- (1.) THE complainant s husband met with a scooter accident at Neyveli and died on 10.8.1992. The wife of the deceased made a claim. The repudiation by the Insurance Company is on the ground that on the date of accident, the complainant s husband was riding with a pillion rider and that he had taken liquor and, therefore, they are not liable. The pillion rider had given statement before the police stating that on that day they went to a tea shop and after taking tea and snacks, went to a wine shop and consumed beer and whisky and thereafter proceeded in the motor cycle which was driven by the deceased and while they were passing near the water tank, they were hit by a lorry and thrown down and in that accident the deceased sustained severe head injury.
(2.) THEREFORE , on this ground, the opposite party referred to the exception clause in Clause No. 5 stating that the company is not liable to anything under the policy as the deceased was under the influence of intoxicating liquor or drugs at the time of accident. The Lower Forum has held that it is for the Insurance Company to establish that the deceased was under the influence of alcohol at the time of accident. It is not possible nor it can be expected of the Insurance Company to establish the same since after the accident the man was taken to the hospital at Neyveli and shifted to Madras Hospital where he died. The intestinal contents or viscera of the deceased were not preserved. Therefore, it may not be possible to establish or adduce any positive evidence but the fact remains that the person who rode on the bike with the deceased on that day as a pillion rider has clearly given a statement before the Police wherein he has stated clearly that they consumed liquor namely beer and whisky before proceeding further on the motor cycle and after consumption of liquor the motor cycle driven by the deceased and while they were passing near the water tank, they were hit by a lorry. It is a statement made by the pillion rider voluntarily before the police. It can definitely be relied upon for the purpose of this case. It is not a statement made by an accused to a Police Officer. It is a statement made by a person who has seen the accident, who rode with the rider and who partook with the deceased when he consumed intoxicating liquors.
(3.) THE Lower Forum has referred to the post -mortem report. The accident had taken place on 7.8.1992. He was taken to Madras on 8.8.1992. Probably he died on the same day and the post -mortem was done on 10.8.1992. Therefore, at the time of conducting post -mortem definitely the odour of alcohol cannot linger. The doctor has not mentioned about the preservation of viscera for chemical analysis. The mere fact that nothing is mentioned about the smell of alcohol in the post -mortem report or in the accident report cannot dispute the case of the opposite party. There is no motive for the pillion rider. A person driving the vehicle after consuming whisky and beer would be definitely under the influence of liquor and he would have driven the vehicle only under the influence of the liquor consumed by him. Therefore, it is a case coming straight under the exclusion clause thereby absolving the Insurance Company of their liability. Consequently, we have no hesitation in disturbing the verdict of the Lower Forum. In the result, this appeal is allowed with cost of Rs. 250/ -. The order passed by the lower Forum is set aside. The complaint will stand dismissed but in the circumstances wthout cost.;