India: Disease Caused By Insect Bite In The Natural Course Of Events Not Covered Under The Accident Insurance

Last Updated: 13 May 2019
Article by Abhishek Bagga

Introduction:

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 & Ors1., held that where a disease is caused or transmitted by insect bite/virus in the natural course of events, it would not be covered by the definition of an accident.

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 Ghosh2 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 Costa3, 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, Nellore4 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 Lexicon5 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 Association6 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's7 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 insurance8 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 Gibbens9 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

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

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.

Footnotes

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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions