Whether a person is intoxicated can be determined without a report of the chemical analyser?

Whenever the case is about the intoxication, then the blood sample is to be taken. It is to be sent to the Chemical Analyzer, after the report, the Court may come to the conclusion as to whether the said person was under the influence of liquor or not. Therefore, the medical report which is on record, cannot be considered as a Chemical Analyzer Report or the Scientific Examination Report to show that appellant was under the influence of liquor. Hence, it is not helpful to the respondent. The Hon'ble Apex Court in the case of Chandu v. Multi Speciality Lab Services Pvt. Ltd. in C.M.A No. 1348/2018 decided on 04/03/2019 has held as under:—

“Mere smelling of alcohol from the mouth, dilation of pupils and incoherence in speech are not enough and cannot said to be conclusively prove drunkenness. Unless Urine or Blood Test is carried, it cannot be conclusively established that the Driver of the vehicle was under the influence of alcohol. Mere smell of alcohol or consumption of alcohol should not be taken as Contributory Negligence on the part of a Claimant. Respondent should prove the drunken state of the Claimant, which leads to nexus with accident.”

16. In the present case, there was no any Urine or Blood Test by the Medical Officer. But blood sample and urine were not sent to Chemical Analyzer and therefore, without any scientific report, it cannot be said that appellant was under the influence of liquor. 

17. In para 10 of the Judgment of National Consumer Disputes Redressal Commission, New Delhi delivered in the case of Sujata v. Bajaj Allianz General Insurance decided on 09/03/2015 held that-

“Mere consuming of alcohol is not a ground to repudiate insurance claim. Both the post-mortem reports and the investigator's report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed. Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed”

18. It cannot be presumed that a person who consumed alcohol cannot control himself. Therefore, percentage of alcohol in the blood is very material and that is to be determined by the Chemical Analyzer. The scientific investigation is necessary. Generally, the person who consumed alcohol in less quantity, may control himself. But who consumed alcohol in large quantity, may not control himself and therefore, scientific reason is to be there to come to a proper conclusion as to whether the person consumed certain quantity of alcohol. In the present case, there is nothing on record to show that any scientific investigation is made to determine that the appellant was under the influence of alcohol.

In the High Court of Bombay Nagpur Bench

(Before M.G. Giratkar, J.)

Ankush Vs  Union of India 

First Appeal No. 140 of 2019

Decided on February 17, 2020

Citation: 2020 SCC OnLine Bom 321

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When defence of intoxication of driver of vehicle is not available to insurance company?

The insurer has not led any evidence on Issues
No. 3 to 6. Thus, it can not lie in the mouth of the appellantinsurer
that the driver was driving the offending vehicle in
the state of intoxication. In terms of Section 149 of the
Motor Vehicles, Act, 1988, the ground of intoxication is not
available.
11. This Court in Khem Chand versus Smt. Uma Devi Khem Chand versus Smt. Uma Devi
and others, reported in Latest HLJ 2010 (HP) 1, Latest HLJ 2010 (HP) 1, has laid

down the same principle. It is apt to reproduce para-4 of the
judgment., supra, herein:-
“4. The law is very well settled that a claim
which falls within the purview of an Act
policy i.e. a liability falling within the ambit
of Section 147 of the Motor Vehicles Act,
1988 ( the Act) can only be contested by the
Insurance Company on the grounds
available to it under Section 149 of the Act.
It is not permitted to contest the
proceedings on any other grounds.
Intoxication of the driver is not a ground
available to the Insurance Company under
Section 149 of the Act. Therefore, the
liability, which is statutory under Section
147 of the Act, has to be satisfied by the
insurer. It may be clarified that in case the
insurer in addition to the liability which it is
bound to cover under the Act covers other
liability then in case of such extended
liability, it may raise the defences available
to it as per terms of the policy, but as far as
statutory liability is concerned, the insurer
has no authority to incorporate any term in
the policy which is not contemplated in
terms of Section 149 of the Act. Therefore,
the Insurance Company could not have been
permitted to raise this defence and it could
not be permitted to recover the awarded
amount from the insured.”
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAOs No. 580, 581, 589, 590 & 591 of
2008

 Date of decision: 07.08.2015

FAO No. 580 of 2008 of 2008
Oriental Insurance Co. Ltd. 
 V
Smt. Sangeyum & others .

Coram:
The Hon’ble Mr. Justice Mansoor Ahmad Mir . Chief Justice.
Citation;2016(1)ALLMR(JOURNAL)15

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