Dr
KK Aggarwal &d Advocate Ira Gupta
On
Tuesday i.e. 26th March, 2019, the Hon’ble Supreme Court in the
matter titled as “The Branch Manager, National Insurance Co. versus Smt. Mousmi
Bhattacharjee & Others, Civil Appeal No. 2614 of 2019 has held that in a policy of insurance which covers
death due to accident, the peril insured against is an accident: an untoward
happening or occurrence which is unforeseen and unexpected in the normal course
of human events. The death of the insured in the present case was caused by
encephalitis malaria and insured was based in Mozambique which malaria prone
area as per WHO. Thus, the illness of encephalitis malaria through a
mosquito bite cannot be considered as an accident. It was neither unexpected
nor unforeseen. It was not a peril insured against in the policy of accident
insurance.
A
person who suffers from flu or a viral fever cannot say that it is an accident.
Of course, there is an element of chance or probability in contracting any
illness. Even when viral disease has proliferated in an area, every individual
may not suffer from it. Getting a bout of flu or a viral illness may be a
matter of chance. But a person who gets the flu cannot be described as having
suffered an accident: the flu was transmitted in the natural course of things.
To be bitten by a mosquito and be imbued with a malarial parasite does involve
an element of chance. But the disease which is caused as a result of the insect
bite in the natural course of events cannot be regarded as an accident.
Particularly, when the disease is caused in an area which is malaria prone.
Facts
of the case
·
The insured was working as a Manager of a Tea Estate in
Assam.
·
He thereafter took up employment in 2012 as a Manager of
a Tea Factory at
Cha-DeMagoma, District Gurue, Province-Zambezia, Republic of Mozambique.
·
During his stay in Mozambique, the insured was admitted
to the hospital on
14 November 2012. He was diagnosed with encephalitis malaria and died on
22 November 2012 due to multi-organ failure.
·
His death certificate issued by the Republic of
Mozambique spelt out the conditions and causes of death thus:
“VII. Conditions and causes of death
56. Causes of the Death
WRITE ONE DIAGNOSIS PER LINE
Direct
cause
a) Multi organ
failure
Intermediary cause
b) Encephalitis
Malaria
Basic Cause
c) Pnasituria – Malaria.”
·
The heirs of the deceased filed a complaint under the
Consumer Protection Act 1986 before the District Consumer Disputes Redressal
Forum alleging that the insurer had committed a deficiency of service in not
settling the claim under the insurance cover.
·
By an order dated 28 February 2014, the District Forum
allowed the claim.
·
The State Commission by its order dated 2 February 2016
affirmed the order of the District Forum, holding that a “sudden death due to
mosquito bite in a foreign land” was an accident; it would be rather silly to
say that it was a natural death.
·
The order of the State Commission was assailed in
revision before the National Commission which also allowed the claim of the
complainant.
Question
to be decided by Hon’ble Apex Court
Whether
a death due to malaria occasioned by a mosquito bite in Mozambique, constituted
a death due to accident?
Judgment
of the Hon’ble Supreme Court
14. In
order to constitute an accident, the event must be in the nature of an
occurrence which is unnatural, unforeseen or unexpected. The present case
concerns death caused due to a disease being contracted. Section II of the
insurance policy covers death caused by accident. Death or injury from accident
caused by insanity or venereal disease has been specifically excluded and not
covered under the policy. The issue is whether death caused by any other
disease not specifically excluded under the policy, is be covered.
18.
As the law of insurance has developed, there has been a nuanced understanding
of the distinction between an accident and a disease which is contracted in the
natural course of human events in determining whether a policy of accident
insurance would cover a disease. At one end of the spectrum is the theory that
an accident postulates a mishap or an untoward happening, something which is
unexpected and unforeseen. This understanding of what is an accident indicates
that something which arises in the natural course of things is not an accident.
This is the basis for holding that a disease may not fall for classification as
an accident, when it is caused by a bodily infirmity or a condition. A
person who suffers from flu or a viral fever cannot say that it is an accident.
Of course, there is an element of chance or probability in contracting any
illness. Even when viral disease has proliferated in an area, every individual
may not suffer from it. Getting a bout of flu or a viral illness may be a
matter of chance. But a person who gets the flu cannot be described as having
suffered an accident: the flu was transmitted in the natural course of things.
To be bitten by a mosquito and be imbued with a malarial parasite does involve
an element of chance. But the disease which is caused as a result of the insect
bite in the natural course of events cannot be regarded as an accident.
Particularly, when the disease is caused in an area which is malaria
prone.
On
the other hand, there may well be instances where a bodily condition from which
an individual suffers may be the direct consequence of an accident. A motor car
accident may, for instance, result in bodily injuries, the consequence of which
is death or disability which may fall within the cover of a policy of accident
insurance. Hence, it has been postulated that where a disease is caused or
transmitted in the natural course of events, it would not be covered by the
definition of an accident. However, in a given case or circumstance, the
affliction or bodily condition may be regarded as an accident where its cause
or course of transmission is unexpected and unforeseen.
20. In a policy of
insurance which covers death due to accident, the peril insured against is an
accident: an untoward happening or occurrence which is unforeseen and
unexpected in the normal course of human events. The death of the insured in
the present case was caused by encephalitis malaria. The claim under the policy
is founded on the hypothesis that there is an element of uncertainty about
whether or when a person would be the victim of a mosquito bite which is a
carrier of a vectorborne disease. The submission is that being bitten by a
mosquito is an unforeseen eventuality and should be regarded as an accident. We
do not agree with this submission. The insured was based in Mozambique.
According to the World Health Organization’s World Malaria Report 2018,
Mozambique, with a population of 29.6 million people, accounts for 5% of cases
of malaria globally. It is also on record that one out of three people in
Mozambique is afflicted with malaria. In light of these statistics, the illness
of encephalitis malaria through a mosquito bite cannot be considered as an
accident. It was neither unexpected nor unforeseen. It was not a peril insured
against in the policy of accident insurance.
21. We
are hence of the view that the interpretation placed on the terms of the
insurance policy was manifestly incorrect and that the impugned order of the
National Commission is unsustainable.”
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of
Medical Associations in Asia and Oceania
(CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of
India
Past National President
IMA
