Supreme Court. (File Photo: IANS). Image Source: IANS News

New Delhi, April 12 : The Supreme Court on Monday held that lack of scientific material, blood tests or breath analyser results will not prevent insurance companies from establishing a case for exclusion from liability under ground of intoxication in a contract.

A bench comprising Justices U.U. Lalit, Indira Banerjee and K.M. Joseph said: "If the breath analyser or any other test is not performed for any reason, the insurer cannot be barred from proving his case otherwise." Noting that 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, the bench said it is not necessary for the insurer to establish that there was acute alcohol intoxication and equally, it need not be shown 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," it said in a 181-page verdict.

The top court observed that where there is no scientific material, in the form of test results available, as in the case before them, it may not disable the insurer from establishing a case for exclusion.

The verdict came on an appeal filed by an insurance company challenging the National Consumer Disputes Redressal Commission (NCDRC) order, which held the insurer at fault for excluding the policy liability on the ground of drunken driving. The commission had ruled that the insurer had to prove that the alcohol content was above 30 mg/100 ml of blood, as stipulated under Section 185 of the Motor Vehicles Act. And, the alcohol content has to be established through results obtained from breath analyser and blood tests as prescribed in Sections 203 and 204 of the MV Act. If not established, then the insurer cannot exclude the liability.

The top court, however, noted that case records show that the driver smelt of alcohol while he was driving a Porsche car belonging to a private firm which met with an accident in early hours in December 2007 in New Delhi. After the accident, the car caught fire and it was described as a total loss.

"There is no evidence as to the quantity of alcohol consumed. It is also true that there is no evidence other than the smell of alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol," it said.

The requirement under Section 185 of the Motor Vehicles Act is not to be conflated as to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage Claim. "Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties," the bench noted.

The top court, allowing the appeal of the insurance company, said 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".

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