ORDER Justice Arun Kumar Goel (Retd.) President:- Admitted facts of this case are that, the appellant had got its staff insured under Janta Personal Accident Policy (JAP) where under late Sh. Vinod Kumar driver was also one of the beneficiary during the relevant period i.e. 1997-98. During the currency of the JAP he died in accident. Claim was lodged with the respondent and the same was rejected. Its rejection was arbitrary and illegal on the part of the respondent, according to appellant who was liable to indemnify it, (the appellant) to the extent of Rs.2 lac with interest and cost. 2. Repudiation resulted in filing of complaint under the Consumer Protection Act, 1986, as there was deficiency in service on the part of the respondent. Main defence put forth by the respondent before the District Forum below, was that it is protected under proviso 4 of the Insurance Policy. For ready reference this clause is extracted herein below: "Payment of compensation is respect of death, injury or disablement of the insured from (a) intentional self injury, suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drug (c) directly or indirectly caused by insanity (d) arising or resulting Trom the insured committing any breach of the law with criminal intent". 3. District forum below while accepting the plea of the respondent of being not liable under proviso 4 of the terms of Insurance Policy also placed reliance on a decision of National Commission in the case of New India Assurance Company Ltd. vs. Smt. Jamna Devi and ors., 111 (2002) CPJ 63 CPJ 63 NC. In this case employer was held liable to pay the amount to the legal representatives of the insured. Hence this appeal. 4. Sole question that needs determination in this appeal is whether on the basis of the evidence on record deceased can be said being under influence of intoxicating liquor or not. A reference in this behalf when made to the report of State Forensic Science Laboratory, (its Photostat copy is at page 74 is on the file), according to it alcohol was found in the viscera etc. including urine. So far extent of alcohol in urine is concerned it was found at 86.3 MG%. Respondent has also placed expert opinion of Dr. D.S. Puri, former Professor and Head Department of Medicine, IG Medical College Shimla. including urine. So far extent of alcohol in urine is concerned it was found at 86.3 MG%. Respondent has also placed expert opinion of Dr. D.S. Puri, former Professor and Head Department of Medicine, IG Medical College Shimla. Besides other things in his opinion he has said "Even though legal intoxication requires (illegible) alcohol consume of 80-100 MG", changes are seen even as low as 20-30 MG CLL. So on this basis he has opined that the deceased was under the influence of alcohol/liquor. Table 7.5.1. Table showing the Effects of Different Concentration of Alcohol Concentration of alcohol in blood (mg/100ml) Minimum consumed volume of 70% proof spirit (ml) Behaviour and signs Remarks Upto 50 Less than 70 No change Slightly flushed face Dry and decent, fit to drive 50 to 140 70 to 150 Majority are gay, vivacious and talkative a few may show symptoms of more severe intoxication. Dry and cecent, fit to drive Around 150 150-200 Garrulous and aggressive A critical level Delighted and devilish may be dangerous in control of a vehicle. 150-200 250-300 Motor incocrdiration, slurred speed, stagering Gait. Delinquent and disgusting Unfit to drive. 400-600 550-600 Coratosed. Dazed and dejected. Above 600 More than 700 Asphyxia and death Dead drunk 5. Surprisingly accident occurred on 27.11.1997 and post -mortem was conducted on 28.11.1997.Viscera were sent on 4.12.1997 to the State Forensic Science Laboratory. Report is dated 14.11.1998. There is no material on record to suggest as to whether any preservative was added to the viscera when it was sent for chemical analysis to the aforesaid laboratory. Therefore, respondent cannot derive any benefit either from this report or from the report of Dr. Puri." 6. On the other hand the post-mortem examination report given by IGMC, cause of death has been stated to "deceased appears to have died because of head injury—". On receipt of the report from the State Forensic Science laboratory it has been observed by the doctor that alcohol has been found in the viscera and the urine 86.3 MG%. Deceased might have consumed alcohol before death, though cause of death remains same as above. 7. Therefore in order to succeed on the basis of the report of the Forensic Science Laboratory, it was incumbent upon the respondent to have shown that the content of alcohol in urine was so much, to hold the deceased under the influence of intoxicating liquor. 7. Therefore in order to succeed on the basis of the report of the Forensic Science Laboratory, it was incumbent upon the respondent to have shown that the content of alcohol in urine was so much, to hold the deceased under the influence of intoxicating liquor. Mere consumption of liquor by itself does not make a person intoxicated under its influence, unless at the same time it was shown that it was excessive. 8. In view of he aforesaid discussion of proviso 4 (supra), as defence setup by the respondent and riled upon by the District Forum below to reject the compliant is not correct. Therefore, claim of the appellant could no have been rejected as has been done in the present case. At the same time we are further of the view that the ratio laid down in the decision of New India Assurance Company Ltd. Vs. Smt. Jamna Devi and ore. III (2002) CPJ 63 NC. (supra) is also not attracted to the facts of the present case. 9. Another reason to take this view is that being under the influence of intoxicating liquor required something more than its mere consumption. Therefore in order to succeed on this defence respondent was further required to establish as to what was the limit of consumption of liquor beyond which a person could be said to be intoxicated under its influence. 10. No other point was urged. 11. In view of the aforesaid discussion, this appeal deserves to be allowed. Ordered accordingly, as a consequence of it respondent is held liable for payment of Rs.2 lacs to the legal representative (s) of the deceased Vinod Kumar driver alongwith 9% interest from the date of filing of the complaint i.e. 14.2.2002 as also cost of Rs. 5,000/- (Rs.2000/- before the Forum below and Rs. 3000/- of this appeal). Office will make available a copy of this order to the parties free of costs as per rules.