholDfaster than it can release it.”

70. In an Article titled“Police officers’ detection of breath odorsfrom alcohol ingestion”by Herbert Moskowitz, Marcelline Burns andSusan Ferguson, we note the following:

“Usually the strength of the odor is categorized as either slight,Emoderate or strong. Despite the frequent reliance on this clue inofficers’ investigation of drivers, little objective evidence is availableon the probability of successfully detecting, identifying or measuringalcohol odors.

A computer literature search supplemented by examiningFreferences in various publications elicited only two studiesexamining the detectability of breath alcohol odor. The first studywas found in a monograph published by Widmark (1932) (GermanEdition 1932, English Transaltion, 1981). Widmark was a professorat the University of Lund, Sweden and presented data obtainedGfrom behavioral testing of 562 drivers arrested for possible drivingunder the influence of alcohol. The behavioral testing occurred inpolice stations throughout Sweden, and were performed by morethan 150 physicians. The seven behavioral tests included the odorof alcohol on the breath, the Romberg Test of body sway, walkinga straight line and turning, finger to finger test, picking up smallHobjects and slurred speech. Each of these items in the behavioural battery was administered to all subjects. Widmark noted that theexamination occurred sometime after arrest at the police stationand therefore the breath odor would have been during the postabsorption stage. No subject whose blood alcohol concentration(BAC) was 0.06% of below had an alcohol breath odor detectedby physicians. Between 0.061 and 0.08% BAC, 33% of the driverswere 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 only above 0.261% BACthat an alcoholic odor was 100% detected on the breath.

The other reference dealing with the issue was a NationalHighway Transportation Safety Administration, Department ofTraffic (NHTSA/ DOT) pilot study examining cues utilized byofficers in detecting drivers under the influence of alcohol (DUI)(Compton, 1985). This was an experimental study where 75 malevolunteer drivers were administered ethanol beverages sufficientto produce BACs of either zero or between 0.05 and 0.15%.Consumption was spaced over a 1.5-2h period. After an additionalhalf hour wait, subjects drove a car over a closed course to acheck point, where an officer/ observer conversed with the driverand noted among other symptoms whether an alcohol odor waspresented. Other symptoms examined were face flushing, slurredspeech, eye dilation, demeanor, disheveled hair, poor dexterity andclothes disheveled. The officers then made a determinationwhether the driver should be detained for further investigation.

Drivers with a zero BAC were correctly identified 93% of thetime. There were 7% false-positives, i.e. identification of a zeroBAC driver as having alcohol odor. Since officers were awarethat they were participating in an alcohol study, a 7% false-positiverate is undoubtedly higher than would occur in actual traffic stops.An alcohol odor was detected in drivers with BACs between0.05 and 0.09% only 39% of the time producing a false negativeerror rate of 61%. Conversely, 61% of drivers with BACs between0.10 and 0.15% were detected as emitting an alcohol odor with39% false negatives, i.e. drivers above 0.10%, not detected.Variability between officers in detecting odor was quite large.”

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THE ARGUMENT BASED ON INVESTIGATOR’SREPORT AND THE QUESTION RELATING TO BURDEN OFPROOF

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71. Shri Gopal Sankarnarayanan, learned Senior Counsel forrespondent contended that the argument of the appellant that the Insurerwas saddled with the liability to prove violation of the condition, which isimpossible of achievement, is without basis, in the facts of this case. Inthis regard, he pointed out the contents of the Investigator Report. HeCpointed out that the Investigation Report would show that the Investigatorwas very much present in the early morning, and therefore, he had theopportunity to interact with the driver of the car, the Police Officers andthe Doctors. The Investigator could have also insisted on getting the testdone on the driver. However, despite this opportunity being presented,he has not availed of the same. Thus, it shows that there is no merit inDthe appellant’s contention that the person driving the vehicle was underthe influence of alcohol.

72. The relevant portion of the Investigation Report reads asfollows:

E“Description of Investigation with regard to accident of abovesaid vehicle:

With regard to above said Accident Claim, I have been deputedby you to investigate the above said claim. In this regard, I wentto accident spot at India Gate on 22.12.07 and inspected the carFand thereafter went to P.S. Tilak Marg and enquired about saidaccident 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 methat he received an accident call which was entered in DDRGregister vide D.D. entry no. 39 A on 22/12/07 in the morning at5:05 a.m. and thereafter he alongwith the constable Vinod no.2098/ND left from P.S. Tilak Marg for the accident spot atIndia Gate and while they reached at the spot they saw a carno. DL1CJ-3577 has been burning and the Addl SHO and firebrigade were present at the spot. He was being informed that H

the injured were taken to RML Hospital, where is receivedcopy of MLC No. 62213/07 in the name Ruchi Ram JaipuriaS/o C.K. Jaipuria R/o 11.No. 8, Prithvi Raj Road, New Delhiwherein the doctor has mentioned “No Evidence of Freshinjuries” for medical examination and smell of Breath Alcohol(+) and MLC No. 62214/C7 in the name of Aman Bangia S/oSh. 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 andsmell of Breath Alcohol (+). Thereafter he again reached atthe spot, where constable Anand Prakash No. 1226 /ND postedat P.S. Tilak marg gave his statement with regard to saidaccident and on the basis of the record of MLC’s of injuredMr. Ruchi Ram Jaipuria and Mr. Aman Bangia they havelodged FIR No. 453/07 on 22/12/07 u/s 279/427 IPC as well asu/s 185 of M.V. Act 1988. Copy of said FIR is enclosed herewithand 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 ithas been confirmed that the driver, Mr. Aman Bangal wasunder influence of alcohol due to which he lost the control andas 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 27/01/08relating and pertaining to the investigation of the motor claim ofvehicle no. DL1CJ-3577 of M/S Pearl Beverages under covemoteno. 37669622.

As per FIR no. 453/07 dated 22/12/07 of P.S.Tilak Margfiled in the instant case,. Section 185 of M.V.Act 1988 has alsobeen imposed. As per section 185 of M.V.Act 1988, driving of avehicle by a drunken driver is an offence under such section andwhich is punishable with imprisonment. Thus the said vehicle wasbeing driven by it’s driver Mr. Aman Bangia, under the influenceof alcohol at the time of said accident. As such’ Prima Faciedrunkep driving by the driver Mr. Aman Bangia, has been proved.

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

74. It must be noted that the Report, thus, indicates that theInvestigator was deputed by the appellant. It also suggests that he wentto the accident spot on 22.12.2007. The reference to the time being 5.05A.M. relied upon by the learned Counsel for the respondent as the timeBat which the Investigator, inter alia, is alleged to have reached the spot,is actually part of the information which the Investigator received fromthe Sub-Inspector. The Sub-Inspector has informed the Investigator thathe received information at 5.05 am and, thereafter, he, along with aConstable, had reached the spot and that he saw the car, which wasburning. The only part which makes up the Report, as such, of theCInvestigator, is his observations. Thus, the Investigator’s Report doesnot appear to suggest that the Investigator had been to the accident siteat 05.00 A.M. in the morning and, therefore, had the opportunity to interactwith the driver of the vehicle or ensure that the test was conducted toshow that the driver was driving under the influence of alcohol. Thus,Dwe repel the contentions of the respondent.

75. On facts, having rejected the argument of the respondent thatthe surveyor appointed by the appellant was present at the time of theaccident or immediately after the accident, we must look at the some ofthe terms of the insurance policy. The contract provides that the noticeEshall be given in writing to the insurer immediately after the occurrenceof any accidental loss or damage in the event of any claim. The insuredhas to give all information and assistance as required by the company. Itis obviously true that the appellant was intimated on 22.12.2007 which isevident from the fact that investigator did go to the accident spot on22.12.2007 and inspected the car. The exact time given is however notFmentioned in the report. The time at which he went was also not gotarticulated through the interrogatory issued by the respondent. It wouldappear to be a case where the driver of the car not having suffered anyfresh injury would not have been available in the hospital. The policeauthorities obviously did not carry out the blood test or the breath test.GAs to what transpired in this regard the matter remains a mystery. Fromthe F.I.R. it appears that the informant officer’s priority was to take themen out and to take them to the hospital. However, we cannot resistrecording our disquiet at the conduct of the police officer in not pursuingthe matter in the form of conducting a breath test or other tests andpursuing the matter under Section 185 of the Motor Vehicles Act or byH

filing of final report. However we desist from saying anything morehaving regard to the fact that 14 years have gone by.

76. Coming to the question again on burden of proof, insofar asthe 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 thecase of this nature, we cannot but notice Section 106 of the EvidenceAct. Section 106 of the Evidence Act speaks of the burden of provingfacts which are in the special knowledge of the person. Section 106 ofthe Evidence Act reads as follows:

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

78. This Section enshrines the principle which conduces toestablishing facts when those facts are especially within the knowledgeof a party. There can be no doubt this is a salutary provision whichapplies to both civil and criminal matters also. We do notice V. KishanRao(supra), where this Court held as follows:

“13. Before the District Forum, on behalf of Respondent 1, it wasargued that the complainant sought to prove Yashoda Hospitalrecord without following the provisions of Sections 61, 64, 74 and75 of the Evidence Act, 1872. The Forum overruled the objection,and in our view rightly, that complaints before the Consumer Foraare tried summarily and the Evidence Act in terms does not apply.This Court held in Malay Kumar Ganguly v. Dr. SukumarMukherjee [(2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299] thatprovisions of the Evidence Act are not applicable and the Foraunder the Act are to follow the principles of natural justice (seepara 43, p. 252 of the report).”

79. Even if, the Section as such is not applicable to the ConsumerProtection Act, there can be no reason why the principle cannot apply toproceedings under the Consumer Protection Act. We may notice a9decision of this Court in Shambu Nath Mehra v. State of Ajmer.Paragraph 11 of the said judgment reads as under:

9 AIR 1956 SC 404

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A“11. This lays down the general rule that in a criminal case theburden of proof is on the prosecution and Section 106 is certainlynot intended to relieve it of that duty. On the contrary, it is designedto meet certain exceptional cases in which it would be impossible,or at any rate disproportionately difficult, for the prosecution toestablish facts which are “especially” within the knowledge ofBthe accused and which he could prove without difficulty orinconvenience. The word “especially” stresses that. It means factsthat are pre-eminently or exceptionally within his knowledge.Ifthe section were to be interpreted otherwise, it would lead to thevery startling conclusion that in a murder case the burden lies onCthe accused to prove that he did not commit the murder becausewho could know better than he whether he did or did not. It isevident that that cannot be the intention and the Privy Council hastwice refused to construe this section, as reproduced in certainother Acts outside India, to mean that the burden lies on an accusedperson to show that he did not commit the crime for which he isDtried. These cases are Attygalle v. Emperor [AIR 1936 PC 169]and Seneviratne v. R. [(1936) 3 All ER 36, 49].”

80. The same view has been taken in Murlidhar and others v.10EState of Rajasthan.

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 consumedany alcohol. In the very next sentence, it is pleaded that further assumingFthat he had consumed alcohol, as he was not intoxicated the exclusionclause is not attracted. When it came to affidavit evidence, however, thedriver has not deposed that he had not consumed intoxicating liquor. Hehas only stated that he was neither under the influence of intoxicatingliquor or drugs at the time of the accident. In view of the evidence thatGpointed to the driver smelling of alcohol and the absence of any evidenceby even the driver that he has not consumed alcohol and as even foundby the National Commission, it would appear to be clear that the carwas driven by the driver after having consumed alcohol. In such a caseas to what was the nature of the alcohol and what was the quantity of H10 AIR 2005 SC 2345

alcohol consumed, and where he had consumed, it would certainly befacts within the special knowledge of the person who has consumed thealcohol. The driver has not, for instance also, once we proceed on thebasis that he has consumed alcohol, indicated when he has consumedthe alcohol. It would be “disproportionately difficult” as laid down bythis Court for the insurer in the facts to have been proved as to whetherthe driver has consumed liquor on an empty stomach or he had food andthen consumed alcohol or what was the quantity and quality of the drink(alcohol content) which would have been circumstances relevant toconsider as to whether he drove the vehicle under the influence of alcohol.The driver has merely stated that he was not under the influence ofintoxicating liquor and he was in his full senses.

82. It is true, no doubt, there are no interrogatories served on thedriver by the appellant. It must be noted here that this Court has laiddown that having regard to the nature of the proceeding under theConsumer Protection Act, the proceeding being summary, crossexamination be conducted ordinarily through the modality ofinterrogatories. In Dr. J.J. Merchant (Dr) v. Shrinath Chaturvedi11

“19. It is true that it is the discretion of the Commission to examinethe experts if required in an appropriate matter. It is equally truethat in cases where it is deemed fit to examine experts, recordingof evidence before a Commission may consume time. The Actspecifically empowers the Consumer Forums to follow theprocedure which may not require more time or delay theproceedings. The only caution required is to follow the saidprocedure 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 forexamination of any witness [under Section 13(4)(v)]. It is also tobe stated that Rule 4 in Order 18 CPC is substituted which interalia provides that in every case, the examination-in-chief of awitness shall be on affidavit and copies thereof shall be suppliedto the opposite party by the party who calls him for evidence. Italso provides that witnesses could be examined by the court orthe Commissioner appointed by it. As stated above, the Commissionis also empowered to follow the said procedure. Hence, we do-not think that there is any scope of delay in examination or cross AB

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Aexamination of the witnesses. The affidavits of the experts including-the doctors can be taken as evidence. Thereafter, if crossexamination is sought for by the other side and the Commissionfinds it proper, it can easily evolve a procedure permitting the-party who intends to crossexamine by putting certain questionsin writing and those questions also could be replied by such expertsBincluding doctors on affidavits. In case where stakes are veryhigh and still a party intends to cross-examine such doctors orexperts, there can be video conferences or asking questions byarranging telephonic conference and at the initial stage this costshould be borne by the person who claims such video conference.CFurther, cross-examination can be taken by the Commissionerappointed by it at the working place of such experts at a fixedtime.”

83. Thus, unlike in proceeding in a court, ordinarily the insurersDmay not be in a position to cross examine. It is no doubt true that sincethe principle of Section 106 of the Evidence Act only cast the burden onthe person who has special knowledge of the facts, apart from the facts,which we have referred to above, viz., where it was consumed, thequality and quantity of alcohol consumed, the time at which it wasconsumed, whether it was accompanied by food which can clearly beEsaid to be within the knowledge of the person who drove the vehicle, theeffects of the drinking by way of signs discernible, after the accidenttook place, in the facts, cannot be said to be within the knowledge of thedriver only. We say this for the reason that according to FIR, the policeconstable on patrol has purported to describe the happening of the accidentFand was present at that time. According to his version, he has with theaid of his companion officer helped the driver and the co-passenger outof the vehicle and they were taken to the hospital. At the hospital, in themedical legal report, there is reference to breath of alcohol(+). It is,however, true that the insurer or his agent may not have been givennotice at that stage. We also agree that it would not be proper or legal toGhold that in such circumstances, the insurer would still be in a position toprove through a breath test or blood test that the driver was under theinfluence of alcohol. If the driver having regard to the fact did not sufferany fresh injury is discharged from the hospital and goes away, we findit inconceivable as to how the insurer could be at fault for not having aHbreath or blood test conducted. It may be true that the insurer could have obtained material in the form of affidavit evidence from the policeofficer or the medical practitioner concerned regarding any other factsregarding consumption of alcohol by the driver.

RES IPSA LOQUITUR

84. The State Commission has applied the principle of res ipsaloquitur. The question to be answered is not whether the driver of thevehicle was negligent. Res ipsa loquitur has been discussed in thedecision of this Court in Syad Akbar v. State of Karnataka12and this iswhat is held:

“19. As a rule, mere proof that an event has happened or anaccident has occurred, the cause of which is unknown, is notevidence of negligence. But the peculiar circumstances constitutingthe event or accident, in a particular case, may themselves proclaimin concordant, clear and unambiguous voices the negligence ofsomebody as the cause of the event or accident. It is to suchcases that the maxim res ipsa loquitur may apply, if the cause ofthe accident is unknown and no reasonable explanation as to thecause is coming forth from the defendant. To emphasise the point,it may be reiterated that in such cases, the event or accident mustbe of a kind which does not happen in the ordinary course ofthings if those who have the management and control use duecare. But, according to some decisions, satisfaction of this conditionalone is not sufficient for res ipsa to come into play and it has tobe further satisfied that the event which caused the accident waswithin the defendant’s control. The reason for this secondrequirement is that where the defendant has control of the thingwhich caused the injury, he is in a better position than the plaintiffto explain how the accident occurred. Instances of such specialkind of accidents which “tell their own story” of being offspringsof negligence, are furnished by cases, such as where a motorvehicle mounts or projects over a pavement and hurts somebodythere or travelling in the vehicle; one car ramming another frombehind, or even a head-on collision on the wrong side of the road.(See per Lord Normand in Barkway v. South Wales TransportCo. [(1950) 1 All ER 392, 399]; Cream v. Smith [(1961) 8 AER349]; Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER109] )

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A20. Thus, for the application of the maxim res ipsa loquitur “noless important a requirement is that the res must not only bespeaknegligence, but pin it on the defendant”.

85. Thus, it is used in cases of tort and where the facts withoutanything more clearly and unerringly points to negligence. The principleBof res ipsa loquitur, as such, appears to be inapposite, when, what is inquestion, is whether driver was under the influence of alcohol. It may beanother matter that though the principle as such is inapplicable, the mannerin which the accident occurred may along with other circumstancespoint to the driver being under the influence of alcohol.

CTHE 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 andToxicology, 24[th] edition. The Commission finds that in the opinion of theauthor, the percentage of alcohol in the blood would be 0.2% in case theDquantity of alcohol per 100 ml of blood is 200 mg. The finding that aperson can be said to be moderately intoxicated if he has 200 mg per100 ml is an incorrect inference. The person who has such a level ofalcohol would have 0.2% of alcohol. Such a person would clearly beheavily intoxicated. This is clear from a perusal of the table showing theeffects in the Manual for Physicians referred to in paragraph 7 of theErelied 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 andsuch percentage happens when he has 150 mg of alcohol per 100mlFblood is an observation made based on Modi’s Medical Jurisprudenceand Toxicology. Modi in his work has in this regard drawn upon thepresumptive limit which prevailed in the United States. In the UnitedStates, at one point of time, 0.15% of alcohol concentration was themaximum presumptive limit. If the alcohol concentration was found tobe in excess of 0.15% unless rebutted by the accused, it was presumedGthat the driver was under the influence of alcohol. In fact, there was alower presumptive limit of 0.05% and if the concentration was belowthis limit it was presumed that the driver was not in the wrong. What isrelevant is that following various studies the presumptive limit on the onehand stood lowered in all the states and the maximum presumptive limitwas initially reduced to 0.10% and thereafter it was reduced to 0.08%.H

In India the percentage is 0.03 which is the same as 30 mg in 100 ml ofblood. In China and in Sweden, the percentage is still lower. It is 0.02%.In paragraph 6 of the relied upon order reference is made to Lyon’sMedical Jurisprudence and Toxicology. Reference is made therein tothe policy statement of the American Medical Association and NationalSafety Council of the USA that 0.10% can be taken as prima facieevidence of alcoholic intoxication and recognising that many individualsare under the influence of 0.05% to 0.10% range. This is at loggerheadswith the earlier reference to 0.15% alcohol not rendering a person unfitto drive the motor vehicle unless it is understood as the law at an earlierpoint of time. The further reference to 0.05% blood alcohol level raisinga presumption that a subject was not under the influence of alcoholicbeverage is again based on the set of laws in the United States whichprovided for such a presumption. The National Commission has notconsidered the fact that along with such presumptive limit, the laws inthe United States also further provide that irrespective of the alcoholpercentage or BAC level, if the vehicle is not driven safely and a personhas consumed alcohol, he is liable to be booked under another set oflaws. The observation made in Lyon’s Medical Jurisprudence that bloodalcohol level of less than 0.10% does not raise a presumption ofintoxication is also contrary to the developments under which even thepresumptive 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 underageddrivers in the United States. Coming to paragraph 7 of the relied uponorder, the Commission has referred to the Manual for Physicians inNational Drug Dependence Treatment Centre, All India Institute ofMedical Sciences, New Delhi. There is in the first-place error in thesecond classification. Actually, it is intended for a BAC level of ‘above80’. Even in the said classification the actual effects of alcoholconsumption are shown as follows – “Noisy, moody, impaired judgement,impaired driving ability” as against the third classification 100 to 200BAC, the effects of which are – “Electroencephalographic changesbegin to appear, Blurred vision, unsteady gait, gross motor in-coordination,slurred speech, aggressive, quarrelsome, talking loudly.” The Commissionhas not referred to the effects of BAC below 80 brought out in theManual. In the same, the effects are shown as – “euphoria, feeling ofrelaxation and talking freely, clumsy movement of hands and legs, reducedalertness but believes himself to be alert.” The relied upon order alsoshows disinclination to accept views expressed in Modi’s Medical AB

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AJurisprudence and Toxicology on the basis of the opinion of All IndiaInstitute of Medical Sciences which is allegedly collaborated by the opinionexpressed in Lyon’s Medical Jurisprudence and Toxicology. TheCommission in the said case, which did not deal with a case of drivingafter consuming liquor, found the limits relevant as fixed in variouscountries. The quantity of alcohol allowed in the USA is stated to be notBabove 100 mg in 100 ml of blood. In fact, in the USA where it also usedto 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 therequirement under Section 185 of the Motor Vehicles Act, with thatCunder the exclusion clause in the contract of insurance in question.

THE FIR

89. The Report is based on a statement given by a Police ConstableAnand Kumar. His statement would show that as the Constable postedDat the Police Station, Tilak Marg, New Delhi, on 21/22.12.2007, he andanother Constable were on patrolling. At about 02.25, he on hismotorcycle reached c-hexagon, Zakir Hussain Marg. He saw the driverof the car No. DL-1CJ-3577 (the car in question), came from theNizamuddin side towards the Zakir Hussain Marg, India Gate, in a veryrash, negligent way and at a very high speed. Due to very high speed,Ethis 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, electricpole and the wall of the Children park and got overturned. The car caughtfire. He along with his associate, a Home Guard, brought the driver ShriAman Bangia and his associate out of the said car, after great effortsFand reported about the incident to wireless opp. (must be operator) D-56 of Police Station, through wireless. Vehicles of the fire brigade, PCRVan and Additional SHO Van, came to the spot. He reports that theaccident occurred due to the rash and negligent driving. FIR shows thatthe 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 theGAdd/SHO and the vehicles of the fire brigade were all so present forcontrolling the fire. The PCR van, it is stated, had taken away the accusedto the Ram Manohar Lohia Hospital. The Sub-Inspector goes to theHospital. He received the MLC of the driver of the car and the co-passenger. In the same, the Doctors have reported that there is noHevidence of fresh injury and smell of alcohol (+). Virtually, the same report is made about both the driver and the co-passenger. The age ofthe driver is shown as 27 years. It was further recorded that a caseunder Section 279/427 of the IPC and Section 185 of the MV Act hadbeen committed. The date and time of the occurrence is again shown as22.12.2007 at about 02.25.

90. This FIR is FIR No. 453 of 2007. The proceedings of theMetropolitan Magistrate dated 27.08.2011 would show that for theoffence under Section 279 of the IPC the charge was separately framedagainst the driver of the car and he voluntarily pleaded guilty. He wasconvicted under Section 279 of IPC and sentenced to pay a fine ofRs.1,000/- with, no doubt, a default clause.

91. A perusal of the Order of the State Commission would showthat the FIR and the Medico Legal Case sheet has been produced bythe respondent itself.

92. There can be no doubt that the respondent itself sought to relyon the FIR and the Medico Legal Case (MLC). We have noticed itscontents. The FIR has been prepared on the basis of the Report of thePolice Officer. The use of the FIR in criminal case is to be distinguishedfrom its employment in a consumer case. This is so, in particular, whenthe FIR is relied upon by the complainant himself. It is noteworthy furtherthat though in the complaint, it was contended that the Police had lodgedthe FIR under Section 185 of the Motor Vehicles Act besides Section279/427 of IPC but no charge-sheet had been filed till the date of thecomplaint, 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 dated04.03.2009, the case of the respondent that there was no evidence toprosecute the driver for any of the offences, is falsified by the driverpleading guilty in regard to at least one of the offences, viz., the offenceunder Section 279 of IPC, which took place, apparently, during thependency of the complaint before the State Commission and the StateCommission has taken notice of this development.

93. As far as MLC is concerned, in the complaint filed by therespondent, there is no dispute that the MLC contained reference to thedriver and the co-passenger smelling of alcohol.

94. At this juncture, it is necessary to notice the case set up by therespondent. It expressly sets up the case that the person driving the A

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Avehicle had not consumed any alcohol. The very next sentence, no doubt,sets up the alternate case, which is that further assuming that he hadconsumed 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 ofBthe respondent, has, in is his Affidavit evidence, stated that under Section185 of the MV Act, a certain percentage of alcohol is to be found beforea person is to be prosecuted for the offence of drunken driving. The lawdoes not prohibit driving after consuming liquor and all that is prohibitedis, that the percentage of liquor should not exceed 30 mg. per 100 ml. ofblood. Therefore, the understanding appears to be that only inCcircumstances, where the act of driving, having consumed liquor, attractsthe wrath of Section 185 and an offence is committed thereunder, thatthe opprobrium of the Exclusion Clause in the Contract of Insurance, forown damage, is attracted.

96. The Affidavit of PW2, the driver himself, would show that heDdoes not depose that he had not consumed liquor as was the case in thecomplaint. Instead, he deposes only that he was neither under theinfluence of intoxicating liquor or drugs at the time of the accident. Hefurther deposed that he was in his full senses and capable of exercisingproper control over the said vehicle. Even, at the stage of the depositionEthrough affidavit, which appears to have been filed in 2010, he reiteratesthat the case in FIR No. 453 of 2007, was falsely registered. The casepending against him in the Court of the Metropolitan Magistrate, NewDelhi, is stated to be malafide and he is sure to be acquitted in the saidcase. Nearly, within a year, as already noticed by us, however, theFallegedly false case is accepted by the driver as true. The Affidavit ofPW2, would not show that the driver had not consumed liquor, whichcase is set up. On the contrary, driver having drunk, is fortified by theMLC, which clearly indicates that the driver was smelling of alcohol.

97. Therefore, it can be safely concluded that the case set up ofGthe respondent that the person driving the car had not consumed liquor,is clearly false.

THE INTERROGATORIES

98. The following interrogatories dated 18.10.2010, wereapparently served by the respondent on the appellant:H

“INTERROGATORIES ON BEHALF OF COMPLAINANT

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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 Inthe present proceedings?

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

5. What are the educational qualifications of Mr. Sonu BholaAdvocate?

6. Does Mr. Sonu Bhola have licence to practise as anCAdvocate. If yes, please give his Bar Council RegistrationNumber?

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

8. Whether observation made by Mr. Bhola in his investigationreport is only an inference drawn from FIR, MLC or is itbased upon some cogent and reliable evidence? Pleasefurnish details of all those cogent and reliable evidence andshow the same from the record of present proceedings.

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

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

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11. Did Mr. Bhola obtain any medical test report from theDoctor or the Investigating officer during hisInvestigation?

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 Bangiawas taken by the Doctor. If yes, whether the said samplewas sent for chemical analysis to determine consumptionof alcohol?

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

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A15.Have you flied affidavit of the Doctor in these proceedingswho had stated “smell of alcohol” in his report?

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

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

99. The reply given to the interrogatories by the appellant, read asfollows:

“REPLY BY RESPONDENTS TO INTERROGATORIESCFILED 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?DAns. Yes.

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

Ans. Not necessary.E

4. Is M/s Bhola & Associates a Lawyer’s Firm?Ans. Yes.

5. What are the educational qualifications of Mr. Sonu BholaAdvocate?

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Ans. B.Com LLB.

6. Does Mr. Sonu Bhola have licence to practise as anAdvocate. If yes, please give his Bar Council RegistrationNumber?

GAns. It is not relevant with the investigation, hence we did notenquire.

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

Ans. No.H

IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL197BEVERAGES LTD. [K. M. JOSEPH, J.]8.Whether observation made by Mr. Bhola in his investigationAreport is only an inference drawn from FIR, MLC or is itbased upon some cogent and reliable evidence? Pleasefurnish details of all those cogent and reliable evidence andshow the same from the record of present proceedings.Ans. Based on MLC, FIR.B9.Whether M/s Bhola and Associates are qualified toinvestigate such case. If yes, how.Ans. Yes. No specific qualifications are prescribed by law.10.Did Mr. Sonu Bhola meet any doctor or during hisCinvestigation? If yes, please give the time, place and thename of the doctor.Ans. We are not aware of it.

11. Did Mr. Bhola obtain any medical test report from theDoctor or the Investigating officer during hisInvestigation?DAns. No.

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

EF

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

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

Ans. No.

15. Have you flied affidavit of the Doctor in these proceedingswho had stated “smell of alcohol” in his report?

G

Ans. No.

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

Ans. No.

[2021] 14 S.C.R.

A17.Do you know that a criminal case against Mr Aman Bangiais still pending in the court?

Ans. No.”

100. The interrogatories, along with the answers, reveal the following:B

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 theMLC and FIR.

C

d.The appellant is not aware as to whether the Surveyor hadmet any Doctor, during his investigation.

e.The Surveyor has not obtained any medical test report fromthe Doctor or the Investigating Officer, during hisDinvestigation.

f.The appellant pleads ignorance as to whether any urinetest was conducted on the driver to determine theconsumption of the alcohol.

g.The same is the answer also in regard to as to whether anyEblood sample was taken to determine the consumption ofalcohol.

h.The appellant, in its answer, has stated that it has not filedaffidavit of the Doctor, who has stated ‘smell of alcohol’ inhis Report.

F

i.The appellant has also stated that he does not have anyMedical Report to show the level of alcohol in the blood.

101. We would think that it would not be appropriate to conflatethe two situations, viz., the requirement under Section 185 of the MVGAct 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 alcoholconcentration which is 30 mg per 100 ml of blood. This corresponds to0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China,it is 0.02.H

102. As far as establishing the contention by the insurer in a Clauseof the nature, we are dealing with, viz., a case where the insurer allegesthat the driver was driving the vehicle under the insurance of alcohol, itis 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 otherwords, if the BAC level was 0.03 or more. We would think that in a casewhere, there is a blood test of breath test, which indicates that there isno consumption at all, undoubtedly, it would not be open to the insurer toset up the case of exclusion. The decision of this Court in BachubhaiHassanalli Karyani(supra) was rendered under Section 117 of theMotor Vehicles Act, 1939, prior to its substitution in 1977, and what ismore it turned on the evidence also.

103. However, in cases, where there is no scientific material, inthe form of test results available, as in the case before us, it may notdisable the insurer from establishing a case for exclusion. The totality ofthe circumstances obtaining in a case, must be considered. The scope ofthe enquiry, in a case under the Consumer Protection Act, which is asummary proceeding, cannot be lost sight of. A consumer, under theAct, can succeed, only on the basis of proved deficiency of service. Thedeficiency of service would arise only with reference to the terms of thecontract and, no doubt, the law which surrounds it. If the deficiency isnot established, having regard to the explicit terms of the contract, theconsumer must fail.

104. It is, in this regard, we would think that an exclusion of thenature involved in this case, must be viewed. We can safely proceed inthis case, on the basis that the person driving the vehicle had consumedalcohol. We can proceed on the basis that he drove the car after havingconsumed alcohol. It is true that the exact quantity, which he hadconsumed, is not forthcoming. The fact that he smelt of alcohol, isindisputable, having regard to the contents of the FIR and also the MLC.He was accompanied by PW3. PW3 also smelt of alcohol. The incidenttook 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. Thedriver 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 withoutreference to any possibility of the accident happening as a result of anysudden incident happening, as for instance, attempted crossing of a personor an animal, which necessitated the vehicle, being involved in the AB

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Aaccident, in the manner, which is borne out by the FIR. There is simplyno such case for the respondent. It is clear that we can safely proceedon 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 thecase that the driver had not consumed alcohol and that the case, evenBunder Section 279 of the IPC was a false case. Still further, if we examinethe exact nature of the accident, it speaks eloquently for the influence,which the consumption of alcohol had produced on the driver of thevehicle. The car, which is undoubtedly a Porsche, which we presume,has a very powerful engine and capable of achieving enormous speed, isCreported to have gone out of control and hit at a massive force with thefootpath of the road. It overturned. It caught fire. In fact, it is the caseof the respondent that the car was a complete wreck. It was describedas 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 drivenD‘very fast’. A person can be rash and negligent without having beenunder the influence of alcohol. At the same time, being under the influenceof alcohol can also lead to rash and negligent driving. They are notincompatible.

105. This Court would not be remiss, if it takes into account theEimprobability of any traffic worth the name at the time of the accident.While we may be in agreement with the respondent that it would be forthe insurer to make out a case, for pressing the Exclusion Clause, wecannot be oblivious to the fact that there is no material in the pleadingsof the respondent or in the evidence tendered for explaining the accident.FWe can take judicial notice of the fact that the roads in the Capital City,particularly in the area, where the accident occurred, are sufficientlywide and the vehicle dashing against the footpath and turning turtle andcatching fire, by itself, does point to, along with the fact that the alcoholwhich was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, itGis capable of producing.

106. Applying the principles, which have been referred to, to thefacts of the present case, we summarize the following conclusions:

A.Firstly, in the MLC, in regard to the driver, the Report, interHalia, indicates that smell of alcohol (+); B.Pertinently, the very same Report is there in regard to theAco-passenger. Both the driver and the passenger were inthe late twenties;

C.The smell of alcohol has been discerned by a MedicalPractitioner; B

D.Though the case was set up by the respondent that thedriver had not consumed alcohol, the driver, in his evidence(Affidavit evidence), has not even stated that he has notconsumed alcohol, as was the specific case set up in thecomplaint. On the other hand, the alternate case, whichwas set up that he was not under the influence of alcohol,alone was deposed to. This is even though the respondenthad reiterated in the Rejoinder Affidavit that the driver ofthe vehicle had not consumed alcohol or any otherintoxicating drink/drug; C

E.Even the NCDRC has proceeded on the basis that the driverhad consumed some alcohol. Therefore, the conclusion isinevitable that the appellant has established that the driverhad consumed alcohol and was driving the vehicle, whenthe accident took place; D

F.There is no evidence as to the quantity of alcohol consumed.It is also true that there is no evidence other than the smellof alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol; E

G.The requirement under Section 185 of the Motor VehiclesAct is not to be conflated to what constitutes driving underthe influence of alcohol under the policy of insurance in anOwn Damage Claim. Such a claim must be considered onthe basis of the nature of the accident, evidence as todrinking before or during the travel, the impact on the driverand the very case set up by the parties.

F

G

H.The other aspect, which is pressed is, as regards the mannerin which the accident itself occurred. In this regard, it isclear that in any such case, this is an important circumstance,which may establish that the driver was under the influenceof alcohol. Driving, while under the influence of alcohol, isto be understood as driving when, on account of H

Aconsumption of alcohol, either before commencement ofdriving or during the driving and before the accident, whenconsumption of alcohol by the driver would affect(influence) his faculties and his driving skills. We wouldexpatiate and hold that it means that the alcohol consumedearlier was the cause or it contributed to the occurrence ofBthe accident.

A

I.

The respondent has no case that the accident occurred asa result of a sudden event which took place, whichnecessitated the car being driven into the footpath. Forinstance, if there was sudden attempted human or animalcrossing, and the driver to obviate any such accident, maydrive in the manner, which culminated in the accident. Itwould be a case where the driver would still be in controlof his faculties even while having caused the accident.There is material (particularly, in the nature of the SummaryProceedings) under the Consumer Protection Act, in theform of the FIR. The Police Officer, who has lodged theinformation has specifically stated that the car was beingdriven in a very fast manner; C

D

J.

The driver, in his chief examination, has not given anyexplanation, whatsoever, for the happening of the accident.He does not have a case that there was any breakdown inthe car or of the brakes.

E

K.

The driver has pleaded guilty and stands convicted underSection 279 of the IPC, which penalises rash or negligentdriving. A person, who is not under the influence of alcohol,can be rash and negligent. But a person, who is under theinfluence of alcohol, can also be rash and negligent. In otherwords, they are not wholly incompatible. On the other hand,being under the influence of alcohol, aggravates thepossibility of rash and negligent driving as it can be theproximate cause. The car was driven by the driver agedabout 27. Both, he and his companion had, indeed, consumedalcohol. The accident took place when the road would havebeen wholly free from any traffic (There is no casewhatsoever that the accident was caused by another vehiclebeing driven in any manner or any person or animal F

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attempting to cross the road or otherwise deflecting theattention of the driver). The accident has no apparent cause,even according to the respondent and the driver and hiscompanion (PW3), yet we are asked to believe that thedriver was in full control of his senses. If the StateCommission, in the circumstances, believed the version ofthe respondent, in a summary proceeding, we would believethat NCDRC erred in interfering, on the reasoning, whichwe find as erroneous.

107. What is in a summary proceeding noteworthy, is in the settingof the width of the road (a road near India Gate, New Delhi) and thethinnest possible traffic, and without the slightest excuse, hitting at thefootpath with massive force, not being able to maintain control, hittingthe electric pole, the wall of the children park. The impact is so muchthat it led to the overturning of the car and what is more, catching fire ofthe vehicle. This accident is inexplicable, if the driver is to be believed asPW2, when he deposed “I was in my full senses and capable ofexercising full control over the car, at the time of the accident”. It ismore probable that his drink, really led to it. On the facts, the view of theState Commission is a plausible view.

108. The upshot of the discussion is that the impugned Order isliable to be set aside. We order accordingly. The Appeal stands allowed.There will be no order as to costs.

Divya Pandey

Appeal allowed.

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