JUDGMENT : The petitioner is a Public Sector Insurance Company. This writ petition is filed challenging Ext.P8 Award of the Permanent Lok Adalat at Thiruvananthapuram for Public Utility Services, finding that the petitioner is liable to compensate the petitioners before the Lok Adalat (respondent Nos.4 to 7 herein) under a Group Personal Accident Insurance coverage extended by the petitioner Company to the State Government Employees and Teachers. 2. The claim arose on account of the death of one Udayakumar, who died as result of an accident while riding a motor bike. The deceased Udayakumar was at the relevant time serving the Kerala Police as Assistant Sub Inspector. The petitioner-Company had repudiated the claim on the ground that the deceased was, at the time of the accident, riding the vehicle under the influence of alcohol. The party respondents herein approached the Permanent Lok Adalath, Thiruvananthapuram and the Permanent Lok Adalat, by Ext.P8 Award, has found that the petitioner is liable to pay the amounts due under the policy in question. 3. Learned counsel appearing for the petitioner would submit that Ext.P8 Award of the Permanent Lok Adalat is legally unsustainable. It is submitted that, Ext.P2 is the Memorandum of Understanding executed between the Government of Kerala and the petitioner-Company. It is submitted that the Proviso to Clause (4) of Memorandum of Understanding clearly provides that no claim will be payable under the policy for any death or disability, if such death or disability happens while under the influence of intoxicating drugs or alcohol and also while committing breach of law with criminal intent. It is submitted that the terms of policy (which are on record as Ext.P3) would also indicate that the same Clause was carried forward to the terms. Reference is made in this regard to Clause (5)(b) and 5(e) of Ext.P3 policy. It is submitted that, in the present case, Ext.P6 report of the Assistant Chemical Examiner to Government of Kerala, Thiruvananthapuram will show that the deceased was found to be under the influence of alcohol. It is pointed out that in Ext.P6, the quantity of Ethyl alcohol per 100 ml of blood was found to be 86.25 mg while the limit prescribed in Section 185 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the M.V Act’) is 30 mg. It is pointed out that in Ext.P6, the quantity of Ethyl alcohol per 100 ml of blood was found to be 86.25 mg while the limit prescribed in Section 185 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the M.V Act’) is 30 mg. Learned counsel appearing for the petitioner also places reliance on the judgment of this Court in Sreedevi V. State of Kerala [ 2024(2) KLT 37 ] to contend that a challenge to a similar Clause, restricting the claim, if the person suffering disability or death was under the influence of alcohol, was found to be valid by this Court. Learned counsel also places reliance on the judgment of the Supreme Court in Iffco Tokio General Insurance Company Limited V. Pearl Beverages Limited [ (2021) 7 SCC 704 ] to contend that where there is clear material to show that the person who suffered disablement or death was under the influence of alcohol, it will be well within the right of the Insurance Company to reject the claim in a case where the terms of the Policy indicate that no claim will be entertained if it is found that the person who suffered disablement or death was under the influence of alcohol at the relevant time. 4. Heard the learned Government Pleader appearing for responded Nos.1, 2, 3 and 8. 5. Despite service of notice, there is no appearance for respondent Nos.4 to 7. 6. Having heard the learned counsel appearing for the petitioner and the learned Government Pleader, I am of the view that the petitioner is entitled to succeed. The Proviso to Clause (4) of Ext.P2 Memorandum of Understanding reads as follows:- ‘’Provided that no compensation shall be payable for Death or Disability as described above arising out of (a) intentional self injury, suicide or attempted suicide, insanity (b) whilst under the influence of intoxicating drugs or alcohol, (c) whilst committing breach of law with criminal intent, (d) Pregnancy or childbirth or in consequence thereof (e) War and Nuclear Perils. The other terms and conditions of insurance shall be as per the Company’s standard Group Personal Accident Insurance Policy, subject otherwise to the modification mentioned in the Scheme.’’ The Clause (5)(b) and (c) of Ext.P3 Policy reads as follows:- ‘’5. Payment of compensation in respect of Death or Disablement of the insured person. The other terms and conditions of insurance shall be as per the Company’s standard Group Personal Accident Insurance Policy, subject otherwise to the modification mentioned in the Scheme.’’ The Clause (5)(b) and (c) of Ext.P3 Policy reads as follows:- ‘’5. Payment of compensation in respect of Death or Disablement of the insured person. (a) xxxx (b) Whilst under the influence of intoxicating liquor or drugs. (c) xxxx (d) xxxx (e) Arising or resulting from the insured person committing any breach of law with criminal intent.’’ This Court in Sreedevi (supra) considered the challenge to the validity of a similar Clause, excluding the liability of the Insurance Company in a case where the person suffering disablement or death was under the influence of alcohol at the relevant time and this Court found as follows:- ‘’8. It is evident from the afore narrative and the pleadings on record, that the petitioner has approached this Court through this writ petition because, when her claim was directed to be reconsidered in the judgment issued in the earlier round of litigation, it culminated in Ext.P8, wherein, the Government took the specific stand that, on account of Clause 6 of Ext.P9 Group Insurance Scheme, the said claim cannot be considered because the deceased was under the influence of alcohol at the time of his unfortunate death. She has, therefore, chosen to challenge the said clause itself as being untenable and without any rational connection to the objectives sought to be achieved; and she asserts, through her learned counsel, that it operates oppressively because, even the case of death of a person who may be under the influence of alcohol, but for no reason that can be attributed to such influence, would stand excluded. 9. This Court certainly would have considered the afore contentions more intently but for the fact that Ext.P3 Chemical Analysis Report - which remains undisputed and uncontested – establishes that the deceased was under the influence of alcohol indicative of not merely casual drinking, but of heavy indulgence. This is because, the sample of the deceased is certified to have contained 185 mg of methyl alcohol per 100 ml and this certainly establishes that he was in such an inebriated state, even not to have been aware the circumstances around him. This is because, the sample of the deceased is certified to have contained 185 mg of methyl alcohol per 100 ml and this certainly establishes that he was in such an inebriated state, even not to have been aware the circumstances around him. To add to this, the police report, namely Ext.P1, says that the well had a protective wall around it; and therefore, normally except in the case of a person being incapacitated to be aware of the circumstances or being subjected to an external force applied on him, the falling to the same, thus causing drowning is improbable. Even according to the petitioner and going by the police reports, there was no external force applied on the deceased and he appears to have fallen into the well being oblivious of the danger that was lurking while he was walking through the property of his friend. 10. All the afore is suggestive of the fact that the death occurred unfortunately on account of the factum of the deceased having imbibed large volume of liquor; and hence the argument of the petitioner, that Clause 6 of Ext.P9 would not be attracted in this case, the death being not on account of consumption of liquor, cannot find my favour. The Supreme court, in Iffco Tokio General Insurance Company (supra), held as follows:- ‘’105. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 % BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02. 106. 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. 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 Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also. 107. 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. 108. It is, in this regard, we would think that an exclusion of the nature involved in this case, must be viewed. We can safely proceed in this case, on the basis that the person driving the vehicle had consumed alcohol. We can proceed on the basis that he drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, which necessitated the vehicle, being involved in the accident, in the manner, which is borne out by the FIR. There is simply no such case for the respondent.’’ 7. The Permanent Lok Adalat in Ext.P8 Award proceeded on the basis that, apart from Ext.P6 report of the Chemical Examiner (which was on record as Ext.D6 before the Permanent Lok Adalat), no other materials had been placed to establish that the deceased was under the influence of alcohol at the relevant time. The relevant portion of Ext.P8 Award containing the above finding of the Permanent Lok Adalat reads as follows:- ‘’………..But here apart from Ext.D6 the respondents have not produced any material before this Forum to show that the deceased at the time of accident or death was under the influence of intoxicating liquor.’’ It is clear from the reading of Section 185 of the M.V Act that where presence of Ethyl Alcohol more than 30 mg per 100 mg is detected in the blood sample of a person who is driving a vehicle, such person would be guilty of the offence of 'driving by drunken person' as contemplated by the provisions of Section 185 of the M.V Act. Ext.P6 Chemical Analysis Report indicates that there was 86.25 % of alcohol in the blood sample of the deceased. Thus, it is clear that the deceased was under the influence of alcohol at the time when he met with an accident, leading to his death. In such circumstances, I have no hesitation to hold that Ext.P8 Award of the Permanent Lok Adalat, cannot be sustained in law. When Ext.P6 document (marked as Ext.D6 before the Permanent Lok Adalat) clearly showed that the deceased was clearly under the influence of alcohol at the time of accident, no other material was required to establish the said fact. In such circumstances, I have no hesitation to hold that Ext.P8 Award of the Permanent Lok Adalat, cannot be sustained in law. When Ext.P6 document (marked as Ext.D6 before the Permanent Lok Adalat) clearly showed that the deceased was clearly under the influence of alcohol at the time of accident, no other material was required to establish the said fact. Therefore, the terms of Exts.P2 and P3 clearly exclude the liability of the petitioner-Company under the policy. In the light of the above findings, the writ petition is allowed. Ext.P8 will stand quashed.