Disease caused by insect bite in the natural course of events not covered under the accident insurance.
The division bench of the Supreme Court of India (Supreme Court) comprising of Hon’ble Justice Dr. D.Y. Chandrachud and Hon’ble Justice Hemant Gupta, in its judgement dated March 26, 2019 in Branch Manager, National Insurance Co. Ltd. vs. Smt. Mousumi Bhattacharjee & Ors[1]., held that where a disease is caused or transmitted by insect bite not covered under accident insurance
Background
of the case
The insured was working as
manager of Tea Estate in Assam and thereafter took up employment as a manager
of a tea estate in Republic of Mozambique. During his stay in Mozambique, the
insured was admitted to the hospital and was diagnosed with encephalitis
malaria and died due to multi-organ failure, Encephalitis Malaria & Pnasituria-Malaria.
The heirs of the deceased filed a complaint under the Consumer Protection Act,
1986 (hereinafter referred to as “Act”) alleging that the insurer had committed
a deficiency of service in not selling the claim under the insurance cover
before the District Consumer Forum. The District Forum allowed the claim and
called upon the insurer to pay the award amount. A statutory appeal was filed
by the appellant before the West Bengal State Commission (hereinafter referred
as “State Commission”). The State Commission affirmed the order of the District
Forum holding that a sudden death due to mosquito bite in a foreign land was
accident. Subsequently, the order of the State Commission was assailed in
revision before the National Commission. The National Commission held “It
can hardly be disputed that a mosquito bite is something which no one expects
and which happens all of a sudden without any act or omission on the part of
the victim and accident may include events like snake bite, frost bite and dog
bite. Hence, it would be difficult to accept the contention that malaria due to
mosquito bite is a disease and not an accident”.
As per 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.
Proceedings
before the National Commission
The term accident has not been
defined in the policy which the deceased had taken and therefore contextual
dictionary meaning of the said terms has to be taken for the purpose of
deciding whether the death of the deceased was due to an accident or not. An
accident is something that happens unexpectedly and causes injury or damage,
something that happens unexpectedly and is not planned in advance.
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 vector
borne disease. The contention is that being bitten by a mosquito is an
unforeseen eventuality and should be regarded as an accident.
Proceedings before the
Supreme Court
The issue raised before the
Supreme Court was whether death due to malaria occasioned by a mosquito bite in
Monzambique, constituted a death due to accident.
In order to understand the
meaning of “accident”, reference was placed on precedents from Indian case
laws, foreign judgements and the noted literature on the subject.
Indian Case-Laws
Reference has been taken from
judgements wherein meaning of accident is defined, in the case of Union of India v. Sunil Kumar Ghosh[2] the term
accident has been referred to as an occurrence or an event which is unforeseen
and startling, happening of which is not inherent in the normal course of
events and is not ordinarily expected to happen or occur. In Regional Director, ESI Corporation v Francis
De Costa[3],
Division bench of the Supreme Court held that, the popular and ordinary sense
of the word ‘accident’ means a mishap or an untoward happening not expected and
designed to have an occurrence is an accident. It must be regarded as an
accident, from the point of view of the workman who suffers from it, that its
occurrence is unexpected and without design on his part, although either
intentionally caused by the author of the act or otherwise. The same principle
was adopted in Jyothi Ademma v Plant
engineer, Nellore[4]
wherein it was held that the expression accident means an untoward mishap which
is not expected or designed.
Literature on the Subject
P Ramanatha Aiyar’s law Lexicon[5]
defines the expression ‘accident’ as “an event that takes place without one’s
foresight or expectation; an event that proceeds from an unknown cause, or is
an unusual effect of known cause, and therefore not expected, chances,
causality, contingency. The law Lexicon, relying on Lovelace v Traveler’s Protective Association[6] defines
the expression ‘death by accident’ as death from any unexpected event, which
happens, as by chance, or which does not take place according to the usual
course of things.
The issue whether a disease can
be covered has been analysed in A W baker Welford’s[7]
the law related to accident insurance as “the word accident involves the idea
of something fortuitous from the natural causes; and injury caused by accident
is to be regarded as the antithesis to bodily infirmity caused by disease in
the ordinary course of the event”
Colinvaux’s law of insurance[8]
elucidates on the ambit of the expression accident and which defines it as
accident excludes disease. It follows from the above principle that a disease
cannot be classified as an accident. Although disease proximately caused by an
accident, in the absence of any exclusion for disease will be covered by a
personal accident policy, it is well established that the word “accident does
not include disease and other natural causes, and implies that intervention of
some cause which is brought into operation by chance and which can be describes
as fortuitous”.
Foreign Judgements
Court denoted the foreign
judgments wherein the distinction between the occurrence of a disease which may
be considered as an accident and a disease which occurs in the natural course
of event. In Co-Operators Life Insurance
Company v Randolph Charles Gibbens[9] the
Supreme Court of Canada was tasked with determining whether contracting a rare
complication of herpes that resulted in paralysis caused due to engagement in
unprotected sex would be covered under the definition of ‘accident’ the court
held thus that in the present case the evidence is that genital herpes is a
sexually transmitted virus that spreads by sexual intercourse. Sex is its
normal method of transmission. As such, unlike for example an internally
developing condition leading to an aneurysm, its transmission requires an
outsider’s participation. But the same could be said of infectious diseases
generally. Viruses and bacteria pass, directly or indirectly, from person to
person, and occasionally across species. In the “ordinary language of the people”,
an individual would not say on coming down with influenza that “I had an
accident”. We come down with the flu “in the ordinary course of events.”
Judgement – Insect bite not covered under accident insurance
The Hon’ble Supreme Court heard
arguments of both the parties and reliance was placed on 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, wherein it was
placed on record that one out of three people in Mozambique is afflicted with
malaria. The Court pronounced the judgement stating that 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. Hence the interpretation
placed on the terms of the insurance policy was manifestly incorrect and that
the impugned order of the National Commission is unsustainable.
Conclusion – Insect bite not covered under accident insurance
The law of insurance has developed 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, while any event or happenings which arises in the natural course is not an accident. This is the basis for holding that a disease may not fall under the category of accident, if it was neither unexpected nor unforeseen. Hence, insect bite not covered under accident insurance
Contributed by – Abhishek Bagga
[1] 2019 SCC
OnLine SC419
[2] 1984 4 SCC 246
[3] 1933 Supp (4) SCC 100
[4] 2006 5 SCC 513
[5] 3rd Edition, 2012
[6] 47Am. St. Rep. 638
[7] 2nd Edition, 1932
[8] 10th
Edition by Robert Merkin
[9] 2009 SCC 59
King Stubb & Kasiva,
Advocates & Attorneys
New Delhi | Mumbai | Bangalore | Chennai | Hyderabad | Kochi
Tel: +91 11 41032969 | Email: info@ksandk.com
By entering the email address you agree to our Privacy Policy.