KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.542/2016

JUDGEMENT DATED : 17.12.2024

(Against the order in C.C.No.109/2014 on the file of DCDRC, Malappuram)

PRESENT:

APPELLANT:

(by Adv. Prasanna Kumar Nair)

Vs.

RESPONDENTS:

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          This appeal has been filed by the opposite parties challenging the order of the Consumer Disputes Redressal Commission, Malappuram (for short ‘the District Commission’) in C.C.No.109/2014.

2.       The District Commission directed the 1^st opposite party to pay Rs.3,26,628/-(Rupees Three Lakh Twenty Six Thousand Six Hundred and Twenty Eight only) to the complainant being the repair charge already paid by the complainant to the 2^nd opposite party and to pay Rs.7,000/-(Rupees Seven Thousand only) as compensation and Rs.5,000/-(Rupees Five Thousand only) as costs.

          3.       The complainant is the owner of the vehicle bearing registration No. KL 65 A 3999, which met with an accident on 02.06.2013 at Kottakkal.  The accident occurred when the above said vehicle collided with another vehicle bearing registration No. KL 52B 7008.  Both the vehicles sustained damage in the above accident.  The complainant entrusted the car for the repair works with the 2^nd opposite party and accordingly, the car was repaired.  The complainant had to pay Rs.3,26,628/-(Rupees Three Lakhs Twenty Six Thousand Six Hundred and Twenty Eight only) as repairing charges.  The complainant submitted a claim before the opposite party, which was repudiated by the opposite party stating that the complainant had consumed alcohol while driving the vehicle at the time of the accident.  In the said circumstances, the complainant filed the above complaint alleging deficiency in service on the part of the opposite parties.

          4.       The opposite parties filed version denying the averments in the complaint.  The opposite parties admitted the coverage of insurance in respect of the vehicle of the complainant.  However, the 1^st opposite party submitted that the driver of the vehicle was in a drunken stage at the time of the accident and hence the Kottakkal Police registered FIR in this regard.  After completing the investigation, the police filed the final report against the driver of the vehicle for offences including the offence under Section 185 of the Motor Vehicles Act.  Since the complainant himself was driving the vehicle after consuming alcohol, there was clear violation of the policy conditions and consequently, the insurance company was not liable to compensate the complainant.  Accordingly, the insurance company denied the claim of the complainant.  There is no deficiency in service on the part of the insurance company in this regard.

          5.       Before the District Commission, PW1 was examined and Exhibits A1 to A8 were marked for the complainant.  Exhibits B1 and B2 were marked for the opposite parties.

          6.       After evaluating the evidence, the District Commission passed the order impugned directing the 1^st opposite party to pay the amount as mentioned above.

          7.       During the appellate stage, Exhibit A9 was marked.  Exhibit A9 is the judgement of the Magistrate Court concerned disposing of S.T.No.2759/2013 whereby the accused therein, who is the complainant herein, was acquitted by the Court after the trial.

          8.       Heard both sides.  Perused the records.

          9.       It is not disputed that the complainant was driving the vehicle involved in this case at the time of accident.  It is also not disputed that the vehicle of the complainant was having insurance coverage on the date of accident.  The accident was on 02.06.2013.  It is further admitted that the complainant had submitted the claim before the insurance company in connection with the damage sustained to the vehicle of the complainant.  It is also not disputed that the 1^st opposite party/insurance company repudiated the claim on the ground that the complainant was driving the vehicle after consuming liquor at the time of accident.

          10.     The learned counsel for the appellant has argued that since Exhibits B2 FIR and Exhibit B1 final report were produced by the appellant before the District Commission, the District Commission ought to have found that the repudiation of the claim by the insurance company was justified as the complainant was driving the vehicle after consuming alcohol at the time of accident.

          11.     Per contra, the learned counsel for the complainant has submitted that since there was repudiation of the claim, it was the duty of the insurance company to prove that the repudiation was justified, by producing convincing materials to show that the complainant had driven the vehicle under the influence of alcohol at the relevant time.  For

appreciating the evidence, it is profitable to understand section 185 of the Motor Vehicles Act, 1988.  Section 185 of the Motor Vehicles Act provides that whoever, while driving, or attempting to drive, a motor vehicle has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or in any other test including a laboratory test, or under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine of ten thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine  or with both.  

          12.     The Hon’ble Supreme Court in Iffco Tokio General Insurance Company vs Pearl Beverages Ltd. reported in 2021 KHC 6232 : AIR 2021 SC 2277 held thus:- “The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence  of  alcohol  under  the  policy  of  insurance  in an own damage.

  Insurance company is entitled to invoke exclusion clause of contract of insurance, under which, it was not liable, if person driving vehicle, was under the influence of intoxicating liquor or drugs”.

          13.     The Hon’ble Supreme Court in Iffco Tokio General Insurance Company vs Pearl Beverages Ltd. (supra) further held in paragraphs 102 and 103 as hereinbelow:-

               “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 S.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”.

          14.     The Hon’ble Supreme Court was considering a case where the driver pleaded guilty of the charge before the magistrate court concerned that he consumed alcohol while driving the vehicle. However, the complainant set up a case before the consumer commission that the driver did not consume any alcohol. In the very next sentence of the complaint, it was pleaded that even on assuming that the driver had consumed alcohol, as he was not intoxicated, the exclusion clause was not attracted. In the proof affidavit, however, the driver did not depose that he did not consume intoxicating liquor. The driver had only stated that he was not under the influence of intoxicating liquor or drugs at the time of the accident. On the facts of the case, the Hon’ble Supreme Court held that where there was no scientific material, in the form of test results, available, as in that case, it might not disable the insurer from establishing a case for exclusion and the totality of the circumstances obtaining in a case, must be considered.

15.  In this case, the appellant relies on Exhibits B1 and B2 to show that the complainant had consumed alcohol at the relevant time.  Exhibit A9 would show that the complainant was acquitted by the Magistrate Court, after the trial.  It was stated in paragraph 20 of Exhibit A9 that no breath analyser test was conducted and no such report was produced before the Court.  Before the District Commission also, the result of the breath analyser test or the blood test was not produced.  The requirement of the drunken driving under S.185 of the Motor Vehicles Act is the presence of alcohol concentration exceeding 30 mg per 100 ml of blood.

          16.     Even though Exhibits B1 and B2 were produced to prove that the complainant had consumed alcohol, the result of the trial would show that the complainant was acquitted by the Trial Court as there was no evidence supporting the contention of the prosecution that the complainant had consumed alcohol.  It is true that even without having any scientific material, insurance company can repudiate the claim if there is sufficient material as held by the Hon’ble Supreme Court in Iffco Tokio General Insurance Company vs Pearl Beverages Ltd. (supra). However, there is absolutely no material before the Commission to indicate that the complainant had consumed alcohol at the relevant time.  Since the 1^st opposite party had alleged exclusion clause, it was the duty of the 1^st opposite party to prove the same.  However, the 1^st opposite party did not discharge the burden of proving the exclusion by adducing at least the basic evidence which was required to be proved to sustain the exclusion.  In the said circumstances, the repudiation of the claim by the 1^st opposite party cannot be justified.  Therefore, there was deficiency in service on the part of the 1^st opposite party.   Consequently, we find no reason to interfere with the finding of the District Commission in this regard.  The compensation and the costs ordered by the District Commission also do not appear to be excessive or disproportionate, calling for interference by this Commission.

In the result, this appeal stands dismissed.  In the circumstances of the case, there is no order as to costs in this judgment. 

The statutory deposit made by the appellant shall be given to the 1^st respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

SL