LAW FOR ALL : “(2)The Company shall not be liable to make any payment in respect of: (a) xxx xxx xxx (b) xxx xxx xxx (c) any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

Tuesday, April 20, 2021

“(2)The Company shall not be liable to make any payment in respect of: (a) xxx xxx xxx (b) xxx xxx xxx (c) any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2021

[ARISING OUT OF SLP (CIVIL) NO. 12489/2020]

IFFCO TOKIO GENERAL INSURANCE

COMPANY LTD. … APPELLANT(S)

VERSUS

PEARL BEVERAGES LTD. … RESPONDENT (S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. An accident, which took place on 22.11.2007

involving a car (a Porsche) belonging to the

respondent-Company, which was insured with the

appellant, has resulted in this appeal against

the Order by the National Consumer Disputes

Redressal Commission (‘NCDRC’ for short). The

car was completely damaged. The appellant

repudiated the claim by the respondent. The

question which arises in this Appeal is, whether

the NCDRC is correct in holding that the

appellant is not entitled to invoke the shield

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

under which, it was not liable, if the person

driving the vehicle, was under the influence of

intoxicating liquor, or drugs. The State

Commission rejected the complaint of the

respondent finding that there was evidence to

show that the person who drove the vehicle, had

consumed liquor and was under the influence of

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

other hand, found that there was no material to

establish that the driver of the vehicle was

under the influence of intoxicating liquor

within the meaning of the Exclusion Clause, as

aforesaid.

3. The Clause in controversy reads as follows:

“(2)The Company shall not be

liable to make any payment in respect

of:

(a) xxx xxx xxx

(b) xxx xxx xxx

suffered whilst the insured or any

person driving the vehicle with

the knowledge and consent of the

insured is under the influence of

intoxicating liquor or drugs.”

4. The vehicle was driven by one Shri Aman

Bangia. Following the accident, a First

Information Report came to be lodged. The

accident took place in the early morning at about

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

FIR, inter alia, read as follows:

“Statement of Ct. Anand Kumar

No.1226/ND, P.S. Tilak, New Delhi,

stated that I am posted at Police

Station Tilak Marg as constable and

today on 21/22.12.07 I and

constable Brijesh No.1163/DHG, Duty

M/Cy. DL-1SN-8288, P.S. Tilak Marg

were on patrolling. At about 2.25 when

I, on my above M/cy., was reached near

C-Hexagan Dr. Zakir Hussain Marg while

patrolling, then I see that the driver

of Car No.DL-1CJ-3577 came from

Nizamuddin side towards Zakir Hussain

Marg, India Gate in a very rash,

negligent and at a very high speed and

due to very high speed, his car was

got out of control and hit at a

massive force with the footpath of CHexagan Dr. Zakir Hussain Marg

Children park India Gate, Electric

Pole and wall of children Park and got

overturned and the car was get fired.

I alongwith my associate Home Guard

brought the driver whose name and

address Aman Bangia S/o Sh. S.K. Bangia

R/o 42-A, Pkt. C Siddarth Extn. New

Delhi-14 and his associates Richi Ram

Jaipuria S/o Sh. C.K. Jaipuria R/o

H.No.08, Prithvi Raj Road, Delhi out

of the said car after great efforts

and reported about the incident to

Wireless Opp. D-56 of Police Station

through wireless. After that the

vehicles of Fire Brigade, PCR Van and

Add/SHO van you were came on the spot.

The accident has been occurred due to

rash and negligent driving by the

driver for which the government

property has been damaged. Legal

action be taken against the driver.

You have recorded my statement on the

spot, read over and heard which is

true and correct. Sd/- English Anand

Kumar Const. No.1226/ND Dt. 22/12.07

Attested SI Kukhitar Singh P.S. Tilak

Mark, New Delhi Dt. 22.12.07. Sir

Duty Officer Police Station Tilak

Marg, New Delhi it is submitted that I

SI af te r rec ei pt of DD N o. 36 A

alongwith Ct. Vinod No.2098/ND reached

at the place of accident i.e. CHexagan Dr. Zakir Hussain Marg where

the Car No.DL-1CJ-3577 was got burnt.

Where the Add./SHO and vehicles of

Fire Brigade were also present for

controlling the fire. Then we came to

know that the PCR Van has taken away

the accused at RML Hospital. I SI and

Ct. Vinod Kumar No.2093/ ND left the

spot and departed for the Hospital to

know the facts, where I received MLC

NO.62213/07 of Ruchi Ram Jai Puria S/o

C.K. Jai Puria R/o H.N0.08, Prithvi

Rai Road, Delhi age 27½ yrs. upon which

the doctors have reported/opined "no

evidence of any fresh injury for

medical examination and smell of

Breath Alcohal (+)"and MLC No.62214/07

of Aman Bangia S/o Sh. S.K. Bangia R/o

42-A, Pkt.-C Siddarth Extn., New Delhi14 age 27 years. upon which the

doctors have reported/

mentioned/opined "no evidence of any

fresh injury for medical examination

and smell of Breath Alcohal (+). I SI

reached at the spot of accident where

Ct. Anand Parkash No.1226/ND, P.S.

Tilak Mark, New Delhi had come and got

recorded his statement and from the

MLC and place of occurrence a case U/s

279/427 of IPC and U/s 185 of M.V. Act

have been committed to be found,

therefore the Tehrir has been handed

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

The number of case would be informed

after registering the case.”

[page 39 to 42 of paper book]

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

IPC, it culminated in an Order dated 27.8.2011

passed on plea bargaining by the driver of the

car and it reads as follows:

“Accused Aman Bangia with counsel

Sh. Rahul Arora.

Heard on the point of notice.

Record Perused. A prima facie case

U/sec 279 IPC is disclosed against the

accused. So accordingly notice for the

offence U/sec. 279 IPC is separately

framed against the accused to which

accused has voluntary pleaded guilty,

but he still insists to plead guilty.

Since the accused has voluntarily

pleaded guilty, so he is convicted for

the offence U/sec. 279 IPC.

Heard on the point of sentence. The

accused prayed for taking lenient view

by pleading that this is his first

offence. He has undertaken to drive

cautiously in future. So, in view of

the facts and circumstances of the

case, the accused is sentenced to pay

fine of Rs.1,000/- in default of S.I.

of 10 days. Fine deposited vide

receipt No. 866834. File be consigned

to Record Room.”

6. The respondent after exchange of notices,

filed the complaint under Section 17 of the

Consumer Protection Act, 1986 in 2009.

Affidavit evidence of the Company Secretary of

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

and the person who travelled with the driver in

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

22.12.2007, which was under Section 279/427 of

the IPC and Section 185 of the Motor Vehicles

Act, 1988, the medico-legal case sheet of

Dr. Ram Manohar Lohia Hospital, were among the

documents produced by the respondent. The Order,

which we have referred to under Section 279 of

the IPC, was also later produced. The

appellant’s Vice President gave affidavit

evidence. The Investigator also gave his

affidavit evidence affirming his reports.

PLEADINGS

7. In the complaint filed under Section 17 of

the Consumer Protection Act, 1986, we may notice

the allegations, which are relevant:

The Exclusion Clause is not applicable

as the person driving the vehicle had not

consumed any alcohol. Further assuming that

he had consumed alcohol, the case would not

fall under the Exclusion Clause as he was,

in any case, not intoxicated. Although the

Police had lodged FIR under Section 185 of

the MV Act besides Sections 279/427 of the

IPC, no charge-sheet has been filed against

the driver till date, meaning thereby, that

the Police after investigating the case,

could not find any evidence to prosecute the

driver for any of the offences. It is the

further case of the respondent, inter alia,

that the respondent had informed the

appellant that the MLC only says ‘smell of

alcohol’ and this does not imply or mean that

the driver was under the influence of

intoxicating liquor. It is also pleaded that

in the Legal Notice, it was specifically

noted that the driver had not consumed

liquor. Section 185 of the MV Act was invoked

to plead that unless a certain percentage of

alcohol is found a person cannot be

prosecuted for the offence of drunken

driving. The law does not prohibit driving

after consuming liquor. No test was

performed in regard to the person driving to

establish that he was under the influence of

drugs or intoxicating liquor, as provided

under Section 185 of the MV Act or the

Exclusion Clause.

It is also pleaded that Intoxication

means ‘elate or excite to the degree of

frenzy’ which means in simple meaning that

the person has no control over his senses.

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

contended, inter alia, as follows. There is

official record of the person driving having

been found to have consumed alcohol and driving

the vehicle in that condition. The respondent

got the matter investigated through experienced

Investigators and they have collected relevant

information and records with their finding that

the driver was under the influence of alcohol.

The seriousness of the accident itself showed

that the driver was reckless in driving due to

the consumption of the alcohol.

9. Respondent filed a Rejoinder Affidavit

reiterating the allegations in the complaint.

THE EVIDENCE

10. In the Affidavit of Evidence given by the

Company Secretary (PW1,) on behalf of the

respondent, the case set up about the law not

prohibiting driving after consuming liquor and

that what is prohibited is that the percentage

of liquor should not exceed 30 mg per 100 ml of

blood, is reiterated. The driver of the vehicle

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

neither under the influence of intoxicating

liquor or drugs at the time of the accident.

That he was in his full senses and capable of

exercising full control over the car, at the

time of the accident. His co-passenger was also

not under such influence. No test was performed.

He has further deposed that the FIR 453 of 2007

against him under Section 185 of the MV Act and

Sections 279/427 of the IPC was falsely

registered. The case was still pending. He was

certain to be acquitted in the said case. The

Affidavit Evidence of the co-passenger (PW3) is

to the effect that he was not under the influence

of intoxicating liquor or drugs. He has also

supported PW2 that PW2 was able to exercise

proper control over the vehicle and he was not

under the influence of liquor or drugs at the

time of the accident. The Police Officer and

Hospital Doctor did not find them under the

influence of intoxicating liquor and no test was

performed. Apart from the appellant’s Vice

President, the Investigator of the appellant

gave affidavit evidence when he vouchsafed for

the correctness of his reports.

THE ORDER OF THE STATE COMMISSION

11. The State Commission finds, inter alia, as

follows:

The date and time of the occurrence was

22.12.2007 at 02.25 A.M.. The official

record of the driver goes to show that he

was driving the vehicle after consuming

alcohol. Whether he was completely or

partially under the influence of alcohol was

a different matter. There is not a slightest

doubt that the driver drove the vehicle after

consuming alcohol. The manner and intensity

with which the accident had occurred and its

overall impact goes to prove the said facts.

[The finding is to be appreciated in the

light of the statements in the FIR about the

car being driven rashly and negligently and

at a very high speed. It collided with an

electric pole and the wall of the Children

Park as a result of which the car turned

upside down/overturned and also caught

fire.] Adverting to the Judgment of this

Court in Bachubhai Hassanalli Karyani v.

State of Maharashtra1, it was found as

follows:

The degree of proof required in a

criminal case is much higher than the

evidence required in civil proceedings,

which are decided on the principle of

Preponderance of the Evidence. The driver

has confessed to his guilt under Section 279.

The result of the other two offences

(Sections 427 of the IPC and 185 of the MV

Act was not made available). The State

Commission also found it fit to apply the

principle of res ipsa loquitur, having

regard to the circumstances surrounding the

accident. The proceedings under the Consumer

Protection Act, being summary in nature, the

Commission was not required to go into the

technicalities of Criminal or Civil

1 (1971) 3 SCC 930

Jurisprudence. The impact of the accident

was such that the vehicle turned upside down

and caught fire. The vehicle of the Fire

Brigade had to be pressed into service. The

vehicle turned into a total wreck. The State

Commission also found that there appeared to

be a breach of Condition 4 of the Policy of

Insurance (“The insured shall take all

reasonable steps, to safeguard the loss of

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

the accident, the vehicle was being driven

rashly and negligently and the driver had

consumed liquor, which by itself was in

violation of the Policy conditions.

THE IMPUGNED ORDER OF THE NCDRC

12. The NCDRC, finds as follows:

“4. The only question which arises

for consideration in this case is as

to whether the driver of the vehicle

was under influence of intoxicating

liquor or drugs at the time the vehicle

met with an accident and got

extensively damaged. Though it has

come on record that the driver of the

vehicle had taken some liquor before

he drove the vehicle, the said record

being available in the form

of statement of a policeman who stated

that the smell of the liquor was coming

from the mouth of the driver, there is

absolutely no evidence to prove the

quantity of liquor which he had

consumed before driving the vehicle.

Admittedly, no medical examination of

the driver was got conducted in order

to ascertain the quantity of the

alcohol in his blood at the time the

vehicle met with an accident. In terms

of Section 185 of the Motor Vehicles

Act, a person is liable to punishment

if he is found while driving, alcohol

exceeding 30 mg per hundred ml of blood

and the level of alcohol is required

to be verified by way of test done by

use of a breath synthesiser.

Admittedly, no such test was conducted

and, therefore, no evidence was

available before the State

Commission or even to the insurer to

prove that the driver had alcohol

exceeding 30 mg per hundred ml of the

blood, at the time the vehicle met with

an accident. Therefore, the insurer

has failed to prove that the insured

had committed a breach of the terms of

the policy, the driver being under

influence of liquor.”

13. Thereafter, it referred to its Order in Royal

Sundaram General Insurance Company Limited v.

Davubhai Babubhai Ravalia in Revision Petition

No. 1296 of 2018 dated 04.09.2018, which reads

as follows:

“6. The next question which

arises for consideration is as to

whether on account of the above

referred quantity of alcohol having

found in the blood of the driver, he

can be said to be under influence of

intoxicating liquor or not. This

issue came up for consideration of

this Commission in Lakshmi Rohit Ahuja

Vs. SBI Life Insurance Co. Ltd., RP

No.3249 of 2015, decided on 28.04.2016

and the following view was taken:

6. As per the FIR, the vehicle

was being driven by the deceased

at the time it met with an

accident. As per the chemical

analysis report in respect of the

viscera of the stomach and

intestine of the deceased, there

was 120 ml of Ethyl alcohol per 100

gm in the blood of the

deceased. Hence the question

which arises for consideration is

as to whether a person having 120

mg of alcohol per 100 ml of his

blood can be said to be under

influence of intoxicating

liquor. This question came up for

consideration of this Commission

in Consumer Complaint No. 401 of

2014 Baby Apoorva Rai Vs. New India

Assurance Co. Ltd. & Anr. Decided

on 03.9.2015 and the following

view was taken:

3. There is no direct

evidence of the deceased being

under influence of

intoxicating liquor at the

time he got drowned in the

swimming pool. The only

evidence relied upon the

insurance company to

substantiate the plea that he

was under the influence of

intoxicating liquor at the

time he died, is the report of

the laboratory reporting

presence of 103.14 mg of ethyl

alcohol per 100 ml of the blood

of the deceased.

4. Relying upon Modi’s

Medical Jurisprudence and

Toxicology, 24th Edition, the

learned counsel for the

complainants submitted that

the presence of 103.14 mg/100

ml of the blood does not lead

to the conclusion that the

deceased was under the

influence of intoxicating

liquor. He relied upon the

following extract from the

above-referred text book:

“It is generally believed

that a person with a

concentration of 0.1 per cent

alcohol in the blood appears to

be gay and vivacious, and those

with a concentration of 0.15

per cent alcohol in the blood

are regarded as fit to drive a

motor vehicle. This

concentration of alcohol in

the blood is regarded as a

presumptive limit of safety,

and may result from the rapid

consumption of 8 ounces of

whisky of 4 to 5 pints of

beer.

Alcohol acts differently

on different individuals and

also on the same individual at

different times. The action

depends mostly on the

environment and temperature of

the individuals and upon the

degree of dilution of the

alcohol consumed. The

habitual drinker usually shows

fewer effects from the same

dose of alcohol. Barbiturates,

benzodiazepines,

antihistamines,

tranquillizers, chlorpromazine

and insulin, potentiate the

action of alcohol, while

epileptics or persons who have

suffered from a head injury may

show an increased effect to a

small quantity of alcohol”.

It would thus be seen that

in the opinion of the Author,

the percentage of alcohol in

the blood would be 0.2% in

case, the quantity of alcohol

per 100 ml of blood is 200

mg. Thus, a person who has 200

mg alcohol per 100 ml. of his

blood can be said to be

moderate intoxicated, if we go

by the above referred

opinion. A person with a

concentration of 0.15% alcohol

in the blood is regarded to be

fit to drive a motor

vehicle. 0.15% of alcohol in

the blood comes only if he has

150 mg of alcohol per 100 ml.

of his blood.

5. The learned counsel for

the insurance company,

however, relied upon an

Article titled “While Under

the Influence of Intoxicating

Liquor” written by W.W.

Thornton and published on

11.01.1928 in Indiana Law

Journal. The question

considered in the above

referred Article was as to what

condition must a driver of a

motor vehicle be in to be

“under the influence of

intoxicating liquor or

narcotic drugs”? The Author

extracted the following

observations from the judicial

pronouncements considered by

him:

“A person is drunk in legal

sense when he is so far under

the influence of intoxicating

liquors that his nerves are

visibly excited or his

judgment impaired by the

liquor”.

“Intoxicated condition”

means that if the person “were

in such a state that he was

incapable of giving the

attention to what he was doing,

which a man of prudent and

reasonable intelligence would

give”.

“When it appears that a

person is under the influence

of liquor, or when his manner

is unusual or abnormal, and his

inhibited condition is

reflected in his walk or

conversation, when his

ordinary judgment and common

sense are disturbed, or his

usual will power is

temporarily suspended, when

they or similar symptoms

result from the use of liquors

and are manifest, then the

person is ‘intoxicated’. It

is not necessary that the

person would be so-called

‘dead-drunk’ or hopelessly

intoxicated. It is enough

that his sense are obviously

destroyed or distracted by the

use of intoxicating liquors

within the meaning of the

statute authorizing recovery

of damages against a saloon

keeper who sells liquors to an

intoxicated person”.

“Under the law a man is

intoxicated whenever he is so

much under the influence of

spirituous or intoxicating

liquors that it so operates

upon him, that it so affects

his acts, or conduct or

movement, that the public or

parties coming in contact with

him could readily see and know

that it was affecting him in

that respect. A man to that

extent under the influence of

liquor that parties coming in

contact with him, or seeing

him, would readily know that he

was under the influence of

liquor, by his conduct or his

words or his movements, would

be sufficient to show that such

party was intoxicated”.

Whenever a man is under the

influence of liquor so as not

to be entirely at himself, he

is intoxicated; although he

can walk straight’ although he

may attend to his business, and

may not give any outward and

visible signs to the casual

observer that he is drunk, yet

if he is under the influence of

liquor so as not to be at

himself, so as to be excited

from it, and not to possess

that clearness of intellect

and that control of himself

that he otherwise would have,

he is intoxicated”.

It would thus be seen that

the Article relied upon by the

learned counsel for the

opposite party is not based on

the quantity of the alcohol

found in the blood of a

person. This Article does not

go into the question as to how

much quantity of the ethyl

alcohol in the blood of a

person can lead to the

inference that he was under

influence of intoxicating

liquor.

6. The learned counsel for the

opposite party has also relied

upon the following information

in Lyon’s Medical

Jurisprudence and Toxicology:

“The American Medical

Association and the National

Safety Council of USA have

adopted the following policy

statement with regard to

intoxication – “Blood alcohol

of 0.10% can be accepted as

prima facie evidence of

alcoholic intoxication,

recognizing that many

individuals are under the

influence in the 0.05 to 0.10%

range.” The Uniform Vehicle

Code of USA 1962 has as its

standards: “Blood alcohol of

0.05% or less raises a

presumption that the subject

was not under the influence of

alcoholic beverage; blood

alcohol in excess of 0.05% but

less than 0.10% raises no

presumption of intoxication or

soberness; blood alcohol of

0.10% or more raises the

presumption that the subject

was under the influence of

alcoholic beverage”.

In different countries the

prescribed limit for

permissible blood alcohol is

as follows:

India - 30 mg%

USA - 100 mg%

Australia - 40 mg%

Terminologies used in

medico-legal context: The

following terminologies are

employed in medico-legal

cases. Their exact meaning

should be understood.

• Sober – blood alcohol

concentration of less than 10

mg%

• Drinking – Blood alcohol

concentration of 20-70 mg%

• Under the influence of

alcohol – blood alcohol

concentration of 80-100 mg%

• Drunk or intoxicated – blood

alcohol concentration of

150-300 mg%

• Coma and death – blood

alcohol concentration in

excess of 400 mg%”.

As per the above referred text

book, a person is under the

influence of alcohol when the

blood alcohol concentration is

80-100mg/100 ml of the

blood. The above referred

text book also shows that the

USA, which is most liberal, as

far as the quantity of alcohol

which a person can consume at

the time of driving also allows

only upto 100 mg alcohol/100 ml

of the blood. It further shows

that if the alcohol content is

.1%, it would be the prima

facie evidence of alcoholic

intoxication. Blood alcohol

percentage of .1% comes when

the quantity of ethyl alcohol

in the blood is 100 mg/100 ml

of the blood. Thus, if we go

by the text book of Modi, a

person, who has consumed less

than 150 mg of alcohol per 100

ml. of his blood, cannot be

said to be under influence of

intoxication, whereas as per

the text book of Lyon’s, a

person having 100 mg or more

per 100 ml of blood will be

said to be under influence of

alcohol.

7. In a Manual for

Physicians in National Drug

Dependence Treatment Centre,

All India Institute of Medical

Sciences, New Delhi the

effects of alcohol has been

stated as under:

BAC

mg/dl

Effects

<80

Euphoria, feeling of

relaxation and talking

freely, clumsy movement

of hands and legs,

reduced alertness but

believes himself to be

alert.

<80

100-200

Noisy, moody, impaired

judgement, impaired

driving ability

Electroencephalographic

changes begin to appear,

Blurred vision, unsteady

gait, gross motor incoordination, slurred

speech, aggressive,

quarrelsome, talking

loudly.

200-300 Amnesia for the

experience – blackout.

300-350 Coma

355-600 May cause or contribute

to death

It would thus be seen that

in terms of the above referred

compilation issued by the AIIMS,

if the quantity of alcohol in the

blood is 100 or more mg. /dl (100

ml), it leads to vision getting

blurred, the gait become unsteady

and the coordination gets

affected. These changes, in our

opinion, can occur only when

someone is already under the

influence of alcohol by that

time. The judgment of the drinker

as well as his driving ability gets

affected even where the quantity

of alcohol in the blood is 80 mg

or more per 100 ml of the blood.

8. The learned counsel for the

complainant has relied upon the

decision of this Commission in LIC

of India & Anr. Vs. Ranjit Kaur III

(2011) CPJ 232 (NC), where the

quantity of alcohol in the blood

was found to be 86.2 mg./100 ml of

blood. Ruling in favour of the

complainant, this Commission

inter-alia observed as under:

“It has also come in evidence

that this by itself is not adequate

proof that the deceased was

intoxicated at the time of his

death. As rightly observed by the

learned Fora below, the specific

clinical picture of alcohol

intoxication also depends on the

quantity and frequency of

consumption and duration of

drinking at that level and,

therefore, mere presence of

alcohol even above the usually

prescribed limits is not a

conclusive proof of

intoxication. Apart from this,

there is also no evidence that

there was a nexus between the death

caused by electric shock and

consumption of liquor”.

9. The learned counsel for the

opposite party, on the other hand

has relied upon the decision of

this Commission in LIC of India &

Anr. Vs. Priyanka Singh First

Appeal No.368 of 2014 decided on

14.10.2005. In the above referred

case, 109.92 mg of ethyl alcohol

per 100 ml of blood was found in

the body of the

insured. Dismissing the

complaint, this Commission, interalia observed and held as under:

“As per the medical literature,

“HWV COX ‘Medical Jurisprudence

and Toxicology’, Seventh Edition

PC Dikshit” brought on record,

there are three stages of

alcoholic intoxication, which

reads as follows:

“Stage of Excitement (50 to 150

mg percent)

Feeling of well-being slight

excitement, increased confidence,

lack of self-control are usually

seen. There is a heightened

sexual desire, but performance is

reduced. The visual acuity is

reduced. It also alters time and

space orientation. There is poor

judgment and mental concentration

is retarded”.

The learned counsel for the

complainant/respondent in the

above referred case relied upon

the text book of ‘Biochemistry’ as

per which quantity of 50-150 mg was

described as Pre-intoxication in

which there are signs of

instability, decreased

neuromuscular coordination and the

judgment and control required for

quick responses such as car

driving are impaired. Whereas in

intoxicating stage (150-300 mg/dl)

speech is impaired and motor

skills are

incoordinated. However, relying

upon the Medical Literature

produced by the appellant

Corporation, this Commission held

that the deceased was under

intoxication as a result of

consumption of alcohol found in

his blood sample, making him

ineligible to the benefits of

double accident policy. It would

be pertinent to note that in the

above referred case, no amount was

payable in case the insured was

under influence of intoxicating

liquor drug or narcotics.

10. Considering the opinion

expressed in the Manual issued by

All India Institute of Medical

Sciences, which is the premier

most medical Institution in this

Country, we are not inclined to

accept the opinion expressed in

Modi’s Medical Jurisprudence and

Toxicology, particularly when the

opinion of AIIMS also find

corroboration from the opinion

expressed in Lyon’s Medical

Jurisprudence and

Toxicology. Though, this is not a

case of the death while driving

after consuming alcohol, the

maximum quantity of alcohol

permitted by various countries for

a person to drive a motor vehicle

cannot be said to be an altogether

irrelevant since the purpose of

prohibiting driving after

consuming liquor beyond the

prescribed quantity is to ensure

that the driver does not commit an

accident on account of the effect

of liquor on him. The purpose of

the insurer behind excluding the

cases of accident when the insured

is under influence of intoxicating

liquor is to ensure that the

consumption of the liquor does not

lead or contribute to happening of

the accident in which the insured

dies or injured. Therefore,

consumption of liquor beyond a

safe limit must necessarily

disqualify the insured from

getting the benefits of the

insurance policy taken by

him. The quantity of alcohol

allowed to the driver of a motor

vehicle is not more than 100 mg/100

ml of the blood in any country,

including USA though, in our

country it is only 30 mg/100 ml of

blood. Therefore, in our opinion,

if a person is found to have

consumed more than 103.14 mg of

alcohol/100 ml of his blood, which

is position in the case before us,

it would be reasonable to say that

he was under the influence of the

intoxicating liquor at the time he

died or got injured. We are

fortified in taking this view from

the decision of this Commission in

Priyanka Singh (supra). As far as

the decision of this Commission in

Ranjit Kaur (supra) is concerned,

we find that the quantity of

alcohol in the blood of the insured

in that case was of 86.2 mg, which

was much less than quantity of the

alcohol found in the blood of the

deceased Surya Kiran.

Though in Ranjit Kaur

(supra), this Commission, interalia observed that there was no

nexus between the death caused by

electric shock in consumption of

liquor, the aforesaid observation

is only an obiter and does not

constitute the ratio decidendi of

the case. In fact, the aforesaid

obiter is contrary to the express

terms of the insurance policy

which absolves the insurer of its

obligation under the policy, in

case the insured was under the

influence of the intoxicating

liquor at the time of the accident

and the policy does not require any

nexus to be shown between the case

of accident and the consumption of

liquor.”

14. It was further found that in the case of

Ranjit Kaur (supra), which is referred to, the

quantity of liquor in the blood sample was found

to be 86.2 mg and it was still found that the

driver was not intoxicated. In the present case,

it is found that there is no evidence regarding

the quantity of liquor in the blood of the

driver. The onus was upon the appellant-Insurer

to prove that the quantity of alcohol was at

least 30 mg and, therefore, exceeded the limit

prescribed under Section 185 of the MV Act. The

NCDRC allowed the appeal and set aside the order

of the State Commission and directed the

appellant to assess the loss of the respondent

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

per annum from the date of complaint within six

weeks of the date of assessment to the

respondent.

SUBMISSIONS OF PARTIES

15. We heard Shri Shivam Singh, learned Counsel

for the appellant and Shri Gopal

Sankarnarayanan, learned Senior Counsel for

respondent.

16. Shri Shivam Singh, learned Counsel,

contended that this is a clear case where

unimpeachable material in the form of official

records established that the car was being

driven by a person who was under the influence

of intoxicating liquor. The high speed and the

manner in which the accident occurred, viz., the

vehicle hitting against the pole, turning turtle

and further catching fire, along with the fact

that the FIR and the MLC indicating that the

driver smelt of the alcohol sufficed to attract

the Exclusion Clause and protect the appellant.

The impact of the accident, resulting in the car

becoming a complete wreck, is emphasised, to

point out that the circumstances existed which

entitled the appellant to extricate itself from

the huge financial burden in tune with a

specifically provided Exclusion Clause. He drew

our attention to the following decision in V.

Kishan Rao v. Nikhil Super Speciality Hospital

and another2. Therein, this Court held as

follows:

“13. Before the District Forum, on

behalf of Respondent 1, it was argued

that the complainant sought to prove

Yashoda Hospital record without

following the provisions of Sections

61, 64, 74 and 75 of the Evidence Act,

1872. The Forum overruled the

objection, and in our view rightly,

that complaints before the Consumer

Fora are tried summarily and the

Evidence Act in terms does not apply.

This Court held in Malay Kumar

Ganguly v. Dr. Sukumar

Mukherjee [(2009) 9 SCC 221 : (2010) 2

SCC (Cri) 299] that provisions of the

Evidence Act are not applicable and

the Fora under the Act are to follow

the principles of natural justice (see

para 43, p. 252 of the report).

17. The said decision was rendered in regard to

a complaint regarding medical negligence and the

2 (2010) 5 SCC 513

question which arose was, whether Expert

evidence was necessary to prove such medical

negligence. This Court also held as follows:

“50. In a case where negligence is

evident, the principle of res ipsa

loquitur operates and the complainant

does not have to prove anything as the

thing (res) proves itself. In such a

case it is for the respondent to prove

that he has taken care and done his

duty to repel the charge of

negligence.”

18. He further pointed out that the Court may

appreciate the nature of the case set up by the

driver of the vehicle. It is pointed out that it

was contended by the respondent that the vehicle

was not driven rashly and negligently. Yet, in

the criminal case, the driver pleaded guilty and

the sentence, as already noticed, came to be

pronounced by the Criminal Court. This, beyond

doubt, established that the case of the

respondent that car was not being driven in a

rash and negligent manner, was false. It clearly

probablised the case of the appellant that the

car was being driven rashly and negligently and

this is attributable only to the fact that the

driver was under the influence of intoxicating

liquor. The evidence in this regard is furnished

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

further strengthened by the MLC. He further

complained that the NCDRC has completely erred

in holding that the burden was on the Insurer to

prove the quantity of alcohol in the blood of

the driver. He would point out the sheer

impossibly to fulfil such an obligation on the

Insurer. He would question the correctness of

the declaration.

19. Per contra, Shri Gopal Sankarnarayanan,

learned Senior Counsel for the respondent would,

in the first place, draw our attention to the

Report of the Investigator engaged by the

appellant. He would point out that the Report

would reveal that upon being informed, the

Investigator was very much at the scene in the

early morning and, still, no steps were taken to

ascertain the level of the alcohol in the blood

of the driver. This adequately counters the

apprehension about the impossibility for the

insurer to prove the level of alcohol. In this

regard, he drew our attention to the questions

put in the interrogatories and the answers which

have been received. As far as the conviction

under Section 279 of the IPC is concerned, he

would submit that it was only a case of plea

bargaining and, more importantly, it related to

rash and negligent driving under Section 279 of

the IPC. The offence, which is pertinent to the

controversial Clause, is the one contemplated

under Section 185 of the MV Act and it has not

been invoked/proved against the driver. In other

words, the attempt appears to be to contend that

at worst a case of rash or negligent driving may

be established, which is not the same as driving

under the influence of alcohol. He also sought

to draw support from the Judgment of this Court

in Bachubhai Hassanalli Karyani (supra). The

other case law appears to be mostly Orders passed

by the NCDRC itself and it appears to be on the

lines, indicated in the impugned Order itself,

as noticed by us. He further pointed out that

the car caught fire as the fuel tank of the car

is located in the front.

20. In Bachubhai Hassanalli Karyani (supra), the

Court was dealing with a case inter alia under

Section 117 of the Motor Vehicles Act, 1939.

This Court held as follows:

“4. The learned counsel contends

that the heavy sentence has been

imposed on the appellant because he

was found to have been drunk on that

night. He says that Dr Kulkarni, who

examined the appellant, based his

conclusion merely on the facts that

the appellant's breath was smelling

of alcohol, that his gait was

unsteady, that his speech was

incoherent and that his pupils were

dilated. The doctor had admitted

that a person, placed in the

circumstances in which the appellant

was put as a result of the accident,

would be under a nervous strain and

his gait might be unsteady. The

doctor had also admitted that a

person could smell of alcohol

without being under the influence of

drinking. No urine test of the

appellant was carried out and

although the blood of the appellant

was sent for chemical analysis, no

report of the analysis was produced

by the prosecution.

5. It seems to us that on this

evidence it cannot be definitely held

that the appellant was drunk at the

time the accident occurred.”

FINDINGS

21. The expression “under the influence of

intoxicating liquor” does not appear to be of

recent origin in a Contract of Insurance. It has

been around for quite a while. In this regard,

we may notice the judgments of the English

Courts. In Mair (Administratrix) v. Railway

Passengers Assurance Co. (Limited)3

, Lord

Coleridge, the Chief Justice made the following

observations, while dealing with the very same

words “under the influence of intoxicating

liquor”, and held as follows:

“… I should think, speaking

only for myself, that the words

“under the influence of

intoxicating liquor” would be

sufficiently satisfied by

construing them to mean under such

influence of intoxicating liquor

as disturbs the balance of a man’s

mind. There is a point up to which

any stimulating liquor, with most

people at least, possibly

benefits, at any rate for the time,

the exercise of the intellect.

There is a point beyond which it

certainly impedes – disturbs it. I

concede that it is very difficult

even in language – certainly in the

English language – to ascertain

3 1877 37 L.T. 356 DC

with precision where that point is;

but it is enough to say that there

is a point, and it seems to me

these words would be satisfied when

the influence of intoxicating

liquor is found in point of fact

to be such as to disturb the quiet

and equable exercise of the

intellectual faculties of the man

who has taken the liquor. Of

course, if I think there is

evidence to satisfy me that the

intoxication in this case was

enough to have gone to the point

of contributing to the accident,

it follows a fortiori that it had

arrived at the disturbing point

which I think, speaking for myself,

would be enough to satisfy the

words of the proviso.…”

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

was being driven and it was alleged that the

driver was under the influence of alcohol. On

the other hand, it was a case where the deceased

had been drinking for a while. In this

condition he rudely accosted a woman and tried

to put his arms around her. He was knocked down

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

He died as a result of the injury. The insurer

sought protection under a clause which excluded

liability if the assured was under the influence

of intoxication of liquor.

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

Merchants Insurance Company Limited4, the

plaintiff, claimed under a policy, in regard to

a bodily injury suffered by her husband. The

Insurer invoked the Exclusion Clause, which

again protected it in a case where the person

was under the influence of drugs or intoxicating

liquor. It was a case of a motor vehicle

accident, which proved fatal for the

plaintiff’s husband. One of the contentions

raised by the plaintiff was that the words

“sustained whilst under the influence of drugs

or intoxicating liquor, were so uncertain as to

4 [1961] WLR 798 QB

their meaning that no effect should be given to

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

contention drew support from Mair

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

reiterated the principles laid down therein. We

may advert to the following:

“… The words used in the

exemption clause of the policy

before me have probably been used

for many years in policies giving

assurance against injury. Counsel

for the defendants referred to Mair

v. Railway Passengers Assurance

Co. Ltd. The policy in that case

provided that the assurance should

not extend to any death or injury

happening while the assured was

under the influence of

intoxicating liquor. The case came

before Lord Coleridge C.J. and

Denman J. by way of an application

for a new trial on the ground that

the verdict had been against the

weight of evidence. Both judges

construed the words, “whilst the

assured is under the influence of

intoxicating liquor,” although it

may not have been necessary for the

purposes of their judgment to do

so. Neither seems to have thought

that the words were so uncertain

as to be incapable of construction.

Both were of the opinion that these

words connoted a disturbance of the

faculties, Lord Coleridge using

the words “as disturbs the balance

of a man's mind,” and Denman J. the

words “disturbing the quiet, calm,

intelligent exercise of the

faculties.” Mr. Everett, whose

experience in matters of personal

injury insurance is extensive, was

unable to refer me to any case in

which a different construction had

been put upon these words. In those

circumstances, I find that the

words are not so uncertain as to

be incapable of construction, and

I adopt the constructions in Mair

v. Railway Passengers Assurance

Co. Ltd., albeit they have been

expressed in mid-nineteenth

century idiom. I add no gloss, as

to do so might add confusion where

none may have existed amongst

insurers and policy holders during

the past 84 years.”

24. This was the case of alleged driving under

the influence of alcohol. The deceased was

travelling in a car with a friend after having

drinks (beer). They appeared to be sober.

While so, the motor car attempted to negotiate

a bend and it knocked off the Warning post and

an accident ensued, the vehicle having fallen

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

blood alcohol was 260 mg in 100 ml and in favour

of the insurer.

A CASE FROM SCOTLAND

25. In Kennedy v. Smith5

, decided on 20th June,

1975 by the Inner Court of Session of Scotland

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

now, the defendant (described as the defender)

drove a car after having consumed a pint or at

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

of beer) and an accident occurred in which two

of the passengers died. In an action by the

widows, the insurer (referred to as a third

party) relied upon an exception in the policy

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

which inter alia excluded its liability if the

driver was under the influence of intoxicating

liquor. Lord President of the Court with whom

the other two Judges agreed, observed as

follows:

“They mean, as the Lord Ordinary

accepted, "under such influence of

intoxicating liquor as disturbs the

balance of a man's mind." This was

the meaning given to them by Lord

Coleridge C.J. in Mair v. Railway

Passengers Assurance Co., 1877 37

L.T. 356 in which Denman J. referred

to the condition as "disturbing the

quiet calm intelligent exercise of

the faculties," and was the meaning

adopted by Lawton J. in the later

case of Louden v. British Merchants

Insurance Co. Ltd., 1961 1 W.L.R.

798. The only proved facts are (i)

the admitted consumption by the

defender of one pint of lager and

(ii) the happening of the accident.

The Lord Ordinary was not entitled

to rely as he did upon the facts that

the defender drank lager upon an

empty stomach and was unaccustomed

to alcohol since there was no

evidence whatever that either of

these facts made it more probable

that the amount of alcohol consumed

would adversely affect the faculties

of the defender. In so far as the

Lord Ordinary refers to the erratic

and unexplained behaviour of the

defender's car this is only to be

understood as a reference to the

movement of the car at the time of

the accident as the result,

according to the defender, of the

back wheels striking either the kerb

or an object on the road surface.

The happening of the accident is

explicable as the result of

momentary inattention or loss of

concentration and it is sheer

speculation to say that the

defender's consumption of one or

even one and a half pints of lager

had placed him under such influence

of alcohol as had disturbed the

balance of his mind. They also

argued that it was relevant to

consider that this was a case of

wholly unexplained and extraordinary

movement of the motor car which the

defender had driven accident free

for some years. It was further, they

said, relevant in this connection to

have regard to the plea tendered by

the defender to the charge of

contravening section 1 (1) of the

Road Traffic Act 1960.

In my opinion, the defender's

submission in this matter is well

founded. The Lord Ordinary was not,

in my view, entitled to have regard

to the fact that the lager drunk by

the defender was consumed upon an

empty stomach and that he was

unaccustomed to alcohol. Whether or

not a particular combination of

circumstances is likely to

exacerbate the effects of a

particular consumption of alcohol is

a matter of evidence (as was the case

in Louden). In this case there was

no evidence to show that the

circumstances in question were other

than neutral. In my opinion, also,

no weight can be given to the

defender's plea of guilty. The Lord

Ordinary gave no weight to this.

Such a plea is explicable as soon as

it is remembered that even a slight

degree of carelessness may justify a

conviction for driving in a manner

dangerous to the public. In these

circumstances the "inference" drawn

by the Lord Ordinary rests only upon

(i) proved consumption of one pint

of lager and possibly—only possibly—

another half pint, and (ii) the

happening of the accident as it

emerged in evidence. There was not

one scintilla of evidence of any

behaviour on the part of the

defender, or of his car before the

accident, which pointed to the

alcohol he had consumed having to

any material extent affected the

balance of the defender's mind. For

the exception to apply it is not

enough to show that the defender had

consumed a particular quantity of

alcohol shortly before a claim

arose. In my opinion mere proof that

the defender had consumed at most a

pint and a half of lager and that he

had later been driving the car when

it left the westbound dual

carriageway in the manner described,

does not justify an inference that

he was at the time of the accident

under the influence of intoxicating

liquor within the meaning of

exception 5 (a). The accident is

consistent with momentary

inattention and to say that he was

under the influence of alcohol at

the time can only, on the facts

proved in this case, be

speculation.”

26. Lord Avonside in his concurring opinion

inter alia held as follows:

“The explanation of the respondent

that his rear wheels had hit

something, a brick or possibly the

kerb, was either rejected by the

Lord Ordinary or, at least, also

pointed to negligence influenced by

drink. Plainly also the Lord

Ordinary did not believe the

assertion of the appellant that the

drink he had taken did not affect

his judgment. It is regrettable, in

my view, that more evidence was not

led in regard to the accident. It

would, I imagine, be available and

perhaps its omission was considered

tactical. Be it so, the onus was on

the respondent. In my opinion, the

Lord Ordinary has gone too far.

There is no evidence of the likely

effect of the consumption of a not

immoderate amount of low content

alcohol on a person unused to drink

whose stomach may be empty. The Lord

Ordinary as a judge is not, in my

view, entitled to draw a positive

conclusion from such facts, without

some evidence before him and there

was none. The smell of alcohol after

the accident was, it is I think

accepted, simply evidence of the

fact of prior consumption of

alcohol. The circumstances of the

accident were remarkable enough, but

could be explained by what the

appellant said. That the appellant

pleaded guilty to a charge under

section 1 (1) of the Road Traffic

Act 1960, and the Lord Ordinary

seems to make significance of this,

is neither here nor there, looking

to the comparatively minor degree of

negligence which the Courts have

held sufficient to invoke the subsection. But looking at the facts

found at best for the respondent I

see no more than that the appellant

had taken some drink for the first

time in his life on an empty stomach

and had very shortly thereafter been

involved in a bad accident which his

previous safe record would not

suggest as being likely to happen.”

27. Obviously, there are certain parallels as

there are distinctions between facts of the case

before us. The similarity lies in the fact that

the driver in the case before us also smelt of

alcohol. The other similarity lies in the

nature of an accident. The differences,

however, lie in the fact that in the case

referred to, there was evidence of the actual

quantity and nature of the alcohol which was

consumed by the driver. In the case before us,

there is no evidence either recording the exact

nature of alcoholic drink which was consumed by

the driver and there is also no material as to

the quantity consumed by him. There is no

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

when the alcohol was consumed by the driver in

the case before us. Whereas on the evidence

adduced in the case before the Court in the

decision referred to, there was evidence as to

the time when the alcohol was consumed. Further

the driver offered an explanation as to how the

accident unfolded when there is none in the case

before us.

28. As far as the conviction under the Road

Traffic Act, 1960, which was based on the plea

of the defendant-driver in the said case is

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

1960, may be noticed:

“1. Causing death by reckless or

dangerous driving: (1)A person who

causes the death of another person

by the driving of a motor vehicle on

a road recklessly, or at a speed or

in a manner which is dangerous to

the public, having regard to all the

circumstances of the case, including

the nature, condition and use of the

road, and the amount of traffic

which is actually at the time, or

which might reasonably be expected

to be, on the road, shall be liable

on conviction on indictment to

imprisonment for a term not

exceeding five years.”

29. It may be noticed that both the trial Judge

as well as the Appellate Court did not lay any

store by the blood test and also the conviction

and therefore what is significant is that a

finding could be rendered in an action that the

insurer was not liable if the driver, in

contravention of the policy was under the

influence of intoxicating liquor and the matter

goes to the evidence which would support such a

finding.

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

the Court that the Trial Judge was not entitled

to rely upon the fact that the defendant drank

a lager upon an empty stomach, we are unable to

endorse the same. This is for the reason that

there is enough material available to show that

when one drinks on an empty stomach, there is

greater and faster infusion of the alcohol into

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.

THE POSITION IN THE UNITED STATES OF

AMERICA

31. Interestingly, the terms in the Contract of

Insurance may exclude the liability of the

Insurer in regard to liquor based on the mere

consumption of the liquor and its presence in

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

a life and accidental insurance, one of the

questions was whether there was an error in the

charge of the court relating to intoxicating

liquor. The policy in question did not cover

any injury or death which the insured may suffer

while the insured has in his or her body,

physically present intoxicating liquor or

narcotics. The Supreme Court of North Carolina

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

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

the charge which the trial court had given to

the jury. The Court noticed the charge as

follows:

“The court further instructs you

that an intoxicated person is a

drunken person, a drunken person

is an intoxicated person and that

means- intoxicated means in law

that the subject must have drunk

of alcohol to such an extent as to

appreciably affect and impair his

mental or bodily faculties or both.

The court instructs you further

that to be under the influence or

affected by the liquor means that

the subject must have drunk a

sufficient quantity to influence

or affect, however slightly, his

body and his mind, his mental and

physical faculties, in other

words, it all comes to this, that

he has drunk, that he has

intoxicating liquor in his body to

the effect that it influences his

conduct detrimentally. It means

the question for you is whether the

deceased at the time of his impact

and death had in his body

intoxicating liquor of sufficient

quantity to be intoxicated or to

affect his conduct and influence

his conduct and action.”

“The court further instructed the

jury: “The question for you is

whether the deceased at the time of

the impact and death had in his

body intoxicating liquor of

sufficient quantity to be

intoxicated or to affect and

influence his conduct and action.”

32. The Court held as follows:

“The court further instructed the

jury to answer the issue in favor

of defendant if they found by the

greater weight of the evidence that

the deceased had present in his

body at the time of the injury

“intoxicating liquor as the court

has just defined and explained

intoxicating liquor;” and again,

if they found the deceased “was

under the influence of alcohol or

intoxicating liquor.” While the

court followed this by charging the

jury to answer the issue in favor

of defendant if they found deceased

“had present in his body

intoxicating liquor,” this did not

cure the previous instruction.

Thus the learned judge

inadvertently placed upon the

defendant the burden not only to

show the physical presence of

intoxicating liquor in the body of

the insured at the time of the

injury, but also to show that he

was intoxicated or under the

influence of intoxicating liquor.

The defendant by the language of

the policy excluded from its

coverage injury suffered by the

insured while he had present in his

body intoxicating liquor. This was

the contract between the parties,

and the defendant was entitled to

avoid liability upon proof that the

insured had in his body, physically

present, any quantity of

intoxicating liquor, regardless of

whether he thereby became

intoxicated or not. The defendant

was entitled to have the

instruction to the jury confined to

the language of the policy. Payne

v. Stanton, 211 N.C. 43, 188 S.E.

629.

The defendant's exceptions to the

charge in the respects noted must

be sustained, necessitating a new

trial.

New trial.”

(Emphasis supplied)

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

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

observed as follows in regard to the similar

clause in a Contract of Insurance:

“The exact language of the policy

provision under consideration

is:’***nor does it cover loss or

injury sustained by the insured

while he was physically present in

his body alcoholic or intoxicating

liquors in any degree. ***That

this provision is not contrary to

public policy; that it is not

susceptible of double construction

or of an interpretation that the

extent or degree of intoxication is

material; that it is not

unreasonable, and that it does not

constitute a limitation

unavailable to appellee, is amply

affirmed by the authorities both

local and foreign. In Robinson &

Son v. Jone, 254Ky.637, 72 S.W.2d

16, 19, it is said: ‘It is known of

all men that the drinking of

intoxicating liquor, though it be

not done to the extent of actual

intoxication, begets a spirit of

recklessness, and is responsible

for numerous accidents.’ And in

Equitable Life Assurance Society

of United States v. Adams, 259 Ky.

726, 83 S.W.2d 461, 464, ‘It is the

duty of the courts to take the

words of an insurance policy as

they are found in it, and as

persons with usual and ordinary

understanding would construe them

when used to express the purpose

for which they were employed,***.

34. The Supreme Court of Alabama in Standard Life

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

in November, 1891, had occasion to consider the

question as to whether the phrase “under the

influence of intoxicating drinks” had a

different connotation in law from that it

carried in common parlance. No doubt, it was a

case whether a workman was covered by an

insurance policy and he met with an accidental

death while he was discharging his duty as a

Swtichman. We find the following discussion:

“…To be under the influence of

whiskey, is not necessarily to be

intoxicated. One may well be said to

be under the influence of strong drink

when he is to any extent affected by

it--when he feels it; and this

condition may result from potations so

small as not to impair any mental or

physical faculty, and when the

passions are not visibly excited, nor

the judgment or any physical function

impaired. This is very far short of

intoxication, which is the synonym of

inebriety, drunkenness, implying or

evidenced by undue and abnormal

excitation of the passions or

feelings, or the impairment of the

capacity to think and act correctly

and efficiently….

But the phrase "under the influence of

intoxicating drinks," as used in

policies of this character and in this

connection, has a legal significance,

differing from the popular one, and

implying such influence as in reality

amounts to intoxication. In a well

considered case, it was said by the

Supreme Court of New York, that "to be

under the influence of intoxicating

liquors, within the meaning of this

policy, the insured must have drunk

enough to disturb the action of the

physical or mental faculties, so that

they are no longer in their natural or

normal condition. When, therefore, the

defendant imposed upon persons insured

by it the condition that it would not

be liable when death or injury should

happen while the insured was under the

influence of liquor, the intention

manifestly was to require the insured

to limit its use in such a degree as

that he retained full control over his

faculties of mind and body….”

35. Therefore, an analysis of the principles as

laid down both by the English Courts/Scottish

Court and decisions from the United States would

persuade us to hold as follows:

The exclusion from the liability of the

Insurer would depend upon the exact terms of

the Insurance. We are in this case not

dealing with a third-party claim. Under the

aegis of the Motor Vehicles Act, we are not

oblivious of the provisions of Section

149(2) in the unamended provisions of the

Motor Vehicles Act,1988 which are captured

in Section 150 of the present avtaar after

the amendment as regards the defences

available to the Insurer regarding such

claims. We are dealing with a case of own

damage and the clause which extricates the

Insurer on the basis of the driver being

under the influence of alcohol, inter alia.

We would find that the there are two

variants. One of the models is represented

by American cases where all that required is

that the person has in his body alcohol in

any degree. Under the said model, it need

not influence his conduct. Under the said

model, it is not necessary for the Insurer

to show that person concerned was

intoxicated or under the influence of

intoxicated liquor.

36. This brings us to the other model which model

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

the insurer must show that the person driving

the vehicle was under the influence of liquor.

The contrast between the models is stark and

perceptible. As far as the exclusion of the

nature we are concerned with, which requires

driving of the vehicle by a person under the

influence of intoxicating liquor, it would

appear to be clear that mere presence of alcohol

in any small degree would not be sufficient.

This is for the reason that the court cannot rewrite the contract and hold that the mere

presence of the alcohol, in the slightest

degree, is sufficient to exclude the liability

of the insurer. It requires something more,

namely, that the driver of the vehicle was at

the time of the accident acting under the

influence of intoxicating liquor. Now it is

clear that the decisions of the English Courts

are closer home and of assistance in the laying

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

facts and circumstances of each case that the

consumption of liquor had, if not caused the

accident, which undoubtedly would bring the

accident within the mischief of the clause but

at least contributed in a perceptible way to the

causing of the accident.

SECTION 185 OF THE MOTOR VEHICLES ACT, 1988

37. It is at this juncture that it becomes

necessary to notice and deal with the argument

of the respondent under Section 185 of the Motor

Vehicles Act. Section 185 of the Motor Vehicles

Act, 1988 reads as follows:

“185. Driving by a drunken person

or by a person under the influence

of drugs.—Whoever, while driving,

or attempting to drive, a motor

vehicle,—

(a) has, in his blood, alcohol

exceeding 30 mg. per 100 ml. of

blood detected in a test by a

breath analyser, or

(b) is under the influence of a

drug to such an extent as to be

incapable of exercising proper

control over the vehicle,

shall be punishable for the first

offence with imprisonment for a

term which may extend to six

months, or with fine which may

extend to two thousand rupees, or

with both; and for a second or

subsequent offence, if committed

within three years of the

commission of the previous similar

offence, with imprisonment for

term which may extend to two years,

or with fine which may extend to

three thousand rupees, or with

both.

Explanation.—For the purposes of

this section, the expression

“drug” or drugs specified by the

Central Government in this behalf,

by notification in the Official

Gazette, shall be deemed to render

a person incapable of exercising

proper control over a motor

vehicle.”

38. Our attention was also drawn by Mr. Gopal

Sankaranarayan, learned Senior Counsel for the

respondent to the provisions under Sections 203

and 204 of the Motor Vehicles Act. Section 203

as was extant as on the date of the accident

read as follows:

“203. Breath tests.—(1) A police

officer in uniform or an officer of

the Motor Vehicles Department, as

may be authorised in this behalf by

that Department, may require any

person driving or attempting to

drive a motor vehicle in a public

place to provide one or more

specimens of breath for breath test

there or nearby, if such police

officer or officer has any

reasonable cause to suspect him of

having committed an offence under

section 185:

Provided that requirement for

breath test shall be made (unless,

it is made) as soon as reasonably

practicable after the commission

of such offence.

(2) If a motor vehicle is involved

in an accident in a public place

and a police officer in uniform has

any reasonable cause to suspect

that the person who was driving the

motor vehicle at the time of the

accident, had alcohol in his blood

or that he was driving under the

influence of a drug referred to in

section 185 he may require the

person so driving the motor

vehicle, to provide a specimen of

his breath for a breath test:—

(a) in the case of a person who is

at a hospital as an indoor patient,

at the hospital,

(b) in the case of any other

person, either at or near the place

where the requirement is made, or,

if the police officer thinks fit,

at a police station specified by

the police officer:

Provided that a person shall not be

required to provide such a specimen

while at a hospital as an indoor

patient if the registered medical

practitioner in immediate charge

of his case is not first notified

of the proposal to make the

requirement or objects to the

provision of a specimen on the

ground that its provision or the

requirement to provide it would be

prejudicial to the proper care or

treatment of the patient.

(3) If it appears to a police

officer in uniform, in consequence

of a breath test carried out by him

on any person under sub-section (1)

or sub-section (2), that the device

by means of which the test has been

carried out indicates the presence

of alcohol in the person’s blood,

the police officer may arrest that

person without warrant except

while that person is at a hospital

as an indoor patient.

(4) If a person, required by a

police officer under sub-section

(1) or sub-section (2) to provide

a specimen of breath for a breath

test, refuses or fails to do so and

the police officer has reasonable

cause to suspect him of having

alcohol in his blood, the police

officer may arrest him without

warrant except while he is at a

hospital as an indoor patient.

(5) A person arrested under this

section shall while at a police

station, be given an opportunity to

provide a specimen of breath for a

breath test there.

(6) The results of a breath test

made in pursuance of the provisions

of this section shall be admissible

in evidence. Explanation.—For the

purposes of this section, “breath

test”, means a test for the purpose

of obtaining an indication of the

presence of alcohol in a person’s

blood carried out, on one or more

specimens of breath provided by

that person, by means of a device

of a type approved by the Central

Government, by notification in the

Official Gazette, for the purpose

of such a test. “

39. Section 204 again as was in existence on the

date of the accident (12.12.2007) read as

follows:

“204. Laboratory test.—(1) A

person, who has been arrested under

section 203 may, while at a police

station, be required by a police

officer to provide to such

registered medical practitioner as

may be produced by such police

officer, a specimen of his blood

for a Laboratory test, if—

(a) it appears to the police

officer that the device, by means

of which breath test was taken in

relation to such person, indicates

the presence of alcohol in the

blood of such person,

(b) such person, when given the

opportunity to submit to a breath

test, has refused, omitted or

failed to do so:

Provided that where the person

required to provide such specimen

is a female and the registered

medical practitioner produced by

such police officer is a male

medical practitioner, the specimen

shall be taken only in the presence

of a female, whether a medical

practitioner or not.

(2) A person while at a hospital as

an indoor patient may be required

by a police officer to provide at

the hospital a specimen of his

blood for a laboratory test:—

(a) if it appears to the police

officer that the device by means

of which test is carried out in

relation to the breath of such

person indicates the presence of

alcohol in the blood of such

person, or

(b) if the person having been

required, whether at the hospital

or elsewhere, to provide a

specimen of breath for a breath

test, has refused, omitted or

failed to do so and a police

officer has reasonable cause to

suspect him of having alcohol in

his blood:

Provided that a person shall not be

required to provide a specimen of

his blood for a laboratory test

under this sub-section if the

registered medical practitioner in

immediate charge of his case is not

first notified of the proposal to

make the requirement or objects to

the provision of such specimen on

the ground that its provision or

the requirement to provide it would

be prejudicial to the proper care

or treatment of the patient.

(3) The results of a laboratory

test made in pursuance of this

section shall be admissible in

evidence.

Explanation.—For the purposes of

this section, “laboratory test”

means the analysis of a specimen of

blood made at a laboratory

established, maintained or

recognised by the Central

Government or a State Government.”

40. We may also incidentally notice Section

205 of the MV Act. It reads as follows:

“205. Presumption of unfitness to

drive.—In any proceeding for an

offence punishable under section

185 if it is proved that the

accused, when requested by a police

officer at any time so to do, had

refused, omitted or failed to

consent to the taking of or

providing a specimen of his breath

for a breath test or a specimen of

his blood for a laboratory test,

his refusal, omission or failure

may, unless reasonable cause

therefor is shown, be presumed to

be a circumstance supporting any

evidence given on behalf of the

prosecution, or rebutting any

evidence given on behalf of the

defence, with respect to his

condition at that time.”

41. The Motor Vehicles Act, 1988 repealed the

Motor Vehicles Act 1939. It is important to

notice certain provisions of the said Act also.

Section 117 can be referred to as the provision

corresponding to Section 185 of the present Act

with significant differences. Section 117 as

it originally stood read as follows:

“117.Driving while under the

influence of drink or drugs.-

Whoever while driving or attempting

to drive a motor vehicle is under

the influence of drink or a drug to

such an extent as to be incapable of

exercising proper control over the

vehicle shall be punishable for a

first offence with imprisonment for

a term which may extend to three

months or with fine which may extend

to five hundred rupees, or with

both, and for a subsequent offence

if committed within three years of

the commission of a previous similar

offence with imprisonment for a term

which may extend to two years, or

with fine which may extend to one

thousand rupees, or with both.”

42. This provision came to be substituted by Act

27 of 1977. After its substitution as aforesaid

Section 117 the lawgiver ushered in a stricter

restriction in regard to drunken driving. It

read as follows:

“117. Driving by a drunken person or

by a person under the influence of

drugs .

Whoever, while driving or attempting

to drive, a motor vehicle or riding

or attempting to ride, a motor

cycle, -

(a) Has, in his blood, alcohol in any

quantity, howsoever small the

quantity may be, or

(b) Is under the influence of a drug

to such an extent as to be

incapable of exercising proper

control over the vehicle,

Shall be punishable for the first

offence with imprisonment for a term

which may extend to six months, or

with fine which may extend to two

thousand rupees or with both; and

for a second or subsequent offence,

if committed within three years of

the commission of the previous

similar offence, with imprisonment

for a term which may extend to two

years, or with fine which may extend

to three thousand rupees, or with

both.

In fact, prior to present Section185 of the

Motor Vehicles Act being substituted by Act 54

of 1994, Section 185 was similarly worded as

Section 117 of the Motor Vehicles act 1939, as

substituted in 1977.

43. It will be noticed immediately that the

decision of this Court rendered in Bachubhai

Hassanalli Karyani v. State of Maharashtra6

relied upon by the respondent arose under

Section 117 of Motor Vehicles Act, 1939 which

6 (1971) 3 SCC 930

required not merely that the person was under

the influence of drink but it was to be to such

an extent as to render him incapable of

exercising proper control over the vehicle.

Section 117 after its substitution in 1977, on

the other hand, carved out a criminal offence

insofar as alcohol is concerned, on the basis

that the driver had in his blood, alcohol in any

quantity, however small the quantity was. This

was similar in fact to the clauses in the

contracts of insurance obtaining in the United

States which we have referred to (supra). No

doubt, this became associated with the presence

of the smallest quantity of alcohol in the

blood. As far as Section 185 of the Motor

Vehicles Act, 1988 is concerned, the offence is

committed if there is a specified amount of

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

In this regard, we may profitably refer to the

law in the United Kingdom corresponding to the

Motor Vehicles Act and also an early decision

of the Bombay High Court interpreting a statute

dealing with the issue.

THE U.K. ROAD TRANSPORT TRAFFIC ACT, 1930

AND LATER ENACTMENTS

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

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

or attempt to drive or to be in charge of a

motor vehicle while under the influence of drink

or drug ‘to such an extent as to be incapable

of having proper control of the vehicle’.

Section 11 provided for punishment for dangerous

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

was convicted under Section 15 and acquitted

under Section 11. The Court held as follows:

“… We have considered that

finding with great care, but, upon

the whole, and not without

hesitation, we have come to the

conclusion that. notwithstanding

the summing up, it is ambiguous.

The jury ought to have been asked

whether they meant-by their last

answer that the appellant was under

the influence of drink to such an

extent as to be incapable of having

proper control of the vehicle, and

we cannot reject the view that, if

that question had been pointedly

put, they might have answered in

the negative or said that they were

not agreed on that point. …”

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

other words, being under the influence of

alcohol is different from being under the

influence of alcohol to the extent as declared

in such a provision. However statutory changes

that occurred make it irrelevant.

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

decision of the High Court of Bombay reported

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

Motor Vehicles Rules provided that “no person

shall, when intoxicated, drive a motor vehicle

7 AIR 1928 BOM 231

in a public place.” The contention raised by the

accused was that his conviction was improper as

the charge actually was merely one of being

under the influence of liquor. There is a

distinction between being under the influence

of liquor and being intoxicated, it was

contended. The Court held, inter alia, as

follows:

“4. In our opinion the word

“intoxicated” cannot be read in

this very extreme sense. It in fact

corresponds with the word “drunk”

that is generally used in similar

English enactments. No doubt,

there has been a good deal of

controversy in England as to when

a person can properly be said to

be drunk, and a distinction has

been made between his being drunk

and his being merely under the

influence of liquor. I do not,

however, think it is necessary for

us in this particular case to go

into any controversy of that kind.

The fact remains that the words

“under the influence of liquor” do

sufficiently represent the meaning

of the word “intoxicated,” except

that it may be said that the latter

word expresses a degree of

influence which is not

sufficiently expressed in the

words “under the influence of

liquor.” But this question of

degree is one that is at any rate

involved in the words; and if the

accused intended to assert that he

was not under the influence of

liquor to a degree that really

mattered in regard to his

exercising due care and judgment

in driving the car, then that

should have been stated by the

accused clearly, so as to raise an

issue on the point. On the contrary

he pleaded guilty; and in view of

the fact that his act in suddenly

swerving was one of extreme

rashness, as admitted by Mr.

Bhandarkar himself, the

circumstances clearly point to the

accused's understanding that he

was pleading guilty to a degree of

intoxication which would bring the

case under this rale. There has,

in our opinion, been no

misapprehension of the accused, so

as to justify our holding that he

did not plead guilty to a breach

of this particular rule.”

(Emphasis supplied)

47. The Road Traffic Act, 1960 repealed the Act

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

driving by a person who was unfit to drive

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

follows:

“6(6) In this section “unfit to

drive through drink or drugs” means

under the influence of drink or a

drug to such an extent as to be

incapable of having proper control

of a motor vehicle.”

By the Road Traffic Act, 1962, however

unfitness was linked with being “impaired”.

48. For the first time, objective scientific

testing became the basis for the offence of

driving while having drunk alcohol in 1967 under

the Road Safety Act, 1967. Section 1 penalised

driving on a road or other public place having

consumed alcohol in such quantity that its

proportion in the blood, as ascertained through

the blood test, exceeded the prescribed limit,

which was provided as 80 mg. of alcohol in 100

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

Safety Act, 1988 came into force.

49. The provisions of relevance in the latest

enactment, that is the Act of 1988 are Sections

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

from 01.07.1992, reads as follows:

“3A. Causing death by careless

driving when under influence of

drink or drugs.

(1) If a person causes the death

of another person by driving a

mechanically propelled vehicle on

a road or other public place

without due care and attention, or

without reasonable consideration

for other persons using the road

or place, and—

a) he is, at the time when he is

driving, unfit to drive through

drink or drugs, or

b) he has consumed so much alcohol

that the proportion of it in

his breath, blood or urine at

that time exceeds the

prescribed limit, or

ba) he has in his body a specified

controlled drug and the

proportion of it in his blood

or urine at that time exceeds

the specified limit for that

drug, or

c) he is, within 18 hours after

that time, required to provide

a specimen in pursuance of

section 7 of this Act, but

without reasonable excuse

fails to provide it, or

d) he is required by a constable

to give his permission for a

laboratory test of a specimen

of blood taken from him under

section 7A of this Act, but

without reasonable excuse

fails to do so,

he is guilty of an offence.

(2) For the purposes of this

section a person shall be taken to

be unfit to drive at any time when

his ability to drive properly is

impaired.

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

(d)above shall not apply in

relation to a person driving a

mechanically propelled vehicle

other than a motor vehicle.”

(Emphasis supplied)

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

“4. Driving, or being in charge,

when under influence of drink or

drugs.

(1) A person who, when driving or

attempting to drive a

mechanically propelled vehicle

on a road or other public place,

is unfit to drive through drink

or drugs is guilty of an

offence.

xxx xxx xxx

(5) For the purposes of this

section, a person shall be

taken to be unfit to drive if

his ability to drive properly

is for the time being

impaired.”

(Emphasis supplied)

Section 5 reads as follows:

“5. Driving or being in charge

of a motor vehicle with alcohol

concentration above prescribed

limit.

(1) If a person –

(a) Drives or attempts to

drive a motor vehicle

on a road or other

public place, or

(b) Is in charge of a motor

vehicle on a road or

other public place,

After consuming so much

alcohol that the proportion

of it in his breath, blood

or urine exceeds the

prescribed limit he is

guilty of an offence.

(2) It is a defence for a

person charged with an

offence under subsection

(1)(b) above to prove that

at the time he is alleged

to have committed the

offence the circumstances

were such that there was no

likelihood of his driving

the vehicle whilst the

proportion of alcohol in

his breath, blood or urine

remained likely to exceed

the prescribed limit.

(3) The court may, in

determining whether there

was such a likelihood as is

mentioned in subsection (2)

above, disregard any injury

to him and any damage to

the vehicle.”

(Emphasis supplied)

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

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

Traffic Act, 1988, and comparing it with Section

185 of the MV Act, 1988, yields the following

results:

The provision, in the British Act, which

is comparable to Section 185 of the Indian

Act, is Section 5. This is for the reason

that Section 5 also penalises driving or

attempting to driving a motor vehicle on a

road or other public place, after consuming

alcohol and when the proportion in his breath

is in excess of the prescribed limit. There

is no provision in the Motor Vehicles Act,

1988 corresponding to Section 4 of the Road

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

apart from driving or attempting to drive a

vehicle, having consumed alcohol, with a

blood alcohol level in excess of the

prescribed percentage, being an offence, it

is also an offence to drive or attempt to

drive a vehicle on a road or a public place,

if the person is unfit to drive due to drink

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

Act, 1988, makes it clear that a person shall

be taken as unfit, if his ability to drive

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

in fact, provides for a preliminary

impairment test, which primarily consists of

tasks to be performed by the person driving.

What we are pointing out is, a person under

the law in England, could, if by consumption

of alcoholic drink, be impaired, in his

ability to drive properly, then,

irrespective of whether he has a blood

alcohol level in excess of or below the

prescribed level, he would commit an

offence. The same principle animates Section

3A, which speaks about an offence upon death

following an accident, when he was driving

the vehicle, while being unfit to drive

through consumption of alcoholic drink. Here

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

unfitness to drive, on account of

consumption of liquor, is predicated on the

driver’s ability to drive properly, being

impaired. This is also to be determined by

the impairment test, apparently held under

Section 6B. We would find that a person can

be said to be under the influence of alcohol,

if his faculties are so disturbed that his

driving abilities, is impaired. This concept

of law is essentially following up on what

has been laid down by the court in in Mair

(Administratrix) supra. Cases can arise

where there is a clause of the nature we are

dealing with, viz., excluding the liability

of the insurer, when the driver is under the

influence of alcohol, in vastly different

circumstances. A 21-year-old, who is

otherwise licenced to drive a vehicle, may

experiment with drinking in the company of

his friends. He may consume a small quantity

of liquor. This may not satisfy the

requirement of alcohol present in the blood

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

unquestionable that the impact of the drink

on the person, may be demonstrated to be that

he is unable to drive in the manner in which

he would have driven, had he not taken that

small drink. In such a case, to insist that

he cannot be under the influence of alcohol,

unless, he has in his blood, the requisite

percentage of alcohol under Section 185 of

the MV Act, would be to make a new bargain

for the parties and also to rewrite the

contract. To be under the influence of

alcohol, in other words, must be understood

as, a question going to the facts and a

matter to be decided with reference to the

impact of consumption of alcohol on the

particular driver. Yet another example will

throw light on a seemingly vexed issue. A

person, who drinks on an empty stomach, would

necessarily have a faster rate of the alcohol

making its presence in the blood, and

consequently, in the brain. A person, on the

other hand, who has had food along with the

alcohol, may manifest the effect of alcohol

later. The effects of drinking alcohol, in

terms of external signs, have been described

by Modi in his work - Modi’s Medical

Jurisprudence and Toxicology. They are as

follows:

“In order to ascertain whether a

particular individual is drunk or not, a

medical practitioner should bear the

following points in mind:

1. The quantity taken is no guide.

2. An aggressive odour of alcohol in

the breath, loss of clearness of

intellect and control of himself,

an unsteady gait, a vacant look,

dry and sticky lips, congested

eyes, sluggish and dilated

pupils, increased pulse rate, an

unsteady and thick voice, talking

at random and want of perception

of the passage of time, are the

usual signs of drunkenness.

However, the smell of an

alcoholic drink can persist in

the breath for many hours after

the alcohol has been excreted

from the body, as it is due to

non-alcoholic constituents

(congeners) in the drink.”

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

test, circumstances, associated with effects of

consumption of alcohol, are proved, it may

certainly go to show that the person who drove

the vehicle, had come under the influence of

alcohol. The manner, in which the vehicle was

driven, may again, if it unerringly points to

the person having been under the influence of

alcohol, be reckoned. Evidence, if forthcoming,

of an unsteady gait, smell of alcohol, the eyes

being congested, apart from, of course, actual

consumption of alcohol, either before the

commencement of the driving or even during the

process of driving, along with the manner in

which the accident took place, may point to the

driver being under the influence of alcohol.

It would be a finding based on the effect of the

pleadings and the evidence.

52. A conspectus of the aforesaid provisions

would lead us to the following conclusions:

Section 185 of the Motor Vehicles Act

creates a criminal offence. The short

title of Section 185 undoubtedly

proclaims that it purports to deal with

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.

53. It is clear that Section 185 deals

with driving or attempting driving of a motor

vehicle a person with alcohol in excess of 30

mg per 100 ml in blood which is detected in a

test of breath analyser. Being a criminal

offence, it is indisputable that the

ingredients of the offence must be

established as contemplated by law which

means that the case must be proved beyond

reasonable doubt and evidence must clearly

indicate the level of alcohol in excess of 30

mg in 100 ml blood and what is more such

presence must be borne out by a test by a

breath analyser. We may also notice that with

effect from 01.09.2019, the following words

have been added to Section 185, that is “or

in any other test including laboratory test”.

54. It is to be noticed that this Court had

occasion to deal with the question whether

the prosecution under section 185 can succeed

in the absence of a test by a breath analyser.

In the decision reported in State through PS

Lodhi Colony v. Sanjeev Nanda8

, the accused

8 2012 (8) SCC 450

escaped from the scene of occurrence. He could

not, therefore, be subjected to breath test

analyser instantaneously or to provide a

specimen of his breath for a breath test or a

specimen for his blood for a laboratory test.

Dealing with these provisions, K.S.

Radhakrishnan, J., in his concurring judgment

has held as follows:

“82. The accused, in this case,

escaped from the scene of

occurrence, therefore, he could

not be subjected to breath analyser

test instantaneously, or to take or

provide specimen of his breath for

a breath test or a specimen of his

blood for a laboratory test. The

cumulative effect of the

provisions, referred to above,

would indicate that the breath

analyser test has a different

purpose and object. The language of

the above sections would indicate

that the said test is required to

be carried out only when the person

is driving or attempting to drive

the vehicle. The expressions

“while driving” and “attempting to

drive” in the above sections have

a meaning “in praesenti”. In such

situations, the presence of

alcohol in the blood has to be

determined instantly so that the

offender may be prosecuted for

drunken driving. A breath analyser

test is applied in such situations

so that the alcohol content in the

blood can be detected. The breath

analyser test could not have been

applied in the case on hand since

the accused had escaped from the

scene of the accident and there was

no question of subjecting him to a

breath analyser test

instantaneously. All the same, the

first accused was taken to AIIMS

Hospital at 12.29 p.m. on 10-1-1999

when his blood sample was taken by

Dr Madhulika Sharma, Senior

Scientific Officer (PW 16). While

testing the alcohol content in the

blood, she noticed the presence of

0.115% weight/volume ethyl

alcohol. The report exhibited as

PW-16/A was duly proved by the

doctor. Over and above, in her

cross-examination she had

explained that 0.115% would be

equivalent to 115 mg per 100 ml of

blood and deposed that as per

traffic rules, if the person is

under the influence of liquor and

alcohol content in blood exceeds 30

mg per 100 ml of blood, the person

is said to have committed the

offence of drunken driving.

83. Further, the accused was also

examined in the morning of 10-1-

1999 by Dr T. Milo, PW 10, Senior

Resident, Department of Forensic

Medicine, AIIMS, New Delhi who

reported as follows:

“On examination, he was conscious,

oriented, alert and cooperative.

Eyes were congested, pupils were

bilaterally dilated. The speech

was coherent and gait unsteady.

Smell of alcohol was present.”

84. Evidence of the experts

clearly indicates the presence of

alcohol in blood of the accused

beyond the permissible limit, that

was the finding recorded by the

courts below. The judgments

referred to by the counsel that if

a particular procedure has been

prescribed under Sections 185 and

203, then that procedure has to be

followed, has no application to the

facts of this case. The judgments

rendered by the House of Lords were

related to the provision of the

Road Safety Act, 1967, the Road

Traffic Act, 1972, etc. in UK and

are not applicable to the facts of

this case.”

55. No doubt in the case noted above, the

presence of the alcohol content was much more

(that is 0.115% than the permissible limit).

100

It is also the case where the accident caused

the deaths of six persons. The above view,

no doubt, turned on the facts which rendered

the taking of the test by breath analyser

impossible. It was also found that the first

accused had been taken to the All India

Institute of Medical Science (AIIMS) at

12.29 p.m. on 10.01.1999 and the blood samples

revealed alcohol far in excess of the limit

indicated in Section 185. Also, after the

judgment, with effect from 01.09.2019, a

laboratory test or any other test aids the

prosecution to establish a case under section

185.

56. We have set out the provisions of Sections

of 185, 203 and 204 to deal with the argument

of the parties based on the impact of these

provisions, upon the operation of exclusion

clause of the Contract of Insurance in a case,

101

which does not involve any third party. The

Contract of Insurance, in the present case,

is a comprehensive Contract of Insurance

dealing with own damage and, no doubt, also

third party. What is, however, involved in

this case, is the liability alleged with the

Insurer under Clause (A), which deals with

‘own damage’.

57. In regard to a claim involved in this case

as aforesaid, we are of the view that there

is nothing in law which would otherwise

disentitle the appellant from setting up the

case that the exclusion clause would

disentitle the respondent from succeeding.

As to whether it is a case of driving of the

vehicle under the influence of the alcohol is

different matter, altogether. The requirement

of Section 185 is in the context of a criminal

offence. While it may be true that if there

102

is a conviction under Section 185, it would,

undoubtedly, fortify the Insurer in

successfully invoking Exclusion Clause 2(c),

is the reverse also true? We expatiate. If

prosecution has not filed a case under Section

185, that would not mean that a competent

Forum in an action alleging deficiency of

service, under the Consumer Protection Act,

is disabled from finding that the vehicle was

being driven by the person under the influence

of the alcohol. The presence of alcohol in

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

an indispensable requirement to enable an

Insurer to successfully invoke the clause.

What is required to be proved is driving by a

person under the influence of the alcohol.

Drunken driving, a criminal offence, under

Section 185 along with its objective criteria

of the alcohol-blood level, is not the only

103

way to prove that the person was under the

influence of alcohol. If the Breath Analyser

or any other test is not performed for any

reason, the Insurer cannot be barred from

proving his case otherwise.

58. What we are dealing in this case is,

construction of words in a contract between

the parties. There is no case for the

respondent that the terms of the contract to

exclude the liability of the appellant, are

in any way illegal. We can without difficulty

imagine a circumstance in which the

proposition that should the Insurer fail to

establish a case in terms of Section 185 BAL

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

be the proper approach to the issue. It is

not difficult to contemplate that the

accident may take place with the driver being

under the influence of alcohol and neither

104

the Breath Test nor the laboratory test is

done. A driver after the accident, may run

away. A test may never be performed. However,

there may be evidence available which may

indicate that the vehicle in question was

being driven at the time of the accident by a

person under the influence of alcohol. It

cannot then be said that merely because there

is no test performed, the Insurer would be

deprived of its right to establish a case

which is well within its rights under the

contract.

A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL

59. In Modi’s Medical Jurisprudence and

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

stated:

“Pure ethyl alcohol is a transparent,

colourless, mobile and volatile

liquid, having a characteristic

spirituous odour and a burning taste.

105

Ethyl alcohol exists in alcoholic

beverages in varying proportions.

Absolute alcohol (alcohol dehydratum)

contains 99.95 percent of alcohol.

Alcohol acts differently on different

individuals and also on the same

individual at different times. The

action depends mostly on the

environment and temperature of the

individuals and upon the degree of

dilution of the alcohol consumed. The

habitual drinker usually shows fewer

effects from the same dose of alcohol.

Alcohol acts differently on different

individuals and also on the same

individual at different times. The

action depends mostly on the

environment and temperature of the

individuals and upon the degree of

dilution of the alcohol consumed. The

habitual drinker usually shows fewer

effects from the same dose of alcohol.

Widmark’s Formula.—The basis for

calculating the approximate quantity

of alcohol in the body, after

equilibrium between the blood and

tissues has been reached, is by Widmark’s formula:

a = cpr

(i) a represents the amount

of alcohol expressed in

grams.

106

(ii) c, the amount of alcohol in

grams per kg estimated in the

blood.

(iii) p is the weight of the person

in kg, and

(iv) r is the value obtained by

dividing the average

concentration of alcohol in

the body by the concentration

of alcohol in the blood. This

is constant and the average is

+ 0.085 for men and + 0.055 for

women.

For a male with a body weight of 69.85

kg and assuming average alcohol

content, having 45 mg in the blood or

60 mg/100 mL of alcohol in urine, the

minimum amount consumed must be 2

fluid oz of whisky (70 per cent proof

= 9.98 g/fluid oz) and with 55 mg in

blood or 73 mg/100 mL in urine, the

minimum amount of beer consumed must

be 1½ pints (ordinary beer = 14.7

g/pint).”

“For a male with a body weight of 69.85

kg and assuming average alcohol

content, having 45 mg in the blood or

60 mg/100 mL of alcohol in urine, the

minimum amount consumed must be 2

fluid oz of whisky (70 per cent proof

= 9.98 g/fluid oz) and with 55 mg in

blood or 73 mg/100 mL in urine, the

minimum amount of beer consumed must

be 1½ pints (ordinary beer = 14.7

g/pint).”

107

[We may profitably remind

ourselves in Kennedy v. Smith (See

paragraph 25 of the judgment), it was

a case of one and a half pints of lager

(a kind of beer) and it would have

meant today 55 mg/100 ml well over the

30 mg/100 ml limit in India.]

“… Taken orally, alcohol is

quickly absorbed as it is, by simple

diffusion mostly from the small

intestine, less than 20 per cent from

the stomach and circulates in the

blood. The absorption of alcohol is

facilitated if it is swallowed rapidly

in a concentrated solution on an empty

stomach, and it is delayed if a weaker

solution is slowly drunk while the

stomach is full of food; particularly,

if it is fatty or contains much

proteins. Seventeen to twenty per cent

of ingested alcohol may not be

absorbed in the blood stream if there

is food in the stomach. The rate of

absorption of 6 per cent alcohol is

4.7mL/minute. Even drinks mixed with

carbonated soda increase absorption.

Milk is a potent factor in delaying

the absorption of alcohol. Alcohol

reaches its maximum concentration in

the blood within approximately 30

108

minutes to about 2 hours after it is

taken and thus concentration is

ordinarily proportional to the amount

consumed. While the concentration of

alcohol that is excreted in the urine

reaches its maximum level in about 20-

25 minutes later than in the blood,

the range of the fall is parallel to

the fall in the level of alcohol in

the blood. The concentration of

alcohol in the urine is usually 20-30

per cent higher than that in the blood

and is fairly constant. The

distribution of alcohol after

absorption is throughout the fluids

and tissues of the body in proportion

to their water content and is the least

in fat and bones.

The peculiar feature of metabolism

of alcohol is that a fix quantity of

alcohol is metabolised in unit time.

This is called the zero order kinetic

of metabolism (most of the drugs are

metabolised by first order kinetics

where a certain proportion of the drug

is metabolised and the absolute

quantity metabolised quantity will go

on decreasing as the blood level

decreases). About 90 per cent of the

consumed alcohol is metabolised in the

body, chiefly by oxidation in the

liver, which contains the enzyme

alcohol dehydrogenase @ about 9-15

mL/hour which is equal to about half a

peg of whisky. The result is lowering

of alcohol in blood by about 12-15

mg/hour.

109

xxx xxx xxx

Alcohol from the blood passes into

the alveolar air through the lungs and

during the active absorption stage, a

breath analysis will give reliable

information. …”

(Emphasis supplied)

60. The learned Author discusses about ‘acute

alcohol intoxication’. He also talks about

chronic poisoning of habitual drinker. We may,

at once, observe that under the Exclusion

Clause, the Court need not be detained by either

condition. In other words, it is not necessary

for the Insurer to establish that there was acute

alcohol intoxication and equally, it need not be

shown that the vehicle was driven by a person

who was a chronic alcoholic. All that is required

is to show that at the time of driving the

vehicle, resulting in the accident, the driver

was under the influence of alcohol. In this

110

regard, we may notice the following observations

of Modi:

“In order to ascertain whether a

particular individual is drunk of not,

a medical practitioner should bear the

following points in mind:

1. The quantity taken is no guide.

2. An aggressive odour of alcohol in

the breath, loss of clearness of

intellect and control of himself,

an unsteady gait, a vacant look,

dry and sticky lips, congested

eyes, sluggish and dilated pupils,

increased pulse rate, an unsteady

and thick voice, talking at random

and want of perception of the

passage of time, are the usual

signs of drunkenness. However, the

smell of an alcohol drink can

persist in the breath for many

hours after the alcohol has been

excreted from the body, as it is

due to non-alcoholic constituents

(congeners) in the drink.”

(Emphasis supplied)

61. We notice that Blood Alcohol Concentration

or BAC is, thus, the concentration of alcohol in

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

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

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

111

This corresponds to 0.03 percentage of alcohol

in the blood, beyond which, it is an offence

under Section 185 to drive or attempt to drive

as declared. As noticed, BAC is correlated to a

number of variables. It is affected by gender

and body weight. The male has more water content

than a female. On same quantity drunk, the latter

builds up greater BAC than the former. BAC is

also affected clearly on whether the person

drank on an empty stomach or not. The liver

metabolises ordinarily a standard drink at the

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

which the drinks are taken, impacts the BAC

level. Even the genes play their part.

THREE REPORTS

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

Report to the Congress on ‘Driving under the

influence and relating to alcohol limits’ given

112

by the Department of Transportation, National

Highway Safety Administration, in October, 1992,

states as follows, inter alia:

“EXECUTIVE SUMMARY

Current law defines the danger of

driving under the influence of alcohol

in two ways. First, it is illegal in

all states to drive while impaired by

alcohol at any BAC level. For example,

any person who is observed driving in

an unsafe manner and found to have been

drinking, can be charged for driving

under the influence of alcohol

regardless of actual BAC.

In addition, there are basically

two types of laws for the driving

public that specify BAC limits.

"Presumptive"2 laws state that if an

individual is driving at or above a

given BAC, it is presumed that the

driver is impaired or intoxicated, but

the presumption is open to rebuttal in

court. "Per se" laws make it illegal

by (or in) the act itself to drive if

one's BAC is at or over 'a specified

BAC. The per se BAC level is 0.10 in

41 states and the District of Columbia

and is 0.08 in 5 states. Four states

have only a presumptive limit of 0.10.

The laws in some states presume that a

person is not impaired if their BAC is

0.05 or below.

113

CHAPTER II. ALCOHOL. EFFECTS

The first report to Congress

reviewed the scientific literature on

the influence of BAC on driver

performance and the relationship

between BAC level and crashes. The

evidence from these two areas was

integrated to draw a number of

conclusions about alcohol effects and

BAC levels, especially those below

0.10. Among the major conclusions

were:

• There is no threshold for alcohol

impairment, i.e, there is no lower

level at which impairment starts,

or below which no impairment is

found.

• The greater the amount of alcohol,

the greater the degree of

impairment on a given task, the

more functions (or different kinds

of tasks) that are impaired, and

the greater the risk of a crash.”

(Emphasis supplied)

63. Therefore, the presumptive laws provide for

presumptive limits for alcohol consumption,

contravening which, would result in the

presumption subject to it being rebuttable, that

114

a person was driving under the influence of

alcohol. As of now, in the United States of

America, the presumptive limit, which was

initially reduced from 0.15 to 0.10, has been

further reduced in almost all the States to

0.08. In fact, there are lower BAC (Blood

Alcohol Concentration) levels or zero tolerance

levels, for under aged drivers.

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

Department of Transportation in July, 1998,

dealing with ‘the effects of low doses of

alcohol on driving related skills, a review of

the evidence’, the study used 177 citations.

Driving is a multitask skill. Driving involves

performance of various tasks. It includes

psycho-motor skills, perception, visual

function, information processing, concentrated

attention, divided attention, reaction and

tracking. The Report finds as follows: “it seems

115

there is no lower threshold level, below which

impairment does not exist for alcohol”: The

conclusion and Recommendations read as follows:

“CONCLUSIONS AND RECOMMENDATIONS

The aim of the present review was to

consider alcohol effects on aspects of

skilled performance related to

driving, with a view to assessing the

extent of impairment caused by low

doses of alcohol. The evidence

reviewed here indicates that alcohol

does not uniformly impair all aspects

of performance. Areas such as

oculomotor function and divided

attention performance demonstrate that

impairment can occur at BACs as low as

0.02%. It is clear, moreover, that

BACs of 0.05% or more impair nearly

all of the important components of

driver performance. In assessing the

minimum BACs required to produce

performance decrements relevant to

driving, it can be noted that for most

of the performance areas discussed

here impairment has been reported at

BACs between 0.01 and 0.02%.

Unfortunately, relatively few studies

have investigated the effects of BACs

below 0.04%, so that information about

the behavioral impairment at BACs

below 0.04% is less available than at

0.05% and above. There is sufficient

evidence, however, to demonstrate that

116

BACs of 0.05% and more produce

impairment of the major components of

driver performance: reaction time,

tracking, divided attention

performance, information processing,

oculomotor functions, perception, and

other aspects of psychomotor

performance. The few studies on

alcohol-aggression effects are

consistent with frequent reports by

police officers of hostile behaviors

exhibited by offenders. The present

review has worked from the model

provided by Moskowitz (1973a,b), which

suggested that driving is a time

sharing task, the principal components

of which are tracking and visual

search and recognition. It is clear

that BACs of 0.05% or more impair both

of these individual skill components

and, at lower levels, also impair the

combination of these skills in a

divided attention situation. Higher

BAC levels (for example, those over

0.10%) also show consistent impairment

effects. Evidence from studies of

alcohol on actual driving tasks

demonstrates that driver performance

is similarly affected. Thus, the

weight of existing empirical evidence

is considered sufficient to

scientifically justify the setting of

legal BAC limits at 0.05% or lower.

Research on BACs below 0.05% should be

encouraged. As noted, there is

extensive evidence of performance

impairments at these lower BACs, but

further studies would permit better

117

definition of the BAC levels at which

impairment first appears for different

behavioral areas. …”

(Emphasis supplied)

65. We deem it appropriate also to refer to

“Report of the Review of Drink and Drug Driving

Law” which was submitted in the year 2010 in the

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

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

with a blood-alcohol concentration in excess of

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

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

to enquire and submit a Report as to whether

there was need to reduce the limit. The Report,

inter alia, states as follows:

“Research findings

3.26. The Centre for Public Health

Excellence of the National Institute

of Health and Clinical Excellence

(NICE) has recently conducted an

extensive independent review of the

literature which was commissioned by

118

the Department for Transport.34 The

review aimed to assess how effective

the blood alcohol concentration (BAC)

laws are at reducing road traffic

injuries and deaths. It also assessed

the potential impact of lowering the

BAC limit from 80 mg/100 ml to 50

mg/100 ml.

Drink driving and the risk of a road

traffic accident

3.29. NICE concluded that there is

strong evidence that someone’s ability

to drive is affected if they have any

alcohol in their blood. Studies

consistently demonstrate that the risk

of having an accident increases

exponentially as more alcohol is

consumed. Drivers with a BAC of

between 20 mg/100 ml and 50 mg/100 ml

have at least a three times greater

risk of dying in a vehicle crash than

those drivers who have no alcohol in

their blood. This risk increases to at

least six times with a BAC between 50

mg/100 ml and 80 mg/100 ml, and to 11

times with a BAC between 80 mg/100 ml

and 100 mg/100 ml.

3.30. Younger drivers are

particularly at risk of crashing

whenever they have consumed alcohol –

whatever their BAC level – because

they are less experienced drivers, are

immature and have a lower tolerance to

the effects of alcohol than older

119

people. Younger drivers may also be

predisposed to risk-taking –

regardless of whether or not they have

drunk alcohol.

Breath testing devices – Nonevidential, fixed evidential and

portable evidential

3.69. The first practical device for

the analysis of alcohol in human

breath was developed in the USA in the

mid-1950s. The Breathalyzer®

instrument gained wide acceptance and

was used in traffic law enforcement by

police officers in the USA, Canada and

Australia over many years.93 The

Breathalyzer® provided a nonintrusive way to determine the

driver’s BAC although European nations

showed no interest in this method for

forensic purposes and instead

determined alcohol in blood as

evidence for prosecution of drunken

drivers. Interest in Europe in

evidential breath-alcohol testing

arose in the 1980s when more compact,

automated and reliable instruments

became available.

In Chapter 4: Drink driving –

Conclusions and recommendations,

following conclusions have been noted:

Lowering the current blood alcohol

limit from 80 mg/100 ml to 20 mg/100

120

4.6. As paragraph 1.23 sets out, a

blood alcohol concentration (BAC)

limit of 20 mg/100 ml is effectively

a zero tolerance level. The NICE

Report provides clear evidence that a

person’s ability to drive is affected

after consuming any amount of alcohol.

A driver who has a BAC of between 20

mg/100 ml and 50 mg/100 ml is at least

3 times more likely to die in a road

traffic accident than a person who has

no alcohol in their body.

4.7. In consideration of this

evidence, there is clearly merit and

sense in a general BAC limit,

applicable to all, of 20 mg/100 ml. It

is also recognised that a limit of 20

mg/100 ml is consistent with the

absolutely correct and necessary ‘do

not drink and drive message’. Indeed,

a number of European countries

including Sweden, Poland and Belgium

have adopted a 20 mg/100 ml, or close

to 20 mg/100 ml, BAC limit. The Review

also noted with interest the vote in

support of a ‘zero tolerance’ drink

drive limit at the Royal College of

Nursing’s annual conference in April

2010.”

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

bracket for younger driver appears to be 17-24

years going by para 3.10 of the report. The

121

committee recommended for a reduction of the BAC

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

TWO ARTICLES

EFFECT OF ALCOHOL ON BRAIN DEVELOPMENT BY

FARHIN PATEL AND PALASH MANDAL

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

absorbed in the stomach and almost 80% is

absorbed in the small intestine. Alcohol

absorption is related to the two main factors:

a. Concentration of alcohol and

b. Heavy meal consumption before drinking.

An empty stomach will fasten the alcohol

absorption.”

68. “Absorbed alcohol enters the blood stream

and is carried all through the body. Upon

reaching the body, simultaneously the body works

to eliminate it. The 10% of alcohol is removed

by the kidneys (urine) and lungs (breath). Left-

122

out alcohol is oxidized by the liver, converting

alcohol into acetaldehyde first and then further

converted to acetic acid.”

HOW DOES ALCOHOL ACT AT THE NEUROLOGICAL

LEVEL?

69. “Brain chemistry is affected by alcohol

through alteration of neurotransmitters.

Neurotransmitters are chemical messengers that

send out the signals all through the body and

control thought processes, behaviour and

sensation processes. Neurotransmitters are

either excitatory (excite brain electrical

motion) or inhibitory (decrease brain electrical

motion). Alcohol increases the effects of the

inhibitory neurotransmitter GABA in the brain.

GABA causes the lethargic movements and garbled

speech that often occur in alcoholics. At the

same time, alcohol inhibits the excitatory

neurotransmitter glutamate, which results in a

123

suppression of a similar type of physiological

slowdown. In addition, alcohol also increases

the amount of chemical dopamine in the brain

centre, which creates the feeling of pleasure

after drinking alcohol. Just after a few drinks,

the physical effects of alcohol become

perceptible. The level of BAC rises when the

body takes up alcohol faster than it can release

it.”

70. In an Article titled “Police officers’

detection of breath odors from alcohol

ingestion” by Herbert Moskowitz, Marcelline

Burns and Susan Ferguson, we note the following:

“Usually the strength of the odor is

categorized as either slight, moderate

or strong. Despite the frequent

reliance on this clue in officers’

investigation of drivers, little

objective evidence is available on the

probability of successfully detecting,

identifying or measuring alcohol

odors.

A computer literature search

supplemented by examining references

124

in various publications elicited only

two studies examining the

detectability of breath alcohol odor.

The first study was found in a

monograph published by Widmark (1932)

(German Edition 1932, English

Transaltion, 1981). Widmark was a

professor at the University of Lund,

Sweden and presented data obtained

from behavioral testing of 562 drivers

arrested for possible driving under

the influence of alcohol. The

behavioral testing occurred in police

stations throughout Sweden, and were

performed by more than 150 physicians.

The seven behavioral tests included

the odor of alcohol on the breath, the

Romberg Test of body sway, walking a

straight line and turning, finger to

finger test, picking up small objects

and slurred speech. Each of these

items in the behavioural battery was

administered to all subjects. Widmark

noted that the examination occurred

sometime after arrest at the police

station and therefore the breath odor

would have been during the post

absorption stage. No subject whose

blood alcohol concentration (BAC) was

0.06% of below had an alcohol breath

odor detected by physicians. Between

0.061 and 0.08% BAC, 33% of the drivers

were detected as having an odor;

between 0.081 and 0.10% BAC, 63% of

the drivers were detected; from 0.101

to 0.181% BAC, detections averaged

81%; between 0.181% and 0.260% BAC,

detections averaged 92%; and it was

125

only above 0.261% BAC that an

alcoholic odor was 100% detected on

the breath.

The other reference dealing with the

issue was a National Highway

Transportation Safety Administration,

Department of Traffic (NHTSA/ DOT)

pilot study examining cues utilized by

officers in detecting drivers under

the influence of alcohol (DUI)

(Compton, 1985). This was an

experimental study where 75 male

volunteer drivers were administered

ethanol beverages sufficient to

produce BACs of either zero or between

0.05 and 0.15%. Consumption was

spaced over a 1.5-2h period. After an

additional half hour wait, subjects

drove a car over a closed course to a

check point, where an officer/

observer conversed with the driver and

noted among other symptoms whether an

alcohol odor was presented. Other

symptoms examined were face flushing,

slurred speech, eye dilation,

demeanor, disheveled hair, poor

dexterity and clothes disheveled. The

officers then made a determination

whether the driver should be detained

for further investigation.

Drivers with a zero BAC were correctly

identified 93% of the time. There were

7% false-positives, i.e.

identification of a zero BAC driver as

having alcohol odor. Since officers

were aware that they were

participating in an alcohol study, a

126

7% false-positive rate is undoubtedly

higher than would occur in actual

traffic stops. An alcohol odor was

detected in drivers with BACs between

0.05 and 0.09% only 39% of the time

producing a false negative error rate

of 61%. Conversely, 61% of drivers

with BACs between 0.10 and 0.15% were

detected as emitting an alcohol odor

with 39% false negatives, i.e. drivers

above 0.10%, not detected.

Variability between officers in

detecting odor was quite large.”

(Emphasis supplied)

It is not clear whether the odor in the

breath was sought to be discerned without any

devise.

THE ARGUMENT BASED ON INVESTIGATOR’S

REPORT AND THE QUESTION RELATING TO

BURDEN OF PROOF

71. Shri Gopal Sankarnarayanan, learned Senior

Counsel for respondent contended that the

argument of the appellant that the Insurer was

saddled with the liability to prove violation of

the condition, which is impossible of

achievement, is without basis, in the facts of

127

this case. In this regard, he pointed out the

contents of the Investigator Report. He pointed

out that the Investigation Report would show

that the Investigator was very much present in

the early morning, and therefore, he had the

opportunity to interact with the driver of the

car, the Police Officers and the Doctors. The

Investigator could have also insisted on getting

the test done on the driver. However, despite

this opportunity being presented, he has not

availed of the same. Thus, it shows that there

is no merit in the appellant’s contention that

the person driving the vehicle was under the

influence of alcohol.

72. The relevant portion of the Investigation

Report reads as follows:

“Description of Investigation with

regard to accident of above said

vehicle:

With regard to above said Accident

Claim, I have been deputed by you to

128

investigate the above said claim. In

this regard, I went to accident spot

at India Gate on 22.12.07 and

inspected the car and thereafter went

to P.S. Tilak Marg and enquired about

said accident from S.I. Mukhtiyar

Singh, I.O. of this case.

Information Received from S.I.

Mukhtiar Singh:

S.I. Mukhitar Singh posted as P.S.

Tilak Marg informed me that he

received an accident call which was

entered in DDR register vide D.D.

entry no. 39 A on 22/12/07 in the

morning at 5:05 a.m. and thereafter

he alongwith the constable Vinod no.

2098/ND left from P.S. Tilak Marg for

the accident spot at India Gate and

while they reached at the spot they

saw a car no. DL1CJ-3577 has been

burning and the Addl SHO and fire

brigade were present at the spot. He

was being informed that the injured

were taken to RML Hospital, where is

received copy of MLC No. 62213/07 in

the name Ruchi Ram Jaipuria S/o C.K.

Jaipuria R/o 11.No. 8, Prithvi Raj

Road, New Delhi wherein the doctor

has mentioned "No Evidence of Fresh

injuries" for medical examination

and smell of Breath Alcohol (+) and

MLC No. 62214/C7 in the name of Aman

Bangia S/o Sh. S.K. Bangia r/o 42A,

Pkt C, Siddharth Extn. New Delhi — 14

was made by the doctor wherein doctor

has mentioned 'No Evidence of Fresh

Injuries "for medical examination

129

and smell of Breath Alcohol (+).

Thereafter he again reached at the

spot, where constable Anand Prakash

No. 1226 /ND posted at P.S. Tilak marg

gave his statement with regard to said

accident and on the basis of the

record of MLC's of injured Mr. Ruchi

Ram Jaipuria and Mr. Aman Bangia they

have lodged FIR No. 453/07 on

22/12/07 u/s 279/427 IPC as well as

u/s 185 of M.V. Act 1988. Copy of

said FIR is enclosed herewith and

same is annexed as Annexure "A".

My observations are as under:

1. As per the information received

from SI Mukhtiar Singh, and after

persuing the FIR No. 453/07 dated

22/12/07 of P.s. Tilak Marg and

MLC nos. 62213/07 of Mr. Aman

Bangia it has been confirmed that

the driver, Mr. Aman Bangal was

under influence of alcohol due to

which he lost the control and as a

result of which the said accident

has taken place.”

73. An addendum report dated 06.02.2008, is

found as follows:

“This is further to my

investigation report dated 27/01/08

relating and pertaining to the

investigation of the motor claim of

130

vehicle no. DL1CJ-3577 of M/S Pearl

Beverages under covemote no.

37669622.

As per FIR no. 453/07 dated

22/12/07 of P.S.Tilak Marg filed in the

instant case,.Section 185 of M.V.Act

1988 has also been imposed. As per

section 185 of M.V.Act 1988, driving

of a vehicle by a drunken driver is

an offence under such section and

which is punishable with

imprisonment. Thus the said vehicle

was being driven by it's driver Mr.

Aman Bangia, under the influence of

alcohol at the time of said accident..

As such' Prima Facie drunkep driving

by the driver Mr. Aman Bangia, has been

proved.

The insurer may treat the claim as

per the policy terms conditions.”

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

indicates that the Investigator was deputed by

the appellant. It also suggests that he went to

the accident spot on 22.12.2007. The reference

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

learned Counsel for the respondent as the time

131

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 SubInspector has informed the Investigator that he

received information at 5.05 am and, thereafter,

he, along with a Constable, had reached the spot

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

only part which makes up the Report, as such,

of the Investigator, is his observations. Thus,

the Investigator’s Report does not appear to

suggest that the Investigator had been to the

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

therefore, had the opportunity to interact with

the driver of the vehicle or ensure that the

test was conducted to show that the driver was

driving under the influence of alcohol. Thus,

we repel the contentions of the respondent.

132

75. On facts, having rejected the argument of

the respondent that the surveyor appointed by

the appellant was present at the time of the

accident or immediately after the accident, we

must look at the some of the terms of the

insurance policy. The contract provides that

the notice shall be given in writing to the

insurer immediately after the occurrence of any

accidental loss or damage in the event of any

claim. The insured has to give all information

and assistance as required by the company. It

is obviously true that the appellant was

intimated on 22.12.2007 which is evident from

the fact that investigator did go to the

accident spot on 22.12.2007 and inspected the

car. The exact time given is however not

mentioned in the report. The time at which he

went was also not got articulated through the

interrogatory issued by the respondent. It

133

would appear to be a case where the driver of

the car not having suffered any fresh injury

would not have been available in the hospital.

The police authorities obviously did not carry

out the blood test or the breath test. As to

what transpired in this regard the matter

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

that the informant officer’s priority was to

take the men out and to take them to the

hospital. However, we cannot resist recording

our disquiet at the conduct of the police

officer in not pursuing the matter in the form

of conducting a breath test or other tests and

pursuing the matter under Section 185 of the

Motor Vehicles Act or by filing of final report.

However we desist from saying anything more

having regard to the fact that 14 years have

gone by.

134

76. Coming to the question again on burden of

proof, insofar as the appellant–insured seeks

to establish exclusion of liability is

concerned, the burden of proof is upon it,

subject to what we hold.

77. In the context of question relating to

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

cannot but notice Section 106 of the Evidence

Act. Section 106 of the Evidence Act speaks of

the burden of proving facts which are in the

special knowledge of the person. Section 106

of the Evidence Act reads as follows:

“106 Burden of proving facts

specially within knowledge - when

any fact is specially is within

knowledge of any person the burden

of proving that fact is upon him.”

78. This Section enshrines the principle which

conduces to establishing facts when those facts

are especially within the knowledge of a party.

135

There can be no doubt this is a salutary

provision which applies to both civil and

criminal matters also. We do notice V. Kishan

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

“13. Before the District Forum, on

behalf of Respondent 1, it was argued

that the complainant sought to prove

Yashoda Hospital record without

following the provisions of Sections

61, 64, 74 and 75 of the Evidence Act,

1872. The Forum overruled the

objection, and in our view rightly,

that complaints before the Consumer

Fora are tried summarily and the

Evidence Act in terms does not apply.

This Court held in Malay Kumar

Ganguly v. Dr. Sukumar

Mukherjee [(2009) 9 SCC 221 : (2010) 2

SCC (Cri) 299] that provisions of the

Evidence Act are not applicable and

the Fora under the Act are to follow

the principles of natural justice (see

para 43, p. 252 of the report).”

79. Even if, the Section as such is not

applicable to the Consumer Protection Act, there

can be no reason why the principle cannot apply

to proceedings under the Consumer Protection

136

Act. We may notice a decision of this Court in

Shambu Nath Mehra v. State of Ajmer9. Paragraph

11 of the said judgment reads as under:

“11. This lays down the general rule

that in a criminal case the burden of

proof is on the prosecution and

Section 106 is certainly not intended

to relieve it of that duty. On the

contrary, it is designed to meet

certain exceptional cases in which it

would be impossible, or at any rate

disproportionately difficult, for the

prosecution to establish facts which

are “especially” within the knowledge

of the accused and which he could prove

without difficulty or inconvenience.

The word “especially” stresses that.

It means facts that are preeminently or exceptionally within his

knowledge. If the section were to be

interpreted otherwise, it would lead

to the very startling conclusion that

in a murder case the burden lies on

the accused to prove that he did not

commit the murder because who could

know better than he whether he did or

did not. It is evident that that cannot

be the intention and the Privy Council

has twice refused to construe this

section, as reproduced in certain

other Acts outside India, to mean that

the burden lies on an accused person

9 AIR 1956 SC 404

137

to show that he did not commit the

crime for which he is tried. These

cases are Attygalle v. Emperor [AIR

1936 PC 169]

and Seneviratne v. R. [(1936) 3 All ER

36, 49].”

(Emphasis supplied)

80. The same view has been taken in Murlidhar

and others v. State of Rajasthan10 .

81. If we apply the principle of Section 106 of

the Evidence Act, would it not produce the

following result?

The respondent set up the case that the

driver had not consumed any alcohol. In the

very next sentence, it is pleaded that

further assuming that he had consumed

alcohol, as he was not intoxicated the

exclusion clause is not attracted. When it

came to affidavit evidence, however, the

driver has not deposed that he had not

10 AIR 2005 SC 2345

138

consumed intoxicating liquor. He has only

stated that he was neither under the

influence of intoxicating liquor or drugs at

the time of the accident. In view of the

evidence that pointed to the driver smelling

of alcohol and the absence of any evidence

by even the driver that he has not consumed

alcohol and as even found by the National

Commission, it would appear to be clear that

the car was driven by the driver after having

consumed alcohol. In such a case as to what

was the nature of the alcohol and what was

the quantity of alcohol consumed, and where

he had consumed, it would certainly be facts

within the special knowledge of the person

who has consumed the alcohol. The driver has

not, for instance also, once we proceed on

the basis that he has consumed alcohol,

indicated when he has consumed the alcohol.

139

It would be “disproportionately difficult”

as laid down by this Court for the insurer

in the facts to have been proved as to

whether the driver has consumed liquor on an

empty stomach or he had food and then

consumed alcohol or what was the quantity

and quality of the drink (alcohol content)

which would have been circumstances relevant

to consider as to whether he drove the

vehicle under the influence of alcohol. The

driver has merely stated that he was not

under the influence of intoxicating liquor

and he was in his full senses.

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

interrogatories served on the driver by the

appellant. It must be noted here that this Court

has laid down that having regard to the nature

of the proceeding under the Consumer Protection

Act, the proceeding being summary, cross

140

examination be conducted ordinarily through the

modality of interrogatories. In Dr. J.J.

Merchant (Dr) v. Shrinath Chaturvedi11

“19. It is true that it is the

discretion of the Commission to

examine the experts if required in

an appropriate matter. It is equally

true that in cases where it is deemed

fit to examine experts, recording of

evidence before a Commission may

consume time. The Act specifically

empowers the Consumer Forums to

follow the procedure which may not

require more time or delay the

proceedings. The only caution

required is to follow the said

procedure strictly. Under the Act,

while trying a complaint, evidence

could be taken on affidavits [under

Section 13(4)(iii)]. It also

empowers such Forums to issue any

commission for examination of any

witness [under Section 13(4)(v)]. It

is also to be stated that Rule 4 in

Order 18 CPC is substituted

which inter alia provides that in

every case, the examination-in-chief

of a witness shall be on affidavit

and copies thereof shall be supplied

to the opposite party by the party

who calls him for evidence. It also

provides that witnesses could be

11 (2002) 6 SCC 635

141

examined by the court or the

Commissioner appointed by it. As

stated above, the Commission is also

empowered to follow the said

procedure. Hence, we do not think

that there is any scope of delay in

examination or cross-examination of

the witnesses. The affidavits of the

experts including the doctors can be

taken as evidence. Thereafter, if

cross-examination is sought for by

the other side and the Commission

finds it proper, it can easily

evolve a procedure permitting the

party who intends to cross-examine

by putting certain questions in

writing and those questions also

could be replied by such experts

including doctors on affidavits. In

case where stakes are very high and

still a party intends to crossexamine such doctors or experts,

there can be video conferences or

asking questions by arranging

telephonic conference and at the

initial stage this cost should be

borne by the person who claims such

video conference. Further, crossexamination can be taken by the

Commissioner appointed by it at the

working place of such experts at a

fixed time.”

(Emphasis supplied)

83. Thus, unlike in proceeding in a court,

ordinarily the insurers may not be in a position

142

to cross examine. It is no doubt true that since

the principle of Section 106 of the Evidence Act

only cast the burden on the person who has

special knowledge of the facts, apart from the

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

where it was consumed, the quality and quantity

of alcohol consumed, the time at which it was

consumed, whether it was accompanied by food

which can clearly be said to be within the

knowledge of the person who drove the vehicle,

the effects of the drinking by way of signs

discernible, after the accident took place, in

the facts, cannot be said to be within the

knowledge of the driver only. We say this for

the reason that according to FIR, the police

constable on patrol has purported to describe

the happening of the accident and was present

at that time. According to his version, he has

with the aid of his companion officer helped the

143

driver and the co-passenger out of the vehicle

and they were taken to the hospital. At the

hospital, in the medical legal report, there is

reference to breath of alcohol(+). It is,

however, true that the insurer or his agent may

not have been given notice at that stage. We

also agree that it would not be proper or legal

to hold that in such circumstances, the insurer

would still be in a position to prove through a

breath test or blood test that the driver was

under the influence of alcohol. If the driver

having regard to the fact did not suffer any

fresh injury is discharged from the hospital and

goes away, we find it inconceivable as to how

the insurer could be at fault for not having a

breath or blood test conducted. It may be true

that the insurer could have obtained material

in the form of affidavit evidence from the

police officer or the medical practitioner

144

concerned regarding any other facts regarding

consumption of alcohol by the driver.

RES IPSA LOQUITUR

84. The State Commission has applied the

principle of res ipsa loquitur. The question

to be answered is not whether the driver of the

vehicle was negligent. Res ipsa loquitur has

been discussed in the decision of this Court in

Syad Akbar v. State of Karnataka12 and this is

what is held:

“19. As a rule, mere proof that an

event has happened or an accident

has occurred, the cause of which is

unknown, is not evidence of

negligence. But the peculiar

circumstances constituting the event

or accident, in a particular case,

may themselves proclaim in

concordant, clear and unambiguous

voices the negligence of somebody as

the cause of the event or accident.

It is to such cases that the maxim

res ipsa loquitur may apply, if the

cause of the accident is unknown and

no reasonable explanation as to the

cause is coming forth from the

12 (1980) 1 SCC 30

145

defendant. To emphasise the point,

it may be reiterated that in such

cases, the event or accident must be

of a kind which does not happen in

the ordinary course of things if

those who have the management and

control use due care. But, according

to some decisions, satisfaction of

this condition alone is not

sufficient for res ipsa to come into

play and it has to be further

satisfied that the event which

caused the accident was within the

defendant's control. The reason for

this second requirement is that

where the defendant has control of

the thing which caused the injury,

he is in a better position than the

plaintiff to explain how the

accident occurred. Instances of such

special kind of accidents which

“tell their own story” of being

offsprings of negligence, are

furnished by cases, such as where a

motor vehicle mounts or projects

over a pavement and hurts somebody

there or travelling in the vehicle;

one car ramming another from behind,

or even a head-on collision on the

wrong side of the road. (See per Lord

Normand in Barkway v. South Wales

Transport Co. [(1950) 1 All ER 392,

399]; Cream v. Smith [(1961) 8 AER

349]; Richley v. Faull [(1965) 1

WLR 1454 : (1965) 3 All ER 109] )

20. Thus, for the application of the

maxim res ipsa loquitur “no less

146

important a requirement is that the

res must not only bespeak

negligence, but pin it on the

defendant”.

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

the facts without anything more clearly and

unerringly points to negligence. The principle

of res ipsa loquitur, as such, appears to be

inapposite, when, what is in question, is

whether driver was under the influence of

alcohol. It may be another matter that though

the principle as such is inapplicable, the

manner in which the accident occurred may along

with other circumstances point to the driver

being under the influence of alcohol.

THE FLAWS IN THE IMPUGNED ORDER

86. In the order of the National Commission

which is relied upon, the Commission has

referred to Modi’s Medical Jurisprudence and

Toxicology, 24th edition. The Commission finds

147

that in the opinion of the author, the

percentage of alcohol in the blood would be 0.2%

in case the quantity of alcohol per 100 ml of

blood is 200 mg. The finding that a person can

be said to be moderately intoxicated if he has

200 mg per 100 ml is an incorrect inference.

The person who has such a level of alcohol would

have 0.2% of alcohol. Such a person would

clearly be heavily intoxicated. This is clear

from a perusal of the table showing the effects

in the Manual for Physicians referred to in

paragraph 7 of the relied upon order.

87. The further finding that a person with a

concentration of 0.15% of alcohol in the blood

is regarded as fit to drive a motor vehicle and

such percentage happens when he has 150 mg of

alcohol per 100ml blood is an observation made

based on Modi’s Medical Jurisprudence and

Toxicology. Modi in his work has in this regard

148

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

149

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

150

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.

151

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

152

to accept views expressed in Modi’s Medical

Jurisprudence and Toxicology on the basis of

the opinion of All India Institute of Medical

Sciences which is allegedly collaborated by the

opinion expressed in Lyon’s Medical

Jurisprudence and Toxicology. The Commission in

the said case, which did not deal with a case

of driving after consuming liquor, found the

limits relevant as fixed in various countries.

The quantity of alcohol allowed in the USA is

stated to be not above 100 mg in 100 ml of

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

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

reduced to 0.08% corresponding to 80 mg in 100

ml.

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

conflating the requirement under Section 185 of

the Motor Vehicles Act, with that under the

153

exclusion clause in the contract of insurance

in question.

THE FIR

89. The Report is based on a statement given by

a Police Constable Anand Kumar. His statement

would show that as the Constable posted at the

Police Station, Tilak Marg, New Delhi, on

21/22.12.2007, he and another Constable were on

patrolling. At about 02.25, he on his motorcycle

reached c-hexagon, Zakir Hussain Marg. He saw

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

in question), came from the Nizamuddin side

towards the Zakir Hussain Marg, India Gate, in

a very rash, negligent way and at a very high

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

of control and hit at a massive force with a

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

Children Park, India Gate, electric pole and

154

the wall of the Children park and got

overturned. The car caught fire. He along with

his associate, a Home Guard, brought the driver

Shri Aman Bangia and his associate out of the

said car, after great efforts and reported about

the incident to wireless opp. (must be operator)

D-56 of Police Station, through wireless.

Vehicles of the fire brigade, PCR Van and

Additional SHO Van, came to the spot. He reports

that the accident occurred due to the rash and

negligent driving. FIR shows that the SubInspector, on the basis of the said information,

which he recorded, goes to the site of the

accident. It is recorded in the FIR further that

the Add/SHO and the vehicles of the fire brigade

were all so present for controlling the fire.

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

accused to the Ram Manohar Lohia Hospital. The

Sub-Inspector goes to the Hospital. He received

155

the MLC of the driver of the car and the copassenger. In the same, the Doctors have

reported that there is no evidence of fresh

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

same report is made about both the driver and

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

as 27 years. It was further recorded that a case

under Section 279/427 of the IPC and Section

185 of the MV Act had been committed. The date

and time of the occurrence is again shown as

22.12.2007 at about 02.25.

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

proceedings of the Metropolitan Magistrate dated

27.08.2011 would show that for the offence under

Section 279 of the IPC the charge was separately

framed against the driver of the car and he

voluntarily pleaded guilty. He was convicted

under Section 279 of IPC and sentenced to pay a

156

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

clause.

91. A perusal of the Order of the State

Commission would show that the FIR and the

Medico Legal Case sheet has been produced by the

respondent itself.

92. There can be no doubt that the respondent

itself sought to rely on the FIR and the Medico

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

The FIR has been prepared on the basis of the

Report of the Police Officer. The use of the FIR

in criminal case is to be distinguished from its

employment in a consumer case. This is so, in

particular, when the FIR is relied upon by the

complainant himself. It is noteworthy further

that though in the complaint, it was contended

that the Police had lodged the FIR under Section

185 of the Motor Vehicles Act besides Section

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

157

filed till the date of the complaint, meaning

thereby that the Police, after investigating the

case, could not find any evidence to prosecute

the driver for any of the offences, it must be

noticed that the complaint is of the year 2009

and it seen dated 04.03.2009, the case of the

respondent that there was no evidence to

prosecute the driver for any of the offences,

is falsified by the driver pleading guilty in

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

the offence under Section 279 of IPC, which took

place, apparently, during the pendency of the

complaint before the State Commission and the

State Commission has taken notice of this

development.

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

filed by the respondent, there is no dispute

that the MLC contained reference to the driver

and the co-passenger smelling of alcohol.

158

94. At this juncture, it is necessary to notice

the case set up by the respondent. It expressly

sets up the case that the person driving the

vehicle had not consumed any alcohol. The very

next sentence, no doubt, sets up the alternate

case, which is that further assuming that he had

consumed alcohol, the case would not fall under

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

not intoxicated.

95. It is further noteworthy that PW1, the

Company Secretary of the respondent, has, in is

his Affidavit evidence, stated that under

Section 185 of the MV Act, a certain percentage

of alcohol is to be found before a person is to

be prosecuted for the offence of drunken

driving. The law does not prohibit driving after

consuming liquor and all that is prohibited is,

that the percentage of liquor should not exceed

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

159

understanding appears to be that only in

circumstances, where the act of driving, having

consumed liquor, attracts the wrath of Section

185 and an offence is committed thereunder, that

the opprobrium of the Exclusion Clause in the

Contract of Insurance, for own damage, is

attracted.

96. The Affidavit of PW2, the driver himself,

would show that he does not depose that he had

not consumed liquor as was the case in the

complaint. Instead, he deposes only that he was

neither under the influence of intoxicating

liquor or drugs at the time of the accident. He

further deposed that he was in his full senses

and capable of exercising proper control over

the said vehicle. Even, at the stage of the

deposition through affidavit, which appears to

have been filed in 2010, he reiterates that the

case in FIR No. 453 of 2007, was falsely

160

registered. The case pending against him in the

Court of the Metropolitan Magistrate, New Delhi,

is stated to be malafide and he is sure to be

acquitted in the said case. Nearly, within a

year, as already noticed by us, however, the

allegedly false case is accepted by the driver

as true. The Affidavit of PW2, would not show

that the driver had not consumed liquor, which

case is set up. On the contrary, driver having

drunk, is fortified by the MLC, which clearly

indicates that the driver was smelling of

alcohol.

97. Therefore, it can be safely concluded that

the case set up of the respondent that the

person driving the car had not consumed

liquor, is clearly false.

161

THE INTERROGATORIES

98. The following interrogatories dated

18.10.2010, were apparently served by the

respondent on the appellant:

“INTERROGATORIES ON BEHALF OF

COMPLAINANT

1. Name the surveyor who was

appointed in this case.

2. Is the said surveyor still

associated with your company?

3. Why have you not filed the

affidavit of the said surveyor In

the

present proceedings?

4. Is M/s Bhola & Associates a

Lawyer's Firm?

5. What are the educational

qualifications of Mr. Sonu Bhola

Advocate?

6. Does Mr. Sonu Bhola have

licence to practise as an

Advocate. If yes, please give his

Bar Council Registration Number?

7. Has Mr. Bhola personally met

Mr. Aman Bangia, the Driver of the

vehicle. If yes when and where?

8. Whether observation made by

Mr. Bhola in his investigation

report is only an inference drawn

from FIR, MLC or is it based upon

some cogent and reliable evidence?

Please furnish details of all

those cogent and reliable evidence

162

and show the same from the record

of present proceedings.

9. Whether M/s Bhola and

Associates are qualified to

investigate such

case. If yes, how.

10. Did Mr. Sonu Bhola meet any

doctor or during his

investigation? If yes, please give

the time, place and the name of the

doctor.

11. Did Mr. Bhola obtain any

medical test report from the

Doctor or

the Investigating officer during

his Investigation?

12. Whether any urine test was

carried out upon the driver Mr.

Aman Bangia to determine

consumption of alcohol?

13. Whether the blood sample of the

driver Mr. Aman Bangia was taken

by the Doctor. If yes, whether the

said sample was sent for chemical

analysis to determine consumption

of alcohol?

14. Do you have any report of urine

or blood test of the driver Mr.

Aman Bangia?

15. Have you flied affidavit of the

Doctor in these proceedings who had

stated "smell of alcohol" in his

report?

16. Do you have any medical test

report which could show the level of

alcohol in the blood of the driver?

163

17. Do you know that a criminal case

against Mr Aman Bangia is still

pending in the court?

99. The reply given to the interrogatories

by the appellant, read as follows:

“REPLY BY RESPONDENTS TO

INTERROGATORIES FILED ON BEHALF OF

COMPLAINANT

1. Name the surveyor who was

appointed in this case.

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

Jawaharlal (Final Survey).

2. Is the said surveyor still

associated with your company?

Ans. Yes.

3. Why have you not filed the

affidavit of the said surveyor in the

present proceedings?

Ans. Not necessary.

4. Is M/s Bhola & Associates a

Lawyer's Firm?

Ans. Yes.

5. What are the educational

qualifications of Mr. Sonu Bhola

Advocate?

Ans. B.Com LLB.

164

6. Does Mr. Sonu Bhola have licence

to practise as an Advocate. If yes,

please give his Bar Council

Registration Number?

Ans. It is not relevant with the

investigation, hence we did not

enquire.

7. Has Mr. Bhola personally met Mr.

Aman Bangia, the Driver of the

vehicle. If yes when and where?

Ans. No.

8. Whether observation made by Mr.

Bhola in his investigation report is

only an inference drawn from FIR, MLC

or is it based upon some cogent and

reliable evidence? Please furnish

details of all those cogent and

reliable evidence and show the same

from the record of present

proceedings.

Ans. Based on MLC, FIR.

9. Whether M/s Bhola and Associates

are qualified to investigate such

case. If yes, how.

Ans. Yes. No specific qualifications

are prescribed by law.

10. Did Mr. Sonu Bhola meet any doctor

or during his investigation? If yes,

please give the time, place and the

name of the doctor.

Ans. We are not aware of it.

11. Did Mr. Bhola obtain any medical

test report from the Doctor or the

165

Investigating officer during his

Investigation?

Ans. No.

12. Whether any urine test was carried

out upon the driver Mr. Aman Bangia to

determine consumption of alcohol?

Ans. Don’t know.

13. Whether the blood sample of the

driver Mr. Aman Bangia was taken by

the Doctor. If yes, whether the said

sample was sent for chemical analysis

to determine consumption of alcohol?

Ans. Don’t know.

14. Do you have any report of urine or

blood test of the driver Mr. Aman

Bangia?

Ans. No.

15. Have you flied affidavit of the

Doctor in these proceedings who had

stated "smell of alcohol" in his

report?

Ans. No.

16. Do you have any medical test report

which could show the level of alcohol

in the blood of the driver?

Ans. No.

17. Do you know that a criminal case

against Mr Aman Bangia is still

pending in the court?

Ans. No.”

166

100.The interrogatories, along with the

answers, reveal the following:

a. The Surveyor of the appellant is a Lawyers

Firm.

b. The Surveyor has not personally met the

driver of the car.

c. The observations made by the Surveyor is

based on the MLC and FIR.

d. The appellant is not aware as to whether

the Surveyor had met any Doctor, during

his investigation.

e. The Surveyor has not obtained any medical

test report from the Doctor or the

Investigating Officer, during his

investigation.

f. The appellant pleads ignorance as to

whether any urine test was conducted on

the driver to determine the consumption of

the alcohol.

167

g. The same is the answer also in regard to

as to whether any blood sample was taken

to determine the consumption of alcohol.

h. The appellant, in its answer, has stated

that it has not filed affidavit of the

Doctor, who has stated ‘smell of alcohol’

in his Report.

i. The appellant has also stated that he does

not have any Medical Report to show the

level of alcohol in the blood.

101. We would think that it would not be

appropriate to conflate the two situations,

viz., the requirement under Section 185 of the

MV Act and an Exclusion Clause in the Contract

of Insurance in question. The requirements of

drunken driving under Section 185 of the MV Act,

can be proved only with reference to the presence

of the alcohol concentration which is 30 mg per

168

100 ml of blood. This corresponds to 0.03 per

cent BAC. In fact, it is noteworthy that in

Sweden and in China, it is 0.02.

102.As far as establishing the contention by the

insurer in a Clause of the nature, we are dealing

with, viz., a case where the insurer alleges

that the driver was driving the vehicle under

the insurance of alcohol, it is all very well,

if there is a criminal case and evidence is

obtained therein, which shows that the driver

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

the BAC level was 0.03 or more. We would think

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

breath test, which indicates that there is no

consumption at all, undoubtedly, it would not be

open to the insurer to set up the case of

exclusion. The decision of this Court in

Bachubhai Hassanalli Karyani (supra) was

rendered under Section 117 of the Motor Vehicles

169

Act, 1939, prior to its substitution in 1977,

and what is more it turned on the evidence also.

103.However, in cases, where there is no

scientific material, in the form of test results

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

disable the insurer from establishing a case for

exclusion. The totality of the circumstances

obtaining in a case, must be considered. The

scope of the enquiry, in a case under the

Consumer Protection Act, which is a summary

proceeding, cannot be lost sight of. A consumer,

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

proved deficiency of service. The deficiency of

service would arise only with reference to the

terms of the contract and, no doubt, the law

which surrounds it. If the deficiency is not

established, having regard to the explicit terms

of the contract, the consumer must fail.

170

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

an exclusion of the nature involved in this case,

must be viewed. We can safely proceed in this

case, on the basis that the person driving the

vehicle had consumed alcohol. We can proceed on

the basis that he drove the car after having

consumed alcohol. It is true that the exact

quantity, which he had consumed, is not

forthcoming. The fact that he smelt of alcohol,

is indisputable, having regard to the contents

of the FIR and also the MLC. He was accompanied

by PW3. PW3 also smelt of alcohol. The incident

took place in the early hours of 22.12.2007. It

happened at New Delhi. It is further clear that

it happened in the close vicinity of India Gate.

The driver and the passenger were in their

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

early hours, the version of the parties must be

appreciated without reference to any possibility

171

of the accident happening as a result of any

sudden incident happening, as for instance,

attempted crossing of a person or an animal,

which necessitated the vehicle, being involved

in the accident, in the manner, which is borne

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

the respondent. It is clear that we can safely

proceed on the basis that the vehicle was driven

in a rash and negligent manner, having regard to

the conviction entered under Section 279 of the

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

the respondent putting up the case that the

driver had not consumed alcohol and that the

case, even under Section 279 of the IPC was a

false case. Still further, if we examine the

exact nature of the accident, it speaks

eloquently for the influence, which the

consumption of alcohol had produced on the

driver of the vehicle. The car, which is

172

undoubtedly a Porsche, which we presume, has a

very powerful engine and capable of achieving

enormous speed, is reported to have gone out of

control and hit at a massive force with the

footpath of the road. It overturned. It caught

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

that the car was a complete wreck. It was

described as a total loss. The vehicles of the

fire brigade came to douse the fire. We are

conscious that speed and its impact can be

relative to the road, the traffic and the speed

limits. The FIR refers to the car being driven

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

without having been under the influence of

alcohol. At the same time, being under the

influence of alcohol can also lead to rash and

negligent driving. They are not incompatible.

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

into account the improbability of any traffic

173

worth the name at the time of the accident. While

we may be in agreement with the respondent that

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

for pressing the Exclusion Clause, we cannot be

oblivious to the fact that there is no material

in the pleadings of the respondent or in the

evidence tendered for explaining the accident.

We can take judicial notice of the fact that the

roads in the Capital City, particularly in the

area, where the accident occurred, are

sufficiently wide and the vehicle dashing

against the footpath and turning turtle and

catching fire, by itself, does point to, along

with the fact that the alcohol which was consumed

manifests contemporaneously in the breath of the

driver, to conclude that alcohol did play the

role, which, unfortunately, it is capable of

producing.

174

106. Applying the principles, which have been

referred to, to the facts of the present case,

we summarize the following conclusions:

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

driver, the Report, inter alia, indicates

that smell of alcohol (+);

B. Pertinently, the very same Report is there

in regard to the co-passenger. Both the

driver and the passenger were in the late

twenties;

C. The smell of alcohol has been discerned by

a Medical Practitioner;

D. Though the case was set up by the

respondent that the driver had not

consumed alcohol, the driver, in his

evidence (Affidavit evidence), has not

even stated that he has not consumed

alcohol, as was the specific case set up

in the complaint. On the other hand, the

175

alternate case, which was set up that he

was not under the influence of alcohol,

alone was deposed to. This is even though

the respondent had reiterated in the

Rejoinder Affidavit that the driver of the

vehicle had not consumed alcohol or any

other intoxicating drink/drug;

E. Even the NCDRC has proceeded on the basis

that the driver had consumed some alcohol.

Therefore, the conclusion is inevitable

that the appellant has established that

the driver had consumed alcohol and was

driving the vehicle, when the accident

took place;

F. There is no evidence as to the quantity of

alcohol consumed. It is also true that

there is no evidence other than the smell

of alcohol being detected on both the

176

driver and the co-passenger, of any other

effects of consumption of alcohol;

G. The requirement under Section 185 of the

Motor Vehicles Act is not to be conflated

to what constitutes driving under the

influence of alcohol under the policy of

insurance in an Own Damage Claim. Such a

claim must be considered on the basis of

the nature of the accident, evidence as to

drinking before or during the travel, the

impact on the driver and the very case set

up by the parties.

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

regards the manner in which the accident

itself occurred. In this regard, it is

clear that in any such case, this is an

important circumstance, which may

establish that the driver was under the

influence of alcohol. Driving, while under

177

the influence of alcohol, is to be

understood as driving when, on account of

consumption of alcohol, either before

commencement of driving or during the

driving and before the accident, when

consumption of alcohol by the driver would

affect (influence) his faculties and his

driving skills. We would expatiate and

hold that it means that the alcohol

consumed earlier was the cause or it

contributed to the occurrence of the

accident.

I. The respondent has no case that the

accident occurred as a result of a sudden

event which took place, which necessitated

the car being driven into the footpath.

For instance, if there was sudden

attempted human or animal crossing, and

the driver to obviate any such accident,

178

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.

179

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

180

no apparent cause, even according to the

respondent and the driver and his

companion (PW3), yet we are asked to

believe that the driver was in full control

of his senses. If the State Commission, in

the circumstances, believed the version of

the respondent, in a summary proceeding,

we would believe that NCDRC erred in

interfering, on the reasoning, which we

find as erroneous.

107. What is in a summary proceeding noteworthy,

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

road near India Gate, New Delhi) and the thinnest

possible traffic, and without the slightest

excuse, hitting at the footpath with massive

force, not being able to maintain control,

hitting the electric pole, the wall of the

children park. The impact is so much that it led

181

to the overturning of the car and what is more,

catching fire of the vehicle. This accident is

inexplicable, if the driver is to be believed as

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

and capable of exercising full control over the

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

probable that his drink, really led to it. On

the facts, the view of the State Commission is

a plausible view.

108. The upshot of the discussion is that the

impugned Order is liable to be set aside. We

order accordingly. The Appeal stands allowed.

There will be no order as to costs.

…....................J.

[UDAY UMESH LALIT]

…....................J.

[INDIRA BANERJEE]

…....................J.

[K.M. JOSEPH]

NEW DELHI;

APRIL 12, 2021.

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Tuesday, April 20, 2021