2021 Supreme(SC) 259

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDIRA BANERJEE, K.M. JOSEPH, JJ.
Iffco Tokio General Insurance Company Ltd. - Appellant
Versus
Pearl Beverages Ltd. - Respondent
Civil Appeal No. 1526 of 2021 [Arising Out of SLP (Civil) No. 12489 of 2020]
Decided On : 12-04-2021

IMPORTANT POINTS
(1) To be under influence of alcohol must be understood as, a question going to facts and a matter to be decided with reference to impact of consumption of alcohol on particular driver.
(2) 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 exclusion clause.
(3) Exclusion from liability of Insurer would depend upon exact terms of Insurance. Court cannot re-write contract.
(4) Presumptive laws provide for presumptive limits for alcohol consumption, contravening which, would result in presumption subject to it being rebuttable, that a person was driving under influence of alcohol.
(5) Being under influence of alcohol, aggravates possibility of rash and negligent driving as it can be proximate cause of accident.

Headnote:

(A) Consumer Protection Act, 1986 – Section 23 – Road Traffic Act, 1960 – Section 1(1) – Drunken Driver – Liability of Insurance Company – There is no evidence either recording exact nature of alcoholic drink which was consumed by driver and there is also no material as to quantity consumed by him – There is no evidence as to exact point of time when alcohol was consumed by driver – There is enough material available to show that when one drinks on an empty stomach, there is greater and faster infusion of alcohol into system leading to increased Blood Alcohol Concentration (BAC) level – Finding could be rendered in an action that insurer was not liable if driver, in contravention of policy was under influence of intoxicating liquor and matter goes to evidence which would support such a finding – A person who is alcohol tolerant which means that having become accustomed to consume liquor, brain in particular is able to hold up to alcoholic consumption and deal with its effect whereas when a novice or a beginner consumes alcohol, its consequences would be different. (Paras 27, 29 and 30)

(B) Motor Vehicles Act,1988 – Section 185 read with Sections 203 and 204 – Consumer Protection Act, 1986 – Section 23 – Drunken Driver – Liability of Insurance Company – Exclusion from liability of Insurer would depend upon exact terms of Insurance – Insurer must show that person driving vehicle was under influence of liquor – Mere presence of alcohol in any small degree would not be sufficient – Court cannot re-write contract and hold that mere presence of alcohol, in slightest degree, is sufficient to exclude liability of Insurer – It must be shown that in facts and circumstances of each case that consumption of liquor had, if not caused accident, which would bring accident within mischief of the clause but at least contributed in a perceptible way to causing of accident – Influence of alcohol is different from being under influence of alcohol to the extent as declared in such a provision – However statutory changes that occurred make it irrelevant. (Paras 35, 36 and 45)

(C) Motor Vehicles Act, 1988 – Sections 3A, 4 and 5 read with Section 185 – Causing death by careless driving when under influence of drink or drugs – Unfitness to drive, on account of consumption of liquor, is predicated on driver’s ability to drive properly, being impaired – A 21-year-old, who is otherwise licensed to drive a vehicle, may experiment with drinking in company of his friends – He may consume a small quantity of liquor – This may not satisfy requirement of alcohol present in blood (30 mg./100 ml. = 0.03%) – However, it is unquestionable that impact of 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 influence of alcohol, unless, he has in his blood, requisite percentage of alcohol under Section 185 of MV Act, would be to make a new bargain for parties and also to rewrite contract – 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 person who drove vehicle, had come under influence of alcohol – Manner, in which vehicle was driven, may again, if it unerringly points to person having been under influence of alcohol, be reckoned – It would be a finding based on effect of pleadings and evidence – Section 185 of Motor Vehicles Act creates a criminal offence – Being a criminal offence, ingredients of offence must be established as contemplated by law – Case must be proved beyond reasonable doubt and evidence must clearly indicate level of alcohol in excess of 30 mg in 100 ml blood and such presence must be borne out by a test by a breath analyser. (Paras 50, 51, 52 and 53)

(D) Motor Vehicles Act, 1988 – Section 185 – Fatal accident – Drunken driving – Contract of Insurance is a comprehensive Contract of Insurance dealing with own damage and also third party – There is nothing in law which would otherwise disentitle appellant from setting up case that exclusion clause would disentitle respondent from succeeding – As to whether it is a case of driving of vehicle under influence of alcohol is different matter, altogether – Requirement of Section 185 is in context of a criminal offence – 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 Consumer Protection Act, is disabled from finding that vehicle was being driven by the person under influence of alcohol – 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 exclusion clause – What is required to be proved is driving by a person under influence of alcohol – Drunken driving, a criminal offence, under Section 185 along with its objective criteria of alcohol-blood level, is not the only way to prove that person was under influence of alcohol – If Breath Analyser or any other test is not performed for any reason, Insurer cannot be barred from proving his case otherwise – There is no case for respondent that terms of contract to exclude liability of appellant, are in any way illegal – A test may never be performed – However, there may be evidence available which may indicate that vehicle in question was being driven at the time of accident by a person under influence of alcohol – It cannot then be said that merely because there is no test performed, Insurer would be deprived of its right to establish a case which is well within its rights under the contract – It is not necessary for Insurer to establish that there was acute alcohol intoxication and equally, it need not be shown that vehicle was driven by a person who was a chronic alcoholic – All that is required is to show that at the time of driving vehicle, resulting in accident, driver was under influence of alcohol – Case set up by respondent that person driving car had not consumed liquor, is clearly false – NCDRC was in error in conflating requirement under Section 185 of Motor Vehicles Act, with that under exclusion clause in contract of insurance in question. (Paras 56, 57, 58, 60, 85 and 97)

(E) Indian Evidence Act, 1872 – Section 106 – Burden of proof – Even if, the Section as such is not applicable to Consumer Protection Act, there can be no reason why the principle cannot apply to proceedings under Consumer Protection Act – This Section enshrines principle which conduces to establishing facts when those facts are especially within knowledge of a party – Respondent set up the case that driver had not consumed any alcohol – In such a case as to what was nature of alcohol and what was quantity of alcohol consumed, and where he had consumed, it would certainly be facts within special knowledge of person who has consumed alcohol – It would be disproportionately difficult for Insurer in the facts to have been proved as to whether driver has consumed liquor on an empty stomach or he had food and then consumed alcohol or what was quantity and quality of drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove vehicle under influence of alcohol – If driver having regard to fact did not suffer any fresh injury is discharged from hospital and goes away, it would not be proper or legal to hold that in such circumstances, Insurer would still be in a position to prove through a breath test or blood test that driver was under influence of alcohol. (Paras 78, 79, 81 and 83)

(F) Motor Vehicles Act,1988 – Sections 166 and 185 – Accident claim proceeding – Applicability of principle of res ipsa loquitur – It is used in cases of tort and where facts without anything more clearly and unerringly points to negligence – Principle of res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under influence of alcohol – It may be another matter that though principle as such is inapplicable, manner in which accident occurred may along with other circumstances point to driver being under influence of alcohol. (Para 85)

(G) Consumer Protection Act, 1986 – Section 2(1)(g), 2(1)(o) – Deficiency in service – Totality of circumstances obtaining in a case, must be considered – Scope of enquiry, in a case under Consumer Protection Act, which is a summary proceeding, cannot be lost sight of – A consumer, under Act, can succeed only on the basis of proved deficiency of service – Deficiency of service would arise only with reference to terms of contract and law which surrounds it – If deficiency is not established, having regard to explicit terms of contract, consumer must fail. (Para 103)

(H) Motor Vehicles Act,1988 – Section 185 – Motor accident – Drunken Driver – A person, who is not under influence of alcohol, can be rash and negligent – But a person, who is under influence of alcohol, can also be rash and negligent – They are not wholly incompatible – Being under influence of alcohol, aggravates possibility of rash and negligent driving as it can be proximate cause – Accident has no apparent cause – If State Commission, in the circumstances, believed version of respondent, in a summary proceeding, NCDRC erred in interfering – Impugned order set aside. (Paras 106, 107 and 108)

Facts of the case:

An accident, which took place on 22.11.2007 involving a car belonging to the respondent-Company, which was insured with the appellant, has resulted in this appeal against the Order by the National Consumer Disputes Redressal Commission. The car was completely damaged. The appellant repudiated the claim by the respondent. The question which arises in this Appeal is, whether the NCDRC is correct in holding that the appellant is not entitled to invoke the shield of Clause (2c) of the Contract of Insurance, under which, it was not liable, if the person driving the vehicle, was under the influence of intoxicating liquor, or drugs. 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.

Findings of Court:

What is in a summary proceeding noteworthy, is in the setting of the width of the road (a road near India Gate, New Delhi) and the thinnest possible traffic, and without the slightest excuse, hitting at the footpath with massive force, not being able to maintain control, hitting the electric pole, the wall of the children park. The impact is so much that it led to overturning of the car and what is more, catching fire of the vehicle. This accident is inexplicable. It is more probable that his drink, really led to it. On the facts, the view of the State Commission is a plausible view.

Result : Appeal allowed.