# IFFCO TOKIO GENERAL INSURANCE COMPANY LTD v. PEARL BEVERAGES LTD

- **Citation:** [2021] 14 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 2021-04-12
- **Case number:** CIVIL APPEAL NO. 1526 OF 2021
- **Bench:** Uday Umesh Lalit, Indira Banerjee, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/iffco-tokio-general-insurance-company-ltd-v-pearl-beverages-ltd-35310
- **Pages:** 100

## Headnote

Motor Vehicles Act, 1988 -s.185 - Contract of Insurance -
Drunken driving - Liability of insurer - Exclusion Clause -
Consumer Protection Act, 1986 - s.185 - Respondent-Company's
car (Porsche) insured with the appellant, met with an accident and
was completely damaged - Appellant repudiated the claim by the
respondent - State Commission rejected the complaint of the
respondent - Order set aside by NCDRC - On appeal, held:
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, u/s.185 along with its objective criteria of the
alcohol-blood level, is not the only way to prove that the person
was under the influence of alcohol - If the Breath Analyser or any
other test is not performed, the Insurer cannot be barred from
proving his case otherwise - Where there is no scientific material,
in the form of test results available, as in the present case, the insurer
is not disabled from establishing a case for exclusion - NCDRC
was in error in conflating the requirement u/s.185 with that under
the exclusion clause in the contract of insurance -Further, the
appellant has established that the driver had consumed alcohol
and was driving the vehicle when the accident took place -Fact
that he smelt of alcohol, is indisputable, having regard to the FIR
and the MLC- View of the State Commission is a plausible view -
Order of NCDRC set aside - Penal Code, 1860 - ss.279, 427 -
Insurance.
Consumer Protection - Insurance - Contract of Insurance -
'Own damage' - Clause extricating the Insurer on the basis of the
driver being under the influence of alcohol - Contrasting Models
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- Held: One of the models is represented by American cases where
all that required is that the person has in his body alcohol in any
degree - Under this model, it need not influence his conduct - Under
the other model the insurer must show that the person driving the
vehicle was under the influence of liquor.
Insurance - Contract of Insurance - Drunken driving -
Liability of insurer excluded - Exclusion Clause - "under the
influence of intoxicating liquor" - Interpretation of - Held: Mere
presence of alcohol in any small degree would not be sufficient -
Court cannot re-write the contract and hold that the mere presence
of the alcohol, in the slightest degree, is sufficient to exclude the
liability of the insurer - It requires something more, namely, that the
driver of the vehicle was at the time of the accident acting under
the influence of intoxicating liquor.
Motor Vehicles Act, 1988 - s.185 - Blood Alcohol
Concentration (BAC) - Permissible level; variables correlated to -
Discussed.
Evidence Act, 1872 - s.106 - Facts specially within the
knowledge of person - Burden of proof - Drunken driving - Car
completely damaged in accident -As per the respondent-insured
the driver had not consumed any alcohol - In the very next sentence,
it was pleaded that assuming that he had consumed alcohol, as he
was not intoxicated the exclusion clause is not attracted - Held:
Driver did not depose that he had not consumed intoxicating liquor
- He only stated that he was neither under the influence of
intoxicating liquor or drugs at the time of the accident - Car was
driven by the driver after having consumed alcohol - In such a
case as to what was the nature of the alcohol and what was the
quantity of alcohol consumed, and where he had consumed, would
certainly be facts within the special knowledge of the person who
has consumed the alcohol - Thus, it would be "disproportionately
difficult" for the insurer in the facts to prove as to whether the
driver has consumed liquor on an empty stomach or he had food
and then consumed alcohol or what was the quantity and quality of
the drink (alcohol content), circumstances relevant to consider as
to whether he dr

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[2021] 14 S.C.R. 104
104
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
v.
PEARL BEVERAGES LTD.
(CIVIL APPEAL NO. 1526 OF 2021)
APRIL 12, 2021
[UDAY UMESH LALIT, INDIRA BANERJEE AND
K.M. JOSEPH, JJ.]
Motor Vehicles Act, 1988 -s.185 - Contract of Insurance -
Drunken driving - Liability of insurer - Exclusion Clause -
Consumer Protection Act, 1986 - s.185 - Respondent-Company's
car (Porsche) insured with the appellant, met with an accident and
was completely damaged - Appellant repudiated the claim by the
respondent - State Commission rejected the complaint of the
respondent - Order set aside by NCDRC - On appeal, held:
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, u/s.185 along with its objective criteria of the
alcohol-blood level, is not the only way to prove that the person
was under the influence of alcohol - If the Breath Analyser or any
other test is not performed, the Insurer cannot be barred from
proving his case otherwise - Where there is no scientific material,
in the form of test results available, as in the present case, the insurer
is not disabled from establishing a case for exclusion - NCDRC
was in error in conflating the requirement u/s.185 with that under
the exclusion clause in the contract of insurance -Further, the
appellant has established that the driver had consumed alcohol
and was driving the vehicle when the accident took place -Fact
that he smelt of alcohol, is indisputable, having regard to the FIR
and the MLC- View of the State Commission is a plausible view -
Order of NCDRC set aside - Penal Code, 1860 - ss.279, 427 -
Insurance.
Consumer Protection - Insurance - Contract of Insurance -
'Own damage' - Clause extricating the Insurer on the basis of the
driver being under the influence of alcohol - Contrasting Models
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- Held: One of the models is represented by American cases where
all that required is that the person has in his body alcohol in any
degree - Under this model, it need not influence his conduct - Under
the other model the insurer must show that the person driving the
vehicle was under the influence of liquor.
Insurance - Contract of Insurance - Drunken driving -
Liability of insurer excluded - Exclusion Clause - "under the
influence of intoxicating liquor" - Interpretation of - Held: Mere
presence of alcohol in any small degree would not be sufficient -
Court cannot re-write the contract and hold that the mere presence
of the alcohol, in the slightest degree, is sufficient to exclude the
liability of the insurer - It requires something more, namely, that the
driver of the vehicle was at the time of the accident acting under
the influence of intoxicating liquor.
Motor Vehicles Act, 1988 - s.185 - Blood Alcohol
Concentration (BAC) - Permissible level; variables correlated to -
Discussed.
Evidence Act, 1872 - s.106 - Facts specially within the
knowledge of person - Burden of proof - Drunken driving - Car
completely damaged in accident -As per the respondent-insured
the driver had not consumed any alcohol - In the very next sentence,
it was pleaded that assuming that he had consumed alcohol, as he
was not intoxicated the exclusion clause is not attracted - Held:
Driver did not depose that he had not consumed intoxicating liquor
- He only stated that he was neither under the influence of
intoxicating liquor or drugs at the time of the accident - Car was
driven by the driver after having consumed alcohol - In such a
case as to what was the nature of the alcohol and what was the
quantity of alcohol consumed, and where he had consumed, would
certainly be facts within the special knowledge of the person who
has consumed the alcohol - Thus, it would be "disproportionately
difficult" for the insurer in the facts to prove as to whether the
driver has consumed liquor on an empty stomach or he had food
and then consumed alcohol or what was the quantity and quality of
the drink (alcohol content), circumstances relevant to consider as
to whether he drove the vehicle under the influence of alcohol -
Even if, the Section as such is not applicable to the Consumer
Protection Act, the principle can apply to proceedings under the
Consumer Protection Act.
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL
BEVERAGES LTD.
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Motor Vehicles Act, 1988 - s.185 - Road Traffic Act, 1988 -
ss.3A, 4, 5, 6B - Comparison between - Discussed.
Doctrines/Principles - res ipsa loquitur - Applicability of -
Drunken driving - State Commission applied the principle of res
ipsa loquitur- Held: res ipsa loquitur is used in cases of tort and where
the facts without anything more clearly and unerringly point to
negligence - Principle of res ipsa loquitur, as such, appears to be
inapposite, when, what is in question, is whether driver was under
the influence of alcohol - Though the principle as such is inapplicable,
the manner in which the accident occurred may along with other
circumstances point to the driver being under the influence of alcohol.
Motor Vehicles Act, 1988 - s.185 - Motor Vehicles Act, 1939
- s.117 - Differences between - Discussed.
Consumer Protection Act, 1986 - Enquiry - Scope of - Held:
Scope of the enquiry, in a case under the Consumer Protection Act,
which is a summary proceeding, cannot be lost sight of - A consumer,
under the Act, can succeed, only on the basis of proved deficiency
of service which would arise only with reference to the terms of the
contract and the law which surrounds it - If the deficiency is not
established, having regard to the explicit terms of the contract, the
consumer must fail.
Motor Vehicles Act, 1988 - ss.185, 203, 204 - Consumer
Protection Act, 1986 - Held: Requirement of s.185 is in the context
of a criminal offence - If there is a conviction u/s.185, it would
fortify the Insurer in successfully invoking Exclusion Clause -
However, if prosecution has not filed a case u/s.185, that would not
mean that a competent Forum in an action alleging deficiency of
service, under the Consumer Protection Act, is disabled from finding
that the vehicle was being driven by the person under the influence
of the alcohol.
Road Traffic Act, 1988 - ss.3A, 4, 5, 6B - Impairment Test -
Discussed - Motor Vehicles Act, 1988 - s.185.
Insurance - Drunken driving -Exclusion Clause -Liability of
insurer excluded -Held: It is not necessary for the Insurer to establish
that there was acute alcohol intoxication or that the vehicle was driven
by a person who was a chronic alcoholic - All that is required is to
show that at the time of driving the vehicle, resulting in the accident,
the driver was under the influence of alcohol -Scientific aspects about
alcohol discussed-Motor Vehicles Act, 1988 - ss. 185, 203, 204.
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Words & Phrases- "under the influence of alcohol"-
Contract of Insurance- Interpretation of- English Courts/Scottish
Court and decisions from the United States - Discussed.
Allowing the appeal, the Court
HELD: 1. A CASE FROM SCOTLAND
In the present case, there is no evidence either recording
the exact nature of alcoholic drink which was consumed by the
driver and there is also no material as to the quantity consumed
by him. There is no evidence, in fact, as to the exact point of time
when the alcohol was consumed by the driver. Whereas on the
evidence adduced in the case before the Court in the decision
referred to, there was evidence as to the time when the alcohol
was consumed. Further the driver offered an explanation as to
how the accident unfolded when there is none in the case before
this Court. As far as the view taken by the President of the Court
that the Trial Judge was not entitled to rely upon the fact that the
defendant drank a lager upon an empty stomach, this Court is
unable to endorse the same. This is for the reason that there is
enough material available to show that when one drinks on an
empty stomach, there is greater and faster infusion of the alcohol
into the system leading to increased Blood Alcohol Concentration
(BAC) level. This is for the reason that when liquor is consumed
on an empty stomach, the liquor moves on from the stomach
unobstructed into the small intestine from where 80% of the
absorption of alcohol takes place. Therefore, this does indeed
play a role in the Court assessing and finding, that given the other
circumstances to support the finding of consumption of alcohol
as to whether the alcohol has contributed to the occurrence of
the accident. It is also not irrelevant to bear in mind that a person
who is alcohol tolerant which means that having become
accustomed to consume liquor, the brain in particular is able to
hold up to the alcoholic consumption and deal with its effect
whereas when a novice or a beginner consumes alcohol, its
consequences would be different. [Paras 27, 30][150-D-F;
151-B-E]
Kennedy v. Smith 1975 S.C. 266; (1975) 6 WLUK 97 -
referred to.
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL
BEVERAGES LTD.
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2. THE POSITION IN THE UNITED STATES OF AMERICA
Therefore, an analysis of the principles as laid down both
by the English Courts/Scottish Court and decisions from the
United States would persuade the Court to hold as follows:
The exclusion from the liability of the Insurer would depend
upon the exact terms of the Insurance.The present case does
not deal with a third-party claim. Under the aegis of the Motor
Vehicles Act, the Court is not oblivious of the provisions of Section
149(2) in the unamended provisions of the Motor Vehicles
Act,1988 which are captured in Section 150 of the present avtaar
after the amendment as regards the defences available to the
Insurer regarding such claims. The Court is dealing with a case
of own damage and the clause which extricates the Insurer on
the basis of the driver being under the influence of alcohol, inter
alia. There are two variants. One of the models is represented
by American cases where all that required is that the person has
in his body alcohol in any degree. Under the said model, it need
not influence his conduct. Under the said model, it is not necessary
for the Insurer to show that person concerned was intoxicated or
under the influence of intoxicated liquor. The other model which
is applicable in the facts of the case, viz., the insurer must show
that the person driving the vehicle was under the influence of
liquor. The contrast between the models is stark and perceptible.
As far as the exclusion of the nature the Court is concerned with,
which requires driving of the vehicle by a person under the
influence of intoxicating liquor, it would appear to be clear that
mere presence of alcohol in any small degree would not be
sufficient. This is for the reason that the court cannot re-write
the contract and hold that the mere presence of the alcohol, in
the slightest degree, is sufficient to exclude the liability of the
insurer. It requires something more, namely, that the driver of
the vehicle was at the time of the accident acting under the
influence of intoxicating liquor. The decisions of the English
Courts are closer home and of assistance in the laying down of
the law. It must be shown that in the facts and circumstances of
each case that the consumption of liquor had, if not caused the
accident, which undoubtedly would bring the accident within the
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mischief of the clause but at least contributed in a perceptible
way to the causing of the accident. [Paras 35, 36][154-E-H;
155-A-E]
Webb v. Imperial Life Ins. Co. [Inc. 216 N.C. 10 (1939)];
Heltsley v. Life & Casualty Ins. Co. [299 Ky. 396
(1945)]; Standard Life & Acc. Ins. Co. v. Jones 94 Ala.
434 - referred to.
3. SECTION 185 OF THE MOTOR VEHICLES ACT, 1988
The Motor Vehicles Act, 1988 repealed the Motor Vehicles
Act 1939. It is important to notice certain provisions of the said
Act also. Section 117 can be referred to as the provision
corresponding to Section 185 of the present Act with significant
differences. This provision came to be substituted by Act 27 of
1977. After its substitution as aforesaid Section 117 the lawgiver
ushered in a stricter restriction in regard to drunken driving. In
fact, prior to present Section 185 of the Motor Vehicles Act being
substituted by Act 54 of 1994, Section 185 was similarly worded
as Section 117 of the Motor Vehicles act 1939, as substituted in
1977. It will be noticed immediately that the decision of this Court
rendered in Bachubhai Hassanalli Karyani v. State of Maharashtra
relied upon by the respondent arose under Section 117 of Motor
Vehicles Act, 1939 which required not merely that the person
was under the influence of drink but it was to be to such an extent
as to render him incapable of exercising proper control over the
vehicle. Section 117 after its substitution in 1977, on the other
hand, carved out a criminal offence insofar as alcohol is concerned,
on the basis that the driver had in his blood, alcohol in any
quantity, however small the quantity was. This was similar in fact
to the clauses in the contracts of insurance obtaining in the United
States. This became associated with the presence of the smallest
quantity of alcohol in the blood. As far as Section 185 of the Motor
Vehicles Act, 1988 is concerned, the offence is committed if there
is a specified amount of alcohol found namely, 30 mg in 100 ml. of
blood. In this regard, the law in the United Kingdom
corresponding to the Motor Vehicles Act and also an early decision
of the Bombay High Court interpreting a statute dealing with the
issue may profitably be referred to. [Paras 41-43][159-D-E, G-H;
160-D-H]
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL
BEVERAGES LTD.
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Bachubhai Hassanalli Karyani v. State of Maharashtra
(1971) 3 SCC 930 - referred to.
4.1 To be under the influence of alcohol, must be understood
as, a question going to the facts and a matter to be decided with
reference to the impact of consumption of alcohol on the particular
driver. Yet another example will throw light on a seemingly vexed
issue. A person, who drinks on an empty stomach, would
necessarily have a faster rate of the alcohol making its presence
in the blood, and consequently, in the brain. A person, on the
other hand, who has had food along with the alcohol, may manifest
the effect of alcohol later. If in a case, without there being any
blood test, circumstances, associated with effects of consumption
of alcohol, are proved, it may certainly go to show that the person
who drove the vehicle, had come under the influence of alcohol.
The manner, in which the vehicle was driven, may again, if it
unerringly points to the person having been under the influence
of alcohol, be reckoned. Evidence, if forthcoming, of an unsteady
gait, smell of alcohol, the eyes being congested, apart from, of
course, actual consumption of alcohol, either before the
commencement of the driving or even during the process of
driving, along with the manner in which the accident took place,
may point to the driver being under the influence of alcohol. It
would be a finding based on the effect of the pleadings and the
evidence. [Paras 50, 51][166-C-D; 167-A-C]
Mair (Administratrix) v. Railway Passengers Assurance
Co. Limited. 1877 37 L.T. 356 DC - referred to.
Modi's Medical Jurisprudence and Toxicology -
referred to.
4.2 Section 185 of the Motor Vehicles Act creates a criminal
offence. The short title of Section 185 undoubtedly proclaims that
it purports to deal with driving by a drunken person or by a person
under the influence of drugs. The offence as far as driving by a
drunken person is concerned, was built around breach of an
objective standard, viz., the presence of alcohol in the driver in
excess of 30 mg per 100 ml. of blood detected in a test of breath
analyser. The Section mandates the proving of the objective
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criteria of presence of alcohol exceeding 30 mg per 100 ml. of
blood in a test by a breath analyser. It is here that Section 203 of
the Motor Vehicles Act becomes apposite. It empowers the police
officer to require any person driving or attempting to drive motor
vehicle in a public place to provide one or more specimen of
breath for breath test, if Police Officer or Officer of Motor Vehicle
Department has reasonable cause to suspect the driver has
committed an offence u/s 185. Section 203(2) deals with the
situation where the vehicle is involved in an accident in a public
place. In such circumstances, on a Police Officer in uniform
entertaining any reasonable cause to suspect that the person
driving the vehicle, at the time of the accident, had alcohol in his
blood, inter alia, he may require the person to provide specimen
of his breath in the breath test in the manner provided. Section
203(6) declares that the result of the breath test made under
Section 203 shall be admissible in evidence. Section 203
contemplates arrest without warrant being effected, if the test
indicated the presence of alcohol in the breath test. Section 204
follows up on a person who is arrested under Section 203. It,
inter alia, provides that a person who has been arrested under
Section 203 is to provide to such medical practitioner as may be
produced by such police officer, a specimen of his blood for a
laboratory test, if either it appears to the police officer that the
breath test reveals the presence of alcohol in the blood of such
person or such person when given the opportunity to submit to a
breath test, has refused, omitted or failed to do so. The result of
the laboratory test is also made admissible. Section 185 deals
with driving or attempting driving of a motor vehicle a person
with alcohol in excess of 30 mg per 100 ml in blood which is
detected in a test of breath analyser. Being a criminal offence, it
is indisputable that the ingredients of the offence must be
established as contemplated by law which means that the case
must be proved beyond reasonable doubt and evidence must
clearly indicate the level of alcohol in excess of 30 mg in 100 ml
blood and what is more such presence must be borne out by a
test by a breath analyser. With effect from 01.09.2019,
the following words have been added to Section 185, that is "or
in any other test including laboratory test". [Paras 52, 53]
[167-C-H; 168-A-E]
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL
BEVERAGES LTD.
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4.3 The Contract of Insurance, in the present case, is a
comprehensive Contract of Insurance dealing with own damage
and, no doubt, also third party. What is, however, involved in this
case, is the liability alleged with the Insurer under Clause (A),
which deals with 'own damage'. In regard to a claim involved in
this case, there is nothing in law which would otherwise disentitle
the appellant from setting up the case that the exclusion clause
would disentitle the respondent from succeeding. As to whether
it is a case of driving of the vehicle under the influence of the
alcohol is different matter, altogether. The requirement of Section
185 is in the context of a criminal offence. While it may be true
that if there is a conviction under Section 185, it would,
undoubtedly, fortify the Insurer in successfully invoking Exclusion
Clause 2(c), is the reverse also true? If prosecution has not filed
a case under Section 185, that would not mean that a competent
Forum in an action alleging deficiency of service, under the
Consumer Protection Act, is disabled from finding that the vehicle
was being driven by the person under the influence of the alcohol.
The presence of alcohol in excess of 30 mg per 100 ml. of blood
is not an indispensable requirement to enable an Insurer to
successfully invoke the clause. What is required to be proved is
driving by a person under the influence of the alcohol. Drunken
driving, a criminal offence, under Section 185 along with its
objective criteria of the alcohol-blood level, is not the only way
to prove that the person was under the influence of alcohol. If
the Breath Analyser or any other test is not performed for any
reason, the Insurer cannot be barred from proving his case
otherwise. What the Court is dealing in this case is, construction
of words in a contract between the parties. There is no case for
the respondent that the terms of the contract to exclude the
liability of the appellant, are in any way illegal. Without difficulty a
circumstancecan be imagined in which the proposition that should
the Insurer fail to establish a case in terms of Section 185 BAL
(Blood Analyser Test), it would fail, may not be the proper
approach to the issue. It is not difficult to contemplate that the
accident may take place with the driver being under the influence
of alcohol and neither the Breath Test nor the laboratory test is
done. A driver after the accident, may run away. A test may never
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be performed. However, there may be evidence available which
may indicate that the vehicle in question was being driven at the
time of the accident by a person under the influence of alcohol. It
cannot then be said that merely because there is no test
performed, the Insurer would be deprived of its right to establish
a case which is well within its rights under the contract.
[Paras 56-58][170-D-H; 171-A-D]
5. A FEW SCIENTIFIC ASPECTS ABOUT ALCOHOL
It is not necessary for the Insurer to establish that there
was acute alcohol intoxication and equally, it need not be shown
that the vehicle was driven by a person who was a chronic
alcoholic. All that is required is to show that at the time of driving
the vehicle, resulting in the accident, the driver was under the
influence of alcohol.Blood Alcohol Concentration or BAC is, thus,
the concentration of alcohol in a person's blood. In India, the
permissible BAC level is pegged at 30 mg of alcohol in 100 ml.
of blood in Section 185 of the MV Act, 1988.This corresponds to
0.03 percentage of alcohol in the blood, beyond which, it is an
offence under Section 185 to drive or attempt to drive as
declared.BAC is correlated to a number of variables. It is affected
by gender and body weight. The male has more water content
than a female. On same quantity drunk, the latter builds up greater
BAC than the former. BAC is also affected clearly on whether
the person drank on an empty stomach or not. The liver
metabolises ordinarily a standard drink at the rate of a drink in
an hour. The frequency, at which the drinks are taken, impacts
the BAC level. Even the genes play their part. [Paras 60, 61]
[173-H; 174-A-B, E-G]
Modi's Medical Jurisprudence and Toxicology, 26th
Edition - referred to.
6.1 INVESTIGATOR'S REPORT AND THE QUESTION
RELATING TO BURDEN OF PROOF
The Report indicates that the Investigator was deputed by
the appellant. It also suggests that he went to the accident spot
on 22.12.2007. The reference to the time being 5.05 A.M. relied
upon by the learned Counsel for the respondent as the time at
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. PEARL
BEVERAGES LTD.
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which the Investigator, inter alia, is alleged to have reached the
spot, is actually part of the information which the Investigator
received from the Sub-Inspector. The Sub- Inspector has informed
the Investigator that he received information at 5.05 am and,
thereafter, he, along with a Constable, had reached the spot and
that he saw the car, which was burning. The only part which makes
up the Report, as such, of the Investigator, is his observations.
Thus, the Investigator's Report does not appear to suggest that
the Investigator had been to the accident site at 05.00 A.M. in
the morning and, therefore, had the opportunity to interact with
the driver of the vehicle or ensure that the test was conducted to
show that the driver was driving under the influence of alcohol.
Thus, the contentions of the respondentis repelled. The contract
provides that the notice shall be given in writing to the insurer
immediately after the occurrence of any accidental loss or damage
in the event of any claim. The insured has to give all information
and assistance as required by the company. It is obviously true
that the appellant was intimated on 22.12.2007 which is evident
from the fact that investigator did go to the accident spot on
22.12.2007 and inspected the car. The exact time given is however
not mentioned in the report. The time at which he went was also
not got articulated through the interrogatory issued by the
respondent. It would appear to be a case where the driver of the
car not having suffered any fresh injury would not have been
available in the hospital. The police authorities obviously did not
carry out the blood test or the breath test. As to what transpired
in this regard the matter remains a mystery. From the F.I.R. it
appears that the informant officer's priority was to take the men
out and to take them to the hospital. However, the Court cannot
resist recording disquiet at the conduct of the police officer in
not pursuing the matter in the form of conducting a breath test or
other tests and pursuing the matter under Section 185 of the
Motor Vehicles Act or by filing of final report. Coming to the
question again on burden of proof, insofar as the appellantinsured seeks to establish exclusion of liability is concerned, the
burden of proof is upon it, subject to what this Court holds.
[Paras 74-76][184-A-D, E-H; 185-A-C]
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6.2 Section 106 of the Evidence Act speaks of the burden
of proving facts which are in the special knowledge of the person.
This Section enshrines the principle which conduces to
establishing facts when those facts are especially within the
knowledge of a party. Even if, the Section as such is not applicable
to the Consumer Protection Act, there can be no reason why the
principle cannot apply to proceedings under the Consumer
Protection Act. [Paras 77-79][185-B, C-G]
Shambu Nath Mehra v. State of Ajmer AIR 1956 SC
404 : [1956] SCR 199 - relied on.
6.3 The respondent set up the case that the driver had not
consumed any alcohol. In the very next sentence, it is pleaded
that further assuming that he had consumed alcohol, as he was
not intoxicated the exclusion clause is not attracted. When it came
to affidavit evidence, however, the driver has not deposed that
he had not consumed intoxicating liquor. He has only stated that
he was neither under the influence of intoxicating liquor or drugs
at the time of the accident. In view of the evidence that pointed
to the driver smelling of alcohol and the absence of any evidence
by even the driver that he has not consumed alcohol and as even
found by the National Commission, it would appear to be clear
that the car was driven by the driver after having consumed
alcohol. In such a case as to what was the nature of the alcohol
and what was the quantity of alcohol consumed, and where he
had consumed, it would certainly be facts within the special
knowledge of the person who has consumed the alcohol. The
driver has not, for instance also, once this Court proceeds on the
basis that he has consumed alcohol, indicated when he has
consumed the alcohol. It would be "disproportionately difficult"
as laid down by this Court for the insurer in the facts to have
been proved as to whether the driver has consumed liquor on an
empty stomach or he had food and then consumed alcohol or
what was the quantity and quality of the drink (alcohol content)
which would have been circumstances relevant to consider as to
whether he drove the vehicle under the influence of alcohol. The
driver has merely stated that he was not under the influence of
intoxicating liquor and he was in his full senses. It is true, no
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doubt, there are no interrogatories served on the driver by the
appellant. This Court has laid down that having regard to the
nature of the proceeding under the Consumer Protection Act,
the proceeding being summary, cross examination be conducted
ordinarily through the modality of interrogatories. Thus, unlike
in proceeding in a court, ordinarily the insurers may not be in a
position to cross examine. Since the principle of Section 106 of
the Evidence Act only cast the burden on the person who has
special knowledge of the facts, apart from the facts, referred to,
viz., where it was consumed, the quality and quantity of alcohol
consumed, the time at which it was consumed, whether it was
accompanied by food which can clearly be said to be within the
knowledge of the person who drove the vehicle, the effects of
the drinking by way of signs discernible, after the accident took
place, in the facts, cannot be said to be within the knowledge of
the driver only. This is for the reason that according to FIR, the
police constable on patrol has purported to describe the
happening of the accident and was present at that time. According
to his version, he has with the aid of his companion officer helped
the driver and the co-passenger out of the vehicle and they were
taken to the hospital. At the hospital, in the medical legal report,
there is reference to breath of alcohol(+). It is, however, true
that the insurer or his agent may not have been given notice at
that stage. It would not be proper or legal to hold that in such
circumstances, the insurer would still be in a position to prove
through a breath test or blood test that the driver was under the
influence of alcohol. If the driver having regard to the fact did not
suffer any fresh injury is discharged from the hospital and goes
away, it is inconceivable as to how the insurer could be at fault for
not having a breath or blood test conducted. It may be true that
the insurer could have obtained material in the form of affidavit
evidence from the police officer or the medical practitioner
concerned regarding any other facts regarding consumption of
alcohol by the driver. [Paras 81-83][186-F-H; 187-A-D;
188-D-H; 189-A]
V. Kishan Rao v. Nikhil Super Speciality Hospital and
another (2010) 5 SCC 513 : [2010] 5 SCR 1; Murlidhar
and others v. State of Rajasthan AIR 2005 SC 2345 :
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[2005] 1 Suppl. SCR 175; Dr. J.J. Merchant (Dr) v.
Shrinath Chaturvedi (2002) 6 SCC 635 : [2002] 1 Suppl.
SCR 469 - relied on.
7. RES IPSA LOQUITUR
The State Commission has applied the principle of res ipsa
loquitur. The question to be answered is not whether the driver
of the vehicle was negligent. Thus, it is used in cases of tort and
where the facts without anything more clearly and unerringly
points to negligence. The principle of res ipsa loquitur, as such,
appears to be inapposite, when, what is in question, is whether
driver was under the influence of alcohol. It may be another matter
that though the principle as such is inapplicable, the manner in
which the accident occurred may along with other circumstances
point to the driver being under the influence of alcohol.
[Paras 84, 85][189-B; 190-B-C]
Syad Akbar v. State of Karnataka (1980) 1 SCC 30 :
[1980] 1 SCR 95 - relied on.
8.THE FLAWS IN THE IMPUGNED ORDER
In the order of the National Commission which is relied
upon, the Commission has referred to Modi's Medical
Jurisprudence and Toxicology, 24th edition. The Commission
finds that in the opinion of the author, the percentage of alcohol
in the blood would be 0.2% in case the quantity of alcohol per
100 ml of blood is 200 mg. The finding that a person can be said
to be moderately intoxicated if he has 200 mg per 100 ml is an
incorrect inference. The person who has such a level of alcohol
would have 0.2% of alcohol. Such a person would clearly be
heavily intoxicated. This is clear from a perusal of the table
showing the effects in the Manual for Physicians referred to in
paragraph 7 of the relied upon order. The further finding that a
person with a concentration of 0.15% of alcohol in the blood is
regarded as fit to drive a motor vehicle and such percentage
happens when he has 150 mg of alcohol per 100ml blood is an
observation made based on Modi's Medical Jurisprudence and
Toxicology. Modi in his work has in this regard drawn upon the
presumptive limit which prevailed in the United States. In the
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United States, at one point of time, 0.15% of alcohol concentration
was the maximum presumptive limit. If the alcohol concentration
was found to be in excess of 0.15% unless rebutted by the accused,
it was presumed that the driver was under the influence of alcohol.
In fact, there was a lower presumptive limit of 0.05% and if the
concentration was below this limit it was presumed that the driver
was not in the wrong. What is relevant is that following various
studies the presumptive limit on the one hand stood lowered in
all the states and the maximum presumptive limit was initially
reduced to 0.10% and thereafter it was reduced to 0.08%. In
India the percentage is 0.03 which is the same as 30 mg in 100
ml of blood. In China and in Sweden, the percentage is still lower.
It is 0.02%. In paragraph 6 of the relied upon order reference is
made to Lyon's Medical Jurisprudence and Toxicology.
Reference is made therein to the policy statement of the
American Medical Association and National Safety Council of the
USA that 0.10% can be taken as prima facie evidence of alcoholic
intoxication and recognising that many individuals are under the
influence of 0.05% to 0.10% range. This is at loggerheads with
the earlier reference to 0.15% alcohol not rendering a person
unfit to drive the motor vehicle unless it is understood as the law
at an earlier point of time. The further reference to 0.05% blood
alcohol level raising a presumption that a subject was not under
the influence of alcoholic beverage is again based on the set of
laws in the United States which provided for such a presumption.
The National Commission has not considered the fact that along
with such presumptive limit, the laws in the United States also
further provide that irrespective of the alcohol percentage or
BAC level, if the vehicle is not driven safely and a person has
consumed alcohol, he is liable to be booked under another set of
laws. The observation made in Lyon's Medical Jurisprudence
that blood alcohol level of less than 0.10% does not raise a
presumption of intoxication is also contrary to the developments
under which even the presumptive limit has been reduced to
0.08%. In fact, there is a zero-percentage alcohol level or 0.02%
alcohol in most states for the underaged drivers in the United
States. Coming to paragraph 7 of the relied upon order, the
Commission has referred to the Manual for Physicians in National
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Drug Dependence Treatment Centre, All India Institute of
Medical Sciences, New Delhi. There is in the first-place error in
the second classification. Actually, it is intended for a BAC level
of 'above 80'. Even in the said classification the actual effects of
alcohol consumption are shown as follows - "Noisy, moody,
impaired judgement, impaired driving ability" as against the third
classification 100 to 200 BAC, the effects of which are -
"Electroencephalographic changes begin to appear, Blurred
vision, unsteady gait, gross motor in-coordination, slurred speech,
aggressive, quarrelsome, talking loudly." The Commission has
not referred to the effects of BAC below 80 brought out in the
Manual. In the same, the effects are shown as - "euphoria, feeling
of relaxation and talking freely, clumsy movement of hands and
legs, reduced alertness but believes himself to be alert."The
relied upon order also shows disinclination to accept views
expressed in Modi's Medical Jurisprudence and Toxicology on
the basis of the opinion of All India Institute of Medical Sciences
which is allegedly collaborated by the opinion expressed in Lyon's
Medical Jurisprudence and Toxicology. The Commission in the
said case, which did not deal with a case of driving after consuming
liquor, found the limits relevant as fixed in various countries.
The quantity of alcohol allowed in the USA is stated to be not
above 100 mg in 100 ml of blood. In fact, in the USA where it also
used to be 100mg in 100 ml, it has now further been reduced to
0.08% corresponding to 80 mg in 100 ml. The NCDRC was in
error in conflating the requirement under Section 185 of the Motor
Vehicles Act, with that under the exclusion clause in the contract
of insurance in question. [Paras 86-88][190-C-H; 191-A-H;
192-A-C]
9.1 THE FIR
The respondent itself sought to rely on the FIR and the
Medico Legal Case (MLC). The FIR has been prepared on the
basis of the Report of the Police Officer. The use of the FIR in
criminal case is to be distinguished from its employment in a
consumer case. This is so, in particular, when the FIR is relied
upon by the complainant himself. Though in the complaint, it was
contended that the Police had lodged the FIR under Section 185
of the Motor Vehicles Act besides Section 279/427 of IPC but no
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charge-sheet had been filed till the date of the complaint, meaning
thereby that the Police, after investigating the case, could not
find any evidence to prosecute the driver for any of the offences,
it must be noticed that the complaint is of the year 2009 and it
seen dated 04.03.2009, the case of the respondent that there
was no evidence to prosecute the driver for any of the offences,
is falsified by the driver pleading guilty in regard to at least one
of the offences, viz., the offence under Section 279 of IPC, which
took place, apparently, during the pendency of the complaint
before the State Commission and the State Commission has taken
notice of this development. As far as MLC is concerned, in the
complaint filed by the respondent, there is no dispute that the
MLC contained reference to the driver and the co-passenger
smelling of alcohol. [Paras 92,93][193-D-H]
9.2 The respondentexpressly sets up the case that the
person driving the vehicle had not consumed any alcohol. The
very next sentence, sets up the alternate case, which is that
further assuming that he had consumed alcohol, the case would
not fall under the Exclusion Clause, as he was, in any case, not
intoxicated. PW1, the Company Secretary of the respondent, has,
in his Affidavit evidence, stated that under Section 185 of the
MV Act, a certain percentage of alcohol is to be found before a
person is to be prosecuted for the offence of drunken driving.
The law does not prohibit driving after consuming liquor and all
that is prohibited is, that the percentage of liquor should not
exceed 30 mg. per 100 ml. of blood. Therefore, the understanding
appears to be that only in circumstances, where the act of driving,
having consumed liquor, attracts the wrath of Section 185 and an
offence is committed thereunder, that the opprobrium of the
Exclusion Clause in the Contract of Insurance, for own damage,
is attracted. The Affidavit of PW2, the driver himself, would show
that he does not depose that he had not consumed liquor as was
the case in the complaint. Instead, he deposes only that he was
neither under the influence of intoxicating liquor or drugs at the
time of the accident. He further deposed that he was in his full
senses and capable of exercising proper control over the said
vehicle.