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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– 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.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 in apposite, 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.Words & Phrases– “under the influence of alcohol”– Contract of Insurance– Interpretation of– English Courts/Scottish Court and decisions from the United States – Discussed. |
