Iffco Tokio General Insurance … vs Pearl Beverages Ltd. on 12 April, 2021


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Supreme Court of India

Iffco Tokio General Insurance … vs Pearl Beverages Ltd. on 12 April, 2021

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, K.M. Joseph

                                                                   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
Signature Not Verified

Digitally signed by Dr.

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

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

question which arises in this Appeal is, whether

the NCDRC is correct in holding that the

appellant is not entitled to invoke the shield

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

under which, it was not liable, if the person

driving the vehicle, was under the influence of

intoxicating liquor, or drugs. The State

Commission rejected the complaint of the

respondent finding that there was evidence to

show that the person who drove the vehicle, had

consumed liquor and was under the influence of

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

other hand, found that there was no material to

establish that the driver of the vehicle was

under the influence of intoxicating liquor

within the meaning of the Exclusion Clause, as

aforesaid.

2

3. The Clause in controversy reads as follows:

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

              (a) xxx     xxx        xxx

              (b) xxx     xxx        xxx

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

4. The vehicle was driven by one Shri Aman

Bangia. Following the accident, a First

Information Report came to be lodged. The

accident took place in the early morning at about

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

FIR, inter alia, read as follows:

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

3
were on patrolling. At about 2.25 when
I, on my above M/cy., was reached near
C-Hexagan Dr. Zakir Hussain Marg while
patrolling, then I see that the driver
of Car No.DL-1CJ-3577 came from
Nizamuddin side towards Zakir Hussain
Marg, India Gate in a very rash,
negligent and at a very high speed and
due to very high speed, his car was
got out of control and hit at a
massive force with the footpath of C-

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

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

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

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

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

IPC, it culminated in an Order dated 27.8.2011

passed on plea bargaining by the driver of the

car and it reads as follows:

“Accused Aman Bangia with counsel
Sh. Rahul Arora.

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

Heard on the point of sentence. The
accused prayed for taking lenient view
by pleading that this is his first
offence. He has undertaken to drive
cautiously in future. So, in view of
the facts and circumstances of the
case, the accused is sentenced to pay
fine of Rs.1,000/- in default of S.I.

6

of 10 days. Fine deposited vide
receipt No. 866834. File be consigned
to Record Room.”

6. The respondent after exchange of notices,

filed the complaint under Section 17 of the

Consumer Protection Act, 1986 in 2009.

Affidavit evidence of the Company Secretary of

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

and the person who travelled with the driver in

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

22.12.2007, which was under Section 279/427 of

the IPC and Section 185 of the Motor Vehicles

Act, 1988, the medico-legal case sheet of

Dr. Ram Manohar Lohia Hospital, were among the

documents produced by the respondent. The Order,

which we have referred to under Section 279 of

the IPC, was also later produced. The

appellant’s Vice President gave affidavit

evidence. The Investigator also gave his

affidavit evidence affirming his reports.
7
PLEADINGS

7. In the complaint filed under Section 17 of

the Consumer Protection Act, 1986, we may notice

the allegations, which are relevant:

The Exclusion Clause is not applicable

as the person driving the vehicle had not

consumed any alcohol. Further assuming that

he had consumed alcohol, the case would not

fall under the Exclusion Clause as he was,

in any case, not intoxicated. Although the

Police had lodged FIR under Section 185 of

the MV Act besides Sections 279/427 of the

IPC, no charge-sheet has been filed against

the driver till date, meaning thereby, that

the Police after investigating the case,

could not find any evidence to prosecute the

driver for any of the offences. It is the

further case of the respondent, inter alia,

that the respondent had informed the

8
appellant that the MLC only says ‘smell of

alcohol’ and this does not imply or mean that

the driver was under the influence of

intoxicating liquor. It is also pleaded that

in the Legal Notice, it was specifically

noted that the driver had not consumed

liquor. Section 185 of the MV Act was invoked

to plead that unless a certain percentage of

alcohol is found a person cannot be

prosecuted for the offence of drunken

driving. The law does not prohibit driving

after consuming liquor. No test was

performed in regard to the person driving to

establish that he was under the influence of

drugs or intoxicating liquor, as provided

under Section 185 of the MV Act or the

Exclusion Clause.

It is also pleaded that Intoxication

means ‘elate or excite to the degree of

9
frenzy’ which means in simple meaning that

the person has no control over his senses.

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

contended, inter alia, as follows. There is

official record of the person driving having

been found to have consumed alcohol and driving

the vehicle in that condition. The respondent

got the matter investigated through experienced

Investigators and they have collected relevant

information and records with their finding that

the driver was under the influence of alcohol.

The seriousness of the accident itself showed

that the driver was reckless in driving due to

the consumption of the alcohol.

9. Respondent filed a Rejoinder Affidavit

reiterating the allegations in the complaint.

10
THE EVIDENCE

10. In the Affidavit of Evidence given by the

Company Secretary (PW1,) on behalf of the

respondent, the case set up about the law not

prohibiting driving after consuming liquor and

that what is prohibited is that the percentage

of liquor should not exceed 30 mg per 100 ml of

blood, is reiterated. The driver of the vehicle

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

neither under the influence of intoxicating

liquor or drugs at the time of the accident.

That he was in his full senses and capable of

exercising full control over the car, at the

time of the accident. His co-passenger was also

not under such influence. No test was performed.

He has further deposed that the FIR 453 of 2007

against him under Section 185 of the MV Act and

Sections 279/427 of the IPC was falsely

registered. The case was still pending. He was

11
certain to be acquitted in the said case. The

Affidavit Evidence of the co-passenger (PW3) is

to the effect that he was not under the influence

of intoxicating liquor or drugs. He has also

supported PW2 that PW2 was able to exercise

proper control over the vehicle and he was not

under the influence of liquor or drugs at the

time of the accident. The Police Officer and

Hospital Doctor did not find them under the

influence of intoxicating liquor and no test was

performed. Apart from the appellant’s Vice

President, the Investigator of the appellant

gave affidavit evidence when he vouchsafed for

the correctness of his reports.

THE ORDER OF THE STATE COMMISSION

11. The State Commission finds, inter alia, as

follows:

The date and time of the occurrence was

22.12.2007 at 02.25 A.M.. The official

12
record of the driver goes to show that he

was driving the vehicle after consuming

alcohol. Whether he was completely or

partially under the influence of alcohol was

a different matter. There is not a slightest

doubt that the driver drove the vehicle after

consuming alcohol. The manner and intensity

with which the accident had occurred and its

overall impact goes to prove the said facts.

[The finding is to be appreciated in the

light of the statements in the FIR about the

car being driven rashly and negligently and

at a very high speed. It collided with an

electric pole and the wall of the Children

Park as a result of which the car turned

upside down/overturned and also caught

fire.] Adverting to the Judgment of this

Court in Bachubhai Hassanalli Karyani v.

13
State of Maharashtra1
, it was found as

follows:

The degree of proof required in a

criminal case is much higher than the

evidence required in civil proceedings,

which are decided on the principle of

Preponderance of the Evidence. The driver

has confessed to his guilt under Section 279.

The result of the other two offences

(Sections 427 of the IPC and 185 of the MV

Act was not made available). The State

Commission also found it fit to apply the

principle of res ipsa loquitur, having

regard to the circumstances surrounding the

accident. The proceedings under the Consumer

Protection Act, being summary in nature, the

Commission was not required to go into the

technicalities of Criminal or Civil

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

was such that the vehicle turned upside down

and caught fire. The vehicle of the Fire

Brigade had to be pressed into service. The

vehicle turned into a total wreck. The State

Commission also found that there appeared to

be a breach of Condition 4 of the Policy of

Insurance (“The insured shall take all

reasonable steps, to safeguard the loss of

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

the accident, the vehicle was being driven

rashly and negligently and the driver had

consumed liquor, which by itself was in

violation of the Policy conditions.

THE IMPUGNED ORDER OF THE NCDRC

12. The NCDRC, finds as follows:

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

15
met with an accident and got
extensively damaged. Though it has
come on record that the driver of the
vehicle had taken some liquor before
he drove the vehicle, the said record
being available in the form
of statement of a policeman who stated
that the smell of the liquor was coming
from the mouth of the driver, there is
absolutely no evidence to prove the
quantity of liquor which he had
consumed before driving the vehicle.

Admittedly, no medical examination of
the driver was got conducted in order
to ascertain the quantity of the
alcohol in his blood at the time the
vehicle met with an accident. In terms
of Section 185 of the Motor Vehicles
Act, a person is liable to punishment
if he is found while driving, alcohol
exceeding 30 mg per hundred ml of blood
and the level of alcohol is required
to be verified by way of test done by
use of a breath synthesiser.

Admittedly, no such test was conducted
and, therefore, no evidence was
available before the State
Commission or even to the insurer to
prove that the driver had alcohol
exceeding 30 mg per hundred ml of the
blood, at the time the vehicle met with
an accident. Therefore, the insurer
has failed to prove that the insured
had committed a breach of the terms of
the policy, the driver being under
influence of liquor.”

16

13. Thereafter, it referred to its Order in Royal

Sundaram General Insurance Company Limited v.

Davubhai Babubhai Ravalia in Revision Petition

No. 1296 of 2018 dated 04.09.2018, which reads

as follows:

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

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

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

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

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

18
following extract from the
above-referred text book:

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

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

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

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

of his blood.

5. The learned counsel for
the     insurance        company,
however,    relied     upon    an

Article titled “While Under
the Influence of Intoxicating
Liquor” written by W.W.

Thornton   and     published   on
11.01.1928    in    Indiana   Law
Journal.        The      question
considered     in    the    above

referred Article was as to what
condition must a driver of a
motor vehicle be in to be
“under the influence of

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

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

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

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

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

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

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

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

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

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

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

India        -        30 mg%

USA          -        100 mg%

Australia    -        40 mg%



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

•   Sober    –    blood     alcohol

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

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

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

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

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

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

        It would thus be seen that

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

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

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

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

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

28
the body of the
insured. Dismissing the
complaint, this Commission, inter-
alia observed and held as under:

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

“Stage of Excitement (50 to 150
mg percent)

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

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

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

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

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

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

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

14. It was further found that in the case of

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

to be 86.2 mg and it was still found that the

driver was not intoxicated. In the present case,

it is found that there is no evidence regarding

the quantity of liquor in the blood of the

driver. The onus was upon the appellant-Insurer

to prove that the quantity of alcohol was at

least 30 mg and, therefore, exceeded the limit

prescribed under Section 185 of the MV Act. The

NCDRC allowed the appeal and set aside the order

of the State Commission and directed the

appellant to assess the loss of the respondent

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

per annum from the date of complaint within six

weeks of the date of assessment to the

respondent.

SUBMISSIONS OF PARTIES

15. We heard Shri Shivam Singh, learned Counsel

for the appellant and Shri Gopal

33
Sankarnarayanan, learned Senior Counsel for

respondent.

16. Shri Shivam Singh, learned Counsel,

contended that this is a clear case where

unimpeachable material in the form of official

records established that the car was being

driven by a person who was under the influence

of intoxicating liquor. The high speed and the

manner in which the accident occurred, viz., the

vehicle hitting against the pole, turning turtle

and further catching fire, along with the fact

that the FIR and the MLC indicating that the

driver smelt of the alcohol sufficed to attract

the Exclusion Clause and protect the appellant.

The impact of the accident, resulting in the car

becoming a complete wreck, is emphasised, to

point out that the circumstances existed which

entitled the appellant to extricate itself from

the huge financial burden in tune with a

34
specifically provided Exclusion Clause. He drew

our attention to the following decision in V.

Kishan Rao v. Nikhil Super Speciality Hospital

and another2. Therein, this Court held as

follows:

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

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

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

17. The said decision was rendered in regard to

a complaint regarding medical negligence and the

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

evidence was necessary to prove such medical

negligence. This Court also held as follows:

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

18. He further pointed out that the Court may

appreciate the nature of the case set up by the

driver of the vehicle. It is pointed out that it

was contended by the respondent that the vehicle

was not driven rashly and negligently. Yet, in

the criminal case, the driver pleaded guilty and

the sentence, as already noticed, came to be

pronounced by the Criminal Court. This, beyond

doubt, established that the case of the

respondent that car was not being driven in a

36
rash and negligent manner, was false. It clearly

probablised the case of the appellant that the

car was being driven rashly and negligently and

this is attributable only to the fact that the

driver was under the influence of intoxicating

liquor. The evidence in this regard is furnished

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

further strengthened by the MLC. He further

complained that the NCDRC has completely erred

in holding that the burden was on the Insurer to

prove the quantity of alcohol in the blood of

the driver. He would point out the sheer

impossibly to fulfil such an obligation on the

Insurer. He would question the correctness of

the declaration.

19. Per contra, Shri Gopal Sankarnarayanan,

learned Senior Counsel for the respondent would,

in the first place, draw our attention to the

Report of the Investigator engaged by the

37
appellant. He would point out that the Report

would reveal that upon being informed, the

Investigator was very much at the scene in the

early morning and, still, no steps were taken to

ascertain the level of the alcohol in the blood

of the driver. This adequately counters the

apprehension about the impossibility for the

insurer to prove the level of alcohol. In this

regard, he drew our attention to the questions

put in the interrogatories and the answers which

have been received. As far as the conviction

under Section 279 of the IPC is concerned, he

would submit that it was only a case of plea

bargaining and, more importantly, it related to

rash and negligent driving under Section 279 of

the IPC. The offence, which is pertinent to the

controversial Clause, is the one contemplated

under Section 185 of the MV Act and it has not

been invoked/proved against the driver. In other

38
words, the attempt appears to be to contend that

at worst a case of rash or negligent driving may

be established, which is not the same as driving

under the influence of alcohol. He also sought

to draw support from the Judgment of this Court

in Bachubhai Hassanalli Karyani (supra). The

other case law appears to be mostly Orders passed

by the NCDRC itself and it appears to be on the

lines, indicated in the impugned Order itself,

as noticed by us. He further pointed out that

the car caught fire as the fuel tank of the car

is located in the front.

20. In Bachubhai Hassanalli Karyani (supra), the

Court was dealing with a case inter alia under

Section 117 of the Motor Vehicles Act, 1939.

This Court held as follows:

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

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

FINDINGS

21. The expression “under the influence of

intoxicating liquor” does not appear to be of

recent origin in a Contract of Insurance. It has

been around for quite a while. In this regard,

40
we may notice the judgments of the English

Courts. In Mair (Administratrix) v. Railway

Passengers Assurance Co. (Limited)3, Lord

Coleridge, the Chief Justice made the following

observations, while dealing with the very same

words “under the influence of intoxicating

liquor”, and held as follows:

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

There is a point beyond which it
certainly impedes – disturbs it. I
concede that it is very difficult
even in language – certainly in the
English language – to ascertain

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

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

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

was being driven and it was alleged that the

driver was under the influence of alcohol. On

the other hand, it was a case where the deceased

had been drinking for a while. In this

condition he rudely accosted a woman and tried

to put his arms around her. He was knocked down

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

He died as a result of the injury. The insurer

sought protection under a clause which excluded

liability if the assured was under the influence

of intoxication of liquor.

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

Merchants Insurance Company Limited4, the

plaintiff, claimed under a policy, in regard to

a bodily injury suffered by her husband. The

Insurer invoked the Exclusion Clause, which

again protected it in a case where the person

was under the influence of drugs or intoxicating

liquor. It was a case of a motor vehicle

accident, which proved fatal for the

plaintiff’s husband. One of the contentions

raised by the plaintiff was that the words

“sustained whilst under the influence of drugs

or intoxicating liquor, were so uncertain as to

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

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

contention drew support from Mair

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

reiterated the principles laid down therein. We

may advert to the following:

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

24. This was the case of alleged driving under

the influence of alcohol. The deceased was

travelling in a car with a friend after having

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

a bend and it knocked off the Warning post and

an accident ensued, the vehicle having fallen

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

blood alcohol was 260 mg in 100 ml and in favour

of the insurer.

A CASE FROM SCOTLAND

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

1975 by the Inner Court of Session of Scotland

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

now, the defendant (described as the defender)

drove a car after having consumed a pint or at

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

of beer) and an accident occurred in which two

of the passengers died. In an action by the

widows, the insurer (referred to as a third

party) relied upon an exception in the policy

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

46
which inter alia excluded its liability if the

driver was under the influence of intoxicating

liquor. Lord President of the Court with whom

the other two Judges agreed, observed as

follows:

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

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

(ii) the happening of the accident.

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

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

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

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

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

26. Lord Avonside in his concurring opinion

inter alia held as follows:

“The explanation of the respondent
that his rear wheels had hit
something, a brick or possibly the
kerb, was either rejected by the
Lord Ordinary or, at least, also
pointed to negligence influenced by
drink. Plainly also the Lord
Ordinary did not believe the
assertion of the appellant that the
drink he had taken did not affect
his judgment. It is regrettable, in
my view, that more evidence was not
led in regard to the accident. It
would, I imagine, be available and
perhaps its omission was considered
tactical. Be it so, the onus was on
the respondent. In my opinion, the
50
Lord Ordinary has gone too far.

There is no evidence of the likely
effect of the consumption of a not
immoderate amount of low content
alcohol on a person unused to drink
whose stomach may be empty. The Lord
Ordinary as a judge is not, in my
view, entitled to draw a positive
conclusion from such facts, without
some evidence before him and there
was none. The smell of alcohol after
the accident was, it is I think
accepted, simply evidence of the
fact of prior consumption of
alcohol. The circumstances of the
accident were remarkable enough, but
could be explained by what the
appellant said. That the appellant
pleaded guilty to a charge under
section 1 (1) of the Road Traffic
Act 1960, and the Lord Ordinary
seems to make significance of this,
is neither here nor there, looking
to the comparatively minor degree of
negligence which the Courts have
held sufficient to invoke the sub-
section. But looking at the facts
found at best for the respondent I
see no more than that the appellant
had taken some drink for the first
time in his life on an empty stomach
and had very shortly thereafter been
involved in a bad accident which his
previous safe record would not
suggest as being likely to happen.”

51

27. Obviously, there are certain parallels as

there are distinctions between facts of the case

before us. The similarity lies in the fact that

the driver in the case before us also smelt of

alcohol. The other similarity lies in the

nature of an accident. The differences,

however, lie in the fact that in the case

referred to, there was evidence of the actual

quantity and nature of the alcohol which was

consumed by the driver. In the case before us,

there is no evidence either recording the exact

nature of alcoholic drink which was consumed by

the driver and there is also no material as to

the quantity consumed by him. There is no

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

when the alcohol was consumed by the driver in

the case before us. Whereas on the evidence

adduced in the case before the Court in the

decision referred to, there was evidence as to

52
the time when the alcohol was consumed. Further

the driver offered an explanation as to how the

accident unfolded when there is none in the case

before us.

28. As far as the conviction under the Road

Traffic Act, 1960, which was based on the plea

of the defendant-driver in the said case is

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

1960, may be noticed:

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

53

29. It may be noticed that both the trial Judge

as well as the Appellate Court did not lay any

store by the blood test and also the conviction

and therefore what is significant is that a

finding could be rendered in an action that the

insurer was not liable if the driver, in

contravention of the policy was under the

influence of intoxicating liquor and the matter

goes to the evidence which would support such a

finding.

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

the Court that the Trial Judge was not entitled

to rely upon the fact that the defendant drank

a lager upon an empty stomach, we are unable to

endorse the same. This is for the reason that

there is enough material available to show that

when one drinks on an empty stomach, there is

greater and faster infusion of the alcohol into

54
the system leading to increased Blood Alcohol

Concentration (BAC) level. This is for the

reason that when liquor is consumed on an empty

stomach, the liquor moves on from the stomach

unobstructed into the small intestine from where

80% of the absorption of alcohol takes place.

Therefore, this does indeed play a role in the

Court assessing and finding, that given the

other circumstances to support the finding of

consumption of alcohol as to whether the alcohol

has contributed to the occurrence of the

accident. It is also not irrelevant to bear in

mind that a person who is alcohol tolerant which

means that having become accustomed to consume

liquor, the brain in particular is able to hold

up to the alcoholic consumption and deal with

its effect whereas when a novice or a beginner

consumes alcohol, its consequences would be

different.

55
THE POSITION IN THE UNITED STATES OF
AMERICA

31. Interestingly, the terms in the Contract of

Insurance may exclude the liability of the

Insurer in regard to liquor based on the mere

consumption of the liquor and its presence in

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

a life and accidental insurance, one of the

questions was whether there was an error in the

charge of the court relating to intoxicating

liquor. The policy in question did not cover

any injury or death which the insured may suffer

while the insured has in his or her body,

physically present intoxicating liquor or

narcotics. The Supreme Court of North Carolina

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

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

the charge which the trial court had given to

the jury. The Court noticed the charge as

follows:

56
“The court further instructs you
that an intoxicated person is a
drunken person, a drunken person
is an intoxicated person and that
means- intoxicated means in law
that the subject must have drunk
of alcohol to such an extent as to
appreciably affect and impair his
mental or bodily faculties or both.
The court instructs you further
that to be under the influence or
affected by the liquor means that
the subject must have drunk a
sufficient quantity to influence
or affect, however slightly, his
body and his mind, his mental and
physical faculties, in other
words, it all comes to this, that
he has drunk, that he has
intoxicating liquor in his body to
the effect that it influences his
conduct detrimentally. It means
the question for you is whether the
deceased at the time of his impact
and death had in his body
intoxicating liquor of sufficient
quantity to be intoxicated or to
affect his conduct and influence
his conduct and action.”

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

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

32. The Court held as follows:

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

       Thus      the     learned      judge
       inadvertently   placed    upon   the

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

58

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

629.

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

New trial.”
(Emphasis supplied)

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

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

observed as follows in regard to the similar

clause in a Contract of Insurance:

59
“The exact language of the policy
provision under consideration
is:’***nor does it cover loss or
injury sustained by the insured
while he was physically present in
his body alcoholic or intoxicating
liquors in any degree. ***That
this provision is not contrary to
public policy; that it is not
susceptible of double construction
or of an interpretation that the
extent or degree of intoxication is
material; that it is not
unreasonable, and that it does not
constitute a limitation
unavailable to appellee, is amply
affirmed by the authorities both
local and foreign. In Robinson &
Son v. Jone, 254Ky.637, 72 S.W.2d
16, 19, it is said: ‘It is known of
all men that the drinking of
intoxicating liquor, though it be
not done to the extent of actual
intoxication, begets a spirit of
recklessness, and is responsible
for numerous accidents.’ And in
Equitable Life Assurance Society
of United States v. Adams, 259 Ky.
726, 83 S.W.2d 461, 464, ‘It is the
duty of the courts to take the
words of an insurance policy as
they are found in it, and as
persons with usual and ordinary
understanding would construe them
when used to express the purpose
for which they were employed,***.

60

34. The Supreme Court of Alabama in Standard Life

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

in November, 1891, had occasion to consider the

question as to whether the phrase “under the

influence of intoxicating drinks” had a

different connotation in law from that it

carried in common parlance. No doubt, it was a

case whether a workman was covered by an

insurance policy and he met with an accidental

death while he was discharging his duty as a

Swtichman. We find the following discussion:

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

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

35. Therefore, an analysis of the principles as

laid down both by the English Courts/Scottish

62
Court and decisions from the United States would

persuade us to hold as follows:

The exclusion from the liability of the

Insurer would depend upon the exact terms of

the Insurance. We are in this case not

dealing with a third-party claim. Under the

aegis of the Motor Vehicles Act, we are not

oblivious of the provisions of Section

149(2) in the unamended provisions of the

Motor Vehicles Act,1988 which are captured

in Section 150 of the present avtaar after

the amendment as regards the defences

available to the Insurer regarding such

claims. We are dealing with a case of own

damage and the clause which extricates the

Insurer on the basis of the driver being

under the influence of alcohol, inter alia.

We would find that the there are two

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

that the person has in his body alcohol in

any degree. Under the said model, it need

not influence his conduct. Under the said

model, it is not necessary for the Insurer

to show that person concerned was

intoxicated or under the influence of

intoxicated liquor.

36. This brings us to the other model which model

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

the insurer must show that the person driving

the vehicle was under the influence of liquor.

The contrast between the models is stark and

perceptible. As far as the exclusion of the

nature we are concerned with, which requires

driving of the vehicle by a person under the

influence of intoxicating liquor, it would

appear to be clear that mere presence of alcohol

in any small degree would not be sufficient.

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

write the contract and hold that the mere

presence of the alcohol, in the slightest

degree, is sufficient to exclude the liability

of the insurer. It requires something more,

namely, that the driver of the vehicle was at

the time of the accident acting under the

influence of intoxicating liquor. Now it is

clear that the decisions of the English Courts

are closer home and of assistance in the laying

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

facts and circumstances of each case that the

consumption of liquor had, if not caused the

accident, which undoubtedly would bring the

accident within the mischief of the clause but

at least contributed in a perceptible way to the

causing of the accident.

SECTION 185 OF THE MOTOR VEHICLES ACT, 1988

65

37. It is at this juncture that it becomes

necessary to notice and deal with the argument

of the respondent under Section 185 of the Motor

Vehicles Act. Section 185 of the Motor Vehicles

Act, 1988 reads as follows:

“185. Driving by a drunken person
or by a person under the influence
of drugs.—Whoever, while driving,
or attempting to drive, a motor
vehicle,—

(a) has, in his blood, alcohol
exceeding 30 mg. per 100 ml. of
blood detected in a test by a
breath analyser, or

(b) is under the influence of a
drug to such an extent as to be
incapable of exercising proper
control over the vehicle,

shall be punishable for the first
offence with imprisonment for a
term which may extend to six
months, or with fine which may
extend to two thousand rupees, or
with both; and for a second or
subsequent offence, if committed
within three years of the
commission of the previous similar
offence, with imprisonment for
term which may extend to two years,
or with fine which may extend to
66
three thousand rupees, or with
both.

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

38. Our attention was also drawn by Mr. Gopal

Sankaranarayan, learned Senior Counsel for the

respondent to the provisions under Sections 203

and 204 of the Motor Vehicles Act. Section 203

as was extant as on the date of the accident

read as follows:

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

67
having committed an offence under
section 185:

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

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

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

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

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

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

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

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

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

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

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

39. Section 204 again as was in existence on the

date of the accident (12.12.2007) read as

follows:

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

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

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

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

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

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

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

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

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

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

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

40. We may also incidentally notice Section

205 of the MV Act. It reads as follows:

“205. Presumption of unfitness to
drive.—In any proceeding for an
offence punishable under section
72

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

41. The Motor Vehicles Act, 1988 repealed the

Motor Vehicles Act 1939. It is important to

notice certain provisions of the said Act also.

Section 117 can be referred to as the provision

corresponding to Section 185 of the present Act

with significant differences. Section 117 as

it originally stood read as follows:

“117.Driving while under the
influence of drink or drugs.-

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

42. This provision came to be substituted by Act

27 of 1977. After its substitution as aforesaid

Section 117 the lawgiver ushered in a stricter

restriction in regard to drunken driving. It

read as follows:

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

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

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

(b) Is under the influence of a drug
to such an extent as to be
74
incapable of exercising proper
control over the vehicle,
Shall be punishable for the first
offence with imprisonment for a term
which may extend to six months, or
with fine which may extend to two
thousand rupees or with both; and
for a second or subsequent offence,
if committed within three years of
the commission of the previous
similar offence, with imprisonment
for a term which may extend to two
years, or with fine which may extend
to three thousand rupees, or with
both.

In fact, prior to present Section185 of the

Motor Vehicles Act being substituted by Act 54

of 1994, Section 185 was similarly worded as

Section 117 of the Motor Vehicles act 1939, as

substituted in 1977.

43. It will be noticed immediately that the

decision of this Court rendered in Bachubhai

Hassanalli Karyani v. State of Maharashtra6

relied upon by the respondent arose under

Section 117 of Motor Vehicles Act, 1939 which

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

the influence of drink but it was to be to such

an extent as to render him incapable of

exercising proper control over the vehicle.

Section 117 after its substitution in 1977, on

the other hand, carved out a criminal offence

insofar as alcohol is concerned, on the basis

that the driver had in his blood, alcohol in any

quantity, however small the quantity was. This

was similar in fact to the clauses in the

contracts of insurance obtaining in the United

States which we have referred to (supra). No

doubt, this became associated with the presence

of the smallest quantity of alcohol in the

blood. As far as Section 185 of the Motor

Vehicles Act, 1988 is concerned, the offence is

committed if there is a specified amount of

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

In this regard, we may profitably refer to the

76
law in the United Kingdom corresponding to the

Motor Vehicles Act and also an early decision

of the Bombay High Court interpreting a statute

dealing with the issue.

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

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

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

or attempt to drive or to be in charge of a

motor vehicle while under the influence of drink

or drug ‘to such an extent as to be incapable

of having proper control of the vehicle’.

Section 11 provided for punishment for dangerous

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

was convicted under Section 15 and acquitted

under Section 11. The Court held as follows:

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

77
the summing up, it is ambiguous.

The jury ought to have been asked
whether they meant-by their last
answer that the appellant was under
the influence of drink to such an
extent as to be incapable of having
proper control of the vehicle, and
we cannot reject the view that, if
that question had been pointedly
put, they might have answered in
the negative or said that they were
not agreed on that point. …”

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

other words, being under the influence of

alcohol is different from being under the

influence of alcohol to the extent as declared

in such a provision. However statutory changes

that occurred make it irrelevant.

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

decision of the High Court of Bombay reported

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

Motor Vehicles Rules provided that “no person

shall, when intoxicated, drive a motor vehicle

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

accused was that his conviction was improper as

the charge actually was merely one of being

under the influence of liquor. There is a

distinction between being under the influence

of liquor and being intoxicated, it was

contended. The Court held, inter alia, as

follows:

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

The fact remains that the words
“under the influence of liquor” do
sufficiently represent the meaning
of the word “intoxicated,” except
that it may be said that the latter
word expresses a degree of

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

(Emphasis supplied)

47. The Road Traffic Act, 1960 repealed the Act

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

80
driving by a person who was unfit to drive

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

follows:

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

By the Road Traffic Act, 1962, however

unfitness was linked with being “impaired”.

48. For the first time, objective scientific

testing became the basis for the offence of

driving while having drunk alcohol in 1967 under

the Road Safety Act, 1967. Section 1 penalised

driving on a road or other public place having

consumed alcohol in such quantity that its

proportion in the blood, as ascertained through

the blood test, exceeded the prescribed limit,

which was provided as 80 mg. of alcohol in 100

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

Safety Act, 1988 came into force.

49. The provisions of relevance in the latest

enactment, that is the Act of 1988 are Sections

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

from 01.07.1992, reads as follows:

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

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

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

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

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

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

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

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

he is guilty of an offence.

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

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

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

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

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

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

xxx xxx xxx

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

Section 5 reads as follows:

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

(1) If a person –

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

84

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

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

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

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

(Emphasis supplied)

85

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

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

Traffic Act, 1988, and comparing it with Section

185 of the MV Act, 1988, yields the following

results:

The provision, in the British Act, which

is comparable to Section 185 of the Indian

Act, is Section 5. This is for the reason

that Section 5 also penalises driving or

attempting to driving a motor vehicle on a

road or other public place, after consuming

alcohol and when the proportion in his breath

is in excess of the prescribed limit. There

is no provision in the Motor Vehicles Act,

1988 corresponding to Section 4 of the Road

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

apart from driving or attempting to drive a

vehicle, having consumed alcohol, with a

86
blood alcohol level in excess of the

prescribed percentage, being an offence, it

is also an offence to drive or attempt to

drive a vehicle on a road or a public place,

if the person is unfit to drive due to drink

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

Act, 1988, makes it clear that a person shall

be taken as unfit, if his ability to drive

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

in fact, provides for a preliminary

impairment test, which primarily consists of

tasks to be performed by the person driving.

What we are pointing out is, a person under

the law in England, could, if by consumption

of alcoholic drink, be impaired, in his

ability to drive properly, then,

irrespective of whether he has a blood

alcohol level in excess of or below the

prescribed level, he would commit an

87
offence. The same principle animates Section

3A, which speaks about an offence upon death

following an accident, when he was driving

the vehicle, while being unfit to drive

through consumption of alcoholic drink. Here

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

unfitness to drive, on account of

consumption of liquor, is predicated on the

driver’s ability to drive properly, being

impaired. This is also to be determined by

the impairment test, apparently held under

Section 6B. We would find that a person can

be said to be under the influence of alcohol,

if his faculties are so disturbed that his

driving abilities, is impaired. This concept

of law is essentially following up on what

has been laid down by the court in in Mair

(Administratrix) supra. Cases can arise

where there is a clause of the nature we are

88
dealing with, viz., excluding the liability

of the insurer, when the driver is under the

influence of alcohol, in vastly different

circumstances. A 21-year-old, who is

otherwise licenced to drive a vehicle, may

experiment with drinking in the company of

his friends. He may consume a small quantity

of liquor. This may not satisfy the

requirement of alcohol present in the blood

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

unquestionable that the impact of the drink

on the person, may be demonstrated to be that

he is unable to drive in the manner in which

he would have driven, had he not taken that

small drink. In such a case, to insist that

he cannot be under the influence of alcohol,

unless, he has in his blood, the requisite

percentage of alcohol under Section 185 of

the MV Act, would be to make a new bargain

89
for the parties and also to rewrite the

contract. To be under the influence of

alcohol, in other words, must be understood

as, a question going to the facts and a

matter to be decided with reference to the

impact of consumption of alcohol on the

particular driver. Yet another example will

throw light on a seemingly vexed issue. A

person, who drinks on an empty stomach, would

necessarily have a faster rate of the alcohol

making its presence in the blood, and

consequently, in the brain. A person, on the

other hand, who has had food along with the

alcohol, may manifest the effect of alcohol

later. The effects of drinking alcohol, in

terms of external signs, have been described

by Modi in his work – Modi’s Medical

Jurisprudence and Toxicology. They are as

follows:

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

1. The quantity taken is no guide.

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

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

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

test, circumstances, associated with effects of

consumption of alcohol, are proved, it may

certainly go to show that the person who drove

the vehicle, had come under the influence of

alcohol. The manner, in which the vehicle was

91
driven, may again, if it unerringly points to

the person having been under the influence of

alcohol, be reckoned. Evidence, if forthcoming,

of an unsteady gait, smell of alcohol, the eyes

being congested, apart from, of course, actual

consumption of alcohol, either before the

commencement of the driving or even during the

process of driving, along with the manner in

which the accident took place, may point to the

driver being under the influence of alcohol.

It would be a finding based on the effect of the

pleadings and the evidence.

52. A conspectus of the aforesaid provisions

would lead us to the following conclusions:

Section 185 of the Motor Vehicles Act

creates a criminal offence. The short

title of Section 185 undoubtedly

proclaims that it purports to deal with

92
driving by a drunken person or by a person

under the influence of drugs. The offence

as far as driving by a drunken person is

concerned, was built around breach of an

objective standard, viz., the presence of

alcohol in the driver in excess of 30 mg

per 100 ml. of blood detected in a test

of breath analyser. The Section mandates

the proving of the objective criteria of

presence of alcohol exceeding 30 mg per

100 ml. of blood in a test by a breath

analyser. It is here that Section 203 of

the Motor Vehicles Act becomes apposite.

It empowers the police officer to require

any person driving or attempting to drive

motor vehicle in a public place to provide

one or more specimen of breath for breath

test, if Police Officer or Officer of

Motor Vehicle Department has reasonable

93
cause to suspect the driver has committed

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

with the situation where the vehicle is

involved in an accident in a public place.

In such circumstances, on a Police Officer

in uniform entertaining any reasonable

cause to suspect that the person driving

the vehicle, at the time of the accident,

had alcohol in his blood, inter alia, he

may require the person to provide specimen

of his breath in the breath test in the

manner provided. Section 203(6) declares

that the result of the breath test made

under Section 203 shall be admissible in

evidence. Section 203 contemplates arrest

without warrant being effected, if the

test indicated the presence of alcohol in

the breath test. Section 204 follows up

on a person who is arrested under Section

94

203. It, inter alia, provides that a

person who has been arrested under Section

203 is to provide to such medical

practitioner as may be produced by such

police officer, a specimen of his blood

for a laboratory test, if either it

appears to the police officer that the

breath test reveals the presence of

alcohol in the blood of such person or

such person when given the opportunity to

submit to a breath test, has refused,

omitted or failed to do so. The result

of the laboratory test is also made

admissible.

53. It is clear that Section 185 deals

with driving or attempting driving of a motor

vehicle a person with alcohol in excess of 30

mg per 100 ml in blood which is detected in a

test of breath analyser. Being a criminal

95
offence, it is indisputable that the

ingredients of the offence must be

established as contemplated by law which

means that the case must be proved beyond

reasonable doubt and evidence must clearly

indicate the level of alcohol in excess of 30

mg in 100 ml blood and what is more such

presence must be borne out by a test by a

breath analyser. We may also notice that with

effect from 01.09.2019, the following words

have been added to Section 185, that is “or

in any other test including laboratory test”.

54. It is to be noticed that this Court had

occasion to deal with the question whether

the prosecution under section 185 can succeed

in the absence of a test by a breath analyser.

In the decision reported in State through PS

Lodhi Colony v. Sanjeev Nanda8, the accused

8
2012 (8) SCC 450

96
escaped from the scene of occurrence. He could

not, therefore, be subjected to breath test

analyser instantaneously or to provide a

specimen of his breath for a breath test or a

specimen for his blood for a laboratory test.

Dealing with these provisions, K.S.

Radhakrishnan, J., in his concurring judgment

has held as follows:

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

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

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

98
1999 by Dr T. Milo, PW 10, Senior
Resident, Department of Forensic
Medicine, AIIMS, New Delhi who
reported as follows:

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

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

55. No doubt in the case noted above, the

presence of the alcohol content was much more

(that is 0.115% than the permissible limit).

99
It is also the case where the accident caused

the deaths of six persons. The above view,

no doubt, turned on the facts which rendered

the taking of the test by breath analyser

impossible. It was also found that the first

accused had been taken to the All India

Institute of Medical Science (AIIMS) at

12.29 p.m. on 10.01.1999 and the blood samples

revealed alcohol far in excess of the limit

indicated in Section 185. Also, after the

judgment, with effect from 01.09.2019, a

laboratory test or any other test aids the

prosecution to establish a case under section

185.

56. We have set out the provisions of Sections

of 185, 203 and 204 to deal with the argument

of the parties based on the impact of these

provisions, upon the operation of exclusion

clause of the Contract of Insurance in a case,

100
which does not involve any third party. The

Contract of Insurance, in the present case,

is a comprehensive Contract of Insurance

dealing with own damage and, no doubt, also

third party. What is, however, involved in

this case, is the liability alleged with the

Insurer under Clause (A), which deals with

‘own damage’.

57. In regard to a claim involved in this case

as aforesaid, we are of the view that there

is nothing in law which would otherwise

disentitle the appellant from setting up the

case that the exclusion clause would

disentitle the respondent from succeeding.

As to whether it is a case of driving of the

vehicle under the influence of the alcohol is

different matter, altogether. The requirement

of Section 185 is in the context of a criminal

offence. While it may be true that if there

101
is a conviction under Section 185, it would,

undoubtedly, fortify the Insurer in

successfully invoking Exclusion Clause 2(c),

is the reverse also true? We expatiate. If

prosecution has not filed a case under Section

185, that would not mean that a competent

Forum in an action alleging deficiency of

service, under the Consumer Protection Act,

is disabled from finding that the vehicle was

being driven by the person under the influence

of the alcohol. The presence of alcohol in

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

an indispensable requirement to enable an

Insurer to successfully invoke the clause.

What is required to be proved is driving by a

person under the influence of the alcohol.

Drunken driving, a criminal offence, under

Section 185 along with its objective criteria

of the alcohol-blood level, is not the only

102
way to prove that the person was under the

influence of alcohol. If the Breath Analyser

or any other test is not performed for any

reason, the Insurer cannot be barred from

proving his case otherwise.

58. What we are dealing in this case is,

construction of words in a contract between

the parties. There is no case for the

respondent that the terms of the contract to

exclude the liability of the appellant, are

in any way illegal. We can without difficulty

imagine a circumstance in which the

proposition that should the Insurer fail to

establish a case in terms of Section 185 BAL

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

be the proper approach to the issue. It is

not difficult to contemplate that the

accident may take place with the driver being

under the influence of alcohol and neither

103
the Breath Test nor the laboratory test is

done. A driver after the accident, may run

away. A test may never be performed. However,

there may be evidence available which may

indicate that the vehicle in question was

being driven at the time of the accident by a

person under the influence of alcohol. It

cannot then be said that merely because there

is no test performed, the Insurer would be

deprived of its right to establish a case

which is well within its rights under the

contract.

A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL

59. In Modi’s Medical Jurisprudence and

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

stated:

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

104

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

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

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

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

a = cpr

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

              105

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

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

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

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

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

106
[We may profitably remind

ourselves in Kennedy v. Smith (See

paragraph 25 of the judgment), it was

a case of one and a half pints of lager

(a kind of beer) and it would have

meant today 55 mg/100 ml well over the

30 mg/100 ml limit in India.]

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

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

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

108

xxx xxx xxx

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

(Emphasis supplied)

60. The learned Author discusses about ‘acute

alcohol intoxication’. He also talks about

chronic poisoning of habitual drinker. We may,

at once, observe that under the Exclusion

Clause, the Court need not be detained by either

condition. In other words, it is not necessary

for the Insurer to establish that there was acute

alcohol intoxication and equally, it need not be

shown that the vehicle was driven by a person

who was a chronic alcoholic. All that is required

is to show that at the time of driving the

vehicle, resulting in the accident, the driver

was under the influence of alcohol. In this

109
regard, we may notice the following observations

of Modi:

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

1. The quantity taken is no guide.

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

61. We notice that Blood Alcohol Concentration

or BAC is, thus, the concentration of alcohol in

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

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

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

110
This corresponds to 0.03 percentage of alcohol

in the blood, beyond which, it is an offence

under Section 185 to drive or attempt to drive

as declared. As noticed, BAC is correlated to a

number of variables. It is affected by gender

and body weight. The male has more water content

than a female. On same quantity drunk, the latter

builds up greater BAC than the former. BAC is

also affected clearly on whether the person

drank on an empty stomach or not. The liver

metabolises ordinarily a standard drink at the

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

which the drinks are taken, impacts the BAC

level. Even the genes play their part.

THREE REPORTS

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

Report to the Congress on ‘Driving under the

influence and relating to alcohol limits’ given

111
by the Department of Transportation, National

Highway Safety Administration, in October, 1992,

states as follows, inter alia:

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

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

112

CHAPTER II. ALCOHOL. EFFECTS

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

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

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

63. Therefore, the presumptive laws provide for

presumptive limits for alcohol consumption,

contravening which, would result in the

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

alcohol. As of now, in the United States of

America, the presumptive limit, which was

initially reduced from 0.15 to 0.10, has been

further reduced in almost all the States to

0.08. In fact, there are lower BAC (Blood

Alcohol Concentration) levels or zero tolerance

levels, for under aged drivers.

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

Department of Transportation in July, 1998,

dealing with ‘the effects of low doses of

alcohol on driving related skills, a review of

the evidence’, the study used 177 citations.

Driving is a multitask skill. Driving involves

performance of various tasks. It includes

psycho-motor skills, perception, visual

function, information processing, concentrated

attention, divided attention, reaction and

tracking. The Report finds as follows: “it seems

114
there is no lower threshold level, below which

impairment does not exist for alcohol”: The

conclusion and Recommendations read as follows:

“CONCLUSIONS AND RECOMMENDATIONS

The aim of the present review was to
consider alcohol effects on aspects of
skilled performance related to
driving, with a view to assessing the
extent of impairment caused by low
doses of alcohol. The evidence
reviewed here indicates that alcohol
does not uniformly impair all aspects
of performance. Areas such as
oculomotor function and divided
attention performance demonstrate that
impairment can occur at BACs as low as
0.02%. It is clear, moreover, that
BACs of 0.05% or more impair nearly
all of the important components of
driver performance. In assessing the
minimum BACs required to produce
performance decrements relevant to
driving, it can be noted that for most
of the performance areas discussed
here impairment has been reported at
BACs between 0.01 and 0.02%.

Unfortunately, relatively few studies
have investigated the effects of BACs
below 0.04%, so that information about
the behavioral impairment at BACs
below 0.04% is less available than at
0.05% and above. There is sufficient
evidence, however, to demonstrate that
115
BACs of 0.05% and more produce
impairment of the major components of
driver performance: reaction time,
tracking, divided attention
performance, information processing,
oculomotor functions, perception, and
other aspects of psychomotor
performance. The few studies on
alcohol-aggression effects are
consistent with frequent reports by
police officers of hostile behaviors
exhibited by offenders. The present
review has worked from the model
provided by Moskowitz (1973a,b), which
suggested that driving is a time
sharing task, the principal components
of which are tracking and visual
search and recognition. It is clear
that BACs of 0.05% or more impair both
of these individual skill components
and, at lower levels, also impair the
combination of these skills in a
divided attention situation. Higher
BAC levels (for example, those over
0.10%) also show consistent impairment
effects. Evidence from studies of
alcohol on actual driving tasks
demonstrates that driver performance
is similarly affected. Thus, the
weight of existing empirical evidence
is considered sufficient to
scientifically justify the setting of
legal BAC limits at 0.05% or lower.
Research on BACs below 0.05% should be
encouraged. As noted, there is
extensive evidence of performance
impairments at these lower BACs, but
further studies would permit better

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

(Emphasis supplied)

65. We deem it appropriate also to refer to

“Report of the Review of Drink and Drug Driving

Law” which was submitted in the year 2010 in the

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

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

with a blood-alcohol concentration in excess of

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

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

to enquire and submit a Report as to whether

there was need to reduce the limit. The Report,

inter alia, states as follows:

“Research findings

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

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

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

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

Breath testing devices – Non-
evidential, fixed evidential and
portable evidential
3.69. The first practical device for
the analysis of alcohol in human
breath was developed in the USA in the
mid-1950s. The Breathalyzer®
instrument gained wide acceptance and
was used in traffic law enforcement by
police officers in the USA, Canada and
Australia over many years.93 The
Breathalyzer® provided a non-
intrusive way to determine the
driver’s BAC although European nations
showed no interest in this method for
forensic purposes and instead
determined alcohol in blood as
evidence for prosecution of drunken
drivers. Interest in Europe in
evidential breath-alcohol testing
arose in the 1980s when more compact,
automated and reliable instruments
became available.

In Chapter 4: Drink driving –
Conclusions and recommendations,
following conclusions have been noted:
Lowering the current blood alcohol
limit from 80 mg/100 ml to 20 mg/100
ml

119
4.6. As paragraph 1.23 sets out, a
blood alcohol concentration (BAC)
limit of 20 mg/100 ml is effectively
a zero tolerance level. The NICE
Report provides clear evidence that a
person’s ability to drive is affected
after consuming any amount of alcohol.
A driver who has a BAC of between 20
mg/100 ml and 50 mg/100 ml is at least
3 times more likely to die in a road
traffic accident than a person who has
no alcohol in their body.

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

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

bracket for younger driver appears to be 17-24

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

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

TWO ARTICLES

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

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

absorbed in the stomach and almost 80% is

absorbed in the small intestine. Alcohol

absorption is related to the two main factors:

a. Concentration of alcohol and

b. Heavy meal consumption before drinking.

An empty stomach will fasten the alcohol

absorption.”

68. “Absorbed alcohol enters the blood stream

and is carried all through the body. Upon

reaching the body, simultaneously the body works

to eliminate it. The 10% of alcohol is removed

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

alcohol into acetaldehyde first and then further

converted to acetic acid.”

HOW DOES ALCOHOL ACT AT THE NEUROLOGICAL
LEVEL?

69. “Brain chemistry is affected by alcohol

through alteration of neurotransmitters.

Neurotransmitters are chemical messengers that

send out the signals all through the body and

control thought processes, behaviour and

sensation processes. Neurotransmitters are

either excitatory (excite brain electrical

motion) or inhibitory (decrease brain electrical

motion). Alcohol increases the effects of the

inhibitory neurotransmitter GABA in the brain.

GABA causes the lethargic movements and garbled

speech that often occur in alcoholics. At the

same time, alcohol inhibits the excitatory

neurotransmitter glutamate, which results in a

122
suppression of a similar type of physiological

slowdown. In addition, alcohol also increases

the amount of chemical dopamine in the brain

centre, which creates the feeling of pleasure

after drinking alcohol. Just after a few drinks,

the physical effects of alcohol become

perceptible. The level of BAC rises when the

body takes up alcohol faster than it can release

it.”

70. In an Article titled “Police officers’

detection of breath odors from alcohol

ingestion” by Herbert Moskowitz, Marcelline

Burns and Susan Ferguson, we note the following:

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

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

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

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

Drivers with a zero BAC were correctly
identified 93% of the time. There were
7% false-positives, i.e.
identification of a zero BAC driver as
having alcohol odor. Since officers
were aware that they were
participating in an alcohol study, a

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

Variability between officers in
detecting odor was quite large.”
(Emphasis supplied)
It is not clear whether the odor in the

breath was sought to be discerned without any

devise.

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

71. Shri Gopal Sankarnarayanan, learned Senior

Counsel for respondent contended that the

argument of the appellant that the Insurer was

saddled with the liability to prove violation of

the condition, which is impossible of

achievement, is without basis, in the facts of

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

contents of the Investigator Report. He pointed

out that the Investigation Report would show

that the Investigator was very much present in

the early morning, and therefore, he had the

opportunity to interact with the driver of the

car, the Police Officers and the Doctors. The

Investigator could have also insisted on getting

the test done on the driver. However, despite

this opportunity being presented, he has not

availed of the same. Thus, it shows that there

is no merit in the appellant’s contention that

the person driving the vehicle was under the

influence of alcohol.

72. The relevant portion of the Investigation

Report reads as follows:

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

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

Information Received from S.I.
Mukhtiar Singh:

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

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

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

73. An addendum report dated 06.02.2008, is

found as follows:

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

129
vehicle no. DL1CJ-3577 of M/S Pearl
Beverages under covemote no.
37669622.

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

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

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

indicates that the Investigator was deputed by

the appellant. It also suggests that he went to

the accident spot on 22.12.2007. The reference

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

learned Counsel for the respondent as the time

130
at which the Investigator, inter alia, is

alleged to have reached the spot, is actually

part of the information which the Investigator

received from the Sub-Inspector. The Sub-

Inspector has informed the Investigator that he

received information at 5.05 am and, thereafter,

he, along with a Constable, had reached the spot

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

only part which makes up the Report, as such,

of the Investigator, is his observations. Thus,

the Investigator’s Report does not appear to

suggest that the Investigator had been to the

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

therefore, had the opportunity to interact with

the driver of the vehicle or ensure that the

test was conducted to show that the driver was

driving under the influence of alcohol. Thus,

we repel the contentions of the respondent.

131

75. On facts, having rejected the argument of

the respondent that the surveyor appointed by

the appellant was present at the time of the

accident or immediately after the accident, we

must look at the some of the terms of the

insurance policy. The contract provides that

the notice shall be given in writing to the

insurer immediately after the occurrence of any

accidental loss or damage in the event of any

claim. The insured has to give all information

and assistance as required by the company. It

is obviously true that the appellant was

intimated on 22.12.2007 which is evident from

the fact that investigator did go to the

accident spot on 22.12.2007 and inspected the

car. The exact time given is however not

mentioned in the report. The time at which he

went was also not got articulated through the

interrogatory issued by the respondent. It

132
would appear to be a case where the driver of

the car not having suffered any fresh injury

would not have been available in the hospital.

The police authorities obviously did not carry

out the blood test or the breath test. As to

what transpired in this regard the matter

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

that the informant officer’s priority was to

take the men out and to take them to the

hospital. However, we cannot resist recording

our disquiet at the conduct of the police

officer in not pursuing the matter in the form

of conducting a breath test or other tests and

pursuing the matter under Section 185 of the

Motor Vehicles Act or by filing of final report.

However we desist from saying anything more

having regard to the fact that 14 years have

gone by.

133

76. Coming to the question again on burden of

proof, insofar as the appellant–insured seeks

to establish exclusion of liability is

concerned, the burden of proof is upon it,

subject to what we hold.

77. In the context of question relating to

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

cannot but notice Section 106 of the Evidence

Act. Section 106 of the Evidence Act speaks of

the burden of proving facts which are in the

special knowledge of the person. Section 106

of the Evidence Act reads as follows:

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

78. This Section enshrines the principle which

conduces to establishing facts when those facts

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

provision which applies to both civil and

criminal matters also. We do notice V. Kishan

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

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

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

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

79. Even if, the Section as such is not

applicable to the Consumer Protection Act, there

can be no reason why the principle cannot apply

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

Shambu Nath Mehra v. State of Ajmer9. Paragraph

11 of the said judgment reads as under:

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

It means facts that are pre-

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

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

80. The same view has been taken in Murlidhar

and others v. State of Rajasthan10 .

81. If we apply the principle of Section 106 of

the Evidence Act, would it not produce the

following result?

The respondent set up the case that the

driver had not consumed any alcohol. In the

very next sentence, it is pleaded that

further assuming that he had consumed

alcohol, as he was not intoxicated the

exclusion clause is not attracted. When it

came to affidavit evidence, however, the

driver has not deposed that he had not

10 AIR 2005 SC 2345

137
consumed intoxicating liquor. He has only

stated that he was neither under the

influence of intoxicating liquor or drugs at

the time of the accident. In view of the

evidence that pointed to the driver smelling

of alcohol and the absence of any evidence

by even the driver that he has not consumed

alcohol and as even found by the National

Commission, it would appear to be clear that

the car was driven by the driver after having

consumed alcohol. In such a case as to what

was the nature of the alcohol and what was

the quantity of alcohol consumed, and where

he had consumed, it would certainly be facts

within the special knowledge of the person

who has consumed the alcohol. The driver has

not, for instance also, once we proceed on

the basis that he has consumed alcohol,

indicated when he has consumed the alcohol.

138

It would be “disproportionately difficult”

as laid down by this Court for the insurer

in the facts to have been proved as to

whether the driver has consumed liquor on an

empty stomach or he had food and then

consumed alcohol or what was the quantity

and quality of the drink (alcohol content)

which would have been circumstances relevant

to consider as to whether he drove the

vehicle under the influence of alcohol. The

driver has merely stated that he was not

under the influence of intoxicating liquor

and he was in his full senses.

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

interrogatories served on the driver by the

appellant. It must be noted here that this Court

has laid down that having regard to the nature

of the proceeding under the Consumer Protection

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

modality of interrogatories. In Dr. J.J.

Merchant (Dr) v. Shrinath Chaturvedi11

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

11 (2002) 6 SCC 635
140
examined by the court or the
Commissioner appointed by it. As
stated above, the Commission is also
empowered to follow the said
procedure. Hence, we do not think
that there is any scope of delay in
examination or cross-examination of
the witnesses. The affidavits of the
experts including the doctors can be
taken as evidence. Thereafter, if
cross-examination is sought for by
the other side and the Commission
finds it proper, it can easily
evolve a procedure permitting the
party who intends to cross-examine
by putting certain questions in
writing and those questions also
could be replied by such experts
including doctors on affidavits. In
case where stakes are very high and
still a party intends to cross-
examine such doctors or experts,
there can be video conferences or
asking questions by arranging
telephonic conference and at the
initial stage this cost should be
borne by the person who claims such
video conference. Further, cross-
examination can be taken by the
Commissioner appointed by it at the
working place of such experts at a
fixed time.”
(Emphasis supplied)

83. Thus, unlike in proceeding in a court,

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

the principle of Section 106 of the Evidence Act

only cast the burden on the person who has

special knowledge of the facts, apart from the

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

where it was consumed, the quality and quantity

of alcohol consumed, the time at which it was

consumed, whether it was accompanied by food

which can clearly be said to be within the

knowledge of the person who drove the vehicle,

the effects of the drinking by way of signs

discernible, after the accident took place, in

the facts, cannot be said to be within the

knowledge of the driver only. We say this for

the reason that according to FIR, the police

constable on patrol has purported to describe

the happening of the accident and was present

at that time. According to his version, he has

with the aid of his companion officer helped the

142
driver and the co-passenger out of the vehicle

and they were taken to the hospital. At the

hospital, in the medical legal report, there is

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

however, true that the insurer or his agent may

not have been given notice at that stage. We

also agree that it would not be proper or legal

to hold that in such circumstances, the insurer

would still be in a position to prove through a

breath test or blood test that the driver was

under the influence of alcohol. If the driver

having regard to the fact did not suffer any

fresh injury is discharged from the hospital and

goes away, we find it inconceivable as to how

the insurer could be at fault for not having a

breath or blood test conducted. It may be true

that the insurer could have obtained material

in the form of affidavit evidence from the

police officer or the medical practitioner

143
concerned regarding any other facts regarding

consumption of alcohol by the driver.

RES IPSA LOQUITUR

84. The State Commission has applied the

principle of res ipsa loquitur. The question

to be answered is not whether the driver of the

vehicle was negligent. Res ipsa loquitur has

been discussed in the decision of this Court in

Syad Akbar v. State of Karnataka12 and this is

what is held:

“19. As a rule, mere proof that an
event has happened or an accident
has occurred, the cause of which is
unknown, is not evidence of
negligence. But the peculiar
circumstances constituting the event
or accident, in a particular case,
may themselves proclaim in
concordant, clear and unambiguous
voices the negligence of somebody as
the cause of the event or accident.

It is to such cases that the maxim
res ipsa loquitur may apply, if the
cause of the accident is unknown and
no reasonable explanation as to the
cause is coming forth from the
12 (1980) 1 SCC 30
144
defendant. To emphasise the point,
it may be reiterated that in such
cases, the event or accident must be
of a kind which does not happen in
the ordinary course of things if
those who have the management and
control use due care. But, according
to some decisions, satisfaction of
this condition alone is not
sufficient for res ipsa to come into
play and it has to be further
satisfied that the event which
caused the accident was within the
defendant’s control. The reason for
this second requirement is that
where the defendant has control of
the thing which caused the injury,
he is in a better position than the
plaintiff to explain how the
accident occurred. Instances of such
special kind of accidents which
“tell their own story” of being
offsprings of negligence, are
furnished by cases, such as where a
motor vehicle mounts or projects
over a pavement and hurts somebody
there or travelling in the vehicle;
one car ramming another from behind,
or even a head-on collision on the
wrong side of the road. (See per Lord
Normand in Barkway v. South Wales
Transport Co. [(1950) 1 All ER 392,
399]; Cream v. Smith [(1961) 8 AER
349]; Richley v. Faull [(1965) 1
WLR 1454 : (1965) 3 All ER 109] )

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

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

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

the facts without anything more clearly and

unerringly points to negligence. The principle

of res ipsa loquitur, as such, appears to be

inapposite, when, what is in question, is

whether driver was under the influence of

alcohol. It may be another matter that though

the principle as such is inapplicable, the

manner in which the accident occurred may along

with other circumstances point to the driver

being under the influence of alcohol.

THE FLAWS IN THE IMPUGNED ORDER

86. In the order of the National Commission

which is relied upon, the Commission has

referred to Modi’s Medical Jurisprudence and

Toxicology, 24th edition. The Commission finds

146
that in the opinion of the author, the

percentage of alcohol in the blood would be 0.2%

in case the quantity of alcohol per 100 ml of

blood is 200 mg. The finding that a person can

be said to be moderately intoxicated if he has

200 mg per 100 ml is an incorrect inference.

The person who has such a level of alcohol would

have 0.2% of alcohol. Such a person would

clearly be heavily intoxicated. This is clear

from a perusal of the table showing the effects

in the Manual for Physicians referred to in

paragraph 7 of the relied upon order.

87. The further finding that a person with a

concentration of 0.15% of alcohol in the blood

is regarded as fit to drive a motor vehicle and

such percentage happens when he has 150 mg of

alcohol per 100ml blood is an observation made

based on Modi’s Medical Jurisprudence and

Toxicology. Modi in his work has in this regard

147
drawn upon the presumptive limit which

prevailed in the United States. In the United

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

concentration was the maximum presumptive

limit. If the alcohol concentration was found

to be in excess of 0.15% unless rebutted by the

accused, it was presumed that the driver was

under the influence of alcohol. In fact, there

was a lower presumptive limit of 0.05% and if

the concentration was below this limit it was

presumed that the driver was not in the wrong.

What is relevant is that following various

studies the presumptive limit on the one hand

stood lowered in all the states and the maximum

presumptive limit was initially reduced to

0.10% and thereafter it was reduced to 0.08%.

In India the percentage is 0.03 which is the

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

in Sweden, the percentage is still lower. It is

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

reference is made to Lyon’s Medical

Jurisprudence and Toxicology. Reference is made

therein to the policy statement of the American

Medical Association and National Safety Council

of the USA that 0.10% can be taken as prima

facie evidence of alcoholic intoxication and

recognising that many individuals are under the

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

loggerheads with the earlier reference to 0.15%

alcohol not rendering a person unfit to drive

the motor vehicle unless it is understood as

the law at an earlier point of time. The further

reference to 0.05% blood alcohol level raising

a presumption that a subject was not under the

influence of alcoholic beverage is again based

on the set of laws in the United States which

provided for such a presumption. The National

Commission has not considered the fact that

149
along with such presumptive limit, the laws in

the United States also further provide that

irrespective of the alcohol percentage or BAC

level, if the vehicle is not driven safely and

a person has consumed alcohol, he is liable to

be booked under another set of laws. The

observation made in Lyon’s Medical

Jurisprudence that blood alcohol level of less

than 0.10% does not raise a presumption of

intoxication is also contrary to the

developments under which even the presumptive

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

is a zero-percentage alcohol level or 0.02%

alcohol in most states for the underaged drivers

in the United States. Coming to paragraph 7 of

the relied upon order, the Commission has

referred to the Manual for Physicians in

National Drug Dependence Treatment Centre, All

India Institute of Medical Sciences, New Delhi.

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

classification. Actually, it is intended for a

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

classification the actual effects of alcohol

consumption are shown as follows – “Noisy,

moody, impaired judgement, impaired driving

ability” as against the third classification

100 to 200 BAC, the effects of which are –

“Electroencephalographic changes begin to

appear, Blurred vision, unsteady gait, gross

motor in-coordination, slurred speech,

aggressive, quarrelsome, talking loudly.”

The Commission has not referred to the effects

of BAC below 80 brought out in the Manual. In

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

feeling of relaxation and talking freely,

clumsy movement of hands and legs, reduced

alertness but believes himself to be alert.”

The relied upon order also shows disinclination

151
to accept views expressed in Modi’s Medical

Jurisprudence and Toxicology on the basis of

the opinion of All India Institute of Medical

Sciences which is allegedly collaborated by the

opinion expressed in Lyon’s Medical

Jurisprudence and Toxicology. The Commission in

the said case, which did not deal with a case

of driving after consuming liquor, found the

limits relevant as fixed in various countries.

The quantity of alcohol allowed in the USA is

stated to be not above 100 mg in 100 ml of

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

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

reduced to 0.08% corresponding to 80 mg in 100

ml.

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

conflating the requirement under Section 185 of

the Motor Vehicles Act, with that under the

152
exclusion clause in the contract of insurance

in question.

THE FIR

89. The Report is based on a statement given by

a Police Constable Anand Kumar. His statement

would show that as the Constable posted at the

Police Station, Tilak Marg, New Delhi, on

21/22.12.2007, he and another Constable were on

patrolling. At about 02.25, he on his motorcycle

reached c-hexagon, Zakir Hussain Marg. He saw

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

in question), came from the Nizamuddin side

towards the Zakir Hussain Marg, India Gate, in

a very rash, negligent way and at a very high

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

of control and hit at a massive force with a

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

Children Park, India Gate, electric pole and

153
the wall of the Children park and got

overturned. The car caught fire. He along with

his associate, a Home Guard, brought the driver

Shri Aman Bangia and his associate out of the

said car, after great efforts and reported about

the incident to wireless opp. (must be operator)

D-56 of Police Station, through wireless.

Vehicles of the fire brigade, PCR Van and

Additional SHO Van, came to the spot. He reports

that the accident occurred due to the rash and

negligent driving. FIR shows that the Sub-

Inspector, on the basis of the said information,

which he recorded, goes to the site of the

accident. It is recorded in the FIR further that

the Add/SHO and the vehicles of the fire brigade

were all so present for controlling the fire.

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

accused to the Ram Manohar Lohia Hospital. The

Sub-Inspector goes to the Hospital. He received

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

passenger. In the same, the Doctors have

reported that there is no evidence of fresh

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

same report is made about both the driver and

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

as 27 years. It was further recorded that a case

under Section 279/427 of the IPC and Section

185 of the MV Act had been committed. The date

and time of the occurrence is again shown as

22.12.2007 at about 02.25.

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

proceedings of the Metropolitan Magistrate dated

27.08.2011 would show that for the offence under

Section 279 of the IPC the charge was separately

framed against the driver of the car and he

voluntarily pleaded guilty. He was convicted

under Section 279 of IPC and sentenced to pay a

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

clause.

91. A perusal of the Order of the State

Commission would show that the FIR and the

Medico Legal Case sheet has been produced by the

respondent itself.

92. There can be no doubt that the respondent

itself sought to rely on the FIR and the Medico

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

The FIR has been prepared on the basis of the

Report of the Police Officer. The use of the FIR

in criminal case is to be distinguished from its

employment in a consumer case. This is so, in

particular, when the FIR is relied upon by the

complainant himself. It is noteworthy further

that though in the complaint, it was contended

that the Police had lodged the FIR under Section

185 of the Motor Vehicles Act besides Section

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

156
filed till the date of the complaint, meaning

thereby that the Police, after investigating the

case, could not find any evidence to prosecute

the driver for any of the offences, it must be

noticed that the complaint is of the year 2009

and it seen dated 04.03.2009, the case of the

respondent that there was no evidence to

prosecute the driver for any of the offences,

is falsified by the driver pleading guilty in

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

the offence under Section 279 of IPC, which took

place, apparently, during the pendency of the

complaint before the State Commission and the

State Commission has taken notice of this

development.

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

filed by the respondent, there is no dispute

that the MLC contained reference to the driver

and the co-passenger smelling of alcohol.

157

94. At this juncture, it is necessary to notice

the case set up by the respondent. It expressly

sets up the case that the person driving the

vehicle had not consumed any alcohol. The very

next sentence, no doubt, sets up the alternate

case, which is that further assuming that he had

consumed alcohol, the case would not fall under

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

not intoxicated.

95. It is further noteworthy that PW1, the

Company Secretary of the respondent, has, in is

his Affidavit evidence, stated that under

Section 185 of the MV Act, a certain percentage

of alcohol is to be found before a person is to

be prosecuted for the offence of drunken

driving. The law does not prohibit driving after

consuming liquor and all that is prohibited is,

that the percentage of liquor should not exceed

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

158
understanding appears to be that only in

circumstances, where the act of driving, having

consumed liquor, attracts the wrath of Section

185 and an offence is committed thereunder, that

the opprobrium of the Exclusion Clause in the

Contract of Insurance, for own damage, is

attracted.

96. The Affidavit of PW2, the driver himself,

would show that he does not depose that he had

not consumed liquor as was the case in the

complaint. Instead, he deposes only that he was

neither under the influence of intoxicating

liquor or drugs at the time of the accident. He

further deposed that he was in his full senses

and capable of exercising proper control over

the said vehicle. Even, at the stage of the

deposition through affidavit, which appears to

have been filed in 2010, he reiterates that the

case in FIR No. 453 of 2007, was falsely

159
registered. The case pending against him in the

Court of the Metropolitan Magistrate, New Delhi,

is stated to be malafide and he is sure to be

acquitted in the said case. Nearly, within a

year, as already noticed by us, however, the

allegedly false case is accepted by the driver

as true. The Affidavit of PW2, would not show

that the driver had not consumed liquor, which

case is set up. On the contrary, driver having

drunk, is fortified by the MLC, which clearly

indicates that the driver was smelling of

alcohol.

97. Therefore, it can be safely concluded that

the case set up of the respondent that the

person driving the car had not consumed

liquor, is clearly false.

160
THE INTERROGATORIES

98. The following interrogatories dated

18.10.2010, were apparently served by the

respondent on the appellant:

“INTERROGATORIES ON BEHALF OF
COMPLAINANT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

162

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

99. The reply given to the interrogatories

by the appellant, read as follows:

        “REPLY      BY      RESPONDENTS       TO
        INTERROGATORIES   FILED ON BEHALF     OF
        COMPLAINANT

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

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

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

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

Ans. Not necessary.

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

Ans. Yes.

        5. What     are  the      educational
        qualifications of Mr.     Sonu Bhola
        Advocate?
        Ans. B.Com LLB.



                      163

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

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

7. Has Mr. Bhola personally met Mr.
Aman Bangia, the Driver of the
vehicle. If yes when and where?
Ans. No.

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

Ans. Based on MLC, FIR.

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

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

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

Ans. We are not aware of it.

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

164
Investigating officer during his
Investigation?

Ans. No.

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

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

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

Ans. No.

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

Ans. No.

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

Ans. No.

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

Ans. No.”

165

100. The interrogatories, along with the

answers, reveal the following:

a. The Surveyor of the appellant is a Lawyers

Firm.

b. The Surveyor has not personally met the

driver of the car.

c. The observations made by the Surveyor is

based on the MLC and FIR.

d. The appellant is not aware as to whether

the Surveyor had met any Doctor, during

his investigation.

e. The Surveyor has not obtained any medical

test report from the Doctor or the

Investigating Officer, during his

investigation.

f. The appellant pleads ignorance as to

whether any urine test was conducted on

the driver to determine the consumption of

the alcohol.

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

as to whether any blood sample was taken

to determine the consumption of alcohol.

h. The appellant, in its answer, has stated

that it has not filed affidavit of the

Doctor, who has stated ‘smell of alcohol’

in his Report.

i. The appellant has also stated that he does

not have any Medical Report to show the

level of alcohol in the blood.

101. We would think that it would not be

appropriate to conflate the two situations,

viz., the requirement under Section 185 of the

MV Act and an Exclusion Clause in the Contract

of Insurance in question. The requirements of

drunken driving under Section 185 of the MV Act,

can be proved only with reference to the presence

of the alcohol concentration which is 30 mg per

167
100 ml of blood. This corresponds to 0.03 per

cent BAC. In fact, it is noteworthy that in

Sweden and in China, it is 0.02.

102. As far as establishing the contention by the

insurer in a Clause of the nature, we are dealing

with, viz., a case where the insurer alleges

that the driver was driving the vehicle under

the insurance of alcohol, it is all very well,

if there is a criminal case and evidence is

obtained therein, which shows that the driver

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

the BAC level was 0.03 or more. We would think

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

breath test, which indicates that there is no

consumption at all, undoubtedly, it would not be

open to the insurer to set up the case of

exclusion. The decision of this Court in

Bachubhai Hassanalli Karyani (supra) was

rendered under Section 117 of the Motor Vehicles

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

and what is more it turned on the evidence also.

103. However, in cases, where there is no

scientific material, in the form of test results

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

disable the insurer from establishing a case for

exclusion. The totality of the circumstances

obtaining in a case, must be considered. The

scope of the enquiry, in a case under the

Consumer Protection Act, which is a summary

proceeding, cannot be lost sight of. A consumer,

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

proved deficiency of service. The deficiency of

service would arise only with reference to the

terms of the contract and, no doubt, the law

which surrounds it. If the deficiency is not

established, having regard to the explicit terms

of the contract, the consumer must fail.

169

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

an exclusion of the nature involved in this case,

must be viewed. We can safely proceed in this

case, on the basis that the person driving the

vehicle had consumed alcohol. We can proceed on

the basis that he drove the car after having

consumed alcohol. It is true that the exact

quantity, which he had consumed, is not

forthcoming. The fact that he smelt of alcohol,

is indisputable, having regard to the contents

of the FIR and also the MLC. He was accompanied

by PW3. PW3 also smelt of alcohol. The incident

took place in the early hours of 22.12.2007. It

happened at New Delhi. It is further clear that

it happened in the close vicinity of India Gate.

The driver and the passenger were in their

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

early hours, the version of the parties must be

appreciated without reference to any possibility

170
of the accident happening as a result of any

sudden incident happening, as for instance,

attempted crossing of a person or an animal,

which necessitated the vehicle, being involved

in the accident, in the manner, which is borne

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

the respondent. It is clear that we can safely

proceed on the basis that the vehicle was driven

in a rash and negligent manner, having regard to

the conviction entered under Section 279 of the

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

the respondent putting up the case that the

driver had not consumed alcohol and that the

case, even under Section 279 of the IPC was a

false case. Still further, if we examine the

exact nature of the accident, it speaks

eloquently for the influence, which the

consumption of alcohol had produced on the

driver of the vehicle. The car, which is

171
undoubtedly a Porsche, which we presume, has a

very powerful engine and capable of achieving

enormous speed, is reported to have gone out of

control and hit at a massive force with the

footpath of the road. It overturned. It caught

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

that the car was a complete wreck. It was

described as a total loss. The vehicles of the

fire brigade came to douse the fire. We are

conscious that speed and its impact can be

relative to the road, the traffic and the speed

limits. The FIR refers to the car being driven

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

without having been under the influence of

alcohol. At the same time, being under the

influence of alcohol can also lead to rash and

negligent driving. They are not incompatible.

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

into account the improbability of any traffic

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

we may be in agreement with the respondent that

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

for pressing the Exclusion Clause, we cannot be

oblivious to the fact that there is no material

in the pleadings of the respondent or in the

evidence tendered for explaining the accident.

We can take judicial notice of the fact that the

roads in the Capital City, particularly in the

area, where the accident occurred, are

sufficiently wide and the vehicle dashing

against the footpath and turning turtle and

catching fire, by itself, does point to, along

with the fact that the alcohol which was consumed

manifests contemporaneously in the breath of the

driver, to conclude that alcohol did play the

role, which, unfortunately, it is capable of

producing.

173

106. Applying the principles, which have been

referred to, to the facts of the present case,

we summarize the following conclusions:

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

driver, the Report, inter alia, indicates

that smell of alcohol (+);

B. Pertinently, the very same Report is there

in regard to the co-passenger. Both the

driver and the passenger were in the late

twenties;

C. The smell of alcohol has been discerned by

a Medical Practitioner;

D. Though the case was set up by the

respondent that the driver had not

consumed alcohol, the driver, in his

evidence (Affidavit evidence), has not

even stated that he has not consumed

alcohol, as was the specific case set up

in the complaint. On the other hand, the

174
alternate case, which was set up that he

was not under the influence of alcohol,

alone was deposed to. This is even though

the respondent had reiterated in the

Rejoinder Affidavit that the driver of the

vehicle had not consumed alcohol or any

other intoxicating drink/drug;

E. Even the NCDRC has proceeded on the basis

that the driver had consumed some alcohol.

Therefore, the conclusion is inevitable

that the appellant has established that

the driver had consumed alcohol and was

driving the vehicle, when the accident

took place;

F. There is no evidence as to the quantity of

alcohol consumed. It is also true that

there is no evidence other than the smell

of alcohol being detected on both the

175
driver and the co-passenger, of any other

effects of consumption of alcohol;

G. The requirement under Section 185 of the

Motor Vehicles Act is not to be conflated

to what constitutes driving under the

influence of alcohol under the policy of

insurance in an Own Damage Claim. Such a

claim must be considered on the basis of

the nature of the accident, evidence as to

drinking before or during the travel, the

impact on the driver and the very case set

up by the parties.

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

regards the manner in which the accident

itself occurred. In this regard, it is

clear that in any such case, this is an

important circumstance, which may

establish that the driver was under the

influence of alcohol. Driving, while under

176
the influence of alcohol, is to be

understood as driving when, on account of

consumption of alcohol, either before

commencement of driving or during the

driving and before the accident, when

consumption of alcohol by the driver would

affect (influence) his faculties and his

driving skills. We would expatiate and

hold that it means that the alcohol

consumed earlier was the cause or it

contributed to the occurrence of the

accident.

I. The respondent has no case that the

accident occurred as a result of a sudden

event which took place, which necessitated

the car being driven into the footpath.

For instance, if there was sudden

attempted human or animal crossing, and

the driver to obviate any such accident,

177
may drive in the manner, which culminated

in the accident. It would be a case where

the driver would still be in control of

his faculties even while having caused the

accident. There is material (particularly,

in the nature of the Summary Proceedings)

under the Consumer Protection Act, in the

form of the FIR. The Police Officer, who

has lodged the information has

specifically stated that the car was being

driven in a very fast manner;

J. The driver, in his chief examination, has

not given any explanation, whatsoever, for

the happening of the accident. He does not

have a case that there was any breakdown

in the car or of the brakes.

K. The driver has pleaded guilty and stands

convicted under Section 279 of the IPC,

which penalises rash or negligent driving.

178
A person, who is not under the influence

of alcohol, can be rash and negligent. But

a person, who is under the influence of

alcohol, can also be rash and negligent.

In other words, they are not wholly

incompatible. On the other hand, being

under the influence of alcohol, aggravates

the possibility of rash and negligent

driving as it can be the proximate cause.

The car was driven by the driver aged about

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

consumed alcohol. The accident took place

when the road would have been wholly free

from any traffic (There is no case

whatsoever that the accident was caused by

another vehicle being driven in any manner

or any person or animal attempting to cross

the road or otherwise deflecting the

attention of the driver). The accident has

179
no apparent cause, even according to the

respondent and the driver and his

companion (PW3), yet we are asked to

believe that the driver was in full control

of his senses. If the State Commission, in

the circumstances, believed the version of

the respondent, in a summary proceeding,

we would believe that NCDRC erred in

interfering, on the reasoning, which we

find as erroneous.

107. What is in a summary proceeding noteworthy,

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

road near India Gate, New Delhi) and the thinnest

possible traffic, and without the slightest

excuse, hitting at the footpath with massive

force, not being able to maintain control,

hitting the electric pole, the wall of the

children park. The impact is so much that it led

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

catching fire of the vehicle. This accident is

inexplicable, if the driver is to be believed as

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

and capable of exercising full control over the

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

probable that his drink, really led to it. On

the facts, the view of the State Commission is

a plausible view.

108. The upshot of the discussion is that the

impugned Order is liable to be set aside. We

order accordingly. The Appeal stands allowed.

There will be no order as to costs.

…………………..J.

[UDAY UMESH LALIT]

…………………..J.

[INDIRA BANERJEE]

…………………..J.

[K.M. JOSEPH]

NEW DELHI;

APRIL 12, 2021.

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