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

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

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

Evidence Act, 1872 – s.106 – Facts specially within the knowledge of person – Burden of proof – Drunken driving – Car completely damaged in accident –As per the respondent-insured the driver had not consumed any alcohol – In the very next sentence, it was pleaded that assuming that he had consumed alcohol, as he was 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 of intoxicating liquor or drugs at the time of the accident – Car was driven by the driver after having consumed alcohol – In such a case as to what was the nature of the alcohol and what was the quantity of alcohol consumed, and where he had consumed, would certainly be facts within the special knowledge of the person who has consumed the alcohol – Thus, it would be “disproportionately difficult” for the insurer in the facts to prove as to whether the driver has consumed liquor on an empty stomach or he had food and then consumed alcohol or what was the quantity and quality of the drink (alcohol content), circumstances relevant to consider as to whether he drove the vehicle under the influence of alcohol – Even if, the Section as such is not applicable to the Consumer Protection Act, the principle can apply to proceedings under the Consumer Protection Act.

Motor 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 res ipsa loquitur– Held: res ipsa loquitur is used in cases of tort and where the facts without anything more clearly and unerringly point to negligence – Principle of res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under the influence of alcohol – Though the principle as such is inapplicable, the manner in which the accident occurred may along with other circumstances point to the driver being under the influence of alcohol. Motor 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, under the Act, can succeed, only on the basis of proved deficiency of service which would arise only with reference to the terms of the contract and the law which surrounds it – If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.

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

Road Traffic Act, 1988 – ss.3A, 4, 5, 6B – Impairment Test – Discussed – Motor Vehicles Act, 1988 – s.185.

Insurance – Drunken driving –Exclusion Clause –Liability of insurer excluded –Held: It is not necessary for the Insurer to establish that there was acute alcohol intoxication or that the vehicle was driven by a person who was a chronic alcoholic – All that is required is to show that at the time of driving the vehicle, resulting in the accident, the driver was under the influence of alcohol –Scientific aspects about alcohol discussed–Motor Vehicles Act, 1988 – ss. 185, 203, 204. Words & Phrases– “under the influence of alcohol”– Contract of Insurance– Interpretation of– English Courts/Scottish Court 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 recording the exact nature of alcoholic drink which was consumed by the driver and there is also no material as to the quantity consumed by him. There is no evidence, in fact, as to the exact point of time when the alcohol was consumed by the driver. Whereas on the evidence adduced in the case before the Court in the decision referred to, there was evidence as to the time when the alcohol was consumed. Further the driver offered an explanation as to how the accident unfolded when there is none in the case before this Court. As far as the view taken by the President of the Court that the Trial Judge was not entitled to rely upon the fact that the defendant drank a lager upon an empty stomach, this Court is unable to endorse the same. This is for the reason that there is enough material available to show that when one drinks on an empty stomach, there is greater and faster infusion of the alcohol into the system leading to increased Blood Alcohol Concentration (BAC) level. This is for the reason that when liquor is consumed on an empty stomach, the liquor moves on from the stomach unobstructed into the small intestine from where 80% of the absorption of alcohol takes place. Therefore, this does indeed play a role in the Court assessing and finding, that given the other circumstances to support the finding of consumption of alcohol as to whether the alcohol has contributed to the occurrence of the accident. It is also not irrelevant to bear in mind that a person who is alcohol tolerant which means that having become accustomed to consume liquor, the brain in particular is able to hold up to the alcoholic consumption and deal with its effect whereas when a novice or a beginner consumes alcohol, its consequences would be different. [Paras 27, 30][150-D-F; 151-B-E]

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

2. THE POSITION IN THE UNITED STATES OF AMERICA Therefore, an analysis of the principles as laid down both by the English Courts/Scottish Court and decisions from the United States would persuade the Court to hold as follows:

The exclusion from the liability of the Insurer would depend upon the exact terms of the Insurance.The present case does not deal with a third-party claim. Under the aegis of the Motor Vehicles Act, the Court is not oblivious of the provisions of Section 149(2) in the unamended provisions of the Motor Vehicles Act,1988 which are captured in Section 150 of the present avtaar after the amendment as regards the defences available to the Insurer regarding such claims. The Court is dealing with a case of own damage and the clause which extricates the Insurer on the basis of the driver being under the influence of alcohol, inter alia. There are two variants. One of the models is represented by American cases where all that required is that the person has in his body alcohol in any degree. Under the said model, it need not influence his conduct. Under the said model, it is not necessary for the Insurer to show that person concerned was intoxicated or under the influence of intoxicated liquor. The other model which is applicable in the facts of the case, viz., the insurer must show that the person driving the vehicle was under the influence of liquor. The contrast between the models is stark and perceptible. As far as the exclusion of the nature the Court is concerned with, which requires driving of the vehicle by a person under the influence of intoxicating liquor, it would appear to be clear that mere presence of alcohol in any small degree would not be sufficient. This is for the reason that the court cannot re-write the contract and hold that the mere presence of the alcohol, in the slightest degree, is sufficient to exclude the liability of the insurer. It requires something more, namely, that the driver of the vehicle was at the time of the accident acting under the influence of intoxicating liquor. The decisions of the English Courts are closer home and of assistance in the laying down of the law. It must be shown that in the facts and circumstances of each case that the consumption of liquor had, if not caused the accident, which undoubtedly would bring the accident within the mischief of the clause but at least contributed in a perceptible way to the causing of the accident. [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 Vehicles Act 1939. It is important to notice certain provisions of the said Act also. Section 117 can be referred to as the provision corresponding to Section 185 of the present Act with significant differences. This provision came to be substituted by Act 27 of 1977. After its substitution as aforesaid Section 117 the lawgiver ushered in a stricter restriction in regard to drunken driving. In fact, prior to present Section 185 of the Motor Vehicles Act being substituted by Act 54 of 1994, Section 185 was similarly worded as Section 117 of the Motor Vehicles act 1939, as substituted in 1977. It will be noticed immediately that the decision of this Court rendered in Bachubhai Hassanalli Karyani v. State of Maharashtra relied upon by the respondent arose under Section 117 of Motor Vehicles Act, 1939 which required not merely that the person was under the influence of drink but it was to be to such an extent as to render him incapable of exercising proper control over the vehicle. Section 117 after its substitution in 1977, on the other hand, carved out a criminal offence insofar as alcohol is concerned, on the basis that the driver had in his blood, alcohol in any quantity, however small the quantity was. This was similar in fact to the clauses in the contracts of insurance obtaining in the United States. This became associated with the presence of the smallest quantity of alcohol in the blood. As far as Section 185 of the Motor Vehicles Act, 1988 is concerned, the offence is committed if there is a specified amount of alcohol found namely, 30 mg in 100 ml. of blood. In this regard, the law in the United Kingdom corresponding to the Motor Vehicles Act and also an early decision of the Bombay High Court interpreting a statute dealing with the issue may profitably be referred to. [Paras 41-43][159-D-E, G-H; 160-D-H]

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

4.1 To be under the influence of alcohol, must be understood as, a question going to the facts and a matter to be decided with reference to the impact of consumption of alcohol on the particular driver. Yet another example will throw light on a seemingly vexed issue. A person, who drinks on an empty stomach, would necessarily have a faster rate of the alcohol making its presence in the blood, and consequently, in the brain. A person, on the other hand, who has had food along with the alcohol, may manifest the effect of alcohol later. If in a case, without there being any blood test, circumstances, associated with effects of consumption of alcohol, are proved, it may certainly go to show that the person who drove the vehicle, had come under the influence of alcohol. The manner, in which the vehicle was driven, may again, if it unerringly points to the person having been under the influence of alcohol, be reckoned. Evidence, if forthcoming, of an unsteady gait, smell of alcohol, the eyes being congested, apart from, of course, actual consumption of alcohol, either before the commencement of the driving or even during the process of driving, along with the manner in which the accident took place, may point to the driver being under the influence of alcohol. It would be a finding based on the effect of the pleadings and the evidence. [Paras 50, 51][166-C-D; 167-A-C]

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

Modi’s Medical Jurisprudence and Toxicology –

referred to.

4.2 Section 185 of the Motor Vehicles Act creates a criminal offence. The short title of Section 185 undoubtedly proclaims that it purports to deal with driving by a drunken person or by a person under the influence of drugs. The offence as far as driving by a drunken person is concerned, was built around breach of an objective standard, viz., the presence of alcohol in the driver in excess of 30 mg per 100 ml. of blood detected in a test of breath analyser. The Section mandates the proving of the objective criteria of presence of alcohol exceeding 30 mg per 100 ml. of blood in a test by a breath analyser. It is here that Section 203 of the Motor Vehicles Act becomes apposite. It empowers the police officer to require any person driving or attempting to drive motor vehicle in a public place to provide one or more specimen of breath for breath test, if Police Officer or Officer of Motor Vehicle Department has reasonable cause to suspect the driver has committed an offence u/s 185. Section 203(2) deals with the situation where the vehicle is involved in an accident in a public place. In such circumstances, on a Police Officer in uniform entertaining any reasonable cause to suspect that the person driving the vehicle, at the time of the accident, had alcohol in his blood, inter alia, he may require the person to provide specimen of his breath in the breath test in the manner provided. Section 203(6) declares that the result of the breath test made under Section 203 shall be admissible in evidence. Section 203 contemplates arrest without warrant being effected, if the test indicated the presence of alcohol in the breath test. Section 204 follows up on a person who is arrested under Section 203. It, inter alia, provides that a person who has been arrested under Section 203 is to provide to such medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test, if either it appears to the police officer that the breath test reveals the presence of alcohol in the blood of such person or such person when given the opportunity to submit to a breath test, has refused, omitted or failed to do so. The result of the laboratory test is also made admissible. Section 185 deals with driving or attempting driving of a motor vehicle a person with alcohol in excess of 30 mg per 100 ml in blood which is detected in a test of breath analyser. Being a criminal offence, it is indisputable that the ingredients of the offence must be established as contemplated by law which means that the case must be proved beyond reasonable doubt and evidence must clearly indicate the level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by a test by a breath analyser. With effect from 01.09.2019, the following words have been added to Section 185, that is “or in any other test including laboratory test”. [Paras 52, 53] [167-C-H; 168-A-E]

4.3 The Contract of Insurance, in the present case, is a comprehensive Contract of Insurance dealing with own damage and, no doubt, also third party. What is, however, involved in this case, is the liability alleged with the Insurer under Clause (A), which deals with ‘own damage’. In regard to a claim involved in this case, there is nothing in law which would otherwise disentitle the appellant from setting up the case that the exclusion clause would disentitle the respondent from succeeding. As to whether it is a case of driving of the vehicle under the influence of the alcohol is different matter, altogether. The requirement of Section

185 is in the context of a criminal offence. While it may be true that if there is a conviction under Section 185, it would, undoubtedly, fortify the Insurer in successfully invoking Exclusion Clause 2(c), is the reverse also true? If prosecution has not filed a case under Section 185, that would not mean that a competent Forum in an action alleging deficiency of service, under the Consumer Protection Act, is disabled from finding that the vehicle was being driven by the person under the influence of the alcohol. The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of the alcohol. Drunken driving, a criminal offence, under Section 185 along with its objective criteria of the alcohol-blood level, is not the only way to prove that the person was under the influence of alcohol. If the Breath Analyser or any other test is not performed for any reason, the Insurer cannot be barred from proving his case otherwise. What the Court is dealing in this case is, construction of words in a contract between the parties. There is no case for the respondent that the terms of the contract to exclude the liability of the appellant, are in any way illegal. Without difficulty a circumstancecan be imagined in which the proposition that should the Insurer fail to establish a case in terms of Section 185 BAL (Blood Analyser Test), it would fail, may not be the proper approach to the issue. It is not difficult to contemplate that the accident may take place with the driver being under the influence of alcohol and neither the Breath Test nor the laboratory test is done. A driver after the accident, may run away. A test may never be performed. However, there may be evidence available which may indicate that the vehicle in question was being driven at the time of the accident by a person under the influence of alcohol. It cannot then be said that merely because there is no test performed, the Insurer would be deprived of its right to establish a case which is well within its rights under the contract. [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 there was acute alcohol intoxication and equally, it need not be shown that the vehicle was driven by a person who was a chronic alcoholic. All that is required is to show that at the time of driving the vehicle, resulting in the accident, the driver was under the influence of alcohol.Blood Alcohol Concentration or BAC is, thus, the concentration of alcohol in a person’s blood. In India, the permissible BAC level is pegged at 30 mg of alcohol in 100 ml. of blood in Section 185 of the MV Act, 1988.This corresponds to

0.03 percentage of alcohol in the blood, beyond which, it is an offence under Section 185 to drive or attempt to drive as declared.BAC is correlated to a number of variables. It is affected by gender and body weight. The male has more water content than a female. On same quantity drunk, the latter builds up greater BAC than the former. BAC is also affected clearly on whether the person drank on an empty stomach or not. The liver metabolises ordinarily a standard drink at the rate of a drink in an hour. The frequency, at which the drinks are taken, impacts the BAC level. Even the genes play their part. [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 QUESTION

RELATING TO BURDEN OF PROOF

The Report indicates that the Investigator was deputed by the appellant. It also suggests that he went to the accident spot on 22.12.2007. The reference to the time being 5.05 A.M. relied upon by the learned Counsel for the respondent as the time at which the Investigator, inter alia, is alleged to have reached the spot, is actually part of the information which the Investigator received from the Sub-Inspector. The Sub- Inspector has informed the Investigator that he received information at 5.05 am and, thereafter, he, along with a Constable, had reached the spot and that he saw the car, which was burning. The only part which makes up the Report, as such, of the Investigator, is his observations. Thus, the Investigator’s Report does not appear to suggest that the Investigator had been to the accident site at 05.00 A.M. in the morning and, therefore, had the opportunity to interact with the driver of the vehicle or ensure that the test was conducted to show that the driver was driving under the influence of alcohol. Thus, the contentions of the respondentis repelled. The contract provides that the notice shall be given in writing to the insurer immediately after the occurrence of any accidental loss or damage in the event of any claim. The insured has to give all information and assistance as required by the company. It is obviously true that the appellant was intimated on 22.12.2007 which is evident from the fact that investigator did go to the accident spot on 22.12.2007 and inspected the car. The exact time given is however not mentioned in the report. The time at which he went was also not got articulated through the interrogatory issued by the respondent. It would appear to be a case where the driver of the car not having suffered any fresh injury would not have been available in the hospital. The police authorities obviously did not carry out the blood test or the breath test. As to what transpired in this regard the matter remains a mystery. From the F.I.R. it appears that the informant officer’s priority was to take the men out and to take them to the hospital. However, the Court cannot resist recording disquiet at the conduct of the police officer in not pursuing the matter in the form of conducting a breath test or other tests and pursuing the matter under Section 185 of the Motor Vehicles Act or by filing of final report. Coming to the question again on burden of proof, insofar as the appellant– insured seeks to establish exclusion of liability is concerned, the burden of proof is upon it, subject to what this Court holds. [Paras 74-76][184-A-D, E-H; 185-A-C]

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

Shambu Nath Mehra v. State of Ajmer AIR 1956 SC

404 : [1956] SCR 199 – relied on.

6.3 The respondent set up the case that the driver had not consumed any alcohol. In the very next sentence, it is pleaded that further assuming that he had consumed alcohol, as he was not intoxicated the exclusion clause is not attracted. When it came to affidavit evidence, however, the driver has not deposed that he had not consumed intoxicating liquor. He has only stated that he was neither under the influence of intoxicating liquor or drugs at the time of the accident. In view of the evidence that pointed to the driver smelling of alcohol and the absence of any evidence by even the driver that he has not consumed alcohol and as even found by the National Commission, it would appear to be clear that the car was driven by the driver after having consumed alcohol. In such a case as to what was the nature of the alcohol and what was the quantity of alcohol consumed, and where he had consumed, it would certainly be facts within the special knowledge of the person who has consumed the alcohol. The driver has not, for instance also, once this Court proceeds on the basis that he has consumed alcohol, indicated when he has consumed the alcohol. It would be “disproportionately difficult” as laid down by this Court for the insurer in the facts to have been proved as to whether the driver has consumed liquor on an empty stomach or he had food and then consumed alcohol or what was the quantity and quality of the drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove the vehicle under the influence of alcohol. The driver has merely stated that he was not under the influence of intoxicating liquor and he was in his full senses. It is true, no doubt, there are no interrogatories served on the driver by the appellant. This Court has laid down that having regard to the nature of the proceeding under the Consumer Protection Act, the proceeding being summary, cross examination be conducted ordinarily through the modality of interrogatories. Thus, unlike in proceeding in a court, ordinarily the insurers may not be in a position to cross examine. Since the principle of Section 106 of the Evidence Act only cast the burden on the person who has special knowledge of the facts, apart from the facts, referred to, viz., where it was consumed, the quality and quantity of alcohol consumed, the time at which it was consumed, whether it was accompanied by food which can clearly be said to be within the knowledge of the person who drove the vehicle, the effects of the drinking by way of signs discernible, after the accident took place, in the facts, cannot be said to be within the knowledge of the driver only. This is for the reason that according to FIR, the police constable on patrol has purported to describe the happening of the accident and was present at that time. According to his version, he has with the aid of his companion officer helped the driver and the co-passenger out of the vehicle and they were taken to the hospital. At the hospital, in the medical legal report, there is reference to breath of alcohol(+). It is, however, true that the insurer or his agent may not have been given notice at that stage. It would not be proper or legal to hold that in such circumstances, the insurer would still be in a position to prove through a breath test or blood test that the driver was under the influence of alcohol. If the driver having regard to the fact did not suffer any fresh injury is discharged from the hospital and goes away, it is inconceivable as to how the insurer could be at fault for not having a breath or blood test conducted. It may be true that the insurer could have obtained material in the form of affidavit evidence from the police officer or the medical practitioner concerned regarding any other facts regarding consumption of alcohol 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 and another (2010) 5 SCC 513 : [2010] 5 SCR 1; Murlidhar and others v. State of Rajasthan AIR 2005 SC 2345 : [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 ipsa loquitur. The question to be answered is not whether the driver of the vehicle was negligent. Thus, it is used in cases of tort and where the facts without anything more clearly and unerringly points to negligence. The principle of res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under the influence of alcohol. It may be another matter that though the principle as such is inapplicable, the manner in which the accident occurred may along with other circumstances point to the driver being under the influence of alcohol. [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 relied upon, the Commission has referred to Modi’s Medical Jurisprudence and Toxicology, 24th edition. The Commission finds that in the opinion of the author, the percentage of alcohol in the blood would be 0.2% in case the quantity of alcohol per

100 ml of blood is 200 mg. The finding that a person can be said to be moderately intoxicated if he has 200 mg per 100 ml is an incorrect inference. The person who has such a level of alcohol would have 0.2% of alcohol. Such a person would clearly be heavily intoxicated. This is clear from a perusal of the table showing the effects in the Manual for Physicians referred to in paragraph 7 of the relied upon order. The further finding that a person with a concentration of 0.15% of alcohol in the blood is regarded as fit to drive a motor vehicle and such percentage happens when he has 150 mg of alcohol per 100ml blood is an observation made based on Modi’s Medical Jurisprudence and Toxicology. Modi in his work has in this regard drawn upon the presumptive limit which prevailed in the United States. In the United States, at one point of time, 0.15% of alcohol concentration was the maximum presumptive limit. If the alcohol concentration was found to be in excess of 0.15% unless rebutted by the accused, it was presumed that the driver was under the influence of alcohol. In fact, there was a lower presumptive limit of 0.05% and if the concentration was below this limit it was presumed that the driver was not in the wrong. What is relevant is that following various studies the presumptive limit on the one hand stood lowered in all the states and the maximum presumptive limit was initially reduced to 0.10% and thereafter it was reduced to 0.08%. In India the percentage is 0.03 which is the same as 30 mg in 100 ml of blood. In China and in Sweden, the percentage is still lower. It is 0.02%. In paragraph 6 of the relied upon order reference is made to Lyon’s Medical Jurisprudence and Toxicology. Reference is made therein to the policy statement of the American Medical Association and National Safety Council of the USA that 0.10% can be taken as prima facie evidence of alcoholic intoxication and recognising that many individuals are under the influence of 0.05% to 0.10% range. This is at loggerheads with the earlier reference to 0.15% alcohol not rendering a person unfit to drive the motor vehicle unless it is understood as the law at an earlier point of time. The further reference to 0.05% blood alcohol level raising a presumption that a subject was not under the influence of alcoholic beverage is again based on the set of laws in the United States which provided for such a presumption. The National Commission has not considered the fact that along with such presumptive limit, the laws in the United States also further provide that irrespective of the alcohol percentage or BAC level, if the vehicle is not driven safely and a person has consumed alcohol, he is liable to be booked under another set of laws. The observation made in Lyon’s Medical Jurisprudence that blood alcohol level of less than 0.10% does not raise a presumption of intoxication is also contrary to the developments under which even the presumptive limit has been reduced to 0.08%. In fact, there is a zero-percentage alcohol level or 0.02% alcohol in most states for the underaged drivers in the United States. Coming to paragraph 7 of the relied upon order, the Commission has referred to the Manual for Physicians in National Drug Dependence Treatment Centre, All India Institute of Medical Sciences, New Delhi. There is in the first-place error in the second classification. Actually, it is intended for a BAC level of ‘above 80’. Even in the said classification the actual effects of alcohol consumption are shown as follows – “Noisy, moody, impaired judgement, impaired driving ability” as against the third classification 100 to 200 BAC, the effects of which are – “Electroencephalographic changes begin to appear, Blurred vision, unsteady gait, gross motor in-coordination, slurred speech, aggressive, quarrelsome, talking loudly.” The Commission has not referred to the effects of BAC below 80 brought out in the Manual. In the same, the effects are shown as – “euphoria, feeling of relaxation and talking freely, clumsy movement of hands and legs, reduced alertness but believes himself to be alert.”The relied upon order also shows disinclination to accept views expressed in Modi’s Medical Jurisprudence and Toxicology on the basis of the opinion of All India Institute of Medical Sciences which is allegedly collaborated by the opinion expressed in Lyon’s Medical Jurisprudence and Toxicology. The Commission in the said case, which did not deal with a case of driving after consuming liquor, found the limits relevant as fixed in various countries. The quantity of alcohol allowed in the USA is stated to be not above 100 mg in 100 ml of blood. In fact, in the USA where it also used to be 100mg in 100 ml, it has now further been reduced to 0.08% corresponding to 80 mg in 100 ml. The NCDRC was in error in conflating the requirement under Section 185 of the Motor Vehicles Act, with that under the exclusion clause in the contract of 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 the Medico Legal Case (MLC). The FIR has been prepared on the basis of the Report of the Police Officer. The use of the FIR in criminal case is to be distinguished from its employment in a consumer case. This is so, in particular, when the FIR is relied upon by the complainant himself. Though in the complaint, it was contended that the Police had lodged the FIR under Section 185 of the Motor Vehicles Act besides Section 279/427 of IPC but no charge-sheet had been filed till the date of the complaint, meaning thereby that the Police, after investigating the case, could not find any evidence to prosecute the driver for any of the offences, it must be noticed that the complaint is of the year 2009 and it seen dated 04.03.2009, the case of the respondent that there was no evidence to prosecute the driver for any of the offences, is falsified by the driver pleading guilty in regard to at least one of the offences, viz., the offence under Section 279 of IPC, which took place, apparently, during the pendency of the complaint before the State Commission and the State Commission has taken notice of this development. As far as MLC is concerned, in the complaint filed by the respondent, there is no dispute that the MLC contained reference to the driver and the co-passenger smelling of alcohol. [Paras 92,93][193-D-H]

9.2 The respondentexpressly sets up the case that the person driving the vehicle had not consumed any alcohol. The very next sentence, sets up the alternate case, which is that further assuming that he had consumed alcohol, the case would not fall under the Exclusion Clause, as he was, in any case, not intoxicated. PW1, the Company Secretary of the respondent, has, in his Affidavit evidence, stated that under Section 185 of the MV Act, a certain percentage of alcohol is to be found before a person is to be prosecuted for the offence of drunken driving. The law does not prohibit driving after consuming liquor and all that is prohibited is, that the percentage of liquor should not exceed 30 mg. per 100 ml. of blood. Therefore, the understanding appears to be that only in circumstances, where the act of driving, having consumed liquor, attracts the wrath of Section 185 and an offence is committed thereunder, that the opprobrium of the Exclusion Clause in the Contract of Insurance, for own damage, is attracted. The Affidavit of PW2, the driver himself, would show that he does not depose that he had not consumed liquor as was the case in the complaint. Instead, he deposes only that he was neither under the influence of intoxicating liquor or drugs at the time of the accident. He further deposed that he was in his full senses and capable of exercising proper control over the said vehicle. Even, at the stage of the deposition through affidavit, which appears to have been filed in 2010, he reiterates that the case in FIR No. 453 of 2007, was falsely registered. The case pending against him in the Court of the Metropolitan Magistrate, New Delhi, is stated to be malafide and he is sure to be acquitted in the said case. Nearly, within a year, however, the allegedly false case is accepted by the driver as true. The Affidavit of PW2, would not show that the driver had not consumed liquor, which case is set up. On the contrary, driver having drunk, is fortified by the MLC, which clearly indicates that the driver was smelling of alcohol. Therefore, the case set up of the respondent that the person 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 the following: a. The Surveyor of the appellant is a Lawyers Firm.b. The Surveyor has not personally met the driver of the car. c. The observations made by the Surveyor is based on the MLC and FIR. d. The appellant is not aware as to whether the Surveyor had met any Doctor, during his investigation. e. The Surveyor has not obtained any medical test report from the Doctor or the Investigating Officer, during his investigation. f. The appellant pleads ignorance as to whether any urine test was conducted on the driver to determine the consumption of the alcohol. g. The same is the answer also in regard to as to whether any blood sample was taken to determine the consumption of alcohol. h. The appellant, in its answer, has stated that it has not filed affidavit of the Doctor, who has stated ‘smell of alcohol’ in his Report. i. The appellant has also stated that he does not have any Medical Report to show the level of alcohol in the blood. [Para 100] [198-B-F]

10.2 It would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section

185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, in Sweden and in China, it is 0.02. As far as establishing the contention by the insurer in a Clause of the nature, this Court is dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. In a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also. However, in cases, where there is no scientific material, in the form of test results available, as in the case before this Court, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and the law which surrounds it. If the deficiency is not established, 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 involved in this case, must be viewed. The person driving the vehicle had consumed alcohol. He drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi, in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, which necessitated the vehicle, being involved in the accident, in the manner, which is borne out by the FIR. There is simply no such case for the respondent. The vehicle was driven in a rash and negligent manner, having regard to the conviction entered under Section 279 of the IPC. This is also to be viewed in the context of the respondent putting up the case that the driver had not consumed alcohol and that the case, even under Section 279 of the IPC was a false case. Still further, the examination of the exact nature of the accident, speaks eloquently for the influence, which the consumption of alcohol had produced on the driver of the vehicle. The car, which is undoubtedly a Porsche, which presumably, has a very powerful engine and capable of achieving enormous speed, is reported to have gone out of control and hit at a massive force with the footpath of the road. It overturned. It caught fire. In fact, it is the case of the respondent that the car was a complete wreck. It was described as a total loss. The vehicles of the fire brigade came to douse the fire. Speed and its impact can be relative to the road, the traffic and the speed limits. The FIR refers to the car being driven ‘very fast’. A person can be rash and negligent without having been under the influence of alcohol. At the same time, being under the influence of alcohol can also lead to rash and negligent driving. They are not incompatible. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While it would be for the insurer to make out a case, for pressing the Exclusion Clause, there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. Judicial notice is taken of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing. Applying the principles, which have been referred to, to the facts of the present case, the following conclusions are summarized:

A. Firstly, in the MLC, in regard to the driver, the Report, inter alia, indicates that smell of alcohol;

B. Pertinently, the very same Report is there in regard to the co-passenger. Both the driver and the passenger were in the late twenties;

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

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

E. Even the NCDRC has proceeded on the basis that the driver had consumed some alcohol. The appellant has established that the driver had consumed alcohol and was driving the vehicle, when the accident took place;

F. There is no evidence as to the quantity of alcohol consumed. It is also true that there is no evidence other than the smell of alcohol being detected on both the driver and the copassenger, of any other effects of consumption of alcohol; G. The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage Claim. Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties;

H. The other aspect, which is pressed is, as regards the manner in which the accident itself occurred. In this regard, it is clear that in any such case, this is an important circumstance, which may establish that the driver was under the influence of alcohol. Driving, whileunder the influence of alcohol, is to be understood as driving when, on account of consumption of alcohol, either before commencement of driving or during the driving and before the accident, when consumption of alcohol by the driver would affect (influence) his faculties and his driving skills. It means that the alcohol consumed earlier was the cause or it contributed to the occurrence of the accident;

I. The respondent has no case that the accident occurred as a result of a sudden event which took place, which necessitated the car being driven into the footpath. For instance, if there was sudden attempted human or animal crossing, and the driver to obviate any such accident, may drive in the manner, which culminated in the accident. It would be a case where the driver would still be in control of his faculties even while having caused the accident. There is material (particularly, in the nature of the Summary Proceedings) under the Consumer Protection Act, in the form of the FIR. The Police Officer, who has lodged the information has specifically stated that the car was being driven in a very fast manner;

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

K. The driver has pleaded guilty and stands convicted under Section 279 of the IPC, which penalises rash or negligent driving.A person, who is not under the influence of alcohol, can be rash and negligent. But a person, who is under the influence of alcohol, can also be rash and negligent. In other words, they are not wholly incompatible. On the other hand, being under the influence of alcohol, aggravates the possibility of rash and negligent driving as it can be the proximate cause. The car was driven by the driver aged about 27. Both, he and his companion had, indeed, consumed alcohol. The accident took place when the road would have been wholly free from any traffic (There is no case whatsoever that the accident was caused by another vehicle being driven in any manner or any person or animal attempting to cross the road or otherwise deflecting the attention of the driver). The accident has no apparent cause, even according to the respondent and the driver and his companion (PW3), yet the Court is asked to believe that the driver was in full control of his senses. If the State Commission, in the circumstances, believed the version of the respondent, in a summary proceeding, NCDRC erred in interfering, on the reasoning, which are found as erroneous. [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 the setting of the width of the road (a road near India Gate, New Delhi) and the thinnest possible traffic, and without the slightest excuse, hitting at the footpath with massive force, not being able to maintain control, hitting the electric pole, the wall of the children park. The impact is so much that it led to the overturning of the car and what is more, catching fire of the vehicle. This accident is inexplicable, if the driver is to be believed as PW2, when he deposed “I was in my full senses and capable of exercising full control over the car, at the time of the accident”. It is more probable that his drink, really led to it. On the facts, the view of the State Commission is a plausible view. The impugned 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 Sundaram General Insurance Company Limited v. Davubhai

Babubhai Ravalia Order of NCDRC dated 04.09.2018 in Revision Petition No. 1296 of 2018; Emperor vs. Rama Deoji AIR 1928 BOM 231– referred to.

Louden v. British Merchants Insurance Company

Limited [1961] WLR 798 QB – referred to.