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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Pearl beverages Ltd. & Anr. —Appellants
Versus
IFFCO-Tokio General INS. Co. Ltd. —Respondent
First Appeal No. 753 of 2013
(Against the Order dated 19/07/2013 in Complaint No. 48/2009 of the
State Commission Delhi)
Decided on 21.8.2020
Counsel for the Parties:
For the Appellant :Mr. Gopal Sankaranarayanan, Advocate Mr. Ravi Kumar Aggarwal, Advocate Ms. Palak Vasisth, Advocate
For the Respondent:Mr. S.M. Tripathi, Advocate
IMPORTANT POINT
Since intoxication of the driver at relevant time was not proved, the repudiation of claim by Insurance Company held not justified.
Headnote:
Consumer Protection Act, 1986 – Section 19 : Consumer Protection Act, 2019 – Section 41 – Motor Vehicles Act, 1988 – Section 185 – Motor insurance – Damage to vehicle – Repudiation of vehicle – Scope – Vehicle of complainant got damaged due to an accident – Claim for reimbursement repudiated on ground that driver was under influence of intoxicating liquor/drugs – Challenge against – Nothing brought on record to show that quantity of liquor in the blood of driver at the time of accident – Onus was upon the insurer to prove that the quantity of alcohol in 100 ml. of his blood was at least 30 mg. and therefore, exceeded the limits prescribed in section 185 of M.V. Act – No test to measure the quantity of liquor in the blood having been conducted – State Commission not justified in dismissing the complaint – Insurance company directed to assess the loss of the complainant – Further directions issued. (Paras 4 to 8)
Result: Appeal disposed of.
JUDGEMENT (ORAL)
V.K. Jain, Presiding Member—The complainant owned a vehicle which he had got insured with the respondent for the period from 31.10.2007 to 30.10.2008. The vehicle met with an accident while being driven out by one Mr. Aman Bangia on 22.12.2007 and a claim for reimbursement for the loss suffered by the complainant on account of damage to the vehicle was lodged. The claim, however, was repudiated solely on the ground that the driver was under influence of intoxicating liquor or drugs when the vehicle met with an accident. Being aggrieved, the complainant approached the concerned State Commission by way of a consumer complaint.
2. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated.
3. The State Commission having dismissed the complaint, the complainant is before this Commission by way of this appeal.
4. The only question which arises for consideration in this case is as to whether the driver of the vehicle was under influence of intoxicating liquor or drugs at the time the vehicle met with an accident and got extensively damaged. Though it has come on record that the driver of the vehicle had taken some liquor before he drove the vehicle, the said record being available in the form of statement of a policeman who stated that the smell of the liquor was coming from the mouth of the driver, there is absolutely no evidence to prove the quantity of liquor which he had consumed before driving the vehicle. Admittedly, no medical examination of the driver was got conducted in order to ascertain the quantity of the alcohol in his blood at the time the vehicle met with an accident. In terms of Section 185 of the Motor Vehicles Act, a person is liable to punishment if he is found while driving, alcohol exceeding 30 mg per hundred ml of blood and the level of alcohol is required to be verified by way of test done by use of a breath synthesiser. Admittedly, no such test was conducted and, therefore, no evidence was available before the State Commission or even to the insurer to prove that the driver had alcohol exceeding 30 mg per hundred ml of the blood, at the time the vehicle met with an accident. Therefore, the insurer has failed to prove that the insured had committed a breach of the terms of the policy, the driver being under influence of liquor.
5. The submission of Shri S.M. Tripathi, the learned counsel for the insurer is that since the liquor is taken for the purpose of intoxication, consumption of any quantity of liquor by the driver would amount to his being intoxicated or his being under the influence of liquor. I, however, find myself unable to accept this contention. This issue came to be extensively examined by this Commission in Royal Sundaram General Insurance Co. Ltd. Vs. Davubhai Babubhai Ravaliya – Revision Petition No.1296 of 2018 dated 04.09.2018 and the following view was taken:-
“6. The next question which arises for consideration is as to whether on account of the above referred quantity of alcohol having found in the blood of the driver, he can be said to be under influence of intoxicating liquor or not. This issue came up for consideration of this Commission in Lakshmi Rohit Ahuja Vs. SBI Life Insurance Co. Ltd., RP No.3249 of 2015, decided on 28.04.2016 and the following view was taken:
6. As per the FIR, the vehicle was being driven by the deceased at the time it met with an accident. As per the chemical analysis report in respect of the viscera of the stomach and intestine of the deceased, there was 120 ml of Ethyl alcohol per 100 gm in the blood of the deceased. Hence the question which arises for consideration is as to whether a person having 120 mg of alcohol per 100 ml of his blood can be said to be under influence of intoxicating liquor. This question came up for consideration of this Commission in Consumer Complaint No. 401 of 2014 Baby Apoorva Rai Vs. New India Assurance Co. Ltd. & Anr. Decided on 03.9.2015 and the following view was tak
