Case: IFFCO TOKIO GENERAL INSURANCE COMPANY LTD Vs. PEARL BEVERAGES LTD

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 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 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. 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 of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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, we may notice the judgments of the English Courts. In Mair (Administratrix) v. Railway Passengers Assurance Co. (Limited) 1877 37 L.T. 356 DC, 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 mans 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 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 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.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 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.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 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.35. Therefore, an analysis of the principles as laid down both by the English Courts/Scottish 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 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.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.43. It will be noticed immediately that the decision of this Court rendered in Bachubhai Hassanalli Karyani v. State of Maharashtra (1971) 3 SCC 930 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 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 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.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 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 Deoji AIR 1928 BOM 231 . Rule 27-A of the Motor Vehicles Rules provided that no person shall, when intoxicated, drive a motor vehicle 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 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 accuseds 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.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 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 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.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 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 Nanda 2012 (8) SCC 450, the accused 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 situations, praesenti. In the presence such of 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- 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).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, 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 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 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 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.61. We notice that Blood Alcohol Concentration or BAC is, thus, the concentration of alcohol in a persons 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. 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.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- out alcohol is oxidized by the liver, converting alcohol into acetaldehyde first and then further converted to acetic acid.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 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.It is not clear whether the odor in the breath was sought to be discerned without any devise.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 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 Investigators 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.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 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 officers 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.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.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: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 Act. We may notice a decision of this Court in Shambu Nath Mehra v. State of Ajmer AIR 1956 SC 404 . 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 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].80. The same view has been taken in Murlidhar and others v. State of Rajasthan AIR 2005 SC 2345 .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 we proceed 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.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 examination be conducted ordinarily through the modality of interrogatories. In Dr. J.J. Merchant (Dr) v. Shrinath Chaturvedi (2002) 6 SCC 635 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 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.83. Thus, unlike in proceeding in a court, ordinarily the insurers may not be in a position 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 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 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 concerned regarding any other facts regarding consumption of alcohol by the driver.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 Karnataka (1980) 1 SCC 30 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 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 defendants 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 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 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 Modis Medical Jurisprudence and 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 0.02%. In paragraph 6 of the relied upon order reference is made to Lyons 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 Lyons 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.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 Modis 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 Lyons 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 exclusion clause in the contract of insurance in question.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 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 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 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 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.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 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 thecomplaint. Instead, he deposes only that he was neither under the influence ofintoxicating 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 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.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, duringe. 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.g. The same is the answer also in regard toas 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 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 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.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 of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, 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 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 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.